STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: APPLICATION OF U. S. ) SUGAR CORPORATION, )

APPLICATION #27700 ) CASE NO. 76-1653

)

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled cause on November 3, 1976 at Clewiston, Florida.

APPEARANCES

For Applicant: Philip S. Parsons, Esquire

700 Lewis State Bank Building Tallahassee, Florida 32303

For C&SFCD: Stephen Walker, Esquire

Staff Attorney

Central and Southern Florida Flood Control District

Post Office Box V

West Palm Beach, Florida 33402

For Intervenors: David Gluckman, Esquire

3348 Mahan Drive

Tallahassee, Florida 32303 Representing Tropical Audubon

Society, Inc., Izaak Walton League,

Coalition for Water, Inc., Friends of the Everglades, and Audubon Society of the Everglades.

By application filed April 30, 1976, U. S. Sugar Corporation seeks a permit for water use, surface water management, and right-of-way occupancy to serve 11,520 acres of agricultural land in Hendry County in the Everglades Agricultural area. The applicant proposes to develop the tract of land involved as improved pasture. C&SFCD staff recommends grant of the application under conditions acceptable to U. S. Sugar Corporation. Intervenors oppose the grant of the permit primarily on ecological grounds. Four witnesses testified in support of the application, two witnesses were called by the Intervenors, thirteen exhibits were offered into evidence and twelve were admitted. Exhibit 8, a staff recommendation pertaining to a tract of land in the Kissimmee River Basin, was not admitted into evidence upon objection to its relevancy to these proceedings.

FINDINGS OF FACT

1. This application is to provide irrigation necessary to develop 11,520 acres zoned agricultural into improved grazing land.

   
   

2. The land to be so developed is Sections 1, 2, 3, 10, 11, 12, 13, 14, 15, 23, 24, & 25, Township 47 South, Range 34 East, a portion of Sections 4, 9, 16, 21, 22, 26, 27, 35 & 36, Township 47 South, Range 34 East, a portion of Section 1, Township 48 South, Range 34 East, and a portion of Section 6, Township 48 South, Range 35, East. It is bounded on the west and southwest by the L-3 canal, and on the east by the Rotenberger tract which has been purchased by the State of Florida as a Wildlife Management Area.

   
   

3. Details of the proposed water management system are contained in Exhibit 4, C&SFCD Staff Report.

   
   

4. The tract here involved is basically flat with the elevation going from

   +14 feet in the northwest portion to +13 feet in the southeast portion. Although the Addendum to the Staff Report (Exhibit 5) states that the application calls for the conversion of several thousand acres of original sawgrass Everglades into improved pasture, expert witnesses testified without contradiction that the tract involved is more on the edge of the Everglades and only a small portion in the southeastern part thereof is truly swamp and marsh

   land typical of the Everglades. The western portion of the area is comprised of sandy soil rather than the muck characteristic of Everglades land.

   
   

5. Although the Intervenors contended that the development of the tract would be environmentally counterproductive, no evidence was submitted to support this position. Conversion of the land to pasture may prove more useful to wildlife than leaving it in its present state which primarily supports deer. As improved pasture the land would still support a substantial deer population. Wading birds in particular will benefit if the wild land is converted to pasture.

   
   

6. The annual water allocation recommended by the C&SFCD staff and concurred in by applicant, should be 15,360 acre-feet (16.0 inches/acre/year) which is the basin yield for the area. Therefore the irrigation use should have no adverse impact on the water resource or affect other users.

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 373.223 F.S. provides that in order to obtain a permit the applicant must establish that the proposed use of water is a reasonable- beneficial use as defined in 373.019 (5) F.S. The latter section defines "reasonable-beneficial use" to mean:

   
   

   " . . . 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."

   
   

8. Here the net water use is zero; i.e. the net amount to be used will equal the average annual rainfall. Conversion of the tract into improved pasture will not adversely affect the wildlife of the area or the overall ecology of the area.

9. From the foregoing it is concluded that the permit applied for is a reasonable and beneficial use of the water. It is therefore,

   
   

   RECOMMENDED that the permit be issued to U. S. Sugar Corporation for an annual allocation of surface water and/or ground water of 15,360 acre-feet (16.0 inches/acre/year). It is further

   
   

   RECOMMENDED that this permit be subject to the following special conditions:

   
   

10. Maximum monthly withdrawal of surface water, ground water, or the combination of the two shall not exceed 2346.1 million gallons, which is equivalent to 7.5 inches. 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 the water shortage plan developed by the District.

    
    

11. Permittee shall submit reports of monthly pumpages, from both surface water and groundwater sources, made for irrigation purposes, to the Flood Control District at the end of May and November.

    
    

12. This permit shall expire on July 15, 1977.

    
    

13. Irrigation withdrawals from surface water shall be via a primary irrigation pump station, with a capacity of 72,000 GPM and a secondary irrigation pump station, with a capacity of 58,000 GPM.

    
    

14. Irrigation withdrawals from groundwater shall be via 8 wells with a total estimated capacity of 4900 GPM.

    
    

15. The permittee shall notify the District if use from the wells shall be discontinued and shall obtain District approval prior to the abandonment of any wells and approval from the Department of Environmental Regulation.

    
    

16. It is further RECOMMENDED that based on consideration of available discharge capacity, flood protection, water level controls, and environmental considerations, a surface water management permit be issued pursuant to application number 27700 for the construction operation of a water management system consisting of levees, dikes and canals, and a 260,000 GPM pump station ultimately discharging to L-4 as described in the application. It is further RECOMMENDED that this permit be subject to the following special conditions:

    
    

    1. Canal right-of-way disturbed during construction shall be restored to original condition or better.

       
       

    2. Miscellaneous construction debris shall be disposed of properly and shall not be deposited in the canal or on FCD

       right-of-way.

    3. Any fill material around newly installed structures shall be fully compacted with permittee being responsible for correction of any erosion problems.

    4. Permittee shall institute necessary measures during the construction period to reduce possible turbidity and sedimentation problems in L-4. The turbidity standards of DER and the FCD shall be satisfied.

    5. The operation phase of this permit shall not become effective until such time as the District inspects and approves the completed installations.

    6. Permittee shall cooperate in the Pump Operation Reporting System of the District.

    7. Permittee shall not remove earthen plugs in the firebreak on the eastern perimeter without approval from the District.

    8. Water quality monitoring may be required after evaluation of the Florida Sugar Cane League study, but in no case will it be required prior to October 1, 1977. Parameters which may be measured include nitrates as N, nitrites as N, ammonia as N, total kjeldahl nitrogen as N, total phosphorus as P, total dissolved solids and turbidity.

    9. The permittee shall install weed control devices to prevent the discharge of aquatic weeds into the L-4 system. It is further RECOMMENDED that a right-of-way occupancy permit be issued for the use and the occupancy of District

       right-of-way. The permit would authorize the installation of two 84" x 70' CMP's through the north right-of-way of L-4 adjacent to Project Culvert No. 1, a portion of the main irrigation and drainage canal, and dike connections as described in Application No. 27700.

       
       

17. It is further RECOMMENDED that this permit be subject to the following special conditions:

    
    

    1. U. S. Sugar Corporation shall not release contractors performance bond until the completed installation is accepted by the Flood Control District.

    2. FCD right-of-way disturbed during construction or by the permittee shall be restored to original condition or better.

    3. Miscellaneous construction debris shall be disposed of properly and shall not be deposited in the canal or on FCD

       right-of-way.

    4. Any fill material around newly installed structures shall be fully compacted with permittee being responsible for correction of any erosion problems.

    5. Permittee shall institute necessary measures during the construction period to reduce possible turbidity and sedimentation problems in L-4. The turbidity standards of DER and the FCD shall be satisfied.

DONE and ENTERED this 9th day of December, 1976, in Tallahassee, Florida.

K. N. AYERS 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 9th day of December, 1976.

COPIES FURNISHED:

Philip S. Parsons, Esquire 700 Lewis State Bank Building Tallahassee, Florida 32303

Stephen Walker, Esquire Staff Attorney

Central and Southern Florida Flood Control District

Post Office Box V

West Palm Beach, Florida 33402

David Gluckman, Esquire 3348 Mahan Drive

Tallahassee, Florida 32303

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AGENCY FINAL ORDER

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GOVERNING BOARD OF THE

SOUTH FLORIDA WATER MANAGEMENT DISTRICT

IN RE: )

)

APPLICATION OF U. S. SUGAR )

CORPORATION, ) CASE NO. 76-1653

APPLICATION NO. 27700 )

)

)

FINAL ORDER

The Hearing Officer's Recommended Order on Application No. 27700 came to be heard before the Governing Board of the South Florida Water Management District on the 13th day of January, 1977. After consideration of the Hearing Officer's Recommended Order, Objections to Hearing Officer's Recommended Order and request for additional testimony before the full Board and argument of counsel for the parties, and the Governing Board being fully advised in the premise, it is

ORDERED:

That the Hearing Officer's Recommended Order is hereby adopted by the Governing Board as its own with the following modification to the Conclusions of Law:

Replace the first sentence of the second paragraph under the Conclusions of Law with:

"Here the net water allocation is equal to the average annual rainfall minus evapotranspiration."

DONE and ORDERED at a Public Meeting held at West Palm Beach, Palm Beach County, Florida, this 13th day of January, A.D., 1977.

SOUTH FLORIDA WATER MANAGEMENT DISTRICT, BY ITS GOVERNING BOARD

(Corporate Seal)

By

ATTEST:

Chairman

By

Secretary

CERTIFICATE OF SERVICE

I certify that a copy of this Order has been furnished to Phillip S. Parsons, attorney for U. S. Sugar Corporation, Post Office Box 1548, Tallahassee, Florida 32302; David Gluckman, attorney for the Intervenors, Florida Audubon Society, 3348 Mahan Drive, Tallahassee, Florida 32302 and K. N. Ayers, Hearing Officer,

Division of Administrative Hearings, Room 530, Carlton Building, Tallahassee, Florida 32304 by mail this 14th day of January, 1977.

By Richard A. Rogers, Director Resource Control Department

Docket for Case No: 76-001653

Orders for Case No: 76-001653