The Issue Whether a consumptive use permit for the quantities of water requested in the application should be granted.
Findings Of Fact Application No. 7500160 requests water to be withdrawn from seven existing wells for the use of a housing development. The use applied for is an average daily withdrawal of 1,105,000 gallons as an existing use for public water supply in Citrus County, Florida. The maximum daily withdrawal sought is 2.752 million gallons per day. Notice of the intended use was published in a newspaper of general circulation, to wit: The Citrus County Chronicle, Inverness, Florida, on November 13 and 20, 1975, pursuant to Section 373.146, Florida Statutes (Petitioner's Composite Exhibit 1). No letters of objection were received by the District concerning the requested use. Jeffrey A. Pohle, Hydrologist of the Southwest Florida Water Management District, testified that he had reviewed the application in the light of Chapter 16J-2.11 which sets forth conditions for a consumptive use permit, and that the application meets the criteria stated therein for the issuance of a permit. He therefore recommended that the permit be granted on the condition that all wells be metered and that records be kept on a monthly basis and submitted quarterly to the District. Correspondence between Mr. Pohle and Mr. Hilger was admitted into evidence as Composite Exhibit 2, whereby the applicant agrees to the proposed condition.
Recommendation It is recommended that Application No. 7500160 submitted by Rolling Oaks Corporation, P. O. Box 1, Beverly Hills, Florida 32661 for a consumptive water use permit be granted in the amount set forth in the application, with the condition that ground water withdrawals be metered, and that monthly records be kept and submitted quarterly to the Data Section of the Southwest Florida Water Management District. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P. O. Box 457 Brooksville, Florida 33512 Rolling Oaks Corporation P. O. Box 1 Beverly Hills, Florida Warren H. Hilger, Esquire Hilger and Ray Engineering Associates, Inc. 137 South Highway 19 Crystal River, Florida 32629 =================================================================
The Issue Whether a permit should be issued for the construct in of a road over a marsh area surrounding Lake Susan in order to realign a clay road known as Hull Road near Clermont, Lake County, Florida.
Findings Of Fact On October 9, 1963, the Southwest Florida Water Management District adopted Resolution No. 63 setting forth a declaration of "The Works of the District". Rule 16J-1.03 was promulgated implementing Chapter 373, Florida Statutes, and was readopted October 5, 1974, and amended December 31, 1974. The Lake Susan area, in question here, is within the "work of the district" because it is included in the area encompassed in Rule 16J-1.03(2), "The Oklawaha River, its natural floodway and tributaries, connecting channels, lakes and canals". Lake Susan and its surrounding marshlands is subject to Rule 16J-1.06, which requires, in part, that an application be made before placing fill materials in the marshlands therein and said rule conditions a permit on whether there will be adverse effects by drainage or inundation or will alter or restrict a watercourse within the flood plain of a 25 year flood on lands not owned by applicant. On November 12, 1968, the Board of County Commissioners of Lake County, Florida, adopted a resolution which stated in part: "BE IT RESOLVED by the Board of County Commissioners of Lake County, Florida, that the cutting and removal of natural vegetation from the shallow areas of our lakes and streams, except as hereinafter provided, be discouraged; and that the Governing Authorities having jurisdiction over such areas be requested to limit the removal and clearing of such vegetation; that only such permits for the disturbance of vegetation be granted for proper access to and from the shoreline of property owners to clear waters retaining as much of the natural vegetation as is possible." This resolution has never been rescinded. Hull Road is a light duty, all weather, improved service, county maintained, dead end, clay road. The road serves residential and agricultural interests as well as lake recreational purposes. Some of the lands the road serves is now being developed by subdivision developers. The Lake County Board of County Commissioners propose to realign Hull Road across the marsh and water section of the southernmost tip of Lake Susan by filling and removing from the flood plain approximately 1.5 acres for a roadway, thereby draining through the culvert some 38 acres. The proposed work requires the construction of an embankment, approximately 66 feet wide and 800 feet long. The road plan is in accordance with the Florida Department of Transportation's criteria for similar roads. No permit was applied for or secured before work began on April 9, 1975 or before a fill of some 400 feet in length and 66 feet in width had been placed. Work was ordered stopped by permittee upon discovery of said activity on April 24, 1975. Applicant had not requested a permit under the belief that the area was not navigable and that therefore no permit was needed. The fill is standing in the condition and state of construction as it was when construction was ordered discontinued on April 24, 1975. The applicant contends that: (1) the present road is hazardous to the travelling public because of two sharp curves thereon, (2) the residents and the agricultural and recreational interests would be better served by a straight road rather than the existing road, (3) one alternative to the proposed realignment was to straighten the existing curve without filling in the marsh, but this alternative was abandoned for the reason that some 14 citrus trees would have to be removed and the county would have to reimburse the property owners for their right of way. A second alternative to the proposed plan which would straighten the hazardous curves would have involved fill of the marsh along the edge of the existing road and would have involved reimbursement to property owners, (4) it is the firm policy of the Board of County Commissioners of Lake County that the county will not buy right of way for county roads and that the county will not use its power of eminent domain to condemn right of way on a road, (5) no harmful effect would be done to the lowlands so long as culverts were part of the construction plans for that portion of the road that would cross the marshlands. The Southwest Florida Water Management District contends that: (1) the applicant county failed to make an application and secure a permit before beginning to fill a marshland area that is within the work district of the permittee board as defined in Rule 16J-1.03, (2) the fill for the proposed road realigning Hull Road across the marsh area will place fill within the mean annual flood plain of a lake and will alter or restrict a watercourse within the flood plain of a 25 year flood on lands not owned, leased or controlled by the applicant, (3) realignment of Hull Road to the marsh and waters of Lake Susan is not a reasonable and beneficial activity and is in violation of both the resolution of Lake County dated November 12, 1968, and the rules of the permittee, i.e., 16J-1.01(3)(4), (4) although an application has now been made for a permit for the proposed road, alternatives to filling said marshland should be explored fully before the Board is requested to waive the rules of the District. It has not been shown that the alternative routes would not better serve the safety interests of the public using the road and be more in keeping with the conservation policies of both the applicant and the permittee. Based on the foregoing it is the finding of the Hearing Officer that (1) the realignment of Hull Road is in conflict with the policy of the county established by resolution on November 12, 1968, (2) the realignment of the road across the waters and marshland of Lake Susan would increase the safety of Hull Road by eliminating two hazardous curves on the roadway in its present condition and location, (3) the alternative route which would straighten the curves without filling in the marshland is more in keeping with the previous resolution of the county and is consistent with the work of the District as promulgated in the cited rules of the permittee. No cost estimate has been made on alternative routes and no traffic studies have been made to determine the average flow of traffic.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner West Coast Regional Water Supply Authority (WCRWSA) was formed in 1974 by inter-local agreement under Chapter 373, Florida Statutes, as a supply entity to provide and develop sources of water for its members and other governmental entities. The members of WCRWSA include the two cities of St. Petersburg and Tampa and the three counties of Pinellas (intervenor herein), Hillsborough and Pasco. The petitioner and the intervenor own and operate permitted well fields which are regulated by the respondent Southwest Florida Water Management District (SWFWMD) and are therefore subject to the rules and regulations of SWFWMD. All parties have stipulated, and the evidence so demonstrates, that the WCRWSA and Pinellas County are substantially affected by the challenged proposed rule and therefore have standing to challenge its validity. The proposed rule being challenged in this proceeding was considered by the Governing Board of SWFWMD as a result of a prior rule being declared invalid in another proceeding. The prior rule, codified as Rule 16J-2.11(3), Florida Administrative Code, provided as follows: 16J-2.11 Conditions for a Consumptive Use Permit Issuance of a permit will be denied if the amount of water consumptively used will exceed the water crop of lands owned, leased or otherwise controlled by the applicant. (Except where determined otherwise, the water crop [precipitation less evapotranspiration] throughout the District will be assumed to be three hundred sixty-five thousand (365,000) gallons per year per acre.) By Final Order dated April 9, 1980, 1/ that rule was declared to be an invalid exercise of delegated legislative authority on the grounds that it exceeded SWFWMD's statutory authority under Chapter 373, Florida Statutes, it impermissibly conflicted with provisions of Chapter 373, Florida Statutes, it created property rights to water by virtue of land ownership contrary to Chapter 373 and the decision in the case of Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d and 663 (Fla. 1979); and it was a hydrologically unsound method of determining the issuance or denial of consumptive use permits and was accordingly arbitrary and capricious in nature. The two subsections of proposed Rule 40D-2.301 being challenged in this proceeding read as follows: "40D-2.301. Conditions for Issuance of Permits. Among other factors to be considered by the Board in determining whether a particular use is consistent with the public interest will be: the maximum amount to be withdrawn of a single day; the average amount to be withdrawn during a single week, during a typical growing (or irrigation) season, during an extreme cold season, during a year of extreme drought an during the term of the proposed permit; the amount to be withdrawn in relationship to amounts being withdrawn from adjacent or nearby properties; the proximity of withdrawal points to location of points of withdrawal by others; the total amounts presently permitted from the entire basin, or other hydrologic unit; and the change in storage that such withdrawal and use will cause. If the proposed consumptive use will average less than 1,000 gallons per acre per day, in the absence of evidence to the contrary, the Board will presume that the quantity of water proposed for consumptive use is consistent with the public interest and the applicant will not be required to submit further evidence on this point. If the proposed consumptive use is to average 1,000 gallons or more per acre per day, the applicant must establish that the proposed use of water in such quantity is consistent with the public interest. (NOTE: Present subsections 6 through 11 will be renumbered consecutively following the above new subsections.) The factors listed in subsection (6) of the proposed rule are not all- inclusive. Each of the factors listed are resource related or hydrological considerations. The effect of each of the factors listed is appropriate for consideration by the Governing Board of SEFWMD when making a determination as to whether a consumptive use permit should be granted. With the exception of that portion of subsection (6) relating to a weekly average amount to be withdrawn, the factors listed in subsection (6) are covered by existing specific rules of SWFWMD. The word "acre" in the phrase "1,000 gallons per acre per day" is intended to mean land owned, leased or otherwise controlled by the applicant. The figure of 1,000 gallons per acre per day represents the average quantity of water which is available within the respondent's District for man's use and to maintain natural systems. The figure is a district wide estimation. It cannot be arbitrarily applied to any specific site within the District due to the fact that different parcels of land do not possess identical geologic or hydrologic characteristics. The amount of water which is available from a specific parcel of land is dependent upon geographical and hydrological factors which vary considerably from site to site. These factors include, among other things, the amount of rainfall the land receives, the water table, the existence of confining layers, soil and vegetation types, and transmissivity, storage and leakage coefficients. Withdrawals of water in small amounts per acre per day are generally less likely to have adverse hydrologic effects on the water resources within the District than are withdrawals in greater amounts. In most areas of the District, 1,000 gallons per acre per day can be withdrawn without jeopardizing or adversely affecting the resource or the availability of water for others. This would not necessarily be true of coastal areas where salt water intrusion is a possibility or in areas where wells presently exist which withdraw large quantities of water on a daily basis. Eighty-nine percent (89%) of the more than 6,000 consumptive use permits which have been issued by the SWFWMD are for amounts less than 1,000 gallons per acre per day.
Other Judicial Opinions A party who is adversely affected by this Summary Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The Notice of Appeal must be filed within the 30 days of rendition of the order to be reviewed.
Findings Of Fact Application 7500137 seeks an average daily withdrawal of 2.4 million gallons of water with maximum daily withdrawal not more than 2.88 million gallons from an existing well in order to process phosphate and reclaim land. This is an existing use for mining operations located southwest of Lakeland, Florida, on land consisting of 1531 acres. Notice was published in a newspaper of general circulation, to wit: The Lakeland Ledger, on November 11 & 18, 1975, pursuant to Section 373.146, Florida Statutes. The application and affidavit of publication were admitted into evidence without objection as Composite Exhibit 1, together with correspondence from James R. Brown, Vice President, Dagus Engineers, Inc., dated November 19, 1975 to the Southwest Florida Water Management District. No objections were received by the Water Management District as to the application. Mr. George Szell, hydrologist of the Water Management District testified that the application met the conditions for a consumptive use permit as set forth in Chapter 16J-2.11, Florida Administrative Code, except that the quantity of water requested to be withdrawn is 41.06 per cent over the maximum average daily withdrawal permitted under the water crop theory as set forth in Section 16J-2.11(3), F.A.C. However, the Water Management District witness recommended waiver of that provision since the mining operations will be concluded in several years and thereafter the water table and hydrologic conditions will return to normal. The Water District staff recommended approval of the application with the condition that a meter be installed on the well and that the applicant be required to take monthly readings thereof and submit quarterly reports of the readings to the District. The applicant's representative agreed to these conditions at the hearing.
Recommendation It is recommended that Application No. 7500137 submitted by Poseidon Mines, Inc., for a consumptive water use permit be granted on the condition that a meter be installed on the applicant's well and that monthly readings be taken and submitted quarterly by the applicant to the Southwest Florida Water Management District. It is further recommended that the Board of Governors of the Southwest Florida Water Management District, pursuant to Rule 16J-2.11(5), for good cause, grant an exception to the provisions of Rule 16J-2.11(3), as being consistent with the public interest. DONE and ENTERED this 19th day of January, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J.T. Ahern, Staff Attorney Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Poseidon Mines, Inc. P.O. Box 5172 Bartow, Florida
Findings Of Fact Application No. 76-00254 seeks a consumptive use water permit for 1.08 million gallons per day average daily withdrawal and 2.16 million gallons per day maximum daily withdrawal from one well. This is a new use. The purpose of the consumptive use is a semi-enclosed irrigation system for the irrigation of tomatoes in south Hillsborough County. The water is to be taken from the Floridan Aquifer with some discharge off site. According to Barbara Boatwright, hydrologist for the district, there is some possibility that salt water intrusion may occur, but the district has never documented it in the subject area. The consumptive use will exceed the water crop as defined by the district because 25 percent of the water used will run off site and thus be lost. Except as otherwise stated above, none of the conditions set forth in Subsection 16J-2.11(2),(3) or (4), F.A.C., will be violated. The Southwest Florida Water Management District's staff recommends issuance of the subject permit in the amounts requested with the following conditions: By January 1, 1978, applicant shall reduce runoff to 8.6 percent of the amount pumped, which reduction will bring the amount pumped within the water crop as defined by the district. That the applicant analyze the quality of the water at the beginning and end of each production season and that these analyses be submitted to the district. That the district be allowed to install flowmeters on any discharge canal and on the pump with proper notification of applicant and to enter on property to read the meters.
Recommendation Noting that, with the conditions requested by the Southwest Florida Water Management District's staff, issuance of the sought for permit appears consistent with the public interest, it is RECOMMENDED that a consumptive use permit be issued pursuant to Application No. 75-00254 with the conditions set forth in paragraph 4. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Terry Elsberry Staff Attorney Elsberry Brothers, Inc. Southwest Florida Water Route 2, Box 70 Management District Ruskin, Florida 33570 Post Office Box 457 Brooksville, Florida 33512
The Issue Whether a consumptive-use permit for quantities of water as applied for should be granted.
Findings Of Fact Applicant applied for a permit for a public supply of water from two (2) wells to accommodate 3,100 family units in Hillsborough County, Florida. Each well to be 500 feet deep and designated as "new use", i.e., a use not existing prior to January 1, 1975. Well "No. 1" would draw 72,000 gallons per day and well "No. 2", 682,000 gallons per day. The center of withdrawal is located at latitude 28 degrees 6' 18" North, longitude 82 degrees 29' 48" West in Hillsborough County, Florida. The applicant lists 802.2 acres as being owned, leased or otherwise controlled by it. Notice was published in a newspaper of general circulation, to-wit: The Tampa Tribune on April 28 and May 5, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were sent by certified mail to Lorenzo Lakes, A Joint Venture, Route 2, Box 737A, Lutz, Florida, and Hillsborough Dairy, Route 1, Box 115, Tampa, Florida A letter was received although it was not designated a letter of objection. The author of said letter is present at this hearing. His name is Mr. John Logan, Water Resources Director, Hillsborough County, Florida. The letter suggests that action on the subject application would be inappropriate at this time inasmuch as a part of the development is to be deeded to Hillsborough County for public roadways. A specific area does not appear to be established but it may exceed 50 acres. Additional acreage may be needed for flood easements for the extension of channel "F", a proposed part of the upper Tampa Bay Watershed Project. No formal letters of objection were received. The following exhibits were introduced without objection: Application for permit Proof of publication Letter from Mr. John Logan The witnesses were duly sworn and agreement by the parties reached on each point to be considered under Chapter 373, Florida Statutes, and the Rules and Regulations promulgated pursuant thereto, particularly Rule 16J-2.11, with the exception that certain conditions were recommended by Mr. George Szell, Hydrologist for the Permittee, and said conditions were agreed to by the Permittee. Mrs. Sally Casper appeared as a member of the public questioning the need for new housing and objecting in essence to Rule 16J-2.11(2)(e) which restricts consideration of lake stages or vegetation to those not controlled by the applicant. Upon the request of the Hearing Officer the parties agreed to enter into a joint order of stipulation and submit said order to the Hearing Officer. Said stipulation was received by the Hearing Officer on July 7, 1975, and is attached hereto and made a part hereof and marked "Supplement to Record".
