STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: ELSBERRY & ELSBERRY ) CASE NO. 75-2095 CONSUMPTIVE USE PERMIT APPLICATION. ) APPLICATION NO. 7500165

)

RECOMMENDED ORDER

After due notice, a public hearing was held before the undersigned Hearing Officer on December 2, 1975, at Brooksville, Florida.

APPEARANCES

For Applicant: Donald L. Elsberry, Vice President For Permittee: J. T. Ahern, Staff Attorney Witness: Barbara Boatwright

Geologist, Area Regulatory Supervisor Southwest Florida Water Management District

FINDINGS OF FACT

1. Application 7500165 requested average withdrawal of water of 1,804,750 gallons per day from 4 wells located about a mile east of Highway 41 and a mile north of Apollo Beach. The four wells would be for irrigation of tomato crops on total acreage of 4 acres located in Hillsborough County (Exhibit 1, Testimony of Elsberry and Boatwright).

   
   

2. Notice of hearing as to the application was published in a newspaper of general circulation in accordance with statute and rule (Exhibit 3).

   
   

3. A letter of objection from Joseph S. Benham, Apollo Beach, Florida, dated November 19, 1975 was submitted to the Water Management District, wherein he expressed concern regarding water shortages and, although he does not seek to totally deny the application, is of the belief that the district must insure sufficient controls and management of irrigation activities so that resources are not wasted, water runoff to drainage ditches is eliminated and renewed justification is given each year for the withdrawal (Exhibit 2).

   
   

4. A representative of the District staff established that there would be no violation of statutory or regulatory requirement for issuance of a consumptive water use permit in this case except as to the fact that potentiometric level of the applicant's property would be lowered below sea level as a result of withdrawal. It was agreed at the hearing that a period of thirty days should be granted both parties to formulate a stipulation as to control of runoff. An unsigned stipulation was received from the Water Management District by the hearing officer on March 1, 1976, which provided that the permit would be granted with the following stipulations:

   
   

   1. Runoff from the property will be limited

      to 25 percent of the quantity pumped and by December 31, 1980 shall be reduced to 16.5

      percent of the quantity pumped.

   2. The District may at its own expense

      install metering devices for the purpose of monitoring runoff. The permittee will be notified in advance of such action.

   3. The Permit will expire on December 31, 1980. (Testimony of Boatwright, Exhibit 4).

      CONCLUSIONS OF LAW

      
      

5. The procedural requirements of Chapter 373, Florida Statutes, and the rules promulgated pursuant thereto, have bean complied with as they pertain to this application with the exception of the fact that the requested withdrawal will lower the potentiometric surface of the applicant's property below sea level in violation of Rule 16J-2.11(4)(e). However, since the staff of the District had no objection to this aspect of the application, the Board should grant an exception to the aforesaid rule under its authority as expressed in Rule 16J-2.11(5) as being consistent with the public interest.

   
   

6. In view of the fact that the parties have agreed to certain conditions concerning runoff which appear to be within acceptable limits, it is concluded that the permit should be issued with conditions in that respect pursuant to Rule 16J-2.11(6) and (8).

RECOMMENDATIONS

1. That application 8500165 submitted by Elsberry and Elsberry, Inc. Route 2, Box 70 Ruskin, Florida, for a consumptive water use permit be granted with the conditions as follow:

   
   

   1. Runoff from the property will be limited to 25 percent of the quantity pumped and by December 31, 1980 shall be reduced to 16.5 percent of the quantity pumped.

      
      

   2. The District may at its own expenseinstall metering devices for the purpose of monitoring runoff. The permittee will be notified in advance of such action.

      
      

   3. The Permit will expire on December 31, 1980.

      
      

2. That the Board grant an exception to the provision of Rule 16J- 2.11(4)(e), F.A.C., for good cause shown.

DONE and ENTERED this 15th day of March, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Jay T. Ahern, Esquire Southwest Florida Water

Management District Post Office Box 457

Brooksville, Florida 33512

Elsberry & Elsberry, Inc. Route 2, Box 70

Ruskin, Florida

Docket for Case No: 75-002095

Orders for Case No: 75-002095