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CHARLOTTE COUNTY v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
G. Measures to Ensure Achievement Minimum Level 525. ECOSWF has challenged several other aspects of the proposed rule provisions in this proceeding. In view of the conclusions reached below, ECOSWF's challenges are largely moot, but brief mention is warranted. 526. ECOSWF objects to the SWUCA Rules' lack of a provision requiring the minimum aquifer level to be achieved within a specific period of time. In response, the District points to several provisions in the proposed rules that it contends will help prevent further increases in water use. While the noted provisions will provide useful information regarding the condition of the resource, they do not directly inhibit further increases in groundwater use. Thus, if actual water use in the basin continues to increase, additional rulemaking will be necessary to achieve the established minimum aquifer level. 527. Proposed Rule 40D-2.801(3)(b)6 provides that the District will prepare a study "whenever the water used by any category of user, except public supply, during the preceding three years exceeds water used by that category from January 1, 1989, through December 31, 1991." After completion, the study would be presented to the Governing Board to determine what, if any, action must be taken. ECOSWF's contention that the study provision is vague and leaves unbridled discretion in the Governing Board is rejected. It is impossible to not only predict future conditions that may arise, but also to determine in advance the appropriate District response. Chapter 120, F.S., provides an oversight framework for future regulatory decisions by the Governing Board. 528. ECOSWF's objection to the exemption of public supply from the foregoing rule is not persuasive. Public supply water use in the SWUCA is expected to grow in the future and the anticipated increases were taken into account when the permits were issued. Significant changes in public supply usage above the amounts anticipated will be obvious without the need for a study; accordingly, the rule's exemption of public supply is reasonable. 529. ECOSWF has also objected to the provision because it is based on water use data rather than potentiometric surface levels. By looking at water use data, the District can isolate the types of use that are increasing and tailor regulatory strategies to specifically focus on particular types of use. Thus, even though water use data in the District is estimated and not entirely accurate, it will provide the District with useful information in formulating a flexible regulatory strategy. 530. ECOSWF also points out that the baseline for the study -- the average water use in 1989, 1990 and 1991 -- exceeds the 1991 pumpage levels that correspond to the selected minimum aquifer level. Thus, the study requirement would probably not be triggered until after the minimum level had been exceeded. The overall water use differences in the baseline years are relatively minimal. Using a three-year average can minimize the effect of aberrations for a particular use category in any one year. The District's approach is reasonable, and no basis for invalidation has been established. 531. Proposed Rule 40D-2.801(3)(b)5 provides that the District will continue to monitor groundwater levels and quality over the next five years to determine whether there is a need to adjust the minimum aquifer level and/or impose new permitting restrictions. ECOSWF contends that this proposal is vague and gives unbridled discretion to the Governing Board. ECOSWF also argues that continued monitoring is an inadequate substitute for immediate actions to reduce pumping. The District specifically rejected immediate cutbacks of existing water use in the SWUCA, because it was concerned about the economic impacts that would be associated with sudden reduction requirements. The District concluded that existing quantities could be reduced over a period of time through the application of increased efficiency standards. While the new efficiencies were being imposed, the District believed that there were adequate safeguards available to protect the resource, including water shortage rules and the SWUCA Rules' provisions that provide for continued monitoring of various use categories. 532. Nothing in proposed Rule 40D-2.801(3)(b)5 prohibits the District Governing Board from taking additional action as soon as the need is perceived. The District is not dependent upon this provision to prevent groundwater use from increasing in the SWUCA. Instead, the rule is intended to give the District background information necessary for formulation of future decisions. The provision has not been shown to be arbitrary or an otherwise invalid exercise of the District's delegated legislative authority. 533. As set forth in proposed Rule 40D-8.628(4), the District would continue to expand and refine its research activities, and would automatically review the minimum level after five years to see if it should be adjusted. The District claims that Rule 40D-8.628(4) provides additional resource protection in the event the potentiometric surface within one sub-area of the SWUCA should respond differently than another sub-area on a long-term basis. The District believes the continued monitoring will facilitate its detection of and reaction to any unacceptable trend when actual use begins to reach permitted quantities. H. Use of Minimum Level to Reserve Water 534. During the course of the hearing, some District witnesses suggested that the treatment accorded to existing permit holders in the SWUCA Rules could be viewed as a reservation of water by the Governing Board. This justification is not readily apparent from the face of the rules. Section 373.223(3), F.S., provides the only clear statutory authority for the District to reserve water for any particular use. It provides that "the governing board or the department, by regulation, may reserve for use by permit applicants, water in such locations and quantities, and for such seasons of the year, as in its judgment may be required for the protection of fish and wildlife or the public health and safety." A reservation of water for existing legal users would not fall within the scope of the statutory provision. Moreover, the proposed rules do not delineate a specific reservation of water as required by the statute. I. Continued Issuance of Permits 535. The District has not declared a water shortage in the SWUCA during the development of the proposed SWUCA Rules or the pendency of these proceedings. In fact, the District has continued to issue permits for new uses of groundwater from the Floridan Aquifer in the SWUCA while defending the District rule challenges, even though District staff admitted that there are existing permits in the SWUCA that do not meet permit criteria. 536. As discussed in Section IV B 6 b (vii) above, the District states that it decided not to regulate the regional impacts in the SWUCA through its existing rules. Instead, the District decided to focus its efforts on adopting the proposed SWUCA Rules, which it believes are better designed to deal with regional issues. 537. The permits that have been granted during the interim have increased the total permitted quantities in the SWUCA and have potentially exacerbated the groundwater problems in the region. While its existing rules arguably provide the District with sufficient legal authority to deny applications for new or renewed withdrawals from the Floridan Aquifer in the SWUCA, the District believed such an approach would not be cost-effective. However, the District's decision to continue issuing new or renewal permits in the SWUCA is more appropriately addressed in proceedings on individual permits and is not within the scope of this proceeding. 538. Proposed Rule 40D-8.628 includes a "self-destruct" clause, that reflects the District's intention that its designation of the 1991 potentiometric surface as the minimum level is contingent upon its ability to apply the selected level in the manner established in the SWUCA Rules. In other words, the District has reserved the right to revisit the selection of an appropriate minimum level if it is determined that renewals and other designated classes of permits are not entitled to the favorable treatment set forth in the proposed rules. The "self-destruct" clause provides that if the District's proposed implementation of the minimum level is found invalid, it will immediately commence rulemaking or other proceedings to adopt a new minimum level and amend Chapter 40D-2, F.A.C. ECOSWF's challenge to the self-destruct clause is discussed in the Conclusions of Law below. K. Proposed Repeal of Existing Provisions Regarding Withdrawals From Intermediate Aquifer - BOR Sections 4.5.2 and 7.2.8 539. Intermediate aquifer withdrawals are currently capped in the MIA area of the SWUCA pursuant to BOR Sections 4.5.2 and 7.2.8, which were adopted as part of the ETB WUCA rules. The SWUCA Rules would repeal the limit from any confined aquifer that has a drawdown of more than .2 foot in the MIA. ECOSWF objects to the repeal of these provisions at a time when the condition of the resource in some areas is deteriorating. In addition, as discussed in Section IV B 6b (viii) above, ECOSWF also complains about the failure of the proposed SWUCA rules to prohibit the withdrawal of new quantities of groundwater from the intermediate aquifer within the SWUCA. 540. The preamble to the SWUCA Rules suggests that new quantities of groundwater from the intermediate aquifer may be available to new users as an alternative to withdrawals from the Floridan Aquifer. ECOSWF claims that the withdrawal of groundwater from the intermediate aquifer in the SWUCA can affect the recharge of the Floridan Aquifer and/or lower the potentiometric level of the UFAS. ECOSWF notes that the SWUCA Rules do not specifically require that applications for new intermediate-aquifer withdrawals in the SWUCA identify or address the proposed withdrawal's impact on the UFAS potentiometric level. 541. The evidence confirmed that in some areas of the SWUCA, there has been a decline in the levels and water quality within the intermediate aquifer. It is not clear, however, that a blanket prohibition on further withdrawals from the intermediate aquifer is necessary. 542. The intermediate aquifer and its sediments are a mixture of clays, sands and thin limestone beds, the combination of which varies widely throughout the SWUCA. Natural clay confinement between aquifers acts to restrict the amount of influence one has on others, and the degree of interaction depends upon the extent of that confinement. 543. There are areas in the SWUCA where the intermediate aquifer is sufficiently interconnected with the UFAS so that a withdrawal from the intermediate aquifer would affect the potentiometric level of the Floridan aquifer, and vice versa. The intermediate aquifer, however, is very complex and consists of hundreds -- if not thousands -- of aquifers, some of which are interconnected with the Floridan and many of which are not. At a single location, there may be several withdrawal elevations within the intermediate system that are not interconnected with the Floridan, while another portion of the aquifer may be immediately adjacent to and connected with the Floridan. Accordingly, it is very difficult to establish minimum levels for the intermediate aquifer system. The District has an ongoing program for drilling intermediate-aquifer wells to obtain a better understanding of the system. 544. The District states it will review proposed withdrawals from the intermediate aquifer on a site-specific basis. If it determines a proposed withdrawal will adversely impact the Floridan Aquifer, it will impose appropriate permit conditions on the withdrawal. The District believes its approach will allow the optimal use of the resource by permitting withdrawals from those portions of the aquifer that are not interconnected with the Floridan Aquifer and can tolerate additional withdrawals. The evidence did not establish that the District's decision in this regard was arbitrary, capricious or otherwise invalid.
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