CHARLOTTE COUNTY v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

PREVIOUS SECTION

D. Impacts to Offsite Land Uses - Rule 40D-2.301(1)(h) and BOR Section 4.7

1458. Contrary to Pinellas' suggestion, protection of offsite land uses from adverse impacts related to water withdrawals is within the authority delegated to the District in Chapter 373. The District is not limited to protecting existing uses of water and/or water resources.

1459. It would be impossible for the District to set forth by rule all of the types of land uses or environmental features that might conceivably be adversely affected by a water withdrawal. Moreover, it is equally difficult to establish by rule a precise line as to when an impact is sufficiently adverse so as to require permit denial or warrant regulatory enforcement action. There are numerous interrelated factors that should be taken into account in reaching such a decision.

1460. Many of the factors delinenated in Section 4.7 of the Basis of Review are appropriate matters for the District to consider in administering its permitting program. Unfortunately, the provisions are confusing and ambiguous as to how they will be implemented and vest unbridled discretion in the District in enforcing them.

1461. Rule 40D-2.301(1)(h), F.A.C., states that a proposed withdrawal must not adversely impact offsite land uses "existing at the time of application." Section 4.7 of the BOR provides that the adverse impact must exist "when the initial permit was approved." [emphasis added] The evidence establishes that the District only applies these provisions to protect off-site land uses that were in existence prior to the time that a water use first originated. Under this interpretation, a renewal permit would not have to demonstrate compliance with these provisions with respect to off-site land uses that came into existence subsequent to the origination of the water use. This result is not obvious from the face of Rule 40D-2.301(h) since there is no qualification that it applies only to offsite land uses that arose subsequent to the origination of the water use.

1462. The intent of these provisions and the District's authority to protect offsite land uses is further confused by the standard permit conditions regarding mitigation set forth in Rule 40D-2.381(3)(m) which require a permittee to mitigate "to the satisfaction of the District any adverse impacts to environmental features or offsite land uses as a result of withdrawals" without any limitation as to when the land use came into existence. Thus, the permit condition apparently allows the District to take enforcement action to correct impacts that were not relevant under the BOR Section 4.7. Because a reasonable person cannot discern what land uses would be included under these provisions and/or at what point in time they must have been in existence in order to be protected, the provisions are defectively vague. See, Merritt, supra, 654 So.2d at 1053-1054; Witmer, supra, 662 So.2d 1299, 1302. Moreover, the permit condition regarding mitigation improperly grants the District unbridled discretion without any basis upon which the exercise of that discretion can be reviewed. See, Cortes, supra, 655 So.2d 132.

E. Interference with Existing Legal Withdrawals - Rule 40D-2.301(1)(i) and BOR Section 4.8

1463. Rule 40D-2.301(1)(i) provides that an applicant must provide reasonable assurances that its use will not adversely impact an existing use of water. This requirement embodies one of the three-prongs of the statutory test in Section 373.223(1), F.S. BOR Section 4.8 describes the process for evaluating the impact of water withdrawals on existing legal withdrawals of water. It includes a performance standard prohibiting withdrawals that, together with other withdrawals, would cause an unmitigated adverse impact to a legal water withdrawal existing at the time of the WUP application. BOR Section 4.8 also includes a presumption that withdrawals of water which do not lower the potentiometric surface by more than 5 feet at an affected well nor lower the water table at an affected well by more than 2 feet will not interfere with existing legal uses of water.

1464. These presumptions, as currently written, can impermissibly shift the burden of proof in contested permit proceedings. As is the case with the other presumptions in the BOR discussed above, there is an inadequate scientific foundation for using these presumptions to establish disputed facts in an adversial proceeding. In developing the presumptions in BOR Section 4.8, the District investigated the cumulative drawdowns that would adversely impact a nearby well assuming it was constructed in accordance with sound industry practices. The District's study included a number of simplifying assumptions, such as the necessary pump installation depth which can vary from site to site. The analysis sought to account for cumulative impact by assuming that the well would ultimately be impacted by four surrounding permitted withdrawals each of which was presumed to have a specific drawdown (five feet for a well in the aquifer, two feet for a water-table well) on the affected well.

1465. Although the District contends the BOR Section 4.8 presumptions can be rebutted by site specific information, no one has ever successfully rebutted the presumptions. In fact, if the District's modeling predicts a proposed new use will cause drawdowns which exceed the presumptions, it is essentially impossible for an applicant to rebut the District's conclusion with site specific data because there is no information available regarding the actual impact of the proposed new use.

1466. Unlike many of the other presumptions, the District only applies the BOR Section 4.8 presumptions on an individual basis, not a cumulative basis. The District's limitation of only 5 feet of potentiometric drawdown by a proposed use could have the effect of reserving drawdown at an affected well for other future uses that do not currently exist. Such a result is not consistent with Chapter 373's goal of maximizing reasonable beneficial use of the water resource. The analysis for the 2 foot water table drawdown presumption is subject to the same qualifications.

1467. The testimony at the hearing indicated that the District will not apply the presumptions in BOR Section 4.8 if the applicant obtains the consent of the potentially affected well owner, but this exception is not set forth in the rules and no guidelines exist for District permit reviewers regarding how such consent should be evidenced or the implications of an affected well owner's consent to subsequent owner's and/or changed conditions.

1468. There is some confusion as to how the presumptions in BOR Section 4.8 apply on renewal of a WUP. The evidence established that the District applies these provisions so that a renewal applicant is entitled to relate back to the original permitted quantity for purposes of applying the non-interference test. In other words, when a permit is renewed the original permitted quantity is considered to pre-exist any permits which were later issued and the original permitted quantity is not subject to the non-interference test with regard to subsequent permittees.¹⁷⁸ This interpretation is not clear from the face of the rules or the BOR. In fact, the performance standards in the BOR indicate that the protection extends to a "legal water withdrawal existing at the time of the application".

1469. Other than a contention by Pinellas that the District was acting in contravention of the two-prong test of Section 373.226, F.S., none of the Petitioners argued that the District's manner of applying the non-interference test to renewal permits was improper or contravened any other specific section of Chapter 373. However, during the course of the hearing there was extensive discussion as to whether this approach was consistent with the regulatory scheme established in Chapter 373. This issue is a matter of considerable importance and some uncertainty in regulating water use in Florida. Neither the statute nor the rules define an "existing legal use" which is entitled to protection. The Model Water Code clearly contemplates that the permit system would provide a user with a reasonably secure right to a set amount of water for a specific period of time. See, Commentary to Model Water Code, p. 189. Upon expiration, a user's rights are subject to review and renewal based upon the then extant conditions.

1470. The basic purpose of the non-interference test is to ensure that pre-existing reasonable-beneficial uses are protected from interference by subsequent withdrawals. Subsequent permittees were supposed to be subject to this test when they received their permits. Theoretically, if the test has been properly administered, there should not be any interference with or from subsequent uses when an earlier permittee seeks to renew. However, if the permitting process is not completely effective or if there are natural or man-made changes in the resource, interference may exist.

1471. Without question, such a scenario presents many administrative difficulties and confusion. The District claims that its interpretation prevents a "leapfrog effect," whereby a subsequent permittee could "leapfrog" over the prior existing legal use with regard to application of the non-interference prong. The District argues

District's Conclusions of Law No. 340, p. 224.¹⁷⁹

1472. This argument ignores that subsequent users may also have invested significant capital. In any event, Chapter 373 does not authorize an automatic prioritization of uses based solely on the time the use originated. Such an approach was clearly rejected by the drafters of the Model Water Code. See, Commentary to Model Water Code, pp. 159-160, 174-175.

1473. When the demands for a water resource exceed the supply that can be provided without causing unacceptable impacts, the competing applications process is the mechanism established in Chapter 373 to prioritize uses. Under the competing applications provision, renewal permits are entitled to priority all things being equal. Before this priority can be applied, it must first be established that all other things are equal. Admittedly, this prerequisite is a very cumbersome and potentially controversial matter. While the statute provides little guidance in this regard, the District must regulate within the statutory framework until it is amended or repealed by the legislature.

F. Mitigate impacts to existing legal uses - Rule 40D-2.381(3)(1), F.A.C.

1474. Consistent with the above rulings, it is concluded that Rule 40D-2.381(3)(1), F.A.C. is invalid because it vests unbridled discretion with the District without any standards or basis to review the exercise of that discretion. See, Cortes, supra, 655 So.2d 132.

G. Utilization of Local Resources - Rule 40D-2.01(1)(j) and BOR Section 4.9

1475. Rule 40D-2.301(1)(j) requires a WUP applicant to provide reasonable assurances that the proposed use will utilize local resources to the "greatest extent practicable." BOR Section 4.9 provides that an applicant must utilize local resources to the "maximum extent possible."¹⁸⁰ In this regard, BOR Section 4.9 requires an applicant to demonstrate water resources near the demand are not feasible. This demonstration must address economic factors such as distribution, land purchasing, condemnation, etc.

1476. Pinellas contends these provisions are "so parochial that [they] violate the essence and intent of Chapter 373 as well as other state policies and appellate decisions stressing the regionalization of water supplies and statewide cooperation among water users to effectively distribute the state's water resources." In this regard, Pinellas notes that one of the state policies sought to be furthered by the comprehensive planning process is "the development of local and regional water supplies within the water management district instead of transporting surface water across district boundaries." [emphasis supplied] See, Section 187.201(8)(b)3, F.S. Thus, Pinellas argues the District should not seek to emphasize the development of only local resources. Pinellas also contends that the District's rules regarding local sources are contrary to Section 403.851 which establishes a state policy "that the citizens of Florida shall be assured of the availability of safe drinking water" with the stated legislative intent "to provide for safe drinking water at all times throughout the state, with due regard for economic factors and efficiency in government".

1477. The District argues that, in view of the broad authority granted to it under Chapter 373 in the interpretation and application of the three-prong test and the deference to be accorded to an agency's interpretation of a statute which it administers, it cannot be concluded that a general requirement that an applicant utilize a local source to the greatest extent practicable contravenes, modifies or enlarges Chapter 373. One of the justifications offered by District witnesses in support of Rule 40D-2.301 (1)(j) is that it protects the growth potential of more distant counties. Pinellas on the other hand, argues that Chapter 373 does not allow the District to "bank" water for potential future users.

1478. This dispute highlights one of the most controversial issues in water management, i.e., the degree to which water resources should be reserved for use within the immediate vicinity of a withdrawal based upon some geographic or political boundary. This issue is all the more difficult because of the complex hydrogeology and interconnectedness of groundwater aquifers.

1479. The statute specifically establishes a procedure for transferring water from one water management district for use in another district. See, Section 373.2295, F.S. No specific procedures or requirements are imposed for the transfer of water within the boundaries of a district. In fact, Section 373.223(2), F.S., provides:

1480. This statute was enacted as part of the Florida Water Resources Act in 1972 and reflects legislative recognition that common law restrictions on the transfer of water limited economic development opportunities and were not in the public interest. See, Commentary to Model Water Code Section 2.02(2), p. 180¹⁸¹ Under Chapter 373 there can be no doubt that water is a public resource to be managed by the water management districts for the public benefit. See, Section 373.016, F.S.

1481. When the statute is considered in its totality, it is clear that a water management district has the authority to manage all district resources in a manner that meets the district's needs.

1482. Nonetheless, the withdrawal of water from one political subdivision for use within another political subdivision can be extremely controversial. Chapter 373 recognizes that residents and/or potential users within the area from which water is withdrawn cannot be ignored. Section 373.196(3), F.S., provides that the continued operation of existing water production and transmission facilities and the development of cooperating arrangements and regional water supply authorities for the production of water to meet the needs of the municipalities and counties "shall not be done in a manner which results in adverse effects upon the areas from whence such water is withdrawn." Section 373.1961(5), F.S., provides that the District "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 a county or any of the inhabitants or property owners therein." The statute does not provide any timeframe for determining the needs of the county. See also, Section 373.1962(5), F.S. (dealing with regional water supply authorities). While these provisions provide some protection for users and potential users within the area from which water is withdrawn, Chapter 373 does not provide for autonomy over water withdrawal decisions at a county or local level. A conclusive prioritization of local resources over regional resources is not authorized under the current statute outside the context of a determination under Sections 373.196(3), 373.1961(5) and/or 373.1962(5), F.S.

1483. Both the Fifth District Court of Appeal and the Florida Supreme Court have recognized that the Florida Water Resources Act, in particular Section 373.223(2), represent a rejection of a parochial view of water management in favor of a regulatory framework of managing water resources at both the state and regional level. See, Osceola County, supra, 504 So.2d 385, affirming and approving Osceola County v. St. Johns River Water Management District, 486 So.2d 616 (5th DCA 1986).

504 So.2d at 388, quoting from the 5th DCA decision, 486 So.2d at 619. [emphasis supplied].

1484. In implementing a WUP program, the District must keep in mind the overall policies of Chapter 373 which include the regionalization of water supplies, the fostering of cooperative efforts to meet the reasonable-beneficial water needs in the District, the protection of existing water uses, and the protection of the water resources themselves.

1485. As discussed further in Section VII below, Chapter 373 does not authorize the District to determine which user group is in a better financial position to develop alternate water sources. If the demands on a resource exceed the available supply, the competing applications provision reflects an intent that all applicants competing for the same resource be afforded an opportunity to demonstrate that their use is more in the public interest than other uses. Chapter 373 views development of adequate water supplies as a cooperative venture. See the discussion of Section 373.196 in Section VII G below. The WUP process cannot be used as a vehicle to unilaterally impose significant capital investment decisions on some public supply providers while other users are granted free access to the public resources of the District.

1486. Section 373.1961(1), F.S., requires the District "to assist counties, municipalities, and regional water supply authorities in meeting water supply needs in such manner as will give priority to encouraging conservation and reducing adverse environmental effects of improper or excessive withdrawals of water from concentrated areas." Pinellas claims that Rule 40D- 2.301(1)(j) impermissibly requires a public water supply utility to concentrate its water withdrawals within its political boundaries or service area before looking at other regional sources. Pinellas argues this requirement necessarily results in excessive withdrawals occurring within highly localized areas rather than regionalizing water supplies to include withdrawals from more remote areas.

1487. The District claims that obtaining water from a local source may involve less environmental impact in terms of transmission mains and other facilities than a remote source. In addition, the District claims that a requirement to look at the possibility of using local resources may also further conservation and reuse goals. Thus, requiring some consideration of local sources may be justified under the public interest prong of the statutory three-prong test. Moreover, the District has the authority to determine whether a proposed use is reasonable-beneficial, which can include an assessment of whether the use would be an efficient/productive use. However, Chapter 373 does not authorize the allocation of water based upon the District's assessment of which potential user can more easily bear the cost of developing new resources. Furthermore, the standards set forth in BOR Section 4.9 are unacceptably vague because they provide no basis for meaningful review of the District's exercise of its discretion. See, Cortes, supra, 655 So.2d 132.

1488. In sum, the water use permitting process necessarily involves a balancing of many important, yet sometimes conflicting goals. How much emphasize to place on the development of local resources before looking to remote sources can be part of the balancing. Chapter 373 accords the District some discretion in this regard. However, the District's current local resource provisions purport to allow the District to deny a WUP solely on the grounds that the District believes the applicant can develop a local source. The provisions do not provide any guidance as to how the District will determine which sources are local and they do not delineate any standards the District will utilize in determining whether an applicant can develop a local resource. Moreover, the District's insistence on the primacy of local resources conflicts with enunciated statutory goals. Thus, these local source provisions are invalid because they elevate this consideration to a conclusive criteria without any standards as to how it will be applied. See, Cortes, supra, 655 So.2d 132.

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