Attorney General Declines Opinion on Water Transport Issue

In December 2003, the Northwest Florida Water Management District issued two general permits that authorized Wakulla Springs Bottled Water, Inc. to withdraw water.  The withdrawals are from sites within Wakulla County.  Once withdrawn, the water is to be transported in bulk to a bottling facility in Monticello, Florida in Jefferson County.

The Wakulla County Comprehensive Plan Policy 2.5 requires County Commission approval by at least a 4/5 vote prior to the removal of surface water from the County.  Wakulla Springs Bottled Water, Inc. applied for that approval but did not get it.

Thereafter, on February 18, 2004, Wakulla County requested an Opinion of the Attorney General on the following questions:

1)  Is a county preempted by Section 373.223(2), F.S., or any other provision of Florida law from regulating the transfer of surface water from the county?

2)  Does a county comprehensive plan policy that requires consent of the board of county commissioners for removal of surface water from the county have any effect in light of the Florida Water Resources Act of 1972 (§§373.012-373.200, Fla. Stat.)?

3)  Does a county have the authority under its comprehensive plan and land development regulations to regulate the location of commercial operations that may result in the transport of water from the county and to specify where such commercial operations may or may not be located?

4)  Can a county prohibit water bottling facilities from locating within the county to protect the health, welfare and safety of its citizens?"

On March 12, 2004 the Attorney General's Office advised Wakulla County that the questions are not matters on which the office may comment. "It is the policy of the Attorney General's office that opinions will be issued on questions involving the duties and responsibilities of several agencies or governmental entities only upon the request of all the agencies involved.  In this case, the Department of Environmental Protection, the water management districts and the Department of Agriculture are involved but have not agreed that an Attorney General opinion is necessary.

Rule Updates

Amendments to 40D-21, Water Shortage Plan, F.A.C.

The Governing Board authorized staff to begin updating the District's water shortage plan that is required by Section 373.246, F.S.  The District intends that the update will reflect the expected revisions to the 62-40, State Water Resources Implementation Rule, F.A.C., relating to water shortages, and lessons learned and experience gained from the 1999-2002 drought.  The update may result in a re-write of 40D-21, F.A.C.

Staff held an initial round of rule development workshops late last year.  Based on the public input received at the workshops, Staff will hold another round of workshops in April and May 2004 on conceptual draft of revisions to 40D-21, Water Shortage Plan, F.A.C.  The workshops will be held as follows:

Monday, April 19, 2004, from 1:00 to 3:00 p.m. in Board Room of the Southwest Florida Water Management District's Bartow Office, 170 Century Boulevard, Bartow, Florida.

Thursday, April 29, 2004, from 9:30 to 11:30 a.m. in Board Room of the Southwest Florida Water Management District's Sarasota Office, 6750 Fruitville Road, Sarasota, Florida. 

Monday, May 3, 2004, from 1:30 to 3:30 p.m. in Board Room of the Southwest Florida Water Management District's Brooksville Office, 2379 Broad Street, Brooksville, Florida. 

Southern Water Use Caution Area

The District has developed a draft recovery strategy for implementation when the Governing Board adopts the proposed minimum flows for the Upper Peace River, the minimum levels for Category 3 lakes on the Lake Wales Ridge and the minimum level for the Floridan aquifer to protect against coastal salt-water intrusion.

The strategy includes water resource development projects, water supply development projects, a financial plan and regulatory measures.  The District held workshops on the recovery strategy during the last half of 2003 and in early 2004.  The Draft SWUCA Recovery Strategy and all written comments and staff responses are posted on the District's Website at www.swfwmd.state.fl.us/waterman/swuca/SWUCA.htm.  Staff will review the second draft of the Recovery Strategy with the Governing Board at its March and April 2004 meetings. 

A second draft of the rules to implement the regulatory portion of the Recovery Strategy will be distributed after the April 2004 Governing Board.  Rule development workshops and Governing Board presentations will then be conducted with a June 2004 Governing Board approval scheduled. 

Case Update

Water Use Permitting – Milo Thomas vs. SWFWMD
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).  The Fifth District Court of Appeal upheld the District's final order denying a water use permit application submitted by Milo Thomas, despite claims of a prior right to the use of the water.  The District Court of Appeal also denied the Motion for Rehearing filed by Mr. Thomas. 

As reported here about nine months ago, Milo Thomas had appealed SWFWMD Final Order No. 02-062 denying his application to the Fifth District Court of Appeals.  In that application, Milo Thomas (Thomas) asked 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 he is entitled to the requested increase under the provisions of paragraph 373.1961(1)(e), F.S.  Mr. Thomas argued that the District should ignore the failure to meet the conditions for issuance of a WUP and issue him a WUP on the basis of paragraph 373.1961(1)(e).

The thrust of the case by Mr. Thomas is that the intent of those advocating the enactment of paragraph 373.1961(1)(e), F.S., in 1974 was to allow the regional water supply authority to pump its wellfields as needed under its permit until a county 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.:

 (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 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 Paragraph 373.1961(1)(e) would be infeasible.