STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STANDARD SAND AND SILICA CO., )

)

Petitioner, )

)

vs. ) CASE NO. 75-2154

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter originally came on for hearing on December 2, 1975, at the District Headquarters, Southwest Florida Water Management District, Brooksville, Florida, pursuant to proper notice, before Thomas C. Oldham, Hearing Officer, Division of Administrative Hearings. At that time, the parties to this proceeding, Standard Sand and Silica Company and the district, sought a continuance. This continuance was granted. However, because there were several private citizens present who wished to make objection to the application and some of whom had come long distances for the hearing, the Hearing Officer took the testimony of these persons. A transcript has been made of that testimony and is a part of this proceeding. Subsequent to the hearing convened on December 2, 1975, this matter came up for final hearing, pursuant to proper notice, on April 27, 1976, before Chris H. Bentley, Hearing Officer, Division of Administrative Hearings, at the District Headquarters, Southwest Florida Water Management District, Brooksville, Florida. The undersigned Hearing Officer, has considered, in addition to the testimony taken on April 27, 1976, the transcript of the testimony taken on December 2, 1975, together with the exhibits presented at that time which the Hearing Officer now admits to the record.

APPEARANCES

For Petitioner: Eugene W. Harris

For Respondent: Jay T. Ahern, Esquire Objectors: Clifton W. Golden

Mary Fausteen Thompson Jenne Niswonger

FINDINGS OF FACT

1. Application No. 75-00196 is a request by the Standard Sand and Silica Company, for a consumptive water use permit. This application is for an existing use involving withdrawal from one well. The application seeks an average daily withdrawal of 1.6925 million gallons per day and a maximum daily withdrawal of 2.16 million gallons per day. The sought-for withdrawal will not exceed the water crop as defined by the district, with the withdrawal

   consumptively using only 35 percent of the water crop. The water will be used on site for the washing of sand.

   
   

2. Mr. Clifton W. Golden is an adjacent landowner who testified that he was afraid of salt water intrusion and that a sink hole might develop because of the vast quantities of water taken from the aquifer by the applicant. He does not feel that the issuance of a permit would be consistent with the public interest. He presented no hydrological data showing that issuance of the permit would adversely affect his property.

   
   

3. Mary Fausteen Thompson is a property owner adjacent to the site from which the water will be taken. She has had problems in the past with Standard Sand and Silica Company apparently discharging excess water on to her property. She thinks those problems may be occurring again, causing some of her property to be flooded.

   
   

4. The sought-for consumptive use will not significantly induce salt water intrusion.

   
   

5. Except as otherwise noted in the findings of fact, none of the conditions set forth in Subsection 16J-2.11(2), (3) or (4), F.A.C., will be violated.

   
   

6. Several letters of objections have been received in addition to the objectors noted above.

   
   

7. The Southwest Florida Water Management District's staff recommends issuance of the subject permit in the amounts requested with the following conditions:

   
   

   1. That no off-site runoff be permitted by the applicant.

   2. That flowmeters be placed on the well and quarterly reports made to the district.

      
      

      CONCLUSIONS OF LAW

      
      

8. The procedural requirements of Chapter 373, Florida Statutes, and rules promulgated pursuant thereto, have been complied with as they pertain to this application.

   
   

9. Section 373.226, F.S., provides that the Governing Board shall issue an initial permit for the continuation of all existing uses ". . . if the existing use is a reasonable, beneficial use as defined in s373.019(5) and is allowable under the common law of this state." Subsection 373.019(5), F.S., defines "reasonable-beneficial use" as ". . . the use of water in such quantity as is necessary for economic and efficient utilization for a purpose and in a manner which is both reasonable and consistent with the public interest." The use of water in such a manner as to flood adjacent property without the consent of the owners of said property would not be using water in a manner which is reasonable, as required by Subsection 373.019(5), F.S., for the issuance of a consumptive use permit to an existing use. Therefore, it appears that the condition proposed by the district's staff that no off-site runoff be allowed should be strictly enforced in light of the unrebutted testimony of Mary Fausteen Thompson.

10. With the conditions as set forth by the district's staff, the existing use is a reasonable, benefical use allowable under the common law of this state as set forth in Section 373.226, F.S.

RECOMMENDATION

It is hereby RECOMMENDED that Application No. 75-00196 be granted with the conditions set forth in paragraph 7 above.

ENTERED this 28th day of May, 1976, in Tallahassee, Florida.

CHRIS H. BENTLEY, Hearing Officer 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

P.O. Box 457

Brooksville, Florida 33512

Eugene W. Harris

Standard Sand and Silica Co.

P.O. Box 35

Davenport, Florida 33837

Mrs. Mary Fausteen Thompson Box 82-C, Evans Road

Polk City, Florida

Mr. Clifton W. Golden 800 Oriole Drive

Virginia Beach, Florida 23451

Mr. John C. Jones Executive Director

Florida Wildlife Federation 4080 North Haverhill Road

West Palm Beach, Florida 33407

Docket for Case No: 75-002154

Orders for Case No: 75-002154