|
|
CHARLOTTE COUNTY v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
1363. Now that the District has developed extensive scientific understanding of the groundwater resources in the SWUCA, it is clearly faced with a situation where demand exceeds safe yield. In fact, existing permitted quantities are already greatly in excess of safe yield. 1364. As noted above, the District has not adopted a specific policy or procedure to prioritize uses as a means of allocating scarce water supplies. The District contends that adoption of the complete regulatory strategy embodied in the SWUCA Rules will protect the resource while providing an acceptable mechanism to allocate limited water supplies. A critical part of the District's overall strategy is the reallocation program. Under this program, the District essentially presumes that all water available for permitting has already been allocated to existing users who would be free to sell their rights, including renewal rights, on the open market. 1365. According to the District, the proposed reallocation provisions are intended: (1) to facilitate redistribution of water use within the SWUCA from the most impacted area along the coast to the interior regions; (2) to provide a mechanism for economic growth within the inland communities which do not have the available alternative sources of water supply that exist along the coast; and (3) to provide a mechanism for reducing total permitted quantities and increasing efficiency of use by existing permittees. 1366. Under this proposed program, the District would play only an incidental role and would not be directly involved in determining use priorities. Instead, water users among themselves and by private agreement, would determine the allocation of scarce water supplies through permit sales and transfers. The District's proposed reallocation provisions do not establish any prioritization of use for water quantities transferred nor do they provide for disclosure or impose any other requirements regarding the agreement between the transferor and the transferee. The establishment of such a program, without specific legislative authorization, exceeds the scope of the District's delegated authority under existing Chapter 373. See, Upjohn Healthcare Services, Inc. v. Dept. of Health and Rehabilitative Services, 496 So.2d 147, 149 (Fla. 1st DCA 1986)(agency cannot abrogate its statutory responsibilities.) 1367. The District has correctly recognized the need to protect groundwater resources in the SWUCA from further adverse impacts. Redistributing existing water use is a desirable result and may help optimize the use of the resource. The existing statutory framework provides some flexibility to accomplish this goal. However, there is no current statutory basis for allowing or authorizing the sale of permit rights. 1368. A reallocation mechanism that relies on market forces to accomplish redistribution is a novel and largely untested regulatory scheme. The District has apparently spent considerable time and expense studying and developing the reallocation provisions. The District believes that the proposed program would allow it to protect the resource while avoiding catastrophic economic disruption. The District is concerned that imposing drastic and immediate restrictions on pumpage could dramatically impact economic stability and future growth in the region. The District contends that the reallocation provisions provide some access to new users and are a way to economically balance the impact of capping pumping. While there are some innovative and potentially useful concepts in the proposed reallocation rules, the current proposal is contrary to the regulatory framework established in Chapter 373. This conclusion is especially warranted in view of the preference accorded in the SWUCA Rules to renewal applications when the minimum level has not been met. When there is no opportunity to obtain new permits, (a situation that is virtually certain to occur in the SWUCA under the proposed rules for at least several years,) existing withdrawal authorizations acquire significant value, especially under a system that allows the transfer of withdrawal authorizations by private agreement. In effect, current holders of water use permits, including permits for irrigated pasture land, would gain a proprietary interest in the water they are allowed to withdraw. Capping the issuance of new permits while allowing current permit-holders to transfer a part or all of their permitted quantity through negotiation and sale effectively creates a valuable private right in a commodity that has been defined by law as a public resource. 1369. The reallocation provisions allow the de facto development of an allocation scheme that resembles in many respects, the prior appropriation approach found in western water law. The adoption of an appropriative type system creating vested water rights was specifically considered and rejected during the legislative process leading to the passage of the 1957 Act. See, Fla. Water Resources Study Commission, Florida's Water Resources, A Report to the Governor and the 1957 Legislature, pp. 14, 15 (1956). Similarly, the authors of the Model Water Code specifically rejected the notion of creating vested rights in the first users of a resource. See, Commentary to Model Water Code, pp. 79-80, 173, 177. The District claims that it retains ultimate authority under the reallocation proposals to deny any permit that is not in the public interest. Thus, the District argues that the proposed program is fundamentally different than a "prior appropriations" system. However, these differences are not significant enough to authorize the creation of water withdrawal rights that extend beyond permit duration. Even if it is assumed that the District's goals are desirable and achievable, such a fundamental alteration of water rights cannot be effectuated by the District without specific legislative authorization. See, Capeletti Bros., supra, 499 So.2d 855. 1370. The District claims that the proposed reallocation program provides a reasonable alternative to the competing applications process. In this regard, the District points to its broad rulemaking authority and, in particular, Section 373.171(1), F.S. However, the District cannot ignore the existing statutory mechanisms while creating new rights that are inconsistent with the current law. 1371. During the hearing there was extensive discussion regarding whether the reallocation provisions would ultimately be effective in accomplishing their intended purposes. In some ways, the scheme appears to create incentives that could lead to an increase in actual usage in the SWUCA. The District believes, however, based upon its experience and discussions with the various user groups, that the reallocation scheme will allow market forces to assist in the redistribution effort while also providing an additional mechanism for supply from the UFAS for the areas where alternative sources of supply are less available. In view of the conclusions above, this issue is moot. It is noted, however, that uncertainty as to whether a rule will ultimately be effective in accomplishing its objectives is not a basis for invalidating the rule unless it can be shown that the District failed to consider available information and/or arbitrarily ignored relevant issues. See, Dravo, supra, 602 So.2d 632. No such showing has been made in this case.
|
