CHARLOTTE COUNTY v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

PREVIOUS SECTION

III. District Regulatory Authority and Rule Development

A. Historical Perspectives

1. The District and Its Statutory Authority

42. Respondent, the Southwest Florida Water Management District (the "District"), is an independent special district of the State of Florida created in 1961 by Special Act of the Legislature. Ch. 61-691, Laws of Fla. At all times material to this proceeding, the District was generally charged by Chapter 373, F.S. (1993 & 1994 Supp.) ("Chapter 373"),⁹ with the management, regulation, and protection of regional water resources within its boundaries. In addition, Chapter 373 directs the District to collect and analyze water-related data, design and operate flood control facilities, manage the consumptive use of water, supervise water well construction, regulate surface water systems, and evaluate water supplies within its jurisdiction.

43. The District was created primarily in response to severe flooding that occurred after abnormally high rainfall in 1959 and 1960, and became the "local sponsor" of the federal flood control "Four Rivers Basin Project," covering the Hillsborough, Oklawaha, Withlacoochee, and Peace Rivers.

44. District boundaries -- developed primarily on the basis of surface water drainage basins and hydrologic divides -- do not strictly follow political borders and are based on groundwater considerations. The boundaries were revised to their present configuration between 1976 and 1978.

45. Currently, the District is one of five water management districts in Florida and encompasses about 10,000 square miles in west-central Florida, including all or part of sixteen counties. Approximately 3.5 million people reside within the District's boundaries.

46. As discussed in more detail in the Conclusions of Law, in 1972, the Florida Legislature enacted the Florida Water Resources Act of 1972, Ch. 72-299, Laws of Fla. This landmark legislation was codified at Chapter 373, and is substantially derived from A Model Water Code¹⁰. The Water Resources Act created a comprehensive, interrelated set of laws that seek to further the conservation, protection, management, and control of the state's water resources while maximizing their beneficial use. The Water Resources Act provided that the Florida Department of Environmental Regulation (now the Department of Environmental Protection, or "DEP") and the state's five regional water management districts (the "districts") would be the governmental entities principally responsible for assessing and regulating the water needs of citizens, industry, agriculture and natural systems.

47. Prior to passage of the Water Resources Act in 1972, the District operated under authority delegated by Chapter 378 and the then-existing Chapter 373. Although a number of provisions found in the existing Chapter 373 were retained when the Water Resources Act was enacted, it was the 1972 Act that delegated to the districts and DEP the statutory authority to regulate the consumptive use of water in Florida. See, Section 373.217, F.S. The current Chapter 373 includes the Water Resources Act, some portions of the chapter that were in existence prior to passage of the Water Resources Act, and a few legislative modifications adopted after codification of the Water Resources Act.

48. Section 373.026(10), F.S., was enacted in 1989 and directs DEP to adopt by rule a "State Water Policy." The State Water Policy is intended to provide policy guidance to DEP and the districts for the development and implementation of comprehensive, coordinated, statewide water management programs¹¹ and rules relating to water resources. See, Section 7 of Ch. 89-279, Laws of Fla. This section mandates consistency between the state water policy and the State Comprehensive Plan contained in Chapter 187, F.S. (the "State Comp Plan").¹² In 1994, DEP transferred the State Water Policy to Chapter 62-40, F.A.C.¹³

49. Chapter 373 authorizes the districts to adopt reasonable rules to implement their statutory powers, duties, and functions. See e.g., Sections 373.044 and 373.113, F.S. In addition, DEP can delegate or authorize the districts to exercise or perform various powers and duties compatible with Chapter 373 and other district-enabling statutes. See, Sections 373.016(3) and 373.103, F.S. Chapter 373 is to be liberally construed to effectuate its purposes. Sections 373.616 and 373.6161, F.S.

50. Chapter 373 recognizes that an important aspect of water resource planning and allocation is a determination of the extent and limits of the state's water resources. Section 373.042, F.S., directs the districts and DEP to establish minimum flows for all surface watercourses and minimum water levels for surface waters and groundwaters within their respective jurisdictional areas. "Minimum flow" refers to the limit for a watercourse (e.g., a river or stream) at which further withdrawals would be significantly harmful to the water resources or ecology of the area. Similarly, "minimum water level" is statutorily defined as the level of groundwater in an aquifer and the level of surface water (e.g., a lake) at which further withdrawals would be significantly harmful to the water resources of the area. The statute does not require that minimum flows and levels ("MFLs") be established by rule, nor does it provide time limitations within which they must be set. MFLs must be calculated using the best information available and may reflect seasonal variations when appropriate. Section 373.042, F.S.

51. The establishment of MFLs is intended to provide districts with baseline information to utilize in the water permitting process, and it provides a way to include public purposes, such as recreation, wildlife protection and ecological protection, in the water allocation process. In addition, MFLs can provide local governments and potential consumptive use permittees with advance notice of the locations and amounts of available water supplies. See, Sections 373.0391-.0395, F.S.

52. Rule 62-40.473(2) of the State Water Policy provides that minimum flows and levels established by a water management district shall be "a consideration where relevant to...the issuance of [consumptive use] permits."¹⁴

53. As discussed in more detail in Section IV below, one of the primary issues in the pending cases is the District's endeavor to establish a minimum aquifer level for the Upper Floridan Aquifer System in an area designated by the District as the Southern Water Use Caution Area or the SWUCA. This effort is the District's first attempt to set a minimum aquifer level by administrative rule. The proposed minimum aquifer level would be based upon measurements of the potentiometric surface¹⁵ of the aquifer. There are a number of complex scientific and legal issues involved in the establishment and implementation of such a level. Some of these issues are addressed in Section IV and V below.

54. In 1974, the Legislature authorized the creation of regional water supply authorities to develop, recover, store, and supply water for local governments "in such a manner as will give priority to reducing adverse environmental effects of excessive or improper withdrawals of water from concentrated areas." See, Section 373.1962, F.S. As the collective agent for member local governments, a regional water supply authority obtains water use permits, develops wellfields or other sources of water, and wholesales the water produced to its member governments for retailing to consumers within each member's jurisdiction. The West Coast Regional Water Supply Authority ("West Coast") -- the first in Florida -- was established in October 1974, by agreement among its five voting numbers: Hillsborough, Pasco, and Pinellas Counties and the Cities of St. Petersburg and Tampa. The City of New Port Richey is a non-voting member of the West Coast governing board. West Coast supplies potable (drinking) water to much of the Tampa Bay metropolitan area. About 90 percent of the population in these areas, more than two million residents, rely upon water supplied by West Coast and its member governments.

2. History of the District's Water Use Permitting Program

55. Part II of Chapter 373, which was enacted as part of the Water Resources Act of 1972, governs the permitting of the consumptive use of water. It directs the districts to adopt a program for the issuance of permits to ensure that a proposed water use is consistent with the general objectives of the district and not harmful to area water resources. See, Sections 373.216 and 373.219(1), F.S. A consumptive use permit applicant must establish that the proposed use: "(a) Is a reasonable-beneficial use as defined in Section 373.091(4); (b) Will not interfere with any presently existing legal use of water; and (c) Is consistent with the public interest." Section 373.223(1), F.S. This statutory basis for issuing permits is commonly referred to as the "Three-Prong Test." "Reasonable-beneficial use" is defined as "the use of water in such quantity as is necessary for economic and efficient utilization for a purpose and in a manner which is both reasonable and consistent with the public interest." Section 373.019(4), F.S.

56. For each water management district, the development and implementation of an accurate, effective, and cost-efficient water use regulatory process has been an immensely complicated task because of the numerous variables that must be considered, e.g., disparate hydrogeology, unpredictable rainfall and climatic changes, land use modifications, and shifts in the location, amounts, and seasons of water use. By necessity, a district's permitting rules must be general enough to accommodate the diverse needs and conditions throughout its jurisdiction, yet specific enough to accomplish statutory directives while providing the regulated public with adequate notice of criteria and standards to be applied during permit application review.

57. The District's implementation of a consumptive use permitting program has been further hindered by the absence of detailed and reliable scientific information on the extent of groundwater withdrawals occurring at the time the permitting program was first adopted, and the condition and workings of groundwater systems in the District. The lack of reliable, uncontroverted scientific information complicates the water use permitting process, where attempts to incorporate a "range" of possibilities to account for scientific uncertainty can result in regulation that is unpredictable to the potential or existing permittee and ineffective in its protection of the resource.

58. To place the current rule challenges in perspective, it is helpful to briefly review the history of the District's efforts to implement a water use permitting program and prior administrative proceedings regarding those efforts. The District's initial consumptive use permitting rules became effective January 1, 1975 (the "1975 Rules"). Then-existing uses of water (that were not otherwise exempt from regulation) could continue after adoption of the rules, but only with a permit issued by the District. An initial permit for the continuation of an existing use was issued if the water use met what was commonly referred to as the "Two-Prong Test," which required that the existing water consumption be a reasonable-beneficial use and allowable under the common law of Florida. See, Section 373.226, F.S. An existing user had to apply for an initial water use permit within two years after the effective date of the District's implementing rules. Failure to apply for a consumptive use permit within the two-year period resulted in a statutory "conclusive presumption" that the existing use had been abandoned. Id.

59. The 1975 Rules were based on a "water crop approach," i.e., a water withdrawal would be permitted on the basis of the total amount of water generally available for consumptive use throughout the District in proportion to the amount of land owned or controlled by the applicant. Under Rule 16J-2.11(3), F.A.C. (1975) (the "Water Crop Rule"), the District's evaluation of a consumptive use permit application involved calculating the "water crop" attributable to the applicant's property -- quite simply, the total annual rainfall less evapotranspiration¹⁶ in the District, times the acreage owned or controlled by the applicant.¹⁷

60. The Water Crop Rule was challenged and declared invalid on the grounds that it created a water "property right" in contravention of Chapter 373 and imposed a non-statutory permit qualification that made water withdrawals dependent upon the amount of property owned or controlled by the applicant. Although the District claimed that it used the water crop calculation only as a threshold application inquiry, it was concluded that the issuance of a consumptive use permit under the Water Crop Rule ultimately was dependent upon the size of an applicant's land-holdings. Because this methodology for permitting water withdrawals involved allocation of the resource on the basis of property ownership or control rather than its reasonable-beneficial use, it was deemed to be contrary to Chapter 373. In addition, the water crop methodology was found to be hydrologically unsound as a means of determining the amount of water that could be safely withdrawn from a specific piece of property. See, Pinellas County v. Southwest Florida Water Management District, (DOAH Case No. 79-2393R) 2 Fla. Admin. L. Rep. 547-A (1980).

61. In 1980, the District proposed rule revisions that (a) listed several factors that the District would consider in determining whether a proposed withdrawal would be "in the public interest" and (b) established a rebuttable presumption that a proposed use of less than 1,000 gallons-per-acre-per-day would be consistent with the public interest. The proposals were challenged on some of the same grounds asserted in the Water Crop Rule challenges as well as on vagueness grounds since the rule did not describe the effect that would be attributed to the various factors. The rule challenges were rejected in West Coast Regional Water Supply Authority v. Southwest Florida Water Management District, (DOAH Case No. 80-1004R), 4 Fla. Admin. L. Rep. 1858-A (1982).¹⁸

62. After the proceedings on the Water Crop Rule and the subsequent list-of-factors rule revisions, District permit application evaluation relied on the listed factors and the following provision, commonly referred to as the "5-3-1 Rule," which had been adopted as part of the 1975 Rules:

63. The 5-3-1 Rule was challenged pursuant to Section 120.56, F.S., on the grounds that the mandatory nature of the rule did not account for site-specific variations in rainfall, evapotranspiration, aquifer recharge, runoff, soil and vegetation types, or porosity of the underlying substratum or aquifer. The District claimed that it did not apply the 5-3-1 Rule as a mandatory restriction on permit issuance, but rather used the provision as a threshold guideline to identify those applications requiring site-specific evaluation. Although the District Governing Board routinely granted exceptions to the 5-3-1 Rule, neither the rule nor the District provided permit applicants with written guidelines or policies by which the applicant could anticipate how the rule compliance determination would be made. The 5-3-1 Rule was declared invalid on May 17, 1988, in West Coast Regional Water Supply Authority v. Southwest Florida Water Management District, (DOAH Case No. 88-0693R), 10 Fla. Admin. L. Rep. 4239 (1988) ("Although the District has chosen to administer the 5-3-1 Rule as a guideline, by its very terms...the 5-3-1 Rule is written as a mandatory uniform prohibition." Id. at 4250).

64. In 1989, the District proposed the adoption of substantial modifications to its consumptive use permitting rules. These proposals were developed by a "Rules Revision Committee" which was comprised of senior District staff and legal counsel. The Rules Revision Committee received scientific and technological assistance from numerous District experts and also obtained input from special advisory committees established for public supply, industry and agriculture. The proposals sought to accomplish a number of goals including the development of mechanisms to: (a) streamline permitting procedures and allow District staff to focus on the review of larger permits with the greatest potential for impact; (b) take into account cumulative impacts in permitting decisions; and (c) consider on-site environmental impacts.

65. Prior to the 1989 proposals, the District's consumptive use permitting rules were effectively non-cumulative, i.e., the District's evaluation of a permit application considered only impacts generated by the proposed use. The 1989 revisions were the District's first attempt to provide a basis for analyzing the cumulative impacts of water withdrawals during the permit application review process. According to the District, however, its ability to accurately evaluate the cumulative impacts associated with a proposed use was limited by the scientific data and modeling programs available at the time the rules were being developed.

66. The 1989 proposals also represented the first time that the District sought to take into consideration on-site environmental impacts as part of permitting decisions.

67. After several public workshops and formal adoption by the District Governing Board, the new rules (collectively referred to as the "1989 Rules") went into effect on October 1, 1989. Codified at Chapter 40D-2, F.A.C., the rules describe the District's application requirements and exemptions and set forth criteria and procedures for the review, issuance, modification, revocation, and transfer of a water use permit ("WUP").¹⁹

68. The 1989 Rules incorporate by reference a document called the Basis of Review for Water Use Permit Applications (the "Basis of Review" or "BOR"). See, Rule 40D-2.091, F.A.C. As discussed in more detail below, the Basis of Review includes "performance standards" for several of the water use permitting conditions adopted by the District. In addition, the Basis of Review includes hydrologic presumptions relating to wetlands, lakes, streams, and affected wells, which served as screening guidelines or thresholds between acceptable and unacceptable environmental impacts. As part of these proceedings, the District's general use of presumptions and several individual presumptions have been challenged. These issues are discussed in Section VI below.

69. With a few notable modifications (e.g., adoption of specific provisions governing various water use caution areas), the 1989 Rules form the basis of the District's current water use regulatory program. It does not appear that any challenge to the 1989 Rules was pursued prior to initiation of the instant consolidated cases.

3. District Evaluation of Water Use Permit Application

a. Conditions for Issuance

70. Since adoption of the 1989 Rules, the District has evaluated a water use permit application by measuring the proposal against fourteen interpretive criteria that are contained in Rule 40D-2.301(1)(a-n), F.A.C., entitled "Conditions for Issuance of Permits" (the "Conditions for Issuance"). The District currently applies the Conditions for Issuance to applications for new water uses, as well as to those seeking renewal of an existing water use permit. The rule provides as follows:

71. Although the rule provides that an applicant must provide reasonable assurances that a proposed water use complies with the conditions for issuance on both an "individual and cumulative basis," the District currently has a limited ability to analyze cumulative impact. Some of the details and limitations of the modeling tools and other analysis techniques are more specifically discussed below.

72. Although the specific permit criteria contained in the Conditions for Issuances are not directly linked to the individual requirements of the Three-Prong Test, they are intended by the District to implement that statutory test. Under the District's current interpretation, a water use permit will be issued only if all fourteen criteria in the Conditions for Issuances are met. Several of the conditions have been challenged in these proceedings and are discussed in Section VI below.

73. To evaluate whether a proposed use would comply with the fourteen criteria, the District relies on its Water Use Permit Information Manual (the "Permit Manual"), which includes the Basis of Review as Part II of "Part B." In addition, the Permit Manual includes "Part III (Part C), the Water Use Design Aids" (the "Design Aids" or "Part C"). The Design Aids delineate methods acceptable to the District for analyzing impacts which may result from withdrawals. As discussed below, much of the analysis is predicted on the use of modeling.

74. As previously noted, the District has incorporated the Basis of Review into Chapter 40D-2 by reference in Rule 40D-2.091, F.A.C. The District has not, however, incorporated the Design Aids into its water use permitting rules, and there are currently no pending efforts to adopt Part C as a rule. Some Petitioners have alleged that the District's failure to adopt the Design Aids as a rule violates Section 120.535, F.S. (1993). This issue is addressed in Section IX below.

b. Permit Review Process

75. Under Section 120.60(2), the District has ninety days to approve or reject a WUP application once it is deemed complete. The District's time for consideration of an application is further limited by its collegial decision-making process, since the Governing Board usually meets only once each month to address a noticed agenda. In part to accommodate these time constraints, the District has structured its permitting rules and review mechanisms to distinguish and quickly process applications for permits that individually are less likely to cause adverse impacts, thereby allowing staff more time for the review of impact-intensive applications. However, absent some mechanism to ensure consideration of the cumulative impacts of all water withdrawals the District's selective review approach can lead to the continued issuance of lower-volume permits even when the total quantity of water being withdrawn from the resource exceeds its "safe yield." This problem is particularly troublesome when the resource is a highly transmissive aquifer or is substantially interconnected with other aquifers and surface water features.

76. Prior to the submission of a WUP application, an applicant may participate in one or more pre-application conferences with staff to identify and discuss particularly complex permitting issues. The District says it generally encourages such conferences, especially for larger permits, so the applicant can ascertain the information and data that should be submitted in support of the application, and so the District can become familiar with details of the proposed use and thus make best use of the limited review time allowed after an application is filed.

77. Upon receipt of a WUP application, the District's permit evaluators review the application and supporting data submitted by the applicant along with any other site-specific information that is available. If District staff determines that the application is not complete or if they have questions concerning the application, the District may request additional information from the applicant which has the effect of tolling the 90-day permit review clock.

78. District staff will occasionally perform a site inspection, especially if significant wetlands or other surface water bodies are involved. The District says full-blown biological assessment of every proposed withdrawal site is a practical impossibility because of the hundreds of WUP applications received each year.

79. Once the District determines that the WUP application is complete, the permit reviewer completes an analysis and issues a staff report indicating whether the District's permit requirements have been met and recommends proposed agency action to grant or deny the application. The staff recommendation is then presented to the District's Governing Board, which ultimately decides whether to issue the WUP.

80. Section 6.0 of the Basis of Review sets forth standard conditions placed on all WUPs issued by the District and lists a number of special conditions that may be applied to different use types and scenarios. The standard permit conditions impose upon a permit holder a continuing obligation to meet the Three-Prong Test or face the prospect of revocation of the permit.

81. If necessitated by the size and location of a proposed withdrawal, the District may require extensive monitoring as a condition for permit approval. As part of its permit compliance monitoring, the District compares the information gathered from monitor sites with the predictions modeled during the permit application review process. This procedure has enabled the District to improve the predictive analysis of its computer modeling.

c. Performance Standards and Presumptions

82. Section 4 of the Basis of Review contains thirteen subsections, each of which corresponds to one of the Conditions for Issuances found in Rule 40D-2.301(1)(a-n).²⁰

83. The District categorizes the Conditions for Issuance as either "demand-related" or "impact-related." For impact-related conditions, Section 4 of the BOR includes performance standards and presumptions. The performance standards are generally narrative, qualitative factors that delineate the broad objectives of the criteria. The presumptions are specific numerical thresholds that serve as a demarcation between acceptable and unacceptable impacts in determining whether a particular Condition for Issuance has been met.²¹

84. BOR Section 4.0, titled "Conditions for Issuance -- Technical Criteria," includes the following preliminary statement:

85. If the WUP applicant satisfies (i.e., does not exceed) the BOR presumption for a particular impact-related criteria, the District presumes that the proposed use meets the BOR performance standards and the corresponding Condition for Issuance in Rule 40D-2.301(1), unless site-specific information is available to the contrary.

86. The District also applies the inverse of the BOR presumptions for impact-related criteria in its review process. In other words, if a presumptive threshold is exceeded, the District presumes that the proposed withdrawal violates the applicable BOR performance standard. The District's rules do not specifically explain that the inverse of the presumptions will be applied during permit application evaluation, nor do the rules provide any guidance regarding the type and/or extent of evidence necessary to overcome application of the inverse of the presumptions.

87. If a BOR presumptive threshold is exceeded, the District says it will consider additional site-specific information to determine whether or not an unacceptable adverse impact is likely to occur. Site-specific data can be developed and provided by the applicant, the District, or an interested third party. For large water production facilities (e.g., wellfields), site-specific data may be obtained from test wells drilled in strategic locations. See, Rule 40D-2.051(1)(e), F.A.C.

88. The District contends that it only uses the BOR presumptions as "guidelines," and that site-specific information can sometimes provide the reasonable assurances necessary for approval of a WUP application. In certain circumstances, the District will issue a permit and require monitoring to ensure that the performance standards are met and/or that unacceptable adverse impacts do not occur. The District also says there have been situations where the BOR presumptive thresholds were not exceeded, but site-specific information convinced District staff that the applicant could not provide reasonable assurances that the performance standards would not be violated.

89. When a third party challenges the issuance of a permit that satisfies or does not exceed a presumption and the District is not aware of site-specific information that contravenes or contradicts the presumption, the District requires the challenging third party to provide additional site-specific information or some other evidence to show that the performance standards would be exceeded. Thus, the presumptions can, in effect, be relied upon to establish a prima facie case of entitlement to a WUP. The District suggests that this use of the presumptions prevents a third party from capriciously challenging a permit. If site-specific information is presented, the District maintains that the presumption essentially becomes irrelevant. This conclusion is not clear from the face of the rules or the BOR.

90. According to the District, the presumptions facilitate efficient application review by separating nominal-impact withdrawals from large, impact-intensive withdrawals. The District maintains that the BOR presumptions do not constitute rigid minimum thresholds that applicants must meet in all cases and that the presumptions do not supersede the performance standards.

91. The District's use of presumptions as a tool within the regulatory permitting process has been the source of considerable controversy in these proceedings. The District asserts that the presumptions minimize the need for each applicant to conduct detailed studies to demonstrate that the proposed use will comply with the Conditions for Issuance. The District claims the regulated public has been largely supportive of the District's use of presumptions and the degree of predictability they provide to the permitting process. This support is not surprising since, as discussed below, the presumptions result in only the very largest users having to address the impact-related conditions. Without presumptions, the District is concerned that the permitting process would be more arduous and time-consuming for both the District and the applicant and the process might present an insurmountable financial hardship to some applicants who could not afford to hire consultants to conduct site-specific ecological surveying or monitoring. The District argues that applicants with "deep pockets" would have an advantage in the permitting process if there were no presumptions because only they could afford to hire consultants to provide detailed data to assist the District's evaluation of a proposed use.

92. Unfortunately, the BOR presumptions as currently written are not limited to use as a screening tool. The District acknowledges that in certain regions or areas it may not be appropriate to apply the BOR presumptions. In the northern Tampa Bay region, for example, the District claims it has sufficient knowledge of actual conditions (i.e., that existing withdrawals have caused unacceptable adverse environmental impacts), that it no longer uses the BOR presumptions when reviewing permit applications within that region. Similarly, in other areas -- such as the Southern Water Use Caution Area -- where it may be necessary to limit access to a water resource because of perceived adverse impacts, the District may not use the BOR presumptions to evaluate WUP applications. However, on the face of the rules, the presumptions would still be applicable, and it would be up to the District to prove site-specific conditions that rendered them inappropriate.

93. As discussed in more detail in Section VI below, most of the BOR presumptions are based upon broad generalizations or correlations rather than specific scientific relationships. While a screening mechanism may be helpful in distinguishing withdrawals that warrant closer scrutiny, the BOR presumptions lack an adequate scientific foundation to be used as a basis for concluding that a specific withdrawal will or will not have a significant impact on a particular resource. To the extent that the presumptions are used to determine factual issues on a site-specific basis, they impermissibly shift the burden of proof from an applicant.

94. In sum, the evidence indicates there is confusion and uncertainty as to when and how the presumptions can be used and whether they can serve as affirmative evidence. In the current rules and Basis of Review, the District's use of presumptions is unacceptably vague and results in the exercise of unbridled discretion by the agency.

d. The Water Use Design Aids and Levels of Analysis

95. Withdrawing water from an aquifer causes drawdowns or reductions in the potentiometric surface of the aquifer. The extent of a drawdown is sometimes referred to as the "cone of influence" or "cone of depression," which can be depicted graphically as a series of contour lines extending outward from the withdrawal site reflecting the amount of change in the potentiometric surface caused by the withdrawal. The radius of the cone increases as the quantity of water withdrawn increases. The extent of the cone or the "propagation" of the drawdown from a particular withdrawal is dependent upon the site of withdrawal and the characteristics of the aquifer from which the withdrawal is made.

96. Because a small-quantity withdrawal will have a smaller cone of influence and impact radius compared to a large-quantity withdrawal, the District contends that its application review process appropriately requires less extensive review for small proposed withdrawals, thereby focusing staff resources on large proposed withdrawals, which are most likely to have significant impacts.

97. The Water Use Design Aids (Part C of the Water Use Permit Manual) describe computer modeling and analysis techniques that the District deems acceptable for analyzing the projected impacts from a withdrawal and evaluating whether or not a proposed water use will comply with the Condition for Issuances. The Design Aids are not utilized in connection with applications for water use permits seeking to withdraw less than 100,000 gallons per day ("GPD") on an annual average basis. See, Section 373.118, F.S. and Rule 40D-2.041, F.A.C. The District has concluded these "general" permits will not cause unacceptable impacts on an individual basis.²² For all other applications, the District's evaluation begins with the Design Aids.²³

98. The District claims the Design Aids are simply a "help manual" to aid applicants in designing a withdrawal system that meets the Condition for Issuance, and that the Design Aids do not independently require anything from an applicant or impose any requirements beyond those otherwise set forth in the District's rules. The District asserts that an applicant is not required to use the modeling programs contained in the Design Aids and is free to propose its own methodology to demonstrate compliance with the Basis of Review and Conditions for Issuance. It does not appear that any applicant for a WUP has ever tried to utilize an approach other than the Design Aids methodology. Even if an alternative were proposed, the evidence establishes that the District would still apply the Design Aids analysis to the application and would compare the results with any alternative proposed.

99. There are two groundwater flow models generally used by the District in reviewing WUP applications: the Jacob-Hantush Analytical Model (the "J-H Model") and the MODFLOW Model ("MODFLOW"). The J-H Model contains several simplifying assumptions, e.g., that the Floridan aquifer is inexhaustible and that the water table aquifer is fixed and not impacted by groundwater withdrawals.

100. The MODFLOW was developed by the United States Geological Survey ("USGS") and has been the industry standard for groundwater modeling for the past ten years. It does not contain the same limiting assumptions as the J-H Model. With MODFLOW, boundary conditions can be delineated, and the water table aquifer can be represented as an active unit that can be affected by an underlying aquifer drawdown. MODFLOW can simulate changes in a hydrological system from a selected initial surface by calculating estimated drawdown contours at the end of a given simulation period under certain withdrawal conditions. Depending on the parameters used, MODFLOW can provide some ability to consider cumulative impacts, at least on a limited basis.

101. These regulatory models are strictly "drawdown" models that analyze the impact of a proposed withdrawal without considering other variables that will also affect the hydrological system. These models are used only to assess the additional stress that is placed upon a system as a result of the modeled water withdrawal. Neither model should be used to predict the actual results of a withdrawal.

102. Some Petitioners have objected to the District's use of "non-calibrated" impact or stress models - that is, models that are not standardized with defined or fixed parameters - for regulatory purposes. A reasonably constructed stress model that uses the best available data and appropriate time periods can be helpful in analyzing the additional stress upon a specific water resource caused by particular withdrawal or proposed withdrawal. A non-calibrated impact model is significantly less complex and costly than a calibrated model, which necessarily incorporates substantially more data and the accuracy of which is limited by the parameters and time periods used in calibration. However, a non-calibrated impact model has a limited ability to provide a cumulative analysis. The limitations of these models must be considered when they are utilized for regulatory purposes.

103. The District's evaluation of a WUP application begins with the "Level 1 -- Basic Analysis" described in Section C-1 of the Design Aids²⁴ ("Level 1 Analysis") which analyzes the WUP applicant's requested withdrawal to estimate if its projected impacts will exceed the specified thresholds.

104. If the model simulation shows that the projected drawdown is below the Level 1 threshold, and there is no site-specific information to the contrary, the District concludes, without further analysis, that the impact-related performance standards and presumptions in the Basis of Review have been met. The WUP application is then recommended for approval provided the proposed use complies with the non-impact-related conditions for issuance, e.g., it uses the lowest quality water available, avoids impacts to existing offsite land uses, employs conservation methods, incorporates reuse measures, etc.

105. According to the District, the Level 1 Analysis thresholds are not specifically related to the BOR presumptions, but the District believes that a withdrawal that does not exceed the Level 1 threshold is unlikely, by itself, to exceed any of the BOR presumptions.²⁵

106. A permit application is not subject to any cumulative impact analysis if the proposed withdrawal satisfies the Level 1 Analysis. The District contends that the Level 1 thresholds are sufficiently low so that, when met, a proposed withdrawal is unlikely to significantly impact the water resources of the area or exceed the Basis of Review presumptions.²⁶

107. The District notes that modeling limitations and the varying hydrogeologic characteristics throughout the District make it difficult to conduct any cumulative impact analysis. In areas where the District determines that performance standards are not being met, the District says it will not apply the Level 1 Analysis. In fact, in some areas where the performance standards are not being met, the District says it has determined additional quantities of water should not be permitted, and it will apparently not apply any portion of the Design Aids, regardless of the size of the proposed withdrawal. There are no clearly articulated standards or guidelines for when the Design Aids will be applied and when they won't. As discussed in Section IX below, the introductory language to the Design Aids states that the Withdrawal Impact Analysis set forth therein will be applied to all applications.

108. If the Level 1 Analysis of a proposed use reflects a potential drawdown in excess of the Level 1 thresholds, the proposed withdrawal is then evaluated under the Level 2 Comprehensive Analysis ("Level 2 Analysis") which is also described in Section C-1 of the Design Aids.²⁷ Under a Level 2 Analysis, the District seeks a more detailed understanding of the likely impacts of a withdrawal by modeling an applicant's requested withdrawal with other existing permitted withdrawals.First, a computer model is run to determine the one-foot drawdown contour²⁸ of the proposed withdrawal, i.e., the area where the projected drawdown of the aquifer's potentiometric surface is projected to drop by one foot or more as a result of the withdrawal. Then, all existing withdrawals within this contour area are added and the model is run again to assess what has been referred to in these proceedings as the "limited cumulative impact." The analysis is "limited" in the sense that the model does not depict the cumulative impacts of all withdrawals within the region.

109. The results of the Level 2 Analysis are applied to the presumptions and performance standards in the BOR. If the projected drawdowns do not exceed the presumptions, the District will conclude that the performance standards of BOR Section 4.0 have been met. If it has site-specific evidence to the contrary, the District will disregard the presumptions. In addition, if the requested water use lies within a designated water use caution area (a "WUCA",) the application would be further evaluated in accordance with the particular rules adopted for the area.

110. If the Level 2 Analysis projects a drawdown in excess of the presumptions, the District will proceed to examine site-specific conditions to determine whether or not the proposed withdrawal could nonetheless meet the performance standards contained in the BOR.²⁹ If a comprehensive site-specific analysis indicates that the proposed withdrawal will not comply with the performance standards, the District will consider the possibility that placing limiting conditions on the permit might enable the applicant to provide the reasonable assurances required by the Condition for Issuances. If limiting conditions are not possible, District staff will recommend denial of the permit. The applicant could then modify the withdrawal application or provide additional site-specific information that would otherwise provide the reasonable assurances required.

111. The District's failure to adopt the Design Aids as a rule has been challenged in these proceedings. Additional issues pertinent to those challenges are discussed in Section IX below. In response to these contentions, the District points out that, in addition to computer modeling, it uses other tools to assess the potential impact of a proposed withdrawal, including historical changes in water levels in the vicinity of the withdrawal and on-site hydrological and environmental conditions. For permit renewals, the District also considers records that may be available from monitoring requirements on withdrawal amounts and water levels. While those factors are considered on a case-by-case basis, it is clear that the computer modeling and analysis reflected in the Design Aids is an integral part of the District's regulatory strategy.

e. Regional Models

112. With respect to regional problems, the Design Aids provide as follows:

113. The District maintains that the regional cumulative impacts of withdrawals can best be addressed (when necessary) through the designation of a "water use caution area" ("WUCA") and the development of special rules for the area where regional water problems have been identified.

114. In many of the areas where the District is concerned about the cumulative impact of water withdrawals, it has been trying to develop regional computer models. However, a regional groundwater flow model is not currently an accurate means of predicting localized impacts of a proposed water withdrawal.

115. This approach has been followed in the northern Tampa Bay area, where management of the overall regional water withdrawal impact problem is currently under review as part of the District's development of a regional management plan.³⁰ The Northern Tampa Bay Regional Groundwater Flow Model (NTBRGFM) is an example of a regional groundwater flow model that has been developed and used by the District to formulate a regional regulatory strategy. It uses the MODFLOW code and seeks to simulate the actual hydrological system. It tries to account for the status of the surficial aquifer and two different layers of the Floridan Aquifer, and includes the confining beds that separate each aquifer. Information that may be programmed in the model includes data regarding net aquifer recharge from rainfall (after evaporation and runoff have been substracted), lateral groundwater flow, and artificial recharge resulting from irrigation. Data on transmissivity, hydraulic conductivity, and physical attributes of the aquifer system can also be utilized.

116. While some of the parties argued there were problems or flaws with the NTBRGFM, the validity of that model is beyond the scope of this proceeding. The evidence established that a properly constructed and reasonably calibrated regional model is the best tool currently available to predict regional responses to groundwater withdrawal. There are limitations, however, on the usefulness of the information currently provided by regional models. Such models are incapable of simulating precise water levels on a specific basis. Moreover, alterations and the unpredictability of drainage and land use limit the usefulness of regional models in predicting changes to the surficial aquifer. Thus, such models are generally not helpful in reaching individual permitting decisions.

117. An "integrated model" represents another step forward in the complexity of computer models, but such models are not currently in general use or utilized by the District for regulatory purposes. An "integrated model" - which attempts to account for both groundwater and surface water systems in its simulations - is a very complicated and costly model to develop and use. It requires tremendous amounts of high-quality data to be effective or practical.

118. The District has contracted for the development of an integrated model, but it will be two to four years before sufficient data is acquired for the model to be useful. The precise manner in which this integrated model can be used on a cost-effective basis is unclear at this time.

4. Establishment of Minimum Flows and Levels in the District

119. As noted above, Section 373.042, F.S., directs each water management district to establish minimum flows and levels ("MFLs") for surface water bodies, watercourses, and aquifers within their respective jurisdictions.

120. While MFLs can provide a baseline against which the cumulative effect of water withdrawals can be measured, the establishment of a minimum flow or level for any particular water body or course can be an immensely complicated task. Moreover, the interdependency between groundwater and surface water - which varies greatly throughout the District and fluctuates as climate and hydrologic conditions change - is only beginning to be understood. This interdependency can greatly affect how MFLs can be used for regulatory purposes. While the scientific understanding of the systems is improving, the District has been required to regulate water withdrawals to address the needs of the population and industries that, in some cases, began using the resource well before the Water Resources Act of 1972 directed districts to establish consumptive use permitting programs.

121. The statutory directive to establish MFLs was included in the Water Resources Act when it was enacted by the Florida Legislature in 1972. The District, like the other districts in the state, has not yet established MFLs for many watercourses and lakes, or any of the aquifers within its boundaries.

122. Several parties have attacked the District's failure to establish MFLs on a comprehensive, district-wide basis for all aquifers and surface-water bodies. In response, the District points to the enormous diversity of hydrogeologic conditions throughout the District, the complexity and expense of the scientific effort necessary to establish MFLs, the extent and intricacy of the District's other regulatory duties, and the limited personnel and financial resources available to the District for the implementation of those responsibilities. The propriety of the District's prioritization of its regulatory duties during the twenty-something years since enactment of the Water Resources Act is beyond the scope of these proceedings. Instead, this proceeding is limited to an examination of whether the District's existing and proposed rules, including the proposed minimum aquifer level in the SWUCA, are within the scope of the District's delegated legislative authority. The extensive, technical and scientific evidence presented during these proceedings, does, however, confirm the immense complexity involved in the establishment of a minimum aquifer level.

123. The District has made substantially more progress on establishing minimum levels for surface waters than it has in establishing minimum aquifer levels. More precise data is available on surface water fluctuations, because water volumes for lakes, rivers, streams, and springs are usually easier to calculate than groundwater volumes. Groundwater systems are much more amorphous and difficult to measure and monitor.

124. Since 1977, the District has maintained a staffed program to adopt management levels for lakes throughout the District. The objective of the program is to identify a series of levels that represent a range of healthy fluctuations for each lake, which can be used for regulatory and resource management purposes. The lake management levels have been based upon historical lake-level fluctuations which generally factor out seasonal fluctuations and impacts from groundwater withdrawals. At the time of the 1989 Rule Revisions, the District had adopted "regulatory" or management levels for 334 lakes; at the time of hearing, minimum levels had been adopted for more than 370 lakes -- approximately eighty percent of the lakes in the District having more than twenty acres.

125. The District has conducted studies on every major river within its jurisdiction, and regulatory minimum flows are in effect for three: the Little Manatee River (since 1975), the Peace River (since 1980), and the Manatee River (since 1984). Minimum flows have not been established for four impounded watercourses in the District that currently support major withdrawals: the Hillsborough and Braden Rivers, Shell Creek, and Big Slough Canal. Dams were built or impoundments established on these rivers years before the District had the authority to regulate water use. Thus, by the time the District first adopted rules governing water use in 1975, the public was already relying extensively on these systems. Ecological studies are currently being conducted on the Hillsborough and Braden Rivers, and Shell Creek Big Slough Canal and will be evaluated by the District as part of the renewal process for permits on those watercourses.

126. With respect to streams and other flowing watercourses, the District has not adopted individual minimum flows by rule. The District has established in some water use permits allowable withdrawal rates that specify volumes of water that can be removed from a particular stream or other surface watercourse over various time intervals. The quantities allowed are typically expressed as "average daily" and "maximum daily" rates of withdrawal. In some of those permits, the District has also set regulatory minimum flows at which permitted withdrawals must cease entirely.

127. Section 4.2.C of the Basis of Review includes a maximum ten percent reduction presumption for stream withdrawals. The District contends that this presumption, as implemented through the consumptive use permitting program, satisfies the requirements of Section 373.042 that it set minimum flow levels for streams. The ten percent threshold is intended to be measured against daily stream flow and is aimed at protecting the natural flow characteristics of streams. The stream flow presumption has been challenged by some of the Petitioners in this proceeding, including Charlotte and Pinellas Counties. The issues raised in those challenges are examined at length in Section VI. B. below.

128. The proposed SWUCA minimum level is the first minimum aquifer level that the District has attempted to establish by rule. The District has imposed "regulatory" levels through the permitting process on the following five public-supply wellfields located in Hillsborough and Pasco Counties: Section 21, South Pasco, Cosme Odessa, Eldridge Wilde, and Cypress Creek.

129. The intermediate aquifer poses some particularly difficult problems with respect to the establishment of a minimum level. Because there are a great number of zones and pockets within the intermediate aquifer, it is a practical impossibility to develop minimum levels for that groundwater at this time. To establish an appropriate minimum level for the intermediate aquifer, thousands of wells would have to be drilled in many different locations within a several-hundred-square-mile area to determine the location of various pockets of water and how they were interconnected. Similarly, the water table or surficial aquifer varies significantly throughout the District, making the establishment of a minimum level very difficult.

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