CHARLOTTE COUNTY v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

PREVIOUS SECTION

VII. Existing Rules, Proposed Rules and Agency Statements Uniquely Affecting Public Water Suppliers

A. Per Capita Use

1489. BOR Section 7.3.1.1 limits public supply water uses within the NTB WUCA to a per capita use rate limit of 150 GPD starting January 1, 1993. This rule also establishes per capita water use "goals" of 140 GPD starting January 1, 1997 and 130 GPD starting January 1, 2001.

1490. The SWUCA Rules include several new provisions to be incorporated in BOR Section 3.6. which, taken together, would limit public water uses within the SWUCA as follows: for the period from the effective date of the proposed rule through 9/30/99, permitted uses are allowed to continue to use the permitted quantity; for the period from 10/1/99 through 9/30/2004, the specified per capita water use limit would be 130 GPD; from 10/1/2004, the specified per capita water use limit would be 110 GPD.

1491. While the per capita use goals for NTB are described by the District as merely guidelines that could prompt a requirement for a utility to submit a conservation plan, the SWUCA proposals would be utilized in calculating permit quantities and they purport to be mandatory for utilities.

1492. Pinellas complains that the per capita use provisions are only applicable to public supply permittees and could be used to require such permittees to provide the District with an annual water use report addressing a variety of issues. Pinellas claims much of the information required in this report would be duplicative of information which must be submitted in other reports already required by the District. The evidence was insufficient to support Pinellas' claim that these reports are unduly burdensome or so unrelated to assessing whether a use was reasonable-beneficial and in the public interest as to be arbitrary, capricious or otherwise invalid.

1493. Allocating water to public supply utilities based upon current technology and per-capita use rates so as to avoid waste and inefficient use of limited resources is an entirely appropriate application of the reasonable-beneficial use test and furthers the goals of Chapter 373. See, Sections 373.016(2)(b) and (f) (setting forth the various policies of Chapter 373 which include "the conservation, development and proper utilization of surface and groundwater" and "preserv[ation of] natural resources, fish and wildlife").

1494. Pinellas complains that the per capita use rates are arbitrary and capricious because they set uniform limits which fail to allow for factors such as the source of available water and the customer profile of a particular utility. A utility's per capita water usage rate depends upon numerous factors, many of which are beyond the utility's control. These factors can include the type of customers served (i.e., rural residential, urban residential, agricultural, industrial, etc.), groundwater quality of the service area, and the customers' ability to utilize their own on-site wells. As a result, the amount of water used on a per capita basis can vary significantly from utility to utility. The District has not foreclosed consideration of the unique factors that may affect a utilities' ability to meet established per capita rates. The reports required by the District would help it to assess these issues.

1495. The District's per capita use provisions are based upon adjusted gross per-capita figures, which discount large uses that could unfairly or disproportionately skew figures. The evidence was insufficient to show that the District's methodology for deriving the per capita figures was flawed and/or that differences between the NTB and SWUCA provisions were significant enough to conclude that the provisions are arbitrary, capricious or otherwise invalid.

1496. In fact, the more persuasive evidence established that the per capita use rates for the NTB WUCA and the SWUCA are reasonable and achievable.

B. & C. Water Conserving Rate Structure and Customer Billing Practices

1497. Pinellas has challenged existing BOR Section 7.3.1.2 which requires public supply utilities in the NTB WUCA to adopt a water conserving rate structure and the proposed new subsections to BOR Section 3.6 (Water-Conserving Rate Structure) which would impose a similar requirement in the SWUCA.

1498. Pinellas alleges that the District lacks the legal authority to impose rate structures on public utilities and that Section 367.011(2), F.S., grants the PSC exclusive jurisdiction over the rates of public utilities. Arguably, Pinellas has no standing to challenge the requirement insofar as public utilities are concerned since Pinellas' rates are set by its Board of County Commissioners and are not regulated by the PSC. See, Section 367.022(2), F.S. In any event, neither the SWUCA Rules nor the existing rules directly conflict with the PSC's statutory authority over rate structures.

1499. The District does not dispute the ultimate authority of the PSC over the rates of a public utility. The water conserving rate structure requirements of the SWUCA Rules are specifically conditioned on a permittee obtaining PSC approval of such rates.

1500. With respect to government owned and operated water systems which are exempt from PSC regulation pursuant to Section 367.022(2), Pinellas argues that the District's water-conserving rate structure requirements impinge on the autonomy over utility rates granted to these utilities by the legislature. See, Section 153.03(3), F.S. (authorizing counties to fix and collect water rates), and Section 180.13(2), F.S. (authorizing municipal water rates.)

1501. Section 153.11(l)(b), F.S. states:

1502. Pinellas claims the highlighted language precludes the District's water conserving rate structures provisions. The autonomy over rates granted by this statute is intended to insure the operational capabilities of a utility and preclude conflict with existing bond covenants which could severely impact the financial standing of the county or municipality. Autonomy over rates should not be construed to imply exemption from the permitting requirements of Chapter 373. The District has broad authority under Chapter 373 to allocate water and, like all users, a public utility's use must be reasonable-beneficial and in the public interest.

1503. The District says the challenged rules do not provide the District with any authority over rates directly, but, instead, seek to ensure a structure that encourages conservation. Water conserving rate structures have proven to be effective in encouraging conservation and can be helpful in establishing and evaluating per capita use rates.

1504. These provisions do not conflict with the power of the PSC or local governments to regulate rates.

1505. To the extent the District reviews the rates at all, it is simply to analyze how they are structured and interact. The rules afford public utilities wide latitude in adopting its rate structure so long as the effect is to send a price signal to consumers to encourage water conservation.

1506. Consideration of a utilities' conservation efforts, including its rate structure, is appropriate in determining water allocations and applying the reasonable-beneficial use and public interest elements of the three-prong test of Section 373.223(1), F.S. Chapters 153 and 367 can and should be read in harmony with Chapter 373. "It is an accepted principle of statutory construction that statutes are to be read in harmony with each other." Department of Professional Regulation v. Yolman, 508 So.2d 468, 470 (Fla. 1st DCA 1987). "Any uncertainty as to the legislative intent should be resolved by an interpretation that best accords with the public interest." Rhoades v. Southwest Florida Regional Medical Center, 554 So.2d 1188, 1191 (Fla. 2d DCA 1989).

1507. Pinellas' claims that a District mandated rate structure conflicts with bond covenants is not persuasive. The provisions allow considerable flexibility to a utility. Any unique situations could be addressed in Section 120.57 proceedings.

1508. Pinellas claims the District's rules concerning water conserving rates structures are vague, particularly the language which requires permittees to submit a report concerning the effectiveness of the rate structure. The general concept of a water conserving rate structure is well understood by utility managers and the District has made technical assistance and advice available. The District has tried to give latitude to a utility to propose a rate structure that best meets the utility's circumstances. Exact specificity of the types of rate structures that would comply with the provisions is unnecessary and could be unduly limiting.

1509. The existing and proposed rules do not describe what appears to be a District policy of linking water conserving rate structures and per capita use requirements. The evidence at the hearing indicated that so long as a utility meets applicable per capita use restrictions, the District has accepted the rate structure of the utility under the existing WUCA rules. This issue does not go to the facial validity of the rule and is beyond the scope of this proceeding. See, Hasper, supra, 459 So.2d 358.

1510. It is not clear how the District would enforce the water conserving rate structure requirements and/or what effect a short-term failure to meet per capita use rates would have in the District's analysis of a rate structure. Again, these issues can be addressed in Section 120.57 proceedings and do not negate the conclusion that the District's consideration of a utilities' rate structure is appropriate in determining whether a use is reasonable-beneficial and/or in the public interest.

1511. Pinellas has also challenged the proposed subsection of BOR 3.5 in the SWUCA Rules which requires public supply permittees to read meters and bill customers at least bi-monthly. This proposal also requires billing period water usage information, historical billing period water usage information and rate structure information to be provided with the customer's bill. If the billing units are not in gallons, a means to convert the billing units to gallons must be provided. Pinellas claims these proposals constitute micromanagement of utilities. Pinellas has also reiterated some of the same grounds asserted in its challenge to the rate structure requirements. None of these arguments are persuasive. The requirements are intended to ensure that utility customers have sufficient information to make intelligent choices regarding demand management. While there maybe some problems in enforcing these provisions, such issues are beyond the scope of this proceeding.

1512. In sum, the District's rules requiring public utilities to implement a water conserving rate structure and mandating certain meter reading and customer billing practices are not invalid on vagueness or any other grounds. See, Florida East Coast Industries, supra, 677 So.2d at 360-361.

D. Water Audits [addressed in Findings of Fact]

E. Wholesale Customers

1513. Pinellas has challenged the provision in the proposed SWUCA Rules which provides that a wholesale public supply customer within the SWUCA utilizing more than 100,000 GPD must obtain a separate permit from the District to effectuate the conservation requirements of BOR Section 3.6.

1514. The District claims that a wholesale customer of a public utility is the ultimate consumer of the water resource and, in order for demand management regulations to be effectively implemented, it is necessary that the ultimate consumer be within the reach of the rules. The District is concerned that, without this provision, wholesale customers could avoid the conservation measures of the SWUCA Rules thereby placing a disproportionate burden upon the supplier to compensate for excessive per-capita use by the wholesale customer.

1515. This provision was included in the SWUCA Rules at the request of a number of public suppliers to provide a mechanism to assist in the effort to reduce excessive per-capita use by some wholesale customers. Apparently, many of the existing contracts between wholesale suppliers and their customers do not provide an adequate way to impose or enforce conservation requirements.¹⁸²

1516. While facilitating conservation and avoiding waste by users are certainly consistent with the overall purposes of Chapter 373, the statute does not provide direct regulatory authority over end-users or wholesale customers of a supplier.

1517. Section 373.219(1) authorizes the District to issue permits for the "consumptive uses of water". The District argues that consumptive use "does not occur at the point of withdrawal - it occurs at the point of consumption. This is where waste can be prevented and conservation encouraged." The District's proposed Conclusions of Law No. 408, p. 264.

1518. Chapter 373 does not define a "consumptive use." However, "water" is defined in Section 373.019(8) to mean "any and all water on or beneath the surface of the ground or in the atmosphere, including natural or artificial watercourses, lakes, ponds, or defused surface water and water percolating, standing, or flowing beneath the surface of the ground..."¹⁸³ Water that has been withdrawn from the ground and that is in the control of a permittee does not fall within the statutory definition of water.

1519. The District's proposed requirement in BOR Section 3.6 ("Wholesale Customers with the SWUCA") impermissibly enlarges and extends Section 373.219(1), F.S., to an individual or entity receiving water from a permittee. See, Booker Creek, supra. While the proposal may be consistent with the goals of Chapter 373, the District currently lacks the legal authority to require wholesale customers to obtain a WUP. See, Capeletti Bros., supra, 499 So.2d 855.

F. Reuse

1520. The District's existing and proposed rules concerning the reuse of reclaimed water have been challenged in this proceeding. These provisions include: Rule 40D-2.301(1)(1), F.A.C.; BOR Section 4.11; the NTB WUCA provision in BOR Section 7.3.6.2; and the proposed SWUCA provision in BOR Section 3.1. Among other things, these provisions require WUP applicants and/or permittees to analyze whether all or part of their water use can be satisfied by implementing reuse of reclaimed water, and if so, to implement such reuse.

1521. The legislature has recognized that the reuse of reclaimed water is a desirable goal. See, Section 7 of Chapter 89-324 and Chapter 94-243, Laws of Florida, codified in part at Section 373.250, F.S.

1522. A water management district can and should establish and encourage reuse programs that help reduce the demand for potable water supplies from stressed aquifers and other systems. However, as discussed above with respect to the provisions requiring use of the lowest quality of water, Chapter 373 does not authorize the District to use the permitting process to determine which users will be required to make the capital investments necessary to develop alternate sources.

1523. Section 403.064(7), F.S., provides that in issuing a WUP, "the permitting agency shall take into consideration the local reuse program." This provision allows the District to consider an existing reuse distribution system in issuing WUPs. More specific legislative authority regarding reuse in the WUP process is derived from Section 373.250, F.S. Subsection 6 of Section 373.250 requires the water management districts to submit annual reports to the legislature making comparisons between when reuse was required versus not required in the WUP issuance process. This provision, which was enacted in 1994, clearly anticipates and expects that the districts will adopt and implement reuse programs and that it is appropriate for the District to take reuse into consideration in issuing WUPs. See also, Section 373.250(5), F.S.

1524. Under Section 373.250(2)(b), F.S., reclaimed water is presumed available to a WUP applicant if "a utility exists which provides reclaimed water, which has uncommitted reclaimed water capacity, and which has distribution facilities that are initially provided by the utility at its cost to the site of the affected applicant's proposed use." This statute implicitly recognizes that a WUP applicant cannot be required to use reused water unless it is "available". The proposed SWUCA provision impermissibly seeks to enlarge the District's authority to require WUP applicants to develop reuse systems. While such a goal may be desirable, it is beyond the current delegated legislative authority of the District. See, Capeletti Bros., supra, 499 So.2d 855.

1525. The proposed subsection to BOR Section 3.1 entitled "Alternative Sources Within the SWUCA" purports to (a) establish a 50 percent reuse "goal" for permittees who generate treated domestic wastewater; (b) identify various uses of reclaimed water that will be considered "beneficial reuse" within the SWUCA; and (c) require all WUP permittees within the SWUCA to investigate the feasibility of reuse, and to implement reuse where "economically, environmentally and technically feasible." Most of the challenges raised to these matters have been discussed and resolved in the Findings of Fact above. However, there are certain legal issues related to these challenges that should be discussed.

1526. The District points out that the 50 percent reuse goal is merely a goal and it does not have any direct regulatory impact. As a goal, it is not on its face invalid. Like the water conserving rate structure requirement, it is not clear how the District can or will enforce this provision. If the District seeks to implement this goal through a WUP permit condition, the applicant could raise its objections in a Section 120.57 proceeding.

1527. More problematic is the proposed SWUCA provision challenged by Pinellas which would require applicants to investigate the feasibility of reuse as a part of the WUP issuance process and implement reuse when "economically, environmentally, and technically feasible."¹⁸⁴

1528. While the District can appropriately require a WUP applicant, including a public utility seeking potable water, to utilize reclaimed water in accordance with Section 373.250(2)(b), the WUP program is not the proper vehicle for imposing the major capital expenditures involved in developing the infrastructure for a reuse system on certain entities or users. See the discussion of Section 373.196 in Section VII G below.

1529. The testimony at the hearing established that this portion of the SWUCA proposal was intended to provide the District with authority to require a utility to implement a reuse program if the District determined it was feasible for the utility to do so. The idea was to close what some members of the Reuse Conventions Committee perceived as a "loop hole" in the state reuse program. That "loop hole" is the provision in Section 403.064(3), F.S., which provides that a wastewater treatment plant applicant's determination of the feasibility of developing reuse for purposes of a DEP discharge permit is final.¹⁸⁵

1530. Section 403.064(5) directs water management districts to accept a feasibility study prepared for DEP permitting to satisfy the District's feasibility investigation requirement. The proposed SWUCA Rule provides: "For those water use permittees also required to investigate reuse pursuant to Section 403.064, F.S., the investigation shall be in accordance with Section 403.064, F.S., and any rules promulgated thereunder." The proposed rule does not, however, recognize that the applicant's determination of feasibility is final.

1531. Pinellas contends that Section 403.064(3) reflects a legislative policy that no state agency should be allowed to second guess a determination made by a waste-water treatment plant regarding the feasibility of developing a reuse system.

1532. The District, on the other hand, points out that Section 403.064(3) only specifically addresses reuse as part of the water quality permitting of discharge from a wastewater treatment plant.

1533. The District argues that the deference extended to applicants in the waste water discharge permitting process by Section 403.064(3) should not be extended to WUP applicants absent a clear legislative directive. In this regard, the District claims the waste water treatment plant permitting process involves different considerations than exist under Chapter 373.

1534. The District notes that, in contrast to subsection 3 of Section 403.064, subsection 5 does not provide that the applicant's determination is conclusive nor does it dictate how a district is to utilize the utility's feasibility study in the WUP process. The District claims that its rules can and should be construed in a manner that avoids any conflict with Section 403.064.

1535. The District cites the State Water Policy directive that reuse programs be implemented in water resource caution areas as support for its authority to require the development of reuse systems as part of the WUP process in a designated WUCA. See, Rule 62-40.401(5) and Rule 62-40.416 of the 1995 Revised State Water Policy. However, the State Water Policy cannot create authority for water management districts to act beyond the authority delegated by the legislature. When the legislature recognized reuse of reclaimed water as a desirable goal that should be encouraged, it specifically and deliberately gave utilities the power to decide whether to construct the necessary facilities. See, Section 7 of Chapter 89-324, Laws of Florida. This policy choice was reaffirmed when the legislature adopted Section 373.250 in 1994. See, Chapter 94-243, Laws of Florida. Whether or not the legislative "loop hole" created by Section 403.064(3) is sound public policy is beyond the scope of this proceeding. It is also beyond the District's authority to close it.

1536. Without question, there is a need for long term planning, infrastructure investment and development of alternative sources of water. See, Section 7 of Chapter 95-323, Laws of Florida. While these matters should be coordinated with the permitting program, Chapter 373 does not presently allow these responsibilities to simply be shifted to certain classes of users based upon the District's assessment of who can best afford it.

1537. Even if it is assumed that the District can revisit a utility's determination as to the feasibility of developing a reuse system, the proposed SWUCA provision regarding reuse feasibility is unacceptably vague. There must be some objective standards in the rules to provide a basis for review of the District's discretionary decisions. See, Cortes, supra, 655 So.2d 132. Unlike the rules in Florida East Coast Industries, supra, 677 So.2d at 360-361, the proposed SWUCA Rule does not even list the factors the District would consider in making its determination.

1538. While the proposed rule provides some guidelines for analyzing the feasibility of using reclaimed water as an alternate or replacement source for certain non-potable uses,¹⁸⁶ the rules provide no objective criteria for determining if reuse is "economically, environmentally and technically feasible."

1539. The determination of the feasibility of developing a reuse system necessarily involves consideration of a variety of factors which are technical in nature and site-specific. Nonetheless, if the District is to exercise discretion in determining whether such a system must be built, it has to provide some standards or criteria setting forth the factors it will consider and the manner in which it will exercise its discretion. In its current form, the SWUCA proposal is impermissibly vague and provides the District with the unrestricted ability to exercise unbridled discretion with no meaningful opportunity for review. See, Cortes, supra, 655 So.2d 132.

1540. Pinellas has also alleged that the beneficial reuse criteria in the SWUCA proposal are inconsistent with, contravene and/or modify the list of beneficial reuse options set forth in the State Water Policy. In written comments on the proposed rules, including an official comment letter dated November 8, 1994, DEP indicated that the District's proposed reuse list was not consistent with the then-current definition of reuse in Chapter 62-610, the pending revisions to Chapter 62-610, or the Reuse Conventions Report. In its comments, DEP was seeking total consistency between the various provisions and Pinellas claims that absent such consistency, the District's list should be invalidated. However, at the hearing the state reuse coordinator, Dr. York, testified that the District's proposed list was generally consistent with the statewide lists. While the State Water Policy and proposed BOR Section 3.1 contain some differences, these differences are minor and/or immaterial. For example, some activities recognized by DEP as a beneficial reuse on its list, may not be considered a beneficial reuse by the District. However, districts should be accorded some flexibility to modify the general, statewide lists in the State Water Policy and Reuse Conventions Report to address local conditions and needs. Both lists provide for other additional uses to be considered on a case-by-case basis.

1541. Finally, it should be noted that consistency with State Water Policy is not properly resolved in a proceeding under Sections 120.54 or 120.56 and does not provide a basis for invalidating an existing or proposed rule. DEP has primary authority to review water management district rules for consistency with State Water Policy. Section 373.114(2) provides a specific procedure for affected persons to challenge the consistency of a rule with the State Water Policy. This process requires that the matter first be considered by DEP so that a consistency determination can be made by DEP. A hearing must be requested before the Secretary of DEP within 30 days of rule adoption. Id. The DEP Order may be appealed to FLAWAC if amendment or repeal of the rule is required. See, Section 393.114(2)(c), F.S.

G. Desalination

1542. The proposed SWUCA provision in BOR Section 3.1 regarding desalination requires that the feasibility of desalination be investigated, and if feasible, desalination is to be implemented. The provision would not apply to permits of less than 0.5 MGD or withdrawals that are not within coastal counties. The existing NTB WUCA Rules also include a provision requiring an investigation of desalination. See, BOR Section 7.3.6.4. While the two provisions differ in their details, the legal issues involved are essentially the same and the ensuing discussion is applicable to both provisions.

1543. Section 373.196, F.S., provides:

Thus, Chapter 373 recognizes that desalination and the needs of urbanized areas are some of the regional issues that require a cooperative, regional approach. Section 373.1961(1)(c) empowers the District to "establish, design, construct, operate, and maintain water production and transmission facilities for the purpose of supplying water to counties, municipalities, private utilities, or regional water supply authorities." This provision suggests that the District can investigate and implement desalination on its own.

1544. The District's desalination provisions essentially shift the bulk of the responsibility for developing desalination to certain public supply applicants. As discussed above regarding the SWUCA reuse feasibility requirements, the water use permitting process is not the appropriate vehicle for allocating the infrastructure costs for the development of alternate water sources.

1545. Because there are a number of reuse programs already in place, reclaimed water is available in some areas and situations as an alternate source. Accordingly, the District can require a WUP applicant to investigate and utilize reused water that is available in accordance with Section 373.250(2)(b). However, desalinated water is not currently an available alternate source of supply anywhere in the District. Thus, while desalination of brackish water or seawater is potentially a way to help alleviate District-wide problems, massive expenditures for plant and infrastructure are necessary before desalinated water is a viable alternate source.

1546. The District has expended considerable effort attempting to resolve some of the technical problems that have inhibited desalination efforts including trying to clarify and address brine disposal permitting issues. There remain a number of technical and financial issues which will require a cooperative regional strategy. There are certainly a number of site specific factors involved in the ultimate construction of a desalination facility. These concerns do not, however, warrant placing the bulk of the responsibility for developing a desalination program on a few public supply applicants. Many of the major factors affecting the feasibility of desalination are similar or identical throughout the District. Requiring each and every industrial and public supply permittee located in a WUCA to individually investigate the feasibility of desalination can result in a wasteful duplication of effort.

1547. Pinellas argues that the desalination provisions conflict with and contravene Section 373.171(2) and (3), which Pinellas claims require protection of existing rights to water and preclude a water management district from promulgating rules or issuing orders that require modification of existing uses absent a demonstration that the use is detrimental to other water users or the water resources of the state. This issue is moot in view of the conclusions reached above. However, it does highlight some of the uncertainty surrounding the proper interpretation of Section 373.171. Contrary to Pinellas' suggestion, Section 373.171 does not limit the District's authority to modify a use during the renewal process for an expiring permit.

1548. Section 373.171 was codified prior to the adoption of the Florida Water Resources Act. As noted above, that Act established the permitting system which is set forth in Part II of Chapter 373. Section 373.217 provides that the permitting scheme set forth in Part II was intended to supersede and control all existing statutes and regulations. It must be presumed that the legislature intended Section 373.171 to have some continuing purpose since it has not been repealed. The only reasonable interpretation is that Section 373.171 limits the ability of the District to modify an existing use during the term of a permit unless it is shown that the use is detrimental to other water users or to the water resources of the state. This limitation does not apply at the time of renewal of a permit.

1549. Finally, even if the District can require a WUP applicant to investigate the feasibility of desalination, the District's current and proposed desalination provisions are unacceptably vague and vest the District with unbridled discretion because they do not set forth criteria or standards that the District will utilize in determining whether or not desalination is feasible. The provisions only set forth a sketchy outline of general matters to be considered in the feasibility assessment as follows:

There is no delineation of the factors or criteria that the District will consider in determining whether the feasibility study is acceptable and/or whether or when an applicant would be required to implement desalination. Thus, the provisions are impermissibly vague and vest unbridled discretion in the District. See, Cortes, supra, 655 So.2d 132.

H. Reporting Alternative Sources

1550. The SWUCA Rules include BOR Section 3.1 (Reporting Alternative Source Quantities within the SWUCA) which would require permittees who supply or receive reclaimed water to submit detailed reports to the District. Pinellas erroneously claims that all reuse decisions are preempted to wastewater utilities and that the District's proposed SWUCA reporting requirements unlawfully and arbitrarily require unnecessary annual reporting. The purpose behind the rule is to obtain information necessary to assess the extent to which utilities are implementing wastewater reuse and to determine where reuse water is available. This information is essential to match users with available supply and is also necessary for preparation of the annual reports to the legislature required by Section 373.250(6). The District can require as a condition for a WUP that the permittee provide the information reasonably necessary to meet the legislative reporting requirements.

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