90-007734 Wyatt S. Bishop, Jr. vs. Hi Hat Cattle And Groves And Southwest Florida Water Management District Status: Closed Recommended Order on Friday, May 17, 1991.

Summary: Protestant failed to show that an applicant for water use permit had unused or unusable wells or that approval would reduce his ability to use his well.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WYATT S. BISHOP, JR., )

)

Petitioner, )

)

vs. )

)

HI HAT CATTLE AND GROVE, a )

Florida general partnership, and )

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, ) CASE NO. 90-7734

)

Respondents, )

)

and )

)

CITY OF SARASOTA, )

)

Intervenor. )

_________________________________)

RECOMMENDED ORDER

A hearing was held in this case before Arnold H. Pollock, a Hearing Officer

with the Division of Administrative Hearings, in Sarasota, Florida on March 28,

1991.

APPEARANCES

For the Petitioner: Wyatt S. Bishop, Jr., pro se

5153 Tucumcari Trail

Sarasota, Florida 34241

For the Respondent: Bram D. E. Canter, Esquire

Hi Hat Cattle and Haben, Culpepper, Dunbar

Grove & French, P.A.

306 North Monroe Street

Tallahassee, Florida 32301

Southwest Florida Edward B. Helvenston, Esquire

Water Mgt. Dist.: SWFWMD

2379 Broad Street

Brooksville, Florida 34609-6899

For the Intervenor: Barbara B. Levin, Esquire

City of Sarasota de la Parte & Gilbert

705 E. Kennedy Blvd.

Tampa, Florida 33602

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether the Respondent, Hi Hat

Cattle and Grove, should be issued water use permit 204387.03, to withdraw

groundwater from the wells on its property, and if so, in what amount and under

what conditions.

PRELIMINARY STATEMENT

By draft permit dated February 16, 1990, the Southwest Florida Water

Management District, (District), indicated its intention to issue a water use

permit to Hi Hat Cattle and Grove, (Hi Hat), to withdraw certain amounts of

groundwater from its wells located on its property in Sarasota County, Florida

under certain conditions. On November 7, 1990, Petitioner, Wyatt S. Bishop, who

had received the agency's notice of proposed action on November 3, 1990, filed a

Petition For Administrative Determination of Substantial Issues in opposition to

the issuance of the agency's permit to Hi Hat. Thereafter, on December 3, 1990,

the agency forwarded the file to the Division of Administrative Hearings for the

appointment of a Hearing Officer, and on December 28, 1990, after the parties

had responded to the Initial Order filed herein, the undersigned set the case

for hearing in Sarasota on March 27 and 28, 1991. However, on December 28,

1990, a hearing was held on the City of Sarasota's, (City), Petition to

Intervene as a party which was opposed by Mr. Bishop. By Order dated January 8,

1991, the undersigned granted the City's Petition and changed the date of

hearing to March 28 and 29, 1991. The hearing was held on March 28, 1991 as

scheduled.

At the hearing, Hi Hat, the District and the City, together, presented the

testimony of Richard E. Turner, Jr., an employee of Hi Hat; Marie C. Jackson, a

Hydrologist III with the District and an expert in hydrology; Douglas H. Taylor,

the Environmental Resources Manager for the City; Eric M. Etters, an engineer;

and Richard V. McLean, the District's Deputy Executive Director for Resource

Regulation. Hi Hat introduced Hi Hat Exhibits 1 through 14 and the City

introduced City Exhibit 1. Mr. Bishop testified in his own behalf and

introduced Petitioner's Exhibits 1 through 5. Petitioner's Exhibits 6 and 7

were offered but not received.

A transcript was provided and subsequent to the hearing, Petitioner

submitted Proposed Findings of Fact and his closing argument. The Respondents

and Intervenor also joined in the submittal of Proposed Findings of Fact. All

the proposals have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Respondent, District,

was the state agency responsible for the permitting of consumptive water use

within its area of geographical jurisdiction. The Respondent, Hi Hat, is a

family owned farming and ranching operation in eastern Sarasota County with

water wells on its property. The Intervenor, City of Sarasota, is a

municipality in Sarasota County which operates wells in the general area of

those operated by Hi Hat, and which has an agreement with Hi Hat for the

latter's use of treated wastewater pumped from the city's treatment plant to Hi

Hat Ranch. The Petitioner, Wyatt S. Bishop, Jr., is a property owner and

resident of Sarasota County whose property is located near the Hi Hat Ranch, and

whose potable water is drawn from a well on his property which utilizes both the

surficial and intermediate aquifers which are penetrated by the wells on Hi Hat

Ranch.

2. Hi Hat Ranch consists of 11,000 acres owned by Hi Hat Cattle and Grove,

the family owned business which operates it, and an additional 3,227 acres

leased from the City of Sarasota. Agricultural operations, including citrus

farming, truck farming, sod farming, and grazing have been conducted on the

ranch since the mid 1940's.

3. In February, 1990, Hi Hat applied to the District for a permit to

withdraw and use water from some 14 wells located on its property. It requested

an annual average of 6,267,000 gallons per day, (gpd), and a peak monthly rate

of 32, 668,000 gpd. Upon receipt by the District, the application was assigned

a number, (204387.03), and was submitted for evaluation by the District staff

for conformity with applicable District rules and policies. When the staff

evaluation was completed, the District issued a staff report and proposed staff

agency action in which it indicated its intention to issue a permit authorizing

water to be drawn from the wells at a rate of 6,570,000 gpd, average annual, a

peak monthly rate of 14,300,000 gpd, and a maximum daily rate of 5,210,000 gpd.

4. In conducting its evaluation, the District staff relied upon the

District's Basis of Review For Water Use Permit Applications which contains

within it the provision for use of a "water use model" in assessing the need and

appropriateness of water withdrawal amounts. This model, known as the Blaney-

Criddle Model considers numerous factors in the evaluation, including rainfall,

soil characteristics, irrigation methods used, and proposed crop types, all in

an effort to determine a reasonable estimate of the applicant's supplemental

water needs. Hi Hat's application was evaluated primarily by Marie Jackson, a

Hydrologist III employed by the District, and an expert in hydrology, who has,

over the years, reviewed between 350 and 400 permit applications, of which

approximately 90 percent have been for agriculture. She is, therefore, quite

familiar with the specifics of agricultural water use needs. Her evaluation of

Hi Hat's application was done in the same manner as the others she has done and

utilized the same tests, measurements and factors for consideration in arriving

at her conclusion.

5. In its application, a renewal with modification sought to increase

average annual quantities due to a change in crop plans, Hi Hat indicated that

its criteria for water use was based on certain agricultural uses and

application rates. These included:

a. low volume under tree spray irrigation of

778 acres of citrus at an application rate of

17.2 inches/year plus one inch/year for frost

and freeze protection.

b. open ditch irrigation of 135 acres of sod

at an application rate of 30 inches/year.

c. open ditch irrigation of 1,367 acres of

improved pasture at an average application

rate of 26.6 inches/year.

d. overhead spray irrigation of 1,200 acres

of improved pasture at an application rate of

20.3 inches/year.

e. open ditch irrigation of 110 acres of

spring peppers at an application rate of

30.0 inches/crop, and

f. open ditch irrigation of 110 acres of

fall peppers at an application rate of 45.2

inches/crop.

6. Applicant also stipulated that the peak monthly quantities that it

requested would be utilized for pasture, sod and citrus irrigation during the

month of May. The proposed maximum quantities were for frost and freeze

protection of citrus only.

7. In January, 1989, Hi Hat entered into a contract with the City of

Sarasota under which the City was obligated to deliver reclaimed water from its

wastewater treatment plant to a "header" located on the ranch which thereafter

distributes the water through pipes to "turnouts" located at various high points

on the property. From these, the water is then discharged into a system of

ridges and furrows for distribution of the water across the needed area. The

reclaimed water is used to irrigate approximately 5,403 acres of ranchland. The

Contract provides for minimum and maximum amounts of water to be delivered as

well as for water quality standards which must be met.

8. In periods of adequate rainfall, when irrigation is not required, any

treated wastewater which is not needed is stored in a 185 million gallon holding

pond on City property located adjacent to the ranch. When needed, water can be

fed into the wastewater distribution system described above from the holding

pond. This reclaimed water, whether from the pond or direct from the header,

can also be utilized to irrigate citrus crops, but this requires a filter system

which has not yet been able to operate properly. Therefore, no reclaimed water

has yet to be utilized for citrus irrigation on the ranch. At an average annual

flow of 6.2 million gallons per day, the pond has the capacity to hold enough

treated water for almost 30 days.

9. Not all wells on Hi Hat Ranch are active wells. Several of the wells

are classified as standby wells which are intended to be used only to back up

the reclaimed water delivery system and are located, normally, beside the

"turnouts." In the event the reclaimed water is not available from the city,

the standby wells can be utilized to provide water to the ridge and furrow

system used to irrigate pasture land. The standby wells are numbers 1, 6, 7,

11, 13, 14, and 15. Well number 5, also identified as a standby well in the

staff report and in the draft permit was mistakenly so identified.

10. The draft permit contains several special conditions which impact on

the drawing of water under the terms of the permit. Significant among these is

Special Condition 33 which prohibits the withdrawal of water from any of the

standby wells unless the reclaimed water supply from the city is interrupted.

Special Condition 27 requires the installation of a flow meter on any standby

well that becomes active as a result of permanent discontinuance of the

reclaimed water supply. With regard to flow meters, Special Condition 22

requires flow meters on all of Hi Hat's wells. Ms. Jackson, however, indicated

this was in error and has recommended that the standby wells be deleted from

that Special Condition. When that is done, only those wells actively producing

water on a regular basis would require the installation of flow meters.

11. In its analysis of the application for permit, the District staff

considered several factors pertinent to the impact the well would have on the

water supply in the area and its effect on other users. These factors include

hydrologic impacts, well condition, the history of water use at the ranch, the

reliability of the reclaimed water system and its ability to provide a uniform

source, and the city's water reuse policy.

12. Addressing each individually, and starting with the hydrologic impact

of the withdrawal of the requested amounts, the District considered the nature

of the existing wells and how they are constructed and maintained. The District

assumed, because the data regarding the construction of the existing wells was

incomplete and insufficient to properly disclose the status of casing on each

well, that they were shallow cased. As a result, the calculations incorporating

this assumption indicate a situation that would occur in its most aggravated

form. The parties agreed that Hi Hat's wells are shallow cased and probably go

no deeper than 90 feet.

13. To determine, as much as possible, the projected drawdowns in the

surficial and intermediate aquifers that might be expected if Hi Hat withdrew

the amounts of water proposed, the District utilized the "MODFLOW" computer

model which factors in simultaneous peak withdrawals from all 14 of the wells

along with a 90 day no rainfall drought condition. This, too, contributes to a

worst case scenario, and the resultant figures are considered to be conservative

estimates of the hydrologic impact of the water withdrawal.

14. Notwithstanding, the application of this computer model resulted in

the indication that, as to the surficial aquifer, the drawdown at Mr. Bishop's

property located approximately one half mile from the ranch border, would be no

more than .055 feet. Since normal fluctuations in the surficial aquifer during

the course of the year can be as much as 6 feet, the projected drawdown as a

result of Hi Hat's withdrawals was considered insignificant.

15. Applying the same assumptions and utilizing the same computer model as

it relates to the intermediate aquifer resulted in an indication of a drawdown

of no more than 2.3 feet at Mr. Bishop's property. Since annual fluctuation in

the intermediate aquifer can range from 15 to 20 feet normally, the District

considers that any reduction of less than five feet in the intermediate aquifer

is insignificant.

16. The permit held by Hi hat currently allows for the withdrawal of more

water than would be withdrawn under the proposed permit as conditioned and is

consistent with the proposed reduction in allowable withdrawals. Considering

that factor, as well as the prohibition against withdrawals from standby wells

as long as reclaimed water is available, the actual impact of the water

withdrawals consistent with the proposed permit would be substantially less than

the computed prediction which includes production from all wells.

17. Drawdown contours are defined across the entire effected area. One of

the levels is a 4 foot contour, and when a computer simulation indicates that

the 4 foot contour includes a withdrawal previously or otherwise permitted, the

District will generally conduct a cumulative impact analysis. In this case,

however, since there was only one golf course well within the area circumscribed

by the 4 foot contour line, and since this withdrawal was too small to have

effected an evaluation, it was not done.

18. The condition of the wells on the Hi Hat Ranch has some bearing on

whether or not the application for additional withdrawal of water should be

granted. These wells are almost 30 years old, having been drilled in the

1960's. As a result, there is little information available regarding their

construction detail. This is not necessarily unusual for agricultural wells,

and there is evidence that there are many similar wells in use within the

District. The reason for this is that at the time the wells were drilled,

information regarding their depth, casing and other matters were not required to

be kept or reported. However, there is no indication the wells are in any way

violative of well construction criteria and their use has been authorized

continuously since 1977.

19. When he prepared Hi Hat's application, Mr. Turner included much the

same information regarding the wells as pertains as to depth and diameter which

he had previously submitted in earlier applications and which had been accepted.

In each case, casing depths had been reported as unknown. Notwithstanding the

information contained in some old well logs relative to only a few of Hi Hat's

wells, this information is in no way definitive and it is difficult to describe

anything specific with the majority of these wells. Nonetheless, as already

found, it is stipulated that most are approximately 90 feet deep.

20. It is reasonable to assume that the existing wells, however, are cased

only to a shallow depth, and that in many cases, the existing casings have

corroded away, either totally or in part. This can cause an intermixing of

water from the separate aquifers, but whether this is in fact happening depends

upon factors specific to that particular well. Petitioner did not present any

evidence to show that as a result of the condition of Hi Hat's wells, any

degradation is occurring in the more potable, surficial aquifer as a result of

intermixing with water from the intermediate aquifer on or around the Hi Hat

Ranch.

21. In Ms. Jackson's opinion, and there appears to be no evidence to

contradict it, the amount of drawdown which would occur as a result of maximum

pumping at Hi Hat Ranch would not be sufficient to cause poorer quality water

from the Floridan aquifer to percolate upward (upcone) into the better quality

water of the two upper aquifers even during drought conditions. By the same

token, there is no evidence that drawdown would encourage or permit salt water

intrusion.

22. Petitioner attempted to show by the records kept on the various Hi Hat

wells that many of them have been abandoned and are no longer operative and

should not be allowed to fall within the parameters of this permit. He

testified clearly that over the years, the level of water in his potable water

well has lowered and presumed that this was the result of increased water usage

by other entities which draw from the aquifer into which his well is sunk.

Water level, however, depends upon numerous factors, of which usage is only one.

Others include recharging of the aquifer and the amount of rainfall and other

recharge sources not only in the immediate area but across the large area which

feeds the aquifer.

23. Mr. Bishop did not present any evidence showing a causal connection

between the lowering of the water in his well, or the degradation in water

quality he claims to have experienced, and either the drawdown caused by Hi

Hat's operation or by aquifer intermixing. He indicated, and it is not

disputed, that within the past year, he has had to take measures to improve the

water quality in his potable well, but, again, he has not presented any evidence

to show this was caused by Hi Hat's ground water withdrawals.

24. In its long range planning, the District intends to implement a

program to rehabilitate old wells, and when that program is implemented, almost

every agricultural well within the District may require recasing or redrilling.

This program will not be implemented for several years, however.

25. In an effort, however, to insure that all reasonable precautions are

taken to see that approval of any petition for withdrawal does not have an

unacceptable adverse impact on the water needs of the surrounding community, in

its analysis of this application, and in all cases, the District makes certain

assumptions when adequate empirical data is not available. In this case,

pertaining to the unavailability of information regarding Hi Hat's wells, the

District assumed that all wells were shallow cased, and this placed the

application in the worst possible light. Shallow cased wells allow more

upconing and aquifer intermixing. Nonetheless, the amount of water permitted to

Hi Hat, even if not used, could impact on Mr. Bishop and other adjoining owner's

use of additional water as a result of a possible change to their permitted

quantities.

26. However, to compensate for this, the District has also included a

special condition, (#26), which requires Hi Hat to log all 14 of its wells

within the term of the permit, (7 years), which will require at least 2 wells be

done each year. The cost of that action will be between $800 and $2500 per

well. Another condition, (#31), requires Hi Hat to look into any complaint from

adjacent property owners regarding adverse impacts due to water withdrawal, to

report the results of its inquiry to the District, and to mitigate, as much as

possible, all adverse impacts due to its withdrawal.

27. Mr. Bishop claimed, and introduced evidence purporting to demonstrate,

that many of the wells on the Hi Hat Ranch, which are covered by the permit

applied for here, are no longer in use and have been abandoned. In response,

Mr. Turner, who has been actively engaged in the ranch's operations for at least

the past four years, indicates from his personal knowledge, that all 14 wells

included in the permit applied for have been operated within the past two years,

and all are capable of producing water. It is so found. Not all wells,

however, have been operated at all times. Crop rotation and a varying need for

groundwater has resulted in some wells not being used at some times. This is,

of course, commonplace in agriculture and to be expected as a result of crop

planning programs.

28. Admittedly, an accurate figure for the amount of water which has been

withdrawn from the 14 wells cannot be established because these wells do not

have, and were not required to have, flow meters. Two of the wells were fitted

with hour meters in January, 1989, but because the capacity of the pumps on

those wells is variable, a precise estimate of volume pumped cannot be

determined. The meters measured only the number of hours the pumps were in

operation and not the amount of water passed through the pumps.

29. Evidence was presented, however, to show that wells have been utilized

at the ranch since the 1960's, and in 1977, some 14 years ago, following

District implementation of a consumptive water use permit program, the ranch

first applied for water withdrawal permits. These permits have been renewed as

required and all water usage since the implementation of the program has been

permitted.

30. Turning to the reclaimed water supply, the delivery system,

incorporating a program to pump reclaimed water from the treatment plant all the

way back out to the ranch site, is subject to material failure and operator

error, and either one can occur at any number of places along the system route.

Each could result in interruption of the delivery of the reclaimed water to the

ranch. The system is far more complex than would be the use of on-site wells

for delivery of ground water.

31. One two week shutdown in the system was occasioned by a major pipe

failure as a result of pressure building up in the pipes. Were it not for the

fact that a contractor was already at the ranch with replacement parts on hand

to effect expeditious repair of the system, the shutdown could have lasted

considerably longer than it did.

32. This is not the only interruption, however. Several main line leaks

and valve problems have caused the system to be shut down on several occasions

for short periods of time. The filter system required for the water destined

for the citrus area is problematical, and so far this area of the ranch has not

received any reclaimed water in the 10 months the system has been in operation.

33. Mr. Bishop argues that the wet weather holding pond is a solution to

the reliability problems with the pipe line, but the pond has had problems of

its own. Sand in the water, which comes from the holding pond, has been the

primary difficulty in the filter system for the citrus area, and algae growth in

that pond has the potential to create other filter problems.

34. Delivery of the water from the pond is not accomplished by a gravity

system, but instead, requires the use of pumps powered by an electric motor. In

the event of a power failure, this source would be unavailable. Discounting all

of the above, however, and assuming, arguendo, that all systems were in top

operating condition, the fact remains that the delivery system from the pond to

the distribution system is not adequate to supply the amount of water that would

be necessary to have an effective freeze protection program.

35. In any case, the reclaimed water supply is not the panacea for all

water shortage problems experienced at Hi Hat Ranch. In the first place, the

quality of the reclaimed water is generally lower than that of the groundwater

which would come from wells on the ranch. Also, the City's treatment process

does not remove from the water all the pollutants that are of concern to the

farm operators. For one thing, total dissolved solids in the reclaimed water

are considerably higher than in the ground water, and high dissolved solid

levels can be harmful to citrus crops. In fact, the Institute of Food and

Agricultural Sciences recommends that citrus irrigation water not exceed total

dissolved solid ranges of from 1000 to 1500 milligrams per liter, (mpl).

Testing done on the reclaimed water delivered to Hi Hat Ranch showed it averaged

between 1200 and 1500 mpl. Though within recommended parameters, it was toward

the high end.

36. Further, reclaimed water is not totally interchangeable with ground

water for all agricultural purposes. It cannot, by law, be applied to certain

types of ground crops such as melons, nor can it be used for overhead citrus

irrigation. There is also a restriction on the use of reclaimed water for

pastures on which dairy cattle will be grazed. This all results in a

restriction on the options available to the farmer who chooses to use reclaimed

water in his irrigation plan. As a result, many farmers try not to use

reclaimed water if they have access to adequate amounts of groundwater from on-

site wells.

37. Notwithstanding all the above, the parties agree that the use of

reclaimed water for irrigation purposed is in the public interest. The District

encourages it but nonetheless concedes that even with the availability of

reclaimed water, a farmer should have access to wells on his property, in a

standby capacity, as an alternative source of water to support his farming

activities. Not only that, the agreement between the City and Hi Hat provides

for Hi Hat to maintain its water use permit even while receiving reclaimed water

from the City.

38. Hi Hat is not the only farm operation with whom the City has

negotiated in a effort to expand its wastewater distribution program. It has

found in those negotiations, that most farm producers are not willing to rely

totally on reclaimed water for all their irrigation needs, and it has concluded

that were it mandatory that a farmer give up his on-site ground water

withdrawals in order to utilize reclaimed water for a part of his needs, most

would be reluctant to use it at all. This would seriously interfere with the

City's ability to dispose of its surplus reclaimed water consistent with its

policy.

39. Even though Hi Hat's property lies within the Eastern Tampa Bay Water

Use Cautionary Area, the rule pertaining thereto is inapplicable to Hi Hat

because Hi Hat filed its application for permit, which was deemed complete,

prior to the adoption of the rule. Nonetheless, water use officials agree that

the proposed permit is consistent with the rule emphasis on the use and reuse of

reclaimed water, and the District does not object to backup wells being

permitted as supportive of the District's desire to keep ground water within the

ground.

CONCLUSIONS OF LAW

40. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter in this case. Section 120.57(1), Florida

Statutes.

41. Hi Hat Ranch seeks approval of a permit to withdraw certain amounts of

water from 14 wells on its property for various types of irrigation involved in

its agricultural operations. This permit is required by Rule 40D-2.041, F.A.C..

42. The conditions to be met to support issuance of a permit for the

consumptive use of water is found in Rule 40D-2.301(1)(a) - (n), F.A.C..

Initially, the applicant must demonstrate that his proposed water use is

reasonable and beneficial, is in the public interest, and will not interfere

with any existing legal use of water. To establish this, he must provide

reasonable assurances on both an individual and cumulative basis, that the

criteria set forth in subparagraphs (a) through (n) are met.

43. The parties have stipulated that not all permit criteria are at issue

here. Some, including subparagraphs (c), (d), (j), (k), (m), and (n) are not

related to the matters which are held to be in dispute in this case. Those

criteria remaining in issue are that the permit:

(a) Is necessary to fulfill a certain

reasonable demand;

(b) Will not cause quantity or quality

changes which adversely impact the water

resources including both surface and ground

water;

(e) Will not cause water levels or rates of

flow to deviate from the ranges set forth in

Chapter 40D-8;

(f) Will not significantly induce saline

water intrusion;

(g) Will not cause pollution of the aquifer;

(h) Will not adversely impact off site land

uses existing at the time of the application;

(i) Will not adversely impact an existing

legal withdrawal; and

(l) Will incorporate reuse measures to the

greatest extent practicable.

44. In permit cases, the burden of proof initially is upon the applicant

to demonstrate its entitlement to the permit. Florida Department of

Transportation v. J.W.C., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981). Once

the applicant has demonstrated its entitlement to the permit, the burden shifts

to the Petitioner who must establish, consistent with the allegations in his

Petition, that the applicant has not demonstrated its entitlement.

45. The State's water policies are contained in Chapter 17-40, F.A.C..

The general policy involving water management programs is outlined in Rule 17-

40.310(4), which mandates that these programs, rules and plans, encourage the

reuse of reclaimed water. The term, "reuse" is defined in Rule 17-40.210(14)

as, "... the deliberate application of reclaimed water for a beneficial

purpose." The term, "reclaimed water", is defined in subparagraph (13) of that

rule as, "... water that has received at least secondary treatment and is used

after flowing out of a wastewater treatment facility.  . "

46. One of the criteria in issue in this case is that of reuse measures as

provided for in Rule 40D-2.301(1)(l), F.A.C., which requires that the water use,

... will incorporate reuse measures to the

greatest extent practicable;

47. In the application at issue here, the authorization sought for the

"standby" wells provides those wells be used only in the event that reclaimed

water becomes unavailable. Since inherent in that provision is the assumption

that the primary source of water will be either direct rainfall or reclaimed

water, it would appear that the application directly conforms not only to the

letter but also to the spirit of that criterion. Since it has already been

found that, in this case, if Hi Hat is not granted the authority to utilize the

standby wells and must, perforce, rely solely on rainfall and reclaimed water,

it is obvious that Hi Hat would seek to obtain not standby but operational use

of the wells, resulting in nonuse of reclaimed water and a higher groundwater

consumptive rate. That would be in direct contravention of the statutes and

rules which require the encouragement and implementation of programs for

reclaimed water use.

48. The District has concluded that Hi Hat has provided reasonable

assurances that those criteria in issue have been met, and this conclusion

appears to be appropriate. Taken together, and analyzing all the criteria

remaining in issue, it would appear that Hi Hat has provided the requisite

reasonable assurance that these criteria have been met.

49. The District has presented ample evidence to indicate that appropriate

hydrologic studies were made utilizing the most current and updated models and

informational inputs which resulted in an expert conclusion that the effect of

the wells in issue on the immediate area water resources, including both ground

and surface water, would not be appreciably changed for the worse.

Specifically, water levels and rates of flow would not be appreciably affected

and would not induce saline water intrusion at all. In that regard, neither the

intermediate nor the surficial aquifers would be polluted. Further, it would

appear that the wells are sufficiently deep so as to draw from a source the

quality of which is lower than that utilized by Mr. Bishop and Hi Hat's

surrounding neighbors other than institutional users. Taken together, it would

appear, notwithstanding Mr. Bishop's protestations to the contrary, that

granting approval for the standby wells would not adversely impact his off site

land use existing both at the time of the application and currently. It should

not adversely impact on his existing legal withdrawal. The reason for his

existing water problems was not shown to be related to Hi Hat's current usage,

nor could they likely be exacerbated by approval of the standby well authority

sought here.

50. In addition to his primary complaint that Hi Hat's wells would cause

his already adversely affected well to be even more so, Mr. Bishop claimed that

the District's provision for standby wells constituted "banking" water, but this

issue does not seem to be properly raised by the facts of this case. Even if it

were to become a problem in the future, however, Florida statutes and the rules

of the District provide an appropriate means for resolution of the problem.

51. Mr. Bishop also claims that many of Hi Hat's wells have not been in

use for over two years, and, therefore, fall under the purview of Rule 40D-

2.341, F.A.C., which calls for the District's governing Board to revoke a permit

if the use is no longer beneficial or reasonable, or in the public interest. In

arriving at such a conclusion, the Board must consider, inter alia, whether the

water supply called for under the permit has been used within the last two

years. If it has not been, the user must prove that his nonuse was due to

extreme hardship caused by factors beyond his control.

52. Mr. Turner clearly indicated that to his personal knowledge, all wells

had been used within the past two years at one time or another. This was

notwithstanding certain photographs introduced by Mr. Bishop which he claimed

showed that those wells depicted therein were not in operation and did not

appear to have been for quite a while. Nonetheless, the rule refers to the

water supply and not the wells. Further, the two year criteria is but one

factor for consideration, and the Board has discretion to allow the permit if it

determines the use is both reasonable and beneficial, and in the public

interest.

53. In any case, the District has incorporated in Rule 40D-2.091, a

recognition that periodic nonuse of agricultural wells is not at all unusual.

It recognizes that in operations where crops and wells are rotated on a seasonal

or other basis, unused wells should be capped pending installation of pumping

equipment in the future. This provision is routinely added to the standard

conditions of a water use permit.

54. Capping, however, is substantially different than plugging, and under

district rules, the latter is applicable only, "whenever a well is determined to

be unusable or when no use is intended." This is tantamount to an "abandoned

water well" which, as defined in Section 373.303(1), Florida Statutes, is:

... a well, the use of which has been

permanently discontinued.

55. Petitioner's evidence, which consisted primarily of his testimony and

opinions, as well as certain photographs and documentation, did not establish,

sufficiently, in light of Mr. Turner's unequivocal contradiction, that any of Hi

Hat's wells are either unusable or permanently unused.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is,

therefore:

RECOMMENDED that Hi Hat Cattle and Grove be issued water use permit No.

204387.03, within the limits of the authorized quantities as indicated in the

intent to issue, subject to conditions contained therein; except that the permit

be amended to show well No. 5 as a non-standby well, and to delete standby wells

from the terms and requirements of Special Condition 22.

RECOMMENDED this 17th day of May, 1991, in Tallahassee, Florida.

__________________________________

ARNOLD H. POLLOCK, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of May, 1991.

APPENDIX TO RECOMMENDED ORDER

The following constitutes my specific rulings pursuant to

Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact

submitted by the parties to this case.

FOR THE PETITIONER:

1. Accepted

2. Accepted and incorporated herein.

3. Accepted and incorporated herein.

4. - 6. Accepted and incorporated herein.

7. - 11. Accepted.

12. - 15. Accepted and incorporated herein.

16. Accepted.

17. Accepted.

18. & 19. Accepted and incorporated herein.

20. - 22. Accepted and incorporated herein.

23. Accepted and incorporated herein.

24. Accepted and incorporated herein.

25. - 28. Accepted and incorporated herein.

29. Accepted and incorporated herein.

30. Rejected. She testified that Condition 28 of the

permit provides this.

31. Accepted.

32. Accepted.

33. Accepted and incorporated herein.

34. Accepted.

35. & 36. Accepted.

37. Rejected as not supported by the evidence except

that the method permitted was the method being used.

38. - 40. Accepted.

41. Ms. Jackson indicated she "assumed" some wells were

drilled into the Florida aquifer.

42. Rejected.

43. Accepted as qualified by the comment, "depending on

the respective potentiometric heads."

44. - 47. Accepted.

48. Accepted but incomplete. This is because they did

not feel it was necessary under the circumstances.

49. - 51. Accepted.

52. Accepted.

53. Accepted.

54. Accepted.

55. Accepted.

56. Accepted and incorporated herein.

57. Accepted.

58. Redundant.

59. - 61. Accepted.

62. - 66. Accepted and incorporated herein.

67. Accepted.

68. More a restatement of testimony than a Finding of

Fact

69. Accepted and incorporated herein.

70. & 71. Accepted and incorporated herein.

72. - 74. Accepted.

75. Accepted.

76. First sentence accepted. Second portion rejected

since cited case involves active wells versus standby, as here.

77. The comparison made is accepted. The conclusion

drawn as to validity is rejected.

78. & 79. Accepted.

FOR THE RESPONDENTS AND INTERVENOR:

1. & 2. Accepted and incorporated herein.

3. Accepted and incorporated herein.

4. Accepted and incorporated herein.

5. & 6. Accepted and incorporated herein.

7. - 10. Accepted and incorporated herein.

11. - 13. Accepted and incorporated herein.

14. - 17. Accepted and incorporated herein.

18. Accepted.

19. Accepted.

20. Accepted and incorporated herein.

21. Accepted and incorporated herein.

22. & 23. Accepted and incorporated herein.

24. Accepted.

25. Accepted and incorporated herein.

26. Not a Finding of Fact but a comment on the

evidence.

27. Accepted.

28. & 29. Accepted and incorporated herein.

30. - 33. Accepted and incorporated herein.

34. - 37. Accepted and incorporated herein.

38. Accepted.

39. Accepted.

40. - 42. Accepted and incorporated herein.

43. Accepted and incorporated herein,

44. & 45. Accepted.

46. & 47. Accepted and incorporated herein.

COPIES FURNISHED:

Wyatt S. Bishop

5153 Tucumcari Trail

Sarasota, Florida 34241

Bram D.E. Canter, Esquire

Haben, Culpepper, Dunbar & French, P.A.

306 N. Monroe Street

Tallahassee, Florida 32301

Edward B. Helvenston, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34609-6899

Barbara B. Levin, Esquire

de la Parte & Gilbert

705 East Kennedy Blvd.

Tampa, Florida 33602

Peter G. Hubbell

Executive Director

SWFWMD

2379 Broad Street

Brooksville, Florida 34609-6899

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should consult with the agency which will issue the

Final Order in this case concerning its rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency which will issue the Final Order in this case.