STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF SARASOTA, )
)
Petitioner, )
)
vs. ) CASE No. 89-0574
)
ROGER HARLOFF (OGLEBY CREEK ) FARMS, and SOUTHWEST FLORIDA ) WATER MANAGEMENT DISTRICT, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Tampa, Florida from August 22 to August 30, 1989.
APPEARANCES
For the Petitioner: Edward P. de la Parte, Jr., Esquire City Of Sarasota de la Parte, Gilbert and Gramovot, P.A.
705 East Kennedy Blvd. Tampa, Florida 33602
For the Respondent: Edward B. Helvenston, Esquire SWFWMD Assistant General Counsel
2379 Broad Street
Brooksville, Florida 34609-6899
For the Respondent: Douglas P. Manson, Esquire Roger Harloff Blain & Cone, P.A.
202 Madison Street Tampa, Florida 33602
STATEMENT OF THE ISSUES
The issue for consideration at the hearing was whether the Respondent, Roger Harloff, should be issued a consumptive use permit to withdraw and use ground water from the wells on his property, and if so, in what amount and under what conditions.
PRELIMINARY STATEMENT
By proposed agency action dated December 30, 1988, the Respondent, Southwest Florida Water Management District, (District), indicated its intention to recommend to the District Board approval of Respondent, Roger Harloff's application for a consumptive use permit to withdraw water from 12 wells on his property at certain average annual and maximum daily rates. On January 18, 1989, the City of Sarasota filed its request for formal hearing, subsequently
amended, and simultaneous therewith, the City filed petitions for formal hearing to protest the issuance of a consumptive use permit to Pacific Tomato Growers, another producer in the area. Both petitions were forwarded to the Division of Administrative Hearings on February 1, 1989.
On March 3, 1989, the undersigned, to whom both cases had been referred, entered an Order of Consolidation and an extensive pre-hearing motion practice was conducted which resulted in several continuances being granted. The case was ultimately set to commence on August 22, 1989, in Tampa. Several days prior thereto, however, the City, the District, and Pacific Tomato Growers entered into a stipulated settlement agreement in that case which was thereafter severed from the instant case on August 15, 1989.
The parties hereto entered into a substantial prehearing stipulation agreement which resolved many of the issues of fact pertinent to this matter. The hearing began on August 22, 1989, as scheduled, and shortly thereafter, the parties indicated that the City had changed its position previously taken opposing Harloff's permit, and now supported a permit issuance to Harloff with certain conditions outlined in the August 19, 1989 Staff Report. As a result of the position change, the only issues remaining in the case for consolidation were Mr. Harloff's objection to the six permit conditions which relate to the amount of withdrawals authorized and a requirement for abandonment or refurbishment of his existing wells.
At the hearing, Mr. Harloff testified in his own behalf and presented the testimony of Dale Hardin, Vice President of Agricultural Management Services and an expert in geology and hydrogeology; Dr. Rodney Clouser, an expert in the field of agriculture economics in Florida; James F. Prochaska, an expert in wellfield component specifications and design; Carrol W. Hawkins, Manager of the Florida Tomato Committee and Vice President of the Florida Tomato Exchange and an expert in tomato economics; Peter F. Andersen, consultant and expert in the fields of hydrogeology and computer programming; Earl Clayton Ness, Paul C. Gilmore, Marvin Williams, Paul Harloff, James H. Williams, and Wendall Smith, all farm managers for Mr. Harloff; Robert G. Tyson, an employee of SWFWMD; and Gilbert Leacock, Director of Utilities for the City of Sarasota. Mr. Harloff also introduced Harloff Exhibits 1 a&b, 2 a&b, 5 a&b, 25, 28, 29, 40, 65, 66,
82, 87, 93, 94, 97, 99, 106, 109 - 111, 115, 117 - 119, 123, 124 a&b, 125, 126
a&b, 127.
The District presented the testimony of Richard v. McLean, Deputy Director; Marie C. Jackson, a Hydrologist III with the District and an expert in the area of hydrology and ground water modeling; and Alison Adams, Director of the District's Venice Permitting Department and an expert in ground water modeling applications, and introduced District Exhibits 1 - 3, 5, and 36.
The City of Sarasota introduced the testimony of Douglas H. Taylor, environmental resources manager for the City's utility department and an expert in water utility management and water management; Harold v. Aiken, Jr., formerly chief of permit evaluation for the District; William P. Balleau, an associate in a ground water consulting firm and expert in the field of hydrology and hydrogeology; Louis Tortora, vice president of a consulting firm and expert in the field of water imaging; Thomas Schanze, an agricultural engineer and expert in that field; and Eljean Gainey, supervisor of the Verna Wellfield. The City also introduced City Exhibits 14, 15, 24, 26 - 29, 36, 83 - 86, 88 & 89, 97 -
101, 111, 114 - 116, and 127.
Subsequent to the hearing, both Mr. Harloff and the City submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order. The District joined in the filing of the City's Proposed Findings of Fact.
On November 3, 1989, Mr. Harloff filed a Motion To Reopen Case To Admit New Evidence. This evidence related to the District's approval, on November 3, 1989, of a water use permit for BRG Citrus, in the amounts of 2,010,000 gpd average annual, and 27,000,000 gpd maximum day. Counsel urged consideration of the fact that this grower's property is located "only 2 to 3 miles from Harloff's property" and that the casing and depth requirements in that permit were less strict than those proposed in the Harloff proceeding.
The City opposes Mr. Harloff's motion on the ground that the District's staff report in the BRG application is not relevant to whether the District believes the Verna Well field can withstand additional drawdowns. Evaluation of the pleadings and attachments thereto appears to support the City's position and Mr. Harloff's motion is hereby denied.
FINDINGS OF FACT
Respondent, Roger Harloff, owns several farms in southeastern Manatee County, Florida which, taken together, make up an irregular 8,500 acre tract located approximately 2 1/2 miles north of the City of Sarasota's Verna Wellfield. Mr. Harloff grows vegetables on much of this tract, of which approximately 1,500 acres is devoted to tomatoes. This tomato crop is the prime crop produced by Mr. Harloff, and provides the raw material for the Harloff packing plant which is dependent upon the tomato crop in order to stay in business. Mr. Harloff also operates a plant nursery at which he produces many if not most of the seedling plants utilized in his vegetable growing operations. In order to be economically feasible and remain operative, Mr. Harloff must farm approximately 3,800 acres during the Spring growing season and approximately 3,000 acres during the Fall. These acres are made up of tomatoes and other vegetables. The packing plant and the plant nursery are dependent upon the farm operation and without adequate water, the farm operation cannot be successfully carried on.
In September 1988, Mr. Harloff applied to the District for a consumptive use permit to withdraw water from twelve wells located on his property, requesting an annual average rate of 12,995,606 gpd, and a maximum daily rate of 47,520,000 gpd. The consumptive use permit application filed by Mr. Harloff was assigned District Number 204467.04. After evaluation of the application in conjunction with its needs and policies, the District issued a staff report and proposed agency action on the application which recommended issuance of the permit authorizing water to be drawn from the 12 wells at a rate approximating that requested in the application. Thereafter, the City of Sarasota, which operates the nearby Verna Wellfield, considering that the proposed withdrawal would have a substantial adverse impact on its wellfield operations, filed a Petition for Formal Administrative Hearing objecting to the issuance of the permit to Mr. Harloff.
Though Mr. Harloff has owned much of the property which make up the 8,500 acre tract in question here, at the time of his application, he did not own, but had under contract, a substantial portion. He closed on the purchase of that remainder after he received notice of the District's intention to issue the permit in question but prior to the City's filing its Petition For Formal
Hearing. The purchase price of the property in question was $9,000,000.00 which carries an interest payment on the financed portion of $52,000.00 per month.
The wells pertinent to the issues in this proceeding are as follows: # Cons. Depth Cas. Lin. Diam. Cap. Loc.
1 | 1978 | 1185' | 200' | 220-490' | 12" | 2000 | gpm | SE |
2. | 1988 | 1320' | 210' | 210-480' | 16" | 3000 | gpm | SE |
9. | 1974 | 1130' | 390' | 16" | 3000 | gpm | C | |
10. | 1976 | 1232' | 231' | 283-400' | 16" | 3000 | gpm | NW |
11. | 1979 | 1120' | 210' | 260-480' | 12" | 2000 | gpm | NW |
12. | 1976 | 1180' | 480' | 12" | 2000 | gpm | SW | |
3. | 1989 | 1434' | 460' | 16" | 3000 | gpm | SE | |
5. | 1989 | 1374' | 610' | 16" | 3000 | gpm | W | |
8. | 1989 | 1292' | 548' | 16" | 3000 | gpm | NW | |
13. | 1989 | 1310' | 635' | 16" | 2000 | gpm | NE |
Well No. 8 was used as the pump test well for the constant rate discharge test and Well No. 13 was the deep observation well for that test. Wells 1, 2, 9, 10, 11, and 12 have all been previously permitted by the District and No's 1, 2, 9 and 10 are currently permitted under two other permits, while
11 and 12 were permitted under a different permit. Wells No. 3, 5, 8 and 13 have been authorized for construction but not, as yet, to produce water.
Wells 4, 6 and 7 have not yet been constructed. The intention is to drill them to a depth of 1,300 feet and case them to 600 feet. Each will have a pump capacity of 3,000 gpm. Number 4 will be in the southeast portion of the tract, number 6 in the central portion, and number 7 will be located just north of number 6.
Wells 1, 2, 9, and 10 currently have a combined permitted maximum daily rate of 13,680,000 gallons under permits number 204467.03 for 1 and 2, and 204630 for 9 and 10. The former was issued on December 29, 1987 and will expire on December 29, 1993, and the latter, issued on October 7, 1981, will expire on that same day in 1991. The permit previously issued for wells 11 and 12 authorized withdrawal at a maximum daily rate of 2,160,000 gallons. That permit, number 204374, expired on September 9, 1986 and was not renewed.
After the City filed its Petition challenging Mr. Harloff's proposed permit, Mr. Harloff, on June 26, 1989, filed an amended application to withdraw water at an average annual rate of 10.99 mgd and a maximum daily rate of 48.96 million gallons. This amended application refers to an additional proposed well, Number 13. The District, however, had previously approved wells 3 - 8 and 13, and pursuant to this authorization, wells 3, 5, 8, and 13 were built.
Mr. Harloff submitted additional amendments to his application on August 7 and 9, 1989. The former requests a seasonal average daily rate of
25.34 mgd and a seasonal maximum daily rate of 32.79 mgd. The latter requests a seasonal average rate of 26.18 mgd, an annual average rate of 15.18 mgd, and a seasonal maximum rate of 31.56 mgd. In that regard, a seasonal rate is the same as an annual rate, (average or maximum) when applied to a growing season as opposed to a year.
The additional amendments to the application were evaluated by District staff who, on August 18, 1989, issued a revised staff report and a proposal to issue to Mr. Harloff a consumptive use permit authorizing an average
annual withdrawal of 11.1. mgd, an average seasonal withdrawal of 15.6 mgd, and a seasonal maximum withdrawal of 20.1 mgd. The proposed permit also contains terms and conditions which, the District contends, will, inter alia, permit Mr. Harloff to withdraw more water than he is currently authorized without additional adverse impact on the City's Verna Wellfield. It is to some of these terms and conditions that Mr. Harloff objects.
Since the issuance of the revised staff report and intent to issue, the parties have negotiated on the various terms and conditions in question and have agreed to some and the amendment of others. Mr. Harloff has no objection to conditions number 1, 2, 3, 7 - 14, 23, 24, 26, 28 - 30, 32, and 34 & 35. The parties agree that other conditions, as indicated herein, should be amended as follows:
Condition 19, on the third line, should be changed to read, " up to 20 inches tapering to 12 inches."
Condition 22, on the second line, should be changed from "30 days" to "10 days". Condition 25, on the first line, should be changed from "within 60 days" to within 120 days".
Condition 31, on the third line, starting with "following month" should be changed to "following months: January, April, July and October". Also, under Sampling Frequency, "Monthly" should be changed to "Quarterly".
Condition 33, on the ninth line, insert the work "economically" before the word "feasible" in the phrase "specific operation and irrigation improvements are feasible".
Mr. Harloff objects to conditions 4, 5, 15 - 17, 20 & 27. He does not object to the proposed new standards for new wells. Taken together, the parties then disagree only on the requirement for abandonment or refurbishment of existing wells and the quantities of water Mr. Harloff will be allowed to draw. The City supports the District's position on both issues.
The City of Sarasota owns and operates a public water system to serve between 50 to 75 thousand people located in Sarasota County. The primary source of water for this system is the Verna Well field which is also owned by the City and which accounts for approximately 60 percent of the City's water needs. The City also operates a reverse osmosis, (R.O.) water desalinization facility, and has back-up wells at St. Armond Key and at the Bobby Jones Wellfield.
The Verna Wellfield is located about 17 miles east of the Sarasota city limits on approximately 2,000 acres of land in northeastern Sarasota County. It consists of two tracts of land: Part "A", which is approximately 1/2 mile wide by 4 miles long; and Part "B", which is approximately 1 mile square located about 500 feet southeast of Part "A". The Verna Wellfield's permitted allocation is based on whether the R.O. facility is producing at capacity. If it is, the Verna daily allocation is 7 mgd, and if not, 9.5 mgd. The R.O. facility's capacity is 4.5 mgd and the backup wells have a capacity of
1.7 mgd.
The wellfield contains 39 permitted production wells, 30 of which are in Part "A" and 9 of which are in Part "B." One of them, well 30, is currently inactive. The wellfield has been in operation as a part of the City's public water system since September 1966.
When the Verna Wellfield was constructed in 1965-1966, its original design specified casing on most wells down to 140 feet with pump bowl settings at 125 feet. Each pump was to have a total dynamic head, (TDH) of 200 feet. Over the years, the City has decreased the TDH of the pumps at Verna from 200 feet to 175 feet. This has resulted in a reduction of the pumps' ability to produce water with sufficient pressure to carry it to the discharge point. This decline has been caused by an increase in withdrawal of water regionally, and not solely because of withdrawals from the Verna Well field. Verna is impacted by the use of water outside the boundaries of the wellfield.
The City has an ongoing program calling for the refurbishment of 2 to
3 wells per year at the Verna Wellfield. It is the City's intent to convert the pumps to 200 feet TDH on all well refurbishments in the future.
In August 1977, a program requiring permits for the consumptive use of water was implemented in both Sarasota and Manatee Counties. At that time, the Verna Wellfield had a production rate of 6.9 mgd annual average daily rate. On January 6, 1978, the City applied for a permit for Verna and on April 3, 1979, the District issued permit number 27804318 to allow the City to draw water from the Verna Wellfield.
The City applied for a renewal of that permit in October 1983 and thereafter, in January 1985, the District authorized the continued withdrawal of water from Verna by the issuance of permit 204318 which, at Condition 18, placed limitations on the City's use of water from the wellfield. Specifically, the permit limited withdrawals from Verna to:
...6,000,000 gallons per day average and 7,000,000 gallons per day maximum, except during those times when ... [the R.O. process is reduced or to facilitate maintenance or repairs]. At such times,
... [withdrawals) may be increased to provide additional supplies not to exceed 8,000,000 gallons per day average annual and 9,500,000 gallons per day maximum.
This condition clearly provides for additional supplies to be drawn to increase the Verna Well field production to a total of 8,000,000 and 9,500,000 mgd, respectively, not in addition to the regular permitted amount, by those quantities. The City's permit has been neither suspended nor revoked nor is any violation enforcement action currently under way. The current permit expires January 9, 1991.
The water pumped from the Verna wells is held in a 1,000,000 gallon reservoir at the wellfield. This reservoir, which is topped at approximately 22 to 23 feet, electronically controls the pumping activity at the well field by turning on and shutting off pumps, in series, as the water level in the reservoir rises and falls.
The water, when needed, is transmitted to another reservoir near the City's treatment plant in downtown Sarasota by gravity flow through a 30"
diameter, 92,000 foot long pipe. The flow rate is approximately 5,000 gpm normally. When the treatment plant needs more water, a pump at the well field forces the flow at a rate of between 7,200 to 8,200 gpm, depending upon the level of water in the receiving reservoir. A flow of 8,200 gpm would draw 11.8 mgd from the wellfield.
The operating capacity of the Verna Wellfield, in August 1988, was
17.9 mgd. Harloff's experts assert, and there is no concrete evidence to rebut it, that if all wells at Verna were pumping during a 24 hour period in May 1989, the reservoir could have been maintained at full level. However, though there is a manual override of the automatic reservoir/pump control system, it is unrealistic and unwise to expect full production on a 24 hour basis for any lengthy time period.
Water under both Mr. Harloff's property and the Verna Well field is found at various levels known by different names. These include, in order of descent, the Surficial Aquifer, the Intermediate Aquifer, the Upper Floridan Aquifer, and the Lower Floridan Aquifer. The Surficial Aquifer extends from the surface down to between 20 and 60 feet below the surface. A 20 foot thick bed of clay separates the water in this aquifer from that in the aquifer immediately below it, the Intermediate Aquifer, which extends from approximately 80 feet down to approximately 420 feet below the surface. In the lower part of the Intermediate Aquifer, permeability decreases until a confining unit separating the bottom of the Intermediate Aquifer from the top of the Upper Floridan Aquifer is formed. There is such a confining unit between 420 and 500 feet.
There is no well-defined confining unit between the Upper and Lower Floridan Aquifers. There is, however, a substantial difference in the transmissivity in each zone. "Transmissivity" is defined as the amount of water that will exist through a section of the aquifer that is the same width from the top to the bottom. The lower the transmissivity rate, the deeper the cone and the narrower the radius of effect. The higher the rate, the shallower the cone and the broader the radius. The Lower Floridan Aquifer has an extremely high transmissivity. Its top is found at a range of from 1,050 to 1,200 feet below the surface on Mr. Harloff's property.
The water from the Upper Floridan Aquifer is of higher quality than that in the Lower. It is more readily usable for drinking than that in the Lower, but the Lower water is quite acceptable for agricultural purposes. What confining layer exists between the Upper and Lower Floridan Aquifers is made up of relatively impermeable anhydrides and gypsum. Because of this, there is little likelihood of the highly mineralized water from the Lower Floridan Aquifer rising into the better quality water in the Upper. If, therefore, water for agricultural purposes is drawn from the Lower Floridan Aquifer, with its high transmissivity and narrower cone radius, and if the wells utilized to procure this water are cased down to within the Lower aquifer, there is little chance of a negative impact on the better quality water, used for drinking by the City, within the Upper Floridan and Intermediate Aquifers.
Mr. Hardin, an expert geologist and hydrogeologist testifying for Mr. Harloff, concluded, utilizing certain commonly accepted computer models, that Mr. Harloff's requested additional withdrawals would not have a significant effect on the Verna Wellfield's ability to produce water sufficient for the City's needs. This conclusion was based on 1989 seasonal use figures including an average rate of 21.95 mgd, a maximum rate of 27.04 mgd, and a maximum rate of
29 mgd under a "run time" calculation and the fact that during that period, the City was able to pump at least its permitted quantity from its wells at Verna.
The City and the District do not accept this conclusion as reasonable, however, because, they claim, the withdrawal figures cited are not meter readouts but estimates based on the number of acres farmed and the number of pump operating hours during the period in question. The City's experts contend the data used by Hardin and Prochaska in their opinions is not that which other experts in the field would reasonably rely upon. They do not appear to be unrealistic, however, and, therefore, Mr. Hardin's opinion is accepted as but one factor to be considered. On the other hand, Mr. Anderson, also a Harloff expert hydrogeologist, claims the requested withdrawals would result in only an additional 1.7 foot drawdown in the Upper Floridan Aquifer underlying the Northeast corner of the Verna Well field. To be sure, this is only one small portion of the wellfield in issue.
There has, however, been a continuing history of declining groundwater levels in this area over the past several years. After the 1975 drought, the City started to experience declining water levels at Verna which, because of the reduction in ability to produce water, required a lowering of the pump elements in some wells, and also caused the City to develop an R.O. facility in an effort to reduce dependence on well water.
This drop in capability occurred again during the 1985 drought and this time the City modified the pump motors to shut off prior to cavitation and initiated a schedule of operating times for wells, so that water is drawn from different and geographically separated areas in a sequence designed to allow periodic regeneration of an area's supply. Nevertheless, water supply remains a concern at Verna, and the problems previously experienced continue to occur during periods of drought.
In May 1989, the Verna Wellfield was periodically "unable" to meet it's short term peak demands at times even though all operating wells were pumping. This means that at the times in question, more water was being drawn from the Verna reservoir than could be replaced by pumping activities. It does not mean that the reservoir ran dry and water could not be furnished to the treatment plant. However, this condition is serious and indicative of a more serious shortage in the future unless appropriate safeguards are instituted.
Mr. Balleau, the City's expert in hydrology and hydrogeology, and the District's experts all believe the Verna Wellfield is in trouble. It is operating well beyond its design range and the imposition of additional demands on it would seriously and adversely affect its ability to produce water. This position is supported by the facts and found to be accurate.
There appear to be several options open to the City to contend with the Verna problem potential. These include:
drill deeper wells at Verna to tap the Lower Floridan Aquifer. (This will produce the lower quality water found there and require additional treatment facilities.
construct a linear wellfield along the pipeline from Verna to the treatment facility. (This will require additional permitting to draw the water, high construction and operating costs, and still result in low quality water requiring treatment.
redevelop the downtown wells currently supplying the R.O. facility. (This will require satisfaction of regulatory issues, adversely impact on
the users of the upper aquifers, possibly result in poor water quality and in contamination from nearby landfills.)
develop a new well field southeast of Verna. (This will experience regulatory issues and high construction costs, with an unknown water quality result.)
buy water from Manatee County. (This is expensive, may result in transmission and compatibility problems, and would be only a short term solution.
lower pump assemblies; replace existing pumps and modify the pump circuits. (These are all unreliable,
short term solutions of minimal benefit.)
Mr. Harloff and the City/District disagree on the appropriate amount of water needed for the successful growing of the crops produced by his operations. Both agree, however, that the heaviest demands for water come in the spring growing season including April and May. Tomatoes require the most water. Peppers require nearly as much. This is because the short root systems require a higher water table in the soil to supply needed moisture.
In its analysis of Mr. Harloff's application, the District, referring to tables developed for the purpose of allocation and relating to Harloff's watering history during the period from August 15, 1988 to June 7, 1989, subtracted the fall season recorded application of 20.7 acre-inches from the total 10 month figure of 50.92 acre-inches and concluded he would need 30.22 acre-inches for peppers during the spring, 1989 season. Unless shown to be totally unreasonable, however, (not the case here), the applicant's water need figures should be accepted.
Mr. Harloff's operation constitutes an important part of Manatee County's agricultural economy, and agriculture utilizes 68.9 percent of the land in the county. Agricultural products sold in Manatee County in 1987 were valued at $145,655,000.00, which ranked Manatee County third among all Florida counties in vegetable production. Agriculture is the fourth largest employer in Manatee County, employing an average of 4,692 people per month. Through his farm operation alone, Harloff employes as many as 1,050 people, with 200 employed on a full-time basis. Experts estimate that the loss of the Harloff operation would cause a reduction of between 16 and 18 million dollars in agricultural sales in the county with an additional loss in jobs and income to his suppliers. This estimate is not at all unreasonable.
Florida produces approximately 95 percent of all tomatoes grown in this country for the fresh tomato market during the winter growing season. Tomatoes are the single largest vegetable crop grown in the state and accounted for 39.7 percent of the total value of vegetables produced in Florida during the 1987-1988 growing season. Mr. Harloff produced 4.8 percent of the total shipment of tomatoes from this state during that period. Water, primarily through irrigation, is an indispensable portion of the farming operation for this crop.
Mr. Harloff currently irrigates the majority of his non-citrus crops by use of a "semi-closed ditch irrigation system", as opposed to a "drip system." The drip system is considerably more efficient than the semi-closed system having an efficiency rating, (amount of water actually used by the plants) of between 80 to 90 percent, as opposed to 40 to 60 percent for the other. While Mr. Harloff could reduce his water needs considerably and achieve substantial savings on pump fuel by conversion to a drip system for all or a part of his crops, such an undertaking would be quite costly.
One of the conditions proposed by the District for the approval of Harloff's permit, as amended, is the refurbishment of several of the existing wells utilized by Mr. Harloff to make them more efficient and to promote the withdrawal of water from the Lower Floridan Aquifer, in which there appears to be adequate water and from which the Verna Well field does not draw. Currently, Mr. Harloff has seven wells which do not meet the standards of this proposed condition. They are not drilled to 1,300 feet below mean sea level and are not cased to 600 feet.
To bring these wells into compliance, they would have to be drilled to the 1,300 foot level, or to a level which has a specific capacity of 400 gpm, and the casings in each would have to be extended to 600 feet. Extending the casings would be a complicated procedure and Harloff's experts in the area cannot guarantee the procedure would successfully achieve the desired end. Assuming the retrofit was successful, the cost of the entire process would be approximately $15,000.00 to $16,000.00 per well. In addition, the process would, perforce, require reducing the diameter of the well from 10 to 8 inches, thereby necessitating increasing the pump capacity to produce sufficient water. The cost of this is substantial with an appropriate new pump costing somewhere between $10,000.00 and $15,000.00 each. Consequently, the anticipated cost of bringing the existing wells up to condition standards would be between
$25,000.00 to $31,000.00 per well, while the cost of constructing a new well is between $40,000.00 and $50,000.00 per well. Mr. Harloff feels it would be more prudent for him to replace the existing wells rather than to retrofit them.
This may be correct.
Harloff experts also claim that extending the casings on the existing wells down to 600 feet would not provide a significant benefit to the aquifer nor cause any significant reduction in drawdown impact at Verna. The District and City experts disagree and, taken on balance, caution and the interests of the public indicate that a conservative approach is more appropriate. While Mr. Harloff proposes to convert the areas served by wells 1, 9, 11, and 12 to the growing of citrus which requires much less water than tomatoes, this would not be sufficient mitigation to offset the need for some modification if large amounts of water will still be drawn.
The entire area under the District's jurisdiction has been experiencing a water shortage due to a lack of rainfall. As a result, in June 1989, the District adopted a resolution identifying an area, including the area in question here, as a "water use caution area." This was done because the Floridan Aquifer has been subjected to large seasonable drawdowns of the potientiometric surface, the level to which water in a confined aquifer can rise in a well which penetrates that acquifer. This drawdown is directly related to increased water use in the area, much of which is for agricultural purposes. As a result of the District's action, special conditions on well construction for consumptive use applicants have been imposed on a permit by permit basis to insure, as much as possible, that the applicant uses the lowest quality water appropriate for his intended purpose. These conditions are not unreasonable.
While accepting the District's and City's conclusion that his wells, if permitted, would have some impact on the Verna Wellfield, Mr. Harloff does not concede that the impact is significant. Specifically, the difference in impact resulting from an increase from his currently permitted use of 13.68 mgd seasonal maximum and his requested use of 31.56 mgd seasonal maximum for wells 1, 2, 9, and 10 would be a maximum increased drawdown of 1.1 feet at the Intermediate aquifer and 1.8 feet at the Upper Floridan Aquifer. Both figures relate to that portion of the wellfield found in the northeast corner of Part A. If the anticipated usage for crops predicted by Mr. Harloff's experts for the spring of 1989 is accurate, the drawdown would be 0.2 feet for the intermediate aquifer and 0.4 feet for the Upper Floridan Aquifer measured at the northeast corner of Part B of the Verna We1lfield. Harloff's experts contend that additional impacts for the spring of 1989 included, the increased usage will not have a significant effect on Verna's ability to produce its permitted daily maximum withdrawal of 9.5 mgd. While this is an educated speculation, it should be noted that during May 1989, the Verna field was able to produce up to
8.3 mgd without using all wells during any 24 hour period. This does not consider, however, the problems encountered by the City as indicated by the wellfield personnel, and the fact that some of the City wells are not pumping water.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
Section 373.223, Florida Statutes, sets out the conditions to be met to support the issuance of a permit for the consumptive use of water. In pari materia it states:
To obtain a permit pursuant to the provisions of this Chapter, the applicant must establish the proposed use of water:
is a reasonable-beneficial use as defined in s. 373.019(4);
will not interfere with any presently existing legal use of water; and
is consistent with the public interest.
Of these three criteria, two, that of interference, and that of public interest, are in issue here.
Harloff has requested a permit to withdraw average annual withdrawals of 15.18 mgd, seasonal average withdrawals of 28.16 mgd, and maximum withdrawals of 31.56 mgd for 1991, and the District, with which the City agrees, has proposed a maximum seasonal quantity of 20.1 mgd and an average annual quantity of 11.1 mgd, with conditions. Harloff contends he has shown that his proposed usage increase will not interfere with the City's ability to produce the permitted necessary quantities of water from its Verna Well field since the drawdown impacts at the wellfield would be minimal.
Mr. Harloff relies, inter alia, on his experts whose testimony indicates an untapped existing capacity at Verna to supply the permitted
quantities, and that even if the adverse impacts were realized, the City could, by "minor" adjustments to its operation, "more than compensate for the loss."
On the other hand, the City has shown that it has an existing legal use of water at the Verna Well field that predates Harloff's use and, certainly, his request for the consumptive use permit in issue. It has been drawing water for use by the public from that well for many years and in later years, has experienced a diminishment in the amount of water available, due to increased withdrawal by competing users from the aquifers upon which it relies. Its usage has, however, been within the limits imposed by its permit.
There can be little doubt that Mr. Harloff's existing operation has a definite impact on the aquifer from which the City draws its water and the evidence clearly shows that the expected impact of the requested additional quantity will be in the area of 1.7 feet of additional drawdown for a total of approximately 3.3 feet of drawdown, due to Harloff's activities, in at least a portion of the Verna Wellfield. Whereas Mr. Harloff asserts that this additional drawdown will be "insignificant", there is a serious possibility that its significance will not be as minimal as alleged. Among other matters to be considered is the possibility that the water drawn during the Spring of 1989, upon which some use estimates were based, was for a significantly smaller growing area than actually would be used. If so, planting of the full growing acreage would have an even bigger impact than estimated.
Assuming, arguendo, that the Upper Floridan Aquifer could tolerate higher withdrawal than that recommended by the District to meet its "zero impact" standard, the question remains whether that is a valid standard. The burden to manage water resources for the area has been placed upon the District. While further water might well be drawn without completely depleting the supply, that fact does not necessarily justify the granting of an unconditioned permit which would have an adverse impact upon the supply for the community as a whole. The interest of one consumer does not carry more weight or impact than the interests of the public.
Harloff contends that the evidence shows the City could better manage its wellfield to minimize drawdown impacts of even its own wells and raise well field water levels to compensate for Harloff's impact. This has not been demonstrated by competent evidence and in any case, there is a question as to whether the mitigation obligation is upon the City or the one whose request for more water will impact upon the supply. Clearly, it is the latter.
Taken together, the evidence shows that while Harloff may need more water, and while more water may well be available without permanent damage, providing certain mitigating conditions are met, it is incumbent upon him to comply with these conditions. No doubt Mr. Harloff's farming operations have a substantial impact on the economic well-being of Manatee County and the communities therein. However, the community has an overriding interest in the available of adequate potable water supplies which can be reasonably met only by the inclusion of the water from the Verna Wellfield in its water inventory. Any activity which would have an adverse affect on the community's ability to provide adequate water to it's population at a reasonable cost must be subordinated to the public good.
Here, the District has proposed to allow Mr. Harloff to draw water from the common supply in amounts considered by it to be adequate. It has, as well, imposed certain conditions upon Mr. Harloff's access to that water which, it has been determined, will mitigate the impact of the withdrawal upon the
other users' ability to procure their fair allotment. Based on the evidence presented, it is clear that while the amounts proposed by the District may be conservative and should be expanded, the conditions regarding deepening and casing his wells, so as to bring the water from the more plentiful, lower quality source, are appropriate. If the City is to be charged with a more efficient operation of its wellfield, so must Mr. Harloff take those extra steps to insure that, as much as is possible, his water use is neither excessive nor wasteful; will have a minimal impact on the City and other users; and will be consistent with the public interest.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that Roger Harloff be issued a consumptive use permit, No.
204467.04, as modified, to reflect authorization to draw 15.18 mgd annual average, not to exceed 31.56 mgd seasonal maximum, conditioned upon compliance with the conditions found in the conditions portion of the permit, as modified to conform to the quantities as stated herein, and to include those requirements as to acre-inch and crop-acre limitations, well usage and abandonment schedules, well modification standards, and record keeping, as are contained therein.
RECOMMENDED this 5th day of December, 1989, in Tallahassee, Florida.
ARNOLD H. POLLOCK, Hearing officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1989.
APPENDIX TO RECOMMENDED ORDER IN CASE No. 89-0574
The following constitutes my specific rulings pursuant to s. 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case.
FOR THE PETITIONER: City of Sarasota, joined by the District
1 & 2. Accepted and incorporated herein.
3. Accepted and incorporated herein.
8-12. Accepted and incorporated herein.
13. Accepted and incorporated herein.
14-22. Accepted and incorporated herein. 23-25. Accepted and incorporated herein.
26. Accepted and incorporated herein.
27 & 28. Accepted and incorporated herein. 29-33. Accepted and incorporated herein.
Not a Finding of Fact but a statement of party position.
& 36. Accepted.
37. & 38. Accepted and incorporated herein.
Accepted.
Accepted and incorporated herein.
Not a Finding of Fact but a comment on opponent's satisfaction of its burden of proof.
42-44. Accepted and incorporated herein.
Accepted and incorporated herein.
Rejected as a misstatement of fact. Water service was never interrupted. The deficiency was in the City's inability to keep its wellfield reservoir filled.
47-54. Accepted and incorporated herein.
Accepted and incorporated herein.
Rejected for the reasons outlined in 41. 57-62. Accepted and incorporated herein.
63. Rejected for the reasons outlined in 41. 64-66. Accepted and incorporated herein.
Rejected for the reasons outlined in 41.
Rejected.
& 70. Accepted and incorporated herein.
71. & 72. Accepted and incorporated herein.
73. Accepted and incorporated herein.
74 & 75. Accepted and incorporated herein.
Accepted.
Not a Finding of Fact but a statement of party position.
Rejected.
Accepted.
Irrelevant.
81-84. Rejected.
85. & 86. Accepted and incorporated herein.
87 & 88. Accepted and incorporated herein.
89. Accepted and incorporated herein.
90 & 91. Accepted and incorporated herein.
92. & 93. Accepted and incorporated herein.
FOR THE RESPONDENT: Roger Harloff
1-9. Accepted and incorporated herein. 10-13. Accepted and incorporated herein.
14 & 15. Accepted and incorporated herein. 16-25. Accepted and incorporated herein. 26-28. Accepted and incorporated herein.
29 & 30. Accepted.
Accepted and incorporated herein.
Accepted.
Accepted and incorporated herein.
Not proven.
35 & 36. Accepted and incorporated herein.
37 & 38. Accepted and incorporated herein. 39-41. Accepted and incorporated herein.
42 & 43. Accepted and incorporated herein.
44. Accepted.
45 & 46. Accepted and incorporated herein.
47 & 48. Accepted and incorporated herein.
49. Accepted.
50 & 51. Accepted and incorporated herein.
Accepted.
Accepted.
Accepted.
& 56. Accepted and incorporated herein.
57. Accepted.
58-60. Accepted and incorporated herein.
61 & 62. Accepted and incorporated herein.
Rejected as unproven.
Accepted.
Accepted and incorporated herein.
Accepted.
67-68. Accepted.
Not a Finding of Fact but an interpretation of party po
Accepted.
Rejected.
72 & 73. Accepted.
COPIES FURNISHED:
Edward P. de la Parte, Jr., Esquire de la Parte, Gilbert and
Gramovot, P.A.
705 East Kennedy- Blvd. Tampa, Florida 33602
Edward B. Helvenston, Esquire SWFWMD
2379 Broad Street
Brooksville, Florida 34609-6899
Douglas P. Manson, Esquire Blain & Cone, P.A.
202 Madison Street Tampa, Florida 33602
Peter G. Hubbell Executive Director SWFWMD
2379 Broad Street
Brooksville, Florida 34609-6899
| Issue Date | Proceedings |
|---|---|
| Dec. 05, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 05, 1990 | Agency Final Order | |
| Dec. 05, 1989 | Recommended Order | Water Management District can impose reasonable conditions on Water Use Permit to insure that use will have minimal impact on others consistent with public interest |
