Water Use Permitting – Milo Thomas vs. SWFWMD
Meaning of "Prior Right" Disputed
Karen A. Lloyd and Margaret M. Lytle

Issues:

Does Paragraph 373.1961(1)(e), F.S., provide any rights to individual property owners?

Does Paragraph 373.1961(1)(e), F.S., create an entitlement to a Water Use Permit to withdraw a new quantity of water despite noncompliance with Subsection 373.223(1), F.S., and the conditions for issuance of permits in Rule 40D-2.301, F.A.C.?

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(e) Shall not deprive, directly or indirectly, any county wherein water is withdrawn of the prior right to the reasonable and beneficial use of water which is required to supply adequately the reasonable and beneficial needs of the county or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

Case:

Milo Thomas vs. Southwest Florida Water Management District, OGC File No. 200162, - 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. The Thomas property is immediately west of the Cross-Bar Ranch wellfield, and east of Crews Lake. Crews Lake levels are consistently below the extreme low guidance levels for the lake; four Minimum Flows and Levels wetland sites near the Thomas property are below their minimum wetland levels; nearby Loyce Lake must be augmented to maintain it’s level; and individual domestic wells in the area have been impacted. A portion of the property that is the subject of the disputed application was purchased by Mr. Thomas in 1985, after establishment of the wellfield, and additional parcels were added in 1997.

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., which implements the 3-prong test contained in Section 373.223(1), F.S. Mr. Thomas submitted a timely petition for informal hearing concerning the District’s proposed agency action. Mr. Thomas argues he is entitled to the requested increase under the provisions of paragraph 373.1961(1)(e), F.S.

Mr. Thomas does not dispute that when the existing cumulative adverse impacts from regional wellfield withdrawals are considered he does not meet Section 373.223(1), F.S. nor the 5 conditions for issuance of permits identified by District staff. Nevertheless, Mr. Thomas claims the District should ignore this departure from statutory and rule standards and issue him a WUP on the basis of Section 373.1961(1)(e).

Oral arguments were made May 16, 2002, before Mr. John Renke, III, a Governing Board member appointed by the Governing Board as the hearing officer in this case. 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.

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.

The Parties have submitted their proposed recommended orders and await the hearing officer's decision.


Miscellaneous Rulemaking

Proposed Rules:

40D-1, Procedural, F.A.C. – Section 373.118, F.S. authorizes the Governing Board's delegation of authority for the issuance of general Permits to staff. However, subsection 373.118(4), F.S., has been amended to require a process for referring denials of General permits to the Governing Board for final action. The District is amending its rules to conform its procedural rules to that requirement.

40D-40 and 40D-400, F.A.C. – Environmental Resource Permits (General and Noticed General Permits) and 40D-1, Procedural, F.A.C. – The District is amending its rules to delete the term "standard" and making consistent references in the rules to either General Permits or Noticed General Permits.

SWUCA I Rules - The SWUCA I rules originally approved by the Board in 1994, and that the current Board in November of 2000 authorized staff to move forward after the hearings and appeals had been resolved, have now been reviewed by the Joint Administrative Procedures Committee (JAPC). The JAPC has conveyed the results of its review. The results are that there are only a few minor technical changes to make to the rules.

Back in November of 2000, the Governing Board divided the 1994 SWUCA rules into two groups. The first group is the conservation and alternative source rules. These are rules that work with any management strategy that is developed during SWUCA II. These are the rules that were sent to JAPC for review. 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.