STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF STUART, )

)

Petitioner, )

)

vs. ) DOCKET NO. 77-145

)

SOUTH FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Stuart, Florida, on March 14, 1976, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II. Dr. Walter R. Stokes, Mr. Harold Eckes, and The Honorable Ed Glucker participated as intervenors pro se. Mr. Rockford H. Ern appeared and testified on behalf of a fourth intervenor, Intracoastal Utilities Corporation. Two members of the public, Mr. Hugh Furman and Mr. Charles Adair, participated as such.

Petitioner and respondent appeared through their respective counsel, as follows:

Mr. William R. Scott, Esquire City of Stuart

Post Office Box 599 Stuart, Florida 33494

Mr. Stephen A. Walker, Esquire South Florida Management District Post Office Box V

West Palm Beach, Florida 33402

The City of Stuart (Stuart) made application to the South Florida Water Management District (the District) for a permit for consumptive use of water, seeking an allocation of 5.7 million gallons a day (mgd) to be drawn partly from the City's single existing well field, and partly from one or both of two well fields Stuart proposed to develop. At the time Stuart applied for a permit, it proceeded on the assumption that certain land south of the city would be annexed, increasing Stuart's service area and therefore its need for water. At the hearing, however, Stuart modified its application orally with respect to the area it proposed to serve, on account of the failure of the annexation effort.

For the same reason, Stuart also modified its request for water, so that it now seeks a two year allocation of 3.2 mgd, to be drawn solely from the existing well field. The District allocated only 2.9 mgd and, while granting "conceptual approval" to the proposed northern well field, the District indicated a present intention to deny permission for developing the proposed southern well field.

Dr. Walter R. Stokes, an intervenor, raised possible objections to the proposed northern well field, both in his capacity as a property owner and resident of North River Shores, and as chairman of citizens' groups working to preserve the savannas north of the St. Lucie River, between the White City road and the Jensen cutoff. He urged that adequate deep well tests be performed, in order to determine what effect pumping from the proposed northern well field would have on the water level in the savannas, and on existing wells in the vicinity of the proposed northern well field.

The Honorable Ed Glucker, Mayor of Sewall's Point, emphasized Sewall's Point's dependence for water on Stuart, and joined in Stuart's application for the allocation of additional water. Mr. Harold Eckes, a resident of Hutchinson Island, argued that cutting off the water Hutchinson Island receives from Stuart would be unjust, because there is a ban on new construction on Hutchinson Island, while no such ban obtains in Stuart. Intracoastal Utilities Corporation opposed Stuart's extending its service area south of the city limits, and also opposed development of the proposed southern well field.

FINDINGS OF FACT

1. Stuart, the county seat of Martin Count , lies on a peninsula 3 to 4 miles wide, bounded on the east, north and west by forks of the St. Lucie River, shortly before the river flows into the Atlantic Ocean. Because of the proximity of the Ocean, there is salt water in the river and in the tidal creeks which drain the peninsula. East of Stuart another, smaller peninsula juts down from the mainland, bounded by water on the east, south, and west. On this peninsula is the town of Sewall's Point. Still further east, Hutchinson Island is the last land body between Stuart and the Atlantic Ocean. Stuart's municipally-owned water system furnishes water to residents of Stuart, and also furnishes water, under contract, to Southern Gulf Utilities, Inc., for distribution to consumers in Sewall's Point and on Hutchinson Island. One third to one half of Stuart's production goes to Southern Gulf Utilities, Inc.; eight years remain on the contract between Stuart and Southern Gulf Utilities, Inc., a copy of which was admitted in evidence as petitioner's exhibit No. 2. In the last eight years, the population of Stuart has grown from 3,200 to 8,400, and the population elsewhere in Martin County has increased at a similar rate.

   
   

2. Two aquifers underlie Martin County. The deeper, called the Floridan aquifer, does not yield potable water, although water from the Floridan aquifer could be rendered potable by reverse osmosis. Reverse osmosis costs five or ten times as much as pumping potable water from the ground, however. The shallow aquifer, which is separated from the Floridan aquifer by relatively impermeable clays called the Hawthorne formation, is the source of Stuart's public water supply. Existing wells draw potable water from this shallow aquifer, the floor of which is 150 feet deep. Precipitation seeping down through the topsoil replaces some of the water pumped out of the shallow aquifer. Average annual precipitation is 13.5 inches, but more water is being taken out than is being replaced.

   
   

3. In order to calculate the shallow aquifer's safe yield, the District multiplied rainfall by land area. This is an application of the water crop theory, which holds that the amount of water available, without "mining" the well field, is the product of land area and net recharge. The District's calculations gave 3.3 mgd as the estimated long-term sustained yield of the effective service area which includes Stuart's well field. Not included in the effective service area for purposes of the District's calculations are Hutchinson Island and Sewall's Point, because the ground water in those areas is

   separated from Stuart's well field by bodies of salt water and cannot help recharge Stuart's well field for that reason. The only two other specified users in the effective service area consume approximately .1 mgd, or 36.3 million gallons a year. Subtracting these other uses from the total leaves 3.2 mgd, the amount of water Stuart seeks to have a located. This 3.2 mgd figure does not take into account the existence of non-permitted wells, however, and does not take into account the fact that some rainwater drains off into the St. Lucie River, rather than seeping underground. Empirical data demonstrate, moreover, that even at present rates of pumping, Stuart's well field is being "mined," i.e., more water is being removed from the well field than is being replaced: At one point near the existing well field, the ground water table on July 6, 1955, was 12 feet above sea level. At the same point today, the ground water table is one foot below sea level. Over the same period, the ground water table in the western part of Martin County, where there has been no significant pumping of the ground water, has not fallen significantly. In short, Stuart is depleting the ground water reservoir in the shallow aquifer under its existing well field.

   
   

4. Depletion of fresh groundwater creates the danger of salt water intrusion into the shallow aquifer, because the peninsula on which Stuart sits is surrounded by salt water on three sides. The three experts who addressed the matter agreed that the Ghyben-Herzberg principle or relation is applicable in Stuart and wherever salt water "acts on" fresh water. According to this principle, for every foot of fresh ground water above mean sea level, there should be forty feet of fresh ground water below sea level In theory, where there is fresh ground water in proximity to salt water, and the groundwater table is 10 feet above sea level, for example, fresh water should extend to a depth of 400 feet below sea level, underneath which any ground water would be saline. In fact, the groundwater table underneath Stuart's existing well field dips below mean sea level at points, yet no salt water has been detected in the well field at depths of 80 feet and more, oven though in September, October, and November of 1973, low tides in the area averaged from 0 to 1.5 feet above mean sea level. No expert could explain this divergence between observed reality and a theory to which they all subscribed, although it was suggested that some of the clay in the region might be sealing off the fresh water and retarding salt water intrusion. If the experts are correct, however, it is only a matter of time until Stuart's well field is contaminated by salt water, assuming pumping from the field continues at the present rate.

   
   

5. Stuart's well field is completely free of contamination by salt water at this time. At present, Stuart pumps water from its well field at a rate of between 2.7 mgd and 2.8 mgd. Monitoring wells, which have been dug at various points between the well field and the salt water indicate that salt water intrusion has not begun.. Water drawn from these wells is regularly analyzed for chlorides. To date, the highest reading in any well has been 59 parts per million, well under the recommended limit of 250 parts per million.

   
   

6. Stuart has three possibilities for alternative or supplemental well fields; across the St. Lucie River to the north, across the St. Lucie River to the west, and south of the existing well field. The southern option would require the least capital outlay, but would result in the least reliable source of fresh water. The western option would require the most capital outlay, but would result in sufficient fresh water for the foreseeable future. The northern option would require more capital outlay than the southern option, but less than the western option, and would afford a reliable source of fresh water, possibly for as long as two decades. Test wells need to be dug in order to obtain the specific data necessary intelligently to decide among these options.

   CONCLUSIONS OF LAW

   
   

7. Pursuant to Section 373.223, Florida Statutes (1975), the burden rests on an applicant for a permit for consumptive use of water to "establish that the proposed use of water:

   
   

   1. Is a reasonable-beneficial use . . .;

   2. Will not interfere with any . . . existing . . . use . . .; and

   3. Is consistent with the public interest."

      
      

      Stuart demonstrated that the use it proposed was "reasonable- beneficial" within the meaning of Sections 373.223 and 373.019(5), Florida Statutes (1975). Stuart seeks to augment its own public water supply, while meeting its contractual obligations to Southern Gulf Utilities, Inc., to furnish water for public use in Sewall's Point and on Hutchinson Island.

      
      

8. Stuart did not establish what effect on existing wells could be anticipated from additional pumpage from the present well field. Among wells which might be affected are those of Intracoastal Utilities Corporation, which are designed to produce a public water supply for the population residing south of Stuart.

   
   

9. The danger of salt water intrusion is real and substantial, so long as pumping from the present well field continues at the present rate. Although it is possible that salt water intrusion will never occur, it is not "consistent with the public interest" to increase the risk of its occurrence by pumping at an even greater rate from the present well field.

   
   

10. Stuart did not establish what effect on existing wells could be anticipated from developing the proposed southern well field or the proposed northern well field (or any western well field). The District's failure to grant "conceptual approval" as to the proposed southern well field, however, while granting such approval as to the proposed northern well field, is without legal effect. As to both proposed well fields, the District lacked sufficient information for a decision. The burden is on Stuart, as the applicant, to furnish further technical information with respect to any well field it proposes to use to meet its needs.

    
    

11. Respondent is required to permit "the continuation of all uses in existence [as long as Stuart's has been] . . . if the existing use is a reasonable-beneficial use . . . and is allowable under the common law . . ." Section 373.226(2), Florida Statutes (1975). Stuart's use of water is allowable under common law and, for the reasons stated above, constitutes a "reasonable- beneficial use."

RECOMMENDATION

Upon consideration of the foregoing it is RECOMMENDED:

That despondent issue to petitioner a permit for the consumptive use of 2.9 mgd of water from Stuart's existing well field for a period of two years; and

That respondent issue permits for all test wells petitioner seeks to dig and for which petitioner makes appropriate application.

DONE and ENTERED this 28th day of April, 1977, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 28th day of April, 1977.

COPIES FURNISHED:

Steve Walker, Esquire

South Florida Management District Post Office Box V

West Palm Beach, Florida 33402

Ed Glucker, Mayor Sewall's Point

1 South Sewall Point Road

Jensen Beach Post Office, Florida

William R. Scott, Esquire City Attorney

City of Stuart

Post Office Box 599 Stuart, Florida 33494

Walter R. Stokes, M.D. 1289 Fork Road, Northwest North River Shores Stuart, Florida 33494

Robert B. Cook, Esquire The Gentry - Suite 108 860 U.S. Highway One Post Office Box 14235

North Palm Beach, Florida 33408

Harold Eckes, Utility Consultant Martin County

101 East Beverly Road Jupiter, Florida 33458

Docket for Case No: 77-000145

Orders for Case No: 77-000145