STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILLIPS PETROLEUM COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1562

) Application No. 7500103

SOUTHWEST FLORIDA WATER )

DISTRICT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice and following am assignment of this matter to the Division of Administrative Hearings, Department of Administration by the Southwest Florida Water Management District under provision of Section 120.57, Florida Statutes, this matter cane on to be heard before Delphene Strickland, Hearing Officer of the Division of Administrative Hearings.

On September 3, 1975, a public hearing was initiated and continued, and on December 11, 1975, said hearing was reconvened, and completed. Said public hearing being duly and properly noticed was conducted at the offices of the Southwest Florida Water Management District, Brooksville, Florida; and all parties hereto being present or given the opportunity to be present, and, in either event, being provided the opportunity to present such testimony and evidence as they deemed necessary and appropriate. Based on the evidence and testimony presented at said hearing, the depositions filed as part of the record and the various exhibits filed herein, the Hearing Officer does render he following:

For Petitioner: A. Broaddus Livingston, Esquire

Jacob D. Varn, Esquire

For Respondent: B. L. Blaine, Esquire

Jay T. Ahern, Esquire

For Intervenor: Richard E. Nelson, Esquire

Richard L. Smith, Esquire

ISSUE

Whether a consumptive use permit for the quantities of water applied for should be granted.

FINDINGS OF FACT

1. Applicant Phillips Petroleum Company submitted application Number 7500103 for a consumptive use permit for an average daily withdrawal of 9,000,000 gallons of water a day to be withdrawn from the Florida Aquifer in DeSoto County, Florida. The application is for a new use and the withdrawal is

   for industrial use from four withdrawal points. The center of withdrawals will be located at Latitude 27 degrees, 14 minutes, 40 seconds north. Longitude 82 degrees, 2 minutes, 48 seconds west, in DeSoto County.

   
   

2. Notice of the September 3, 1975 public hearing was published in a newspaper of general circulation, to wit: The Arcadian on August 14 and 21, 1975, pursuant to Section 373.146, Florida Statutes. Notice of the continuation of the hearing held at 10:30 a.m., December 11, 1974 were duly noticed.

   
   

3. Sarasota County was granted leave to intervene as a party to the proceeding.

   
   

4. Evidence was received and testimony was heard by all parties at the September 3, 1975 hearing and evidence was received and testimony was heard by she Applicant and Intervenor at the December 11, 1975 hearing, and although the attorneys for the Southwest Florida Water Management District took no further part in the December 11, 1975 hearing on the merits, depositions of the Southwest Florida Water Management District staff members, James Mann and Barbara Boatwright, were received.

   
   

5. Phillips Petroleum Company owns approximately 15,200 acres of land in DeSoto County and Manatee County and proposes to commence a phosphate mining operation on that property using a total of 15 million gallons of water per day, 9,000,000 gallons per day (MGD) from DeSoto County and 6 million gallons per day (MGD) from Manatee County. This application for a permit is for the 9 million gallons of water to be withdrawn from an 8,700 acre parcel owned by the Applicant in DeSoto County, Florida.

   
   

6. As such it presumptively seeks withdrawal and consumptive use of no more than the average annual water crop for this parcel. Pursuant to the water crop theory, the water crop for the 8,700 acres contro led by the Applicant in the Southwest Florida Water Management District is 8.7 million gallons of water per day. However, as shown by correspondence of a hydrologist from Southwest Florida Water Management District, a phosphate mining operation is only 90 percent consumptive and therefore the actual consumptive use is 7.8 million gallons per day and falls within the water crop theory assumption set forth in Rule 16J-2.11(3), F.A.C., infra.

   
   

7. The statutory criteria for granting a consumptive use permit is found in Section 373.223, Florida Statutes, which states:

   
   

   "(1) To obtain a permit pursuant to the provisions of this chapter, the applicant

   must establish that the proposed use of water:

   1. Is a reasonable-beneficial use as defined in 474.019(5); and

   2. Will not interfere with any presently existing use of water; and

   3. Is consistent with the public interest.

      
      

      (2) The governing board of the department may authorize the holder of a use permit to transport and use ground or surface water beyond overlying land or outside the watershed from which it is taken if the governing board or department determines

      that such transport and use is consistent with the public interest."

      
      

8. This statute has been supplemented by rules adopted by the Southwest Florida Water Management District and is found in Rule 16J-2.11, F.A.C.:

   
   

   "16J-2.11 Conditions for a Consumptive Use Permit.

   
   

   1. The intended consumptive use:

      1. Must be a reasonable, beneficial use.

      2. Must be consistent with the public interest.

      3. Will not interfere with any legal use of water existing at the time of the application.

         
         

   2. Issuance of a permit will be denied if the withdrawal of water:

      1. Will cause the rate of flow of a stream or other watercourse to be lowered below the minimum rate of flow established by the Board.

      2. Will cause the level of the potentiometric surface to be lowered below the regulatory level established by the Board.

      3. Will cause the level of the surface of water to be lowered below the minimum level established by the Board.

      4. Will significantly induce salt water encroachment.

      5. Will cause the water table to be lowered so that the lake stages or vegetation will be adversely and significantly affected on lands other than those owned, leased or otherwise controlled by the applicant.

         
         

   3. Issuance of a permit will be denied if the amount of water consumptively used will exceed the water crop of lands owned, leased, or otherwise controlled by the applicant. (Except where determined otherwise, the

   water crop [precipitation less evapotranspiration] throughout the District will be three hundred sixty-five thousand (365,000) gallons per year per acre.")

   
   

9. The United States Geological Survey and the Florida Department of Environmental Relation have received data supplied to Southwest Florida Water Management District with the application for a consumptive use permit. Throughout the course of the hearing testimony was heard and evidence was received as to the "leakance value" of the parcel of land in question. "Leakance value" was defined as the moving of water from the surface down into the deeper aquifer. A geologist, Mr. Donald S. Kell, with the Department of Environmental Regulation, and who testified at the request of the Intervenor, Sarasota County, was of the opinion that insufficient data to determine leakance

   value in connection with the mining operation had been submitted and therefore further tests were needed. Mr. Jack Hickey of the United States Geological Survey was of the opinion that leakance value had not been obtained. The technical staff members of the Southwest Florida Water Management District were uncertain as to whether reliable leakance value had been obtained.

   
   

10. It was the position of the Intervenor, Sarasota County, that due to the geological conditions of the proposed mining operation, this leakance value or surface recharge into the aquifer was insufficient and was not in conformity with Southwest Florida Water Management District's water crop theory assumption of 1,000 gallons per acre per day. Although evidence was presented on this point, it is the finding of this Hearing Officer that such evidence was insufficient to establish the basis of, any finding of fact or to rebut the assumption contained in the above referenced rule.

    
    

11. The validity of this rule was not challenged and the presumption is that the rule is valid.

    
    

12. The water used in the flotation process of applicants mining and benefication process would be recycled and reused in other areas of the phosphate operation.

    
    

13. A letter of objection by Donald T. Yeats was examined and considered in this Order.

    
    

14. The Applicant presented evidence that the construction of the facility would be in excess of $94 million expended over a period of 3 years, 61 percent of which would be spent in the region. 350 people would be employed at full production. Additional support jobs would employe from 200-400 people.

    
    

15. Evidence was presented by the Applicant and was not rebutted by the Intervenor or by the Southwest Florida Water Management District as to each of the applicable conditions for a consumptive use permit in Chapter 16J-2.11, Rules of the Southwest Florida Water Management District, effectuating the provisions of Chapter 378, Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

16. The parties have properly proceeded under Chapter 373, Florida Statutes, the rules promulgated thereunder and Chapter 120, Florida Statutes. The testimony heard and documentary evidence received permit the Governing Board of the Southwest Florida Water Management District to grant the application for a consumptive use permit as requested.

    
    

17. There was no competent substantial evidence presented to rebut the presentation of the Applicant showing that it had met the requirements of Chapter 373, Florida Statutes and Chapter 16J, F.A.C., necessary for the issuance of a permit.

    
    

18. The Applicant's proposed use was shown to be:

    
    

    1. A reasonable, beneficial use;

    2. Consistent with the public interest; and

    3. There was no showing that it will interfere with any legal use of water existing at the time of the application.

       RECOMMENDATION

       
       

       That the Southwest Florida Water Management District approve Phillips Petroleum Company's application for a consumptive use permit as requested, subject to the following terms and conditions:

       
       

       1. Prior to commencing withdrawals, Phillips Petroleum shall notify the District of said commencement;

          
          

       2. All production wells will be equipped with appropriate flow deters or other measuring devices;

          
          

       3. Phillips shall submit periodic reports of withdrawal to the District; and

          
          

       4. Phillips shall install appropriate observation wells or other monitoring facilities.

DONE and ORDERED this 12th day of January, 1976.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Jacob D. Varn, Esquire

Carlton, Fields, Ward, Emmanuel, Smith & Cutler

2000 Exchange Bank Building Tampa, Florida

Jay T. Ahern, Esquire Southwest Florida Water

Management District Post Office Box 457 Brooksville, Florida

Richard E. Nelson, Esquire Richard L. Smith, Esquire Nelson, Payne, Hesse and Cyril 2070 Ringling Boulevard Sarasota, Florida

Docket for Case No: 75-001562

Orders for Case No: 75-001562