CHARLOTTE COUNTY v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

¹/ Effective October 1, 1996, the title of the presiding officer in this proceeding was changed from Hearing Officer to Administrative Law Judge. See, Section 31 of Ch. 96-159, Laws of Fla. This 1996 law included extensive modifications to and renumbering of the Florida Administrative Procedure Act, Chapter 120, Florida Statutes (the "APA"). Because the hearing in this case was conducted under and all post-hearing submittals were based upon the provisions of the APA in existence prior to October 1, 1996, the citations in this Final Order are to the pre-1996 APA.

The procedural changes of the 1996 amendments to the APA are applicable to pending cases. Life Care Centers of America, Inc. v. Sawgrass Care Center, Inc., 683 So.2d 609 (Fla. 1st DCA 1996). Therefore, the procedural changes to the APA for which the time for action has not elapsed can and should be applied in this case. See, Stengle and Kiser, "Adjudicatory Proceedings and Pending Proceedings," Fla. Bar Jour., March, 1997, p. 40, 43. Accordingly, because the 1996 law eliminated the requirement for individual rulings on each proposed finding of fact submitted by the parties, no such rulings are included in this Final Order. See, Life Care Centers, supra, 683 So.2d at 614. However, the more than 2000 pages of posthearing submittals filed in this case (including more than 1700 proposed findings of fact submitted by Pinellas and more than 700 by the District) have been reviewed and considered. This Final Order attempts to resolve all the issues raised by the parties.

²/ The Order of February 1, 1995, suggested that all of the challenges to the Initial Proposed Rules were arguably rendered moot as a result of the publication of the SWUCA Rules. However, as noted in the Voluntary Dismissal Order, some of the Petitioners who challenged both the Initial Proposed Rules and the SWUCA Rules requested that the original cases remain pending and be consolidated with the subsequently filed challenges to preserve the Petitioners' ability to argue the propriety of the District's actions. Since no objection was raised to the requests, challenges to the Initial Proposed Rules filed by Petitioners who did not settle with the District were consolidated with the subsequently filed challenges to the SWUCA Rules and the related challenges filed pursuant to Sections 120.56 and 120.535, F.S. (1993). None of the parties attributed any significance to the challenges to the Initial Proposed Rules in their presentations nor did they present persuasive arguments during the final hearing or in post-hearing submittals. Accordingly, the challenges to the Initial Proposed Rules are moot and they are not addressed in this Final Order.

³/ Pinellas filed a third petition for administrative hearing on February 1, 1995, contending that the District's use of Part C of the Permit Manual (the "Design Aids") violated Sections 120.535(1) and 120.56, F.S. (1993). The administrative proceeding on Pinellas' third petition was consolidated with the above-styled cases by Order dated February 21, 1995.

⁴/ The District did not propose any new language to Section 4.3 of the BOR in the April 14 publication. Instead, the subjects that had been addressed in the withdrawn changes to Section 4.3 of the BOR were incorporated into the new version of 40D-8.628.

⁵/ The changes that were ultimately made and some of the reasons for them are discussed in more detail in Section III.E.

⁶/ Chapter 94-270 (as amended by Chapter 95-171), Laws of Florida, created the 21-member Water Management District Review Commission to conduct a comprehensive review of Florida's regional system of water management. The commission delivered its final report containing eighty recommendations to the Governor and Legislature on December 29, 1995. Preliminary drafts of portions of the report were available in the fall of 1995.

⁷/ Pinellas' motions were initially designated the Third and Fourth Motions for Official Recognition. The numbering error was corrected in a Notice of Correction filed December 6, 1996.

⁸/ On some wellfields Pinellas is a co-owner and/or co-operator. These wellfields include Cross Bar Ranch, Eldridge-Wilde and East Lake Road.

⁹/ Unless otherwise indicated, all references hereafter to sections within Chapter 373 will denote the statute as it existed at the times pertinent to the consolidated cases, e.g. sections appearing in 1993 Official Florida Statutes as amended by the 1994 Supplement, if appropriate.

¹⁰/ F. Maloney, R. Ausness & S. Morris, A Model Water Code (1972)(hereinafter Model Water Code). See also, Maloney, Capehart & Hoofman, Florida's "Reasonable Beneficial" Water Use Standards: Have East and West Met?, 31 U. Fla. L. Rev. 253, 275 (1979).

¹¹/ Although a specific statutory directive requiring the DEP to adopt a state water policy by rule was not enacted until 1989 (see ch. 89-279, Laws of Fla.), DEP adopted a water policy rule, Chapter 17-40, F.A.C., in 1981 to implement other provisions of Chapter 373.

The "General Policies" of the State Water Policy are set forth in Rule 62-40.310, F.A.C. (1994), which provides in pertinent part as follows:

Water management programs, rules and plans, where economically and environmentally feasible, not contrary to the public interest, and consistent with Florida law, shall seek to:

The 1995 amendments to the State Water Policy rearrange these provisions and add some new elements, but are essentially consistent.

¹²/ The State Comp Plan provides "long-range policy guidance for the orderly social, economic and physical growth of the state." Section 187.101(1), F.S. In addition, the plan specifically "[e]ncourage[s] the development of local and regional water supplies within water management districts instead of transporting surface water across district boundaries." Section 187.201(8)(b)(3), F.S.

¹³/ In 1995, during the course of this proceeding, significant amendments to the State Water Policy were proposed. These amendments were apparently adopted in July 1995. Some of the changes to the State Water Policy were discussed during the hearing in these consolidated cases. Both the State Water Policy as it existed at the start of this proceeding and the amendments adopted while it was in progress have been reviewed and considered. Except where specifically noted in this Final Order, the amendments do not change the analysis of any of the issues in this proceeding.

¹⁴/ The 1995 amendments to the State Water Policy change this provision so that MFLs are not just a "consideration," now MFLs must be "protected."

¹⁵/ As discussed in more detail in Section IV, the potentiometric surface represents "the pressure head in a confined aquifer defined by the level to which water will rise in a tightly cased well that fully penetrates the aquifer."

¹⁶/ "Evapotranspiration refers to water that plants absorb from the soil through their root system[s] and subsequently release in water vapor..., together with water that evaporates directly from water and land surfaces." Water Resources Atlas of Florida p. 15 (E. Fernald & D. Patton 1984).

¹⁷/ By rule, the annual water crop throughout the District was established at thirteen inches or 365,000 gallons for each acre based on annual averages of fifty-three inches of rain and an evapotranspiration rate of thirty-nine inches. This resulted in a thousand gallon per acre per day allocation.

¹⁸/ The Final Order in that case concluded, in part, as follows:

4 Fla.Admin.L.Rep. at 1860-A.

With regard to the 1,000 gallons-per-acre-per-day presumption, the Final Order provided:

Id.

¹⁹/ In the 1989 rules, the District referred to its consumptive use regulatory program as "water use permitting," rather than consumptive use permitting. Both descriptive phrases refer to the District's program implementing Sections 373.219 and 373.223, F.S.

²⁰/ There is no correlative subsection in the BOR for Rule 40D-2.301(1)(b).

²¹/ For example, Section BOR 4.2 states, in pertinent part, as follows:

²²/ In areas where the BOR performance standards are not being met, the continued issuance of general permits without any cumulative analysis may exacerbate the resource problems. The District has been considering the possible need to limit total permitted withdrawal quantities for these general permits and/or for other withdrawals that are not subject to any cumulative scrutiny. So far, no rules have been proposed or adopted.

²³/ There was some testimony at the hearing that indicated, the District will not apply the Design Aids and/or will not consider applications for new withdrawals in certain areas where resource problems have been well-documented and the performance standards are not being met. In all other cases, the District's evaluation of a WUP application begins with the Design Aids.

²⁴/ Section C-1 of the Design Aids, which sets forth a "Withdrawal Impact Analysis," is discussed further in Section IX of this Final Order.

²⁵/ For example, if a proposed withdrawal has less than one foot of drawdown in the confined aquifer, it is not possible that it individually will have more than one foot of drawdown at the water table aquifer.

²⁶/ In this regard, the District says that the modeled water table drawdowns produced by the Northern Tampa Bay Regional Groundwater Flow Model (which normally includes all regional water withdrawals regardless of size or impact) are not significantly altered when Level 1 withdrawals are excluded. It is unclear, however, whether a similar result would occur in the southern portion of the District. It should be noted that Chapter 373 allows a district to establish a general permit system by rule for projects or categories of projects that have a minimal impact on the water resources of the district. The District has adopted Rule 40D-2.041, F.A.C., which does not require a WUP for withdrawals of less than 100,000 GPD and authorizes District staff to issue "general permits" of up to 500,000 GPD without Governing Board approval.

²⁷/ There was some evidence suggesting that the Level 2 Analysis is generally triggered for permit applications seeking withdrawals of more than five MGD. However, it is not clear from the evidence presented what level of withdrawal generally prompts a Level 2 Analysis.

²⁸/ As explained in Section IX, a four-foot drawdown contour is used in the southern part of the District.

²⁹/ In its proposed findings of fact, the District says the BOR presumptions are no longer applicable at this point. However, that conclusion is not clear from the face of the Design Aids, the BOR or the rules. Moreover, it also appears to conflict with the District's admission that the inverse presumptions are applied in the permit review process. This ambiguity highlights the confusion inherent in the presumptions as currently written.

³⁰/ Some of the concepts proposed in the SWUCA Rules are apparently being considered as part of the overall long-term strategy for the Northern Tampa Bay area.

³¹/ The natural recharge rate in the District is very low from central Hillsborough County southward, and is quite high in areas north of Hillsborough County, in the northeastern half of Polk County, and along the Highlands Ridge.

³²/ The NTB WUCA does not encompass the entire Central Basin, and some parts of the NTB WUCA lie outside the basin.

³³/ At the hearing and in various documents, this Southern Basin has been referred to as the "Southwest Central Florida Groundwater Basin." To minimize confusion, the SWCFGWB will be used to refer to the entire area delineated by the USGS and the Southern Basin will refer to that portion of the area below the groundwater divide identified by the District.

³⁴/ The locations of the three basins now identified by the District are depicted in District Exh. 92.

³⁵/ Some of the information gathered from the southern portion of the District was used by District staff in its development of a "safe yield" recommendation for groundwater within the area as discussed in Section III C-2.d.

³⁶/ The thickness of the confining bed between the surficial and intermediate aquifers also increases toward the south as does the lower intermediate confining bed, which lies between the intermediate aquifer and the upper Floridan Aquifer. The bottom of the lower confining bed descends from less than 50 feet below sea level near the Pasco-Hillsborough county line to more than 600 feet below sea level in Charlotte County.

³⁷/ The UFAS is not a major source of raw water in Charlotte County because, under natural conditions, total dissolved solids in the groundwater typically exceed 1,000 mg/liter.

³⁸/ "Predevelopment" refers to the period of time prior to the withdrawal of significant amounts of water.

³⁹/ Transmissivity values are commonly expressed in terms of gallons-per-day-per-foot, which represents the amount of water that can move one foot through a column one foot wide and the height of the aquifer, at a head pressure differential of one foot per one foot. Transmissivity values in the Southern Basin vary from more than three million gpd in eastern DeSoto County to only 250,000 GPD in southern Hillsborough County.

⁴⁰/ Since 1990, 5,300 WUPs have been issued District-wide, with 3,300 being renewals, 810 modifications and 1,200 new permits. In 1994, the District issued a total of 846 water use permits District-wide, including 483 renewals, 166 modifications, and 197 new permits.

⁴¹/ See, Section 373.118, F.S. and Rule 40D-2.041, F.A.C.

⁴²/ Agricultural permitted quantities are based upon the maximum amount of acreage expected to be planted during any one year period within the permit term (typically six or ten years). Economic conditions or crop rotation often limit the amount of acreage planted and irrigated during any one year. Moreover, permitted agricultural irrigation quantities are based on use under two-in-ten-year drought conditions and, therefore, do not reflect normal use during average rainfall years.

⁴³/ Approximately 97 percent of public water supply withdrawals and 90 percent of industrial water withdrawals are metered. Thus, the accuracy of use estimates for these groups is generally pretty good. The data on agricultural withdrawals, which have also recently been metered historically account for more than 60 percent of total water use within the SWUCA, is not as accurate.

⁴⁴/ Under the proposed SWUCA Rules, the District would require all water use permit-holders within the SWUCA to meter withdrawals if they pump 100,000 gallons or more per day.

⁴⁵/ Approximations of agricultural water use were made by utilizing estimates of crop acreage provided by the Institute of Food and Agriculture Sciences (IFAS) at the University of Florida and crop application rates generated by the District's Agricultural Irrigation Monitoring (AIM) program and AGMOD irrigation-requirement computer model.

⁴⁶/ In recent years, phosphate companies have begun to recirculate "used" water and have instituted other conservation measures to reduce groundwater pumping.

⁴⁷/ There are reports indicating that diminished aquifer pressure resulted in cessation of the flow at Kissengen Springs (located south of Bartow, near the Peace River) sometime prior to 1961.

⁴⁸/ The maximum-depressed area around Mulberry improved after 1975, but twenty miles to the west, potentiometric levels continued to decline and reached a low in 1989. Thus, while the aquifer underlying southwest Polk County has improved over time, areas in Hillsborough and Manatee Counties have shown little recovery to date. The different patterns among the counties result primarily from changes in local pumping practices by the phosphate industry (in Polk County during the 1950s, '60s and '70s) and by row-crop agriculture and domestic use (within Hillsborough, Manatee and Sarasota Counties over the past decade).

⁴⁹/ As discussed in Section III C 3 d, the Highlands Ridge was not originally included in the District, but was added in the late 1970s.

⁵⁰/ Although frequently depicted in drawings as occurring at a relatively steep angle, in reality the saltwater transition zone is more horizontal. When the potentiometric surface is reduced, both vertical and horizontal movement occur, but there is more vertical than horizontal movement.

⁵¹/ Following the establishment of the HR WUCA and ETB WUCA, the District adopted certain rules governing water use permitting in those areas. These rules supplemented the existing rules and were intended to provide interim protection while additional studies were conducted and long-term management strategies were developed.

As part of the ETB Rules, the District prohibited new withdrawals from within the ETB WUCA. The ETB Rules were amended in early 1993 to preclude the issuance of any new permits in areas outside the ETB WUCA that were projected to have a measurable drawdown on the Most Impacted Area of ETB. See, BOR Section 7.2.8. The District felt that additional protection from saltwater intrusion was necessary. As discussed below, this provision regarding withdrawals affecting the MIA is proposed for repeal as part of the SWUCA Rules.

⁵²/ While there has been improvement, many lakes are still stressed. In 1990, 37 percent of the Highland County lakes evaluated (16 out of 43) fluctuated below the "extreme low" management level, and 28 percent (12 out of 43) fluctuated between the extreme low and "minimum low" management levels. In Polk County, 50 percent of the lake levels evaluated (18 out of 36) generally fluctuated below the extreme low management level, while 39 percent (14 out of 36) fluctuated between the extreme low and minimum low management levels.

As of January, 1995, 50 percent of the lakes along the Highlands Ridge that have management levels (68/136) were rated by the District as "stressed".

⁵³/ This amount was subsequently increased to 550 MGD in the SWUCA Management Plan.

⁵⁴/ In addition to the preliminary results of the studies undertaken as part of the ETB and HR WRAPs, other sources of information were used in defining the SWUCA including the Ridge II Report of 1989.

⁵⁵/ The SAGE Group included: Dr. Sam Upchurch, former Professor and Chairman of the Geology Department at the University of South Florida (USF); Dr. Mark Stewart, Professor and present Chairman of Geology Department at USF; Michael McDonald, a former USGS employee who was instrumental in the development of the MODFLOW model, the current industry standard computer flow model; David Pyne of CH2M Hill, Inc., a private consultant; Dr. Peter Huyakorn, a well reknowned modeling expert, and a member of the consulting firm HydroGeoLogic, Inc.,; and Walter Aucott, who is employed by USGS.

⁵⁶/ Among the reports that were reviewed and/or developed by the SAGE Group are: (1) The ETB WRAP Report; (2) Executive Summary: Supplemental Investigations and Other Reports Prepared for the Eastern Tampa Bay and Southern Water Use Caution Areas Since March 1993 (referred to above as the "Supplemental Investigations Report"); (3) Computer Model of Groundwater Flow in the ETB WUCA, May 1993; (4) Crooked Lake Water Shed Report; (5) Saline Water in Florida, May 1994; (6) Application of SIMLAS to Saltwater Intrusion Problems in Southern Groundwater basin, May, 1993, prepared by HydroGeoLogic, Inc., (7) Density Dependent Cross-Sectional Flow and Solute Transport Modeling for Manatee-South Hillsborough WRAP, February 1991; and (8) DSTRAM-Based Cross-Section Modeling of Saltwater Intrusion in the Eastern Tampa Bay WUCA, September 1994.

⁵⁷/ The Management Plan projects that the Plan's conservation measures would reduce permitted quantities from 416 MGD in the Eastern Tampa Bay area and 1333 MGD in the entire SWUCA to about 296 MGD and 1054 MGD, respectively.

⁵⁸/ The SWUCA Management Plan estimates that 75 MGD can reasonably be produced from new alternative sources.

⁵⁹/ For example, desalination that uses brackish groundwater is limited because withdrawals of brackish water can stress the same aquifers affected by freshwater pumpage. As discussed in Section VII H below, the utilization of seawater for desalination raises questions regarding brine disposal, and the costs associated with seawater desalination are significant. The potential for significant regional development of the surficial aquifer in the SWUCA is not great because the quantities available for withdrawal are limited by soil conditions and environmental constraints. Even so, the District believes that development of this resource in some site-specific yield usable quantities, and the use of new techniques -- such as horizontal wells -- may improve the yield from this source.

⁶⁰/ Water quantities for supplemental irrigation of most crops would be permitted on the basis of high water-use efficiencies and an average rainfall year. Thus, while a grower may have sufficient permitted water quantities available during above-average and average rainfall years, water shortages may occur during below-average rainfall years.

⁶¹/ Quantities used for crop protection (e.g., frost-freeze events) would be available for use, but not included in the irrigation allocation. Similarly, drought credits, which could be used to augment a permitted quantity during times of low rainfall, would not be included in the permitted quantity.

⁶²/ Documentation of long-term declines in the potentiometric surface of the UFAS in the SWUCA began sometime prior to 1930. In the early 1960s, the rate of decline in the SWUCA began to greatly accelerate, and the levels generally declined in the 1960s, 1980s, and over the past ten years. The 1970s saw declines in the early part of the decade with some recovery occurring in the latter half. Overall, the 1970s generally reflected little change. Periods of temporary water level recovery in the region have been short-lived, and levels generally declined following the temporary recoveries.

⁶³/ Generally, aquifer levels throughout the SWUCA have risen somewhat since the lows reached in 1989. The improvements have resulted from a number of factors, including more favorable weather patterns, changes in groundwater pumping, and increased awareness and conservation by users. The central portion of the SWUCA, which is an area of historically significant groundwater withdrawals for phosphate mining and agricultural irrigation, has shown the most improvement.

⁶⁴/ Mining use in 1990 dropped to 162 MGD. The 1989 and 1990 withdrawal figures reflected decreases of more than 28 percent from the 233 MGD withdrawn by mining and industry in 1977. The declines in water use resulted from increased use efficiency by the phosphate industry, as well as reduced phosphate mining activity.

⁶⁵/ In 1990, total public supply use (including surface water) was approximately 165 MGD. Water use for public supply has increased from about 60 MGD in 1970. Public water supply utilities in the SWUCA provide potable (drinking) water to approximately 1,073,480 residents.

⁶⁶/ Total water use district-wide in 1975 was estimated as 1498 MGD. The total in 1990 was estimated as 1487 MGD.

⁶⁷/ A total of 1,100 wells were analyzed across the Basin, and more than 24 percent reflected degraded water quality.

⁶⁸/ Due to differing aquifer characteristics and transmissivities, a groundwater withdrawal from the Floridan Aquifer at one location can have a different cone of depression and thus a different observable impact on the potentiometric surface than a groundwater withdrawal at another location. For example, as the aquifers storativity increases toward the northern part of the basin, the extent of a withdrawal's cone of depression in that area is generally smaller than in the southern part of the basin.

⁶⁹/ To the extent the petitions filed in these proceedings include additional allegations regarding the boundaries, no persuasive evidence was presented to support them.

⁷⁰/ Theoretically, withdrawals outside but along the eastern boundary of the SWUCA could lower the potentiometric surface of the upper Floridan aquifer within the Highlands Ridge by 0.1 foot. If this reduction caused the Highlands Ridge to fall below its minimum level, proposed Rule 40D-8.628 would preclude the issuance of permits for new groundwater withdrawals throughout the entire 5,000 square mile area of the SWUCA.

⁷¹/ The boundaries of the existing ETB WUCA and MIA were not based on hydrologic boundaries, but rather on existing political boundaries or other regulatory considerations.

⁷²/ Contrary to the District's proposed Finding of Fact No. 234, the Needs and Sources Report recognizes that the Cone Ranch Wellfield is "capable of producing substantial quantities, possibly similar to the existing Cypress Creek or Cross Bar Ranch wellfields." See Needs and Sources Report pp. 304, 307. It is the North Hillsborough Linear Wellfield that is projected to produce not more than 6 MGD by the year 2020. Id. at 296-297.

⁷³/ The "Ghyben-Herzberg principle" is a well-established conceptualization of density differences between freshwater and seawater at equilibrium. The principle provides that for each foot of freshwater above sea level in a confined aquifer approximately forty feet of freshwater extends below sea level. Application of the principle can provide an estimate of the location of the saltwater interface at equilibrium.

⁷⁴/ Water budgets prepared in connection with the ETB WRAP indicate that under pre-development conditions, inflow to the UFAS in ETB was estimated to be about 68 MGD. Outflow along the coast was estimated at 62.8 MGD, with the balance "leaking" upward through the aquifer as it approached the coast. Under 1989 average conditions, with pumping from the region estimated at 213 MGD, inflow from adjoining regions increased from 68 MGD to 135 MGD, outflow at the coast decreased from 62.8 MGD to 2 MGD and the upward leakage to the aquifer of about 5 MGD was reversed to a downward flow of about 80 MGD.

⁷⁵/ For example, linear interpolation means that the value of a cell located halfway between two measured points would equal one-half the sum of the two points' measurements.

⁷⁶/ Some Petitioners have suggested that the District should have used an average of several years measurements to calculate the baseline potentiometric surface that would constitute the minimum aquifer level. An averaging approach would serve no purpose, however, because it was the condition of the aquifer resulting from the 1991 potentiometric surface that the District was seeking to achieve.

⁷⁷/ Some of the parties claim that the April 14 Modifications would result in the re-establishment or continuation of the ETB WUCA and HR WUCA. In actuality, those WUCAs would not be recreated or continued; the previously established boundaries for the ETB and HR WUCAs would simply be used within the proposed new regulatory scheme.

⁷⁸/ Predevelopment average potentiometric levels for the SWUCA, the ETB and the HR were 65.8, 45.6 and 87.1 feet above sea level, respectively. The 1991 average potentiometric levels proposed as the minimum aquifer levels for the SWUCA, ETB and HR are 46.8, 17.4 and 78.3 feet above sea level or 71 percent, 38 percent and 90 percent of predevelopment levels, respectively. At the time of hearing, the 5-year average (1990-1994) of average potentiometric levels within the SWUCA, ETB and HR were 46.0, 15.2 and 78.6 feet above sea level, respectively, indicating that since 1991, the 5-year average in the SWUCA is close to the proposed minimum level and the HR average is above the minimum, but the ETB average falls well below.

⁷⁹/ Since 1991, the ETB area has been using in excess of 200 MGD while the remainder of the SWUCA has been using under less than 500 MGD, resulting in potentiometric levels rising throughout the region except in ETB. A review of average potentiometric levels since 1975 indicates little chance that ETB will attain a five-year running average equal to its 1991 level at any time in the near future, particularly if pumping in the area continues at the last several years' rate of 200 plus MGD. As noted in the text, some Petitioners contend that the District should respond by enforcing "safe yield" pumping rates within ETB instead of denying new uses outside ETB. The calculation of a "safe yield" for the ETB area, however, is dependent on water use in the remainder of the SWUCA.

⁸⁰/ It is not clear when or to what applications this cumulative analysis would apply. Existing permitted quantities would have to be significantly reduced before the District regional model would indicate minimum levels would be met. There was some evidence suggesting that it would be impossible for the estimated 1989 groundwater pumpage of 832 MGD to be distributed throughout the SWUCA without causing a violation of the minimum levels. If so, then the use of the regional model may result in no additional groundwater withdrawals in the SWUCA being permitted until existing permitted quantities are reduced to amounts below 832 MGD. While the evidence on this point was not well-developed, it appears the limitation on consideration of new withdrawals in the SWUCA is likely to be significantly longer than would appear at first glance.

⁸¹/ This project is apparently based on the Sources Study.

⁸²/ Although the District claims that total permitted quantities in the SWUCA have been relatively constant since initiation of its water use permitting program in 1975, there have been significant shifts in the types of use and all permits should have been subject to at least one renewal review during the intervening twenty years, as noted in Sections IV B 1-2.

⁸³/ While Section 373.236, F.S., authorizes the issuance of permits for "any period of time not exceeding 20 years" (and up to 50 years for certain public supply utilities), the District, as discussed in Section III, has typically issued permits for much shorter periods. The shorter permits were intended in large part to provide the District with flexibility to further study the condition of the District resources and develop approximate regulatory programs while also allowing users access to the resources.

⁸⁴/ Under Chapter 373, permits should only be issued for the volume of water that represents efficient use. See, Section 373.019(4), F.S. If a permitted quantity is greater than efficient use for any individual user, the permitted quantity should be reduced to be commensurate with efficient use. When the total efficient uses from a resource are greater than "safe yield," users of the resource must be restricted to a percentage of the "efficient use" quantity, absent compelling public interest needs to the contrary. What constitutes an efficient use can change over time as new technologies become available. Efficient use also depends on availability. Chapter 373 contemplates that these factors will be considered each time a permit is issued (including permit renewals) as part of the determination of whether a use is "reasonable-beneficial."

⁸⁵/ The District uses a computer program known as "AGMOD" to determine efficiency standards for crop-specific irrigation quantities.

⁸⁶/ As noted earlier, the EIS assumed that implementation of the minimum level would effectively halt saltwater intrusion. Subsequent modeling indicates that there will be continued inland movement of the interface even if 1991 potentiometric levels are maintained.

⁸⁷/ The existing rules for the ETB WUCA include a relocation provision (BOR Section 7.2.8.D.) which the District has construed in conjunction with the permit transfer provisions to allow all or part of a water use to be relocated to a different location and then transferred to a new owner and in some cases to a new use. This rather cumbersome approach has not been widely used nor has it apparently ever been contested. During the five years the ETB Rules have been in effect, there have only been about 12 to 15 relocations.

⁸⁸/ In this context the District has not significantly relied on the 1992 Needs and Sources Report. However, in other contexts such as the discussion regarding the need for conservation measures, the District has relied heavily on this study. Compare, District's Proposed Findings of Fact No. 430, p. 168 with Nos. 660-664, pp. 251-253. No evidence was presented to establish more reliable estimates of future water use. In the preparation of this Final Order, the draft nature of the Report and its purpose and limitations have been duly considered.

⁸⁹/ While Section 373.243(4), F.S., authorizes the District to revoke permits for "nonuse of the water supply allowed by the permit for a period of 2 years or more . . . . unless the user can prove that his nonuse was due to extreme hardship caused by factors beyond his control," this provision has rarely been invoked.

⁹⁰/ The evidence was unclear as to whether the 60 percent was based on the assumption that the existing pasture permits were all based on the two-in-ten year average annual amounts.

⁹¹/ The evidence is inconclusive as to the exact amount.

⁹²/ The District had made the policy determination that de minimis impacts include impacts to wetlands that are less than one half acre in size (with certain exceptions), see, BOR Section 4.2.A.2, and impacts that are caused by groundwater withdrawals from wells less than six inches in diameter and surface water withdrawals from pipes that cumulatively do not exceed four inches in diameter. See, Rules 40D-2.041 and 40D-2.051, F.A.C. In addition, those impacts that cannot be detected through the District's methods of measurement are considered de minimis.

⁹³/ Wetland impacts from groundwater withdrawals are not always more severe closer to the point of a groundwater withdrawal. The response of a wetland system will vary depending on the nature of the substrate and the nature of the hydrologic regime in the area.

⁹⁴/ The quantitative sites, which generally contain permanent monitoring plots and transacts, are visited on a fixed schedule. The qualitative sites generally include photographic monitoring and may have fixed points for measuring water levels, etc. They are visited on a time available basis, which may vary from several times yearly to a greater frequency.

⁹⁵/ While the site-specific models provide useful information relatively quickly and on a cost-effective basis, they do not provide accurate information regarding actual water table drawdowns resulting from groundwater withdrawals.

⁹⁶/ The only thing that affects water level changes in the site-specific models used by Dr. Rochow is pumping. These models cannot account for or simulate recharge, seasonal fluctuations of the water table, year to year variations or fluctuations in water levels in the water table or changes in rainfall. Nor can these models simulate surface water features such as lakes and streams. The site-specific models also do not account for water level changes due to changes in drainage or land use. Thus, the site-specific models should not be viewed as an accurate simulation of actual changes in the water level in the surficial aquifer or water table due to pumping.

⁹⁷/ Because the models do not include recharge, the model is forced to take water out of storage thereby affecting the representation of the surficial layer. This would tend to cause the model to overestimate drawdowns. In addition, the models were run based on permitted quantities as opposed to actual withdrawals. During the relevant time period, actual withdrawals were from 10 to 50 percent less than permitted quantities. This would also cause the models to overestimate drawdowns. On the other hand, the lack of any cumulative consideration would cause the models to underestimate. In effect, the models have a built-in tendency to both overpredict the drawdowns (since permitted quantities are used) and underpredict the actual drawdowns (due to the lack of consideration of cumulative effects.) These tendencies are independent of each other and do not necessarily cancel out. They should be kept in mind when drawing conclusions from Dr. Rochow's analysis.

⁹⁸/ The calibration process includes the accumulation of historical information and adjustment of the model parameters to better repeat or simulate the historical information in order to provide a level of satisfaction that the model accurately simulates the groundwater flow system.

⁹⁹/ The one-foot water table drawdown contour for each of the wellfields in Dr. Rochow's 1989 report generally covers a smaller area than the one-foot water table drawdown contour for each wellfield generated by the cumulative scenario run using the District's NTB Regional Groundwater Flow Model.

¹⁰⁰/ The average annual seasonal fluctuations used by Mr. Flannery appear to be typical. For example, the fluctuation over the course of 1989 was determined by the District to be 2.5 feet and a 1995 analysis indicated that the average annual seasonal fluctuation was 2.1 feet.

¹⁰¹/ Lake morphometry refers to the measurement of the various dimensions of a lake which would include depth, area, the shape, and general size aspects of a lake.

¹⁰²/ Because of the difficulty in measuring evaporation from large bodies of water, pan evaporation rates were developed. A small pan with water sits on the ground and daily readings of the amount of water in the pan are taken to determine the amount of water lost to evaporation. This technique allows an evaporation rate to be measured over a given period of time. A typical pan installation for measuring pan evaporation rate uses a Class A pan which has the same size and dimensions so that comparable data can be obtained throughout the United States. The shallowness and size of the pan compared to a lake can affect water temperature resulting in different evaporation rates. In addition, the larger surface areas of a lake are subject to large wind variations which can also affects evaporation rates.

¹⁰³/ The District also determined that the 7.5 inch maximum monthly withdrawal presumption corresponded closely with actual lake evaporation during the month of May based upon an intensive USGS study of Lake Lucerne.

¹⁰⁴/ A pan coefficient is utilized by researchers to convert measurements obtained from measuring lake evaporation in a pan to a value which more accurately represents actual lake evaporation. A commonly used pan coefficient is 0.7, but the appropriate figure is different for each lake depending upon a variety of factors such as lake depth, heat, volume, water temperature, and shoreline protection from wind.

¹⁰⁵/ An isohaline is the conceptualization of the location of a particular salt concentration in a river or a bay. It is depicted as a line or contour along which the salinity level is a constant value at a specific depth expressed in terms of parts per thousand.

¹⁰⁶/ When a river has high freshwater mineral concentrations, the District says it will sponsor site-specific studies to determine the role of freshwater versus tidal water in the river. This policy is not set forth in the District's rules. The need for special studies when mineral concentrations are high confirms that the unique characteristics of each river will determine the impacts that result from withdrawals.

¹⁰⁷/ Sixty-five to ninety-five percent of all marine fishery species live in an estuary at some point during their life cycle.

¹⁰⁸/ In one such study, prepared in connection with a withdrawal from the Little Manatee River, a simulation using a ten percent diversion curve at the withdrawal site indicated that changes in salinity would be slight and within the tolerance of the organisms on that river. A study regarding floodplain inundation on the Little Manatee River also concluded that a ten percent reduction in flow resulted in a very small change in percent of days of inundation of the flood-plain.

¹⁰⁹/ Tidal ranges vary significantly from river to river within the District, and the effect of tides upon salinity varies between rivers.

¹¹⁰/ Some of the parties have complained that there are potential problems in simply adding all surface water withdrawals together to determine cumulative impact. These objections are not persuasive. The flow at one point in a stream is not always simply an additive function of the flow at another part of the stream due to contributions from or losses to groundwater. Similarly, a withdrawal at one point on a stream may be accompanied by a return of some of that volume of water back to the stream. Such a result is common with withdrawals for irritation which can run-off back into the stream. Thus, it is arguably not appropriate in all cases to simply add the withdrawals from two different sections of a stream. The existing rules would not preclude site-specific evidence from being considered in addressing such situations and the failure of the rules to specifically anticipate and resolve all such issues does not, by itself, render the rules unacceptably vague. Similar issues arise with respect to those estuaries that are fed by more than one river. It is not clear from the rules whether withdrawals from each river are to be combined.

¹¹¹/ This term is potentially problematic because it does not account for any differences between withdrawals at different points in a stream. Due to the size of some stream networks within the District, it could take days for water to flow from one part of a drainage basin to a point downstream. The temporal difference separating the effects of two or more withdrawals at different places in a river is not accounted for when the measurement is made "at the time of withdrawal."

¹¹²/ The "rate of daily flow" is not defined in the rules even though it is not a scientific term of art with a commonly understood meaning. When, where and how the rate of daily flow is to be measured can be important. Utilizing gauge flow records can incorporate a wide range of factors that influence the rate of flow in a stream including both ground and surface water withdrawals. The location of the gauges(s) that are used to measure the flow of a river is a critical issue in making the 10 percent calculation. In at least one permit issued by the District "the time of withdrawal" is specified to mean on the previous day and as measured against the daily flow of the river at a location 17 miles upstream from the site of withdrawal. It is not clear what standards or criteria are utilized in making such decisions.

¹¹³/ Similarity, the District did not follow the ten percent stream flow presumption in renewing the City of Tampa's permit for withdrawals from the Hillsborough River because the river has been impounded since the 1800s, is a highly impacted system, and provides a substantial portion of the City's public water supply. There are other instances where the District has not applied the ten percent rule to reduce public supply allocations because a replacement source of water was not technically feasible. For example, instead of following the ten percent guideline to reduce allocations for pre-existing uses from Lake Manatee and the Hillsborough River, the District has provided for specific permit conditions, such as requiring biological monitoring studies. On the other hand, a diversion schedule more conservative than the District's ten percent presumption has been implemented for the lower Peace River, partly to account for historical flow reductions in the upper river system.

¹¹⁴/ A BOR Section 4.5.2 only covers proposed new quantities of groundwater applied for after March 30, 1993 from confined aquifers in areas outside the MIA. None of the parties to this proceeding have challenged the application of this presumption to only proposed new quantities. As discussed in Section III regarding a similar provision implementing the minimum level in the SWUCA Rules, this limitation is arguably contrary to the current statutory framework. However, since none of the parties have challenged this aspect of the rule, this issue is beyond the scope of this proceeding.

¹¹⁵/ The Verna Wellfield is located in the northeast corner of Sarasota County and supplies potable water to the City of Sarasota.

¹¹⁶/ There was some confusing testimony from District witnesses that this provision was intended to protect only those offsite land uses that were dependent on the withdrawal of water. The more persuasive evidence established that this provision was intended to protect land uses irrespective of whether they were dependent on water withdrawals.

¹¹⁷/ Similar contentions were made regarding Rule 40D-2.801(2)(e), F.A.C., which involves the declaration of a WUCA. Contrary to the suggestion of Pinellas, this provision was not intended and cannot reasonably be interpreted to regulate offsite land uses.

¹¹⁸/ Because of the complexity involved, it would be very difficult to develop a computer modeled cumulative impact analysis that incorporates the withdrawals from all surrounding wells that might conceivably impact existing legal uses in combination with a proposed withdrawal. This analysis would require extensive data on all well locations and the depth of the pump in each well. Such a model would be further complicated by the District's position that the analysis should "take into account the [original] permit issuance date for each of the surrounding users in relation to every other surrounding user in order to determine which user was a pre-existing legal user in relation to the other withdrawals."

¹¹⁹/ In this regard, the District applies the interference with existing users criteria differently than the environmental impact criteria.

¹²⁰/ The District states that "the impact related presumptions are not applicable to reviewing the renewal of converted common-law uses as to the original converted quantity because this quantity passes the non-interference prong by virtue of being a pre-existing legal use, and therefore, assessment of the impact of the withdrawal on subsequent permittees is not reached. The District's regulatory staff has been instructed to and has consistently applied Rule 40D-2.301(1)(i), F.A.C. and BOR Section 4.8 in this manner." District's Proposed Finding of Fact No. 645, p. 244.

¹²¹/ The 1995 changes to the State Water Policy provide that the "feasibility" of reclaimed water can be considered. See, Rule 62-40.410(2)(j) of the 1995 Amendments.

¹²²/ If a calendar year is utilized rather than a water year, the most recent figures indicate the 1994 per-capita rate for Pinellas may even be less than 109 GPD.

¹²³/ The national average per capita water use is approximately 180 GPD. The statewide average per capita water use in Florida is approximately 150 GPD. In 1990, the District-wide average per capita water use was 147 GPD. In 1991, average District-wide per capita water use was 140 GPD.

¹²⁴/ Similar per capita water use limits have also been adopted for the ETB WUCA, See, BOR Section 7.2.1.1, but they have not been challenged in these proceedings.

¹²⁵/ The range of PCURs for utilities in the District has come down substantially over the years. There are currently several utilities within the District with a PCUR around 80 GPD.

¹²⁶/ These recommendations provide a further basis for denying the District's contention that Pinellas does not have standing to challenge the PCURs in either the NTB or SWUCA rules because Pinellas' current use is below the PCURs in both rules. Pinellas clearly has an interest in how water is allocated within the District. This interest provides an adequate basis for challenging the District's determinations of the proper amounts of water to allocate to public suppliers in the District.

¹²⁷/ Section 373.1961, F.S., mandates cooperation between the District and local governments in the development and sharing of necessary information regarding resource availability. The duration, and expense of this proceeding is an unfortunate example of what can happen when such cooperation does not occur.

¹²⁸/ Groundwater quality is important because it determines whether residents can rely on their own private wells. In coastal areas, groundwater quality is often poor, and residents tend to rely more on their utility for irrigation water.

¹²⁹/ BOR Section 7.3.1.2 sets forth a condition for permits in that area that within two years the permittee must adopt a water conserving rate structure acceptable to the District. For existing permittees in the NTB WUCA, the District inserted a permit condition requiring the permittees to adopt a water conserving rate structure by January 1, 1993.

¹³⁰/ Neither the NTB nor the proposed SWUCA provisions regarding rate structures require a new applicant to propose a water conserving rate structure in advance of being granted a permit. Instead, they require a water conserving rate structure be proposed within two years of permit issuance. As a result, the District will issue a new permit to a public supply utility without prior consideration of its rate structure.

¹³¹/ Unaccounted-for-water is the difference between the amount of water which leaves a water treatment plant and the amount that ultimately reaches the customer and/or can be specifically accounted for or measured. Unaccounted-for-water is an average and is based on measuring water entering and exiting the distribution system over a given period of time.

¹³²/ The purchase of water by a wholesale customer from a public supply permittee is not a consumptive use of water under the District's own definition because it is not a "use of fresh or saline water which reduces a supply from which it is withdrawn or diverted". See, Basis of Review p. B-xiii.

¹³³/ As discussed above, the State Water Policy was in the process of being amended while this case has been pending. Modifications to the proposed rule were approved by the Environmental Regulatory Commission in March, 1995 and published in July, 1995. The 1995 changes to the State Water Policy created a new subsection specifically addressing reuse Rule 62-40.416, and reiterated a policy that a "reasonable amount of reuse of reclaimed water be required within designated water resource caution areas."

¹³⁴/ A 1992 DEP inventory of wastewater treatment facilities in Florida indicated that 308 domestic wastewater treatment plants were making reused water available to 295 reuse systems, using about 290 MGD for reuse activities. The total capacity of these facilities was 601 MGD, which was about 30 percent of total permitted domestic wastewater treatment capacity in Florida.

¹³⁵/ In 1990, about 80 MGD of a total quantity of treated wastewater of 284 MGD was supplied for reuse. This supply was provided by 38 of the 70 largest plants.

¹³⁶/ Section 403.064 "encourages" local governments to implement programs for the reuse of reclaimed water. Section 403.064(8), F.S. (1994 Supp.) states that "local reuse programs" are not preempted by Chapter 403.

¹³⁷/ Dr. York was a member of the Reuse Conventions Committee. As set forth in a memo he prepared dated September 9, 1994, Dr. York was concerned with the District's failure to mandate reuse in the SWUCA Rules and the failure to incorporate identical terminology to that utilized in the State Water Policy and the Reuse Conventions Report. On November 18, 1994, DEP sent an "official comment" letter to the District concerning the SWUCA Rules. The letter and its attachments incorporated Dr. York's September 9, 1994 memo which indicated that there were certain aspects of the SWUCA Rules that were not consistent with State Water Policy and the Reuse Conventions Report.

When Dr. York generated his September 9, 1994 memorandum, he was seeking "total" consistency. This position was reflected in the Department's November 8, 1994 official comment letter. Dr. York testified at the May 30, 1995 hearing that he now believes the District's existing and proposed reuse rules are generally consistent with the State Water Policy.

¹³⁸/ Revisions to these rules were being workshopped at the time of the hearing in this case. These changes became effective on January 9, 1996.

¹³⁹/ More specifically, the District's list does not include aesthetic uses, irrigation of unimproved pasture, or irrigation of highway medians, all of which have been recognized as beneficial reuse by DEP. In addition, the District's list does not include some reuse activities identified in Section 403.064, F.S., such as toilet flushing, fire protection, and decorative water features.

¹⁴⁰/ Apparently, in time, DEP and/or the State Water Policy recognized advanced wastewater discharge as beneficial reuse; however, DEP has issued a Program Guidance Memo which states that such a discharge will not automatically be considered beneficial reuse.

¹⁴¹/ A document entitled "Guidelines for the Preparation of Reuse Feasibility Studies for Applicants Having Responsibility for Wastewater Management" was published by DEP in 1991. It essentially provides a summary of what should be included in a reuse feasibility study for the DEP or a water management district. The Reuse Coordinating Committee recommended these guidelines be adopted as DEP rules and they were included in draft DEP Rule 62-610. It is not clear from the record whether they have been finally adopted by DEP. Some of the concepts of in this, which was prepared by the state Reuse Coordinating Committee, were included in the 1994 revisions to Section 403.064. The District has not sought to incorporate or adopt the Guidelines.

¹⁴²/ A seawater desalination facility in Key West is no longer in operation apparently because of economic reasons. Similarly, a seawater desalination facility in Santa Barbara, California, ceased operations at least in part because the cost of seawater desalination was higher than their other supply sources.

¹⁴³/ A brackish water plant would probably cost less, but would also involve a significant capital investment.

¹⁴⁴/ Pinellas says it has no current plans to use saltwater or saline water as a water supply source.

¹⁴⁵/ In order to discharge the brine by-product to surface water, a National Pollutant Discharge Elimination System ("NPDES") permit must be obtained. This permit is administered by the U.S. Environmental Protection Agency ("EPA") which regulates brine disposal discharges from a water quality standpoint pursuant to Section 402 of the Clean Water Act, 33 U.S.C. Section 1251, et seq. This function was delegated to DEP as of May 1, 1995.

¹⁴⁶/ Among the factors that should be considered from a regional perspective are other available sources of water and their cost, the appropriate allocation from the various sources and financing options. In addition, because of the high energy consumption associated with the process, especially with respect to saltwater desalination, there may be related environmental impacts, such as air pollution associated with consuming large amounts of non-renewable energy resources, that should be taken into account.

¹⁴⁷/ Pinellas' suggestion that the NTB WUCA modifications were not made in accordance with Section 373.171(3) is beyond the scope of this proceeding. To resolve that issue would require a determination as to whether an adequate showing was made that the existing uses were detrimental to other water users or to the water resources of the state.

¹⁴⁸/ As discussed in the Preliminary Statement, on February 16, 1996, after the final hearing had been concluded but before the parties submitted their proposed final orders, the District filed a Motion for Official Recognition regarding a change that had been effectuated in the Florida Administrative Code so that Section 373.175 was added as an additional citation to the law implemented for Rule 40D-2.511. By the time that Motion was filed, the Secretary of State's Office had already incorporated the change into the official version of the Florida Administrative Code. The precise circumstances that led to the addition have not been established in the record in this case. The District stipulated that the changes were not made in accordance with the rulemaking procedures set forth in Section 120.54, F.S., and that no prior notice was provided to the parties in this proceeding. The District contends that the addition was handled as a technical change with the Secretary of State's office. Telephone conference hearings were conducted with respect to the Motion on February 20, 21 and 23, 1996. During those telephone conference hearings, Pinellas as well as DeSoto and Hardee Counties objected to the Motion and the manner in which the additional citation in the law implemented section was effectuated. After extensive discussion and debate, the District withdrew its Motion and agreed that the additional citation should be disregarded for purposes of this proceeding.

¹⁴⁹/ As noted in Section III A above, the Proposed District-Wide Enhancements included proposed revisions that would have resulted in the adoption of the inverse of the existing presumptions currently found in BOR Sections 4.2 and 4.8. The Revised Rules published on December 2, 1994, did not include the proposed additions, and the District has no rulemaking proceedings currently underway to adopt the inverse of the presumptions.

¹⁵⁰/ "Leaky-aquifer" describes a geologic groundwater system that exchanges water with other surface water or groundwater bodies or courses. "Steady-state" computer modeling involves simulating the hypothetical point in time when the system has equilibrated to the stress imposed. A steady-state simulation does not keep track of time, because the length necessary for the computer model to reach a state of equilibrium varies greatly depending upon the specific setting and size of the withdrawal. For the District, steady-state conditions can often be reached very quickly, i.e., in less than ninety days. On the other hand, a concentrated withdrawal in a "leaky" area may progressively exceed the water table recharge in the cone of depression, so that the impacts are propagated for a long time over a large area. "Transient-state" modeling uses a specified time sequence that does not necessarily reach equilibrium or a steady state.

¹⁵¹/ In the northern area of the District, a one-foot drawdown is utilized as the impact threshold instead of the four-foot drawdown used in the south because of the differing degrees of aquifer confinement. Drawdowns in the north propagate rapidly to the surficial system. In the south, an equal withdrawal will produce a cone of depression that has a large lateral extension. Some of the parties have argued that there is no specific scientific evidence to support the District's use of a one foot potentiometric surface drawdown standard in the northern part of the District and/or the use of a four foot potentiometric surface drawdown standard in the southern part of the District as thresholds in the Level 1 - Basic Analysis. In addition, they contend, there is no specific scientific basis for the 0.5 foot water table drawdown threshold utilized by the District in section 2, under the Level 1 - Basic Analysis. In view of the conclusions reached herein, these issues are moot and need not be resolved. It is noted, however, that the evidence does confirm that there are significantly different aquifer characteristics in the two areas.

¹⁵²/ Smaller permits that have to satisfy only the Level 1 noncumulative analysis could theoretically impact the ability of larger uses of water to pass the Level 2 analysis because the smaller uses would be included in evaluating the larger user's impact under the Level 2 limited cumulative analysis.

¹⁵³/ The evidence presented at the final hearing indicates that, as the District has improved its data base through the comparison of actual drawdowns with model projections, it has frequently used analysis periods greater than ninety days in an attempt to better address long-term impacts.

¹⁵⁴/ Pinellas has challenged a number of proposed provisions in the SWUCA Rules including: (1) the paragraphs in BOR Section 3.1 ("ALTERNATIVE SOURCES WITHIN THE SWUCA") titled (a) "Reuse Goal", (b) "Beneficial Reuse", and (c) "Reuse Feasibility Investigation Within the SWUCA"; (2) the portions of BOR Section 3.1 ("REPORTING ALTERNATIVE SOURCE QUANTITIES WITHIN THE SWUCA") titled (a) "Alternative Source Suppliers Within the SWUCA", and (b) "Alternative Source Receivers Within the SWUCA;" (3) BOR Section 3.1 ("INVESTIGATE DESALINATION WITHIN THE SWUCA"); (4) BOR Section 3.6 ("WHOLESALE CUSTOMERS WITHIN THE SWUCA"); (5) BOR Section 3.6 ("INTERCONNECTED WATER SUPPLY SYSTEMS, CONSERVATION REQUIREMENTS WITHIN THE SWUCA, Water Audit"); (6) BOR Section 3.6 ("WATER CONSERVING RATE STRUCTURE"); (7) BOR Section 3.6 ("CUSTOMER BILLING AND METER READING CRITERIA WITHIN THE SWUCA, Rate Structure Information for Permits within the SWUCA"); and (8) the portions of BOR Section 3.6 ("PERMIT QUANTITIES AND COMPLIANCE WITHIN PER CAPITA DAILY WATER USE WITHIN THE SWUCA") titled (a) "Permitted Quantities Within the SWUCA - Renewals, Modifications or new Permits to Increase Quantities", (b) "Permitted Quantities Within the SWUCA - Existing Permits", and (c) "Annual Reports". All of these proposed provisions relate to public water supply providers operating in the SWUCA.

¹⁵⁵/ Under the amendments of the APA passed by the 1996 Legislature, this principle has been changed. See, Section 16 of Ch 96-159, Laws of Fla.

¹⁵⁶/ The District also contends that, when an agency interprets a statute through rulemaking, the presumption of correctness is stronger. See, Dept. of Administration v. Nelson, 424 So.2d 852, 858 (Fla. 1st DCA 1983); Dept. of Health and Rehabilitative Services v. Framat Realty, 407 So.2d 238, 241 (Fla. 1st DCA 1981). These decisions do not vitiate the statutory grounds for challenging a rule. It should also be noted that these decisions predated the adoption of Section 120.535, F.S., which established that rulemaking is not a matter of agency discretion. See, Section 3 of Ch. 91-30, Laws of Fla.

¹⁵⁷/ This decision also suggests that "The presumption of the Rules's validity gains added weight from its having laid upon the public record in the Florida Administrative Code for several legislative sessions without disapproval or interference by either the legislature or its Administrative Procedures Committee..".Id. at 1307-1308. It is not clear how or if this principle changes a petitioner's burden. Section 120.56 clearly authorizes a challenge to an existing rule based on the grounds that it is an invalid exercise of delegated authority as defined in the statute.

¹⁵⁸/ This law review article, co-authored by the former dean of the University of Florida Law School, provides useful background on the history of water use regulation. Much of the discussion of the history of water use law in this Final Order is based on this article.

¹⁵⁹/ At approximately the same time as the adoption of the 1957 Act, a Model Water Use Act was completed and adopted by the National Conference of Commissioners of Uniform State Laws. This proposed uniform law was not adopted by Florida.

¹⁶⁰/ The non-delegation doctrine requires fundamental policy decisions to be made by the legislature, and administration of legislative programs must be pursuant to some minimal standards and guidelines ascertainable by reference to the enactment establishing the program. See, Art. II, Section 3, Fla.Const. (1968); B.H. v. State, 645 So.2d 987 (Fla. 1994); Chiles v. Children A,B,C,D E and F, 589 So.2d 260 (Fla. 1991). See generally, Graham v. Estuary Properties, 399 So.2d 1374 (Fla. 1981), cert. denied 454 U.S. 1083, 102 S.Ct. 640; Askew v. Cross Key Waterways, 372 So.2d 913, 925 (Fla. 1978).

¹⁶¹/ Even before the enactment of the Florida Water Resources Act, the courts struggled with defining and prioritizing the sometimes conflicting goals inherent in water use regulation. For example, in Duval v. Thomas, 107 So.2d 148 (Fla. 2d DCA 1958), the Court quoted with approval the Supreme Court of Arkansas' discussion of the reasonable use doctrine:

Id. at 152. See also, Brown v. Ellington, 224 So.2d 391 (Fla. 2d DCA 1969)(complaint alleging defendants unreasonably caused the normal water level of Crooked Lake to be lowered so that the shoreline receded markedly and large areas of the lake bottom were exposed was deemed to sufficiently state a cause of action)

¹⁶²/ Pursuant to Section 3 of Chapter 93-213, Laws of Florida, all authorities and functions of the Department of Environmental Regulation and the Department of Natural Resources were transferred to the Department of Environmental Protection.

¹⁶³/ The statute authorizes the districts to designate areas within their jurisdictional boundaries as subdistricts or basins with control vested in a Basin Board. See, Sections 373.0693 through 373.0698, F.S. While the Basin Boards are subject to the limitations and restrictions imposed by Section 373.1961, they are granted broad authority to carry out their responsibilities. See, Sections 373.0695(4), and 373.0698.

Within the boundaries of their respective basins, the Basin Boards are responsible for the preparation of engineering plans for the development of water resources, approval of final construction plans of the district for works to be constructed in the basin, and providing water supply and transmission facilities for the purpose of assisting counties, municipalities and regional water supply authorities within or serving the basin. See, Section 373.0697, F.S. The basins established within the District by Rules 40D-0.0612, F.A.C. can not be abolished or combined without the approval of the Legislature.

¹⁶⁴/ This provision was not added to Chapter 373 until 1982. See, Section 6, Chapter 82-101, Laws of Florida.

¹⁶⁵/ Subsection (5) of this statute is virtually identical to Section 373.1961(5) and it affords some limited preference to the county from which the water is being withdrawn. It provides that "any county wherein water is withdrawn by the authority shall not be deprived, directly or indirectly, of the prior right of the reasonable and beneficial use of water which is required adequately to supply the reasonable and beneficial needs of the county or any of the inhabitants or property owners therein."

¹⁶⁶/ As noted in Section IIIA-1 above, amendments to the State Water Policy were adopted while this case was pending. Except as specifically noted in this Final Order, the amendments do not significantly alter the analysis of the issues raised in this case.

¹⁶⁷/ This burden may be somewhat relaxed under the amendments to the APA which became effective October, 1991. See, Sections 120.52(8) (f) and 120.56(2) (a) and (c) of the 1996 amendments. This case was tried and argued under the 1995 version of the APA. The parties have not had an opportunity to brief the amendments to the APA and/or whether they should be applied. While the analysis under the 1996 amendments may be somewhat different, it is concluded based upon independent review that none of the conclusions in this case would be different under the 1996 amendments.

¹⁶⁸/ As noted in Section III of the Findings of Fact, the Supplemental Investigations Report indicates that over the 50 year planning period using the scenario which most closely approximates the rate of withdrawal necessary to maintain the 1991 potentiometric surface, the landward movement of the 1,000 mg/liter isochlor would range from 0.9 to 1.75 miles along the coast.

¹⁶⁹/ In view of the large difference between permitted quantities and safe yield, the District's decision to continue to issue permits for new quantities within the SWUCA while the subject rules are pending may exacerbate existing problems. However, as discussed in Section IV B-6b(vii) of the Findings of Fact, this decision involves application of the District's existing rules, and is not within the scope of this pending rule challenge proceeding.

¹⁷⁰/ As noted in the Findings of Fact, the District invested considerable effort and expense in preparing an Economic Impact Statement in connection with the SWUCA Rules. While several parties initially challenged that Economic Impact Statement, all such challenges were dismissed and only limited evidence was presented as to the nature and extent of the District's socioeconomic analysis. It appears that much of the District's economic analysis was prepared prior to the release of the Supplemental Investigations Report which revealed that contrary to earlier assumptions, the proposed minimum level would not halt the movement of the saltwater interface. It is not clear from the record in this case to what extent the District has analyzed the socioeconomic consequences of the updated model projections of continued movement of the interface. No persuasive evidence was presented that the District's efforts in this regard were deficient and/or that they provide an independent basis to invalidate the proposals.

¹⁷¹/ There may be equal protection, due process or other constitutional limitations on granting a perpetual preference to access a public resource particularly when access to the resource is otherwise limited. Such issues need not be resolved or reached in this proceeding.

¹⁷²/ This self-destruct clause is probably not effective after a rule has been formally adopted. Section 120.54, F.S., provides that the repeal of an existing rule is subject to many of the same notice and procedural requirements as adoption of a new rule.

¹⁷³/ The District relies heavily upon Hasper v. Department of Administration, 459 So.2d 398 (Fla. 1st DCA 1984) to argue that the potential misapplication of the rules in an individual case is properly addressed in a proceeding under Section 120.57 and it is not a proper basis for a rule challenge. However, in Hasper there was a specific statutory limitation on the application of a broadly written rule. The court held that the rule could be applied as written in a manner that was consistent with and did not exceed the statutory provision. The court simply held that the failure of the rule to incorporate the statutory protection was not a basis for invalidating the rule since it could be applied consistent with the statute and the failure to so apply it could be challenged in a proceeding under Section 120.57. The District's interpretation of the holding of Hasper is overly broad.

¹⁷⁴/ No persuasive evidence was presented that any of the specific BOR performance standards were unreasonable or inappropriate.

¹⁷⁵/ See also, Gurell v. Starr, 640 So.2d 228 (Fla. 5th DCA 1994) (HRS fee schedule for assessing costs in child support proceeding invalidated because it did not allow ability to rebut the presumption that HRS' costs in proceedings where respondent is represented by counsel were higher than in pro se proceedings); Little v. Department of Labor and Employment Security, 652 So.2d 927 (Fla. 1st DCA 1995) (invalidating rule which presumed abandonment of employment if an employee was absent without authorized leave for three consecutive workdays); Accord, Jenkins v. Department of Health & Rehabilitative Services, 618 So.2d 749 (Fla. 1st DCA 1993).

¹⁷⁶/ Some of the problems inherent in the District's use of presumptions are evidenced by this presumption which is different than many of the other presumptions in the existing rules. Unlike the other presumptions in the BOR, Section 4.5 is only rebuttable in the limited sense that an applicant can prove through scientifically acceptable flow modeling that the potentiometric surface drawdown at the boundary of the MIA is less than 0.2 feet, or through solute transport modeling that significant saltwater intrusion will not occur. The different manner in which presumptions are used in the rules and BOR can be a source of confusion.

¹⁷⁷/ See, the discussion in Section VII G regarding Section 373.196, F.S.

¹⁷⁸/ However, if an additional quantity is sought, this additional quantity is subject to the non-interference test.

¹⁷⁹/ The District relies upon Harloff v. City of Sarasota, 575 So.2d 1324 (FLA. 2D DCA 1991) to support its interpretation. In Harloff, an applicant was granted a WUP for quantities substantially less than requested due to interference with the City of Sarasota's Verna Wellfield. The District claims the Court discussed the specific issue involved herein when it stated: "If the City seeks additional water in 1991, for example, Mr. Harloff's permit will presumably be a existing legal use entitled to superiority at the City's hearing." Id. (emphasis added). However, this dicta should not be read as a conclusive determination as to how the non-interference test should apply upon renewal. The meaning of "additional quantities" in this context is not at all clear and would not necessarily exclude the original quantity for which the permit was due to expire. Alternatively, the Court may have assumed that the District's permitting program had accomplished its desired goal and there was no interference at current permitted levels. In any event, the District's reliance upon this dicta to support its interpretation is not warranted.

¹⁸⁰/ While Pinellas argued there is a potential for inconsistency because the different phrases could be interpreted to have different meanings, these phrases can and should be interpreted synonymously.

¹⁸¹/ This conclusion is consistent with the recommendations made by the Governor's Study Commission which was a prelude to the 1957 Act. See, Florida Water Resources Study Commission, supra, ch.2 (1956) and Section 8 of Chapter 57-380, Laws of Fla.

¹⁸²/ The District's effort to interject itself in these matters is potentially an unconstitutional impairment of contract. See, Art. I, Section 10, Fla.Const. (1968).

¹⁸³/ This definition is consistent with the glossary in the District's Basis of Review which defines "consumptive use" as "any use of fresh or saline water which reduces the supply from which it is withdrawn or diverted."

¹⁸⁴/ This proposed rule is different than the NTB WUCA rule in BOR Section 7.3.6.2, which only requires reuse to be implemented if "feasible." The SWUCA proposal also differs from Rule 40D-2.301(1)(1), which requires reuse to be incorporated "to the greatest extent practicable." Unlike the SWUCA provision, these existing provisions seem to anticipate that a reuse system is in place before the District can require an applicant to use reclaimed water. At the hearing, it was suggested that the District could use these provisions to require a waste water treatment plant to implement a reuse program. Such an interpretation is not compelled from the face of the rules and therefore, is not a basis for invalidation. See, Hasper, supra, 459 So.2d 358. For the reasons set forth in the text, such an application would not be consistent with Chapter 373.

¹⁸⁵/ An applicant for such a permit from DEP may have to utilize reuse if dictated by water quality considerations, but if a discharge meets water quality standards without reuse, then the choice is left to the applicant as to whether or not reuse is feasible. Thus, Section 403.064(3) greatly limits the authority of DEP to require reuse.

¹⁸⁶/The proposed rules provides:

¹⁸⁷/ But see, the discussion in Section VII G above regarding the inapplicability of this statute at time of renewal.

¹⁸⁸/ Part I, "General" of Chapter 40D-21 states, in pertinent part:

Part V of Chapter 40D-21, sets forth a classification system. Part VI delineates various restrictions that can be imposed on different classes of use depending among other things, on the nature of the shortage. Chapter 40D-21 does not specifically provide for the imposition of restrictions on individual users but it clearly leaves open the option of "other appropriate and necessary restrictions."

¹⁸⁹/ It should also be noted that the District has very broad authority to address emergency situations. Subsection (7) of Section 373.246 provides that, in the Governing Board during an emergency condition, finds that exercise of its powers under Section 373.246(1), F.S., is not sufficient to protect the public health, safety and welfare, it may issue emergency orders pursuant to Section 373.119, F.S. Subsection 2 of Section 373.119 provides the executive director of the District, with the concurrence of the Governing Board, with broad authority to take such action as he deems necessary, which could include restrictions on individual users.

¹⁹⁰/ There have been a limited number of appellate decisions interpreting Section 120.535. In Matthews v. Weinberg, 645 So.2d 487 (Fla. 2d DCA 1994) rev. denied, 654 So.2d 919 (Fla. 1995), the Court relied upon Section 120.535 to invalidate an unwritten HRS policy which prohibited licensing homosexuals as foster parents even though the Legislature had delegated to HRS a degree of discretion in administering the foster care system. The court held that HRS' delegated power did not include denial of foster parent applications based on unwritten rules. Id. at 489. The Court applied Section 120.535 even though no petition had apparently been filed under Section 120.535(2). The Court held that any agency statement which constitutes a rule must be adopted by rulemaking procedures. Id.

¹⁹¹/The District has consistently applied the inverse presumptions since October 1989. In an August 26, 1994 Notice of Proposed Rules in the F.A.W., the District proposed to adopt the inverse of the existing presumptions found in Sections 4.2 and 4.8 of the BOR. As discussed in the Preliminary Statement, these proposed rules were withdrawn. Thereafter, on September 23, 1994, the District published notice of the Initial Proposed Rules in F.A.W., which included the inverse presumptions as part of the District Wide Enhancement. However, on November 15, 1994, the District withdrew the District Wide Enhancements including the provisions regarding the inverse presumptions.

¹⁹²/ It should be noted that the District has not attempted to use its general permit authority under Section 373.118 to accomplish this result. Section 373.118 authorizes the District to adopt by rule a general permit program for projects that have a minimal impact on the water resources.

¹⁹³/ The testimony established that the District will sometimes require large users just outside the one or four foot drawdown contour to be included in the Level 2 model simulation. The District's rules do not explain this process or provide any standards or guidelines for when such large users will be included in the modeling.