Case Updates

Water Use Permitting – Meaning of "Prior Right" Disputed (Karen A. Lloyd and Margaret M. Lytle) 

Milo Thomas vs. Southwest Florida Water Management District, No. 5D02-3319 (Fla., 5^th DCA).  Milo Thomas has appealed SWFWMD Final Order No. 02-062 to the Fifth District Court of Appeals.  Milo Thomas (Thomas) applied to the District to modify his water use permit (WUP) to increase the authorized withdrawal quantities.  The Thomas property is located within an area of Pasco County that has suffered severe adverse impacts to wetlands, lakes, and streams from groundwater withdrawals from the permitted regional wellfields.  Mr. Thomas purchased a portion of the property that is the subject of the disputed application in 1985, after establishment of the regional wellfields. 

     The proposed increase was reviewed by District staff, who determined that the application failed to meet 5 of the 13 conditions for issuance of WUPs contained in Rule 40D-2.301(1), F.A.C.  An Agency Action was issued proposing to deny the application.  Mr. Thomas requested a hearing and argued entitlement to the requested increase under the provisions of Section 373.1961(1)(e), F.S. It was Mr. Thomas’ position that the District should ignore the conditions for issuance of a WUP and his the failure to meet those conditions, and issue him a WUP on the basis of Section 373.1961(1)(e). 

     Mr. Thomas’ case relies on legislative intent in the 1974 enactment of Section 373.1961(1)(e), F.S.  Mr. Thomas contends that the intent behind that statute was to allow the regional water supply authority to pump its wellfields as needed under its permit, until a resident in the county where the wellfield is located needs the water.  Then, the resident would be entitled to the water by virtue of residing in the county. 

Paragraph 373.1961(1)(e), F.S. provides:

(1) In the performance of, and in conjunction with, its other powers and duties, the governing board of a water management district existing pursuant to this chapter:…

(e) Shall not deprive, directly or indirectly, any county wherein water is withdrawn of the prior right to the reasonable and beneficial use of water which is required to supply adequately the reasonable and beneficial needs of the county or any of the inhabitants or property owners therein.

     The hearing officer's recommended order and the Final Order denied Mr. Thomas' application and rejected Mr. Thomas' argument.  The Final Order found that accepting Mr. Thomas' argument would negate the statutory provision precluding a new use from interfering with an existing use.  The Final Order determined that there were other rational interpretations of Section 373.1961(1)(e) that reconciled with the other provisions of Chapter 373.

      One of the arguments made by the District included that Village of Tequesta vs. Jupiter Inlet Corporation, 371 So. 2d 663 (Fla. 1979), made it clear that the right to water arises only through a water use permit or an exemption.  Without a permit to use the requested quantity, or an exemption, there is no prior right to use of the water in the county.  Additionally, the District argued that implementation of Mr. Thomas's interpretation of Section 373.1961(1)(e) would be infeasible.

Water Use Permitting -Whether Denial of a Permittee's Request For an Extension of Time Under A Consent Order Is Proposed Agency Action Entitling Permittee To An Administrative Hearing, ( Karen A. Lloyd and Margaret Lytle) 

     Aloha Utilities entered into a Consent Order with the District to resolve violations of its water use permit (WUP).  Aloha has been exceeding the quantities authorized by its WUP consistently by 30% to 50% since November 1995.  The Consent Order provided that Aloha was to be in compliance with its permit within 180 days of the date of the Consent Order (by August 25, 2002).  The Consent Order included a provisions allowing for extensions of time by the District upon good cause being shown. 

     Shortly before the expiration of the 180 days, Aloha requested an extension of time for compliance.  After staff review, staff issued a letter denying the extension of time.  When Aloha failed to comply with the WUP and Consent Order, the District filed suit in circuit court to enforce the Consent Order pursuant to Sections 120.69, 373.083(1) and 373.129, F.S.   Aloha subsequently filed a petition with the Governing Board requesting an administrative hearing on the denial of the extension request.  The petition was denied based on the grounds that the letter from staff denying the request for a time extension was not an agency action.  In December 2002, Aloha appealed the decision to the Second District Court of Appeals.

     In its Initial Brief, Aloha argues that the staff letter denying the request for an extension of time to comply with the consent order was a proposed agency action, which affects Aloha's substantial interests, thus entitling Aloha to an administrative hearing pursuant to Sections 120.569 and 120.57, F.S.

     The District in its Answer Brief filed on March 4, 2003, argues that the denial was not an agency action.  Rather, the denial was an implementation of the Consent Order and was contemplated by and a part of the Consent Order.  The District further argues that the denial was not a rule, order, or equivalent action.  The Consent Order is a contract between the parties and can be enforced in circuit court, which the District has filed to do.  The District argues the circuit court case is the appropriate forum for litigation of Aloha's issues concerning the denial of the request for extension.  Aloha's substantial interests are not actually impacted until a judgment is entered by the circuit court.  

     The parties have requested oral argument.
 

Rulemaking

40D-22, Year-Round Water Conservation Measures, F.A.C. - In November 2002, the District published notice of the proposed Rule Chapter 40D-22, Year-Round Water Conservation Measures, Florida Administrative Code.  The Year-Round Water Conservation Measures Rule contains the conservation measures that apply when there is no declared water shortage event.  These baseline measures were first adopted by rule in 1992 and, as originally written, consist primarily of a daytime ban on lawn watering.

     The proposed amendments update Chapter 40D-22 to incorporate the conservation measures included in Board Orders Nos. 92-12, 92-21, 92-60, 93-105, and 01-83.  These orders were issued to obtain water conservation over and above the daytime irrigation ban included in Chapter 40D-22.  The proposed amendments also 1) update definitions, 2) streamline language for specific measures, 3) recognize the water-conserving features of Water Use Permits and published Best Management Practices, 4) create a local Alternative Community Conservation Program option, 5) provide for grandfathering of existing variances for a limited period of time, and 6) clarify the District's expectations regarding reclaimed water blends and local enforcement assistance. 

     In December 2002, pursuant to subparagraph 120.54(3)(c)1., Administrative Procedures Act, F.S., Tampa Bay Water, Pinellas County and the City of St. Petersburg requested a public hearing on the proposed amendments.  That hearing will be scheduled for the April 2003 Governing Board meeting.
 

40D-4.091, 40D-40.021, 40D-40.302, 40D-40.321, and 40D-40.381 - General Permit - Incidental Site Activities Permit

History of Limited Construction Commencement Agreements (LCCAs)

     The Governing Board in 1987 began to issue LCCAs as part of management and storage of surface water (MSSW) permitting (now called ERP).  LCCAs were intended as a way to expedite the start of construction for projects with individual permit applications which were in the 90 day evaluation period and awaiting permitting consideration by the Governing Board.  When requested by the applicant, a LCCA between the District and an applicant was allowed as part of the surface water permitting process, but only for projects with technically complete applications that were being recommended for permit issuance.  The LCCA process was intended, in due time, to be incorporated into District rules.  However, several events caused delays in District rule making, including the 1995 ERP streamlining of MSSW with wetlands resource permitting, Coastal Zone Management review, delegation of Sovereign lands approvals, and subsequent statutory revisions. 

Amendments - Proposed amendments to the ERP rules to be effective in about March 2003 would authorize a general permit for “incidental site activities,” operating much like the South Florida Water Management District (SFWMD) has done for several years.  This would allow District staff to issue a “start-up” construction permit, allowing limited land clearing and grading in uplands for incidental site activities and mobilization, preceding issuance by the Governing Board of an individual permit for overall project construction.  The incidental site activities permit could allow a 15 to 45 day jump-start on beginning construction.  The St. Johns River Water Management District has recently adopted rule provisions for incidental site activities permitting, similar to those of SFWMD.  This rulemaking includes specifications for a construction phase surface water management plan, consistent with FDEP and EPA-NPDES requirements for a stormwater pollution prevention plan (SWPPP).  Current ERP rules require construction plans that are similar in purpose to a SWPPP but lack technical standards for comparison.

40D-4.041 Permits Required – Previously Exempt Mining Activities - The Governing Board initiated rulemaking to repeal Chapter 40D-45 in January 1996.   In October 1999, the District listed Chapter 40D-45, F.A.C., in its entirety, as exceeding the District’s rulemaking authority pursuant to Section120.536, F.S.  No authorizing legislation was enacted by the 2000 Legislature and the District was again required to begin proceedings to repeal Chapter 40D-45, F.A.C., pursuant to Section 120.536, F.S.

     During the repeal process District Staff worked with representatives of the mining industry to address some of their concerns regarding the regulation of mines under the environmental resource permitting (ERP) rules.  Staff proceeded with the repeal of Chapter 40D-45, F.A.C., which became effective on October 9, 2001, and the adoption of several amendments to the ERP rules. 

     The last issue to be addressed is the status of activities previously exempt under Chapter 40D-45.  The amendments to Rule 40D-4.041, F.A.C. will allow entities conducting previously exempt activities under Chapter 40D-45, F.A.C. until May 1, 2004 to submit an application for an ERP and until May 1, 2005 to have the application complete.  The amendments also provide the conditions under which such activities may continue during the permitting process.
 

SWUCA I Rules (40D-2 and Basis of Review) - The SWUCA I conservation set of rules originally approved by the Board in 1994, have been now been filed and adopted with the Secretary of State and were effective January 1, 2003. In summary they include:

1.  Alternative Sources:

a.       Create alternative standby permit and conditions for reactivation
 

b.      Specify duration of Alternative Standby Permit
 

c.       Require reuse feasibility investigation
 

d.       Require desalination feasibility investigation for large coastal applicants
 

e.        Require reporting of generation of and use of effluent or stormwater
 

f.        Establish beneficial reuse goal

2.  Irrigation Efficiency Standards: Agriculture and
     Recreational/Aesthetic; Drought Credits

a.       Allocate irrigation water on 5-in-10 year drought basis
 

b.       Increase efficiencies
 

c.       Create Water-Conserving Credits (drought credits)
 

d.       Set forth water conserving irrigation efficiency standards and rainfall bases for irrigation uses (e.g., 5-in-10 versus 2-in-10).
 

e.        Pasture efficiency is increased immediately.

3.  Public Supply

a.        Formula for calculating per capita daily water use

b.       Wholesale customers

c.        Water-conserving rate structures

d.       Customer billing and meter reading criteria

  e.        Water audits; limits systems to no more than 12%

          unaccounted for water

4.  Other Use Categories

a.        Require water conservation plans for Industrial and Mining/Dewatering, and Recreation/Aesthetic Use and Golf Course Permittees
 

b.       Applicants to develop a water conservation plan within a specified period. 

5.  Additional

a.       Stressed Lakes - Provides a definition for what is  considered to be a stressed lake, and provides permitting criteria to ensure that new withdrawals do not impact stressed lakes.
 

b.      Create Augmentation (supplemental hydration) criteria
 

c.       Require Metering for withdrawals of 100,000 gpd or greater
 

d.      Delete ETB and HR rules that duplicate above SWUCA requirements
 

e.       Add SWUCA permit modification process
 

f.        Adopt SWUCA boundaries into rule
 

g.       Subject all permits within SWUCA to new SWUCA requirements
 

h.        Adopt a “trigger to analyze increase in use in any user category over that category's use in 1989-1991

The second group includes the rules that were developed based on no new permits being issued anywhere in the SWUCA. The completion of the adoption process on these is on hold pending whether they are compatible with the SWUCA II rules.

      The Governing Board took the following steps at its May 2002 meeting regarding the SWUCA I, first group rules:

1)     Approved the changes to be made in response to the JAPC comments; 

2)     Approved the proposed change that will authorize drought credits for surface water withdrawals (these were not included in the original SWUCA I drought credit rules);

3)     Approved permit conditions to be used to implement the SWUCA I rules.

4)     Authorized staff to publish changes as necessary and to file Chapter 40D-2, F.A.C. and Basis of Review as shown in the Board packet, with any necessary scrivener's corrections.

      Staff will hold public workshops in July and August 2002 to remind the public of the contents and requirements of the first group of the SWUCA I rules.

SWUCA II – Staff has completed its technical work on proposed minimum flows for the Upper Peace River, and minimum levels for Category 3 lakes in Highlands Ridge and Northern Tampa Bay and for the aquifer to protect against coastal salt water intrusion.  Staff is preparing the technical papers for review by peer review panels.

     Over the summer, staff will develop recovery strategies to be implemented when the minimum flows and levels go into effect.  The strategies will likely include water resource development projects, water supply development projects and regulatory measures.  Governing Board and public workshops on these strategies are anticipated to occur in the fall of 2002.
 

New Rules:

Repeal of 40D-45: 40D-4, Environmental Resource Permits, F.A.C. Amendments to address previous repeal of 40D-45, F.A.C.-

40D-021, F.A.C., is amended to add a slightly modified version of the definition of prospecting that was previously found in subsection 40D-45.021(11), F.A.C.

40D-051, F.A.C. is amended to create an exemption for mining or mining related activities that were previously permitted or determined to be exempt pursuant to Chapter 40D-45, F.A.C.

     Section 3.3.2.1 (g) of the Basis of Review for Environmental Resource Permits is revised to more closely track the statutory language of subsection 373.414(6)(b), F.S. which provides that wetland reclamation activities for phosphate and heavy mineral mining conducted pursuant to Chapter 378, F.S., must be considered appropriate mitigation for wetland impacts if they maintain or improve water quality and the function of the biological systems present at the site prior to the commencement of mining activities.