STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KRAFT FOODS, DIVISION OF KRAFTCO ) CORPORATION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-622

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

)

RECOMMENDED ORDER

After due and proper notice, an administrative hearing was held 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.

APPEARANCES

For Petitioner: Douglas T. Moring, Esquire For Respondent: Jay T. Ahern, Esquire

FINDINGS OF FACT

1. Application for consumptive use permit No. 75-00225 is a request for an existing use to be withdrawn from the Floridan Aquifer from two different wells. These two wells are located in the Hillsborough Basin and in Polk County. The property contiguous to the wells encompasses approximately 80.9 acres. The water is to be used for citrus processing and disposed of off site.

   
   

2. The permit seeks, for average daily withdrawal, 2.98 million gallons per day for one well and 1.566 million gallons per day for the other well for a total average daily withdrawal of 3.864 million gallons per day. For maximum daily withdrawal the permit seeks 4.096 million gallons per day for one well and 2.792 million gallons per day for the other well for a total maximum daily withdrawal of 6.888 million gallons per day.

   
   

3. The amount of water sought to be consumptively used by this application greatly exceeds the water crop of the subject lands owned by applicant.

   
   

4. Mr. John C. Jennings and Mr. William Sunderland, owners of property adjacent to the Kraft property, appeared in their own behalf and stated that they felt that their wells were being hurt because of the large quantities of water pumped by Kraft. They did not attempt to offer expert testimony nor did they claim to be hydrologists. They did note that each had substantial problems with their wells running out of water.

   CONCLUSIONS OF LAW

   
   

5. The procedural requirements of Chapter 337, Florida Statutes, and rules promulgated pursuant thereto, have been complied with as they pertain to this application.

   
   

6. 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) 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." Noting that the applicant seeks to consumptively use an amount of water greatly in excess of the water crop of its property as defined by the district, it is concluded that, if applicant's use of the water as sought substantially interferes with or affects adversely the wells of adjacent property owners, such a use by the applicant is neither reasonable nor consistent with the public interest as set forth in Subsection 373.019(5), F.S. If such use is not reasonable and consistent with the public interest then it is not a reasonable, beneficial use and thus not entitled to the issuance of a consumptive use permit under Section 373.226, F.S.

   
   

7. The Southwest Florida Water Management District's staff, noting that the sought for consumptive use exceeds the water crop, nevertheless recommends granting of the permit with the following conditions:

   
   

   1. The the permittee shall install a totalizing flowmeter of the propeller driven type on all withdrawal points covered by this permit.

      
      

   2. That the permittee shall submit to the district a record of his pumpage for each meter installed in (a) above. Said pumpage shall

be provided on a monthly basis, and submitted by April 15, July 15, October 15, and January

15 for each preceding calendar quarter. Such reports will be sent to Chief, Technical Information Service, SWFWMD, 5060 Highway U.S.

41 South, Brooksville, Florida 33512.

RECOMMENDATION

It does not appear that the district has had a reasonable opportunity to examine the objections and comments of Messers. Jennings and Sunderland with regard to the effect of the applied for consumptive use on their property.

These objections were apparently raised for the first time at the hearing. As noted in paragraph 6, if the wells of Messers. Jennings and Sunderland are substantially affected in an adverse manner by applicant's use of such large quantities of water, such a use would not seem to be a reasonable, beneficial use as is required for permit unless further conditions were placed upon the permit. Therefore, it is recommended that the Southwest Florida Water Management District staff further investigate the effect of the applied for consumptive use on the wells located on the property of John C. Jennings and William Sunderland prior to the Board taking formal action on this application.

ENTERED this 26th 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 Staff Attorney Southwest Florida Water

Management District

P. 0. Box 457

Brooksville, Florida 33512

Douglas T. Moring, Esquire Kraftco Corporation Kraftco Court

Glenview, Illinois 60025

Docket for Case No: 76-000622

Orders for Case No: 76-000622