STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RANGER CONSTRUCTION )

INDUSTRIES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 81-1429

)

SOUTH FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent, )

and )

)

VANGUARD FARMS, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 13-14 October 1981 at West Palm Beach, Florida.

APPEARANCES

For Petitioner: Donald J. Beuttenmuller, Esquire and

William Fleck, Esquire Post Office Box 71

Palm Beach, Florida 33480

For Respondent: Irene Quincey, Esquire

South Florida Water Management District

Post Office Box "V"

West Palm Beach, Florida 33409

For intervenor: Harold Chopp, Esquire

2105 AmeriFirst Building One Southeast Third Avenue Miami, Florida 33131

By application dated 11/6/80 Ranger Construction Industries, Inc., seeks a water use permit from South Florida Water Management District (SFWMD), Respondent, to withdraw some 350 million gallons of water per year (MGY) from an active rock quarry in order to continue mining the quarry. Upon notification that SFWMD intended to grant the permit, Vanguard Farms, Intervenor, which owns property bordering three sides of Petitioner's property, opposed the grant of the requested permit alleging that the proposed use would interfere with intervenor's beneficial use of its property. Intervenor essentially contends that in prior years water removed from the quarry has flowed onto Intervenor's

property and damaged the citrus groves and sugarcane fields located thereon; and, if the dewatering permit is granted, similar flooding of the property will recur.

At the beginning of the hearing, Petitioner's motion to change the style of the case to reflect the corporate name change from Rubin Construction Company, Inc., to Ranger Construction Industries, Inc., was granted. It was agreed that during these proceedings reference made to Rubin Construction Company would be deemed applicable to Ranger Construction Industries, Inc., and the two names would be treated as interchangeable for the purpose of this proceeding.

Thereafter, three witnesses were called by Petitioner, one witness was called by Respondent, six witnesses were called by Intervenor, and fourteen exhibits were admitted into evidence. Ruling on objections of relevancy to some of these exhibits was reserved at the hearing. Those exhibits relating solely to misrepresentations made in prior years and to earlier methods of operation of the quarry pit, insofar as not encompassed in the present application, were disregarded in reaching the findings below.

Proposed findings of fact and conclusions of law submitted by the parties and not included herein were not supported by competent evidence or were deemed immaterial to the results reached.

FINDINGS OF FACT

1. Petitioner has a lease on a 160-acre tract of land along the northern boundary of Palm Beach County which has been zoned and used for several years to mine rock used in local road building operations. This tract of land is surrounded on the east, south and west by some 1,000 acres of land owned by Intervenor, Vanguard Farms. The Vanguard Farms property is used to grow citrus and sugarcane.

   
   

2. The geology of the area in the vicinity of this application is such that some three feet of Everglades top soil overlies the limestone. The land surface is about fifteen (15) feet NGVD and the water level table fluctuates from twelve (12) to fourteen (14) feet NGVD for the dry and wet seasons.

   
   

3. The Vanguard Farms property, which surrounds Petitioner's property in Palm Beach County, is a wet area bordered on the west by Lake Okeechobee and on the east by high ground water elevation. The area has an excess of rainfall over evapotranspiration and excess water will always be generated. In order to render Vanguard Farms arable it is necessary to drain the property and pump excess water from the land.

   
   

4. The existing rock pit is some 6.7 acres in area. In order to economically mine rock from this pit it is necessary to remove stable overburden and expose the limerock to provide a stable platform on which the mining equipment can be operated. Since the water table is generally above the top of this limerock, it is necessary to remove water from the pit to expose the rock to be quarried.

   
   

5. During earlier operations water from the pit dewatering was pumped into a canal which flowed onto intervenor's property. In the application now under consideration, no water from the dewatering operation will be pumped off the 160 acres controlled by Petitioner. A 25-acre holding pond has been constructed on this site as well as a 9-acre overflow pond. The holding pond was constructed by piling the overburden, and possibly some limerock, in a rectangular shape some ten feet above the surface (25 feet NGVD). This material with which this

   10-foot high levee is formed was excavated with a dragline and shaped with a tractor. Condition 28, of the conditions proposed by Respondent for the grant of this application, requires all dikes, levees and berms behind which water is to be retained to be inspected for structural adequacy. A report of such inspection and steps necessary to correct the deficiencies noted shall be submitted, and the report is to be signed and sealed by a Florida registered professional engineer.

   
   

6. Perimeter ditches on the north, south and east sides of Petitioner's lands will intercept seepage from the retention pond and surface waters flowing onto this property. These perimeter ditches are connected to the rock pit to which such waters will flow. Water moving westward across the property will be intercepted by the rock pit.

   
   

7. Without the rock pit excess water generated in this area will flow onto Vanguard's adjacent land. This condition will exist when the pit is not in operation. However, when the pit is in operation, the water will be retained on Petitioner's property by those limiting conditions requiring the maintenance of water level elevation in the perimeter ditch to be kept either equal to or below the water level elevation of Vanguard Farms. Under this condition, all water will be routed between the pit and retention pond.

   
   

8. Conditions of the permit which Respondent proposes to issue include that the water level in the retention pond not exceed 18.5 feet NGVD, that the holding pond be interconnected with the overflow pond, that the water level in the perimeter ditches be maintained by use of a flashboard riser at 10.8 feet NGVD, that dewatering operations cease upon notification by District staff of any adjacent property owners experiencing water-related problems, and that a direct connection between holding pond and rock pit be established for emergency discharge of water from the holding pond back into the rock pit.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

10. Section 373.044, Florida Statutes, authorizes the Department to adopt rules and regulations to carry out the provisions of that chapter. Pursuant to that authority, Chapter 40E, Florida Administrative Code, has been adopted. Rule 40E-2.91, Florida Administrative Code, adopts by reference the document entitled "Basis of Review of Applications for Mining Water Use (Dewatering) Within South Florida Water Management District."

    
    

11. Section 2.0 of this document provides that in order for an applicant to obtain a permit he must establish that the dewatering is:

    
    

    Reasonable-beneficial; will not interfere with any presently existing legal use of water; and is consistent with the public interest.

    
    

12. Intervenor attempted to show that the proposed project should be disapproved because previous uses of this water damaged Intervenor. While such evidence would be admissible to show similar operations could lead to similar results, here the evidence was that the water removed from the rock pit would stay on Petitioner's property. Intervenor's concern that the levees for the holding pond and overflow area are unsafe because not constructed in accordance with an engineering plan, while proper, will be satisfied by the special

    conditions in the permit requiring a certificate by a professional engineer that the levees and dikes are adequate for their intended purposes.

    
    

13. Further, these special conditions will render it highly unlikely that the water removed from the rock pit will leave Petitioner's property and invade Intervenor's property; and certainly in no greater quantity than has historically existed. The design of the retention pond and perimeter ditches, coupled with water levels established at various parts of the system, will return to the rock pit any water exceeding the designed capacity of the retention pond.

    
    

14. From the foregoing it is concluded that, subject to the conditions recommended by SFWMD staff, the proposed dewatering will be reasonable and beneficial, will not interfere with any presently existing legal use of the water, and is consistent with the public interest. It is, therefore,

RECOMMENDED that the application of Ranger Construction Industries, Inc., for a water use permit be granted subject to the special conditions recommended by the staff as contained in Joint Exhibit No. 5.

ENTERED this 6th day of November, 1981, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1981.

COPIES FURNISHED:

Donald J. Beuttenmuller, Esquire William Fleck, Esquire

Post Office Box 71

Palm Beach, Florida 33480

Irene Quincey, Esquire

South Florida Water Management District

Post Office Box "V"

West Palm Beach, Florida 33409

Harold Chopp, Esquire 2105 AmeriFirst Building

One Southeast Third Avenue Miami, Florida 33131

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RANGER CONSTRUCTION INDUSTRIES, INC.,

Petitioner,

vs. CASE NO. 81-1429

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Respondent,

and

VANGUARD FARMS,

Intervenor.

/

FINAL ORDER

The Hearing Officer's Order came to be heard before the Governing Board of the South Florida Water Management District on the 10th day of December, 1981. After consideration of the matter and hearing from counsel for the Petitioner and the District, the Governing Board:

1. Adopts the Findings of Fact as contained in the Recommended Order.

   
   

2. Adopts the Conclusions of Law as contained in the Recommended Order with the modification of the last paragraph as follows:

   
   

   "From the foregoing is concluded that, subject to the conditions recommended by SFWMD staff, as modified by two stipulations by counsel for applicant and South Florida Water Management District of July 22, 1981 and September 25, 1981, the proposed dewatering will be reasonable and beneficial, will not interfere with any presently existing legal use of the water, and is consistent with the public interest." . . .

3. Further the Governing Board Orders:

That the application of Ranger Construction Industries, Inc., for a water use permit be granted subject to the special conditions recommended by the staff as contained in joint exhibit number 5 as modified by two stipulations by counsel for applicant and South Florida Water Management District of July 22, 1981 and September 25, 1981.

(Corporate Seal)

ATTEST:

BY

J. Maley

Secretary

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, ITS GOVERNING BOARD

BY Chairman

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that a true and correct copy of the foregoing has been furnished Donald J. Beuttenmuller, Esquire and William Fleek, Esquire, Post Office Box 71, Palm Beach, Florida 33480 and Harold Chopp, Esquire, 2105 AmeriFirst Building, One Southeast Third Avenue, Miami, Florida 33131, by U.S. Mail this 15th day of December, 1981.

Irene Kennedy Quincey

FILED WITH THE CLERK OF THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT

ON December 10, 1981

BY Jean Guy

DEPUTY CLERK

Docket for Case No: 81-001429

Orders for Case No: 81-001429