95-005763 Rose Ann De Vito vs. John Falkner, Christopher Falkner, And Southwest Florida Water Management District Status: Closed Recommended Order on Friday, April 26, 1996.

Summary: Transfer of water within Most Impacted Area.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSE ANN DEVITO and )

CHARLES AND DIANA BOOTH, )

)

Petitioners, )

)

vs. )

) CASES NO. 95-5763

JOHN FALKNER, ) 95-5764

CHRISTOPHER FALKNER and )

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondents. )

_____________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the

above-styled case on March 1, 1996, in Tampa, Florida.

APPEARANCES

For Petitioner DeVito: Rose Ann DeVito, pro se

11001 Sumner Road

Wimauma, Florida 33598

For Petitioners Booth: Diana P. Booth and

Charles B. Booth, pro se

10812 Sumner Road

Wimauma, Florida 33598

For Respondents Falkner: Patricia Petruff, Esquire

Dye and Scott, P.A.

1111 Third Avenue West

Bradenton, Florida 34206

For Respondent District: Martin Hernandez, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

STATEMENT OF 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.

PRELIMINARY STATEMENT

In September 1994, John and Christopher Falkner filed an application to

modify an existing water use permit. The Southwest Florida Water Management

District proposed to approve the application and issued a Notice of Proposed

Agency Action. Petitions for hearing were filed by Rose Ann DeVito and Charles

and Diana Booth. The matter was forwarded to the Division of Administrative

Hearings which scheduled the proceeding.

At the hearing, Petitioner DeVito testified on her own behalf and had

exhibits numbered 1-9 admitted into evidence. Petitioners Booth presented the

testimony of two witnesses including Charles Booth and had one exhibit admitted

into evidence. Respondents Falkner presented the testimony of two witnesses

including John Falkner and had exhibits numbered 1-14, 17-19, 22-25 and 27

admitted into evidence. Respondent Southwest Florida Water Management District

presented the testimony of two witnesses and had exhibits numbered 1-2 admitted

into evidence. A prehearing stipulation filed by the parties was admitted as a

Hearing Officer's exhibit.

A transcript of the hearing was filed. A proposed recommended order was

filed by Petitioners Booth. A joint proposed order was filed by the

Respondents. The proposed findings of fact are ruled upon either directly or

indirectly as reflected in this Recommended Order, and in the Appendix which is

attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. The Southwest Florida Water Management District (District) is

responsible for regulation and protection of water resources in the geographic

area involved in this proceeding.

2. Since 1994, John Falkner has owned the property in Hillsborough County

which is the subject of this proceeding.

3. The Falkner property is farmed by Christopher Falkner, the owner's

brother.

4. Prior to purchasing the land, the Falkners farmed the property, also

known as the Rogers farm, through a lease arrangement with the previous owner.

5. Rose Ann DeVito owns property to the south of the Falkner property.

6. 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.

7. 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.

8. 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.

9. Charles and Diana Booth own property adjacent and to the south of the

Falkner property.

10. From 1992 to 1994, the Booths suffered from water running off the

Falkner/Rogers farm and flooding the Booth property.

11. 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.

12. The Booths' pasture, top soil and driveway were eroded by the

flooding.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. The Falkners have applied to transfer the existing water use permit

from the previous property owner.

19. 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.

20. 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.

21. 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.

22. The District reviewed the application and, on September 29, 1995,

issued its Proposed Agency Action to Issue Water Use Permit No. 206938.03.

23. 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.

24. 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.

25. 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.

26. 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.

27. 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.

28. Further, uncontradicted evidence and opinions of expert witnesses

establish that the proposed use will not interfere with any existing legal use

of water.

29. 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.

30. 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.

31. Mr. Booth asserted that he is having water quality problems,

specifically with rust in his well.

32. The Booth well is approximately 25 years old. There is no evidence

that the rust is related to the Falkner pumping.

33. 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.

34. 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.

35. 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.

36. The Intermediate aquifer releases water at a much slower rate than the

Floridan aquifer.

37. 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.

38. 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.

39. 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.

40. 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.

41. 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.

42. 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.

43. 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.

44. The applicant has provided reasonable assurances that the water use

will not adversely impact offsite land uses existing at the time of the

application.

45. 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.

46. 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.

47. 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.

48. 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.

49. The evidence fails to establish a substantial likelihood that the

Falkner farm drainage system will not be maintained.

50. The applicant has provided reasonable assurances that the water use

will not cause water to go to waste.

51. 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.

52. 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.

CONCLUSIONS OF LAW

53. The Division of Administrative Hearings has jurisdiction over the

parties to and subject matter of this proceeding. Section 120.57(1), Florida

Statutes.

54. The applicant for the permit has the ultimate burden of proof in

demonstrating entitlement to the permit sought. Department of Transportation v.

J.W.C. Company, Inc. 396 So.2d 778 (Fla. 1st DCA 1981). In this case, the

burden has been met.

55. The transfer of existing water use permits is addressed at Rule 40D-

2.351, Florida Administrative Code. There is no evidence which would suggest

that the Falkners request to transfer the existing permit should not be

approved.

56. The conditions for issuance of a water use permit are set forth at

Rule 40D-2.301, Florida Administrative Code. The parties have stipulated that

the Falkners have provided the District with reasonable assurances that the

proposed water use meets the conditions for issuance stated at Rule 40D-

2.301(a),(c),(d),(e),(f),(g),(i),(j),(k) and (l). The remainder of the cited

rule provides as follows:

(1) 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, by providing

reasonable assurances on both an individual

and a cumulative basis, that the water use:

* * *

(b) Will not cause quantity or quality

changes which adversely impact the water

resources, including both surface and

ground waters;

* * *

(h) Will not adversely impact offsite

land uses existing at the time of the

application;

* * *

(m) Will not cause water to go to waste; and

(n) Will not otherwise be harmful to the

water resources within the District.

57. As set forth herein, the evidence establishes that the applicant has

satisfied the relevant criteria and is entitled to issuance of the permit

58. Petitioners Booth seek an award of damages related to the flooding

which occurred on their property prior to the installation of the berm in 1994.

The Hearing Officer has no authority to award damages to the Booths.

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

[phone]

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

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 ten days in which to submit

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