APPELLATE DECISIONS

     The Sierra Club v. St. John River Water Management District, et al. 27 Fla. L. Weekly D846, --- So.2d ----, 2002 WL 537041 (Fla. 5th DCA April 12, 2002, rehearing denied May 21, 2002)

     In the 2000 session, the Legislature enacted paragraph 373.414(8)(b), F.S., to clarify that if mitigation is proposed within the same drainage basin as the adverse impacts to be mitigated and if the mitigation offsets those adverse impacts, then the agency shall consider the activity to meet the cumulative impacts requirements. Thereafter, the St. Johns River Water Management District proposed to amend its cumulative impacts rule, located in section 12.2.8, APPLICANT’S HANDBOOK: MANAGEMENT AND STORAGE OF SURFACE WATERS (A.H.: MSSW). The Sierra Club challenged the proposed amendment pursuant to section 120.56(2), F.S. The Sierra Club argued under §120.52(8)(b), F.S., that the proposed rule exceeded the District’s grant of rulemaking authority.

     In the DOAH case, the District pointed out, among other things, that the Legislature knew of Sierra Club’s position in a prior non-rule policy case when it amended 373.414(8), and that the statutory amendment [new 373.414(8)(b)] was intended to clarify that the District’s cumulative impacts analysis was correct. Paragraph 373.414(8)(b) provides that if “an applicant proposes mitigation within the same drainage basin as the adverse impacts to be mitigated, and if the mitigation offsets these adverse impacts, the governing board and department shall consider the regulated activity to meet the cumulative impact requirements of paragraph (a) [373.414(8)(a)].” Paragraph 373.414(8)(a) contains the cumulative impacts analysis requirement. Sierra Club argued that the District’s cumulative impacts analysis, as embodied in the proposed rule amendment, would create an invalid “exemption” to the analysis required by 373.414(8)(a), F.S. With regard to new 373.414(8)(b), Sierra Club argued that the new statutory provision merely clarified that mitigation could be used to offset cumulative impacts. However, the District’s rules have already allowed mitigation of cumulative impacts since 1995. The District argued that Sierra Club’s interpretation of new 373.414(8)(b) would have rendered most of that provision meaningless and contrary to the legislative intent. On June 18, 2001, the DOAH Administrative Law Judge (ALJ) rejected Sierra Club’s arguments and entered a Final Order in favor of the District. The ALJ concluded that the proposed rule “mimics the effect of the underlying statute” and “neither expands nor reduces the cumulative impact consideration beyond that specified in the statute it implements. . ..” Sierra Club appealed that Final Order to the Fifth District Court of Appeal.

     On April 12, 2002, the Fifth District Court of Appeal (DCA) entered an opinion upholding the final order and finding the rule amendment valid. Notably, the court expressly approved of the District’s cumulative impacts analysis and the District’s interpretation of both 373.414(8)(b) and its cumulative impacts rule.

RULEMAKING AND RELATED LITIGATION

Osceola County Comprehensive Plan Amendment Regulating Consumptive Use of Water

Department of Community Affairs et al. v. Osceola County, DCA Docket #01-1, NOI-4901-(A)-(N)

     This case involved a dispute over whether a comprehensive plan amendment adopted by Osceola County conflicted with the Department of Environmental Protection’s (DEP) and the water management districts’ exclusive authority to regulate the consumptive use of water under Chapter 373, F.S. In October 2000, Osceola County submitted a proposed comprehensive plan amendment to the Department of Community Affairs (DCA), DEP, and St. Johns River Water Management District for review. The District and DEP objected to the amendment because it created a regulatory program for water allocation that conflicted with Chapter 373. In December, DCA issued its objections, recommendations and comments (ORC) report objecting to the amendment. In response, the County revised the amendment that it adopted in February 2001.

     The District and DEP objected to the revised amendment since it was still inconsistent with DEP’s and the District’s exclusive authority to regulate the consumptive use of water. The amendment created a new land use category entitled “Natural Resource Utilization” (NRU) which essentially would have allowed Osceola County to regulate the impacts of wells and other extraction facilities with a capacity to withdraw more than 250,000 gallons of water per day. Under the amendment, the county required that such water withdrawal facilities meet the county's performance standards governing aquifer drawdown and recharge, environmental impacts, impacts to other wellfields, and environmental impacts from the transfer of water from one watershed or basin to another. In effect, the amendment created a county land use program for the regulation of the consumptive use of water.

     At DCA’s request, the District, DEP and legal counsel for Osceola County participated in facilitated discussions to explore a potential resolution of the District’s and DEP’s objections. In March 2002, the parties executed a stipulated settlement agreement in which the County agreed to adopt a remedial amendment to its comprehensive plan. The remedial amendment included:

· Addition of language that no portion of the plan may be interpreted to authorize the County or a County water district to regulate the consumptive use of water and a recognition of the District’s and DEP’s exclusive authority to regulate the consumptive use of water

· Deletion of language that would have allowed the County to regulate the consumptive use of water

· Addition of a County proposal to require applicants that seek classification of an area within the new Natural Resource Utilization land use category to demonstrate to the County they have obtained (1) all necessary CUPs or (2) demonstrate adequate reserve capacity from a water supply delivery system with a CUP that authorizes the consumptive use

· A requirement that a county water district’s approval to construct water system facilities be conditioned upon the issuance of any necessary CUP prior to commencement of construction

     The settlement agreement provides assurance to the County that the significant issues evaluated in the review of a consumptive use permit application will have been addressed before the County approves the classification of an area within the Natural Resource Utilization land use category and before the construction of water system facilities commences. At the same time, it ensures that the District will be able to continue to carry out its statutory duties under Chapter 373. On April 8, 2002, the County adopted the remedial amendment.


Phosphorous Criterion and Discharge Limitations for Lake Apopka

     The St. Johns River Water Management District is in the process of amending its ERP rules to limit phosphorous loads to Lake Apopka. Section 373.461, F.S., requires the District to adopt by rule discharge limitations for all permits issued by the District for discharges into Lake Apopka or its tributaries. District staff is in the process of developing proposed rule language that would establish discharge limitations for total phosphorus for (1) surface water management systems, including agricultural surface water management systems, located within the Lake Apopka Hydrologic Basin, which discharge into Lake Apopka or its tributaries; and (2) systems that cause an interbasin diversion of water from another hydrologic basin to the Lake Apopka Hydrologic Basin and discharge water to Lake Apopka, Lake Level Canal, or the McDonald Canal. The draft proposed rule language also includes requirements for monitoring the post-development total phosphorus load discharged from the project area and annual inspection requirements. The notice of proposed rule was published in the F.A.W. on April 19, 2002.

     Minimum Flows and Levels. To date, the St. Johns River Water Management District has adopted minimum flows and levels (MFLs) for slightly more than 120 waterbodies. On March 19, 2002, new MFLs became effective for Lakes Apshawa North and South, and Cherry and Minneola (Lake County), Burkett, Irma, Martha and Pearl (Orange County), Fox and Couth Lakes (Brevard County) and Lowery (Polk County). At the same time, revised MFLs became effective for Lakes Daugharty, Drudy, Emporia, Lower Louise and Pierson (Volusia County) and Stella (Putnam County). Additionally, an amendment clarifying the definition of “semi-permanently flooded” in subsection 40C-8.021(16), F.A.C. became effective. District staff is in the process of developing a number of additional MFL’s including a minimum flow for Blue Spring in Volusia County. The District’s MFLs are found in Chapter 40C-8, F.A.C.

     Consumptive Use Permitting. The SJRWMD is preparing to initiate rulemaking to amend its consumptive use permitting (CUP) rules in chapters 40C-2, 40C-20, and 40C-22,F.A.C., and the CUP Applicant’s Handbook, to update and clarify existing rules and make a number of substantive changes, including the following:

(1) create a new exemption from permitting for fire protection use;

(2) create a new requirement that the facilities used to accomplish the consumptive use must have the capability to reduce the use during a water shortage;

(3) broaden and clarify the conditions under which a modification to an existing consumptive use permit may be granted by letter;

(4) create a new use type designation for “wildlife or environmentally-based recreation;”

(5) add “reclaimed water” to the list of source classes;

(6) add definitions for “contiguous property” and “one in ten year drought;”

(7) delete definition of “two in ten year drought;”

(8) delete the exemption for secondary uses supplied solely by reclaimed water;

(9) create a new consolidated permit process for review and action on CUP and ERP applications for projects with irrigation uses (a corresponding change to the ERP rules in chapter 40C-4 is also proposed);

(10) add a provision requiring individual metering when feasible for certain uses that are commonly master-metered;

(11) amend the temporary consumptive use permit (TCUP) criteria to provide that the Board will not consider a TCUP “necessary” when the applicant has failed to timely obtain a consumptive use permit to meet its current needs, unless the TCUP is needed to protect public health, safety, or welfare;

(12) create a new provision for consideration of a certificate of need from the Florida Public Service Commission in determining whether reasonable assurances have been provided that the proposed water use is for a purpose which is both reasonable and consistent with the public interest; and

(13) revise the text of the General and Special Conditions for permits and add new Special Conditions for permits.

     Currently, District staff are seeking input from the Governing Board, the District’s agricultural advisory committee, and utility groups on these concepts. The District may publish a notice of proposed rule development as early as September 2002.

PERMITTING CASES

Shirley B. Haynes and Egerton K. Van Den Berg v. St. Johns River Water Management District and KGB Lake Howell, LLC, DOAH Case Nos. 01-4250 and 01-4545 (SJRWMD May 8, 2002).

     This ERP case involved a challenge to a permit for the construction of 240-unit apartment complex with an associated stormwater management system in Seminole County, Florida. The central issue in the case was the interpretation of section 12.2.1.2(a) of the Applicant’s Handbook: Management and Storage of Surface Waters (A.H.: MSSW). This section provides that the District will not require an applicant to implement practicable design modifications to reduce or eliminate impacts when “the ecological value of the functions provided by the area of wetland or other surface water to be adversely affected is low, based on site specific analysis using the factors in subsection 12.2.2.3, and the proposed mitigation will provide greater long term ecological value than the area of wetland or other surface water to be adversely affected.” The ALJ concluded that the ecological value of the functions provided by the area of wetland to be filled is low because all of the proposed impacts will occur in the area of the wetland that was historically disturbed and in which nuisance and exotic vegetation are prevalent. As for the second part of the test, the ALJ concluded that the proposed mitigation will provide greater long term ecological value that the wetland to be filled because the proposed mitigation will preserve eighteen times more wetlands that are of higher quality and provide greater value than the wetland area to be impacted. The type of wetland to be preserved, a mixed forested wetland containing hardwoods, is rare for the area.

     In the Final Order, the Governing Board concurred with the ALJ’s conclusion that the project satisfied the requirements of this “out” provision. The Governing Board further clarified that:

[I]t is not our position that any time a wetland is disturbed or contains nuisance or exotic vegetative species the wetland is necessarily of low quality and qualifies for the “out” provision. To the contrary, many wetlands that have been disturbed or that contain some nuisance or exotic vegetation are not low quality overall and thus do not qualify for the “out”. The specific facts of each case must be analyzed and the factors in Section 12.2.2.3, A.H., must be considered to determine whether the “out” applies. Here, we are not persuaded by the mere evidence of disturbance or the mere presence of exotic or nuisance species in the wetland to be impacted. Instead, we find compelling evidence in the record relating to a number of factors that contribute to the conclusion that the wetland area to be impacted is of low quality.

     The Petitioners have filed an appeal of this case with the 5th DCA.