STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
IN RE: APPLICATION NO. 23660 BY ) SUCROSE GROWERS & ROGER ) HATTON FOR PERMITS FOR )
WATER USE, SURFACE WATER ) CASE NO. 75-1636 MANAGEMENT AND RIGHT OF )
WAY OCCUPANCY - DOCKET ) NO. 67. )
)
RECOMMENDED ORDER
Pursuant to proper notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer, Division of Administrative Hearings, on September 11th and 12th, in the Flood Control District Auditorium at 901 Overnia Street, West Palm Beach, Florida.
APPEARANCES
For Applicants: George H. Bailey, Esquire
JONES, PAINE & FOSTER, P.A.
For Permittee: John Wheeler, Esquire
Attorney for the Central and
Southern Florida Flood Control District INTRODUCTION
By Application No. 23660 the applicants, who are the owners and lesses of 3,390 acres of land to be used primarily for the production of sugar cane, request permits for the construction and operation of a proposed surface water management system consisting of levees, ditches, culverts & pumps for the purpose of drainage and irrigation of this land. Also requested were permits for an allocation of water from Canal 51 for irrigation purposes and for connecting to Canal 51. On August 5, 1975, the Central and Southern Florida Flood Control District (FCD) issued its first Staff Report, prepared by Doug Winter and approved by W.V. Storch. This Report concluded that a water use permit for the irrigation of 3,300 acres of sugar cane would be a reasonable and beneficial use of water and would have no adverse impact on the resource or affect other users. It was further concluded that a monitoring
program should be installed by the applicants to monitor the discharge into C-51, so as to document whether or not the discharge will have an adverse effect on C-51 and, if necessary, to designate any corrective measures required to prevent an adverse effect. It was thus recommended that a water use permit be issued for an annual allocation of surface water of 3,850 acre- feet or 14 inches per acre per year. The maximum monthly withdrawal was not to exceed 1,100 acre-feet or 358.4 million gallons and the permit was to expire on July 15, 1977. It was further recommended that a surface water management permit be issued for the construction and operation of a system consisting of canals, ditches, levees, pumps and culverts with the condition that the discharge of runoff into C-51 would be accomplished by means of two 30,000 gpm pumps, one electric and one diesel, and appurtenant works located approximately 1,320 feet west of the applicants' boundary. Finally, it was recommended that a right- of-way occupancy permit be issued authorizing the construction of a culvert connection to C-51 and the occupancy of the FCD right- of-way. These recommendations included certain conditions pertaining primarily to the filing of reports with the FCD. The Staff Report prepared on August 5, 1975, is attached to this Order as Exhibit A.
On September 10, 1975, the FCD issued its Revised Staff Report which was prepared by Doug Winter, David Hallett and J. Richard Gregg and approved by W.V. Storch. The primary difference between the Revised Staff Report and the original Staff Report lies in the requirement that the applicants provide, in addition to the monitoring program discussed in the original report, a retention or impoundment area capable of storing 350 acre-feet of water, or an area of approximately 140 acres, using a depth of 2 1/2 feet. It was recommended in the Revised Staff Report that the drainage operation of the project be set up to fill said retention area, said water to be stored for a minimum of four days before discharging into C-51 or to the project as irrigation water.
These recommendations pertaining to the retention area are based upon the staff's opinions, as set forth on pages 9 through 13 of the Revised Staff Report, that the work proposed under the subject application will result in a higher concentration of nitrogen and phosphorus in the discharge water and an increase in nitrogen to
C-51. This is because higher concentrations of nitrogen (N) are found in water drained from sugar cane producing muckland. It was found by the staff that discharge resulting from the proposal would degrade water quality in C-51 and will, if this basin is ever backpumped to the conservation areas, increase the loading of nutrients to the Everglade regions. In all other respects, the recommendations in the Revised Staff Report pertaining to the
issuance of permits and conditions thereto were identical with those contained in the original Staff Report. The Revised Staff Report is attached to this Order as Exhibit B.
Inasmuch as the applicants have, at all times, agreed with and accepted the recommendations and conditions of the original Staff Report dated August 5, 1975, the factual findings in this Order will be limited to those facts relevant to the only remaining issue; to wit: The lawfulness and/or reasonableness of the requirement that the applicants set aside 140 acres of their land for a retention or impoundment area and use such area to store water for a period of four days before discharge. Stated differently, will the operation proposed by the applicant be harmful to the water resources of the District in the absence of the required retention area?
SUMMARY OF EVIDENCE
Received into evidence at the hearing were the notice of public hearing appearing in The Palm Beach Post, West Palm Beach, Florida, the application in question and a prior application, various letters pertaining to the applications, photographs of the area in question, several technical reports relating to the chemical qualities of certain waters, maps, charts, the Staff Report dated August 5, 1975, and the Revised Staff Report dated September 10, 1975.
First to testify on behalf of the applicants was Chaunce A. Wallace, a civil engineer who became the applicants' engineer and prepared the subject application. Mr. Wallace testified that the the project is now 90 percent complete and that in excess of
$1,000,000.00 had been spent thus far in furtherance of the project. Construction on the project began in April of 1975. As to the original Staff Report dated August 5, 1975, there were no real substantive matters of disagreement. It was not until August 21, 1975, that Mr. Wallace became aware of the FCD's staff decision to modify the original report by requiring an impoundment area. It was Mr. Wallace's estimate that the cost of constructing the recommended retention pond would be $45,000.00, plus the cost of losing this 140 acres for purposes of sugar cane production.
Based upon conferences with Dr. Paul McGinnis and upon retention times within the applicants' system and the infiltration from Conservation Area No. 1, Mr. Wallace felt that an impoundment area would not be necessary to meet water quality standards, although it was admitted that Mr. Wallace was not an environmental chemist.
Several members of the general public were permitted by the Hearing Officer to make oral and written statements concerning the issue involved herein. Mr. Robert B. Simonson, a farmer since 1945 and a representative of the Palm Beach County Farm Bureau, which consists of 787 members, testified in opposition to the impoundment area recommendation. His objection was based primarily on the fact that were this retention area required, productive farm land would be rendered unproductive, thus increasing farmers' costs and consumers prices. It was suggested by Mr. Simonson that more extensive research be done and data be collected before farmers are called upon to give up their land and income for retention areas. It was opined that any regulatory action taken at this time would be premature. While Simonson admitted that poor quality water should not be allowed in C-51, he felt that adequate testing had not been done and he was not ready to assume that the quality of the water involved in this instance was poor.
Mr. Ed Yawn, a representative of the Florida Farm Bureau Federation which is comprised of 60,000 members, also spoke in opposition to the proposed requirement of an area set aside for retention purposes. Mr. Yawn's grounds for objection included statements that less land would be available for agriculture and such requirements on the part of the FCD are precedent setting and would have an adverse impact on farm prices, on the economy and on the general labor force. It was stated that the members of his organization would like to slow down the trend of reduction of land for agricultural purposes which has resulted through urban encroachment and governmental action. It was opined that the FCD's recommendation would also constitute a potential reduction of the ad valorem tax base in Palm Beach County by diminishing the value of lands placed in the retention area. Mr. Yawn also discussed the adverse impact on the applicants due to reduced income, the value of the land required to be dedicated and the reports required. It was felt that since the scientific data used by the FCD did not specifically relate to the C-51 area, the evidence is not sufficient to justify requiring the applicant to make the large investment. Mr. Yawn concluded that the FCD has failed to show the effectiveness of a retention area and the benefits to society.
Mr. J.N. Fairbanks, Vice President and General Manager of the Florida Sugar Cane League, Inc., filed a written statement with the undersigned Hearing Officer opposing the staff's recommendation requiring on-farm impoundment, as well as the requirement that the applicants provide excessive chemical monitoring of excess rainfall and water discharge at their
expense. Such opposition was based upon allegations of inconclusive evidence to support the need for on-farm impoundment; excessive burdens and costs to the landowner, consumer and community; underutilization of conservation areas with regard to their capability to impound water; and that sawgrass and other aquatic vegetation assimilates nutrients from the water, thereby improving its quality. It was believed that if a problem does exist in the area with regard to water quality, a solution should be worked out between industry, agriculture and government, as opposed to the unilateral imposition of drastic measures upon the landowner.
Finally, Mr. Riley S. Miles, Executive Director and General Manager of the Water Users Association of Florida, submitted a written statement, to the Hearing Officer in opposition to the retention pool requirement of the FCD. It was felt that such a requirement would be an enormous financial burden that would destroy the equity of a cost sharing agreement between federal and state governments and local property owners. It was opined that if monitoring shows the need for improving water quality, a more economical means should be pursued.
Mr. Robert Hatton, one of the two applicants, testified that the economic impact of the retention area upon him would be considerable and that he would not have bought the property in question had he previously known of such requirement. In excess of one million dollars has been expended on the land. Mr. Hatton further testified that he has noticed water bubbling up on portions of this land where canals have been dug. This would indicate that there is water coming on to the land from the Conservation Area, which has a higher elevation level than the property in question.
The last witness presented by the applicants was Dr. Paul R. Mcginnes, an environmental chemist who has done three years of research in the area of nitrate pollution in relationship to agricultural activity in Illinois and has done monitoring and analytical work in Florida. Dr. Mcginnes testified that he had extensive training and experience in ground water hydrology, geochemistry, nutrient chemistry, soil chemistry, water chemistry and hydrogeology. He read the Revised Staff Report the night before the hearing - the day of its issuance, but had previously prepared his own analytical report on September 8, 1975, which is attached hereto as Exhibit C. McGinnes testified that he would have no objection to the original Staff Report or the Revised Staff Report, with the exception of the impoundment area
requirement, which he believes is not justified scientifically or technically. His grounds for objection were threefold:
The data currently available are neither directly relevant nor sufficiently scientific to indicate any real, substantial threat to the environment from this individual project. It was explained that the nutrients in concern here are primarily nitrogen and phosphorous. Nitrogen is a nutrient that causes things to grow, and not a pollutant. Nitrogen and other nutrients only become pollutants when they cause excessive growth and that excessive growth interferes with the beneficial use of the water. McGinnes pointed out that the data used by the FCD is based on the nitrogen levels found in the Miami canal which were observed to be higher than those in the C-51 canal. While he does not dispute the data itself, he does not agree with the interpretation of the data. The Miami canal data may not be relevant to this application due to the elevation levels, questions of where excessive concentrations of nitrogen are being derived from and variations in agricultural practices, soil types and profiles and specific water flow patterns. A rigorous program of study to define the precise nitrogen economy of the area in question was recommended. Each individual farm should be evaluated separately.
Limited field observations here and research from other areas indicate that the processes which will occur in this project should not result in excess nutrients, especially nitrogen, being added to the C-51 canal. In explanation, Dr. McGinnes testified as to the movement of nitrates in the system. It was noted, however, that the model explained does not directly apply to the specific lands in question here due to an unusual hydrologic configuration which is keeping the drainage ditch system thoroughly flushed and probably nitrate free. Further, the land in question is located next to Conservation Area No. 1, which is maintained as a sawgrass marsh-swamp. This sawgrass acts a a very effective nutrient filter, removing nutrients from water passing through it down to below levels of analytical detection. It was thus concluded that the waters in the canals should be virtually nitrate-free. On the other hand, if sawgrass is not working properly and does not remove nitrate, neither will a retention area for this particular parcel of land. It was admitted by McGinnes that specific data for the area in question are not available and that he himself has not been on the subject property. In this light, it was again recommended that a thorough study of the area be undertaken (such as described in the original Staff Report) to either verify or contradict the models presented before major environmental protection measures are considered.
No satisfactory quantitative criteria have been proposed to define safe levels of nitrogen discharge, the quantity of removal necessary in any system, or the total quantity of nitrogen which would constitute a threat to the environment. Until a thorough analysis is performed of how much nitrogen is too much nitrogen and where its presence becomes undesirable, it is not possible to set quantitative limits. Dr. McGinnes stated that any nitrates would be beneficial to sawgrass, since nitrates produce growth. If excess growth promoted by the nitrates in the sawgrass marsh is environmentally detrimental, then the FCD is asking the applicants to set up an environmentally detrimental retaining pond on their land. If excess growth is desired in a sawgrass marsh retention area on the applicants' land, it would appear to be logical that this growth promoted by the nutrients would also be desirable to strengthen the sawgrass marsh in the Conservation Area. It is a contradiction to ask for the removal of nutrients which are beneficial.
As its first witness, the FCD presented Mr. William V. Storch, the Director of the Resource Planning Department of the FCD. Mr. Storch testified that he was familiar with the area in question because of his long employment with the FCD, and that this is, to the best of his knowledge, the first sugar cane operation in the C-51 basin. It was his opinion that large amounts of nitrate would be accumulated In the interior canal system and would enter C-51. It was therefore his decision to revise the original Staff Report to require the applicant to retain runoff water in an impoundment area and incorporate those retention facilities at the outset, rather than to wait two or three years and be required to do it then. It was felt that a model for this specific property was not necessary inasmuch as the FCD had sufficient information from a model similar to this area - the Miami canal. Mr. Storch further felt that the FCD cannot assume the function of establishing numerical standards, which is a function for the Department of Environmental Regulations.
Although other landowners had been required by the FCD to set aside acreage for retention areas for other reasons, such as internal management reasons or inflow requirements, no landowner had ever been required to do so for reasons relating to water quality control. Storch opined that there was not a continual flushing of water through the applicants' system as postulated by Dr. McGinnes. If there were, there would be no need on the part of the applicants to request supplemental irrigation water. Mr. Storch did state, however, that if this continuous flushing action were to be established, the FCD would need to reevaluate this whole application. When asked whether an impoundment area would
be needed if a system were developed whereby pumps were installed and water from the ditches was from time to time pumped out back on to the sugar cane, Mr. Storch stated that the FCD would need further detail of such an operation and would then have to evaluate what that operation might accomplish.
Next and last to testify for FCD was Mr. David W. Hallett, an environmental chemist with the Environmental Sciences Division of the FCD. Mr. Hallett testified that he reviewed the subject application after the issuance of the original Staff Report and examined it for environmental implications under F.S.
373.016(2)(e). The primary concern here is the impact of nutrient-rich water upon the Everglades marsh land which water will eventually reach the Conservation Area. It was pointed out that there is much more to be learned in this area. When asked his view of the effect which this project would have on water resources of the District, it was concluded by Mr. Hallett that the nutrients in the sawgrass lands in this area are almost below detection level. By comparing this fact with the higher nutrient levels in waters in the S3 pump station area, where 80 percent of
the area is in sugar cane production, it was determined that there would be a degradation of water quality in C-51 area by the discharge proposed by the applicant. The discharge would significantly increase both the concentration and amount of nutrients being discharged into C-51. The impact of this upon the total aquasystem, including both the organisms living in the water of the canal and the areas this water would pass over, would be degrading. This would be harmful because there are indications that there are changes taking place in Conservation Areas directly relatable to high nutrient discharges into these areas. To minimize the harm that would occur, Mr. Hallett recommended a monitoring program and a 140 acre retention area capable of storing 350 acre-feet of water at 2 feet deep, as set forth in the Revised Staff Report. This would diminish the concentration of nutrients reaching the canal.
On cross-examination, Mr. Hallett stated that even if nutrients were to reach C-51 at this time, those nutrients would not get into conservation Area No. 1. This would happen only if, at some future date, the FCD put in State Road 7 and began to back pump C-51 into Conservation Area No. 1. The concern is with putting the nutrients into Lake Worth. Hallett further explained that the water quality of C-51 is lower than in the Miami canal, although he made no qualitative statement as to the present condition of C-51. When asked for a quantitative standard which establishes whether the nutrient level of C-51 is excessive or not
excessive, Mr. Hallett cited Rule 16K - 5.05(11) as the criteria applied to this application.
FINDINGS OF FACT
Based upon the above testimony and the exhibits received into evidence in this cause, the undersigned Hearing Officer makes the following findings of fact with regard to the issue in dispute:
The applicants, as owners and lessees of 3,300 acres of land to be used for sugar cane production, propose to install a surface water management system consisting of levees, ditches, culverts, and pumps for drainage and irrigation purposes. Irrigation will be drawn from and drainage water will be discharged into Canal 51, a project works of the FCD.
There is no dispute between the applicant and the FCD staff concerning the permit for water use and connection to C-51.
The applicant proposes to discharge, via two 30,000 gallon per minute pumps, one inch per acre per day or 62,239 gallons per minute into C-51.
The soils on the applicants' land are primarily muck types which are high in organic nitrogen. A water level of three feet below ground level, as proposed, will probably cause such nitrogen in the muck soil to decompose, resulting in soil subsidence and production of inorganic nitrogen.
Nutrients (primarily nitrogen and phosphorus) resulting from muck decomposition and crop fertilization may enter the water in the interior canals and cause such water to have a higher nutrient content.
The water in Canal 51 now has low concentrations of nutrients, as compared with the waters in canals appurtenant to other sugar cane producing areas.
There appear to be unique hydrological conditions on the land in question which may keep the drainage system flushed and nitrate-free and there is evidence that sawgrass areas act as an effective nutrient filter.
There was no evidence that additional nutrients entering C-51 would be environmentally harmful or degrading to the waters in C-51, both parties admitting that further research and
scientific data is needed to determine the safe level of nutrients in this area.
The applicants and other interested groups have shown that the construction. and operation of a retention or impoundment area would cause an adverse economic impact upon landowners and would have an adverse economic effect upon consumers, the general labor force and the community.
The FCD has not adequately demonstrated that the waters of C-51 would be degraded by the applicants' proposed project or that a 140 acre impoundment area would be a reasonable condition to impose upon the issuance of the permits in question.
A water quality monitoring system, such as proposed in the original and revised staff reports, will permit the parties to determine whether the water in C-51 is being degraded by the addition of nutrients.
CONCLUSIONS OF LAW
The parties herein have properly proceeded under F.S. Chapters 120 and 373 and Chapter 16K of the Florida Administrative Code.
F.S. Chapter 373 and the rules of the FCD (Ch 16K of the F.A.C.) allow the FCD to impose reasonable conditions upon the issuance of permits in order to assure that the permitted acts will neither be harmful to the water resources of he District or other users, nor inconsistent with the overall objectives of the District. F.S. 373.413 and 373.416.
The degradation or lowering of water quality would be harmful to the water resources of the District.
Since there is some evidence that sugar cane producing lands produce higher quantities of nutrients than ether lands, but no evidence as to the quantity of nutrients desirable in the area in question; the requirement that a water quality monitoring program be established is a reasonable condition to the issuance of the subject permits. Such a program will allow a determination to be made of whether or not the proposed project will be harmful to the water resources of the District and will provide the FCD and others with statistical data to be used in studying the impact of nutrients on the waters in question.
The lack of specific and relevant evidence concerning the nutrient economy of the area in question, as well as the evidence tending to show the movement of nitrates in the system and the conditions obtaining on the land in question, lead the undersigned to conclude that there is no basis for finding that the 140-acre retention area recommended in the Revised Staff Report is reasonable, necessary or appropriate.
Other conditions appearing in the original and revised staff reports are reasonable and have been stipulated to by the parties.
Based upon the above cited testimony, evidence, findings of fact and conclusions off law, the following recommendations are made:
It is recommended that a water use permit, a Surface water management permit and a right-of-way occupancy permit be issued, all in accordance with the recommendations and conditions set forth in the original Staff Report dated August 5, 1975, attached hereto as Exhibit A.
It is recommended that the additional requirement of a 140-acre retention area set forth in the Revised Staff Report be rejected.
It is further recommended that an additional condition be attached to the surface water management permit. That condition would be to have such permit expire at the same time as the water use permit; to wit: July 15, 1977, so as to allow the FCD and the applicants sufficient time to collect further data on the effect of nutrients on the waters of C-51 and compare said data with the information derived from the monitoring program required under the permits. If such data and comparisons sufficiently demonstrate that the waters of C-51 will be degraded by the applicants' project, a retention area requirement would then be a reasonable condition to the reissuance of a permit.
Respectfully submitted and entered this 20th day of October, 1975, in Tallahassee, Florida.
DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
George H. Bailey, Esquire JONES, PAINE & FOSTER, P.A.
601 Flagler Drive Court Post Office Drawer E
West Palm Beach, Florida 33402
John Wheeler, Esquire Attorney for the Central and
Southern Florida Flood Control District
Post Office Box V
West Palm Beach, Florida
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AGENCY FINAL ORDER
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CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT
WEST PALM BEACH, FLORIDA
IN THE MATTER OF:
SUCROSE GROWERS & ROGER HATTON CASE NO. 75-1636 APPLICATION NO. 23660
/
ORDER
The Hearing Officer's report came to be heard before the Governing Board of the CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT on the 14th day of November, 1975. After consideration of the Hearing Officer's report, the Governing Board adopts the Hearing Officer's Findings of Fact, Conclusions and Recommendations except as modified below, as its own.
THEREFORE, based upon the Hearing Officer's Findings of Fact, Conclusions and Recommendations;
IT IS HEREBY ORDERED:
That the Hearing Officer's recommendations are adopted as this Board's own with the following exceptions:
Recommendation "B.2" of the staff report (Exhibit A) is changed to read: "Water quality reports for the water discharged from the permittee's property shall be submitted to the District at the end of each month, May through October, and at the end of the months of January and March. The report shall include analyses for the following parameters: Nitrates as N, Nitrites as N, Ammonia as N, total kjeldahl nitrogen as N, total phosphorous as P, total dissolved solids, and turbidity. If no pumping occurs in January or March then a sample shall be collected upstream of the applicant's pump. These analyses shall be compiled from grab samples taken from the first pumping in each respective month.
In addition, to the above sampling periods, two periods of intensive sampling shall be conducted by the applicant during
which four samples per day for two days shall be collected and analyzed for Nitrates as N, Nitrites as N, Ammonia as N total kjeldahl nitrogen as N, total dissolved solids and turbidity. One period of extensive sampling shall be at or near the beginning of the 1976 wet season. The other period of intensive sampling shall be conducted during July, August or September, 1976. Sampling shall begin when pumping begins and continue for two days collecting a total of eight samples at evenly spaced intervals.
The District reserves the right to collect water samples from the internal canal of the applicant's project."
DONE and ORDERED at a public meeting held in West Palm Beach, Florida, this 14th day of November, 1975.
CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT, BY ITS GOVERNING BOARD
BY Chairman
| Issue Date | Proceedings |
|---|---|
| Mar. 21, 1977 | Final Order filed. |
| Oct. 20, 1975 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 14, 1975 | Agency Final Order | |
| Oct. 20, 1975 | Recommended Order | Requirement of 140-acre retention pond as prerequisite of permitting the surface water control project unreasonable. |
