87-004644 West Coast Regional Water Supply Authority vs. Southwest Florida Water Management District Status: Closed Recommended Order on Monday, July 10, 1989.

Summary: Evidence does not establish that landowner's withdrawal of well water will interfere with the authority's existing legal use of water. Permit approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WEST COAST REGIONAL WATER )

SUPPLY AUTHORITY, )

)

Petitioner, )

and )

)

PINELLAS COUNTY, )

) CASE NO. 87-4644

Intervenor, )

)

vs. )

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

____________________________________)

FREEMAN F. POLK, )

)

Petitioner, )

)

vs. )

)

WEST COAST REGIONAL WATER SUPPLY )

AUTHORITY (CONSUMPTIVE USE PERMIT )

NO. 203650, CYPRESS CREEK WELL )

FIELD), and SOUTHWEST FLORIDA ) CASE NO. 87-4645

WATER MANAGEMENT DISTRICT, )

)

Respondents, )

)

and )

)

PINELLAS COUNTY, )

)

Intervenor. )

____________________________________)

FREEMAN F. POLK, )

)

Petitioner )

)

vs. )

)

WEST COAST REGIONAL WATER SUPPLY )

AUTHORITY (CONSUMPTIVE USE PERMIT )

NO. 204290, CROSS BAR RANCH WELL )

FIELD), and SOUTHWEST FLORIDA )

WATER MANAGEMENT DISTRICT, ) CASE NO. 87-4647

)

Respondents. )

and )

)

PINELLAS COUNTY, )

)

Intervenor. )

____________________________________)

WEST COAST REGIONAL WATER )

SUPPLY AUTHORITY, )

)

Petitioner, )

and )

)

PINELLAS COUNTY, )

)

Intervenor, ) CASE NO. 88-1169

)

vs. )

)

FREEMAN F. POLK AND )

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondents. )

____________________________________)

RECOMMENDED ORDER

The final hearing was held in this matter in Tampa, Florida, on February 27

through March 2, 1989, before Donald D. Conn, Hearing Officer, the Division of

Administrative Hearings.

APPEARANCES

West Coast Edward P. de la Parte, Jr., Esquire

Regional Water Douglas N. Wyckoff, Esquire

Supply 705 East Kennedy Boulevard

Authority: Tampa, Florida 33602

Freeman F. Polk: Thomas E. Cone, Jr., Esquire

202 Madison Street

Tampa, Florida 33602

Pinellas County: John T. Allen, Jr., Esquire

Chris Jayson, Esquire

4508 Central Avenue

St. Petersburg, Florida 33711

Southwest Florida Bram D. E. Canter, Esquire

Water Management 306 North Monroe Street

District: Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

The issue in this case is whether the Southwest Florida Water Management

District (District) should approve applications to renew consumptive use permits

filed on behalf of the West Coast Regional Water Supply Authority (Authority),

Pinellas County (County), and Freeman F. Polk (Polk), and if so, what conditions

should be included in the permits. The District proposes to issue renewed

permits to these applicants with specified conditions, but Polk seeks certain

additional condition; to the permits sought by the Authority and the County, and

similarly, the Authority and County seek the imposition of additional conditions

on Polk's permit. The parties seek these additional conditions to insure that

the permitted uses will not interfere with any legal use of water existing at

the time of the applications, and will also not cause the water table to be

lowered so that lake stages or vegetation are adversely and significantly

affected on lands other than those owned, leased or controlled by the

applicants.

PRELIMINARY STATEMENT

At the hearing, the Authority and County called a total of five witnesses

and introduced seventy-seven exhibits, nine witnesses were called and fifty-six

exhibits introduced by Polk, and the District called three witnesses and

introduced four exhibits. The transcript of the hearing was filed on May 3,

1989, and the parties requested and were granted an extension until June 9, 1989

to file proposed recommended orders. The Appendix to this Recommended Order

contains a ruling on each timely filed proposed finding of fact.

FINDINGS OF FACT

The following findings are based upon relevant stipulations of the parties:

1. The Authority is a special taxing district of the State of Florida

encompassing Pasco, Pinellas and Hillsborough Counties, which was created by

interlocal agreement on October 25, 1974. It is responsible for the design,

construction, operation and maintenance of facilities in locations, and at

times, necessary to insure that an adequate supply of water will be available to

all persons residing within its boundaries.

2. The District is an agency of the State of Florida which is charged with

regulating consumptive uses of water in a sixteen county area, including

Pinellas, Pasco and Hillsborough Counties. It has implemented a permitting

program that requires all persons seeking to withdraw water in excess of an

annual average daily rate of 100,000 gallons, and a maximum daily rate of

1,000,000 gallons, to obtain a consumptive use permit.

3. The Cypress Creek Wellfield is located on a 4,895 acre site in central

Pasco County, lying east of U.S. 41 between State Roads 52 and 54. The District

owns 3,623 acres of this Wellfield, and the remaining 1,272 acres are owned by

the City of St. Petersburg. Construction on the Cypress Creek Wellfield

commenced in 1974, and it currently consists of thirteen production wells,

numerous monitor wells, several thousand feet of transmission lines, two 5

gallon storage tanks, a pump station and several buildings.

4. The City of St. Petersburg, Pinellas and Pasco Counties, and the

District have transferred their rights and privileges in this Wellfield, as well

as the Wellfield facilities, to the Authority by contracts entered into in

November, 1973, and August 1974.

5. Water produced at the Cypress Creek Wellfield is sold at cost by the

Authority to users which include the City of St. Petersburg and Pinellas County.

The water produced at this Wellfield comprises 29% of the County's total water

system demand (20 million gallons a day), and 25% of the City of St.

Petersburg's total system demand (10 million gallons a day). These water

systems serve approximately 470,000 and 330,000 persons, respectively.

6. In March 1978, the District issued a six-year consumptive use permit to

the Authority, the City of St. Petersburg, and the County authorizing an annual

average and maximum daily withdrawal of 30 million gallons a day from the

Cypress Creek Wellfield. The Authority also began a detailed ecological

monitoring program in, and around, this Wellfield in 1978. A three-year permit

was then issued to the Authority in December, 1982, authorizing withdrawals of

30 million gallons a day, annual average, and 40 million gallons a day, maximum

daily, from the Wellfield. The District determined by Order No. 82-28, dated

December 1, 1982, that an average annual daily rate of withdrawal of 30 million

gallons, and a maximum daily rate of withdrawal of 40 million gallons from the

Cypress Creek Wellfield was a reasonable-beneficial use, was consistent with the

public interest, and would not interfere with any legal use of water existing at

the time of that application.

7. An application for renewal of the Cypress Creek Wellfield consumptive

use permit at the quantities permitted in 1982 was filed with the District on

November 7, 1985, by the Authority, the County and the City of St. Petersburg.

The continued withdrawal of water from the Cypress Creek Wellfield at an annual

average daily rate of 30 million gallons, and a maximum daily rate of 40 million

gallons is needed in order to meet the water supply demands of the residents of

Pinellas and Pasco Counties, is in the interest of residents of Pinellas County,

and will not cause the rate of flow of a stream or other watercourse to be

lowered below the minimum rate of flow established by the District.

8. The regulatory level of the potentiometric surface established by the

District for the Cypress Creek Wellfield has never been exceeded by prior

withdrawals of water at permitted rates. Continued withdrawal of water from the

Cypress Creek Wellfield at an annual average daily rate of 30 million gallons,

and a maximum daily rate of 40 million gallons will not cause the potentiometric

surface level to be lowered below sea level, or any regulatory level established

by the District, will not cause the surface level of water to be lowered below

any minimum established by the District, and will not significantly induce salt

water encroachment.

9. The Cross Bar Ranch Wellfield is located on a 8,060 acre site in north

central Pasco County, lying approximately one mile south of the Pasco-Hernando

County line, and immediately east of U.S. 41. The Cross Bar Ranch Wellfield

property has been owned by Pinellas County since 1976. Wellfield construction

was completed in 1981.

10. By agreement entered into on April 11, 1979, the Authority is

obligated to sell the County water produced from the Cross Bar Ranch Wellfield,

but any excess not currently being used by the County may be sold to other

members of the Authority. A significant amount of water produced at Cross Bar

Ranch is pumped to the Cypress Creek Wellfield where it is combined with that

Wellfield's water, and then distributed to Pinellas and Hillsborough Counties,

as well as the City of St. Petersburg, for further distribution. The water

produced at these two Wellfields in combination accounts for about 60% of the

County's total water system demand.

11. Following pump tests performed from 1977 to 1979, as well as an

ecological monitoring program, the District issued a modified consumptive use

permit to the Authority by Order 80-9, dated February 6, 1980, for Cross Bar

Ranch Wellfield. The District determined that withdrawals at an average daily

rate of 30 million gallons, and a maximum daily rate of 45 million gallons from

Cross Bar Ranch Wellfield was a reasonable beneficial use, was consistent with

the public interest, and would not interfere with any legal use of water

existing at the time of that application.

12. On November 7, 1985, the Authority and County jointly applied to the

District for renewal of the consumptive use permit for Cross Bar Ranch Wellfield

at the current permitted quantities of an annual average daily rate of 30

million gallons, and a maximum daily rate of 45 million gallons. These

withdrawal rates are needed in order to meet present and future water supply

demands of the residents of Pinellas, Pasco and Hillsborough Counties, provide

water for environmental mitigation, and make up water when one or more

production facilities cannot pump at their permitted levels.

13. The withdrawal of water from Cross Bar Ranch Wellfield at permitted

rates will not cause the level of the potentiometric surface to be lowered below

sea level, or any regulatory levels established by the District, and will not

significantly induce salt water encroachment. Jumping Gully is the only stream

or watercourse in the vicinity under the influence of this Wellfield, and the

District has not established a minimum rate of flow for Jumping Gully.

Hydrologic data collected from monitor wells located at the Cross Bar Ranch

Wellfield show the potentiometric surface has been above mean sea level during

the operation of this facility.

14. The District has renewed consumptive use permits for a period of ten

years for the City of St. Petersburg, and the City of Lakeland Power Plant.

15. The Authority owns, leases or otherwise controls the area within both

the Cypress Creek and Cross Bar Ranch Wellfields. Polk owns, leases or

otherwise controls the property identified in his amended permit application of

July 26, 1988.

16. Both the Authority's and Polk's permit applications were filed on the

proper forms, and otherwise comply with the District's procedural requirements

for consumptive use permits.

17. Each party has standing to participate in this case.

18. The proposed uses of water which are the subject of these proceedings

are reasonable beneficial uses, and in the public interest.

19. The only permit criteria that remain at issue in this case are set

forth in Rules 40D-2.301(1)(c) and (2)(e), Florida Administrative Code.

The following findings of fact are based upon the evidence presented at the

hearing:

20. Polk was first issued a consumptive use permit for Ft. King Ranch in

August, 1981, after both the Cypress Creek Wellfield and Cross Bar Ranch

Wellfield had each been permitted to withdraw 30 million gallons per day.

Polk's permit authorized him to withdraw ground water at an average annual rate

of 420,000 gallons per day, and a maximum rate of approximately 1.94 gallons per

day for irrigation of pasture grass and citrus, and cattle drinking water. A

temporary consumptive use permit issued to Polk in August, 1981, was signed by

him and states on its face that these additional groundwater withdrawals were

necessary because of drought conditions. A modified permit was issued to Polk

by the District in July, 1982, authorizing him to increase his withdrawals to an

average annual rate of approximately 1.94 gpd, and a maximum rate of 5.9 gpd.

Polk's wells are not metered. Prior to August, 1981, Polk did not have man made

surface or groundwater withdrawal on his property.

21. As it relates to this proceeding, the property owned, leased or

otherwise controlled by Polk is known as the Ft. King Ranch, which is generally

located between the Cross Bar Ranch and Cypress Creek Wellfields, and consists

of approximately 6,000 acres. The Ft. King Ranch is comprised of five tracts

which were separately acquired by Polk commencing in January, 1969, and ending

in 1984. By 1978, Polk had acquired two of these five tracts. He leased a

third tract beginning in 1971, before acquiring an ownership interest in 1981.

These three tracts were designated parcels A, B, and C, and are located in the

eastern and northern portion of the Ranch. These three parcels were the only

tracts owned, leased or otherwise controlled by Polk at the time the first

Cypress Creek and Cross Bar Ranch Wellfield permits were issued in 1978. The

western tracts were acquired in 1982 and 1984, and were also referred to as the

AL-BAR Ranch at hearing.

22. Polk uses the Ft. King Ranch for a cow-calf operation, and also sod

farming and seeding. From 1969 to approximately 1978, there was sufficient

surface water on the Ft. King Ranch for these farming activities to be carried

out without irrigation or wells. Water holes used by cattle were always wet,

and lakes on the property were used for swimming and fishing. His pasture, hay,

seed and sod grasses received moisture solely from rainfall. However, Polk did

not establish the amounts of water used in his operations prior to the issuance

of Wellfield permits. In 1976, parcels A, B, and C were used for these

purposes, although Polk has frequently changed the specific size and location of

acreages devoted to these land uses.

23. In order to correct flooding that occurred on portions of the Ft. King

Ranch during times of heavy rainfall, Polk sought the advice of the Soil

Conservation Service in the mid-1970's. He was advised to construct a series of

dikes and swales to control the flow of surface water on his property.

24. During 1980 and 1981, Polk constructed a network of swales and ditches

to divert and control the flow of surface water from portions of the Ranch

needing less water to those requiring wetter conditions, such as his sod and

seed operation. The swales interconnect lakes and ponds on his Ranch. He also

constructed a levee on the property, and installed a lift pump. These

activities have converted most of the eastern portion of his ranch to improved

pasture and sod grasses, and virtually eliminated native vegetation. Polk had

no professional help in the construction of his ditch-swale systems, or the

levee.

25. Beginning in approximately 1980, drier conditions were experienced at

the Ranch. One of the ten driest years on record in this area occurred in 1980,

and continued drought conditions in 1981 caused the District's Governing Board

to declare a water shortage, and impose water conservation measures throughout

the District. Some lakes and cypress swamps dried completely and failed to

recharge to pre-1980 levels after rainfall. Due to reduced water availability

since 1980, including drought conditions in 1985, Polk's calf weights have

decreased, while the number of non-breeding cows has increased. Feed bills have

increased due to reduced hay and grass production at the Ranch. Polk's bahia

seed and sod crops have also declined since 1980 due to reduced surface water

levels. Adequate and stable moisture is essential for seed production, and

while such conditions did exist on the Ft. King Ranch prior to 1980, they have

been absent since 1980.

26. Due to the drier conditions which he noted in 1980 and 1981, Polk

filed a formal complaint with the District in 1981. A site visit and pump test

were conducted, and the District concluded that the Wellfields were causing less

than a one foot drawdown in the Ft. King Ranch water table, and that dry

conditions at his ranch were due primarily to drought. In 1985, Polk complained

to the District again, and requested that it augment two lakes within the Ranch.

After review of surrounding lake conditions, the District declined his request

since Polk's lakes had not experienced water level declines atypical of lakes

well beyond the influence of the Authority's Wellfields.

27. Studies of water level elevations in the area indicate that the effect

of Cypress Creek Wellfield pumpage is quite small when compared to natural

changes in water levels due to variable rainfall and evapotransporation.

Rainfall in this region is variable, and there has been a significant negative

trend over time in surficial and potentiometric water levels that predates

Wellfield pumpage.

28. According to J. B. Butler, who was accepted as an expert in hydrology,

the swales, dikes and levees constructed by Polk have not caused the water table

or surface water level reductions experienced since late 1981. Rather, these

are an attempt to divert and retain water on the property, and even in their

absence, there would be no significant flow of surface water across Ft. King

Ranch from an east to west direction. In addition, Butler testified that a

fence line berm constructed along the northern border of the Ranch is an

insignificant obstacle to the flow of surface water from the north to south

across the Ranch when compared to topographic features, and has had no impact on

the water tables of the Ranch. However, evidence introduced at hearing

established that as early as 1981, the staff of the District concluded that the

swales and elevated fence lines could be aggravating low water conditions by

increasing evaporation and leakance, and by excluding surface water which would

have entered the Ft. King Ranch from the north.

29. The Authority offered competent substantial evidence to rebut the

Butler testimony. Thomas Schanze, who was accepted as an expert in agricultural

engineering, testified that Polk's elevated berm along his northern fence line

has significantly restricted the flow of surface water onto Ft. King Ranch, and

has contributed to the eastern portion of the Ft. King Ranch becoming a closed

watershed. Between 1984 and 1986, approximately 700 million gallons of surface

water have been excluded by Polk's water control and diversion activities. This

exclusion has resulted in a diminished water table within the Ft. King Ranch of

about one half foot compared with the water table on the northern side of the

berm. Surface water cannot flow onto Polk's property until water levels

immediately north reach flood stage. Aerial photographs of the Ft. King Ranch

and surrounding properties show that the Polk property is significantly drier

than surrounding properties, which include predominant wetlands. If the dry

conditions experienced by Polk had been due to pumpage, the same dry conditions

should be observed on surrounding properties and lands nearer the Wellfields.

However, aerial photos show that lands closer to the Wellfields than Ft. King

Ranch are less dry than the Ranch itself. This supports the position of the

District and the Authority that Polk's own activities have had a significantly

greater impact than pumpage on surface and groundwater levels.

30. The reduction in productivity of Polk's farming activities is

reasonably related to his northern berm which serves as a dike, preventing water

from flowing onto Ft. King Ranch, as well as drought conditions existing in

1980, 1981 and 1985. The cumulative effect of water excluded from this property

and dry weather conditions is significant, and accounts for decreased

production. It was not established through competent substantial evidence that

Polk's decreased production has resulted from any hydrologic impact of Wellfield

pumpage.

31. The District's expert in hydrology and ground water modeling, Robert

G. Perry, concluded that significant water table declines on Ft. King Ranch due

to pumping from Cypress Creek and Cross Bar Ranch Wellfields could not be

confirmed. Through groundwater flow modeling and statistical analysis, he

concluded that a one foot water table drawdown contour resulting from

withdrawals at the rate of 30 mgd for 30 days without any recharge would not

reach the Ft. King Ranch. Even in a worse case scenario of 120 days without

recharge and pumpage at Cypress Creek of 30 mgd for 30 days, then 40 mgd for 30

days, and finally 30 mgd for 60 days, Perry concluded that the one foot water

table drawdown contour would not reach Polk's Ranch. There is some evidence

that under a worse case condition, pumpage at the Cross Bar Ranch Wellfield

could result in the one foot water table drawdown contour intersecting a small

portion of the western tract of the Ft. King Ranch, but this tract was not owned

or leased by Polk in 1978, when the first Wellfield permits were issued.

32. Conflicting evidence based upon steady state modeling by Craig

Hutchinson of the United States Geological Survey was introduced on behalf of

Polk to establish that the cumulative impact of the Wellfields could induce a

significant drawdown in the water table in the area between the Wellfields,

including the Ft. King Ranch. However, this evidence is rejected as less

credible than the analysis conducted by Park and Phillip Davis, who was also

accepted as an expert in hydrology and groundwater flow modeling. The steady

state approach used by Hutchinson is inappropriate for analyzing the effects of

wellfield withdrawals on the water table, because the water table is a dynamic

system which is never at steady state. The transient groundwater simulation

model used by the District is better suited for an analysis of impacts to the

water table, although it does tend to overpredict such impacts, since it

accounts for changes in rainfall. The Hutchinson analysis is also unreliable

since it is based upon artificially derived antecedent water levels, rather than

observed levels. Finally, he did not have required predevelopment water table

data, and thus, could not verify water table predictions derived from his steady

state model. A transient groundwater flow computer model used by Terry

Bengtsson to estimate greater potentiometric surface and water table declines

due to withdrawals from the Wellfields than predicted by Park or Davis was

discredited, and shown to be unreasonable, by the results of a 28 day pump test

in September and October, 1988.

33. According to Rick Stebnisky, who was called on behalf of Polk and

accepted as an expert in groundwater hydrology, the combined effect of pumping

at the Cross Bar Ranch and Cypress Creek Wellfields has resulted in a

significant reduction in water table and potentiometric surface levels at Ft.

King Ranch, with such reductions being greater in the southern areas than

northern portions of Polk's property. He testified that drawdowns have been

noted since pumping began at Cypress Creek in April, 1976, with greater

drawdowns occurring closest to the Wellfields, and for this reason drawdowns

appear to be related to pumping rather than drought conditions.

34. However, Stebnisky's conclusions were drawn from an overly simplistic

hydrographic analysis which ignored factors other than pumpage, such as reduced

rainfall, regional trends, surface drainage and non-wellfield pumpage, according

to Robert G. Perry, an expert in hydrology and groundwater modeling. Stebnisky

was not accepted as an expert in groundwater flow modeling. It was also

established that some of the basic assumptions used by Stebnisky in predicting

drawdowns were inaccurate, and not based upon accepted hydrologic principles.

Therefore, when weighed and considered against other expert testimony, including

that of Perry and Dr. J. I. Garcia-Bengochea, Ph.D., an expert in hydrology and

environmental engineering, the testimony of Stebnisky is found to lack

credibility.

35. While Dr. Garcia-Bengochea agreed with the testimony of Stebnisky that

the potentiometric surface and water table levels on the Ft. King Ranch had been

somewhat reduced due

PAGE 18 MISSING

individual well meters, regardless of whether on-site wetlands are being

augmented, and is sufficiently accurate for use in evaluating the impact of

withdrawals on the water table and Floridan Aquifer. As a condition for renewal

of the Authority's permits, the District has required that flow measuring

devices or methods be installed for each augmentation discharge point, although

generally augmentation of lakes and wetlands within wellfields is not metered.

37. The allowable drawdown levels of potentiometric surface for the

Cypress Creek Wellfield established by the District have never been reached.

The lowest levels occurred during severe drought conditions in 1981 and 1985.

However, even during these times, the lowest potentiometric surface level was

8.53 feet above regulatory levels. Notwithstanding the testimony of Philip

Waller, an expert in hydrology, pumping from Polk's irrigation Wellfields have

not had a significant impact on the Cypress Creek Wellfield because Waller's

model assumptions are extreme, according to Robert G. Perry, whose field of

expertise includes groundwater modeling. These unrealistic assumptions included

that Polk would operate his irrigation wells at maximum capacity for 120 days,

and that there would be no recharge, even though irrigation, like rainfall,

would be expected to result in some recharge. Even under these extreme

assumptions, Waller's modeling only produced a one foot drawdown at Cypress

Creek Wellfield, which would still be well within regulatory levels established

by the District, based upon data for the drought years of 1981 and 1985.

38. Since 1979, Cypress Creek Wellfield has averaged approximately 30

million gallons per day, with the maximum withdrawal occurring in May, 1983,

when it averaged 34.2 mgd. From 1981 to 1985, the average withdrawals from

Cross Bar Ranch Wellfield remained stable at 13 mgd, but since 1986, the pumpage

has increased to over 15 mgd due, in part, to the use of water from Cross Bar to

compensate for contaminated wells shut down at the Eldridge-Wilde Wellfield.

39. For purposes of Rule 40D-2.301(1)(c), Florida Administrative Code, the

District does not consider the use of water that occurs naturally, without

pumping or diversion, for use on crops or other agricultural purposes to be, an

existing legal use of water, because it does not require a permit. The District

does not apply Rule 40D-2.301(2)(e) to protect agricultural crops, but rather to

protect naturally occurring vegetation. When an application to renew a

consumptive use permit is reviewed by the District, and that renewal does not

seek an increase in the quantity of water withdrawals, "legal users" are those

present prior to the original permit.

40. On May 17, 1988, a Final Order was entered in DOAH Case No. 88-0693R

declaring the District's Rules 40D-2.301(3)(b), (c), and (d), Florida

Administrative Code, which otherwise would apply in this proceeding, to be an

invalid exercise of delegated legislative authority.

41. The Authority's applications were declared complete by the District on

June 18, 1987, and the District staff recommended issuance of these permits on

August 14, 1987. Modifications to the draft permit were made by the District on

December 28, 1988, and these modified draft permits are acceptable to the

Authority. The latest draft permits contain stated conditions which include the

requirement that the Authority directly measure the amount of water it uses to

augment the water level of on-site wetlands. On February 22, 1989, the

Authority and the District filed a Joint Notice of Settlement in Case Number 87-

4644 by which they settled their dispute as to the duration of consumptive use

permit renewals for the Wellfields, and provided for a ten year permit for

Cypress Creek, and a six year permit for Cross Bar Ranch Wellfield. Polk

submitted his original permit application on April 13, 1987, and then amended

his request on July 26, 1988. The District has proposed to issue a draft permit

to Polk, with stated conditions.

CONCLUSIONS OF LAW

42. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter in this cause. Section 120.57(1) Florida Statutes.

43. The applicant for a permit has the burden of proving entitlement to

the permit which is sought. Florida Department of Transportation v. J.W.C. Co.,

396 So.2d 778 (Fla. 1st DCA 1981). The District has issued draft permits to the

Authority and Polk evidencing an intent to approve their consumptive use permit

applications, with stated conditions. Therefore, at hearing the applicants and

the District initially established a prima facie case in support of the issuance

of these permits. Thereafter, each applicant was allowed to present its case

concerning additional conditions or mitigation which should attach to the other

applicant's permit.

44. Chapter 373, Part II, Florida Statutes, governs the District's review

and approval of applications for consumptive use permits, and in accordance with

its statutory responsibilities, the District has adopted Rule Chapter 40D-2,

Florida Administrative Code, which implements the declared water policy of the

District relating to the consumptive use of water. See also Rule Chapter 17-40,

Florida Administrative Code. The parties stipulated that the only criteria for

the issuance of a consumptive use permit which remain at issue are found at

Rules 40D-2.301(1)(c) and (2)(e), Florida Administrative Code. These provisions

state:

40D-2.301 Conditions for Issuance of Permits.

(1) The intended consumptive use:

(c) Will not interfere with any legal use of

water existing at the time of the application.

(2) Issuance of a permit will be denied if

the withdrawal of water:

(e) Will cause the water table to be lowered

so that the lake stages or vegetation will be

adversely and significantly affected on lands

other than those owned, leased, or otherwise

controlled by the applicant.

45. An agency's interpretation of statutes which it is charged to

implement, and rules which it has adopted to carry out its statutory

responsibilities, must be given great weight. When such interpretation is

reasonable, and consistent with judicial decisions and the purpose of the

enabling statute, it should be sustained and applied to the facts of the case at

bar, although a different interpretation may be possible, or even preferable.

Pan American World Airways, Inc. v. Florida public Service Commission, et al.,

427 So.2d 716, 719 (Fla. 1983); Department of Health and Rehabilitative Services

v. Framat Realty, Inc., 407 So.2d 238, 241 (Fla. 1st DCA 1981); Department of

Commerce, Division of Labor v. Matthews Corp., 358 So.2d 256 (Fla. 1st DCA

1978).

Rule 40D-2.301(1)(c) - Interference With Existing

Legal Uses of Water

46. Polk contends that his use of naturally occurring groundwater in the

soils on the Ft. King Ranch from 1968 to 1978 constitutes an "existing legal use

of water" which is entitled to protection under the above-cited provision of

Rule 40D-2.301(1)(c), and Section 373.223(1)(b), Florida Statutes. He urges

that his agricultural activities which occurred before the issuance of the first

consumptive use permits for either the Cross Bar Ranch or Cypress Creek

Wellfields should be recognized as an "existing" use in order to protect him, a

preexisting passive user, from his neighbors' later-permitted withdrawals.

47. It was established at hearing that when the District is reviewing an

application to renew a consumptive use permit, it interprets the terms of Rule

40D-2.301(1)(c) to relate back to the date of the initial permit, so long as the

amount of water to be used, well locations, and other substantive aspects of the

project have not changed. Thus, renewal of a permit does not change the

priority of users relative to other legal users of water. Protection of prior

users is a reasonable and logical interpretation of this statutory and rule

provision, and appears to be consistent with the intent of Chapter 373, Part II,

Florida Statutes. See Maloney, et al., A Model Water Code, Univ. of Fla. Press

(1972). Since both Authority Wellfields were originally permitted in 1978,

prior to the time when Polk obtained his permit for the withdrawal of water for

use on Ft. King Ranch in 1981, Polk's claim of interference relates to his

unpermitted use at the time the District issued the first permits for the Cross

Bar Ranch and Cypress Creek Wellfields.

48. It should be noted that when Chapter 373 took effect in 1972, existing

unpermitted water users were given two years to apply for a permit for their

uses, and if they failed to do so, they were conclusively presumed to have

abandoned their uses unless such uses were expressly exempted from regulation

under Chapter 373. See Section 373.226, Florida Statutes (1972). After this

two year period, the only recognized "legal uses of water" were permitted uses,

and exempted uses. As already discussed, Polk's use was not permitted when the

Authority's Wellfields were permitted. It is also evident that Polk's uses were

not expressly exempted since only domestic uses are so exempted. Section

373.219(1), Florida Statutes. Polk's uses do not qualify as "domestic" since

such uses are defined to include individual household "drinking, bathing,

cooking or sanitation." Section 373.019(6). Therefore, any claim to a prior

legal use which Polk may have asserted has been conclusively abandoned by his

failure to obtain a permit prior to 1981, and his inability to qualify his use

of water for crop cultivation and agriculture as an exempted use.

49. Even if he had not abandoned his right to claim a prior legal use, it

was established at hearing that the District does not interpret that phrase

"legal use of water" to include water that occurs naturally, without pumping or

diversion. The term is reasonably applied to mean manmade groundwater or

surface water withdrawals since these activities require a permit from the

District. Water must be physically withdrawn or diverted to qualify as a legal

use of water A Model Water Code, supra at 179. A water right is not established

except by positive act to capture the water. Village of Tequesta v. Jupiter

Inlet Corp., 371 So.2d 663, 667 (Fla. 1979).

50. It is, therefore, evident that Polk's passive use of water prior to

the time the Authority's Wellfields were first permitted is not entitled to

protection under Rule 40D-2.301(1)(c) since he has not established any protected

legal use of water existing prior to the issuance of consumptive use permits to

the Authority. Nevertheless, even if such a protected use had been shown, Polk

has failed to establish that there has been any "interference" with his use

resulting from the permitted withdrawals from the Cross Bar Ranch or Cypress

Creek Wellfields. A showing of "interference" is expressly required by the

terms of Rule 40D-2.301(1)(c). The evidence adduced at hearing shows that

Polk's reduced agricultural productivity and increased expenses have resulted

from drier conditions existing on the Ft. King Ranch since 1981 due primarily to

severe drought conditions in 1980, 1981 and 1985, as well as his own

construction of a system of swales and ditches, and a fence line berm along the

northern boundary of his property.

51. Specifically, the more credible and persuasive evidence in the record

establishes that the Authority's Wellfields account for only a small portion of

the water table fluctuations occurring on Ft. King Ranch, and variable rainfall,

as well as Polk's owns actions, have been the primary causes of these changes.

Pumpage from Cypress Creek and Cross Bar Ranch Wellfields is causing a drawdown

of approximately one foot in the water table at, or near, the Ft. King Ranch.

This small effect would not account for the cattle watering and crop reduction

problems of which Polk complains. Aerial photographs showing significantly

wetter conditions on lands surrounding the Ft. King Ranch, particularly to the

north, were graphic evidence of the impact of Polk's own system of swales,

ditches and berms. The expert testimony offered by the District and the

Authority, particularly that of Robert Perry, Thomas Schanze, and Dr. J. I.

Garcia-Bengochea, outweighs the evidence on this point offered by Polk, which

was primarily based upon the work of Rick Stebnisky and J. B. Butler.

52. The Authority claims that Polk's proposed irrigation well withdrawals

will interfere with its ability to operate the Cypress Creek Wellfield without

exceeding established regulatory levels. The Cypress Creek Wellfield received

its first permit prior to Polk's first permit, and, thus, Wellfield pumpage is

an "existing legal use of water" for purposes of Rule 40D-301(1)(c). However,

the evidence does not establish that Polk's withdrawals will "interfere" with

the Authority's "existing legal use of water" because it was not shown that

Polk's irrigation activities would cause regulatory levels for the Cypress Creek

Wellfield to be exceeded. Credible and persuasive testimony was presented by

Robert Perry on behalf of the District which established that even under extreme

conditions and assumptions, Polk's irrigation wells would produce only a one

foot drawdown at Cypress Creek Wellfield, and this would still be well within

regulatory levels established by the District. Any interference to the

Wellfield is purely speculative, and not supported by competent substantial

evidence in the record.

Rule 40D-2.301(2)(e) - Adverse Affect on Lake

Stages Or Vegetation From Lowered Water Table

53. Turning to the provisions of Rule 40D-2.301(2)(e), Polk contends that

his crops are "vegetation," as that term is used in this rule, and that pumpage

from the Authority's Wellfields has caused the water table to be so lowered that

this "vegetation" has been adversely and significantly affected. It was

established at hearing, however, that this rule has never been applied or

interpreted by the District to protect agricultural crops. Rather, it only

applies to naturally occurring, native vegetation such as would be found in

wetland areas. This interpretation is consistent with the plain meaning of the

terms used in this rule, and nothing in the record suggests this is an

unreasonable interpretation. Shell Harbor Group, Inc. v. Department of Business

Regulation, 487 So.2d 1141 (Fla. 1st DCA 1986). Polk's agricultural and surface

water management system activities have left virtually no native vegetation on

the eastern tract, and thus the "vegetation" portion of Rule 40D-2.301(2)(e) is

not applicable in this case.

54. The greater weight of the evidence does not support Polk's final

argument that pumpage from the Wellfields has caused the water table to be so

lowered that lake stages on the Ft. King Ranch have been adversely and

significantly affected, in violation of Rule 40D-2.301(2)(e). The Ft. King

Ranch has not experienced water level fluctuations significantly different from

other lakes in the region which are beyond the influence of the Wellfields. The

more reasonable and persuasive estimates of the impact of the two Wellfields on

the water table underlying the Ft. King Ranch were presented by Perry and Dr.

Garcia-Bengochea, using historical and actual test data. These experts

concluded that the water table has dropped less than one foot due to Wellfield

withdrawals. In contrast, Polk presented only lay testimony about lakes and

ponds on his property, and could offer no historical water level data about

water elevations prior to 1978. Therefore, even if agricultural crops were

considered to be "vegetation" for purposes of Rule 40D-2.301(2)(e), the evidence

does not support Polk's assertion that Wellfield pumpage has reduced the surface

of the water table under the Ft. King Ranch so as to significantly and adversely

affect these crops and any lakes located on his Ranch.

RECOMMENDATION

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

recommended that the Southwest Florida Water Management District enter a Final

Order approving the consumptive use permit applications of the West Coasts

Regional Water Supply Authority and Pinellas County for the Cross Bar Ranch and

Cypress Creek Wellfields, with conditions proposed by the District, and also

approving the consumptive use permit application of Freeman F. Polk, with

conditions proposed by the District.

DONE AND ENTERED this 10th day of July, 1989, in Tallahassee, Florida.

_________________________________

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 10th day of July, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-4644,

87-4645, 87-4647, & 88-1169

Rulings on the District's Proposed Findings of Fact:

1. Adopted in Findings 6, 21.

2. Rejected as unnecessary.

3. Adopted in Finding 6.

4. Adopted in Finding 38.

5. Adopted in Finding 21.

6. Adopted in Finding 11.

7. Adopted in Finding 38.

8-11. Adopted in Finding 20.

12. Adopted in Finding 21.

13-14. Adopted in Finding 22.

15. Adopted in Finding 27.

16. Adopted in Finding 25.

17-19. Adopted in Findings 25, 26.

20-22. Adopted in Findings 26, 28.

23-48. Adopted in Findings 31 through 35.

49-60. Adopted in Findings 28 through 30.

61-64 Adopted in Finding 36.

65-68. Adopted in Finding 37.

Rulings on the Authority's Proposed Findings of Fact:

1. Adopted in Finding 1.

2. Adopted in Findings 4, 10.

3. Adopted in Finding 2.

4-6. Adopted in Finding 39.

7. Adopted in Finding 18.

8. Adopted in Findings 21, 22.

9. Adopted in Finding 40.

10-11. Adopted in Finding 3.

12-14. Adopted in Finding 36.

15. Adopted in Findings 6, 38.

16. Adopted in Finding 5.

17-19. Adopted in Findings 6, 21.

20. Adopted in Findings 7, 16.

21-23. Adopted in Finding 41.

24-25. Adopted in Finding 9.

26-27. Adopted in Finding 36.

28. Adopted in Findings 11, 38.

29. Adopted in Finding 10.

30. Adopted in Finding 11.

3132 Adopted in Findings 11, 21.

33. Adopted in Findings 12, 16.

34-36. Adopted in Finding 41.

37. Adopted in Finding 21.

38. Adopted in Finding 24.

39. Adopted in Finding 29.

40. Adopted in Finding 24.

41-42. Adopted in Finding 22.

43-45. Adopted in Finding 25.

46. Adopted in Finding 26.

47. Adopted in Finding 25.

48. Adopted in Finding 26.

49. Adopted in Findings 26, 28.

50-53. Adopted in Finding 20.

54. Adopted in Findings 20, 21.

55. Adopted in Finding 20.

56. Adopted in Finding 37.

57. Rejected as not based on competent substantial evidence.

58. Adopted in Finding 41.

59. Rejected as unnecessary.

60-62. Adopted in Finding 35.

63. Adopted in Finding 36.

64-70. Adopted in Findings 34, 35.

71-76. Adopted in Findings 33 through 35.

77-78. Rejected as unnecessary and irrelevant.

79-80. Adopted in Finding 34.

81-87. Adopted in Finding 32.

88-91. Adopted in Findings 26 through 35.

92-96. Adopted in Findings 29, 30, but otherwise Rejected as

unnecessary and cumulative.

97. Adopted in Finding 28.

98. Adopted in Finding 29.

99-100. Adopted in Finding 30.

101-102. Adopted in Finding 37.

103. Rejected as unnecessary and cumulative.

104. Adopted in Finding 37.

105. Rejected in Finding 37.

106. Adopted and Rejected in part in Finding 37

Ruling on Pinellas County's Proposed Finding of Fact: (The County also adopted

the Authority's Proposed Findings.)

1. Rejected since the statement proposed by the County is not a finding of

fact, but simply a statement on the evidence. Evidence which was not admitted

at hearing has not been considered.

Rulings on Polk's Proposed Findings of Fact:

1. Adopted in Finding 3.

2. Adopted in Findings 9, 10.

3. Adopted in Finding 21.

4. Rejected in Findings 6, 11, 21.

5. Adopted in Finding 22.

6. Adopted and Rejected in part in Findings 25 through 27.

7-8. Rejected in Findings 25 through 27.

9. Adopted in Finding 25.

10. Adopted in Finding 24.

11-13. Rejected in Findings 24, 29, 30.

14. Adopted in Finding 37.

15. Rejected as argument on the evidence and not a proposed

finding of fact.

COPIES FURNISHED:

Edward P. de la Parte, Jr., Esquire

Douglas M. Wyckoff, Esquire

705 East Kennedy Boulevard

Tampa, Florida 33602

Thomas E. Cone, Jr., Esquire

202 Madison Street

Tampa, Florida 33602

John T. Allen, Jr., Esquire

Chris Jayson, Esquire

4508 Central Avenue

St. Petersburg, Florida 33711

Bram D. E. Canter, Esquire

306 North Monroe Street

Tallahassee, Florida 32302

Peter G. Hubbell, Executive Director

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34699-6899