02-000232 Desoto Citizens Against Pollution, Inc. vs. Farmland Hydro Limited Partnership, Redland Growers Exchange, Inc., And Southwest Florida Water Management District Status: Closed Recommended Order on Monday, June 3, 2002.

Summary: Applicants for General Water Use Permit demonstrated reasonable assurances that conditions for issuance are met pursuant to Section 373.223, Florida Statutes, and Rule 40D-2.301, Florida Administrative Code.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DESOTO CITIZENS AGAINST )

POLLUTION, INC., )

)

Petitioner, )

)

vs. ) Case No. 02 - 0232

)

FARMLAND HYDRO LIMITED )

PARTNERSHIP; FRANK T. BASSO, Jr.; )

REDLAND GROWERS EXCHANGE, INC.; )

and SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondents. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its designated Administrative Law Judge, Charles A. Stampelos,

held a final hearing in the above - styled case on April 9, 2002,

in Bartow, Florida.

APPEARANCES

For Petitioner Desoto Citizens Against Pollution, Inc.:

Alan R. Behrens, President

DeSoto Citizens Against Pollutio n, Inc.

4070 Southwest Armadillo Trail

Arcadia, Florida 34266

For Respondent Farmland Hydro Limited Parnership:

William Hawkins, pro se

Farmland Hydro Limited Partn ership

Post Office Box 367

Ona, Florida 33865

For Respondents Frank T. Basso, Jr. and Redland Growers

Exchange, Inc.:

Frank T. Basso, Jr., pro se

c/o Redland Grower s Exchange, Inc.

Post Office Box 1563

Wauchula, Florida 33873

For Respondent Southwest Florida Water Management District:

Martha A. Moore, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

STATEMENT OF THE ISSUE

Whether General Water Use Permit (WUP) Number 20012185.000

(Permit) meets the conditions for issuance as establ ished in

Section 373.223, Florida Statutes, and Rule 40D - 2.301, F lorida

A dministrative Code, and should be issued to Farmland Hydro

Limited Partnership and Frank T. Basso, Jr. and Redland Growers

Exchange, Inc.

PRELIMINARY STATEMENT

On April 11, 2001, Re spondents, Frank T. Basso, Jr. (Basso)

and Farmland Hydro Limited Partnership (Farmland

Hydro)(collectively referred to as the Applicants), filed an

Application with the Southwest Florida Water Management District

(District), requesting approval of a WUP t o withdraw groundwater

from a proposed well for the purpose of crop irrigation to be

undertaken on a parcel of land owned by Farmland Hydro and leased

by Basso and Redland Growers Exchange, Inc. (Redland), and

located in Hardee County, Florida. The Applic ation was assigned

number 20012185.000.

After the Application was filed, the District requested

additional information from the Applicants, which was supplied.

On December 7, 2001, the District advised the Applicants that the

WUP was approved, with final approval contingent upon no

objection to the District's action being filed within the time

frames provided in the written notice of approval.

On or about January 3, 2002, a timely Petition for

Administrative Hearing (Petition) was filed with the District on

behalf of DeSoto Citizens Against Pollution, Inc. (DCAP) and

Alan R. Behrens (Behrens). The District determined that the

Petition, with respect to DCAP, substantially complied with the

requirements of Section 120.569(2)(c), Florida Statutes, and Rule

28 - 106.201(2), Florida Administrative Code. With respect to

Behrens, the District determined that the Petition was deficient

in that it lacked the signature of Behrens in his individual

capacity. Thus, the District issued an Order of Dismissal as to

Behr ens, without prejudice. Behrens did not amend the Petition

to include his individual participation as a party. (Behrens, as

the President of DCAP, appeared as DCAP's authorized

representative in this administrative proceeding.)

On January 16, 2002, the D istrict forwarded the Petition to

the Division of Administrative Hearings for the assignment of an

administrative law judge. On January 28, 2002, this case was set

for final hearing for April 9 and 10, 2002, in Bartow, Florida.

On March 29, 2002, the part ies filed a Joint Pre - Hearing

Stipulation.

On April 1, 2002, DCAP requested a continuance of the final

hearing, which was opposed by the Respondents, and denied.

The final hearing took place on April 9, 2002. Basso

testified in his own behalf, but did not offer any exhibits into

evidence. Edward Marshal Craig, IV, Florida Department of

Agriculture and Consumer Services, Office of Agriculture Water

Policy, testified on behalf of Basso/Redland. William Hawkins

testified on behalf of Farmland Hydro and Bass o, but did not

offer any exhibits into evidence. The District offered the

testimony of Thomas E. Jackson, P.G.; Michael K. Balser, P.G.,

Water Regulation Manager, Bartow Regulation Department; and

Scott Laidlaw, Water Use Regulation Manager for the Distri ct's

Sarasota Regulation Department, in rebuttal. The District's

Exhibits one through eleven were admitted into evidence without

objection. Behrens testified on behalf of DCAP. DCAP's Exhibits

one through three were admitted into evidence without object ion.

(DCAP Exhibit three is the deposition transcript of

George Chase.)

At the close of the final hearing on April 9, 2002, the

parties agreed to file proposed recommended orders within 20 days

after the Transcript was filed with the Division.

On April 17, 2002, DCAP filed a Motion requesting permission

to offer exhibits into evidence. These exhibits were listed on

DCAP's exhibit list, but were not offered into evidence during

the final hearing. Respondents objected to the Motion. The

Motion was denie d.

The two - volume Transcript of the final hearing was filed

with the Division on April 29, 2002.

On May 20, 2002, DCAP filed a Motion requesting an extension

of time to file its proposed recommended order. The Motion was

opposed. Also, the District filed its proposed recommended order

on May 20, 2002. Over objection, the Motion was granted and DCAP

was afforded until May 28, 2002, to file a proposed recommended

order. On May 28, 2002, DCAP filed a proposed recommended order

and the proposed recommended orders have been considered during

the preparation of this Recommended Order.

FINDINGS OF FACT

The Parties

1. 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.

2. Fa rmland 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.

3. Frank T. Basso, Jr., is a third generation farmer, who

operates as Re dland Growers Exchange, and seeks a General WUP to

authorize groundwater withdrawals for crop irrigation.

4. The District is the administrative agency charged with

the responsibility to conserve, protect, manage, and control

water resources within its bound aries pursuant to Chapter 373,

Florida Statutes, and the rules promulgated thereunder as Chapter

40D, Florida Administrative Code.

The Proposed Water Use

5. An Application for a General WUP was submitted by

Farmland Hydro and Basso, as co - applicants, a nd received by the

District on April 11, 2001. After receipt of additional

information, the Application was deemed complete on October 22,

2001.

6. The Applicants seek a General WUP to authorize a new

water use for the irrigation of 140 acres for the produ ction 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.

7. 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.

8. The Brushy Creek Tract is a larger parcel of

approximately 1,230 acres leased from Farmland Hydro by Redland

and a lso 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.

9. Farmland Hydro also operates an a dditional approximately

1,941 acres of property near the subject parcel, which is used

for citrus groves. Farmland Hydro has consumptive WUPs for this

property.

10. The closest existing legal user to the proposed Basso

well site is another well on the Far mland Hydro property.

11. 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 f armed 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 so ught will be

similarly treated.

12. 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 importan t 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.

13. If the WUP is issued and the subject parcel is placed

into crop production, anothe r 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 Q uantities

14. 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 R eview (BOR), page B3 - 1.

15. 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 suppleme ntal 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." T he

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 c rop

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."

16. The AGMOD program deter mines 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.

17. 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 permitte d 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.

18. 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

19. As part of the application review pro cess, 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, whi ch 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 impac ts to assess whether the

application meets the conditions for issuance.

20. 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.)

21. 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.

22. 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 proximit y of

the site, and assists the District in assessing possible

cumulative impacts associated with a proposed use.

23. To assist in assessing potential impacts from the

proposed use, a Peak Month modeling simulation was undertaken by

the District, which simulate s 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.

24. The Peak Month simulation unde rtaken 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 sur face 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.)

25. 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 propert y boundary,

and at the nearest existing legal user.

26. 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 exi sting legal user.

27. 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 cumul ative

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 Propo sed Permit

28. 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

r easonable 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.

29. 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 withdraw al 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.

30. The quantities allocated for the proposed use have been

determined by the Dis trict to be necessary to fulfill a certain

reasonable demand, for the reasons specified herein.

31. 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 integrat ed into the District's

modeling efforts pertaining to proposed water uses.

32. 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

informati on 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 pro posed water use.

33. 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 f or

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.

34. By examining stratigraphic cross sectio nal 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. T o

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.

35. 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 aq uifers 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.

36. The District will deny a water use permit application

if the proposed withdrawal of water, tog ether 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 capac ity 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.

37. Based upon an assessment of individual and cumulati ve

regional information, there are no existing legal uses of water

that will be adversely impacted as a result of the proposed

withdrawals.

38. Based upon an assessment of individual and cumulative

regional information, no quantity or quality changes that

adve rsely impact the water resources, including both surface and

groundwaters, are anticipated from the proposed withdrawals.

39. The District requires that consideration be given to

the lowest water quality available, which is acceptable for the

proposed use. Lo wer quality water includes reclaimed water,

collected stormwater, recovered agricultural tailwater, saline

water or other sources. District BOR, page B4 - 12.

40. For the proposed water use, there is no viable lower

quality water source and no reclaimed water a vailable near the

site to use as an alternative to groundwater pumping. The

Applicants are proposing to use the lowest quality water that is

available.

41. There are no known concerns regarding the quality of

water in the Upper Floridan Aquifer at this locati on 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.

42. Simulated drawdowns to the Upper Floridan Aquifer of

approximately 2.6 feet at the p roposed 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.

43. Simulated drawdowns to the int ermediate 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.

44. Simulated drawdowns to the su rficial 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.

45. The modeling simul ations 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 resourc es.

46. None of the simulated drawdowns are considered to be

predictions of adverse impacts, not even in the localized

vicinity of the well site.

47. Mr. Jackson explained that because the localized

modeling simulations were small or insignificant and showed no

ad verse 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 d ata 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 use s.

48. 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, f or 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.

49. The proposed use presents no concerns for saline water

in trusion.

50. The proposed use raises no concerns regarding causing

pollution to the aquifer.

51. There are no offsite land uses that will be adversely

impacted as a result of this permit.

52. 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 irri gation 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 cre eks" 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.

53. Given these irrigation practices, water is not

reasonably expected to be wasted.

54. All necess ary 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.

55. The proposed use presents no concerns that it will

otherwise be harmful to the water resource.

56. The Applicants have met all the requirements for

issuance of a WUP.

Southern Water Use Caution Area

57. 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 i n the area which have caused reduced aquifer levels.

58. 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 Cauti onary 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.)

59. Pending final adoption of rules for the SWUCA, the

District will continue to issue WUPs for propo sed 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.

60. Once SWUCA rules and minimum flows and levels are

established, the District expec ts 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.

61. Standard Condition No. 9 of the proposed WUP requires

the permitte e 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.

62. 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 l evel 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 impl emented, 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

63. DCAP does not keep official membership records. It

does not maintain any lis t 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 mem bers for this organization.

64. Behrens is a member of DCAP. He has owned five acres

adjoining the west side of Horse Creek (in DeSoto County) since

1985.

65. Behrens complains that the District does not look at

the cumulative effect on his well and other peopl e 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.

66. 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 w ell.)

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 peri ods,

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 wa ter

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.

67. Not all artesian wells flow. Artesian well s 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 lev el 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.

68. The evidence demonstrates that the proposed water use

will not adversely impact Behrens' well.

69. 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,

believ ed 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

su pplying water to the home.

70. 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 wate r 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

us er of water that pre - existed Mr. Chase's well.

71. 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 efficien t 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, whe re 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 solel y to the confined Upper

Floridan Aquifer System. This conclusion is based upon

monitoring of the ROMP sites in the affected areas.

72. Mr. Chase's well is approximately ten miles from the

proposed withdrawal site.

73. There is no basis to conclude that the propos ed water

use will cause any adverse impacts to Mr. Chase's well.

74. DCAP members' interests are not affected any

differently by the proposed use than are the interests of the

general public.

75. DCAP has produced no evidence to support its assertion

that the issu ance of this permit will result in lowered water

levels in the Horse Creek and Peace River or other surface

waters.

76. DCAP has produced no evidence to support its assertion

that the permit will cause adverse impacts to surface water flows

or surface waters o r to environmental features such as

vegetation, fish, and wildlife.

77. DCAP has produced no evidence that its substantial

interests are affected by the proposed agency action.

CONCLUSIONS OF LAW

78. The Division of Administrative Hearings has

jurisdiction over th e parties to and the subject matter of these

proceedings. Sections 120.569 and 120.57(1), Florida Statutes.

79. The purpose of this proceeding, conducted pursuant to

Section 120.57(1), Florida Statutes, is to "formulate final

agency action, not to review act ion taken earlier and

preliminarily." McDonald v. Florida Department of Banking and

Finance , 346 So. 2d 81 (Fla. 1st DCA 1977).

80. The burden of proof in the proceeding is on the party

asserting the affirmative in the proceeding. Florida Department

of Trans portation v. J.W.C. Co. , 396 So. 2d 778, 787 (Fla. 1st

DCA 1981). If a regulatory agency gives notice of intent to

grant a permit application, the applicant has the initial burden

of going forward with the presentation of a prima facie case of

the applica nt's entitlement to a permit. In the context of this

proceeding, the District undertook the burden of showing that the

Applicants provided reasonable assurances that the conditions for

issuance of the WUP have been satisfied in accordance with the

applica ble statutes and rules and the Basis of Review.

81. Once the applicant has made a prima facie case that the

proposed permit should be issued, the petitioner, here DCAP, must

rebut that prima facie case and support the allegations of its

petition challenging th e proposed permit. Id. at 789. Unless

the petitioner, here DCAP, presents "contrary evidence of

equivalent quality" to the evidence presented by the applicant

and agency, the permit must be approved. Id. at 789 - 790.

82. Petitioner cannot carry the burden of presenting

contrary evidence by mere speculation concerning what "might"

occur. Chipola Basin Protective Group, Inc. v. Department of

Environmental Protection , Case No. 88 - 3355, 1998 WL 1859974

(Dept. Env. Reg. Dec. 29, 1988).

83. The standard for applicant' s burden of proof is one of

reasonable assurances, not absolute guarantees, that the

applicable conditions for issuance of the permit have been

satisfied. Manasota - 88, Inc. v. Agrico Chemical Co. and Florida

Department of Environmental Regulation , 12 F.A. L.R. 1319, 1325,

(DER Feb. 19 1990).

84. "Reasonable assurance" contemplates "a substantial

likelihood that the project will be successfully implemented."

Metropolitan Dade County v. Coscan Florida, Inc. , 609 So. 2d 644,

648 (Fla. 3d DCA 1992). See also Hami lton County Board of County

Commissioners v. Florida Department of Environmental Regulation ,

587 So. 2d 1378 (Fla. 1st DCA 1991).

85. The issuance of a permit must be based solely on

compliance with applicable permit criteria. Council of Lower

Keys v. Toppino , 429 So. 2d 67 (Fla. 3d DCA 1983).

86. To meet their burden, the applicants must meet the

requirements of Section 373.223(1), Florida Statutes, which

provides in relevant part that to obtain a WUP, the applicant

must establish that the proposed use of water i s a reasonable -

beneficial use; will not interfere with any presently existing

legal use of water; and is consistent with the public interest.

87. "Reasonable - beneficial use" is defined in Section

373.019(13), Florida Statutes, as "the use of water in such

quan tity as is necessary for economic and efficient utilization

for a purpose and in a manner which is both reasonable and

consistent with the public interest."

88. The District has adopted Rule 40D - 2.301, Florida

Administrative Code, which implements Section 373. 223(1), Florida

Statutes. In relevant part, Rule 40D - 2.301(1), Florida

Administrative Code, 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 in terest, 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:

(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

waters;

(c) Will not cause adverse environmental

impacts to wetlands, lakes, streams,

estuaries, fish and wildlife, or other

natural resources;

(d) Will comply with the provisions of 4.3

of the Basis of Review described in 40D -

2.091;

(e) Will utilize the lowest water quality

the Applicant has the ability to use;

(f) Will not significantly induce saline

water intrusion;

(g) Will not cause pollution of the

aquifer;

(h) Will not adversely impact offsite land

uses existing at the time of the application;

(i) Will not adversely impact an existing

legal withdrawal;

(j) Will utilize local water resources to

the greatest extent p racticable;

(k) Will incorporate water conservation

measures;

(l) Will incorporate reuse measures to the

greatest extent practicable;

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

and,

(n) Will not otherwise be harmful to the

water resources wit hin the District.

(Subsections 40D - 2.301(1)(h) and (j) have been invalidated. See

Southwest Florida Water Management District v. Charlotte County ,

774 So. 2d 903, 913 (Fla. 2d DCA 2001), rev . denied , 800 So. 2d

615 (Fla. 2001)).

89. Rule 40D - 2.301(3), Florid a Administrative Code,

provides that the standards and criteria set forth in the Basis

of Review for Water Use Permit Applications shall be used to

provide the reasonable assurances required in Rule 40D - 2.301(1).

90. Based on the findings of fact set forth abo ve, the

District, on behalf of the Applicants, has established a prima

facie case of the Applicants' entitlement to the proposed WUP.

91. DCAP did not carry its burden of proof with regard to

its challenge to the proposed permit.

92. Reasonable assurances have bee n provided that the

proposed water use is reasonable and beneficial, is in the public

interest, and will not interfere with any existing legal use of

water

93. DCAP did not provide credible evidence that the

proposed WUP would violate any of the applicable per mitting

statutes or rules.

94. Farmland Hydro and Basso/Redland are entitled to

issuance of a General WUP for the proposed use.

95. To meet the requirements for standing under Section

120.57(1), Florida Statutes, DCAP must show that a substantial

number of its m embers will suffer an injury in fact of sufficient

immediacy to entitle the association to a hearing on the members'

behalf and that the alleged injury is within the zone of interest

the proceeding is designed to protect. Agrico Chemical Co. v.

Department of Environmental Protection , 406 So. 2d 478 (Fla. 2d

DCA 1981), rev . denied , 415 So. 2d 1359 (Fla. 1982) and 415 So.

2d 1361 (Fla. 1982). See also Florida Home Builders Association

v. Department of Labor and Employment Security , 412 So. 2d 351,

353 - 54 (F la. 1982). 2 Furthermore, the alleged injury or threat of

injury must be both real and immediate; hypothetical or

conjectural allegations of injury are not sufficient. Village

Park Mobile Home Association v. Department of Business

Regulation , 506 So. 2d 4 26 (Fla. 1st DCA 1987).

96. DCAP did not prove its standing to challenge the

issuance of the subject WUP because it has failed to demonstrate

that a substantial number of its members will suffer an injury in

fact of sufficient immediacy as required by law. Th e alleged

injuries are neither real nor immediate and are based solely on

unproven allegations.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Southwest Florida Water Management District

enter a fin al order:

1. 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

c onditions for issuance of WUPs; 3

2. Issuing proposed General Water Use Permit No.

20012185.000, as set forth in District Exhibit No. 4; and

3. Finding that DCAP lacks standing to challenge the

issuance of the permit.

DONE AND ENTERED this 3rd day of Ju ne, 2002, in Tallahassee,

Leon County, Florida.

__________________________________

CHARLES A. STAMPELOS

Administrative Law Judge

Divis ion of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9 675

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.

ENDNOTES

1/ The weight of the evidence indicates that Applicants propose

to use this form of irrigation. However, the proposed WUP,

issued December 7, 2001, (District Exhibit 4, page 21), indicates

that the irrig ation method is "Drip." The method of irrigation

should be clarified if the WUP is approved.

2/ The parties stipulated that issues of fact and law which

remain to be litigated include "[w]hether a substantial number of

DCAP members are substantially aff ected by the agency action,"

and "[w]hether DCAP has demonstrated that it has standing in this

manner." DCAP refers to Section 403.412(5), Florida Statutes, on

page five of its Petition. (This subsection requires a "citizen"

to file a "verified pleading, " which was not done by DCAP.)

However, it does not appear that DCAP is relying on this

subsection as a predicate for standing in this proceeding in

light of the parties' stipulation.

3/ It appears that the District's preliminary action taken on

Decembe r 7, 2001, was to issue the WUP to "Farmland Hydro Limited

Partnership" and "Frank Basso, c/o Redland Growers Exchange,

Inc." If the District approves the final issuance of a WUP in

this proceeding, the District should clarify to whom the permit

is grante d. The case has been re - styled in light of the evidence

presented in this proceeding to more accurately reflect the

proper parties.

COPIES FURNISHED:

Frank T. Basso, Jr.

c/o Redland Growers Exchange, Inc.

Post Office Box 1563

Wauchula, Florida 33873

Alan R. Behrens, President

Desoto Citizens Against Pollution, Inc.

4070 Southwest Armadillo Trail

Arcadia, Florida 34266

William Hawkins

Farmland Hydro Limited Partnership

Post Office Box 367

Ona, Florida 33865

Martha A. Moore, Esquire

Southwest Florid a Water Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

E. D. "Sonny" Vergara, Executive Director

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.