CHARLOTTE COUNTY v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

PREVIOUS SECTION

Based upon the oral and documentary evidence adduced at the final administrative hearing and the entire record in this proceeding, the following findings of fact are made:

I. Identification of Parties and Related Facts

1. Petitioner Charlotte County ("Charlotte") is a political subdivision of the State of Florida, organized under Article VIII, Section 1, of the Florida Constitution (1968). All or part of the county lies within the geographic jurisdiction of the Southwest Florida Water Management District ("District"). Fed by the Peace and Myakka Rivers, Charlotte Harbor is located in Charlotte County. It is an extremely productive body of water and is the second largest estuary in the State of Florida. Charlotte Harbor is one of the most important resources of Charlotte County, both from an economic and an ecological standpoint.

2. Petitioner Citrus Grower Associates, Inc. ("Citrus Grower"), a corporation organized and existing under the laws of the State of Florida, is an association of citrus growers owning groves that lie within the District's jurisdiction.

3. Petitioner DeSoto County ("DeSoto") is a political subdivision of the State of Florida organized under Article VIII, Section 1, of the Florida Constitution (1968). All or part of the county lies within the District's geographic jurisdiction. DeSoto's population - approximately 26,000 people in 1995 - has been experiencing slow but continual growth over the last decade. It is primarily an agricultural county and its principal source of groundwater is the Floridan Aquifer. DeSoto is concerned that a moratorium on or suspension of the District's issuance of new water use permits could hinder its prospects for future development and reduce its ad valorem tax base.

4. Petitioner Environmental Confederation of Southwest Florida, Inc. ("ECOSWF") is a non-profit corporation organized and existing under the laws of the State of Florida. ECOSWF is an environmental advocacy group established for the purpose of conserving the natural resources of Southwest Florida.

5. Intervenor Florida Citrus Mutual ("Florida Citrus") is a corporation organized and existing under the laws of the State of Florida. Florida Citrus is a voluntary cooperative association of Florida citrus growers with 11,956 active members representing some 800,000 acres of citrus statewide. Approximately 350,000 acres owned by members are located within the boundaries of the District.

6. Petitioner GBS Groves, Inc. ("GBS") is a corporation organized and existing under the laws of the State of Florida. GBS owns a citrus grove located in Section 23, Township 27 South, Range 27 East, Polk County, Florida, that is subject to regulation by the District.

7. Petitioner Hardee County ("Hardee") is a political subdivision of the State of Florida, organized under Article VIII, Section 1, of the Florida Constitution (1968). All or part of the county lies within the District's geographic jurisdiction. Hardee's population has been growing at a slow but relatively steady rate over the last five years, currently totaling approximately 22,000. The county is predominantly agricultural, and the Floridan Aquifer is a principal source of its groundwater. Hardee is concerned that a moratorium on or suspension of the District's issuance of new water use permits could hinder any prospects for future development and reduce its ad valorem tax base.

8. DeSoto and Hardee contend that the Floridan Aquifer is not stressed within the confines of their respective political boundaries and the District has not concurred with their requests for reservations of water for future permitting needs. The counties further maintain that permitted withdrawals from within their respective jurisdictions have not contributed to the present water problems within the District and that they should not be required to sacrifice their current and future needs to solve those problems.

9. Intervenor Manatee County ("Manatee") is a political subdivision of the State of Florida, organized under Article VIII, Section 1, of the Florida Constitution (1968). All or part of the county lies within the District's geographic jurisdiction. As discussed below, the District designated portions of Hillsborough, Manatee and Sarasota Counties as the Eastern Tampa Bay Water Use Caution Area by Resolution Number 933 dated June 28, 1989, and by Resolution Number 942 dated October 24, 1989. Currently, Manatee County is almost entirely encompassed within the Eastern Tampa Bay Water Use Caution Area and much of the county was designated by the District as a "Most Impacted Area" within that Water Use Caution Area.

10. Petitioner Pinellas County ("Pinellas") is a political subdivision of the State of Florida, organized under Article VIII, Section 1, of the Florida Constitution (1968). All or part of the county lies within the District's geographic jurisdiction. Pinellas is a charter county that owns and operates its own public water supply utility - the "Pinellas County Water System."

11. Petitioner Polk County ("Polk") is a political subdivision of the State of Florida, organized under Article VIII, Section 1, of the Florida Constitution (1968). All or part of the county lies within the District's geographic jurisdiction. Polk is an operator of public potable water and sewer utilities.

12. The District is an independent special district of the State of Florida created pursuant to Section 373.069, F.S. Chapter 373, F.S. (1993) ("Chapter 373"), charges the District with the regulation of "consumptive uses of water" in a 16-county area of west-central Florida. Among the many duties and responsibilities conferred on the District by Chapter 373 are the following: (1) authority to establish minimum flows and levels for watercourses and bodies of water; (2) responsibility for the development of groundwater basin resource availability inventories; and (3) ability to reserve quantities of water for non-consumptive uses. See, Sections 373.042, .0395 and .223(3), F.S.

13. The District is subdivided into eight surface-water drainage basins each of which is further governed by its own basin board. Basin boards participate in the funding of local water resource-related projects within their respective boundaries and receive approximately fifty percent of the annual ad valorem taxes assessed by the District.

14. Water management districts issue permits for the consumptive use of water pursuant to Part II of Chapter 373, F.S., and Chapter 40, F.A.C. The permits authorize, as well as regulate, the consumption and use of water by individuals and entities. The District refers to the permits as "water use permits" ("WUPs"), and within the District's territorial boundaries, the issuance of WUPs is governed by Chapter 40D-2, F.A.C.

II. Standing

A. General Statement

15. The parties have stipulated that all petitioners have standing to challenge the existing District rules identified in each of the petitions filed pursuant to Section 120.56, F.S. (1993). The parties have also stipulated that all petitioners except Pinellas have standing to challenge the District's proposed rules for the Southern Water Use Caution Area (the "SWUCA Rules") under Section 120.54, F.S.

B. Pinellas' Standing

16. The District has contested Pinellas' standing to challenge the SWUCA Rules, but it has stipulated to Pinellas' standing in all other respects. Essentially, the District contends that Pinellas does not have standing to challenge the proposed SWUCA Rules because the county was not included within the geographic boundaries of the SWUCA as defined in the proposed rules.

17. As discussed in detail below, the Southern Water Use Caution Area ("SWUCA") was delineated by the District to roughly coincide with an area identified as the Southern Basin, one of three groundwater basins identified by the District to represent hydrologically distinct groundwater flow systems within its jurisdiction. While the District did not include Pinellas within the legal description of lands included within the SWUCA, several District reports depict southern Pinellas lying within the Southern Basin. The Upper Floridan Aquifer System extends beneath Tampa Bay and is continuous between central and southern Pinellas and portions of the SWUCA, such as Hillsborough and Manatee Counties. Thus, although Pinellas is not within the geographic boundaries of the SWUCA (as defined in the proposed rules), there is a hydrologic connection (i.e., the Floridan Aquifer) between the SWUCA and central and southern Pinellas. The District confirms that there are no physical, geologic or impermeable barriers beneath Tampa Bay to prevent groundwater flow between portions of the SWUCA and portions of Pinellas, but claims that the effects of withdrawals in the Southern Basin on Pinellas are limited because most of the UFAS flow discharges into overlying aquifers or to the bottom of Tampa Bay before it reaches Pinellas. In addition, the District points out there is minimal pumpage from the Floridan Aquifer in southern Pinellas because of its salinity.

18. The District's groundwater flow models that were prepared as part of the Eastern Tampa Bay Water Resource Assessment Project ("ETB WRAP") simulate the aquifer system within the Southern Basin. The models included permitted Floridan Aquifer withdrawals and reclaimed water injection wells within central and southern Pinellas, even though impacts from the withdrawal and injection wells were considered minimal.

19. Pursuant to Section 373.196(2), F.S., "municipalities, counties, and regional water supply authorities are to have the primary responsibility for water supply[.]" In its coastal location, Pinellas has limited ability to develop freshwater resources within its boundaries without causing significant environmental consequences. Section 373.1962(1), F.S., recognizes that "regional water supply authorities may be created for the purpose of developing, recovering, storing, and supplying water for county or municipal purposes in such a manner as will give priority to reducing adverse environmental effects of excessive or improper withdrawals of water from concentrated areas." See also, Section 373.196(1), F.S. (legislative mandate for cooperative efforts among cities, counties, water management districts, and the Department of Environmental Protection to meet water supply needs).

20. Section 153.03(1), F.S., generally authorizes counties to purchase, construct, improve, extend, enlarge, operate, and maintain water supply systems "within such county and any adjoining county or counties[.]" See also, Section 125.01(k)1., F.S. Consistent with this authorization, Pinellas owns and operates its own public water supply utility and has various water production facilities located throughout Pinellas, Hillsborough, and Pasco Counties (the "Tri-County Area"). The withdrawal and use of water from the facilities is regulated by the District's water use permit program.

21. Pinellas is the largest water utility in southwest Florida. Pinellas supplies water to approximately 630,000 citizens within its geographic boundaries, with most of its service area lying north of St. Petersburg. Pinellas provides water on a retail basis to thirteen cities, on a wholesale basis to four other cities, on a standby basis to three cities, and serves water to all unincorporated areas of the county. In total, Pinellas provides to its customers approximately sixty-nine million gallons of water per day ("MGD"), the majority of which it has contracted to purchase from the West Coast Regional Water Supply Authority ("West Coast").

22. Pinellas is a founding member and wholesale customer of West Coast, a cooperative regional water supply authority created in 1974 by interlocal agreement between Hillsborough County, Pasco County, Pinellas County, the City of St. Petersburg and the City of Tampa. West Coast is governed by a board of directors comprised of one representative from each of its five member governments. The City of New Port Richey is a non-voting member. West Coast was established to plan, coordinate, develop, and supply water (on a wholesale basis only) for the rapidly growing Tampa Bay area while giving "priority to the reduction of adverse environmental impacts". See, Section 373.1962(1), F.S. Each member county or municipality has a preferential right to purchase water from West Coast to meet its water supply needs. Id.

23. About ninety percent of the population residing within the Tri-County Area (more than two million residents) relies upon water supplied by West Coast and its member governments. In 1990, the average demand for public supply and other potable water uses from West Coast was 252.7 MGD. At current use rates and with anticipated population growth, West Coast projects a 66 percent increase in public supply demand by the year 2020, to approximately 419.3 MGD.

24. In 1992, West Coast and its member governments began working on a Water Resources Development Plan (the "RDP"). Around this same time period, the District was preparing a "needs and sources" report for its entire 16-county territory.

25. At the time of the hearing in this case, the RDP had not been completed; the latest draft is dated July 8, 1994. In July 1994, work on the RDP was suspended so that policy issues raised during its drafting could be addressed by the Tampa Bay Water Coordinating Council ("TBWCC"), a voluntary advisory board comprised of policymaking representatives from West Coast, its member governments, and the District.

26. Under a 1991 Regional System Water Supply Contract (the "Regional Supply Contract"), member governments have contracted with West Coast for present and future delivery of water, and West Coast operates existing structures and develops new water supply facilities or interconnections to meet those demands. Each member government is entitled to receive a percentage of the water produced by facilities developed by West Coast, in proportion to the member's contributions toward development costs.

27. West Coast and its member governments collectively own and operate the following ground and surface water supply facilities in the Tri-County Area⁸: Cross Bar Ranch Wellfield, Cypress Creek Wellfield, Cypress Bridge Wellfield, Starkey Wellfield, North Pasco Wellfield, South Pasco Wellfield, Eldridge-Wilde Wellfield, East Lake Road Wellfield, Cosme-Odessa Wellfield, Section 21 Wellfield, Northwest Hillsborough Regional Wellfield, Morris Bridge Wellfield, Tampa Bypass Canal Facility, Hillsborough River Facility, and South Central Hillsborough Regional Wellfield. Some West Coast projections indicate that by the year 1999 the existing wellfields may not be able to meet the potable water demands of the Tri-County Area.

28. The Regional Supply Contract describes and governs West Coast's long-term plan to meet members' water supply needs by conveying water through an interconnected network of water production facilities and transmission mains, and distributing the "pooled" water to its members based upon their respective annual needs. The Regional System Contract limits new water supply development in Pasco County by West Coast and its member governments.

29. Interconnection provides water supply safety by ensuring delivery to members despite potential equipment failure. In addition, interconnection allows West Coast and its member governments to rotate water production (i.e., withdrawals) from one facility to another to avoid systemic stresses that could otherwise arise. For example, to prevent environmental degradation in a particular area, withdrawals from an impacting wellfield could be reduced or halted with other system facilities making up the difference.

30. The following seven West Coast wellfield facilities are interconnected by water transmission lines (the "Interconnected System"): the Cross Bar Ranch, Cypress Creek, Eldridge-Wilde, South Pasco, Section 21, Cosme-Odessa, and Northwest Hillsborough Regional Wellfields. As of May 1, 1995, the actual system use of the Interconnected System was approximately 115 MGD. The Regional Supply Contract which governs the production and distribution of water through the Interconnected System, also describes the construction of an additional loop in the transmission main system that would facilitate greater water-sharing by West Coast's member governments.

31. The SWUCA includes portions of central and southern Hillsborough County that serve as sources for current and anticipated future water production for West Coast and its member governments. In addition, other locations within the SWUCA are being considered by Pinellas and West Coast as possible new sources of water to meet the projected potable water demands of their service areas. If adopted, the proposed SWUCA Rules would impose direct and immediate restrictions on water resources that could be developed by West Coast and Pinellas for current and future consumers. Therefore, the proposed SWUCA Rules directly and indirectly impact the potable water supplies of both West Coast and Pinellas, and Pinellas would be substantially affected by the District's proposed regulations.

32. The South Central Hillsborough Regional Wellfield ("South Central") located in western Hillsborough County, is one of the wellfield facilities owned and operated by West Coast. South Central is the only West Coast wellfield currently in operation in the SWUCA.

33. The consumptive use permit for withdrawals from South Central is held jointly by West Coast and Hillsborough County. Pinellas is not a co-permittee of South Central, nor does it directly receive any water from that wellfield.

34. While there have been discussions between West Coast and its members about linking South Central with the Interconnected System, those considerations were suspended following creation of the TBWCC. The Regional Supply Contract did not specifically contemplate inclusion of South Central and there are currently no definitive plans to contractually formalize the connection.

35. South Central is located in an area where declines of more than sixty feet have occurred in the potentiometric surface of the UFAS. [See Section III B and C for definitions and details.] In addition, there have been numerous citizen complaints associated with withdrawals from South Central.

36. South Central's withdrawal capacity is fully committed to Hillsborough County, and the RDP projects that no surplus outflow from South Central will be available for use outside the wellfield's immediate service area. West Coast projections indicate that by the year 2000, the permitted capacity of South Central will not be able to meet the average or maximum daily water needs of its service area. Although West Coast and its members are investigating the possibility of increasing the permitted capacity of South Central, the District has recommended that no additional expansion occur at the wellfield. During the District's recent review of South Central's consumptive use permit, there was no suggestion that water from South Central would be supplied to Pinellas.

37. The District argues that potential water sources other than South Central are available to meet Pinellas' future needs, and that Pinellas will not need to seek surplus quantities from South Central. However, the effect of the proposed SWUCA Rules on South Central could restrict production from the wellfield and necessitate West Coast's diversion of other system waters to service the South Central area, thereby heightening West Coast's need to develop additional water supplies. In addition, without any increase in production from the South Central site, Hillsborough and West Coast's other members may have to place greater reliance upon the Interconnected System with the result that a smaller portion of that water would be available for Pinellas. Pinellas would be substantially affected by any such developments because of increased infrastructure costs.

38. In March 1994, the District issued two water shortage orders affecting West Coast's Interconnected System. In June 1994, the District also entered an emergency order (District Executive Director Order No. 94-58) which reduced the permitted withdrawal capacity of West Coast's Interconnected System. The District is considering the imposition of additional restrictions on withdrawals from the Interconnected System. The wellfields covered by the District's two water shortage orders and the emergency order constitute the primary sources of water supply for Pinellas and St. Petersburg. The reductions imposed by the orders will affect Pinellas' ability to meet projected future water needs and may increase the need to seek new water sources in the immediate future.

39. Pinellas is concerned about its ability to depend on West Coast and the Interconnected System to satisfy its customers' long-term water demands. Even though Pinellas does not have any direct interest in any wellfield located within the SWUCA, it is affected by any District rule that restricts the development of new water sources in the District, particularly in areas where West Coast operates. Pinellas' uncertainty regarding the manner in which the SWUCA Rules may affect development of new sources impairs its ability to plan for and provide necessary infrastructure to support future growth as contemplated by the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, F.S.

40. The SWUCA Rules include a number of water conservation requirements, many of which have been challenged by Pinellas. The District claims that the conservation provisions will not be applicable to Pinellas because it is not a permittee in the SWUCA. However, Pinellas' membership in West Coast provides an adequate connection with the proposed rules to establish its standing to challenge the conservation provisions.

41. It should also be noted that many of the SWUCA conservation requirements have similar or corresponding provisions in rules adopted in 1989 for the Northern Tampa Bay Water Use Caution Area ("NTB WUCA"). Although Pinellas has been subject to the latter water conservation requirements since their initial adoption, it had not challenged any portion of the NTB WUCA rules prior to this proceeding. Pursuant to Section 120.56, F.S., Pinellas has challenged several provisions of the NTB WUCA rules in this proceeding. There is no question that Pinellas has standing to challenge provisions contained in the NTB WUCA rules. Many of its challenges to the SWUCA provisions address identical issues.

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