The Issue The issue is whether Respondent's water use permit should be revoked for nonuse of the permit for a period of two years or more.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background The District is a state agency charged with the responsibility of issuing water use permits under Chapter 373, Florida Statutes, and Florida Administrative Code Chapter 40B- 2 for the geographic area under its statutory jurisdiction. Alachua County is within that geographic jurisdiction. Respondent is a Florida corporation with offices at 700 Northwest Cheeota Avenue, High Springs, in northern Alachua County. It owns approximately 700 acres in High Springs (west of Interstate Highway 75) on which it operates a church retreat and summer camping and recreational facility known as Camp Kulaqua. The property surrounds, and is contiguous to, Hornsby Spring, a first-order magnitude spring (having a flow rate of 100 CFS or greater) which, under normal conditions, discharges into the nearby Santa Fe River. Hornsby Spring is one of 296 documented springs within the District's jurisdiction. After receiving an overture from a representative of a private water bottling company, on September 28, 1999, Respondent filed an application for a General Water Use Permit in Township 7 South, Range 17 East, Section 26, in High Springs. In its application, Respondent represented that it desired a daily allocation of 2,000,000 gallons; that it intended to install two 12-inch wells, each having a capacity of 1,400 gallons per minute, just east of, and upgradient from, Hornsby Spring; and that all water withdrawals would be used in conjunction with a privately-owned commercial spring water bottling facility to be located on its property. The application also represented that the facility would employ 36 persons and operate 168 hours per week. The application was reviewed by a former District hydrogeologist, William H. Kirk. During the review process, and in response to Mr. Kirk's request for more information, Respondent provided a comparison of the requested allocation with the overall flow of Hornsby Spring. This was because Mr. Kirk was concerned that the requested allocation was "a bit high," and he wanted to ensure that the issuance of the permit would not cause harm to, or adversely affect, the water resources. Under a professional guideline that Mr. Kirk used, if the applicant could show that the cumulative amount being withdrawn was to be less than ten percent of what the available data showed to be the mean spring flow, the District would consider it to be "an acceptable impact." Notwithstanding Mr. Kirk's use of this guideline, the District points out that there is no District rule or policy sanctioning the ten percent rule, and at hearing it denied that this standard is used by the District in assessing water use applications. Further, the Permit itself does not refer to a relationship between spring flow and the size of the allocation. Even so, this analysis was considered by Mr. Kirk in determining whether Respondent had given reasonable assurance that the spring would not be impacted. In its response to the request for additional information, Respondent reduced its requested allocation to 750,000 gallons per day and indicated that if a bottling plant were to be constructed on its property, approximately 700,000 gallons of the total allocation would be consumed in "bulk transfer and bottling," with the remainder for camp use. More specifically, Respondent indicated that it would allocate 490,000 gallons per day for bulk transport, 210,000 gallons per day for spring bottling water, and 50,000 gallons per day for incidental uses at its property. By reducing the allocation from 2,000,000 gallons per day to 750,000 gallons per day, Respondent's requested average daily allocation represented only 0.4 percent of the average daily spring flow as measured over the last 28 years. The reduced allocation satisfied Mr. Kirk's concern that Respondent demonstrate a reasonable demand and a reasonable need for that allocation, and he recommended approval of the application.2 On February 25, 2000, the District approved the application and issued Water Use Permit No. 2-99-00130 (Permit).3 The Permit authorizes an average daily withdrawal of 0.7500 million gallons per day (750,000 gallons per day) or a maximum daily withdrawal and use of 0.7500 million gallons per day with an annual allocation not to exceed 273.750 million gallons (273,750,000 gallons) per calendar year in conjunction with the operation of a privately-owned water bottling plant. The Permit expires on February 25, 2020. After the Permit was issued, under the regulatory process in place, Respondent was required first to obtain a permit for a temporary test well which would be used to collect information concerning the site of the proposed activity, and to then file an application for permits authorizing the construction and operation of the two 12-inch production wells. The Permit contains a number of conditions, two of which require a brief comment. First, Condition No. 2 provides that "[t]his permit is classified as unconfined [F]loridan aquifer for privately owned bottled water plant." This means that all water withdrawals must be made from the unconfined Floridan aquifer, as opposed to the spring head of Hornsby Spring. (Respondent's proposed siting of its two production wells 660 yards east of the spring is consistent with this provision.) Second, Condition No. 4 provides that "[t]he permittee shall submit daily pumpage records on a monthly basis to the [District]." Pumpage reports are filed by permittees so that the District can determine whether the permit is actually being used, and if so, to ensure that the amount of water being withdrawn under the permit does not exceed the authorized allocation. As it turned out, pumpage reports were never filed by Respondent. (However, the record shows that the District has never strictly enforced this requirement for any permittee.) In late 2002, the District staff undertook a review of the nine water bottling permit holders within its jurisdiction, including Respondent. That category of permit holders was selected for review because of the small number of permits and the limited resources of the District staff. (In all, the District has probably issued several thousand permits to other types of users.) On February 4, 2003, the District served its Complaint under the authority of Sections 120.60 and 373.243, Florida Statutes, and Florida Administrative Code Rule 40B-2.341. As grounds for revoking the permit, the District alleged that there was "non-use of the water supply allowed by the permit for a period of two (2) years or more." Although Respondent contends that it should have been given an opportunity to correct the nonuse allegation before the Complaint was issued, nothing in the Administrative Procedure Act or District rules requires that this be done. Until the issuance of the Complaint against Respondent in early 2003, and similar Complaints against eight other permit holders at the same time, the District had never invoked this statutory provision.4 There is no evidence to support Respondent's contention that the Complaints were issued for "purely political reasons." On March 4, 2003, Respondent requested a formal hearing challenging the District's proposed action. In the parties' Pre-Hearing Stipulation, the issues have been broadly described as follows: whether Section 373.243(4), Florida Statutes, is to be strictly or liberally construed; whether Respondent's nonuse is based upon extreme hardship for reasons beyond its control; and whether the District is equitably estopped from permit revocation. (According to the District, even if the Permit is revoked, such revocation is without prejudice to Respondent reapplying for, and receiving, another permit so long as it meets all applicable requirements.) Equitable Estoppel Respondent first contends that the District is estopped from revoking its Permit on the theory that, under the circumstances here, the doctrine of equitable estoppel applies. For that doctrine to apply, however, Respondent must show that the District made a representation as to a material fact that is contrary to a later asserted position; that Respondent relied upon that representation; and that the District then changed its position in a manner that was detrimental to Respondent. See, e.g., Salz v. Dep't of Admin., Div. of Retirement, 432 So. 2d 1376, 1378 (Fla. 3d DCA 1983). The District issued Respondent's Permit on the condition that Respondent operate in conformity with all pertinent statutes and regulations. This finding is consistent with language on the face of the Permit, which states that the Permit "may be permanently or temporarily revoked, in whole or in part, for the violation of the conditions of the permit or for the violation of any provision of the Water Resources Act and regulations thereunder." Respondent relied on the District's representation that it could use the Permit so long as it complied with all statutes and regulations. In reliance on that representation, in addition to staff time, after its Permit was issued, Respondent expended "somewhere around" $70,000.00 to $74,000.00 for conducting water quality testing; sending cave divers underground to ascertain the correct location of the portion of the aquifer on which to place its production wells; drilling a 6-inch test well in August 2000; obtaining the City of High Springs' approval in March 2000 for industrial zoning on a 10-acre tract of land on which to site a "water plant"; and engaging the services of a professional who assisted Respondent in "seeking out businesses and getting the right qualifications of the spring water to make sure that it was a marketable water." The District has never asserted anything different from its original position: that if Petitioner complied with all statutes and rules, it could continue to lawfully make water withdrawals under its Permit. The issuance of the Complaint did not represent a change in the District's position. Because a change in position in a manner that was detrimental to Respondent did not occur, the necessary elements to invoke the doctrine of equitable estoppel are not present. Was the Permit Used? A preliminary review by District staff indicated that Respondent had never filed the daily pumpage reports on a monthly basis and had never requested permits authorizing the construction of the two 12-inch production wells. These preliminary observations were confirmed at final hearing, along with the fact that Respondent has never entered into an agreement with a water bottling company (although draft agreements were once prepared); that Respondent has never constructed a water bottling facility; and that no operations were ever conducted under the Permit. Therefore, the evidence supports a finding that Respondent did not use its Permit for the two-year period after it was issued, as alleged in the Complaint. Respondent's contention that the evidence fails to support this finding belies the evidence of record. In an effort to show that it actually used the Permit, Respondent points out that in August 2000 it applied for, and received a permit to construct, an unmetered 6-inch test well in association with its General Water Use Permit. (Respondent sometimes erroneously refers to the test well as a test production well. This is incorrect as the well is a test well, and not a production well.) After the test well was installed, at some point Respondent says it began withdrawing approximately 50,000 gallons per day of water from that well for incidental uses associated with the operation of Camp Kulaqua.5 These withdrawals were made on the assumption that the test well permit fell under the broad umbrella of the General Water Use Permit. (Respondent also has a permitted 6- inch diameter well and an unregulated 4-inch well on its premises, both of which are used for water supply needs at Camp Kulaqua.) It is true, as Respondent asserts, that its Permit authorized incidental withdrawals of up to 50,000 gallons per day for unspecified uses at Camp Kulaqua. However, these withdrawals are authorized under the General Water Use Permit and not the test well permit. The two permits are separate and distinct. On the one hand, a test well is intended to be temporary in nature and used only for the purpose of test well development and collecting information regarding the height of the aquifer and water quality at the site of the proposed activity. Conversely, withdrawals for any other purpose, even incidental, must be made from the production wells, which are only authorized by the General Water Use Permit. Before a test well can be used for normal consumptive purposes, the permit holder must seek a modification of the permit to include it as a part of its general water use permit. Here, no such modification was sought by Respondent, and no authorization was given by the District. Therefore, Respondent's incidental water uses associated with its test well cannot be counted as "uses" for the purpose of complying with the use requirement in Section 373.243(4), Florida Statutes. In light of the District's credible assertion to the contrary, Respondent's contention that it is common practice to lawfully withdraw water from a test well for incidental consumptive purposes has been rejected. (It is noted, however, that the District has not charged Respondent with violating the terms of its test well permit.) Extreme Hardship Under Section 373.243, Florida Statutes (which was enacted in 1972), the District is authorized to revoke a water use permit "for nonuse of the water supply allowed by the permit for a period of 2 years." However, if the user "can prove that his or her nonuse was due to extreme hardship caused by factors beyond the user's control," revocation of the permit is not warranted. The phrase "extreme hardship caused by factors beyond the user's control" is not defined by statute or rule. In the context of this case, however, the District considers an extreme hardship to occur under two scenarios. First, if the aquifer level has dropped so low due to drought conditions that a permit holder cannot access the water through its well, its nonuse is excusable. Alternatively, if an emergency order has been issued by the District directing permit holders (including Respondent) to stop pumping due to certain conditions, an extreme hardship has occurred. (Presumably, a severe water shortage would precipitate such an order.) In this case, the District issued a water shortage advisory, but not an emergency order, due to a "severe drought," indicating that users could still pump water, but were encouraged to voluntarily reduce their usage. This advisory remained in effect from the summer of 1998 until the spring of 2003, when a severe drought ended. However, no emergency order was ever issued by the District. Respondent contends that its nonuse was due to an extreme hardship caused by factors beyond its control. More specifically, it argues that a severe drought occurred in Alachua County during the years 1998-2003, and that under these conditions, federal regulations prevented it from withdrawing water for bottling purposes, which was the primary purpose for securing a permit. Further, even if it had withdrawn water during these drought conditions, such withdrawals could have adversely impacted Hornsby Spring and constituted a violation of a District requirement that water resources not be adversely impacted. Because an investment of several hundred thousand dollars was required to drill and install the two production wells, Respondent contends it was not financially prudent to make that type of investment and begin operations until normal spring conditions returned. These contentions are discussed in greater detail below. Around September 7, 1999, a representative of a water bottling company first approached Respondent about the possibility of the two jointly operating a water bottling plant and/or transporting water in bulk from Respondent's property. Prompted by this interest, less than three weeks later Respondent filed its application for a water use permit (although at that time it did not mention on the application that off-site bulk transfers would occur), and a permit was eventually issued in February 2000. Later, and through a professional firm it employed, Respondent had discussions with representatives of several bottling companies, including Great Springs Waters of America (Great Springs) and Perrier Group of America. Apparently, these more serious discussions with a potential suitor did not take place until either late 2000 or the spring of 2001. Periodic measurements taken by District staff at Hornsby Spring reflected natural drought conditions from April 2000 to April 2003. As noted earlier, this was the product of a "severe drought" which took place between the summer of 1998 and the spring of 2003; the drought was one of a magnitude that occurs only once in every 50 to 100 years. During the years 2000 through 2002, the spring had zero flow or was barely flowing much of the time.6 Had Respondent pumped water during 20 out of the 24 months after the Permit was issued, it could have potentially violated the requirement that it not harm Hornsby Spring. This fact is acknowleged by a District witness who agreed that if the "spring is not flowing, . . . [pumping] would have an [adverse] impact." Even as late as October 2003, the spring had tannic discoloration caused by the lengthy drought conditions. The parties agree, however, that there is no water shortage in the District at the present time. To illustrate the difficulty that it experienced in obtaining a joint venture partner for water bottling purposes, Respondent established that in the spring of 2001, a Great Springs representative visited the site when the spring was "barely flowing." For obvious reasons, Respondent could not "bring a party there who would want to enter into a business [agreement]" under those conditions. These same conditions remained in effect during most of the two year period. The District points out, however, that even though the spring was low or barely flowing, so long as the aquifer itself was not too low, Respondent could still withdraw water from the aquifer, since Condition 2 of the Permit authorizes withdrawals from the aquifer, and not the spring. The reason for this apparent anomaly is that when a spring ceases to flow, the aquifer has simply dropped below the level of the spring vent; even under these circumstances, however, there may still be a substantial quantity of water in the aquifer available for pumping. Assuming that it could still lawfully pump water when the spring was dry or barely flowing without causing adverse impacts to the spring, Respondent was still subject to federal regulations which govern the bottling of spring water. See Title 21, Part 165, C.F.R. For spring water to be marketed as bottled "spring water," 21 C.F.R. § 165.119(2)(vi) requires that the water "be collected only at the spring or through a bore hole tapping the underground formation feeding the spring." This means that the bore hole had to be physically connected with the cave system feeding Hornsby Spring or produce water of the same quality as that discharging from the spring. The regulation goes on to provide that "[i]f spring water is collected with the use of an external force [such as by a pump], water must continue to flow naturally to the surface of the earth through the spring's natural orifice." While this regulation obviously does not prohibit Respondent from pumping water, since that authority lies within the District's exclusive jurisdiction, it does provide that in order to use spring water for bottling purposes, the water must continue to flow naturally from the aquifer to the spring. If it does not, the water cannot be used for this purpose. Because Hornsby Spring had zero flow for parts of 2001 and 2002, and severely reduced flows during most of the other time during the two-year period ending February 2002, Respondent was effectively prevented by the foregoing regulation from using the water for bottling purposes. Therefore, Respondent's nonuse was due to extreme hardship caused by factors beyond its control -- a severe drought lasting throughout the two-year period after the Permit was issued, and federal regulations which prevented it from using water for the purpose for which the Permit was issued. Thus, the nonuse is excusable.
The Issue The issue for consideration herein is whether Sarasota County Utilities should be issued a consumptive use permit to draw water from the 14 wells in issue here located in Sarasota County.
Findings Of Fact At all times pertinent to the issues herein, the Respondent, District, was the state agency responsible for themanagement of water resources within its area of geographical jurisdiction. Included therein was the responsibility for the permitting of consumptive water use. The Respondent, Sarasota County, is a political subdivision of the State of Florida and operates a public utilities division which is charged with meeting, among other things, the potable water needs of the residents of the County. Petitioners Wyatt S. Bishop and Joan Jones are both residents of Sarasota County and both draw their potable water from wells which utilize the aquifers pertinent to the wells for which the permit in issue here relate. Mr. Bishop lives approximately 7.5 miles north of the Carlton Reserve, the property on which the wells in issue are located, and Ms. Jones lives approximately 7 miles from the Reserve, but in a different direction. Sarasota County filed an application for a consumptive use permit with the District on January 28, 1987 requesting an average daily withdrawal of 10.71 million gallons per day, (mgd), and a peak monthly withdrawal of 15.55 mgd. This application, assigned number 208836.00, was, over the next three years, amended by the County four separate times. These amendments reflected revised water demand determinations and were submitted to provide additional information requested by the District. The District issued a preliminary staff report and proposed intent on March 26, 1991 reflecting an approved withdrawal in the amount of 7.28 mgd average daily withdrawal and 11.1 mgd peak monthly withdrawal. These figures were revised, however, byan amendment by the District on July 8, 1991, and as amended, authorize 7.303 mgd average daily withdrawal and 9.625 mgd peak monthly withdrawal. The County's application was reviewed by an experienced hydrologist in the District office with extensive permit review experience who utilized, in his evaluation of the permit, the pertinent District rules and policies. By way of background, to more easily understand the circumstances here, Sarasota entered into a contract with Manatee County in 1973 which called for the latter to provide up to 10 mgd of water for a period of 40 years, up to and including the year 2013. However, in 1979, Manatee County's utilities director advised Sarasota County that it, Sarasota County, could not continue to rely on Manatee County's water after the expiration of the current contract, and would, therefore, have to become self sufficient in water. Since the MacArthur tract, now known as the Carlton Reserve, had just recently been identified by, inter alia, the United States Geological Service as a potential long term water source for Sarasota County, after Manatee County advised Sarasota County of its future expectations, Sarasota County and the Manasota Basin Board hired a consulting firm to conduct hydrological testing on the Carlton Reserve. This study concluded that the Reserve had sufficient water resources to satisfy the needs of the unincorporated areas of Sarasota County for an extended time into the future. In 1985, because of its increased water needs and thetime necessary to complete required studies on the utilization of the Myakka River, a surface water resource, Sarasota County concluded that it was suffering a water supply shortage and entered into a supplemental contract with Manatee County to provide 2 million gallons of water per day over a 5 year period which would expire in 1990. Sarasota County had not, however, been idle with regard to the investigation of other water resources. Studies done included not only the Myakka River mentioned above but a reservoir owned by the City of Bradenton, and the Peace River. Nonetheless, it was determined that the Carlton Reserve was the best source available overall, and in 1987, the County filed the application in issue here. The permit was under consideration for approximately 3 1/2 years before the initial decision by the District to grant it. During that time the County experienced a significant deficiency in its water sources and found it necessary, on February 5, 1991, to enter into another contract with Manatee County to supply an addition 5 mgd. Terms of that contract clearly indicate the expectations of both parties that Sarasota County will take reasonable steps to develop its own water resources. It is not as though Sarasota County sat quietly in the interim, however, and allowed the situation to develop. A building moratorium to halt additional construction was proposed and as a result, economic forces in the County indicated a potential loss of jobs to County residents. None of this would be desirable from an economicstandpoint. In the course of the permit application process, 12 test wells were sunk to conduct aquifer pump tests; to assess water quality, amounts and availability, aquifer characteristics and drawdown; and to determine the impact of withdrawal on water quality. Eight of these 12 wells are located on the Carlton Reserve. The other 4 are located on property owned by the MacArthur Foundation which is contiguous to the Carlton Reserve property and from which Sarasota has a right by easement to draw water. The 2 wells yet to be constructed will be on Sarasota County property. Sarasota County currently receives 10 mgd of water under its contract with Manatee County; an additional 5 mgd under the February 5, 1991 contract; 2 mgd from the University wellfield, (with a peak withdrawal rate of 3 mgd); and .9 mgd from the Sorrento wellfield, (with a peak withdrawal rate of 1.1 mgd). This latter source is only producing currently .6 mgd of potable water due to constraints imposed by the water treatment requirements. Taken together, the current Sarasota County supply constitutes 18.6 mgd. The above does not take into account the County's agreement with the City of Sarasota calling for the purchase of up to 2 mgd. Since this source is not reliable, it is not included in the total, and the City is not considered an available water source. In addition, the District and Sarasota County stipulated on July 15, 1991 that within 30 days, the County would apply tophase out routine water production from the Sorrento wellfield, relying on it only in emergency situations with District consent. For this reason, it, too, is not considered an available water supply source. These currently existing sources, with modifications as described, will be the primary sources of potable water provided to 6 major service areas in Sarasota County when the County's water treatment plant and transmission system are complete in 1993. In attempting to define the County's future water requirements, two major criteria were considered. The first was the County's historical water demand, and the second, modifying it, relates to the demand arising as a result of new water users being added to the system as a result of the County's capital improvements and acquisition program. Water resources are not unlimited. Current resources come primarily from Manatee County and there are constraints on this supply as it is made available to Sarasota County. For example, the 10 mgd contract expires in 2013. The 5 mgd contract expires in 2001. Though the latter is subject to renewal, renewal is contingent upon the availability of water supply at that time, and that is not a sure thing. It can, therefore, readily be seen that 15 out of the 18.6 mgd routinely available now comes from Manatee County, and those sources are not perpetual. In addition, it is conceivable that Manatee County may pre-blend the water it delivers to Sarasota County with water of lesser quality, so that the delivered water may exceed the total dissolved solids standard of 500 ppm for potable water. If thewater from Manatee County were reduced to that quality, the University wellfield supply, which currently exceeds standards itself, and which relies on blending with better quality Manatee County water to be potable, would also be removed as a source of potable water to Sarasota County. In order to comply with the provisions of Section 373.171, Florida Statutes, which requires the District to regulate the use of water by apportionment, limitation, or rotating uses, to obtain the most beneficial use of water resources and to protect the public health, safety and welfare, the District analyzed the available water sources and determined that Sarasota County relies upon its 10 mgd supply from Manatee County and the 2 mgd supply from University wellfield to constitute 12 mgd usable water. The 5 mgd from Manatee County would be used only in an emergency situation, and the Sorrento wellfield would be abandoned. Future water demands must be predicted relying in great part upon an historic record of prior water use. Utilizing a statistical procedure called linear regression, a methodology accepted by the District, indicated a water demand figure for the period from 1992 to 1997 based upon six use points extending from 1985 to 1990. These use records reflected a low of 9.733 mgd and a high of 12.808 mgd, the former being in 1985 and the latter in 1990. In addition, the County estimated that its capital improvement program would add between 10 and 12 thousand customers who presently use private wells, whose water use would constitute approximately 2 mgd of additional demand. The County's program toacquire some 42 private franchises now serving customers would add an additional demand of 2 mgd. Taken together, these programs would add in approximately 1.8 mgd per year to the need assessment, and it would therefore appear that by 1997, the County's average daily demand, considering all new users, would be 17.84 mgd. The water to be drawn from the Carlton Reserve is not currently potable and will require some form of treatment to render it so. Sarasota County proposes to use the Electrodialysis Reversal process, (EDR), because, in the County's judgement, it is more efficient than others such as reverse osmosis and ion exchange. Whereas EDR is rated at up to 85% efficient, the others range between 50% to 75% efficient. In that regard, in order to determine the maximum amount of water to be drawn, providing a safety factor for a treatment plant operation that is not working up to peak capacity in computing the water needs, the EDR process was determined to be no more than 80% efficient. Factoring in that efficiency potential, when the 1997 average daily demand is subtracted from the County's projected water capacity, the withdrawal need in 1997 is determined to be 7.303 mgd. However, as a part of its permitting process, the County also calculated its peak month daily demand. This is a figure which represents the maximum amount permitted to be drawn on a daily basis during the peak demand period. This peak period was determined under Section b 3.2 of the District's Basis of Review by taking the 1989 daily flow and using a sliding 31 day calendar to determine the highest historical 31 day flow. Thisresulted in a peak month coefficient of 6.16 which was then multiplied by the 1997 average daily demand of 17.842 mgd which resulted in a peak month daily demand of 20.7 mgd. When existing water supplies are removed and the 80% EDR treatment process factor is applied, the amount of raw water needed from the wellfield in issue on a peak monthly basis would be 9.625 mgd. This peak monthly basis figure is considered because of the intermittent periods of low rainfall and high water demand within the County. Accepting the 1.8 gpd yearly increase; the peak factor of 1.16; and the assumed water supply capacity of 18.6 mgd; Sarasota County's need will exceed its available supplies by 1993. In fact, the County is already experiencing low water pressure in part of its service area during peak demand periods. County experts estimate that without the requested water from the Carlton Tract, Sarasota County can expect to experience dry periods as early as 1993 during the periods of peak water usage, generally between April and June. For the above reason, when the application and its supporting information was reviewed by Mr. Basso, the District hydrologist with extensive experience reviewing more than 300 water use application, he determined that the water supplies requested are necessary to meet the County's certain reasonable demand, and that this meets the criteria set out in Rule 40D - 2.301(1)(a), F.A.C. Turning to the issue of hydrologic and environmental impacts, the District's Basis For Review of Water Permit Applications provides for the use of a "water use model" inevaluating water needs and the appropriateness of a proposed withdrawal. In preparing its submittal to the District, Sarasota County performed certain tests and modeling to derive the statistical and scientific information used in support of its application. Specifically it used the USGS' MODFLOW model utilizing information obtained from the pump tests run on the wells in the pertinent areas. Consistent with the District's rule, the water data and aquifer drawdown were determined by simulated pumping. The tests run also provided the information on water quality in the aquifer and physical characteristics including transmissivity, storage coefficient, specific yield and leakance between aquifers. This data also helped in defining the hydrogeologic framework of the Carlton Reserve. The Carlton Reserve's hydrogeology listed in descending order from the surface, includes a surficial aquifer which varies in depth between 19 and 70 feet across the Reserve; a semi-confining clay unit separating it from the intermediate aquifer; the upper intermediate and lower intermediate aquifer which range in depth from 140 to 180 feet across the Reserve; another confining layer, and the Upper and Lower Floridan aquifers. The hydrology and groundwater modeling expert who constructed the model used in Sarasota County's permit application concluded that the water table drawdown at the Reserve property boundary in the surficial aquifer would be less than .3 of a foot; less than .4 of a foot in the intermediate aquifer; and 2.9 feet in the Upper Florida aquifer. The water to be drawn consistentwith this instant permit, if approved, would come from the Upper Floridan aquifer on the Reserve. The County's experts were conservative in the assumptions used in the groundwater model. It was assumed there would be no lateral water flow into the model area and no recharge. In addition, the model called for all pumps to run simultaneously at a maximum drawdown of 12.65 mgd for 90 days rather than at the requested quantity of 9.625 mgd. Utilization of these assumptions provided a scenario wherein "severe" impacts would be encountered. Based on the testing and the modeling done, expert opinion was that there would be no quantity or quality changes that would adversely effect water resources including ground and surface water. This meets the criteria of Rule 40D-2.301. This opinion was concurred in the District's hydrology expert. Nonetheless, in its proposed approval, the District has imposed special permitting conditions which require the County to monitor, analyze, and report water quality and water table level information to the District on a monthly and annual basis. When it evaluates the information supplied by an applicant relating to ground water monitoring, the District is required to consider certain presumptions set forth in its Basis For Review. For example, the District presumes that if there is a drawdown of more than 1 foot in the surficial aquifer at a wetland, adverse environmental impacts will occur. In the instant case, the County model concluded that the actual drawdown in the surficial aquifer at the Carlton Reserve is less than .6 of onefoot and, therefore, there should be no adverse environmental impact resulting from the withdrawal. Nonetheless, the County has developed several plans designed to provide information on environmental impacts which will continuously monitor such parameters as rainfall and evaporation, wetlands hydroperiod changes and vegetative changes in the wetlands to detect any changes which might be attributed to the water pumping. These plans have been made special conditions to the water use permit, and in the opinion of the County's ecology and hydrology expert, would enable the County to adequately monitor and detect any pertinent changes to the pertinent factors concerned on the Carlton Reserve. If wetland changes are detected, a contingency plan will be in effect which will require an alteration of pumping schedules or other action to minimize any adverse impacts. The District expert in wetlands and wildlife habitat has opined that these measures, with which he is familiar, are adequate to insure that adverse impacts to the wetlands will not occur. This is consistent with the provisions of Rule 40D-2.301(1). As was stated previously, the water to be drawn pursuant to this permit will be drawn from the Upper Floridan aquifer. This water is not potable but is treatable and is the lowest quality water which can be economically used by the County. Water of a lower quality does exist in the Lower Florida aquifer, but it is not economically treatable, and, in addition, use of this Lower Floridan aquifer might cause vertical movement of the poorer quality water into the upper strata. For all practical purposes,then, the lowest quality water available to it will be used by the County and this is consistent with the District's basis for review. Expert testimony indicates that saline water will not be infused into the Upper Floridan aquifer. Salt water intrusion generally occurs when groundwater is brought to a level below sea level. Even at the point of maximum actual drawdown as a result of pumping on the Reserve, the fresh water level will remain at least 20 feet above sea level, and as a result of the difference in water level, no saline water intrusion into the fresh water supply will occur even though salt water intrusion can also occur as a result of upward vertical movement of lower quality water due to withdrawal. The District's hydrologist and reviewing official also concluded that because of the confining layer below the aquifer from which water will be withdrawn, there would not be any significant upward movement of lesser quality water. The District's basis of review also envisions an aquifer pollution if a proposed withdrawal would spread an identified contamination plume. Here no contamination has been identified in the area from which the water will be drawn, and therefore, contamination would not be spread. The Basis for Review also infers there will be adverse impact to off site land if there is a significant drawdown of surface water bodies or if damage to crops or other vegetation can be expected. Here, the water table drawdown at the boundary of the Carlton Reserve is anticipated at less than .3 of one foot and any drawdown further out from the Reserve can be expected tobe even less. As a result, no adverse impact to existing off site land useage is expected. With regard to Rule 40D-2.301(1)(i), relating to an adverse impact on existing legal uses, the District presumes that no adverse impact will exist if the drawdown in the water table is no more than 2 feet at an affected well, or the potentiometric surface at the well is not lowered by more than 5 feet. Here, again applying the County's groundwater modeling demonstrates that the drawdown at its worst, in the Upper Floridan aquifer, would be no more than 2.9 feet at the Reserve boundary and much less at the Petitioners' wells. Both Mr Bishop's and Ms. Jones' wells are approximately 7.5 and 7 miles, respectively, from the closest well on the Reserve property. Ms. Jones' well is drilled into the intermediate aquifer which is above that which the County proposes to use and should not be impacted. Mr. Bishop draws water from the intermediate and surficial aquifers, both of which are above the Upper Florida aquifer identified for use here, and the groundwater modeling would suggest that his well would not be impacted either. Sarasota County's application contains reference to numerous proposals for water conservation measures which it intends to implement or has already implemented. It has adopted ordinances to enforce the District's watering restrictions and is currently implementing a block inverted use rate structure to promote conservation. It has developed programs for use in the schools outlining water conservation efforts and is developing programs topromote the increased use of treated waste water for golf course irrigation. The requirement for a water conservation plan such as is described and envisioned by the County is a condition of the water use permit proposed, and in addition, the County has adopted an Ordinance, (90-38) which modifies its building code to require installation of water conservation devices in new buildings erected in the County. It has developed proposals for conservation measures such as water auditing, meter testing, leak detection, system looping, and pressure reduction, and has selected the EDR process of water purification as the most efficient use of groundwater resources. Petitioner, Bishop, testified to his belief that approval of this permit and the resultant water withdrawal on the Carlton Reserve would necessitate an expansion of the boundaries of the District's Eastern Tampa Bay Water Use Caution Area to a point where his property would be encompassed therein. In support of his position, Mr. Bishop offered a notice to the effect that new ground water withdrawals would not be permitted within a certain "most impacted area" within the caution area. There was, however, no independent evidence from hydrologists, geologists, or other conservationists, or individuals familiar with the water conservation process, to support Mr. Bishop's contention that either the boundaries would be expanded or that withdrawal of the proposed permitted amounts of water from the Carlton Reserve would cause the boundaries to be expanded. By the same token, Mr. Bishop's contention that theproposed withdrawal from the wells here in issue would adversely effect his ability to draw water from his existing well was not supported by any expert testimony or documentary evidence tending to support or confirm his contention. He had no evidence tending to contradict the County's and District's experts, all of whom indicated there would be no adverse impact on the environment or water resources as a result of the instant permit. Similarly, neither Petitioner offered any evidence of a demonstrative nature that would draw any connection between the proposed permitted withdrawals and potential salt water intrusion and water level drawdown in their wells. The County introduced construction permits issued by its own health department covering 8 of the 12 wells which have been drilled on the Carlton Reserve as test wells. These wells were clearly sunk pursuant to an agreement between the District and the County's public health unit which delegates authority for water well construction permitting to the County. Taken together the documentation indicates that these 12 wells on the Reserve were installed and permitted pursuant to and consistent with appropriate permitting processes, and the testimony of Mr. Bassarab, the County's expert who oversaw the installation of the wells, reflects they are appropriately grouted and sealed. Therefore, there will be no mixing of lower quality water from the lower portion of the Floridan aquifer with the better quality water from the upper portion of that aquifer. The County's evidence clearly refutes the allegation by Mr. Bishop that the 12 test wells currently existingon the Carlton Reserve were neither permitted nor inspected as required by the District. County Commissioner Hill, who testified on behalf of the Petitioners, indicated that the wells applied for here are unnecessary and an inappropriate expenditure of County funds. She claimed there are other valid sources of water available to the County, including that extracted from excavated shell pits and seawater from the Gulf of Mexico which could be treated and desalinated. The Commissioner's comments as to alternate sources are not specifically rebutted. However, she is neither an expert in hydrology or hydrogeology, and her testimony is not persuasive. While other water sources may exist, the better evidence clearly indicates that those sources are not sufficient to meet the County's needs or are otherwise inappropriate for use by the County in sufficient quantity to satisfy those needs.
Recommendation Based on the foregoing Findings of fact and Conclusions of Law, it is, therefore: RECOMMENDED that consumptive water use permit No. 208836.00, providing for authorized quantities as outlined in the intent to issue, subject to conditions contained therein, be issued to Sarasota County. RECOMMENDED in Tallahassee, Florida this 5th day of September, 1991. 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 September, 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 PETITIONERS: Rejected as not supported by the evidence. Accepted. Accepted. - 8. Resolved against the Petitioners on the basis information presented by Respondents. 9.- 13. Accepted and incorporated herein. 14. - 16. Accepted and incorporated herein. Accepted and incorporated herein. & 19. Accepted and incorporated herein. 20. - 23. Accepted. Accepted but not dispositive of any issue. Accepted. & 27. Noted as citation of authority. Rejected. & 30. Accepted as restatements of evidence but not as Findings of Fact. 31. Irrelevant. 32. Rejected 33. & 34. Not a error is, in fact, it is such. 35. - 38. Irrelevant. 39. - 43. Accepted. 44. Accepted. 45. Rejected. 46. Accepted and incorporated herein. 47. & 48. Rejected as a mere citation of testimony. 49. Not understandable. Not a Finding of Fact. 50. Accepted. 51. Evidence is acceptable. 52. Not sufficiently specific to rule upon. 53. Not proven. 54. Not specific. 55. & 56. Rejected. FOR THE RESPONDENTS: 1. - 4. Accepted and incorporated herein. 5. & 6. Accepted and incorporated herein. 7. & 8. Accepted and incorporated herein. 9. - 14. Accepted and incorporated herein. 15. - 17. Accepted and incorporated herein. 18. - 21. Accepted and incorporated herein. 22. & 23. Accepted and incorporated herein. Accepted. - 27. Accepted and incorporated herein. 28. & 29. Accepted and incorporated herein. 30. - 32. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted. - 37. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. - 43. Accepted and incorporated herein. Accepted. Accepted and incorporated herein, - 48. Accepted and incorporated herein. Accepted - not a Finding of Fact. Accepted and incorporated in substance herein. Not correct as stated. Sarasota County will not be withdrawing saline water from the upper Floridan aquifer. The remaining discussion is accepted. Accepted and utilized. & 54. Accepted. Accepted and incorporated herein. Accepted. - 59. Accepted and incorporated herein. 60. Accepted. 61 - 63. Not Findings of Fact but comments on the evidence. Accepted and incorporated herein. & 66. Not Findings of Fact. COPIES FURNISHED: Wyatt S. Bishop, Jr. 5153 Tucumcari Trail Sarasota, Florida 34241 Joan Jones 719 East Baffin Road Venice, Florida 34293 William A. Dooley, Esquire Nelson, Hesse, Cyril, Smith, Widman, Herb, Causey & Dooley 2070 Ringling Blvd. Sarasota, Florida 34237 Cathy Sellers, Esquire Steel, Hector & Davis 215 S. Monroe Street Tallahassee, Florida 32301-1804 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Edward B. Helvenston, Esquire Vivian Arenas, Esquire SWFWMD 2379 Broad Street Brooksville, Florida 34609-6899
Findings Of Fact By application No. 2-7738 filed on June 29, 1981, Aquarina has requested a withdrawal for consumptive use of ground water in Brevard County in the amount of 468,000 gallons per day (850,000 gallons per day maximum) of raw water (before processing). The purpose of the proposed consumptive water use is a proposed development of 196+- acres in Brevard County located between Mullet Creek, a tributary of the Indian River and the Atlantic Ocean in South Brevard County. It is located on the barrier islands separated from the mainland by the Indian River, and is 13 miles south of Melbourne and 5 miles north of Indian River County. Aquarina proposes to develop a condominium community with a projected population of 3,500 persons consisting of 1,600 residences, a commercial area, and 500 hotel rooms. An on-site well field is proposed as well as reverse osmosis water treatment and wastewater treatment plants which are to be constructed near the southern boundary of the development. Two wells with a capacity of approximately 500 gallons per minute are proposed to be constructed and both will withdraw water from the Floridian Aquifer for conversion by reverse osmosis treatment into potable water. 3/ In addition to potable water supply requirements for the development, although part of the requirement will be met by wastewater, there is a requirement for irrigation water for landscaping. The Aquarina site has been zoned Planned Unit Development (PUD) since 1973 and the proposed densities are in accordance with those established in the Brevard County Comprehensive Plan and Zoning Ordinance. As a result of an earlier application of Aquarina for consumptive use, a temporary water use permit was granted by the District to allow Aquarina to drill test wells for aquifer testing before the present application for water use would be considered by the District. This earlier application is not now at issue. Pursuant to this temporary permit, Aquarina conducted an aquifer test program. During the first test, well #1 (the northernmost well) was utilized as a monitor or observation well for the test conducted on well #2, and an existing mosquito control well was also used as an observation well. A two-step pump test was run for 24 hours, with drawdown readings recorded at all three wells. The pump test analysis showed that the Floridian Aquifer transmissivity (the measure of the ability of the aquifer to transmit water) ranged from 173,000 gallons per day per foot at the observation wells to 87,000 gallons per day per foot at the discharge well. The total depth of these two wells was #1 -- 425 feet and #2 -- 412 feet. Following submission of the results of the first aquifer test and the application for consumptive use filed on June 29, 1981, the District staff prepared a Technical Staff Report (TSR) for the benefit of the District Governing Board based upon the two wells drilled pursuant to the temporary permit. However, because the proposed withdrawals would be from the Sebastian Inlet fresh water lens which is a finite potable source of water rapidly being depleted by existing domestic uses and mosquito control wells, the TSR recommended, among other things, that the two wells be deepened to a depth below the Sebastian Inlet fresh water lens and cased to the depth of 450 feet to insure that withdrawals occur from expected saltier water below the lens. Also, the District staff recommended that three mosquito control wells on the Aquarina property be properly plugged to eliminate fresh water loss from the lens due to the following wells. The three flowing mosquito control wells on the site were estimated to have been flowing at 432,000 gallons per day. The Sebastian Inlet fresh water lens from which Aquarina initially intended to withdraw its water appears as two underground bubbles or lenses of water fresher than the surrounding connate or saltier water. The lenses apparently are a result of stratigraphic entrapment of fresh water due to geological formations and are not being recharged with fresh water. When withdrawals are made from these lenses, salty or connate-water fills the void left by the fresher water following withdrawal. The two lenses were substantially larger during recent times but, because of many domestic uses as well as mosquito control wells which have been flowing freely, the reservoirs have shrunk significantly. Based upon present usage, the north portion of the lens will last until approximately the year 2000 at current rates of consumption and the south portion of the lens will last until approximately the year 2030 at current rates of consumption. Because of the impact on the Sebastian Inlet lens, the staff of the District could not recommend approval of Aquarina's application unless Aquarina agreed to three main conditions: The Applicant would case its production wells to 450 feet below the surface, to avoid interference with the freshwater reservoir. (Because of the combined factors of upward artesian pressure in the aquifer, the greater density of salt or connate water in relation to fresh- water, and the known range of transmis- sivity and storage factors for that portion of the aquifer [an underground waterbearing stratum or group of strata] in that geographical area, connate water would flow upward and from the sides into the area of the Applicant's withdrawal of water from beneath the lens, and the lighter, fresh water of the lens above would remain there, free from interfer- ence by the withdrawal.) The Applicant would have to plug all the preexisting mosquito control wells on the development site. The Applicant would have to undergo early monitoring of the chemical quality of this water and the water within the fresh water reservoir. As a result of Aquarina's agreement to meet these three conditions, the Technical Staff Report (TSR) issued by the District on August 20, 1981, recommended approval of the application with the addition of the above conditions. During the course of (1) deepening of well #2 to a depth of 650 feet and backplugging to 595 feet; (2) casing it to a depth of 450 feet; (3) performing a second aquifer test on the deeper well; and (4) evaluating the proposed withdrawals, Aquarina's consultants came to the following conclusions which were unrebutted by other evidence submitted at the final hearing: During the process of deepening well #2 to 650 feet, later backplugged to 595 feet, the consultants discovered an aquitard or confining layer made up of small clay-sized particles which retard the vertical flow of water at a depth of 440 to 450 feet. This well was cased to a depth of 450 feet or to the top of the aquitard. Before reaching this layer, the quality of water was generally declining with increasing depths. Below this layer, the quality of water improved to a depth of approximately 550 feet and the transmissivity was greater below the aquitard than above. Further, that same aquitard was also discovered in a mosquito control well on site when it was logged. Sufficient quantities of treatable water are available from the deepened well to supply the needs of the Aquarina project. That in both the June, 1991, and the subsequent aquifer test, there appeared to be interferences from other sources which impact the potentiometric pressure levels of the wells on the Aquarina site. These were identified as the South Brevard Utilities Corporation (SBUC) and nearby domestic well users. That the results of the June, 1981, test and computer modeling were that the impact of the proposed Aquarina with- drawls on existing nearby wells drilled to the shallower level was between a one to two foot decline in the potentiometric pressure. The average potentiometric pressure in the local aquifer is 27 feet above National Vertical Geodetic Datum (NVGD) or Mean Sea Level (MSL). These existing nearby wells were identified to be the SBUC well approximately 2,400 feet away from Aquarina and those wells of nearby homeowners in the same vicinity as the SBUC well. That flownet analysis (EPA computer model) of the results of the second aquifer test program revealed that approximately 6% of the water obtained from the deepened well would come from the layers above the aquitard, i.e. connate water and the Sebastian Inlet fresh water lens. Based on this model, the effect on water quality for existing users of the proposed withdrawals was concluded to be insignificant and known existing users would not be harmed by the proposed withdrawals. The aquitard was observed in the Aquarina deepened well and the observation mosquito control well which was logged. It was impossible to state definitely that the observed aquitard in the area was a continuous geologic feature. Partly due to the proximity of the aquitard and the depth of the wells in relation to the Sebastian Inlet fresh water lens, the conclusion was reached that effect on water quality of the Aquarina withdrawals would be insignificant. There is no fresh water recharge into the Sebastian Inlet fresh water lens, but there is a continuous pressure con- nection throughout the Florida aquifer in the area. Any replacement of water discharged from the Sebastian Inlet fresh water lens or the lower zones will be of saltier, less potable connate water. It is not understood how long the part of the aquifer below the aquitard (lower zone) will continue to be a significant source of fresh water due to insufficient data. The three mosquito control wells on the Aquarina site are flowing when uncapped or unplugged an estimated 432,000 gallons per day while the wells in the northern sector of the Sebastian Inlet fresh water lens (below where Aquarina is located) flowed at an approximate rate of 2.6 MGD. These withdrawals by the mosquito control wells are primarily from the Sebastian Inlet fresh water lens and are the major cause of premature depletion of the lens. The testimony and the data presented at the hearing demonstrated that the Applicant has met its burden to show by a preponderance of the evidence that the proposed withdrawals by Aquarina will not significantly affect either the quality or quantity of water available to neighboring water users. This appears to be the case regardless of whether the aquitard testified to be about ten feet thick exists and whether the leakance value of less that 6% exists in the aquifer between the point of the Aquarina withdrawals and neighboring users. Data which may be generated subsequently may lead to a different conclusion, but this finding is based on the data presented to the Hearing Officer by the parties at the hearing. 4/ Aquarina has agreed to the following permit condition: (b) The applicant would have to plug all the preexisting mosquito control wells on the development site. The proper plugging of the mosquito control wells on the Aquarina site will save approximately 432.000 GPD of water from the finite Sebastian Inlet lens. This condition was agreed to independently of the contribution by Aquarina of $25,000 to the well plugging program with the District and Brevard County which has as its goal, the plugging of all mosquito control wells in the area. Without the plugging of the mosquito control wells, it is estimated that the northern reservoir of the lens would be depleted by the year 2000, and the southern reservoir by the year 2030. It was also estimated that the plugging of the mosquito control wells would prolong the life of the fresh water reservoirs by over 100 years. Furthermore, by plugging all the mosquito control wells, approximately 6,700,000 gallons per day will be saved from the entire lens area. The basin in which Aquarina is located is in an overdraft condition with more water withdrawn than is presently being recharged. However, the Aquarina project will bring about a net improvement in the situation due to the mosquito control well plugging program imposed as a condition of the permit. Under the sites current PUD zoning, a density of 12 dwelling units per acre is permitted. The current classification of the property in the Brevard County Comprehensive Plan is "urbanizing." Under that classification, the Applicant could seek a rezoning of the property from PUD to single family attached residential. Such a reclassification would avoid the requirements of Chapter 373, Florida Statutes, by allowing each of the 196+- dwelling units to have its own well with a per unit consumptive use below the quantity required to activate Chapter 373, Florida Statutes. Nothing would prevent any of the residential wells from tapping the fresh water lens presently used by the Petitioners in a total amount exceeding that sought in the instant application. Given the designated land use of the Aquarina site, the controlled withdrawal from one or two points within the development is a preferable alternative to the unregulated development and water use which in all probability would follow from the denial of this permit. In large measure, the District's options regarding this site and its attendant consequences have been predetermined by land use decisions made by local officials. Under these circumstances, the District has been required to choose among a set of options which do not include an option for controlled and limited growth directly tied to availability of fresh water resources envisioned by the Petitioner. The choice which the District made in this case, although obviously not ideal, is the best among the presently available alternatives.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent St. Johns River Water Management District grant the requested consumptive water use permit to the Applicant Aquarina Developments, Inc., subject to the conditions contained in the staff's TSR, as corrected and amended on March 25, 1982, which include, but are not limited to: The maximum daily withdrawal shall not exceed 9.765 million gallons per day for five years. The maximum annual withdrawal shall not exceed 171 million gallons for five years. The existing ten inch public supply wells shall be lined or cased to a depth of 450 feet below land surface to insure with- drawals from below this depth. The construction standards used to perform these well modifications shall be accomplished through all appropriate permitting regulations and conform to existing construc- tion standards as stated in Chapter 373, Florida Statutes (F.S.) and Chapter 40C-3, Florida Administrative Code (F.A.C.). That any subsequent Public Supply well or wells constructed for this project be cased to an equal depth. That all mosquito control wells (3) within the property boundaries of the permittee be plugged with neat cement grout from bottom to top as specified in Chapter 40C-3, F.A.C. Chloride concentrations and dissolved solids in water samples from each water supply well shall be measured monthly, and results shall be submitted within 60 days of measure- ment to the St. Johns River Water Management District. A complete water quality analysis including Ca, Mg, Na, K, Cl, S04, HC03, pH and Co3 shall be performed on samples collected in May of each year. The permittee shall maintain withdrawal records showing daily withdrawals of raw (pre-treatment) water for each year ending May 31. These records shall be submitted on a quarterly basis on District Form En-3. Nothing in this permit shall be construed to limit the authority of the St. Johns River Water management District to declare a water shortage and issue orders pursuant to Section 373.175, Florida Statutes, or formulate a plan for implementation during periods of water shortage pursuant to Section 373.246, Florida Statutes. District representatives may visit the site to insure compliance with conditions of this permit following advance notifica- tion of the permittee of the time of visit. The water conserving techniques and methods as outlined in the July 30, 1981 letter to the District from Ed Fleis, P.E., to Thomas K. Ziegler, TSR Exhibit 10, shall be implemented and included throughout all phases of this project. Further, should the replace- ment of any fixtures or appliances be required during the life of this permit, water conserving fixtures equivalent to those originally specified shall be installed. DONE AND ORDERED this 6th day of August, 1982, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1982.
The Issue Whether General Water Use Permit (WUP) Number 20012185.000 (Permit) meets the conditions for issuance as established in Section 373.223, Florida Statutes, and Rule 40D-2.301, Florida Administrative Code, and should be issued to Farmland Hydro Limited Partnership and Frank T. Basso, Jr. and Redland Growers Exchange, Inc.
Findings Of Fact The Parties DCAP is not-for-profit corporation incorporated in the State of Florida. Behrens is the President of DCAP. See also Findings of Fact 63-77. Farmland Hydro is a Delaware Limited Partnership authorized to transact business in Florida, and is the owner of the property leased by Basso/Redland, which is the subject of this WUP. Frank T. Basso, Jr., is a third generation farmer, who operates as Redland Growers Exchange, and seeks a General WUP to authorize groundwater withdrawals for crop irrigation. The District is the administrative agency charged with the responsibility to conserve, protect, manage, and control water resources within its boundaries pursuant to Chapter 373, Florida Statutes, and the rules promulgated thereunder as Chapter 40D, Florida Administrative Code. The Proposed Water Use An Application for a General WUP was submitted by Farmland Hydro and Basso, as co-applicants, and received by the District on April 11, 2001. After receipt of additional information, the Application was deemed complete on October 22, 2001. The Applicants seek a General WUP to authorize a new water use for the irrigation of 140 acres for the production of both Spring and Fall row crops, using a seepage-with-mulch irrigation system.1 Basso plans to grow tomatoes and/or peppers in the Spring, and squash and/or cucumbers in the Fall. Crop planting for both seasons will be phased-in over a one-month period. Water allocation quantities are calculated on a weekly phase-in basis of approximately 35 acres for each planting date. The total time that the parcel will be in use for farming, to include planting and harvesting for each crop, is approximately six months per year. The subject parcel is part of a 250-acre tract known as the Brushy Creek Tract and is located in Hardee County approximately two miles south of the town of Ona; approximately two miles south of the intersection of U.S. Highway 64 and County Road 663; and is within the Southern Water Use Caution Area (SWUCA). The subject parcel currently does not contain a water well. The Brushy Creek Tract is a larger parcel of approximately 1,230 acres leased from Farmland Hydro by Redland and also by Parker Farms for cattle grazing, farming, and hunting. The subject parcel is used for cattle grazing and is surrounded by land owned by Farmland Hydro and used for either cattle grazing or agricultural row crops. Farmland Hydro also operates an additional approximately 1,941 acres of property near the subject parcel, which is used for citrus groves. Farmland Hydro has consumptive WUPs for this property. The closest existing legal user to the proposed Basso well site is another well on the Farmland Hydro property. As is generally done with vegetable crop production in Florida, vegetable crops grown on the Farmland Hydro property are grown in rotation with pasture, and have been rotated in this manner for many years. Typically, farmers have farmed a piece of land for one, two or three years and then, to avoid the buildup of insects and diseases, have allowed the land to revert to pasture and have moved on to another field for crop production. The subject parcel for which the WUP is being sought will be similarly treated. Crop rotation is an important agricultural best management practice that is used to address pest management, soil conservation, and maximizing nutrients for obtaining favorable crop production. Soil conservation is important to Basso, notwithstanding that there is a response in the Application that no approved Soil Conservation Service plan exists for the operation included in the Application. If the WUP is issued and the subject parcel is placed into crop production, another parcel of land will be taken out of crop production by Basso, resulting in the discontinuation of another permitted well. As a result, the issuance of this WUP will not result in a "water use change." Determination of Reasonable Demand/Allocated Quantities In determining whether a proposed water use is reasonable-beneficial and in the public interest, the District calculates the appropriate permit quantities for the particular water use, which is a function of demonstrated need, or demand for water; efficiency of the water treatment and distribution systems; whether water is sold or transferred to other entities; whether acceptable water can be acquired from lower quality sources; and whether conservation practices are employed. District Basis of Review (BOR), page B3-1. The reasonable need for agricultural water use is generally composed of one or more demand components, depending upon the specific agricultural use. "Typically, the reasonable need for irrigation water uses is equal to the supplemental crop requirement divided by the system efficiency or the system design capacity, whichever is less." "The supplemental crop requirement is the amount of water needed for a particular crop beyond the amount of water provided by effective rainfall." The supplemental crop requirement is generally determined by using the Agricultural Water Use Calculation Program (AGMOD) Version 2.1, which is based on the modified Blaney-Criddle method. This program takes into account site specific information such as crop type, growing period, evapotranspiration rate, soil type, rainfall, irrigation method and number of irrigated areas. "In most cases, the supplemental irrigation requirement is determined for a 2 in 10-year drought condition." The AGMOD program determines an inch-application rate which, when applied to the number of acres to be irrigated, results in a calculation of total annual average and peak monthly quantities for the proposed water use. District BOR, pages B3-4 and 3-5. See also District Water Use Design Aids, pages C4-1 through C4-7. In determining the allocated quantities, or reasonable demand for water, the District seeks to avoid both over- allocating water and under-allocating water for the specific crop intended, to ensure that the permitted amount is sufficient for the "2 in 10-year drought condition." Consequently, the allocated quantities arrived at by District staff through use of the AGMOD methodology may be different from the quantities indicated on an applicant's initial application, which are generally estimated without benefit of an agricultural water use calculation program. The AGMOD program was used to calculate water use quantities for the proposed water use. The allocated quantities for Basso's proposed use are 454,000 gallons per day (gpd) on an annual average basis and 1,241,000 gpd, as a peak month quantity. No quantities were requested or allocated for crop protection. See Finding of Fact 52. Modeling for Simulated Impacts As part of the application review process, the District evaluates potential impacts to existing legal uses of water, the water resources and environmental features that may result from the proposed groundwater withdrawals. To assist in the review process, analytical and numerical models, which incorporate best available hydrogeologic parameters for the area being considered for a permit, are used to simulate drawdowns for the withdrawal of the proposed quantities. The results of these simulations are used in the evaluation of potential impacts to assess whether the application meets the conditions for issuance. The District undertook simulation modeling of the potential effects of the proposed water withdrawals to be authorized by the permit. The allocated quantities were entered into the MODFLOW 387 groundwater flow model, which is a three- layer model developed by the U.S. Geological Survey and is the generally accepted model for this purpose. Model layers were set up to represent the surficial, intermediate, and Upper Floridan aquifers. (The Applicants seek to pump water solely from the Upper Floridan Aquifer.) There are limitations to the model in that the model assumes a homogeneous isotropic aquifer, with no preferred flow direction. In actuality, there is variability in the geology of the area. Modeling is intended to serve as a screening tool for assessing localized impacts anticipated from a proposed water use and is based upon the best available information. As distance from the proposed withdrawal site increases, the reliability of the modeling decreases, due to the variability in the geology and other parameters or boundary conditions that can affect the model. Use of the MODFLOW groundwater model allows the District to look at potential impacts at the site, and in the proximity of the site, and assists the District in assessing possible cumulative impacts associated with a proposed use. To assist in assessing potential impacts from the proposed use, a Peak Month modeling simulation was undertaken by the District, which simulates the effect of pumping the proposed Peak Month withdrawal rate of 1,241,000 gpd for 90 consecutive days, with no recharge to the aquifer systems. The model essentially presents a worst case scenario that is a more severe prediction than what is actually likely to occur from the permitted use under normal conditions. Simulating the period of greatest demand on the hydrologic system is likely to provide maximum protection to existing legal water users and the water resources. The Peak Month simulation undertaken by the District predicts drawdowns in the potentiometric surface of the Upper Floridan Aquifer of approximately 2.6 feet at the proposed withdrawal site; less than 1.4 feet at the nearest property boundary (approximately 1,250 feet from the proposed withdrawal site); and less than 1.2 feet at the nearest existing legal user (a Farmland Hydro well approximately 3,500 feet from the proposed withdrawal site). These numbers did not raise a concern for District staff. ("Potentiometric surface" is "a surface defined by the level to which water rises in an open pipe that is constructed into or all the way through an artesian aquifer. This is measured in feet relative to NGVD or sea level. The level to which water rises inside this open pipe is a function of the pressures on the water in the artesian aquifer." District BOR, page B-xii.) The Peak Month simulation predicts drawdowns in the intermediate aquifer of approximately 0.9 feet at the proposed withdrawal site, and less than 0.9 feet at the property boundary, and at the nearest existing legal user. The Peak Month simulation predicts drawdowns in the water level of the surficial aquifer (water table) of approximately 0.01 feet or less at the proposed withdrawal site, property boundary and nearest existing legal user. Based upon the Peak Month simulations, the District reasonably determined that further cumulative impact modeling was not necessary in order to assess localized cumulative impacts resulting from the proposed use. To assess regional cumulative impacts, the District evaluated Regional Observation Monitoring Program (ROMP) data and found no significant trends in withdrawals in recent years, other than a slight decline attributed to the recent drought. Conditions of Issuance of the Proposed Permit In order to obtain a water use permit, an applicant must establish that the proposed use of water is a reasonable- beneficial use, will not interfere with any existing legal use of water, and is consistent with the public interest, by providing reasonable assurance, on both an individual and cumulative basis, that the water use meets the conditions for issuance as specified in Section 373.223(1), Florida Statutes, and Rule 40D-2.301, Florida Administrative Code. A permit must be obtained from the District prior to withdrawing water, where the withdrawal is from a well having an outside diameter of six inches or more at land surface, where the annual average withdrawal from all sources is 100,000 gpd or greater, or where the total combined withdrawal capacity from all sources is greater than or equal to 1 mgd. The proposed water use falls within these parameters. Rule 40D-2.041(1)(b) and (c), Florida Administrative Code. The quantities allocated for the proposed use have been determined by the District to be necessary to fulfill a certain reasonable demand, for the reasons specified herein. To assist in assessing impacts, the District utilizes a network of ROMP wells to obtain basic groundwater monitoring data over time and to help characterize the lithology, stratigraphy, aquifer depths, water levels and, in some cases, water quality for the various water resources. Data obtained from the ROMP and other wells is compiled to ascertain aquifer characteristics within the District and is also integrated into the District's modeling efforts pertaining to proposed water uses. ROMP well No. 31 is located just off the northeast corner of the Basso site. Having a ROMP well adjacent to the Basso site increases confidence in the specific geological information being used in the groundwater model to assess potential impacts from the proposed uses. ROMP well No. 17 is located approximately 1/2 mile from DCAP member Behren's well. Data from both wells were considered in assessing potential impacts from the proposed water use. Based on available information, the possible sources of groundwater for the proposed use at the Basso site are the surficial aquifer, intermediate aquifer, and the Upper Floridan Aquifer systems. To ensure sufficient quantities of water for the proposed use and to avoid potential impacts to environmental features, such as wetlands and surface waters, the District will require the proposed use to limit withdrawals to solely the Upper Floridan Aquifer. By examining stratigraphic cross sectional information generated from the ROMP wells, particularly ROMP No. 31 well, which is in close proximity to the Basso site, District staff were able to determine, with reasonable certainty, the approximate depths of the aquifers at the Basso well site. To ensure that the well will be open solely to the Upper Floridan Aquifer, the permit requires the Basso well to have a minimum of 400 feet of casing, with an estimated well depth of 1,000 feet. Based upon available information concerning the construction of other wells in the vicinity of the proposed Basso well, the District is reasonably assured that a well cased for a minimum of 400 feet will draw water only from the Upper Floridan Aquifer and will minimize the potential for water to move between the aquifers through the well. The well construction requirements imposed for Basso's well are in line with the best available stratigraphic information and with known construction of wells in the area. By casing the well to a depth of 400 feet and due to the extremely low leakage of the intermediate confining unit, the intermediate and surficial aquifers will be buffered from impacts associated with the proposed use. The District will deny a water use permit application if the proposed withdrawal of water, together with other withdrawals, would cause an unmitigated adverse impact on a legal water withdrawal existing at the time of the application. The District considers an adverse impact "to occur when the requested withdrawal would impair the withdrawal capacity of an existing legal withdrawal to a degree that the existing withdrawal would require modification or replacement to obtain the water it was originally designed to obtain." District BOR, page B4-14. Based upon an assessment of individual and cumulative regional information, there are no existing legal uses of water that will be adversely impacted as a result of the proposed withdrawals. Based upon an assessment of individual and cumulative regional information, no quantity or quality changes that adversely impact the water resources, including both surface and groundwaters, are anticipated from the proposed withdrawals. The District requires that consideration be given to the lowest water quality available, which is acceptable for the proposed use. Lower quality water includes reclaimed water, collected stormwater, recovered agricultural tailwater, saline water or other sources. District BOR, page B4-12. For the proposed water use, there is no viable lower quality water source and no reclaimed water available near the site to use as an alternative to groundwater pumping. The Applicants are proposing to use the lowest quality water that is available. There are no known concerns regarding the quality of water in the Upper Floridan Aquifer at this location in Hardee County. Restricting the proposed water use to the Upper Floridan Aquifer will not cause water quality concerns or result in pollution to any of the aquifers. Simulated drawdowns to the Upper Floridan Aquifer of approximately 2.6 feet at the proposed withdrawal site, less than 1.4 feet at the nearest property boundary, and less than 1.2 feet at the nearest permitted well, provide reasonable assurance that adverse impacts will not occur from the proposed water use. Simulated drawdowns to the intermediate aquifer of 0.9 feet at the proposed withdrawal site, and less as the distance from the proposed withdrawal site increases, provide reasonable assurance that adverse impacts will not occur from the proposed water use. Simulated drawdowns to the surficial aquifer of 0.01 feet or less at the proposed withdrawal site, and less as the distance from the proposed withdrawal site increases, constitute a nearly undetectable impact to the surficial aquifer, which is not an adverse impact. The modeling simulations demonstrate that the proposed withdrawals will have no significant effect on the surficial aquifer and, therefore, will not cause adverse impacts to environmental features such as wetlands, lakes, streams, fish and wildlife, or other natural resources. None of the simulated drawdowns are considered to be predictions of adverse impacts, not even in the localized vicinity of the well site. Mr. Jackson explained that because the localized modeling simulations were small or insignificant and showed no adverse impacts, cumulative modeling is not considered necessary. Reasonable assurance on a cumulative basis is determined by assessing the potential localized impacts in conjunction with existing cumulative data for the region, such as the available ROMP data and hydrographs, which depict the existing regional condition, taking into account, on a cumulative basis, all existing uses as well as rainfall conditions and climate. Based on an assessment of the cumulative data and the modeling for individualized impacts, and applying professional judgment, District staff reasonably concluded that the proposed water use presents no concerns that it will cause, on either an individual or a cumulative basis, adverse impacts to the water resource or existing legal uses. Minimum flows and levels have not been established by the District for the area where the proposed use is located. (The parties stipulated that the District has not established minimum flows and levels pursuant to Section 373.042, Florida Statutes, for the Southern Water Use Caution Area (SWUCA)). Therefore, Rule 40D-2.301(1)(d), Florida Administrative Code, (requirements for minimum flows and levels), is not applicable to the proposed permit. The proposed use presents no concerns for saline water intrusion. The proposed use raises no concerns regarding causing pollution to the aquifer. There are no offsite land uses that will be adversely impacted as a result of this permit. Basso currently uses best management practices for water conservation in his ongoing farming operations, and intends to use such practices with the new farming operation authorized under the permit. In keeping with such practices, irrigation is stopped when the water reaches the end of the watering ditch. Basso uses seepage irrigation and tries to regulate the ditches so that there is a minimum, if no, runoff. Also, a watering cycle generally lasts from three to seven days before irrigation has to be resumed. Any runoff goes into "filtering ponds, before reaching ditches or creeks" in its raw content. Basso does not intend to farm during months of likely frost so no separate allocation for frost/freeze protection was requested or needed. Given these irrigation practices, water is not reasonably expected to be wasted. All necessary and feasible agricultural water conservation activities will be implemented upon issuance of the WUP. In addition, Specific Condition No. 3 of the proposed WUP requires the incorporation of best water management practices in all irrigation practices. The proposed use presents no concerns that it will otherwise be harmful to the water resource. The Applicants have met all the requirements for issuance of a WUP. Southern Water Use Caution Area The proposed water use site is located within the SWUCA. The District established the SWUCA as a means of addressing on a regional scale concerns about long-term impacts to the water resource. Water use caution areas were created in recognition of regional water concerns. There have been drought conditions in the area which have caused reduced aquifer levels. The proposed water use site is not within the "Most Impacted Area" (MIA), which is located approximately 18 miles to the west of the site in Manatee County, nor within the "East Tampa Bay Water Use Cautionary Area" (ETB WUCA), which is approximately six miles to the west of the proposed site, also in Manatee County. (The SWUCA includes the MIA and ETB WUCA.) Pending final adoption of rules for the SWUCA, the District will continue to issue WUPs for proposed water uses that meet the conditions for issuance. The District cannot treat new uses and existing renewal uses any differently when considering the issuance of a permit. Once SWUCA rules and minimum flows and levels are established, the District expects to rely on a more regional approach to address long-term cumulative impacts over the entire use caution area, instead of relying on a permit-by-permit basis to address regional concerns. Standard Condition No. 9 of the proposed WUP requires the permittee to cease or reduce withdrawals as directed by the District, if water levels in the aquifers fall below the minimum levels established by the District Governing Board. The proposed withdrawal will use a seepage with mulch irrigation method, which has a 50 percent efficiency level. See footnote 1. This is the minimum efficiency level currently required for agricultural WUPs within the SWUCA, which approve the use of this irrigation method. As SWUCA rules come into effect, a higher percentage efficiency level probably will be required, as is now required in the Eastern Tampa Bay Water Use Caution Area and also in the Highlands Ridge Water Use Caution Area. Consequently, Standard Condition No. 11 of the proposed WUP requires that, when SWUCA rules are implemented, the permittee must comply with any higher efficiency level or other special regulation that may be required for the SWUCA area. DCAP's Challenge to the Proposed WUP DCAP does not keep official membership records. It does not maintain any list of current members. According to Behrens, there are five members of the board of directors. DCAP does not hold corporate meetings, annual meetings or maintain corporate records. Members do not meet. There are no means to document the existence of members for this organization. Behrens is a member of DCAP. He has owned five acres adjoining the west side of Horse Creek (in DeSoto County) since 1985. Behrens complains that the District does not look at the cumulative effect on his well and other people he knows, such as George Chase. Behrens is concerned with any lowering of the water level in the area, including Horse Creek. He believes that approval of wells in the area, including the proposed well, is the straw that is breaking the camel's back. Mr. Chase shares this view. Behrens relies on an artesian free-flowing, two-inch diameter well, for domestic water use, located in the intermediate aquifer, approximately 150 feet deep. (Behrens' well is approximately 18-20 miles from the proposed Basso well.) For most of the time he has lived there, the well had an electric pump for obtaining water. Approximately one year ago, the pump went bad, and a replacement system has not been installed. Currently, Behrens has no pump on the well, and in dry periods, has to obtain water for domestic uses from nearby Horse Creek, which is low during the dry season. (Behrens depends on Horse Creek to pursue his recreation, wildlife, and aesthetic values.) Having a flowing artesian well will enable him to obtain water from the well without having to install an electrical pump, a situation which is desired by Behrens, in part, because the property is in a flood plain and experiences frequent flooding and electrical outages. Not all artesian wells flow. Artesian wells are completed into confined aquifers in which the water in a tightly cased well, will rise to a level above the formation being measured. Water would have to rise above the land surface to be a flowing well. For a well to be artesian, the well must be under confined pressure. For a well drawing water from a confined aquifer, such as the intermediate or the Upper Floridan Aquifer systems, the measured water level in the well is a reflection of the amount of potentiometric pressure in the well. This level can be affected just as much by the amount of recharge as it can by the amount of water withdrawals. There is no evidence that the proposed water use will adversely impact the flowing nature of either Behrens' or Chase's well. The evidence demonstrates that the proposed water use will not adversely impact Behrens' well. George Chase is a member of DCAP. Mr. Chase lives in Arcadia, DeSoto County, Florida. His property is adjacent to the Peace River. Mr. Chase's well is a two-inch diameter well, believed to be about 150 feet deep and equipped with a 12-volt DC solar-powered pump. Mr. Chase has in the past relied on artesian pressure within the confined intermediate aquifer to supply water to his solar-powered home. The solar-powered pump assists in supplying water to the home. In recent years, Mr. Chase has experienced low water pressure in his well. In Spring 2000, Mr. Chase contacted the District to complain that when an adjacent citrus grove was irrigating the groves, it appeared to affect the water level in his well such that the well's ability to flow was impacted. (According to Mr. Chase, his neighbors have had problems obtaining sufficient water from their wells and reaching water with standard pumps.) This citrus grove is an existing legal user of water that pre-existed Mr. Chase's well. In recent years, numerous domestic wells have been constructed in the vicinity of the Chase home that are large diameter wells utilizing submersible pumps with 110-volt AC power. These wells are more efficient at producing water than the type of well and pump being used by Mr. Chase, are located within a few hundred feet of Mr. Chase's well, and are open to the intermediate aquifer as is the Chase well. Based upon the District's experience in other areas, where there is a cluster of domestic wells drawing from the same intermediate aquifer, such adjacent wells have a much greater impact on each other than do other more distant wells, such as the previously discussed citrus irrigation wells, that are open solely to the confined Upper Floridan Aquifer System. This conclusion is based upon monitoring of the ROMP sites in the affected areas. Mr. Chase's well is approximately ten miles from the proposed withdrawal site. There is no basis to conclude that the proposed water use will cause any adverse impacts to Mr. Chase's well. DCAP members' interests are not affected any differently by the proposed use than are the interests of the general public. DCAP has produced no evidence to support its assertion that the issuance of this permit will result in lowered water levels in the Horse Creek and Peace River or other surface waters. DCAP has produced no evidence to support its assertion that the permit will cause adverse impacts to surface water flows or surface waters or to environmental features such as vegetation, fish, and wildlife. DCAP has produced no evidence that its substantial interests are affected by the proposed agency action.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Southwest Florida Water Management District enter a final order: Determining that Farmland Hydro Limited Partnership and Frank T. Basso, Jr. and Redland Growers Exchange, Inc., have satisfied the requirements of Section 373.223, Florida Statutes, and Rule 40D-2.301, Florida Administrative Code, regarding conditions for issuance of WUPs;3 Issuing proposed General Water Use Permit No. 20012185.000, as set forth in District Exhibit No. 4; and Finding that DCAP lacks standing to challenge the issuance of the permit. DONE AND ENTERED this 3rd day of June, 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 2002.
The Issue The issue in this case is whether the application of Respondents Falkner to transfer and modify a Water Use Permit should be approved.
Findings Of Fact The Southwest Florida Water Management District (District) is responsible for regulation and protection of water resources in the geographic area involved in this proceeding. Since 1994, John Falkner has owned the property in Hillsborough County which is the subject of this proceeding. The Falkner property is farmed by Christopher Falkner, the owner's brother. Prior to purchasing the land, the Falkners farmed the property, also known as the Rogers farm, through a lease arrangement with the previous owner. Rose Ann DeVito owns property to the south of the Falkner property. In the time since Ms. DeVito purchased the property, the elevation of Sumner Road has been raised and culverts were replaced. A fish farm was constructed in close proximity to her property. The result of this and other development has been to direct all the water flow from the surrounding area into the stream adjacent to the DeVito property. Drainage patterns in the area of Ms. DeVito's property have been altered since she first occupied the property. A ditch along Sumner Road which used to handle runoff from her property has been blocked by a neighbor's driveway. Maintenance on the ditch, allegedly a county responsibility, is described as poor. The ditch at the rear of Ms. DeVito's property handled water flow to Bullfrog Creek until the water flow became blocked, and the water diverted onto her property. The effect is that Ms. DeVito's property often contains a large amount of water. A substantial amount of sand is visible on her property, allegedly deposited by water flow. According to Ms. DeVito, both the county and the District have blamed the Falkner farm for the water-deposited sand. Charles and Diana Booth own property adjacent and to the south of the Falkner property. From 1992 to 1994, the Booths suffered from water running off the Falkner/Rogers farm and flooding the Booth property. A flood of the Booth property in the Fall of 1994 was not caused by irrigation but was related to a ten inch rainfall event at the Falkner farm. A ten inch rainfall exceeds a 25 year storm event and would likely result in widespread flooding. The Booths' pasture, top soil and driveway were eroded by the flooding. During the two years of flooding, Mr. Booth complained on several occasions about the flooding to the Falkners' foreman, "Cleo." The complaints were not relayed to Mr. Falkner. In October 1994, Mr. Booth reported the problem to the Southwest Florida Water Management District. Soon after the complaint was made, a representative of the District inspected the property and determined that a ditch needed maintenance. Shortly thereafter, the ditch was cleaned and a berm was installed to redirect runoff away from the Booth property. There has been no further flooding of the Booth property. In October 1995, Mr. Booth became concerned that a ditch was filling with sand and would not continue to handle the runoff. After voicing his concern, a water diverter was installed in the ditch and appears to have remedied the situation. At the time the Falkners began to lease the Rogers property, an existing water use permit, numbered 206938.01, had been issued and was valid for the farm. The Falkners have applied to transfer the existing water use permit from the previous property owner. The Falkners also seek to modify the permit, increasing the total quantities which can be pumped by transferring previously approved quantities from another permit the Falkners currently hold. All of the relevant wells are within the District's Most Impacted Area (MIA) of the Tampa Bay Water Use Caution Area. The District allows a permit holder within the MIA to increase withdrawals from a well by transferring the quantities from another permitted well within the MIA. The other Falkner farm (the "301 farm") from which the quantities would be transferred is located approximately one-half mile to the south of the Rogers farm and is within the MIA. The District reviewed the application and, on September 29, 1995, issued its Proposed Agency Action to Issue Water Use Permit No. 206938.03. The proposed permit includes special conditions requiring monthly pumping reports, water quality reports, adherence to District irrigation allotments (irrigation levels established by the AGMOD computer model) and crop reporting. In reviewing the application the District utilized the criteria set forth in Florida Administrative Code, and the Basis of Review, incorporated into the code by reference. In order to obtain a Water Use Permit, an applicant must demonstrate that the water use is reasonable and beneficial, is in the public interest, and will not interfere with any existing legal use of water. Additionally, the applicant must provide reasonable assurances that the water use: will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters; will not adversely impact offsite land uses existing at the time of the application; will not cause water to go to waste; and will not otherwise be harmful to the water resources within the District. The uncontroverted evidence establishes that the water use is reasonable, beneficial and is in the public interest. The Falkners irrigate farmland to produce agricultural products. The production of food is in the public interest. The proposed use is reasonable and beneficial. Further, uncontradicted evidence and opinions of expert witnesses establish that the proposed use will not interfere with any existing legal use of water. The applicant must provide reasonable assurances that the water use will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters. The evidence establishes that pumping from the Falkner wells will not adversely affect the quality of water within the aquifers from which the water is drawn. Mr. Booth asserted that he is having water quality problems, specifically with rust in his well. The Booth well is approximately 25 years old. There is no evidence that the rust is related to the Falkner pumping. The DeVito and Booth wells draw from the Intermediate aquifer. Review of the potentiometric surface map of the intermediate aquifer indicates that there is a water level variation of 17 feet between the rainy and dry seasons. The result of the variance can be "dry" wells. There are two wells on the Falkner/Rogers property relevant to this proceeding. The first (District ID number 1) is 770 feet deep, is cased to a depth of 160 feet, and opens to the Floridan aquifer. The second (District ID number 2) is 1100 feet deep, is cased to a depth of 140 feet, and opens to the Intermediate and the Floridan aquifers. A cased well does not withdraw water from the formations through which the casing is placed. For example, a well cased to a depth of 160 feet draws no water from the top of the casing (at approximately ground level) to the bottom of the casing at 160 feet. The Intermediate aquifer releases water at a much slower rate than the Floridan aquifer. Based on the type and location of the Falkner wells, the vast majority of the water pumped by the Falkners comes from the Floridan aquifer. Impacts on existing wells are calculated through computer modeling. The "MOD" flow model demonstrates impacts that will occur after 90 days of pumping at peak month levels with no recharge to the aquifer. The MOD flow model results in a conservative "worst case" projection. The MOD flow model calculation projects the drawdown at Falkner well number 1 to be approximately .9 feet. The MOD flow model calculation projects the drawdown at Falkner well number 2 to be approximately 1.4 feet. The MOD flow model calculation projects the drawdown at the Booth well to be approximately one-half foot. The impact on the DeVito well will not exceed that projected at the Booth well. District permitting criteria allow for projected MOD flow model drawdown impacts of less than five feet at existing wells. The impact possible after approval of this application falls well within the District's guidelines. The impact of pumping if the application at issue in this proceeding is approved will result in a maximum variation of one-half foot at the Booth well. The evidence fails to establish that any problems related to water quantity encountered by the Booths are related to agricultural pumping at the Falkner farms. The evidence also establishes that, based on the existing retention and drainage system, the proposed use will not adversely impact surrounding surface water bodies. A system of swales and ditches is utilized to retain the water on the farm property. The evidence fails to establish that runoff from the Falkner/Rogers farm will adversely impact surrounding surface waters if this application is approved. The applicant has provided reasonable assurances that the water use will not adversely impact offsite land uses existing at the time of the application. The evidence establishes that the runoff from the Falkner farm does not discharge directly to the stream at the rear of the DeVito property. Other agricultural property discharges into the stream adjacent to the DeVito property. There is a steady waterflow through the stream at all times, whether or not the Falkner pumps are operating. Ms. DeVito's property consists of Myakka soil, which has little capacity to absorb rainfall and generates large amounts of runoff. The altered drainage patterns in the area have resulted in substantial water on her property. The evidence in insufficient to establish that the Falkner farm pumping has resulted in flooding on Ms. DeVito's property. The evidence fails to establish that approval of the application at issue in this proceeding will cause adverse impact to the DeVito property or will result in water quality or quantity problems. The Booths are concerned that the existing drainage system will not be maintained and that increased pumping will result in their land being flooded again. The evidence fails to establish a substantial likelihood that the Falkner farm drainage system will not be maintained. The applicant has provided reasonable assurances that the water use will not cause water to go to waste. The Falkners use a semi-enclosed seep irrigation system at the Rogers farm. Irrigation is only used when necessary. Mushroom compost, humates, and plastic mulch retain moisture in the soil. A special condition of the permit requires the Falkners investigate the feasibility of tail water recovery and reuse. The applicant has provided reasonable assurances that the use will not otherwise be harmful to the water resources within the District. The permit application results in no increased withdrawal of water than is allowed under the existing permits for the Rogers and the "301" farms.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Southwest Florida Water Management District enter a Final Order granting the Falkner application and issuing permit number 206938.03. DONE and ENTERED this 26th day of April, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM, 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 26th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASES NO. 95-5763 and 95-5764 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioners Booth The Petitioners Booth proposed findings of fact fail to comply with the requirements of Rule 60Q-2.031(3), Florida Administrative Code, which requires citations to the record of hearing. The proposed findings are rejected as irrelevant or not supported by the greater weight of the evidence except where they are consistent with the Findings of Fact set forth herein. Respondents The Respondents' joint proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 15. Rejected, cumulative. 28-29. Rejected, subordinate. 33. Rejected, subordinate. COPIES FURNISHED: Rose Ann DeVito, pro se 11001 Sumner Road Wimauma, Florida 33598 Diana P. and Charles B. Booth, pro se 10812 Sumner Road Wimauma, Florida 33598 Patricia Petruff, Esquire Dye and Scott, P.A. 1111 Third Avenue West Bradenton, Florida 34206 Martin Hernandez, Esquire Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899 Peter G. Hubbell, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34609-6899
The Issue The issues presented for decision in this case are: whether Martin County should be granted the re-issuance of Water Use Permit No. 43-00752W for the Tropical Farms Water Treatment Plant and associated wells; and (2) whether Martin County should be granted Water Well Construction Permit No. SF032696B for the construction of Well No. 10 of the Tropical Farms Water Treatment Plant, pursuant to the permitting criteria of Chapter 373, Parts II and III, Florida Statutes; Chapters 40E-2 and 40E-3, Florida Administrative Code; and the Basis for Review for Water Use Permit Applications of the South Florida Water Management District.
Findings Of Fact Petitioner James W. Slusher, Jr., and his wife, Diane L. Slusher, own a residential lot located in unincorporated Martin County at 2376 SW Ranch Trail, Stuart, Florida 34997. On the lot is a single family home. The size of the residential lot is approximately 2.25 acres. Mr. and Mrs. Slusher purchased the subject residential lot and home in September of 1994 from Mrs. Stella Kassinger. Mrs. Kassinger and her late husband (the “original owners”) had the home built on the residential lot in approximately 1980. When the original owners built the home, they had a hole or “pit” dug in the rear portion of the lot. From aerial photographs taken at the time (1979-1980), and based upon the common practice in the area, it appears that the material from the “pit” was spread on-site to provide additional elevation for, and to minimize the potential for flooding of, the home and driveway that were constructed on the lot. Thus, the original “design function” of the “pit” was to provide fill for construction. The original owners thereafter allowed the “pit” to accumulate water and stocked it with fish so that Mr. Kassinger could use it recreationally as a fishing pond. The “design function” of the original “pit” was thus changed so that it would serve as a recreational amenity on the property. During the subsequent 14 years that the original owners lived in the home, they did nothing further to alter or improve the fishing pond. Over the years, the area immediately around the fishing pond became heavily vegetated and was used from time to time by various wild birds and animals. The fishing pond was used by the original owners for fishing and for observing the wildlife it attracted. After purchasing the home, Mr. Slusher also stocked the fishing pond with various fish over the years so that he and his family could continue to use it recreationally. The fishing pond continued to be used by the Slushers for fishing, for observing wildlife, and as a swimming area for their dogs. Currently, the overall dimensions of the fishing pond are approximately 90 feet wide, by 122 feet long, by 10 feet deep at its deepest part, when filled to the level that was natural prior to the operation of Water Well No. 10. Potable water for the Slusher home is obtained from a well drilled on the property, not from the public water system of the County. The Slusher well is located approximately 33 feet from the home. It is attached by PVC pipe to a pump located next to the home. The original owners caused the well to be drilled. The record in this case does not contain any persuasive evidence regarding the details of the Slusher residential water well. Specifically absent are such details as the depth to which the well was originally drilled, the material from which the well tube was made (i.e., cast iron or PVC), and the current physical condition of the sub-surface portions of the well. Mr. Slusher has not done anything to repair or replace the well since he and his wife purchased the home. On August 2, 2000, Mr. Slusher filed a petition with the SFWMD challenging the issuance of Water Well Construction Permit No. SF032696B, and the "use of the well." On November 3, 2000, Mr. Slusher filed an amended petition with the Division of Administrative Hearings, challenging the issuance of Water Use Permit No. 43-00752W and Water Well Construction Permit No. SF032696B. Martin County (“the County”) is a political subdivision of the State of Florida, established in 1925 pursuant to Section 7.43, Florida Statutes, and Section 1, Chapter 10180, Laws of Florida. SFWMD is an independent state agency, operating pursuant to Chapter 373, Florida Statutes. SFWMD originally issued Water Use Permit No. 43-00752W to the County on April 15, 1993. The “water use permit” was for wells and associated equipment at the Tropical Farms Water Treatment Plant (“Tropical Farms WTP”). SFWMD re-issued Water Use Permit No. 43-00752W to the County on March 14, 1996. The re-issued “water use permit” allowed additional wells to be drilled and additional draws of water by the County at the Tropical Farms WTP. One of the additional wells included in the re-issued water use permit was “Well No. 10.” SFWMD issued Water Well Construction Permit No. SF032696B to the County on March 28, 1996, allowing the construction of Well No. 10 at the Tropical Farms WTP. In accordance with the restrictions imposed by the water well construction permit, the County drilled Well No. 10 on a site located at least 100 feet in distance from the fishing pond on the Slushers’ property. The physical location of Well No. 10 is essentially “adjacent to” the Slusher property. County Well No. 10 is approximately 120 feet deep and draws water from the surficial aquifer. It commenced operation in December of 1996. It is uncontested that the operation of the well field, especially County Well No. 10, has caused drawdowns of the pond level and of the groundwater in the area of Mr. Slusher's residential water well. The MODFLOW model used by the County in support of its application indicates a maximum drawdown of 7.4 feet. The persuasive expert opinion evidence in this case indicates that maximum draw downs of 7 or 8 feet would be expected in the area of Mr. Slusher's residential water well. The County has acknowledged that the operation of Well No. 10 has had a significant effect on the drawdown of the water table in the area of the pond. County Well No. 10 appears to have been constructed in a manner consistent with the applicable rules. The well was properly drilled and grouted, the correct materials were used, and the well was constructed in a manner that did not result in harm to the water resources. The water use permit was issued prior to the well construction permit, as is appropriate. Although permitted originally in 1993 and again in 1996, the Tropical Farms WTP did not begin regular operations until June of 1997. It is now part of a consolidated system which includes four other water treatment plants, all operated by the County for the purpose of obtaining and providing potable water to the public county-wide. In support of its applications for the issuance and re-issuance of the water use permit, the County provided SFWMD with so-called “MODFLOW calculations” done by a professional engineering firm retained by the County. MODFLOW was developed by the U.S. Geologic Survey and is considered the standard for assessment of ground water resource impacts. The results of the three-dimensional MODFLOW modeling showed that the drawdown effect on the water table of the proposed wells for the Tropical Farms WTP would be unlikely to cause any adverse effect on typical wells used by homeowners, even if the latter were located within the same small “square” as one of the County’s wells. Prior to the commencement of the operation of Well No. 10 by the County, the water level in the fishing pond on the Slusher property would vary only a few inches up or down during the course of a typical year. After the County began to operate County Well No. 10, Mr. Slusher observed and videotaped much greater variations in the water level in the fishing pond on his property. After County Well No. 10 began to operate, the pond water level dropped to the extent that it would become virtually empty of water from time to time. At other times, however, the fishing pond would refill with water, such as in September of 1999, and in August of 2001. When the water in Mr. Slusher's pond gets very low, it has an adverse impact on the fish in the pond; the fish die because they have insufficient water. Mr. Slusher has not done anything over the years since the operation of County Well No. 10 began to attempt to prevent the variations in the water level of the fishing pond, or to mitigate the occurrence of such variations. The County (together with the rest of southern Florida) has experienced several periods of severe drought over the past few years. Yet other “ponds” on other properties in the same neighborhood as the Slusher property have not experienced the significant variance in water level that has occurred in the fishing pond on the Slusher property since the County began drawing water from Well No. 10. The County does not operate Well No. 10 continuously. Rather, it has attempted to reduce its use of the well. SFWMD has never issued any notice to the County that any mitigation was required on the Slusher property pursuant to the limiting conditions of the water use permit. The County does not dispute that its operation of Well No. 10 has contributed to a drawdown in the level of the water table in the surrounding area, nor that such a drawdown has contributed to the variance in the water level in the pond on the Slusher property. Indeed, the drawdown of the water table generally was fully anticipated and predicted in the materials submitted by the County to SFWMD. The use of County Well No. 10 to draw water from the surficial aquifer is not the only factor contributing to the variances in the water level of the fishing pond on the Slusher property. Evaporation and natural variances in the level of the water table also contribute to changes in the water level of the fishing pond. Bentonite is a naturally occurring clay that is mined for a variety of uses, including the “lining” or “waterproofing” of reservoirs, lagoons, ponds, ditches, and other man-made bodies of water in order to seal them and to prevent or minimize seepage or percolation of the water into the ground. Even repeated wetting and drying of the clay does not reduce its effectiveness. Bentonite is widely used and has not been found to have any harmful or toxic effects on either human beings or wildlife. In some applications, bentonite clay is a superior lining material when compared to a man-made liner, such as a plastic or polymer sheet. In a small scale application where the volume of water in a lined pond is relatively low, a man- made liner could be forced away (“balloon up”) from the bottom of the pond by the pressure of a rising natural water table. Lining the pond on the Slusher property with Bentonite (or some similar clay) would create a virtually impervious layer that would separate the water in the pond on the Slusher property from the surrounding water table. With such a lining in place, County Well No. 10 would have no significant effect on the water level of the pond. The water level in the pond on the Slusher property could also be stabilized at or near its normal level prior to the operation of County Well No. 10 by installation of a water supply that would add water to the pond whenever the pond dropped below a specified level. Mr. Slusher first complained to the County about the effect of the County’s operation of Well No. 10 in 1997, when he spoke with Jim Mercurio, a County water utilities employee. Mr. Slusher also complained at about the same time to SFWMD, which resulted in a “field investigation” in September 1997. At that time, Mr. Slusher complained about the lowering of the water level in the pond on his property, but specifically denied any adverse effect on the water from his residential water well. Mr. Slusher began to complain about the water quality and water pressure in his residential water well sometime in 2000. The water flowing from Mr. Slusher's residential water well now has an unpleasant odor, taste, and color, and the water causes rust stains. The water pressure of the water flowing from Mr. Slusher's residential water well is less than it was before the construction of County Well No. 10. The rust stains, odor, taste, and color are all due to iron oxidation of the water drawn from the well on the Slusher property. The County regularly experiences similar problems with iron oxidation in the water that it draws from its own wells in the same area as the Slusher property, which the County must treat at the Tropical Farms WTP. The problem of iron oxidation (and accompanying odor and taste deficiencies) in the water is thus not unique to the water drawn from the well on the Slusher property. Iron oxidation in well water is not harmful to human beings. The evidence in this case does not include any evidence of any testing of the water quality of the water coming from the Slusher residential well. Similarly, there is no persuasive evidence as to the current condition of the sub- surface portions of the Slusher residential well. Further, the evidence regarding the cause of any deterioration of the water quality and/or the water pressure of the Slusher residential water well is both anecdotal and speculative, and is not a persuasive basis for determining the cause of any deterioration of the water quality and/or water pressure of the subject residential well. Specifically, the evidence is insufficient to establish that the water quality and water pressure deterioration complained of by Mr. Slusher are a result of the operation of County Well No. 10. Such deterioration could be caused by other circumstances or conditions, including the uninspected sub-surface condition of Slusher's residential water well. The water quality and water pressure problems currently experienced by Mr. Slusher could be minimized or eliminated by connecting his residence to the residential water supply system operated by the County. A branch of the County's public water system already exists in Mr. Slusher's neighborhood within a few hundred feet of his property. The application and information provided to SFWMD by the County were determined by SFWMD to provide “reasonable assurances” that existing legal users would not be adversely affected by the proposed wells or water treatment facility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Governing Board of the South Florida Water Management District enter a final order issuing Water Well Construction Permit No. SF032696B and re- issuing Water Use Permit No. 43-00752W to Martin County, subject to the general and special conditions set forth therein. DONE AND ENTERED this 31st day of May, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 2002. COPIES FURNISHED: Howard K. Heims, Esquire Virginia P. Sherlock, Esquire Littman, Sherlock & Heims, P.A. 618 East Ocean Boulevard, Suite 5 Post Office Box 1197 Stuart, Florida 34995-1197 Douglas H. MacLaughlin, Esquire South Florida Water Management District 3301 Gun Club Road Post Office Box 24680 West Palm Beach, Florida 33416-4680 David A. Acton, Esquire Senior Assistant County Attorney Martin County Administrative Center 2401 Southeast Monterey Road Stuart, Florida 34996-3397 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
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
Recommendation Based upon the above findings of fact and conclusions of law it is recommended that the permit requested be issued in accordance with the recommendations and special provisions set forth in the staff report (attached thereto). Respectfully submitted this 3rd day of November, 1975, in Tallahassee, Florida. CHARLES C. ADAMS 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 3rd day of November, 1975. COPIES FURNISHED: Thomas C. Garwood, Jr., Esquire Post Office Box 231 Orlando, Florida 32802 John Wheeler, Esquire Post Office Box V West Palm Beach, Florida
Findings Of Fact Application No. 76-00292 is for a consumptive use permit for one well located in the Green Swamp, Lake County. The water withdrawn is to be used for industrial purposes. The application seeks a total withdrawal of 3.642 million gallons per day average annual withdrawal and 5.112 million gallons maximum daily withdrawal. This withdrawal will be from one well and a dredge lake and constitutes in its entirety a new use. The consumptive use, as sought, does not exceed the water crop as defined by the district nor otherwise violate any of the requirements set forth in Subsections 16J-2.11(2) , (3) or (4), Florida Administrative Code. The Southwest Florida Water Management District's staff recommends issuance of a permit with the following conditions: That the applicant shall install totalizing flowmeters of the propeller-driven type on the subject well. The applicant shall record the pumpage from the subject well on a weekly basis and submit a record of that pumpage to the district quarterly beginning on January 15, 1977. The permit shall expire on December 31, 1980. The procedural requirements of Chapter 373, Florida Statutes, and the rules promulgated pursuant thereto, have been complied with as they pertain to this application. The intended consumptive use appears to be a reasonable, beneficial use which is consistent with the public interest and will not interfere with any legal use of water existing at the time of the application.
Recommendation It is hereby RECOMMENDED that a consumptive water use permit in the amounts and manner sought for by the subject application be issued subject to the conditions set forth in paragraph 3 above. ENTERED this 5th day of October, 1976, in Tallahassee, Florida. 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 Florida Rock Industries, Inc. Staff Attorney Post Office Box 4667 Southwest Florida Water Jacksonville, Florida Management District Post Office Box 457 Brooksville, Florida 33512
Findings Of Fact Application No. 76-00451 seeks a consumptive water use permit for an existing use involving 14 withdrawal points. The application seeks a total average annual withdrawal of 20.2584 million gallons per day and a maximum daily withdrawal of 45.8539 million gallons per day. The water will be used for citrus processing. The Southwest Florida Water Management District's staff recommends issuance of the permit with the following conditions: That the applicant shall install totalizing flow meters of the propeller-driven type on all withdrawal points covered by this permit. That the applicant shall record the pumpage from the above-referenced meters on a weekly basis and submit a record of that pumpage to the district quarterly, beginning on January 15, 1977. That the permit shall expire on December 31, 1980.
Recommendation It is hereby Recommended that a consumptive use permit in the amounts and from the points set forth in the application be granted subject to the conditions set forth in paragraph 2 above. ENTERED this 13th day of October, 1976, in Tallahassee, Florida. 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 Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 Lykes Pasco Packing Company Post Office Box 97 Dade City, Florida
