STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COCA-COLA COMPANY FOODS DIVISION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-646

) CENTRAL AND SOUTHERN FLORIDA ) FLOOD CONTROL DISTRICT, )

)

Respondent. )

)

APPEARANCES

For Respondent: Steve Walker, Esquire

Central and Southern Florida Flood Control District

Post Office Box V

West Palm Beach, Florida 33402

For Petitioner: Glen E. Rauth

Coca-Cola Company Foods Division Post Office Box 247

Auburndale, Florida 33823 RECOMMENDED ORDER

1. A hearing was convened before the undersigned Hearing Officer at the Kissimmee City Hall, Kissimmee, Florida, at 10:30 A.M., June 24, 1976, to consider two applications on behalf of the Coca-Cola Company Foods Division for two permits to withdraw water for irrigation purposes on the Petitioner's citrus fields. The first application, No. 27762, was for the irrigation of 60 acres of agricultural lands. The amount of water requested was 90 acre feet per year. The lands to be irrigated are located in Section 7, Township 26 South, Range 31 East, Osceola County, Florida. The second application, No. 29054, was for the withdrawal of 67.5 acre feet per year for the irrigation of 45 acres located in Section 20, Township 25 South, Range 31 East, Osceola County, Florida. The Flood Control District indicated it had no objection the proposed withdrawals, however, it sought to impose certain conditions upon the applicant to which the applicant objected. The hearing was convened to consider the merits of the Flood Control District's proposed conditions under which they indicated they were willing to grant the permits. The Flood Control District sought to impose the same conditions upon each application and these matters were consolidated without objection to be considered at one hearing. Although the Flood Control District had no objection to the Petitioner withdrawing the amount of water requested on an annual basis, it sought to impose maximum monthly withdrawal restrictions and require that whatever permits are given expire on July 15, 1978. The applicant objected to the above conditions and this hearing was convened to consider the positions of the parties relative to the two proposed conditions.

2. Mr. Rauth testified on the behalf of the applicant and stated that the proposed withdrawals reflected in the above permit applications were necessary for the efficient operation of the applicant's citrus fields and to guarantee that a necessary amount of water would be available during the growing season and during periods of diminished rainfall. He stated that the applicant was contemplating installing a new, more efficient, irrigation system and that to do so they would require some assurance that whatever permit is granted would be in effect for more than just two years, the time period the Flood Control District has indicated any permit would expire. He stated that to make the capital expenditures required the company should not have to gamble that its capital outlay would be rendered useless by the expiration of a two year permit with only the expectation of renewal remaining. He also stated that he knew of many cases where the Flood Control District had issued permits for a ten year period.

   
   

3. Witnesses for the Flood Control District stated that they sought to impose monthly maximum withdrawals. That testimony indicated that the sources for the wells which are on the applicants property withdraw water from the Floridan Aquifer. Those witnesses stated that whether the applicant withdrew the requested water over a four month period or over a yearly period would have little effect, if any, upon the Floridan Aquifer, Those witnesses stated that the reason the Flood Control District sought to impose monthly maximum withdrawals upon the applicant were to impose some "uniformity" upon withdrawal applications. What this uniformity would be and how it would assist the Flood Control District or the applicant was unclear. It appears that the Flood Control District is trying to impose a condition in this case that has no relationship to the merits of the case and only seeks to effect some unwritten policies known only to the Flood Control District. Further, a witness for the Flood Control District admitted that the monthly withdrawal allowance they sought to impose would not provide adequate water for the applicant on an average two years out of ten.

   
   

4. It is clear that the proposed expiration date of July 15. 1978 on this application has no relationship to any fact brought out at this hearing and certainly is not consistent with other Flood Control District's policies. The Flood Control District has granted withdrawal applications for longer periods of time than two years, particularly to municipalities where fifty year permits are allowed. The statute in question, Section 373.236, Florida Statutes, allows the Flood Control District to grant withdrawal applications for up to twenty years. The only possible reason to impose a time limit on this permit application was stated to be that the Flood Control District would like all similar permits to expire at the same time so that an evaluation can be made as to the available water resources at that time. It is unclear as to how having all similar permits expire simultaneously would help the Flood Control District to make any evaluation or any better evaluation than can be done presently. The applicant has stated that it will furnish all data it possesses to the Flood Control District upon request. It is difficult to see how by having this permit expire only two years from this date would further help the Flood Control District make any evaluation. It is also difficult to foresee how the Flood Control District could efficiently administer its permit processes by having a multitude of permits expire simultaneously and then be deluged with applications to renew. This appears to be particularly true in light of Section 373.175, F.S., which gives the Flood Control District authority to issue emergency orders in light of a water shortage.

   
   

5. Section 373.219(1), F.S., states the governing board or the department may require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure that such use is consistent

   with the overall objectives of the district or department and is not harmful to the water resources in the area.

   
   

6. Section 373.223(1), F.S., states

   
   

   "To obtain a permit pursuant to the provisions of this chapter, the applicant must establish that the proposed use of water:

   1. Is a reasonable beneficial use as defined in Section 373.019(5); and

   2. Will not interfere with any presently existing legal use of water and

   3. Is consistent with the public interest."

From the evidence presented at this hearing it is clear the applicant satisfies all of the requirements of the above statutory sections.

Whatever the case, there is no basis in fact for the Flood Control District's seeking to impose a two year limitation upon these permit applications. Further, there is similarly no basis in fact for the Flood Control District to seek to impose monthly maximum withdrawals since by their own testimony there is no foreseeable harm which could be caused by an unrestricted yearly withdrawal as requested in these permit applications. It is therefore RECOMMENDED that the permits be granted without the above conditions imposed.

DONE and ORDERED this 12th day of July, 1976, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Hearing Officer

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1976.

COPIES FURNISHED:

Steve Walker, Esquire Central and Southern Florida

Flood Control District Post Office Box V

West Palm Beach, Florida 33402

Glen E. Rauth

Coca-Cola Company Foods Division Post Office Box 247

Auburndale, Florida 33823

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

AGENCY FINAL ORDER

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

GOVERNING BOARD OF THE

CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT

IN THE MATTER OF: )

Application Nos. 27762 and ) 29054 for Water Use Permits )

filed by the Coca-Cola ) CASE NO. 76-646 Company, Foods Division )

)

FINAL ORDER

The Hearing Officer's Recommended Order 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 Recommended Order, the Written Exceptions to Hearing Officer's Recommended Order, the transcript of the June 24, 1976 hearing plus relevant exhibits, and the oral arguments presented by the staff and applicant, the Governing Board adopts the Hearing Officer's Findings of Fact except as modified below:

MODIFICATIONS TO HEARING OFFICER'S FINDINGS OF FACT

1. The reason that the staff of the CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT sought to impose monthly maximum withdrawals upon the applicant was to promote economic and efficient utilization of the water resources and to prevent waste. The Hearing Officer's finding that the purpose of the limitation is to impose some uniformity upon withdrawals is not based on competent substantial evidence in the record. In particular, it appears that the testimony relating to uniformity was in response to a hypothetical question and has no direct bearing upon the recommendation of a maximum monthly withdrawal. Rather, later testimony clearly establishes that the limitation was recommended solely as a means of preventing waste.

   
   

2. The reason for recommending short term expiration dates is to allow the District time to collect data on the number of users, the types of uses, and the quantity of water pumped in relation to the amount of water available prior to committing itself to long term allocations. The data will be used to set minimum flows and levels, to develop an equitable water shortage plan and to more accurately allocate the available water resources. To accomplish these purposes it is reasonable to issue these permits for a short initial term.

   
   

3. The Hearing Officer's finding that the only possible reason for imposing a time limit on the permit was that the CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT would like all similar permits to expire at the same time is not based on competent substantial evidence in the record. In particular while there was testimony that all permits issued within that particular area would expire at the same time, there was substantial evidence that the reasons for the short duration were as stated above. The applicant's testimony relating to the possible financing difficulty is unsubstantiated as he has shown no

   direct or immediate harm which could reasonably be expected to arise within the duration of this permit.

   
   

   CONCLUSIONS OF LAW

   
   

4. To obtain a permit, an applicant must comply with the provisions of 373.223(1) F.S. by, in part, establishing that the use of water will be a reasonable-beneficial use as defined in 373.019(5) F.S.

   
   

5. The District may impose reasonable conditions on a permit to assure that the use is a reasonable-beneficial one and is not harmful to the water resources of the area 373.219 F.S.

   
   

6. The maximum monthly withdrawal limitations recommended by the staff are reasonably calculated to assure that the applicant's use will meet the reasonable-beneficial use interest.

   
   

7. The Governing Board is required by 373.236(1) F.S. to establish an expiration date of no more than twenty years for permits for consumptive use of water.

   
   

8. The expiration dates recommended by the staff are reasonably calculated to assure that the applicant's use not result in a long term over allocation of the resource and thus will not be harmful to the water resources of the area.

ORDER

Based on the Hearing Officer's Findings of Fact as modified and the above Conclusions of Law, the Governing Board of the CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL DISTRICT hereby orders as follows:

It is the staff recommendation that based on considerations of water resource availability, reasonableness of use with respect to both the type of use and the resource, effect on other users, and environmental considerations, a Water Use Permit be issued pursuant to Application No. 29054 for an annual allocation of 67.5 acre-feet.

It is further recommended that this permit be subject to the following special conditions:

1. Monthly withdrawals shall not exceed 4.781 MG, which is equivalent to 3.912 inches. This is an allowable withdrawal figure which represents a maximum monthly withdrawal rate based on certain drought conditions and considering a reasonable application efficiency. This maximum withdrawal rate is not to be construed as an allocation or allotment for irrigation usage. It is specified to serve as an indicator to the permittee as to what this District accepts as a reasonable withdrawal rate during times of adequate water level and moderate drought conditions. The permittee should recognize that it may be necessary for the District to issue an order requiring a reduction in the water withdrawal rate in accordance with a water shortage plan developed by the District.

2. The maximum total installed capacity shall not exceed 1200 GPM from one 10-inch well as outlined above.

3. This permit shall expire on July 15, 1978.

4. The permittee shall report to the District total monthly withdrawals for each year ending May 31.

5. Driller's completion reports available from the District shall be submitted on all existing wells and/or on proposed new wells on completion of construction.

It is the staff recommendation that based on considerations of water resource availability, reasonableness of use with respect to both the type of use and the resource, effect on other users, and environmental considerations, a Water Use Permit be issued pursuant to Application No. 27762 for an annual allocation of 90 acre-feet.

It is further recommended that this permit be subject to the following special conditions:

1. Monthly withdrawals shall not exceed 6.374 MG, which is equivalent to 3.912 inches. This is an allowable withdrawal figure which represents a maximum monthly withdrawal rate based on certain drought conditions and considering a reasonable application efficiency. This maximum withdrawal rate is not to be construed as an allocation or allotment for irrigation usage. It is specified to serve as an indicator to the permittee as to what this District accepts as a reasonable withdrawal rate during times of adequate water level and moderate drought conditions. The permittee should recognize that it may be necessary for the District to issue an order requiring a reduction in the water withdrawal rate in accordance with a water shortage plan developed by the District.

2. The maximum total installed capacity shall not exceed 1200 GPM from one 10-inch well as outlined above.

3. This permit shall expire on July 15, 1978.

4. The permittee shall report to the District total monthly withdrawals for each year ending May 31.

5. Driller's completion reports available from the District shall be submitted on all existing wells and/or on proposed new wells on completion of construction.

Done and Ordered at a Public Meeting held in West Palm Beach, Florida this the 12th day of November, 1976.

CENTRAL AND SOUTHERN FLORIDA FLOOD

CONTROL DISTRICT, By its Governing Board

(Corporate Seal) By Vice Chairman

ATTEST:

By Secretary

CERTIFICATE OF SERVICE

I certify that copies of this Order have been furnished to the Coca-Cola Company, Foods Division in care of Glen E. Rauth, Post Office Box 247, Auburndale, Florida 33823 and Kenneth G. Oertel, Director, Division Of Administrative Hearings, Room 530, Carlton Building, Tallahassee, Florida 32304, by mail this 22nd day of November, 1976.

By Richard A. Rogers, Deputy Director Regulation Division

Resource Planning Department

Docket for Case No: 76-000646

Orders for Case No: 76-000646