In re: Application by U.S. Sugar ) Corporation to the Board of ) Trustees of the Internal )
Improvement Trust Fund, State of ) CASE NO. 75-1063 Florida, for a certain lease, )
extension of a lease, and ) purchase of state owned land ) within the Everglades )
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 cause on July 10 and 11, 1975, and on August 8, 1975 at West Palm Beach, Florida.
For Petitioner: Phillip J. Parsons, Esquire
U.S. Sugar 701 Barnett Bank Building Corporation Tallahassee, Florida
and Joel T. Thomas
National Wildlife Federation 1412 16th Street, Northwest Washington, D. C.
For Trustees: Stephen H. Barber, Esquire Internal Staff Board of Trustees Improvement Internal Improvement Trust Fund Trust Fund Elliott Building
For Florida: Mercer Fearington Sugar Cane Post Office Box 1548 League Tallahassee, Florida
By this application, the U.S. Sugar Corporation (hereinafter referred to as U.S. Sugar, or Petitioner) seeks to lease same 8300 acres of land in the Everglades Agricultural Area (EAA) known as the Holey Lands, and to extend an
existing lease for 231 acres of land also in the Everglades Agricultural Area in Palm Beach County. Petitioner proposes to lease the Holey Lands tract for a period of 32 1/2 years and to extend the lease on the other parcel of land for a period of 20 years, with a lease renewal being renegotiated at five year intervals. No evidence was presented at the hearing with respect to the lease of the smaller portion and the discussion hereinafter contained will relate solely to the proposed lease of the 8300 acre parcel.
Initially, Petitioner proposed to exchange a 10,000 acre tract of endangered lands in the Withlacoochee River Basin on which it held an option to purchase for the EAA property; however, during the course of the hearing the Petitioner modified its application so as to offer $3,500,000 for the lease in lieu of the exchange.
At a prehearing conference held on June 27, 1975, the parties agreed that the issues that would be considered at the hearing relate to options available for the use of state owned land, subject to this application, that will result in the greatest public benefit. They further agreed that those options include:
Leave land idle to improve hunting.
Use land as part of water retention and water control facility, as a water conservation and reservoir area.
Restore land to pristine natural state as it existed prior to any farming being conducted in the area
Lease the land for agricultural use.
At the prehearing conference the Intervenor's Motion for a Continuance, on the grounds they had not had adequate time to prepare for the presentation of the case, was denied. Subsequently, similar motions were made at the hearing commencing on July 10, 1975 as well as at the hearing which continued on August 8, 1975. Again, these motions were denied since Intervenor failed to show due diligence in prosecuting discovery, or to show any basis on which his presentation of the case had been prejudiced.
Historically, the Everglades Agricultural Area had its genesis with the federal construction of the levy around Lake Okeechobee, which commenced shortly after the hurricane of 1928. In addition to the higher levy that was built around Lake Okeechobee to contain the lake during future hurricanes, the Agricultural Area was also diked and canals were constructed. This project had the function of draining the lands to facilitate agriculture, as well as to provide irrigation for the lands during dry seasons. It also served to stop the periodic overflow of water from Lake Okeechobee, which had left them in a flooded condition for extended periods of time. The draining of these lands, and the stopping of the flooding of these lands, led to no further accumulation of muck over these lands, as well as a diminution of the existing muck due to oxidation and drying out. The latter resulted in subsidence of these lands of an order of some 40 inches in the last 40 years. Excess water accumulated during the rainy season over the EAA has been stored in Lake Okeechobee by back pumping from the canals into the lake. This water thus became available for irrigation during the dry season. Back pumping of waters draining from the agricultural lands into Lake Okeechobee increase the nutrient content of the lake. Nutrients from this source, as well as all other sources entering the lake, has caused Lake Okeechobee to approach a state of moderate eutrophication. The evidence presented is conflicting as to the stage of eutrophication of Lake
Okeechobee at the present time; however, there is evidence that the eutrophication of the lake has undoubtedly increased over the past several years. Whether this increase resulted primarily from back pumping from the EAA is another question.
The area for which this lease is proposed consists of land that has never been put to agricultural use. It has been named the Holey Lands because of solution holes which have developed in the limerock just beneath the surface, and appear similar to sink-holes. It is the eastern boundry of the Holey Lands, plus the so-called "toe" of the boot that is proposed for lease in this instance.
With the land in the idle state as it has been for many years, the subsidence of the land is the same, or greater, than it would be if the land were used for agricultural purposes. These lands in the dry season are subject to cracking, which facilitate development of much fires which cause additional subsidence over and above that which is caused by the normal process of oxidation. Furthermore, while left in an unattended condition there is no means or availability of equipment for putting out these muck fires other than wait for rainfall to accomplish this function. No one seriously contended that the land should be left in its present condition. In fact, there was testimony to the effect that as a hunting area this land was not as good as the area just westward known as the Rotenberger Tract.
With respect to restoring the land to its pristine natural state as it formerly existed, again there was no serious contention that this was a project with any degree of feasibility. It was generally agreed by all concerned that the subsidence of the land can be arrested if the land remains in a flooded condition. There was also the possibility that the accretian of muck could be resumed if the land was flooded and dried as it had been over the past centuries before advent of the agricultural user. However, no evidence was submitted that there is sufficient water available to perform this function. Accordingly, restoring the land to its pristine natural state is not a viable option.
The principal issues on which testimony was received was whether the best interest of the state was served by the land as part of a water retention and water control facility or by using the land for agricultural purposes. Using the land as a water control and water storage facility would reduce the amount of agricultural water back pumped into Lake Okeechobee from the EAA. Inasmuch as the excess water in the rainy season is required for use during the dry season, it is necessary to have a storage facility for this water rather than allow it to flow south to the ocean. One proposal was to use the area comprising the Holey Lands for this purpose. On Exhibit 2, a map showing the
EAA, the area herein proposed for lease is numbered 17, and the remainder of the Holey Lands Tract is numbered 16. West of Tract 16 is the Rotenberger Tract which is marked 15 on Exhibit 2. This is an area where the state presently owns a portion of the land, and has entered into some type of commitment to acquire the remaining parcels of privately owned land in that tract.
The Division of State Planning has negotiated a contract, inter alia, to study the conditions in the vicinity of Lake Okeechobee insofar as they affect the eutrophication of the lake. The final report of this project is due in October, and the representatives from the Division of State Planning, as well as many other parties participating in this case, suggested that final decision be delayed pending receipt of this report. Many of the studies that were done pursuant to the contract have been completed, and the data is presently available. This data indicates that the primary source of nutrient increase
into Lake Okeechobee is from the areas draining through the Kissimmee River Basin rather than from the Everglades Agricultural Area. Without going into the details which were contained in the testimony, it is sufficient to say that some
10 to 20 percent of the nutrient increase in Lake Okeechobee occurs from the EAA, and the balance from other areas of water entering into Lake Okeechobee. The former results from back pumping into the lake during the rainy season. The proposal to eliminate, or to reduce, the amount of back pumped water into Lake Okeechobee would require the use of a large portion of area 16 on Exhibit 2 (or all of the area 16) for a water retention area. If levies were constructed around this land, such that water could be retained to a maximum height of 5 feet above ground, approximately 65 percent of the water that is presently being back pumped into Lake Okeechobee could be there impounded. Thereafter it could presumably be pumped into the canals and further used in irrigation throughout the Everglades Agricultural Area. This would eliminate some 65 percent of the nutrients presently entering the lake from the Everglades Agricultural Area. A balding reservoir sufficient to store all the water presently being back pumped into Lake Okeechobee would require a much larger area. This could possibly be accomplished if all the Rotenberger tract, which is area 15 on Exhibit 2, as well as all of the Holey Land Tract, which is area 16 and part of 17 on Exhibit 2, were made available for this purpose. This would require diking costs in excess of one million dollars.
Many of the witnesses who appeared and testified, or adopted the testimony of other witnesses, opposed the grant of the application predominately upon the ground that use of this land for agricultural purposes would remove it from its present status as a hunting or recreation area, and thereby deprive them and their families of this use of the land. Presumably these people would also oppose the use of this land as a retention area for excess water to be stored during the rainy season for use thereafter in agricultural irrigation.
Palm Beach County has prepared a long range land use plan. In this plan the lands known as the Holey Land have been set aside for use as a conservation area. Although this plan has been approved by the county, it has not been implemented by zoning changes. As a result, the land in question, as well as the vast majority of the land in Palm Beach County is zoned as agricultural land. In fact, some 93 to 97 percent of Palm Beach County is presently zoned for agriculture, although under the long range plan which was presented at this hearing, only some 50 percent of the land will be zoned agricultural when the concepts contained in the long range land use plans have been incorporated into the zoning code of the county. The county is awaiting state action on this application, and others, prior to doing anything further toward implementing any long range plan by modifying the zoning laws to correspond thereto. The county requested that the hearing be held in Palm Beach County in order to allow parties to present their views prior to any further action by the county to modify their zoning laws.
With respect to the use of a parcel of land as a water retention area, the testimony was to the effect that an area approximately the size of one township was required. That portion of the Holey Land lying west of the area desired to be leased herein by U.S. Sugar contains 35 sections, one section less than required to constitute a township. The Intervenors suggested that the area for impoundment should be extended to the east one section to include the westernmost sections of the land to be leased. If this were done it would provide some 42 square miles of land for the water retention site.
Considerable evidence was presented with respect to the growing of sugar cane, and the manner in which this activity affects the ecology of the
area. Sugar cane is basically a wet weather crop requiring little fertilization. Accordingly, it would be reasonable to conclude that the majority of the nutrients that enter the lake from the Everglades Agricultural Area come from those areas being used for the production of other than sugar cane crops. Sugar cane is cultivated in a four-year cycle. For three years the cane is planted and the fourth year the land is allowed to lie fallow. After the cane has been cut, the stubble is burned. There is sufficient water available at the site as well as equipment to insure that the muck is not burned. There was no evidence of any muck fires occurring as the result of burning the sugar cane fields under present conditions. Although sugar cane is a wet type crop, evidence was submitted that sugar cane does not have as great a demand for water as does sawgrass. Accordingly, the evapotranspiration rate of sawgrass is higher than that of sugar cane. Tilling of the soil results in compacting the soil, and this also tends to reduce subsidence. Evidence gathered to date, however, would indicate that the subsidence is approximately the same in land that has been used for agriculture as it is for land that has not been so used. One big difference is that in many of the areas where the land has not been used for agriculture, it has dried out and muck fires have done considerably more damage than would have resulted if the land was farmed.
In order to grow sugar cane the water table must be kept not too far below the surface of the ground. This is normally maintained by the grower by having water available in canals which is used for irrigation. Accordingly, if the lease is approved the people who farm the land would install irrigation ditches. These irrigation canals would be connected to other canals in the vicinity owned by the same company.
Subsidence to the Everglade soils, or muck, has been under study for a considerable period of time. In addition to flooding the land, other methods are available for reducing the subsidence; however, the economic feasibility of these methods have not as yet been demonstrated. This is an ongoing project, which is under study by the University of Florida Research Station in the Everglades. In addition, the root mass of the sugar cane after it has been cut, remains in the ground and provides some additional material which tends to mitigate the effects of subsidence. As the soil is farmed and tilled, the soil becomes more compacted, and there is less chance of oxidation of the soil which is the primary cause of the subsidence. It would be reasonable to assume that the longer the soil was farmed the slower would be the subsidence rate.
In addition to the lease of this property for 32 1/2 years for a total of 3.5 million dollars, the Petitioner has agreed to erect dikes around the northern and eastern perimeter of section 16 to be used as a water storage area.
Petitioner proposes to transfer the lease, if granted, to Gulf & Western Corporation in exchange for some 8,000 acres of Gulf & Western land in Hendry County. The Hendry County land is adjacent to U.S. Sugar land which is presently used for cattle growing. The Holey Land tract, which is the subject of this application, is adjacent to land presently farmed by Gulf & Western. In addition to the portion of the levy around area 16 which U.S. Sugar would install, an additional portion of the levy required to complete the impoundment area comprised of area 16 would be installed by Gulf & Western. The proposed levy is a muck levy some 3 feet high. Along the boundaries of area 16 there is presently a partial levy. The total cost of the levies that would be installed by both Petitioner and Gulf & Western has a value in the order of $1,000,000.
Two economists testified with respect to the value obtained by the state from leasing the property for the 32 1/2 year lease proposed. Since each of the economists started with different sets of assumptions they arrived at
widely divergent conclusions. Appraisal report on parcel 17 indicates that the fee simple value of this property is just under $5,000,000 or $475 per acre.
The basic appraisal of this property was not disputed. In starting with this appraised value the two economists who testified and arrived at such divergent opinions with respect to the amount of money that they state should receive for the lease of this property for 32 1/2 years used different inputs, and one did not consider the reversionary value at the expiration of the 32 1/2 year period.
CONCLUSIONS OF LAW
From the foregoing and after revieling all the evidence submitted, it is concluded that although the study that is under way for the Lake Okeechobee area will be completed in October, the assimilation of this data and the weighing of probabilities and possibilities to be followed will not be completed for a considerable period of time thereafter. The decision to flood certain lands and to retain the water in these lands, and which lands to flood, will not be decided in the near future. Pending a more complete understanding of the feasibility of using an area of the Holey Land as a water impoundment area, marked parcel 16, plus such parts of the Rotenberger Tract as may be available for this purpose, would provide an adequate water storage facility at the present time. The feasibility of using part of the north end in conservation area # 3 for a water storage facility, should be further investigated. Leaving the Holey Lands in its present condition is inimical to the best interests of the State. Leasing the land for agricultural purposes would provide jobs and income, as well as taxable revenues. In its present state not only is the land subsiding at a greater rate than it would subside were it under cultivation, but it is also subject to muck fires which aggravates the subsidence. A large number of the witnesses who testified in opposition to the lease of this property would also oppose the use of the property as a water impoundment facility as that would interfere with their use of the land for hunting and other recreational purposes. The use of the Holey Land for growing sugar cane would add few, if any, nutrients to Lake Okeechobee. The only potential adverse affect with respect to the eutrophication of Lake Okeechobee that this lease would have would be that it would reduce by 7 square miles the area of the Holey Lands that is presently available, or could presently be made available, for a water retention facility to eliminate some of the back pumping of water into Lake Okeechobee. It is, therefore,
RECOMMENDED that the Holey Land tract of some 8300 acres be leased to U.S. Sugar Corporation for $3,500,000 for a 32 1/2 year lease under the terms and conditions as proposed by U.S. Sugar Corporation.
ENTERED this 12th day of September, 1975, in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Phillip J. Parsons, Esquire David White, Esquire
Alan Greer, Esquire Joel T. Thomas, Esquire
Stephen H. Barber, Esquire Mercer Fearington
Alan Greer, Esquire Patrick M. McCaffrey Bob Grifton
Harmon W. Shields
