91-003862 Carl F. Zinn vs. St. Johns River Water Management District Status: Closed Recommended Order on Monday, November 4, 1991.

Summary: Request for consumptive use permit. Recommended grant for sod farm.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL F. ZINN, )

)

Petitioner, )

)

v. ) CASE NO. 91-3862

)

GEORGE STRANGE and ST. JOHNS )

RIVER WATER MANAGEMENT DISTRICT, )

)

Respondents. )

______________________________________)

RECOMMENDED ORDER

Notice was provided and on August 16, 1991, a formal hearing was held in

this cause in accordance with Section 120.57(1), Florida Statutes. The location

of the hearing was the Deland City Hall, Deland, Florida. Charles C. Adams

served as the Hearing Officer.

APPEARANCES

For Petitioner: Clayton D. Simmons, Esquire

Stenstrom, Mackintosh, Julian,

Colbert, Whigham and Simmons, P.A.

200 West First Street, Suite 22

Sanford, Florida 32772-4848

For Respondent Strange:

Michael D. Jones, Esquire

996 Westwood Square, Suite 04

Oveido, Florida 32765

For Respondent St. Johns River Water Management District:

Eric T. Olsen, Esquire

St. Johns River Water Management

District

Post Office Box 1429

Palatka, Florida 32178-1429

STATEMENT OF ISSUES

The issue concerns the entitlement of GJPS Lukas, Inc. to be granted a

consumptive use of water permit from the St. Johns River Water Management

District. See Chapter 373, Florida Statutes, and Chapter 40C-2, Florida

Administrative Code.

PRELIMINARY STATEMENT

Petitioner challenged the intent by the St. Johns River Water Management

District (St. Johns) to grant a consumptive use of water permit to GJPS Lukas,

Inc. in the person of George Strange (Applicant). The case was referred to the

Division of Administrative Hearings for conduct of a formal hearing. That

hearing took place on the date described.

At hearing the Applicant presented the testimony of George Strange. Two

exhibits were admitted as presented by the Applicant. St. Johns presented Jack

Caldwell Lawrence, Jr. as its witness together with its exhibits 1, 4 and 5

admitted. Petitioner testified and presented the testimony of James Caldwell

Lawrence, Jr.

St. Johns moved for official recognition of Chapter 90, Florida Statutes;

Part II Chapter 373, Florida Statutes; Chapter 40C-2, Florida Administrative

Code, and the "Applicant's Handbook, Consumptive Uses of Water" as adopted by

reference in Rule 40C-2.101, Florida Administrative Code. Official recognition

was granted to those items.

A transcript was ordered and filed with the Division of Administrative

Hearings on September 6, 1991, following which St. Johns filed its proposed

recommended order on September 13, 1991. A misunderstanding occurred concerning

the opportunity for Petitioner to submit a proposed recommended order after the

transcript had been filed with the Division of Administrative Hearings.

Petitioner then objected to consideration of the proposed recommended order

filed by St. Johns or alternatively asked for additional time to submit a

proposed recommended order by Petitioner. That motion was granted to the extent

of allowing a proposed recommended order to be filed by Petitioner no later than

October 23, 1991 upon condition that Petitioner not examine the contents of the

proposed recommended order by St. Johns in preparing its proposed recommended

order. The proposed recommended order of the Petitioner was filed on October

17, 1991. The Applicant did not submit a proposed recommended order. The

proposed recommended orders by Petitioner and St. Johns have been considered and

the suggested fact finding in those proposals is commented on in an appendix to

this recommended order.

FINDINGS OF FACT

1. On December 7, 1990, the Applicant applied for a consumptive use of

water permit under application no. 2-127- 0808AN as submitted to St. Johns. The

Applicant asked that it be allowed to withdraw water from the Floridian aquifer

to irrigate a 240 acre sod farm by the use of four wells and a pipeline ditch

irrigation system. This was a new use.

2. On January 9, 1991, St. Johns prepared a technical staff report

recommending approval of the application. Petitioner was provided notice of

this pending disposition on January 15, 1991 leading to his protest to the grant

of the permit.

3. Petitioner's property is adjacent to the Applicant's property.

Petitioner has a well which he uses for domestic water needs which is in the

vicinity of the proposed project. He also has a commercial fish operation with

a number of fish ponds including fresh water ponds. Both these uses may

potentially be affected by the proposed consumptive water use contemplated by

the Applicant.

4. St. Johns calculated that the irrigation of 240 acres of sod, by

calculation using the modified Blaney-Criddle formula pertaining to

evapotranspiration, calls for a maximum extraction of 169.4 million gallons a

year. In any one month the amount withdrawn should not exceed 37.4 million

gallons.

5. The Floridian aquifer at the place where the Applicant proposes to draw

water is capable of the production of 169.4 million gallons of water per year

and 37.4 million gallons per month without promoting environmental or economic

harm. Extraction of this water for purposes of irrigation is an acceptable

arrangement in that no wastewater treatment plants are within a five mile radius

of the site of the proposed use. Therefore it would not be economically,

technically or environmentally feasible for the Applicant to use reclaimed

wastewater as a source for its irrigation needs.

6. The aquifer in that area is stable.

7. There was no showing in the hearing by competent evidence that saline

water intrusion problems now exist in the area of the proposed site of

withdrawal. There was no showing that the withdrawal of as much as 169.4

million gallons per year would cause a saline water intrusion problem.

8. The fields where the Applicant intends to apply the extracted water for

irrigation purposes are surrounded by a system of ditches and water control

structures to confine the water as applied to the sod and any mixing of that

water with any surface or subsurface waters that are contributed by rain events.

The ditches and control structures keep the water on the property and prevent

flooding downgradient of the subject property. As a consequence flood damage on

adjacent properties is not to be expected. On a related issue, the ditches and

control structures will prevent water from discharging into receiving bodies of

water and thereby degrading water in those receiving bodies such as the fish

ponds operated by the Petitioner.

9. The water quality of the Floridian aquifer will not be harmed by the

activities of the Applicant in withdrawing this water.

10. In the worse circumstances the well used by the Petitioner will be

affected by the Applicant extracting the water from the aquifer to the extent of

.25 to .4 drawdown in feet in the well the Petitioner uses. This is not a

substantial impediment to the Petitioner's ability to withdraw needed water from

the well he uses.

11. The Floridian aquifer in the area in question is semi-confined. The

four wells that would be used in withdrawing water for the Applicant's purposes

will extract the water at 110 feet below the surface. Between that level and

the surface are three confining areas of clay totaling approximately 40 feet in

thickness. Those confining units of clay would protect the water at the surface

when the Applicant withdraws water and induces a gradient. In particular, the

nature of the stratification in the soils in the area in question and the

topography are such that the Petitioner's fish ponds, when taking into account

the distance between the Applicant's operation and those fish ponds, the clay

confining units and the gradient between the Applicant's property and the

Petitioner's fish ponds, would not lead to a reduction in the water levels of

the Petitioner's fish ponds when the water was extracted by the Applicant.

12. The proposed use by the Applicant would not require invading another

use reserved by a permit issued from St. Johns.

13. St. Johns has not established minimum levels or rates of flow for the

surface water in the area where the Applicant proposes to extract the water.

Nor has St. Johns established a minimum level for a water table aquifer or a

minimum potentiometric surface water for an aquifer in the area where the

Applicant proposes to extract the water.

14. The surficial aquifer water table beneath the property where the

Applicant intends to apply the extracted water should not be raised inordinately

should the Applicant follow the best management practice as recommended as

special condition No. 9 to the Consumptive Use Technical Staff Report pertaining

to this project. Nonetheless if the water table beneath the Applicant's

property were to be raised to a level which is too high or if the activities by

the Applicant would result in excessive surface water runoff the ditches and

water control structures that isolate the Applicant's property would prevent the

water level in the Petitioner's fish pond from being increased by the

Applicant's proposed activities. The application of the extracted water and the

expected flow pattern of water applied to the surface and control of that water

is set out in St. Johns' Exhibit No. 5 and described in the testimony of Jack

Caldwell Lawrence, Jr., employee of St. Johns and an expert in geology and

hydrology. See pages 61 and 62 of the transcript.

15. Concerning water quality in the Petitioner's fish pond, it will not be

affected by the Applicant's proposed activities in extracting the water. The

gradients and distances between the Petitioner's fish pond and the Applicant's

fields do not allow surface water or water in the surficial aquifer, which is

groundwater above the confining clay unit, to flow from the Applicant's fields

into the Petitioner's fish ponds. Again the ditches and control structures

related to the project offer additional protection against a compromise to the

water quality in the Petitioner's fish ponds.

16. The Technical Staff Report on this project is an apt description of

the project and the necessary conditions to granting a permit which would

protect the public and environment. One modification has been made to that

report and that modification is appropriate. It changes the intended

disposition from one of allowing surface water from the onsite management system

to be used as the primary irrigation supply with the Floridian aquifer serving

as a supplementary source to one in which the Applicant would not use the onsite

management system as a water supply source but would use the onsite management

system simply as a discharge holding area.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties to this action pursuant to Section 120.57(1),

Florida Statutes.

18. Section 373.223(1), Florida Statutes, describes those requirements

which must be satisfied before a consumptive use water permit may be granted to

the Applicant wherein it says:

(1) To obtain a permit pursuant to the

provisions of this chapter, the applicant

must establish that the proposed use of water:

(a) Is a reasonable-beneficial use as

defined in s. 373.019(4);

(b) Will not interfere with any presently

existing legal use of water; and

(c) Is consistent with the public interest.

19. The indication of what is meant by a reasonable beneficial use is

defined at Section 373.019(4), Florida Statutes, to be:

(4) "Reasonable-beneficial use" means the

use of water in such quantity as is necessary

for economic and efficient utilization for a

purpose and in a manner which is both

reasonable and consistent with the pubic

interest.

20. The definition of "reasonable beneficial use" is further defined in

Parts I through III of the "Applicant's Handbook, Consumptive Uses of Water" as

adopted by reference in Rule 40C-2.101, Florida Administrative Code. In

particular Section 10.3 in Part II of that handbook defines "reasonable

beneficial use" as follows:

(a) The use must be in such quantity as is

necessary for economic and efficient

utilization. The quantity applied for must

be within acceptable standards to the

designated use (See Section 12.0 for standards

used in evaluation of need/allocation).

(b) The use must be for a purpose which is

both reasonable and consistent with the

public interest.

(c) The source of the water must be capable

of producing the requested amounts of water.

This capability will be based upon records

available to the District at the time of

evaluation. An eight or ten year capability

will be considered acceptable.

(d) The environmental or economic harm caused

by the consumptive use must be reduced to an

acceptable amount. The methods for reducing

harm include: reducing the amount of water

withdrawn, modifying the method or schedule

of withdrawal, or mitigating the damages

caused (see also subsection 9.4.3 and 9.4.4

of this Handbook).

(e) To the degree which is financially,

environmentally, and socially practicable,

available water conservation and reuse

measures shall be used or proposed for use.

(f) The consumptive use should not cause

significant saline water intrusion or further

aggravate currently existing saline water

intrusion problems.

(g) The consumptive use should not cause or

contribute to flood damage.

(h) The water quality of the source of the

water should not be seriously harmed by the

consumptive use.

( i) The water quality of the receiving body

of water should not be seriously harmed by

the consumptive use. A valid permit issued

pursuant to Section 17-4.24 or Section

17-4.26, F.A.C., shall establish a presumption

that this criterion has been met.

21. The Applicant has adequately addressed those requirements set forth in

the conclusions of law with due regard for the general and special conditions

contemplated by the Technical Staff Report and the conclusion that the Applicant

will not interfere with presently existing legal uses of water and that the

project is consistent with the public interest as contemplated by Section 9.2.2

and 9.3 respectively set out in the handbook.

RECOMMENDATION

Based upon the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That a Final Order be entered which approves the application for

consumptive use of water subject to the conditions set forth in the Technical

Staff Report, excepting the need to have the Applicant utilize water from the

onsite management system as the primary source of irrigation of its sod.

DONE and ENTERED this 4th day of November, 1991, in Tallahassee, Florida.

___________________________________

CHARLES C. ADAMS, 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 4th day of November, 1991.

APPENDIX TO RECOMMENDED ORDER

The following discussion is made of the suggested facts set forth in the

proposed recommended orders.

Petitioner's Facts

Paragraphs 1-6 are subordinate to facts found.

Concerning Paragraph 7, Petitioner does not have standing to take issue with the

quality of notice provided to other adjacent landowners.

As to Paragraph 8, the witness had sufficient understanding of the location and

nature of the surficial or sand aquifer and the clay confining units to have his

testimony credited.

As to Paragraph 9 the fact that the witness is unaware of the exact depth of the

Petitioner's fish pond does not cause his testimony to be disregarded in

deciding that the fish ponds would not be negatively impacted by the activities

contemplated in this permit application.

As to Paragraph 10, this proposed fact is inconsequential given the de novo

nature of this proceeding.

As to Paragraph 11, see discussion of Paragraph 7.

As to Paragraph 12, it is rejected.

As to Paragraph 13, that knowledge was not necessary in determining the outcome

here.

As to Paragraph 14, it is accepted in hypothetical terms, however, no showing

was made that chlorides would increase in this instance and adversely affect the

Petitioner's fish based upon the evidence adduced at hearing.

As to Paragraph 15, the soil samples from Petitioner's property are inclusive

and less reliable that the description of soil in the general area as set forth

by the witness for St. Johns.

COPIES FURNISHED:

Clayton D. Simmons, Esquire

Stenstrom, Mackintosh, Julian,

Colbert, Whigham and Simmons, P.A.

200 West First Street, Suite 22

Sanford, FL 32772-4848

Michael D. Jones, Esquire

996 Westwood Square, Suite 04

Oviedo, FL 32765

Michael D. Jones, Esquire

Post Office Box 3567

Winter Springs, FL 32708

Eric T. Olsen, Esquire

St. Johns River Water Management

District

Post Office Box 1429

Palatka, FL 32178-1429

Henry Dean, Executive Director

St. Johns River Water Management

District

Post Office Box 1429

Palatka, FL 32178-1429

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 top submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended

Order should be filed with the agency that will issue the final order in this

case.