Findings Of Fact At all times pertinent to the issues herein, Respondent, Cargill, a Delaware corporation authorized to do business in Florida which owned and operated a phosphate mine near Fort Meade, located in Polk County Florida. Petitioner, Gloria Elder, owns residential property adjoining the Fort Meade Mine on which she maintains an individual water well for domestic and other purposes. The Respondent, District, has the responsibility for regulating the consumption and conservation of ground and surface water within its jurisdictional limits, including the well in question. For a period prior to December, 1990, Cargill had been operating under consumptive use permit No. 202297.04, issued by the District, which provided for average daily withdrawals of 12.0 MGD from wells on its property. In addition to the 12.0 MGD, Cargill also was utilizing an additional 3.3 MGD for mine pit and surficial aquifer dewatering activities which did not have to be reflected in the permit but which were lawful uses. In December, 1990, Cargill submitted its application to renew the existing water use permit with a modification including the 3.3 MGD previously being used but not officially permitted. No additional water would be drawn from the permitted wells as the newly applied for 15.3 MGD was the total of the 12 MGD and 3.3 MGD previously permitted and lawfully used. After reviewing the additional information requested of Cargill pertaining to this application, the District published its Notice of Proposed Agency Action for approval of the permit. The proposed permit authorizes withdrawal of the amount requested in the application, 15.3 MGD, the exact same amount actually withdrawn under the prior permit. As a part of the proposed permit the District imposed two special conditions. These conditions, 12 and 13, require Cargill to conduct its dewatering activities no closer than 1,500 feet to any property boundary, wetlands, or water body that will not be mined or, in the alternative, to mitigate pursuant to conditions 12 and 13 any activities conducted within the 1,500 foot setback. There are no reasonable alternatives to Cargill's request. The mining process in use here utilizes a water wash of gravel-size phosphate ore particles out of accompanying sand and clay. The water used for this purpose is recycled and returned to the washer for reuse. The resulting phosphate ore mix, matrix, is transported with water in slurry form to the refining plant. This system in the standard for phosphate mining in the United States. Once at the plant, the slurry is passed through an amine flotation process where the sand and phosphates are separated. This process requires clean water with a constant Ph balance and temperature which can be retrieved only from deep wells. Even though the permit applied for here calls for an average daily withdrawal of 15.3 MGD, typically the Cargill operation requires about 10.08 MGD from deep wells. This is a relatively standard figure within the industry. Approximately 92 percent of the water used at the site in issue is recycled. However, recycled water is not an acceptable substitute for deep well water because it contains matters which interfere with the ability of the chemical reagents utilized in the process to react with the phosphate rock. Therefore, the quantity sought is necessary and will support a reasonable, complete mining operation at the site. The Cargill operation is accompanied by a strenuous reclamation operation. Land previously mined near the Petitioner's property has been reclaimed, contoured, re-grassed and re-vegetated. This project was completed in 1990. No evidence was introduced showing that Cargill's operation had any adverse effect on the Elders' well. Water samples were taken from that well at the Petitioner's request in May, 1991 in conjunction with the investigation into a previous, unrelated complaint. These samples were submitted to an independent laboratory for analysis which clearly demonstrated that the minerals and other compounds in the water from the Petitioner's well were in amounts well below the detection level for each. Only the iron level appeared elevated, and this might be the result of deterioration of the 18 year old black iron pipe casing in the well. Another possible explanation is the fact that iron is a common compound in that part of the state. In any case, the installation of a water softener would remove the iron, and there is no indication the water would have any unacceptable ecological or environmental impacts in the area either on or off the site. No other residents in the area have complained of water quality problems. Petitioner claims not only that Cargill's operation would demean her water quality but also that its withdrawal will cause a draw down in the water level in her well. This second matter was tested by the District using the McDonald-Haurbaugh MODFLOW model which is well recognized and accepted within the groundwater community. The model was applied to the surficial, intermediate, and upper Floridan aquifers and indicated the draw down at the property boundary would be less than one foot in the surficial aquifer and less than four feet in the intermediate aquifer. The model also showed the draw down at the Petitioner's well would be less than three feet, which is well within the five foot criteria for issuance of a consumptive use permit under the appropriate District rules. This evidence was not contradicted by any evidence of record by Petitioner. All indications are that the water use proposed is both reasonable and beneficial, is consistent with the public interest, and will not interfere with any existing legal use of water.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that WUP Permit No. 202297.05 be renewed as modified to reflect approval of 15.3 MGD average daily withdrawal. Jurisdiction will remain with the Hearing Officer for the limited purpose of evaluating the propriety of an assessment of attorney's fees and costs against the Petitioner and the amount thereof. RECOMMENDED this 29th day of April, 1993, 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 29th day of April, 1993. COPIES FURNISHED: Joseph N. Baron, Esquire 3375-A U.S. Highway 98 South Lakeland, Florida 33803 Rory C. Ryan, Esquire 200 South Orange Avenue Suite 2600 Post office Box 1526 Orlando, Florida 32801 Martin D. Hernandez, Esquire Richard Tschantz, Esquire 2379 Broad Street Brooksville, Florida 34609 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue Whether a consumptive-use permit for quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500043 requested water from one (1) well. The center of withdrawal will be located at Latitude 27 degrees 40' 38" North, Longitude 82 degrees 29' 31" West in Hillsborough County. Said withdrawal is for disposal off-site. This application is for an existing use. Notice was published in a newspaper of general circulation, to-wit: The Tampa Tribune on May 14 and May 21, 1975 pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The application, map of the premises, legal description, receipts of certified mail, copy of the Notice, and affidavit of publication were received without objection and entered into evidence as Exhibit 1. No letters of objection were received. The witness for Permittee was duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes with the exception as enumerated in No. 7. Upon request of the Hearing Officer a Joint Stipulation was filed in which it was agreed that the following conditions to the permit should be attached: "1. That applicant, Carol A. Ranallo, construct two observation wells on the south side of the pit mutually agreeable locations by inserting six (6) inch casings and screens to the depth of at least fifty (50) feet. The casings to be grouted in the bore hole from the bottom of the casing to the top of the ground level. The sites of the observation wells shall be selected by James Hudson of Delta Engineering Company and G. P. Szell within 15 days after issuance of the Consumptive Use Permit. 2. That the applicant or its agents or employees submit monthly readings to the staff of the Southwest Florida Water Management District of the chloride content of the water being withdrawn from the two wells and the level of the water table as read and determined under static conditions."
The Issue Whether a consumptive use permit for the quantities of water requested in the application should be granted.
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 Mr. George Szell was presented by the Southwest Florida Water Management District and sworn as a witness. Mr. Szell was qualified and accepted as an expert hydrogeologist employed by the District. Included within Mr. Szell's responsibilities to the District were evaluations of the subject application. An application for consumptive water use permit has been filed in proper form by Pat Nathe Groves, Inc., and admitted into evidence as Exhibit A. The water source is an existing well located on a 134-acre tract of land in Pasco County within the Withlacoochee Basin, as shown by Exhibit A. The water is to be used for irrigation purposes. The maximum daily withdrawal sought is 720,000 gallons and the average daily withdrawal sought is 130.192 gallons. Proper notice of this proceeding and application have been given to all persons entitled thereto by statute and rule. No objections to the application have been received by the District. The request of 130.192 gallons average daily withdrawal is approximagely 81.96 percent of the maximum average daily withdrawal allowed by the water crop theory set forth in Section 16J-2.11(3), F.A.C. Therefore, the requested withdrawal is not violative of the consumptive use test. Pursuant to Mr. Szell's testimony, none of the matters set forth in Subsections 16J-2.11(2), (3), and (4) exist so as to require the denial of this permit.
The Issue The issue for consideration in this case is whether the Respondent, Hi Hat Cattle and Grove, should be issued water use permit 204387.03, to withdraw groundwater from the wells on its property, and if so, in what amount and under what conditions.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, District, was the state agency responsible for the permitting of consumptive water use within its area of geographical jurisdiction. The Respondent, Hi Hat, is a family owned farming and ranching operation in eastern Sarasota County with water wells on its property. The Intervenor, City of Sarasota, is a municipality in Sarasota County which operates wells in the general area of those operated by Hi Hat, and which has an agreement with Hi Hat for the latter's use of treated wastewater pumped from the city's treatment plant to Hi Hat Ranch. The Petitioner, Wyatt S. Bishop, Jr., is a property owner and resident of Sarasota County whose property is located near the Hi Hat Ranch, and whose potable water is drawn from a well on his property which utilizes both the surficial and intermediate aquifers which are penetrated by the wells on Hi Hat Ranch. Hi Hat Ranch consists of 11,000 acres owned by Hi Hat Cattle and Grove, the family owned business which operates it, and an additional 3,227 acres leased from the City of Sarasota. Agricultural operations, including citrus farming, truck farming, sod farming, and grazing have been conducted on the ranch since the mid 1940's. In February, 1990, Hi Hat applied to the District for a permit to withdraw and use water from some 14 wells located on its property. It requested an annual average of 6,267,000 gallons per day, (gpd), and a peak monthly rate of 32, 668,000 gpd. Upon receipt by the District, the application was assigned a number, (204387.03), and was submitted for evaluation by the District staff for conformity with applicable District rules and policies. When the staff evaluation was completed, the District issued a staff report and proposed staff agency action in which it indicated its intention to issue a permit authorizing water to be drawn from the wells at a rate of 6,570,000 gpd, average annual, a peak monthly rate of 14,300,000 gpd, and a maximum daily rate of 5,210,000 gpd. In conducting its evaluation, the District staff relied upon the District's Basis of Review For Water Use Permit Applications which contains within it the provision for use of a "water use model" in assessing the need and appropriateness of water withdrawal amounts. This model, known as the Blaney- Criddle Model considers numerous factors in the evaluation, including rainfall, soil characteristics, irrigation methods used, and proposed crop types, all in an effort to determine a reasonable estimate of the applicant's supplemental water needs. Hi Hat's application was evaluated primarily by Marie Jackson, a Hydrologist III employed by the District, and an expert in hydrology, who has, over the years, reviewed between 350 and 400 permit applications, of which approximately 90 percent have been for agriculture. She is, therefore, quite familiar with the specifics of agricultural water use needs. Her evaluation of Hi Hat's application was done in the same manner as the others she has done and utilized the same tests, measurements and factors for consideration in arriving at her conclusion. In its application, a renewal with modification sought to increase average annual quantities due to a change in crop plans, Hi Hat indicated that its criteria for water use was based on certain agricultural uses and application rates. These included: low volume under tree spray irrigation of 778 acres of citrus at an application rate of 17.2 inches/year plus one inch/year for frost and freeze protection. open ditch irrigation of 135 acres of sod at an application rate of 30 inches/year. open ditch irrigation of 1,367 acres of improved pasture at an average application rate of 26.6 inches/year. overhead spray irrigation of 1,200 acres of improved pasture at an application rate of 20.3 inches/year. open ditch irrigation of 110 acres of spring peppers at an application rate of 30.0 inches/crop, and open ditch irrigation of 110 acres of fall peppers at an application rate of 45.2 inches/crop. Applicant also stipulated that the peak monthly quantities that it requested would be utilized for pasture, sod and citrus irrigation during the month of May. The proposed maximum quantities were for frost and freeze protection of citrus only. In January, 1989, Hi Hat entered into a contract with the City of Sarasota under which the City was obligated to deliver reclaimed water from its wastewater treatment plant to a "header" located on the ranch which thereafter distributes the water through pipes to "turnouts" located at various high points on the property. From these, the water is then discharged into a system of ridges and furrows for distribution of the water across the needed area. The reclaimed water is used to irrigate approximately 5,403 acres of ranchland. The Contract provides for minimum and maximum amounts of water to be delivered as well as for water quality standards which must be met. In periods of adequate rainfall, when irrigation is not required, any treated wastewater which is not needed is stored in a 185 million gallon holding pond on City property located adjacent to the ranch. When needed, water can be fed into the wastewater distribution system described above from the holding pond. This reclaimed water, whether from the pond or direct from the header, can also be utilized to irrigate citrus crops, but this requires a filter system which has not yet been able to operate properly. Therefore, no reclaimed water has yet to be utilized for citrus irrigation on the ranch. At an average annual flow of 6.2 million gallons per day, the pond has the capacity to hold enough treated water for almost 30 days. Not all wells on Hi Hat Ranch are active wells. Several of the wells are classified as standby wells which are intended to be used only to back up the reclaimed water delivery system and are located, normally, beside the "turnouts." In the event the reclaimed water is not available from the city, the standby wells can be utilized to provide water to the ridge and furrow system used to irrigate pasture land. The standby wells are numbers 1, 6, 7, 11, 13, 14, and 15. Well number 5, also identified as a standby well in the staff report and in the draft permit was mistakenly so identified. The draft permit contains several special conditions which impact on the drawing of water under the terms of the permit. Significant among these is Special Condition 33 which prohibits the withdrawal of water from any of the standby wells unless the reclaimed water supply from the city is interrupted. Special Condition 27 requires the installation of a flow meter on any standby well that becomes active as a result of permanent discontinuance of the reclaimed water supply. With regard to flow meters, Special Condition 22 requires flow meters on all of Hi Hat's wells. Ms. Jackson, however, indicated this was in error and has recommended that the standby wells be deleted from that Special Condition. When that is done, only those wells actively producing water on a regular basis would require the installation of flow meters. In its analysis of the application for permit, the District staff considered several factors pertinent to the impact the well would have on the water supply in the area and its effect on other users. These factors include hydrologic impacts, well condition, the history of water use at the ranch, the reliability of the reclaimed water system and its ability to provide a uniform source, and the city's water reuse policy. Addressing each individually, and starting with the hydrologic impact of the withdrawal of the requested amounts, the District considered the nature of the existing wells and how they are constructed and maintained. The District assumed, because the data regarding the construction of the existing wells was incomplete and insufficient to properly disclose the status of casing on each well, that they were shallow cased. As a result, the calculations incorporating this assumption indicate a situation that would occur in its most aggravated form. The parties agreed that Hi Hat's wells are shallow cased and probably go no deeper than 90 feet. To determine, as much as possible, the projected drawdowns in the surficial and intermediate aquifers that might be expected if Hi Hat withdrew the amounts of water proposed, the District utilized the "MODFLOW" computer model which factors in simultaneous peak withdrawals from all 14 of the wells along with a 90 day no rainfall drought condition. This, too, contributes to a worst case scenario, and the resultant figures are considered to be conservative estimates of the hydrologic impact of the water withdrawal. Notwithstanding, the application of this computer model resulted in the indication that, as to the surficial aquifer, the drawdown at Mr. Bishop's property located approximately one half mile from the ranch border, would be no more than .055 feet. Since normal fluctuations in the surficial aquifer during the course of the year can be as much as 6 feet, the projected drawdown as a result of Hi Hat's withdrawals was considered insignificant. Applying the same assumptions and utilizing the same computer model as it relates to the intermediate aquifer resulted in an indication of a drawdown of no more than 2.3 feet at Mr. Bishop's property. Since annual fluctuation in the intermediate aquifer can range from 15 to 20 feet normally, the District considers that any reduction of less than five feet in the intermediate aquifer is insignificant. The permit held by Hi hat currently allows for the withdrawal of more water than would be withdrawn under the proposed permit as conditioned and is consistent with the proposed reduction in allowable withdrawals. Considering that factor, as well as the prohibition against withdrawals from standby wells as long as reclaimed water is available, the actual impact of the water withdrawals consistent with the proposed permit would be substantially less than the computed prediction which includes production from all wells. Drawdown contours are defined across the entire effected area. One of the levels is a 4 foot contour, and when a computer simulation indicates that the 4 foot contour includes a withdrawal previously or otherwise permitted, the District will generally conduct a cumulative impact analysis. In this case, however, since there was only one golf course well within the area circumscribed by the 4 foot contour line, and since this withdrawal was too small to have effected an evaluation, it was not done. The condition of the wells on the Hi Hat Ranch has some bearing on whether or not the application for additional withdrawal of water should be granted. These wells are almost 30 years old, having been drilled in the 1960's. As a result, there is little information available regarding their construction detail. This is not necessarily unusual for agricultural wells, and there is evidence that there are many similar wells in use within the District. The reason for this is that at the time the wells were drilled, information regarding their depth, casing and other matters were not required to be kept or reported. However, there is no indication the wells are in any way violative of well construction criteria and their use has been authorized continuously since 1977. When he prepared Hi Hat's application, Mr. Turner included much the same information regarding the wells as pertains as to depth and diameter which he had previously submitted in earlier applications and which had been accepted. In each case, casing depths had been reported as unknown. Notwithstanding the information contained in some old well logs relative to only a few of Hi Hat's wells, this information is in no way definitive and it is difficult to describe anything specific with the majority of these wells. Nonetheless, as already found, it is stipulated that most are approximately 90 feet deep. It is reasonable to assume that the existing wells, however, are cased only to a shallow depth, and that in many cases, the existing casings have corroded away, either totally or in part. This can cause an intermixing of water from the separate aquifers, but whether this is in fact happening depends upon factors specific to that particular well. Petitioner did not present any evidence to show that as a result of the condition of Hi Hat's wells, any degradation is occurring in the more potable, surficial aquifer as a result of intermixing with water from the intermediate aquifer on or around the Hi Hat Ranch. In Ms. Jackson's opinion, and there appears to be no evidence to contradict it, the amount of drawdown which would occur as a result of maximum pumping at Hi Hat Ranch would not be sufficient to cause poorer quality water from the Floridan aquifer to percolate upward (upcone) into the better quality water of the two upper aquifers even during drought conditions. By the same token, there is no evidence that drawdown would encourage or permit salt water intrusion. Petitioner attempted to show by the records kept on the various Hi Hat wells that many of them have been abandoned and are no longer operative and should not be allowed to fall within the parameters of this permit. He testified clearly that over the years, the level of water in his potable water well has lowered and presumed that this was the result of increased water usage by other entities which draw from the aquifer into which his well is sunk. Water level, however, depends upon numerous factors, of which usage is only one. Others include recharging of the aquifer and the amount of rainfall and other recharge sources not only in the immediate area but across the large area which feeds the aquifer. Mr. Bishop did not present any evidence showing a causal connection between the lowering of the water in his well, or the degradation in water quality he claims to have experienced, and either the drawdown caused by Hi Hat's operation or by aquifer intermixing. He indicated, and it is not disputed, that within the past year, he has had to take measures to improve the water quality in his potable well, but, again, he has not presented any evidence to show this was caused by Hi Hat's ground water withdrawals. In its long range planning, the District intends to implement a program to rehabilitate old wells, and when that program is implemented, almost every agricultural well within the District may require recasing or redrilling. This program will not be implemented for several years, however. In an effort, however, to insure that all reasonable precautions are taken to see that approval of any petition for withdrawal does not have an unacceptable adverse impact on the water needs of the surrounding community, in its analysis of this application, and in all cases, the District makes certain assumptions when adequate empirical data is not available. In this case, pertaining to the unavailability of information regarding Hi Hat's wells, the District assumed that all wells were shallow cased, and this placed the application in the worst possible light. Shallow cased wells allow more upconing and aquifer intermixing. Nonetheless, the amount of water permitted to Hi Hat, even if not used, could impact on Mr. Bishop and other adjoining owner's use of additional water as a result of a possible change to their permitted quantities. However, to compensate for this, the District has also included a special condition, (#26), which requires Hi Hat to log all 14 of its wells within the term of the permit, (7 years), which will require at least 2 wells be done each year. The cost of that action will be between $800 and $2500 per well. Another condition, (#31), requires Hi Hat to look into any complaint from adjacent property owners regarding adverse impacts due to water withdrawal, to report the results of its inquiry to the District, and to mitigate, as much as possible, all adverse impacts due to its withdrawal. Mr. Bishop claimed, and introduced evidence purporting to demonstrate, that many of the wells on the Hi Hat Ranch, which are covered by the permit applied for here, are no longer in use and have been abandoned. In response, Mr. Turner, who has been actively engaged in the ranch's operations for at least the past four years, indicates from his personal knowledge, that all 14 wells included in the permit applied for have been operated within the past two years, and all are capable of producing water. It is so found. Not all wells, however, have been operated at all times. Crop rotation and a varying need for groundwater has resulted in some wells not being used at some times. This is, of course, commonplace in agriculture and to be expected as a result of crop planning programs. Admittedly, an accurate figure for the amount of water which has been withdrawn from the 14 wells cannot be established because these wells do not have, and were not required to have, flow meters. Two of the wells were fitted with hour meters in January, 1989, but because the capacity of the pumps on those wells is variable, a precise estimate of volume pumped cannot be determined. The meters measured only the number of hours the pumps were in operation and not the amount of water passed through the pumps. Evidence was presented, however, to show that wells have been utilized at the ranch since the 1960's, and in 1977, some 14 years ago, following District implementation of a consumptive water use permit program, the ranch first applied for water withdrawal permits. These permits have been renewed as required and all water usage since the implementation of the program has been permitted. Turning to the reclaimed water supply, the delivery system, incorporating a program to pump reclaimed water from the treatment plant all the way back out to the ranch site, is subject to material failure and operator error, and either one can occur at any number of places along the system route. Each could result in interruption of the delivery of the reclaimed water to the ranch. The system is far more complex than would be the use of on-site wells for delivery of ground water. One two week shutdown in the system was occasioned by a major pipe failure as a result of pressure building up in the pipes. Were it not for the fact that a contractor was already at the ranch with replacement parts on hand to effect expeditious repair of the system, the shutdown could have lasted considerably longer than it did. This is not the only interruption, however. Several main line leaks and valve problems have caused the system to be shut down on several occasions for short periods of time. The filter system required for the water destined for the citrus area is problematical, and so far this area of the ranch has not received any reclaimed water in the 10 months the system has been in operation. Mr. Bishop argues that the wet weather holding pond is a solution to the reliability problems with the pipe line, but the pond has had problems of its own. Sand in the water, which comes from the holding pond, has been the primary difficulty in the filter system for the citrus area, and algae growth in that pond has the potential to create other filter problems. Delivery of the water from the pond is not accomplished by a gravity system, but instead, requires the use of pumps powered by an electric motor. In the event of a power failure, this source would be unavailable. Discounting all of the above, however, and assuming, arguendo, that all systems were in top operating condition, the fact remains that the delivery system from the pond to the distribution system is not adequate to supply the amount of water that would be necessary to have an effective freeze protection program. In any case, the reclaimed water supply is not the panacea for all water shortage problems experienced at Hi Hat Ranch. In the first place, the quality of the reclaimed water is generally lower than that of the groundwater which would come from wells on the ranch. Also, the City's treatment process does not remove from the water all the pollutants that are of concern to the farm operators. For one thing, total dissolved solids in the reclaimed water are considerably higher than in the ground water, and high dissolved solid levels can be harmful to citrus crops. In fact, the Institute of Food and Agricultural Sciences recommends that citrus irrigation water not exceed total dissolved solid ranges of from 1000 to 1500 milligrams per liter, (mpl). Testing done on the reclaimed water delivered to Hi Hat Ranch showed it averaged between 1200 and 1500 mpl. Though within recommended parameters, it was toward the high end. Further, reclaimed water is not totally interchangeable with ground water for all agricultural purposes. It cannot, by law, be applied to certain types of ground crops such as melons, nor can it be used for overhead citrus irrigation. There is also a restriction on the use of reclaimed water for pastures on which dairy cattle will be grazed. This all results in a restriction on the options available to the farmer who chooses to use reclaimed water in his irrigation plan. As a result, many farmers try not to use reclaimed water if they have access to adequate amounts of groundwater from on- site wells. Notwithstanding all the above, the parties agree that the use of reclaimed water for irrigation purposed is in the public interest. The District encourages it but nonetheless concedes that even with the availability of reclaimed water, a farmer should have access to wells on his property, in a standby capacity, as an alternative source of water to support his farming activities. Not only that, the agreement between the City and Hi Hat provides for Hi Hat to maintain its water use permit even while receiving reclaimed water from the City. Hi Hat is not the only farm operation with whom the City has negotiated in a effort to expand its wastewater distribution program. It has found in those negotiations, that most farm producers are not willing to rely totally on reclaimed water for all their irrigation needs, and it has concluded that were it mandatory that a farmer give up his on-site ground water withdrawals in order to utilize reclaimed water for a part of his needs, most would be reluctant to use it at all. This would seriously interfere with the City's ability to dispose of its surplus reclaimed water consistent with its policy. Even though Hi Hat's property lies within the Eastern Tampa Bay Water Use Cautionary Area, the rule pertaining thereto is inapplicable to Hi Hat because Hi Hat filed its application for permit, which was deemed complete, prior to the adoption of the rule. Nonetheless, water use officials agree that the proposed permit is consistent with the rule emphasis on the use and reuse of reclaimed water, and the District does not object to backup wells being permitted as supportive of the District's desire to keep ground water within the ground.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Hi Hat Cattle and Grove be issued water use permit No. 204387.03, within the limits of the authorized quantities as indicated in the intent to issue, subject to conditions contained therein; except that the permit be amended to show well No. 5 as a non-standby well, and to delete standby wells from the terms and requirements of Special Condition 22. RECOMMENDED this 17th day of May, 1991, 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 17th day of May, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted Accepted and incorporated herein. Accepted and incorporated herein. - 6. Accepted and incorporated herein. 7. - 11. Accepted. - 15. Accepted and incorporated herein. Accepted. Accepted. & 19. Accepted and incorporated herein. - 22. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 28. Accepted and incorporated herein. Accepted and incorporated herein. Rejected. She testified that Condition 28 of the permit provides this. Accepted. Accepted. Accepted and incorporated herein. Accepted. & 36. Accepted. Rejected as not supported by the evidence except that the method permitted was the method being used. - 40. Accepted. Ms. Jackson indicated she "assumed" some wells were drilled into the Florida aquifer. Rejected. Accepted as qualified by the comment, "depending on the respective potentiometric heads." - 47. Accepted. Accepted but incomplete. This is because they did not feel it was necessary under the circumstances. - 51. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted and incorporated herein. Accepted. Redundant. - 61. Accepted. - 66. Accepted and incorporated herein. Accepted. More a restatement of testimony than a Finding of Fact Accepted and incorporated herein. & 71. Accepted and incorporated herein. - 74. Accepted. Accepted. First sentence accepted. Second portion rejected since cited case involves active wells versus standby, as here. The comparison made is accepted. The conclusion drawn as to validity is rejected. & 79. Accepted. FOR THE RESPONDENTS AND INTERVENOR: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 6. Accepted and incorporated herein. 7. - 10. Accepted and incorporated herein. 11. - 13. Accepted and incorporated herein. - 17. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. & 23. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Not a Finding of Fact but a comment on the evidence. 27. Accepted. 28. & 29. Accepted and incorporated herein. 30. - 33. Accepted and incorporated herein. 34. - 37. Accepted and incorporated herein. 38. Accepted. 39. Accepted. 40. - 42. Accepted and incorporated herein. Accepted and incorporated herein, & 45. Accepted. 46. & 47. Accepted and incorporated herein. COPIES FURNISHED: Wyatt S. Bishop 5153 Tucumcari Trail Sarasota, Florida 34241 Bram D.E. Canter, Esquire Haben, Culpepper, Dunbar & French, P.A. 306 N. Monroe Street Tallahassee, Florida 32301 Edward B. Helvenston, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Barbara B. Levin, Esquire de la Parte & Gilbert 705 East Kennedy Blvd. Tampa, Florida 33602 Peter G. Hubbell Executive Director SWFWMD 2379 Broad Street Brooksville, Florida 34609-6899
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 Did Respondent, William D. Going, willfully and intentionally violate Florida Statutes and Southwest Florida Water Management District (District) rules regulating well construction? If he did, what corrective action is appropriate?
Findings Of Fact William Going is a licensed water well contractor. He has held License Number 1564 since 2007. Mr. Going is a managing member of Going Irrigation, Inc., and conducts business under that name. Mr. Going constructed four sand point irrigation wells at a residential property in St. Petersburg, Florida. He did not have and had not applied for a Well Construction Permit (WCP). 1 All citations to Florida Statutes are to the 2020 codification unless noted otherwise. 2 The findings are based upon the evidence admitted at the hearing and the stipulations of the parties. Mr. Going did not call or otherwise contact the District to request a WCP. The District operates an online permitting system called the Water Management Information System (WMIS). The District will issue a WCP based upon a telephone call, an application on its website, a faxed application, a mailed application, or a hand-delivered application. The District routinely issues permits within two hours of receiving an application, often within ten minutes to half an hour. The District's application system operates from 7:00 a.m. to 10:00 p.m. It is infrequently offline for a few hours. While quick, the process reviews significant information. It verifies that the well location is sufficiently distant from septic systems, verifies construction methods and materials, and verifies, if the well is for drinking water, that the well is not too close to a contamination site. Mr. Going is a registered and experienced user of WMIS. The District learned of the unpermitted wells on April 28, 2020, when it received an anonymous complaint. On May 5, 2020, approximately ten days after he constructed the wells, Mr. Going submitted WCP Application 889173 for construction of the four already completed sand point irrigation wells. He did not disclose that they were already completed. He falsely represented them as proposed. The District approved the application on May 6, 2020, and issued WCP 889173 to Mr. Going. On June 11, 2020, Mr. Going submitted four Well Completion Reports for the wells, falsely representing that each was completed on May 7, 2020. This was more than 30 days after Mr. Going completed the wells. Mr. Going claimed at the hearing that he tried to apply for a WCP for four or five days before constructing the wells but was locked out of the WMIS. Mr. Going said that his son usually obtained permits online for the company. He also claimed that he tried to apply online on April 24 and 25, 2019. His claims are not persuasive. There is no question that Mr. Going knew the requirements for obtaining a permit and reporting completion. In 2009, in Order No. SWF 09- 017, the District imposed a $500.00 fine and assessed five points against his license for an almost identical offense. In that case, Mr. Going also constructed a well without a permit from the District or applying for a permit. In that case, like this one, he sought to excuse failure to apply for a permit by claiming difficulties with the website. In that case he blamed his wife's unfamiliarity with computers, rather than his own, for failure to apply. In that case, like this one, he applied for and obtained a permit after constructing the well. Mr. Going knowingly and willfully constructed four unpermitted wells, filed a WCP application more than thirty days after he completed the wells, and misrepresented the dates of completion in the WCP completion reports that he filed with the District. Mr. Going tries to characterize his after-the-fact misrepresentations as mitigation. But they were not. Mitigation would have been contacting the District to advise it of the wells' unpermitted construction and the asserted justification for it. Furthermore, his misrepresentations deprived the District of the chance to prevent construction of the wells using improper materials or near a septic tank or contaminated location.
Findings Of Fact Application No. 75-00196 is a request by the Standard Sand and Silica Company, for a consumptive water use permit. This application is for an existing use involving withdrawal from one well. The application seeks an average daily withdrawal of 1.6925 million gallons per day and a maximum daily withdrawal of 2.16 million gallons per day. The sought-for withdrawal will not exceed the water crop as defined by the district, with the withdrawal consumptively using only 35 percent of the water crop. The water will be used on site for the washing of sand. Mr. Clifton W. Golden is an adjacent landowner who testified that he was afraid of salt water intrusion and that a sink hole might develop because of the vast quantities of water taken from the aquifer by the applicant. He does not feel that the issuance of a permit would be consistent with the public interest. He presented no hydrological data showing that issuance of the permit would adversely affect his property. Mary Fausteen Thompson is a property owner adjacent to the site from which the water will be taken. She has had problems in the past with Standard Sand and Silica Company apparently discharging excess water on to her property. She thinks those problems may be occurring again, causing some of her property to be flooded. The sought-for consumptive use will not significantly induce salt water intrusion. Except as otherwise noted in the findings of fact, none of the conditions set forth in Subsection 16J-2.11(2), (3) or (4), F.A.C., will be violated. Several letters of objections have been received in addition to the objectors noted above. The Southwest Florida Water Management District's staff recommends issuance of the subject permit in the amounts requested with the following conditions: That no off-site runoff be permitted by the applicant. That flowmeters be placed on the well and quarterly reports made to the district.
Recommendation It is hereby RECOMMENDED that Application No. 75-00196 be granted with the conditions set forth in paragraph 7 above. ENTERED this 28th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Eugene W. Harris Standard Sand and Silica Co. P.O. Box 35 Davenport, Florida 33837 Mrs. Mary Fausteen Thompson Box 82-C, Evans Road Polk City, Florida Mr. Clifton W. Golden 800 Oriole Drive Virginia Beach, Florida 23451 Mr. John C. Jones Executive Director Florida Wildlife Federation 4080 North Haverhill Road West Palm Beach, Florida 33407
The Issue Whether a consumptive-use permit for the quantities of water applied for should be granted.
Findings Of Fact Applicant, by Application No. 7500025, applied for a consumptive-use permit for an average daily withdrawal of 138,000 gallons of water from one (1) well penetrating the Florida Acquifer. This is an existing use. Exhibits were entered without objection, as follows: Original application with attachments, marked "Exhibit 1". Proof of Publication, marked "Exhibit 2". There were no written objections. The witness for permittee, George Szell, Hydrologist, was questioned at length by the staff attorney on issues to be resolved under Chapter 373, Florida Statutes, and the Rules and Regulations promulgated thereunder by the Southwest Florida Water Management District, and particularly Rule 16J-2.11, Conditions for a Consumptive-Use Permit. A typed transcript of the testimony has been examined and made a part of the record for this hearing. The witness for the Board, Mr. Szell, objected to the granting of the permit on the grounds that the water crop was exceeded by 3.24 percent. Upon request of the Hearing Officer, the parties agreed to consider their differences and file a joint stipulation enumerating conditions upon which the parties agree. A joint stipulation signed by both parties was filed with the Division is marked "Supplement to the Record" and made a part of this recommended order. Mr. Szell recommended that the permit be granted consistent with the conditions in six (6) above.
