STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF: ) APPLICATION NUMBERS 25793 and )

25794 BY S.N. KNIGHT & SONS, ) CASE NO. 76-238 INC., FOR A WATER USE PERMIT AND )

A SURFACE WATER MANAGEMENT PERMIT )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 1:00

1. on February 17, 1976, in the old court room of the Melbourne Police Department at 1483 Highland Avenue, Melbourne, Florida.

   
   

   APPEARANCES

   
   

   For the Mr. John E. Baker Applicant: 257 Southeast Avenue E

   Belle Glade, Florida

   
   

   For Central and

   Southern Florida Mr. Stephen A. Walker Flood Control Post Office Box V

   District: West Palm Beach, Florida 33402

   
   

   For Intervenors Mr. Charles Lee

   in opposition Vice-President-Conservation to application: Florida Audubon Society

   Post Office Drawer 7 Maitland, Florida 32751

   
   

   Mr. Karl F. Eichhorn Conservation Chairman

   Indian River Audubon Society Brevard County, Florida

   
   

   Mr. W. M. Klima, President Port Malabar Country Club Homeowners Association

   510 Southwest Waialae Circle Palm Bay, Florida 32905

   
   

   Ms. Helen Robertson League of Women Voters of South Brevard County

   298 Norwood Avenue

   Satellite Beach, Florida 32937

   Mr. Hugh C. Nicolay, Chairman

   St. Johns River Coordinating Council Post Office Box 156

   Palm Bay, Florida 32905

   
   

   Members of Mr. Douglas Bailey General Public: Environmental Specialist,

   Florida Game and Fresh Water Fish Commission

   
   

   Mr. William G. Mather, Melbourne resident Mr. John Cataldo, Palm Bay resident

   Mr. Bob Hopwood

   Florida Wildlife Federation

   
   

   Mr. Tom Lawton

   South Beaches Executive Council

   
   

   Mr. Dave Dunsmoor

   Brevard Wildlife Federation

   
   

   Mr. Edwin Ward

   Pelican Island Audubon Society; Roseland Property Owners Association

   
   

   Mr. J.T. Turnipseed

   President, St. Johns Conservation Group Mr. William Stimmell, Melbourne resident

   FINDINGS OF FACT

   
   

   Upon a consideration of the oral and documentary evidence adduced at the hearing in this cause, the following pertinent facts are found: 1/

   
   

   1. By application number 25793, the applicant seeks a permit to construct and operate a proposed surface water management system to serve a 2,541 acre project within the St. Johns River Basin in Indian River County. The proposed system will consist of a perimeter dike, a central canal with interior laterals and four discharge pumps. The applicant will be discharging into the St. Johns Marsh and seeks a discharge capacity of 139,000 GPM. Three of the discharge pumps are to be located at the southeast corner of the property and a two-way 25,000 GPM pump is to be located at the intersection of the central canal and the western boundary of the property.

      
      

   2. By application number 25794, the applicant seeks a permit for the use of surface and artesian water for the irrigation of the same 2,541 acres of pasture and truck crops. The applicant requests to withdraw surface water from the St. Johns Marsh by means of a two-way 25,000 GPM pump located at the intersection of the central canal and the western property boundary and to withdraw water from the Floridan aquifer by means of eight eight-inch artesian wells. The amount requested is 5,294 acre-feet per year with a maximum monthly pumpage of 1.47 billion gallons.

   3. A staff report of the Central and Southern Florida Flood Control District (FCD) concluded that the major problem with the permit applications is the impact on water quality of the receiving bodies of water and that nutrients and other pollutants will be introduced into runoff waters discharged into the St. Johns Marsh, which is the source of the public water supply for South Brevard County. The staff therefore recommended that the applicant institute a water quality and quantity monitoring program to monitor discharges to the Marsh. The staff further recommended that the applicant not be allowed to discharge from the western property boundary nor irrigate from the ditch on the western property boundary. It was recommended that the two-way 25,000 GPM pump be installed adjacent to the other pumps located at the southeast corner of the property.

      
      

   4. More specifically, the staff found that if a permit were to be issued pursuant to application number 25793, it should be subject to the conditions that:

      
      

      1. the allowable discharge capacity to be 104,000 GPM, with discharges to be east to the St. Johns Marsh by means of one 44,000 GPM pump, one 35,000 GPM pump and one 25,000 PM two-way pump to be located at the southeast corner of the property;

         
         

      2. the applicant notify the FCD prior to any excavation of materials from land lying east of the east property boundary and, if such excavation is done, a discontinuous borrow ditch be created by either leaving 25 foot portions of undisturbed marsh or by placing 25 foot earthen plugs at approximately 500 foot intervals (this was later modified at the hearing to 1,000 foot intervals); and

         
         

      3. the applicant submit monthly reports of total daily discharges and water quality, the samples to be taken at the southeast corner of the property.

         
         

   5. With regard to application number 25794, the staff recommended that if such permit were to be issued, it be subject to the following conditions:

      
      

      1. for the use of surface water, an annual allocation of 2329.3 acre- feet per year and for the use of artesian water, an annual allocation of 2518.5 acre-feet per year, with a maximum monthly pumpage from all sources of 355.3 million gallons;

         
         

      2. no withdrawal of surface water from the St. Johns Marsh when the water level in Blue Cypress Lake drops to 22.0' msl.;

         
         

      3. surface water to be withdrawn by means of a 25,000 GPM two-way pump located at the property's southeast corner;

         
         

      4. artesian waters to be withdrawn by eight eight-inch wells with effective and operative controls placed thereon and analyses of water samples from the water discharge of each

         
         

      5. the submission of monthly reports of total monthly pumpages and total monthly flows; and

         
         

      6. permit for the withdrawal of surface and artesian water to expire on January 15, 1979.

   6. At the hearing, the applicant agreed to the recommended conditions placed upon the permits by the staff report with the exception of:

      
      

      1. the amount of the allowable discharge (staff recommending 104,000 GPM as opposed to a desired 139,000 GPM);

         
         

      2. the location of the 25,000 GPM two-way pump (staff recommending southeast corner as opposed to a proposed site on the western boundary of the property);

         
         

      3. the expiration date of January 15, 1979.

         
         

   7. The Environmental Protection Bureau of the Florida Game and Fresh Water Commission requested the FCD to delay issuance of permits for all projects in the Upper St. Johns River basin until a comprehensive water management plan for the area is formulated. Read into the record was a resolution adopted by the Commission on May 16, 1975, recommending that

      
      

      "the further destruction of the marsh be curtailed and a plan be formulated for the return of the diverted waters as a management tool for restoration of fish and wildlife resources."

      
      

      On behalf of the Florida Audubon Society, Mr. Charles Lee contended that, because of this resolution and request of the Game and Fresh Water Fish Commission and that agency's constitutional status, the FCD is precluded from issuing the subject permits.

      
      

   8. Intervenors and members of the general public who were opposed to the issuance of the instant permits expressed the following concerns:

      
      

      1. the low water quality and quantity of the St. Johns River and its

         marshes;

         
         

      2. the decline in hunting and fishing because of agricultural

         activities in the St. Johns River valley;

         
         

      3. the loss of marsh land due to agricultural activity;

         
         

      4. the lack of a basic water management program for the area;

         
         

      5. the lack of remedial measures should degradation of the water occur; and

         
         

      6. the lack of an expiration date for the surface water management system permit.

         
         

         CONCLUSIONS OF LAW

         
         

   9. The parties herein have properly proceeded under the provisions of Chapters 373 and 120 of the Florida Statutes and Ch. 16K of the Florida Administrative Code.

      
      

   10. A determination in this cause involves the consideration of three issues: is the applicant entitled to the requested permits; are the conditions proposed by the staff of the FCD reasonable and necessary for the conservation,

       protection, management and control of the waters in the District; and does the FCD have the constitutional and jurisdictional authority to issue the subject permits?

       
       

   11. In order to obtain the permits requested from the FCD, it is incumbent upon the applicant to demonstrate that the proposed use of the water is a reasonable-beneficial use, will not interfere with any presently existing legal use of water, is consistent with the public interest, will not be harmful to the water resources of the District and is not against public policy. F.S. Ch. 373;

       F.A.C. Rules l6Kzzz-2.05(1) and 16K-4.15(1). The purpose of the permits in question is to provide for the irrigation of 2,541 acres of agricultural farmland. This constitutes a reasonable and beneficial use of the water, subject to certain conditions upon the amounts utilized and the methods of utilization. While the intervenors and members of the general public who spoke in opposition to the permit applications raised important considerations concerning the impact upon the quality and quantity of the waters to be utilized, it appears from the evidence that the staff of the FCD fully took into account such considerations through the imposition of special conditions upon the issuance of the permits. There was not sufficient evidence adduced at the hearing that the deleterious effects upon the quality and quantity of the water resources of the District, were the permits to be issued, would not be cured by the conditions recommended by the staff. The staff specifically took into account and evaluated the factors of water quality, water quantity, land use and environmental factors, and imposed conditions which would alleviate any deleterious effect upon the same. These conditions are discussed below.

       
       

   12. The FCD has the power to impose any reasonable conditions which are necessary for the conservation, protection, management and control of the waters of the District and to assure that the permitted operation will not be inconsistent with the overall objectives of the District. F.A.C. Rules 16K- 2.03(1)(b) and 16K-4.07(3). The applicant failed to demonstrate that the conditions imposed were either unreasonable or unnecessary. The only real points of disagreement between the applicant and the FCD staff concerned the expiration date, the amount of allowable discharge and the location of the two- way pump. The FCD has the authority to base its decision on the length of a permit on a reasonable system of classification according to the source of supply and/or type of use. F.A.C. Rule 16K-2.08(1). The evidence illustrates that the District is divided into areas or basins and that all permits issued for each particular area or basin expire on the same dates. This procedure allows the FCD staff the opportunity to review, analyse and evaluate the data obtained from similar sources and types of use. This is a reasonable system of classification within the meaning of the rules and regulations. An intervenor expressed concern over the fact that no expiration date was placed upon the permit for drainage or discharge. The undersigned shares this concern and would recommend that the same expiration date of January 15, 1979 be a condition upon the issuance of application number 25793. The evidence fully substantiates the necessity and reasonableness of the conditions regarding the discharge capacity and the location of the two-way 25,000 GPM pump. As noted above, in determining the allocation and location of the pump, the FCD staff took into consideration the available discharge capacity, flood protection, water level controls and environmental considerations. It was determined that all discharges from the applicant's project should be to the east and that the surface water should be withdrawn from that segment of the marsh in which discharge is occurring. Other than showing that the cost would be greater to the applicant to locate the two- way pump on the southeast corner of the property the applicant offered no evidence to show that these conditions were unnecessary or unreasonable.

   13. An intervenor expressed concern with the lack of remedial provisions should violations of the permit conditions occur or should degradation of the waters appear from the data in the monthly reports to be submitted by the applicant. Mr. Storch, Director of the Resource Planning Department of the FCD, stated that this may have been a staff oversight and stipulated that there would be no objection to inserting a clause in the conditions that the FCD may require the applicant to remedy the situation if violations occur. It is also recognized by the hearing officer that the FCD has authority to revoke permits for willful violations of the conditions of the permit.

       
       

   14. Finally, there is the issue of the constitutional or jurisdictional authority of the FCD to issue permits when the Florida Game and Fresh Water Fish Commission has requested that the District delay issuance of all permits for projects in the Upper St. Johns River basin until a comprehensive water management plan for the area is formulated. It is the conclusion of the undersigned hearing officer that the FCD has the statutory and regulatory authority to grant or deny the applications for permits based upon the evidence adduced at the hearing. Florida Statutes, Ch. 373 and the rules in implementation thereof, Ch. l6Kzzz of the F.A.C., give the FCD power and authority to issue permits under appropriate circumstances. An administrative body cannot rule upon the constitutionality of statutes, and their validity is assumed until a count of competent jurisdiction rules otherwise. In addition, it should be noted that the Game and Fresh Water Fish Commission has not attempted to assert exclusive jurisdiction in this case. The resolution of the Commission, cited in the findings of fact above, is simply in the form of a recommendation that marsh destruction be curtailed and that a plan be formulated. And, the letter read into the record is simply a request that the issuance of permits be delayed until a water management plan is formulated.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is the recommendation of the hearing officer that application numbers 25793 and 25794 be granted, subject to those special conditions set forth in the Staff Report as modified by the following:

1. In paragraph number 3 on page 14 of the Staff Report, substitute the words "1,000 foot intervals" for "500 foot intervals;"

   
   

2. Add as paragraphs 6 on page 15, paragraph 6 on page 16 and paragraph 7 on page 18 the following:

   
   

   "Should the data in the monthly reports submitted by the applicant indicate the occurrence of a degradation of the waters utilized, the applicant will be required to remedy the situation causing the de- gradation."

   
   

3. Add as paragraph 7 on page 15 the following:

"7. This permit shall expire on January 15, 1979."

Respectfully submitted and entered this 25th of March, 1976, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

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

ENDNOTE

1/ There was some testimony and evidence adduced at the hearing relating to an agreement dated December 8, 1966, referred to as the "Mitchell Agreement" and admitted into evidence as Exhibit 2. Inasmuch as this agreement relates to and is dependent upon the creation of the Lake Wilmington Reservoir and a program for flood control and water conservation in the St. Johns River Basin, and neither has been implemented, the undersigned hearing officer does not feel that said "Mitchell Agreement" is relevant to a determination of the issues in this case.

COPIES FURNISHED:

Mr. John E. Baker

257 Southeast Avenue E Belle Glade, Florida Attorney for the Applicant

Mr. Stephen A. Walker

Central and Southern Florida Flood Control District

P.O. Box V

West Palm Beach, Florida 33402 Attorney for the Central and Southern Florida Flood Control District

Mr. Charles Lee

Vice-President-Conservation Florida Audubon Society

P.O. Drawer 7

Maitland, Florida 32751

Mr. Karl F. Eichhorn Conservation Chairman

Indian River Audubon Society 911 Bali Road

Cocoa Beach, Florida 32922

Mr. W.M. Klima, President Port Malabar Country Club Homeowners Association

510 S.W. Waialae Circle Palm Bay, Florida 32095

Ms. Helen Robertson League of Women Voters of South Brevard County

298 Norwood Avenue

Satellite Beach, Florida 32937

Mr. Hugh C. Nicolay Chairman, St. Johns River Coordinating Council

P.O. Box 156

Palm Bay, Florida 32905

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

AGENCY FINAL ORDER

================================================================= CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT

IN THE MATTER OF:

S. N. KNIGHT & SONS, INC. APPLICATION NOS. 25793 AND 25794

FOR A SURFACE WATER MANAGEMENT CASE NO. 76-238 PERMIT AND A WATER USE PERMIT

/

ORDER

The Hearing Officer's report in this matter came to be heard before the Governing Board of the Central and Southern Florida Flood Control District on the 10th day of June, 1976. After consideration of the Hearing Officer's report, the recommendations of the Governing Board of the St. Johns River Water Management District, and Brevard County, written exceptions and oral argument, the Governing Board of the Central and Southern Florida Flood Control District adopts the Hearing Officer's Findings of Fact and Conclusions of Law as its own and adopts the Hearing Officer's Recommended Order with the following modification:

Subparagraph c. of the Hearing Officer's Recommendations, providing an expiration date for the Surface Water Management Permit is deleted.

DONE AND ORDERED at a Public Meeting held in West Palm Beach, Florida this the 8th day of July, 1976.

(Corporate Seal)

CENTRAL AND SOUTHERN FLORIDA FLOOD

CONTROL DISTRICT, By its Governing Board

By Chairman

ATTEST:

By JOHN R. MALOY

Secretary

Docket for Case No: 76-000238

Orders for Case No: 76-000238