02-001116 Southwest Florida Water Management District vs. Balm Associates, Inc. Status: Closed Recommended Order on Tuesday, July 30, 2002.

Summary: Water use permittee responsible for over-pumpage of water by leasee using its property.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Petitioner, )

)

vs. ) Case Nos. 02 - 1116

) 02 - 1117

BALM ASSOCIATES, INC., and )

GOODSON FARMS, INC., )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

Pursua nt to notice, these matters were heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on June 12,

2002, in Tampa, Florida.

APPEARANCES

For Petitioner: Christine C. Stretesky, Esquire

Mary Beth Russell, Esquire

Southwest Florida Water Management

District

2379 Broad Street

Brooksville, Florida 34604 - 6899

For Respondent: H. Vance Smith, Esquire

(B alm) Smith, Clark, Delesie, Bierly,

Mueller & Kadyk

Post Office Box 2939

Tampa, Florida 33601 - 2939

For Respondent: William L. Williams, Jr., Esquire

(Goodson Farms) Williams and Trayner

602 Channelside Drive

Tampa, Florida 33602 - 5443

STATEMENT OF THE ISSUE

The issue is whether Respondents should be subject to

civil penalties and required to submit a Compliance Plan fo r

the reasons stated in the Administrative Complaint and Order

filed on January 8, 2002.

PRELIMINARY STATEMENT

This matter began on January 8, 2002, when Petitioner,

Southwest Florida Water Management District, issued an

Administrative Complaint and Order alleging that between

March 1999 and July 2001, Respondents, Balm Associates, Inc.

and Goodson Farms, Inc., had made withdrawals of water without

having a water use permit, and after obtaining a permit in

August 2001, had made withdrawals in excess of the quantity of

water authorized by the water use permit. For these

violations, the charging document seeks to impose civil

penalties and to require Respondents to take corrective

action. On January 30, 2002, Balm Associates, Inc. filed its

Petition and Request for Hearing. That matter has been

assigned DOAH Case No. 02 - 1116. On January 31, 2002,

Goodson Farms, Inc. (through a lay person) filed a paper

styled as Revised Petition for Informal Administrative

Hearing. That matter has been assigned DOAH Case No. 02 - 1117.

Both matters were referred to the Division of Administrative

Hearings on March 19, 2002, with a request that an

Administrative Law Judge be assigned to conduct a hearing.

The two cases were later consolidated by Order dated April 1,

200 2. On June 2, 2002, the cases were transferred from

Administrative Law Judge Charles A. Stampelos to the

undersigned.

Petitioner's Motion to Dismiss the Revised Petition for

Informal Administrative Hearing filed by Goodson Farms, Inc.,

was granted by Orde r dated April 1, 2002, with leave to file

an amended petition by April 20, 2002. After Goodson Farms,

Inc., failed to make an amended filing, on May 22, 2002,

Petitioner filed a Motion to Dismiss With Prejudice on the

ground that Goodson Farms, Inc., had failed to file an amended

petition as required by the earlier Order. At the final

hearing, however, Petitioner requested that a ruling be

reserved on its pending Motion to Dismiss until after the

conclusion of the hearing.

By Notice of Hearing dated Apri l 3, 2002, a final hearing

was scheduled on June 12, 2002, in Tampa, Florida. At the

final hearing, Petitioner presented the testimony of Edward

Kouadio, staff hydrologist and accepted as an expert, and

Michael E. Hare, supervisor for Goodson Farms, Inc. Also, it

offered Petitioner's Exhibits 1 - 4, 6 - 10, 12, 13, and 15 - 17,

which were received in evidence.

The Transcript of the hearing was filed on June 28, 2002.

Proposed Findings of Fact and Conclusions of Law were filed by

Petitioner and Balm Associate s, Inc., on July 15, 2002, and

they have been considered by the undersigned in the

preparation of this Recommended Order. None were filed by

Goodson Farms, Inc.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determine d:

a. Background

1. In this enforcement action, Petitioner, Southwest

Florida Water Management District (District), proposes to

assess civil penalties against, and require a compliance plan

from, Respondents, Balm Associates, Inc. (Balm) and Goodson

Fa rms, Inc. (Goodson), on the grounds that from March 1999

through July 2001 they made water withdrawals from certain

property in Hillsborough County, Florida, without a water use

permit, and after a permit was obtained in August 2001, they

continued to exce ed the annual average daily withdrawals

authorized under the permit through the month of November

2001, or just prior to the preparation and issuance of the

Administrative Complaint and Order (Complaint). 1

2. While not denying that excessive pumpages ma y have

occurred, and that a permit was not obtained until August

2001, Balm points out that it is the owner - lessor of the

property and not the consumptive user of the water, and

contends that the District has no authority to enforce its

rules against, and recover civil penalties from, the non - user

of the water. In its request for a hearing, Goodson did not

specifically dispute the allegation that it consumed water

without a permit, or exceeded the withdrawal limits under the

new permit, but contended inste ad that the limits were

unrealistic and should be modified. At the final hearing,

however, Goodson disputed the accuracy of the water

consumption figures used in the Complaint.

3. The District is the administrative agency charged

with the responsibility to conserve, protect, manage, and

control water resources within its boundaries and to

administer and enforce Chapter 373, Florida Statutes.

4. Balm is a corporation registered to do business in

the State of Florida. Its mailing address is 2101 Huntingto n

Avenue, Sarasota, Florida 34232. It owns approximately 220

acres of land in Section 28, Township 31 South, Range 21 East,

in Hillsborough County, Florida, which is the site of the

alleged wrongdoing.

5. Goodson is a corporation registered to do busin ess in

the State of Florida. Its mailing address is Post Office Box

246, Balm, Florida 33503. Goodson is in the farming business

and operates a total of 13 farms, including the farm at issue

in this proceeding.

b. Permit Requirements

6. Under Rule 40D - 2.041(1), Florida Administrative Code,

a water use permit is required whenever total withdrawal

capacity from any source or combined sources is greater than

or equal to 1,000,000 gallons per day (gpd); annual average

withdrawal from any source or combined sources is greater than

or equal to 100,000 gpd; or withdrawal is from a well having

an outside diameter of 6 inches or more at the surface.

7. Rule 40D - 2.351(1), Florida Administrative Code,

provides that a permittee must notify the District within 30

days of the sale or conveyance of permitted water withdrawal

facilities or the land on which the facilities are located.

The same rule also provides that where a permit has been

issued to a party whose ownership or legal control of the

permitted water wi thdrawal facilities subsequently ends, the

party who assumes control over the facilities may apply to

transfer the permit to himself or herself up to the renewal

date of the transferor's permit.

8. Finally, Rule 40D - 2.351(2), Florida Administrative

Code , provides that until a permit is transferred or a new

permit is obtained, the party subsequently controlling the

permitted water withdrawal facilities will be in violation of

District rules for making withdrawals without the required

permit.

c. History of Permits on the Property

9. On September 29, 1989, the District issued Water Use

Permit No. 207135.001 (the .001 permit) to James Brown (Brown)

and B & T Growers Partnership (B & T) for water withdrawals

from one well for agricultural purposes on Balm 's property.

The .001 permit authorized annual average withdrawals of

102,000 gpd of groundwater for agricultural irrigation.

10. On August 29, 1990, the District adopted new rules

applicable to District permits within the Eastern Tampa Bay

Water Use C aution Area (ETBWUCA). The .001 permit was within

the ETBWUCA, and Brown and B & T were provided with a Notice

of Permit Modification and new Permit Conditions. The new

conditions became effective November 15, 1990. New Condition

No. 5 provided that

By July 31, 1995, all permitted withdrawal

points shall be equipped with totalizing

flow meters or other measuring devices as

approved in writing by the Director,

Resource Regulation Department. Such

devices shall have and maintain accuracy

within five perc ent of the actual flow

installed.

11. On December 14, 1992, the District approved the

transfer of the .001 permit from Brown and B & T to B. Kenda

Produce.

d. The Unpermitted Water Withdrawals

12. On June 30, 1997, Goodson entered into a two - year

agr icultural lease with Balm to use a portion of the property,

including acreage previously used by B. Kendra Produce. At

the time the lease was entered into, neither Respondent

applied to the District to have the .001 permit transferred

from B. Kendra Produ ce. It can be reasonably inferred from

the evidence that after the first lease expired, the parties

continued to execute new lease agreements at least through the

time of the hearing.

13. The portion of the property which Goodson leased and

farmed is ref erred to as the "Sweat Loop Farm" and consists of

approximately 100 acres. There is one well with an outside

diameter of 10 inches at the surface located on the Sweat Loop

Farm. The well's total withdrawal capacity is approximately

1,500 gallons per minu te (gpm), which is over 1,000,000 gpd.

Thus, withdrawals from the well required a water use permit.

14. As noted earlier, Goodson operates a total of 13

farms on approximately 2,500 acres of land. There are

approximately 15 wells on all 13 farms, includ ing the Sweat

Loop Farm.

15. Michael E. Hare, an irrigation supervisor who is

responsible for the irrigation of all 13 of Goodson's farms,

installed a total of approximately 8 meters on the farms,

including the meter on the Sweat Loop Farm. A totalizin g flow

meter, which was made by MiCrometer, was installed at the

Sweat Loop Farm in June 1997.

16. Mr. Hare acknowledged that he was familiar with

MiCrometer meters and would be aware if the MiCrometer flow

meter on the Sweat Loop Farm was not functioni ng properly.

Whenever metering devices on the various Goodson farms have

malfunctioned in the past, Mr. Hare has taken the

malfunctioning meter to a metering company to be fixed.

17. Goodson began irrigating the Sweat Loop Farm in

June 1997. Since t hat time, Goodson has been the sole water

user of the well on the farm. In March 1999, Goodson began

submitting to the District monthly pumpage reports for the

groundwater withdrawals on the Sweat Loop Farm. Although some

unmeasured withdrawals presumabl y occurred prior to March

1999, the Complaint does not identify these as being a

violation.

18. Mr. Hare and other supervisors are responsible for

collecting the meter readings which go on the monthly pumpage

reports and providing them to the District. The information

on the reports includes the permit number; the last month's

meter reading; the current month's meter reading; the total

gallons of water pumped for the current month; the meter

total; and the meter factor.

19. To determine the average d aily withdrawal on the

Sweat Loop Farm, the District relied upon the calculations

provided by Goodson as to the total gallons of water pumped

for the month and divided this number by 30 days. From March

1999 through July 2001, these quantities were as fol lows:

MONTH/YEAR AVERAGE DAILY PUMPAGE

March 1999 531,487

April 1999 No data available

May 1999 364,930

June 1999 0

July 1999 0

August 1999 57,410

September 1 999 49,563

October 1999 222,667

November 1999 250,667

December 1999 755,003

January 2000 689,433

February 2000 695,073

March 2000 544,427

April 2000 305,153

May 2000 597,720

June 2000 0

July 2000 62,120

August 2000 86,370

September 2000 123,233

October 2000 602,020

November 2000 409,550

December 2000 145,823

Janu ary 2001 957,690

February 2001 890,213

March 2001 391,280

April 2001 467,640

May 2001 617,177

June 2001 0

July 2001 0

20. Under Rule 40D - 2.041(1)(a) - (c), Flo rida

Administrative Code, a water use permit was required for

Goodson's withdrawals since the well's total withdrawal

capacity is approximately 1,500 gpm, which is greater than

1,000,000 gpd; the annual average withdrawals exceeded 100,000

gpd; and the wel l has an outside diameter of 10 inches at the

surface.

21. The withdrawals on the Sweat Loop Farm were not

authorized by the .001 permit since neither Goodson or Balm

was a permittee under the permit. Even if Goodson could rely

on the permit, which it ca nnot, pumpage data provided by

Goodson reflects that the water withdrawals (except for nine

months) were in excess of that authorized by the permit.

22. On June 16, 2000, the District mailed a Notice of

Non - Compliance for excessive water withdrawals to Go odson.

The Notice indicated that if the pumpage values submitted by

Goodson were incorrect, Goodson was to explain the error and

provide corrected quantities.

23. On June 26, 2000, the District received a written

response to the Notice of Non - Compliance from the

superintendent of the Sweat Loop Farm who indicated that the

pumpage values were correct, and that the excess usage was due

to a "serious drought condition" which had caused a

"significant financial hardship on [the] farm." The response

also indi cated that Goodson would contact Mr. Haftel, owner of

Balm, to request that he "revise the water use permit for

spring crops."

24. On November 22, 2000, the District mailed Goodson a

Notice of Violation indicating that the quantities authorized

by the .00 1 permit were still being exceeded and that the

District might seek monetary penalties if Goodson failed to

come into compliance within 30 days.

25. Despite the foregoing Notice, Goodson continued to

make withdrawals without a permit and in excess of the

quantities formerly authorized under the .001 permit until

August 2001 when a new permit was finally obtained.

e. Issuance of a New Water Use Permit

26. On January 2, 2001, the District received an

application for a General Water Use Permit seeking to mo dify

the .001 permit to increase the withdrawal quantities and to

transfer the permit from B. Kendra Produce to Balm. "Seymour

Haftel/ Balm Associates, Inc." was listed as the applicant,

and "Donn Goodson" from " Goodson Farms" was listed as

the con tact or consultant. Mr. Haftel signed the application

on behalf of Balm. Goodson assisted Balm in securing the

permit for the Sweat Loop Farm because Goodson wanted more

water for irrigation purposes.

27. Section 2.1 of the Basis of Review for Water U se

Permit Application, adopted and incorporated by reference by

Rule 40D - 2.091, Florida Administrative Code, provides that

"[a]pplications for leased property, except property leased

from the District, must be either a joint application in the

name of the lessee and the property owner(s) or be only in the

name of the property owner(s)."

28. In a Request for Additional Information mailed to

Balm on January 29, 2001, the District asked whether Goodson

should be listed as co - applicant on the application. O n April

27, 2001, Balm submitted a response which indicated that

Goodson should not be listed as co - applicant.

29. On August 6, 2001, the District issued Water Use

Permit No. 200007135.002 (the .002 permit) to Seymour

Haftel/Balm Associates, Inc. authoriz ing an increase in the

annual average withdrawals to 224,300 gpd. The permit had an

expiration date of September 29, 2009. The permit contained a

number of special conditions, none of which were challenged by

Balm.

f. Unauthorized Withdrawals Under the .002 Permit

30. Special Condition No. 2 of the .002 permit requires

in part that the permittee:

continue to maintain and operate the

existing non - resettable, totalizing flow

meter(s), or other flow measuring device(s)

as approved by the Regulation Depart ment

Director, Resource Regulation, for District

ID No(s), Permittee ID No(s)[,] G - 1. Such

device(s) shall maintain an accuracy within

five percent of the actual flow as

installed. Total withdrawal and meter

readings from each metered withdrawal shall

be recorded on a monthly basis and reported

to the Permit Data Section, Records and

Data Department, (using District forms) on

or before the tenth day of the following

month.

31. In the event a permittee chooses not to use a

totalizing flow meter, as req uired by Special Condition No. 2,

the District will review information provided by the measuring

device's manufacturer to determine if the measuring device

would maintain a five percent accuracy as required by the

Condition.

32. The meters have to be moni tored and calibrated

periodically for accuracy. It is the permittee's

responsibility to comply with the conditions of the permit,

including Special Condition No. 2, which requires the

submittal of accurate pumpage reports.

33. Goodson submitted the meter readings on behalf of

Balm beginning in September 2001, which covered the

withdrawals for the month of August 2001.

34. The District relied on the meter readings submitted

by Goodson to determine the annual average daily pumpage

calculation for the .002 permit. The calculation is a running

12 - month average, whereby each month the annual average daily

quantity is recalculated based on the previous 12 - month

pumpage.

35. The running annual average daily pumpage and

percentage of pumpage which exceeded the .002 permit from

August 2001 through May 2002 are as follows:

M ONTH/YEAR ANNUAL AVERAGE DAILY PUMPAGE PERCENTAGE

OVERPUMPED

August 2001 378,462 69 percent

September 2001 382,622 71 percent

Octob er 2001 376,687 68 percent

November 2001 383,008 71 percent

December 2001 379,212 69 percent

January 2002 327,343 46 percent

February 2002 321,530 43 percent

March 2002 350,701 56 percent

April 2002 356,013 59 percent

May 2002 338,131 51 percent

36. As the foregoing data reflects, the withdrawals from

the Sweat Loop Farm were in excess of that authorized by the

.002 permit from August 2001 through May 2002.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties heret o

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

38. Because Respondents may suffer civil penalties and

other disciplinary action, Petitioner bears the burden of

showing by clear and convincing evidence that the charges in

the Administrat ive Complaint and Order are true. See , e.g. ,

Ferris v. Turlington , 510 So. 2d 292, 294 (Fla. 1987).

39. Section 373.119(1), Florida Statutes, provides in

part that

Whenever the executive director of a water

management district has reason to believe

that a violation of any provision of this

chapter or any regulation promulgated

thereunder or permits or order issued

pursuant thereto has occurred, is

occurring, or is about to occur, the

executive director may cause a written

complaint to be served upon the alleged

violator or violators.

40. Acting under that authority, the District has issued

a charging document alleging that (a) Respondents made

"withdrawals prior to transferring an existing permit or

obtaining a new permit" in violation of Section 373.21 9(1),

Florida Statutes, and Rules 40D - 2.041(1) and 40D - 2.351,

Florida Administrative Code, and (b) Respondents made

"withdrawals in excess of the quantity of water authorized by

the .002 Permit" in violation of Section 373.219(1),

Florida Statutes, and Rule 40D - 2.381, Florida Administrative

Code.

41. As to the first charge, Section 373.219(1), Florida

Statutes, authorizes the District to "require such permits for

consumptive use of water and may impose such reasonable

conditions as are necessary to assu re that such use is

consistent with the overall objectives of the district . . .

and is not harmful to the water resources of the area." Rule

40D - 2.041(1), Florida Administrative Code, requires a water

use permit if any of the following thresholds are exc eeded:

total withdrawal capacity from any source is greater than

1,000,000 gpd; annual average withdrawal from any source or

combined sources is greater than or equal to 100,000 gpd; and

withdrawal is from a well having an outside diameter of 6

inches or m ore at the surface. Finally, Rule 40D - 2.351,

Florida Administrative Code, generally relates to the transfer

of permits and provides that where a permit has been issued to

a party whose ownership or legal control of the facilities

subsequently terminates, the party subsequently controlling

the facilities may apply to transfer the permit to himself or

herself up to the renewal date of the transferor's permit.

Subsection (2) of the rule also contains a prohibition against

any water withdrawals from a well un til a permit is

transferred or a new permit is obtained.

42. As to the second charge, Rule 40D - 2.381, Florida

Administrative Code, enumerates the standard conditions found

in all water use permits, including one in paragraph (3)(q)

that "[a]ll permits i ssued pursuant to these Rules are

contingent upon continued ownership or legal control of all

property on which pumps, wells, diversions or other water

withdrawal facilities are located." Another condition in

paragraph (3)(c) requires that the permittee " not deviate from

any of the terms or conditions of the permit [including the

total quantities of water authorized under the permit] without

written approval by the District."

43. Balm does not dispute its ownership of the property,

the fact that overpum page occurred on the Sweat Loop Farm, or

that Goodson has violated the law. Rather, in its Proposed

Findings of Fact and Conclusions of Law, Balm contends that

the District lacks specific statutory authority to "require

Balm[,] a non - user of the water wit hdrawal facility[,] to

comply with the permit conditions required by Rule 40D - 2.381."

More specifically, it disputes the validity of Rule 40D - 2.041,

Florida Administrative Code, which requires a permit before

withdrawals of water may occur, and Section 2 .1(1) of the

Basis of Review, which requires that "[a]pplications for

leased property . . . must be either a joint application in

1 8

the name of the lessee and the property owner(s) or be only in

the name of the property owner(s)."

44. Balm voluntarily app lied for the .002 permit for the

purpose of increasing water quantities for its lessee,

Goodson. Although Balm was provided with notice of its rights

to challenge the .002 permit, including any condition that it

disagreed with, it did not request a hearin g. Thus, Balm has

waived its right to challenge any aspect of the permit.

45. At the time Balm was issued its permit, it was

subjected to liability for any violations of the terms and

conditions of the permit, including Standard Condition No. 3

which p rohibits the permittee from deviating from "any of the

terms or conditions of this permit without written approval by

the District." Thus, Balm was responsible for complying with

the condition that withdrawals not exceed the "current

permitted quantities" of 224,300 gpd. By failing to comply

with this provision, and as the permittee having "continued

ownership or legal control of [the] property," Balm violated

the terms of the permit and is subject to this disciplinary

action. Accordingly, Balm is liable for any excessive

withdrawals of water under the .002 permit, as charged in the

Complaint. 2

46. Balm has not complied with the provisions which

govern challenges of an agency rule. See Section 120.56(1),

Florida Statutes (2001). Therefore, the undersig ned lacks

authority to consider the contention that an administrative

rule or a portion of the Basis of Review are an invalid

exercise of delegated legislative authority.

47. By clear and convincing evidence, Petitioner has

shown that the withdrawals of w ater on the Sweat Loop Farm

required a water use permit; that Goodson was in control of

the water withdrawal facility located on the farm between June

1997 through July 2001, or prior to the issuance of permit

.002; and that neither Goodson or Balm possess ed a permit for

withdrawals during this time. The evidence also clearly and

convincingly demonstrates that the meter readings submitted by

Goodson beginning in March 1999 and continuing through July

2001 were accurate and that all water withdrawals during that

time period (except for the months of June and July 1999, June

2000, and June and July 2001 when none occurred) were not

authorized. However, any withdrawals which may have occurred

prior to March 1999, while unlawful, are not cited as a basis

for d isciplinary action.

48. Accordingly, it is concluded that Goodson is liable

for withdrawing groundwater without a permit from March 1999

through July 2001 (except for the five months noted above), in

violation of Section 373.219(1), Florida Statutes, and Rules

40D - 2.041(1)

and 40D - 2.351(2), Florida Administrative Code, as charged in

the Complaint.

49. Like Balm, and as the lessee of the property,

Goodson is also liable for withdrawing groundwater in excess

of that authorized under the .002 permit from August 2001

through May 2002, in violation of Section 373.219(1),

Florida Statutes, and Rule 40D - 2.381(3)(c), Florida

Administrative Code, as charged in the Complaint.

50. In its Proposed Recommended Order, Petitioner

recommends that Balm and Goodson be required to submit to the

District within fourteen days after entry of a final order an

acceptable written plan describing how Respondents shall

achieve full compliance with the .002 permit. However, no

civil penalties are recommended by the District at this time.

This recommendation tracks verbatim the suggested corrective

action in paragraph 17 of the the Complaint. While this

penalty appears to be relatively light given the repeated

nature of the violations over a 3 - year period, it has been

recomm ended below.

51. In light of the above conclusions, the District's

Motion to Dismiss with Prejudice Goodson's Revised Petition

for Informal Adminstrative Hearing is rendered moot.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Southwest Florida Water Management

District enter a final order determining that Respondents are

guilty of the charges in its Administrative Complaint and

Order except as concluded in paragraph 48 above a nd endnote 2

below; that Respondents be required to submit an acceptable

written plan (Compliance Plan) to the District for its

consideration and approval within fourteen days after entry of

the final order; that the Compliance Plan describe how

Respondent s shall achieve full compliance with the .002

permit; that the Compliance Plan include reductions in

withdrawals, water conservation measures, and development and

utilization of alternative resources; that the Compliance Plan

establish deadlines for implem entation and completion of

corrective actions; that full compliance be achieved within

120 days after entry of the final order; and that any failure

of Respondents to comply with any provision of the Compliance

Plan shall constitute a violation of the fina l order.

DONE AND ENTERED this 30th day of July, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of July, 20 02.

ENDNOTES

1/ At hearing, and without objection, Petitioner introduced

evidence showing that withdrawals continued to exceed the

permit limits through the month of May 2002.

2/ Although the Complaint alleges that Balm is also guilty of

withdrawing water without a permit prior to the issuance of the

.002 permit, the District has abandoned that charge in its

Proposed Recommended Order.

COPIES FURNISHED:

E.D. "Sonny" Vergara, Executive Director

Southwest Florida Water M anagement District

2379 Broad Street

Brooksville, Florida 34604 - 6899

Christine C. Stretesky, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

William L. Williams, Jr., Esquire

Williams & Traynor

602 Channelside Drive

Tampa, Florida 33602 - 5443

H. Vance Smith, Esquire

Smith, Clark, Delesie, Bierly,

Mueller & Kadyk

Post Office Box 2939

Tampa, Florida 33601 - 2939

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exc eptions within

15 days of the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will render a final order in this matter.