CHARLOTTE COUNTY v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

PREVIOUS SECTION

IX. Challenges of Non-Rule Agency Statements

A. Inverse Presumptions

1151. Some Petitioners have alleged that the District's application of the inverse of the presumptions contained in the Basis of Review constitutes non-rule policy which contravenes Section 120.535, F.S.¹⁴⁹ The District contends that each individual presumption is only part of its overall analysis and that the presumptions in the Basis of Review provide applicants with some guidance as to the quantum of proof necessary to obtain a permit. According to the District, the presumptions and their inverse lay out an acceptable method for evaluating water use permit applications for compliance with Rule 40D-2.301 and the Basis of Review while enabling it to efficiently process water use permit applications without undue expense or technical burden on either the applicant or the District staff.

1152. The findings in Sections III a 3 c and VI A 6 above regarding the District's general use of presumptions are applicable to the application of the inverse presumptions and effectively render moot the Section 120.535 challenges to the inverse presumptions. However, because of the importance of the issues and the uncertainty surrounding them, the following additional findings of fact are made.

1153. The presumptions in the BOR regarding wetlands, lakes, streams and existing users are applied in the inverse. Thus, for example, while the wetlands presumptions as written states that the District presumes there is no unacceptable environmental impact if the withdrawal combined with other withdrawals will not lower the water table under a wetland by more than one foot, the District will also presume that a withdrawal of water will cause unacceptable environmental impacts if the modeled water table drawdown from the withdrawal projects that the water table will be lowered at a wetland by more than 1 foot. The District has applied the inverse of these presumptions since the revised water use permitting rules went into effect on October 1, 1989.

1154. While the District contends the inverse of the presumptions are simply the logical corollary of the promulgated statements, the scientific basis necessary to support a presumption can vary greatly depending upon which way it is applied. For example, a study of the impacts of water withdrawals from seepage lakes may support the application of a presumption that withdrawals that cause a drawdown above a certain level will result in unacceptable impacts to virtually any lake. However, the converse -- that withdrawals below that level will not have unacceptable impacts -- would almost certainly not be true.

1155. No applicant has ever successfully rebutted the District's application of the inverse of the presumptions.

B. The Water Use Design Aids - Section C-1 of the District's Water Use Permit Information Manual

1156. The District's use of the Water Use Design Aids in Part C of the Basis of Review has been challenged as an "agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency...." In other words, some Petitioners have alleged that the Design Aids constitute a "rule" as defined in Section 120.52(16), F.S., which has not been promulgated as required by Section 120.535, F.S. The District claims the Water Use Design Aids are merely a screening tool to facilitate the review of water use permit applications and do not constitute a "rule" for purposes of the APA.

1157. Part C-1 of the Design Aids contains a "Withdrawal Impact Analysis" which provides in pertinent part:

1158. The Part C-1 Withdrawal Impact Analysis contemplates that a WUP applicant will use a groundwater flow model, the results of which are used to determine compliance with the presumptions and performance standards in the Basis of Review. The regulatory models typically used by the District are discussed in Section III(A)(3)(d) above. The regulatory models are generally set up to simulate a worst-case scenario such as no rainfall for a 90-day period during which maximum pumping occurs. The Design Aids provide some general guidance, but there is nothing in the rules or BOR that provide standards or guidelines for this analysis.

1159. When a WUP application is filed with the District, the District staff performs a Level 1 - Basic Analysis. Unless there is site specific information to the contrary, if the applicant passes the analysis, then the applicant is presumed to have met the Conditions for Issuance and the District generally will not do any further analysis.

1160. Under the Level 1 analysis, the District models only the applicant's proposed requested quantity of water to determine the predicted water level impacts. As suggested in the preamble to Section C-1, the District's Level 1 Analysis models the peak proposed monthly withdrawal to simulate the maximum potential impact that the proposed withdrawal would have. For artesian aquifer withdrawals, the District's Level 1 Analysis uses a "leaky-aquifer steady-state model¹⁵⁰ that simulates only the impacts [of the individual proposed use] on the potentiometric surface" of the aquifer. A proposed withdrawal passes the Level 1 analysis in the northern portion of the District if the modeled potentiometric surface drawdown is less than 1.0 foot under wetlands or other water bodies and at the property boundary. In the southern part of the District, the modeled drawdown must be less than 4.0 feet at the same locations.¹⁵¹

1161. The District says either the J-H Model or MODFLOW can be used for a Level 1 Analysis depending on the circumstances. A 1995 internal District Memorandum cautioned staff permit reviewers to exercise a high degree of professional judgment when considering the utilization of the J-H Model. The simplifying assumptions of the J-H Model limit its value in projecting drawdowns in areas where groundwater withdrawals affect the water table aquifer. Consequently, the J-H Model has not been used by the District since August 1992 to project drawdowns in the poorly confined portions of the northern Tampa Bay region. Neither the BOR nor the Design Aids provide any guidance or standards regarding the use of a particular model.

1162. If an applicant does not exceed the thresholds in the Level 1 Analysis, Part-C analysis, it is not clear whether or how a third party could rebut the resulting conclusions.

1163. The Level 1 Analysis can provide a basis for the District to conclude that the impact-related Conditions for Issuance have been met and can result in the issuance of permits which have not been subject to any cumulative impact analysis. The District downplays the significance of these smaller water users, but continued permitting without effective cumulative analysis has contributed to many of the resource problems in the District. In effect, the Level 1 non-rule policy effectively insulates withdrawals that fall below the threshold from cumulative accountability. Cf., Section 373.118, F.S (which requires the adoption of rules for general permits that are deemed not to have an impact. For example, in the SWUCA, where a number of relatively smaller uses have been permitted, there are now serious saltwater intrusion problems. In effect, the Level 1 non-rule policy can effectively insulate withdrawals that fall below the threshold from cumulative accountability.

1164. When the modeled potentiometric surface drawdowns exceed the applicable Level 1 threshold, then the District will apply the Level 2 - Comprehensive Analysis, which is sometimes referred to as a "limited cumulative analysis."

1165. Under the Level 2 - Comprehensive Analysis, the District utilizes a more sophisticated model simulation of the proposed withdrawal and determines the proposed withdrawals' projected one foot potentiometric surface drawdown contour. (If the applicant's withdrawal is located in the southern portion of the District, the four foot contour is used.) Then the District will include all the other permitted withdrawals located within that drawdown contour as well as all water-table aquifer withdrawals within the .5 foot water table drawdown contour and rerun the simulation with all permittees within those contours included with the proposed withdrawal.¹⁵² The resulting modeled drawdown contours are then used in applying the BOR presumptive thresholds.

1166. The Design Aids indicate that a Level 2 Analysis should generally be run with a transient-state model simulation for a 90-day period. The simulation is sometimes run for longer periods if, in the professional judgment of the permit reviewer, it will take the system longer to respond and equilibrate.¹⁵³

1167. The Design Aids also provide that the model should assume that no recharge is made to the source of the proposed withdrawal during the simulation period.

1168. If the limited cumulative modeling simulation (Level 2) demonstrates the presumptions are not exceeded, then the impact-related Performance Standards in BOR Section 4.0 are considered met. If the Level 2 analysis demonstrates the presumptive thresholds will be exceeded, then a more complex analysis of the permit application is undertaken by District staff. Smaller uses of water that only have to satisfy 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 cumulative analysis.

1169. This regulatory structure can cause some anomalous results. For example, if the District examined four separate users with wells in a general area in the southern portion of the District and each of those four users did not exceed the 4 foot potentiometric surface drawdown threshold, then each of those four users would be deemed to satisfy the District's standards and would be issued a WUP. However, if the four wells were owned by one user, the model could show that the four wells produced impacts that lowered the potentiometric surface by more than four feet at the owner's property boundary, and thus this user would be deemed to have failed the Level 1 analysis and would have be subject to the Level 2 limited cumulative analysis.

1170. Under the limited comulative analysis, if there is another large user just outside the one foot potentiometric surface drawdown contour that other large user would not be included in the cumulative analysis, as it is described in Part C. The District suggests that it would be aware of such a neighboring large use and could require that the other large user be included in the level 2 Analysis. The District has no written guidelines or policies which explain the factors that will be considered in deciding whether to disregard the plain language in Part C and require the neighboring larger use to be included in the Model.

1171. The Design Aids set forth analysis techniques used by the District on virtually all water use permit applications to assist in the determination of whether the Conditions for Issuance have been met. Theoretically, an applicant is free to use methods other than the Design Aids to demonstrate compliance with the rule criteria. However, even if an applicant does not utilize the Design Aids, the District will apply the analysis to any application it receives. This is clear from the introductory language in Part C-1.

1172. Part C-1 also provides that all "Performance Standards in the BOR are met if the applicant satisfies the Part C-1 analysis." This statement and the evidence as to how the Design Aids are used compel the conclusion that the Design Aids have the effect of a rule as defined in Section 120.52(16), and therefore must be adopted through rulemaking proceedings under Section 120.54, F.S.

1173. The District asserts a number of reasons why it should not be required to adopt the Design Aids as a rule. First, the District claims it is continually developing better tools and refining its computer modeling techniques based upon post-audit data and technological advances. However, the possibility or even probability of improvements in technology and computer modeling do not render infeasible or impracticable the District's adoption of its impact analysis as a rule.

1174. The District also contends that the Design Aids only provide examples of acceptable analysis techniques and are not intended to be all-inclusive with respect to the methodologies that may be applied. The District says it must have the discretion to apply an alternative computer model when necessary to adequately determine whether a WUP applicant satisfies the impact criteria of the Conditions for Issuance. The evidence indicates the District's analysis practices have been fairly consistent over time. Moreover, the District could specify criteria or standards from which WUP applicants could anticipate how or when the Design Aids would apply.

1175. Finally, the District says proper application of the Design Aids requires the exercise of professional judgment to determine, for example, the period of time for which the computer model should be run. Although it may not be feasible for the District to detail in a rule all of the specifics regarding the manner in which Level 1 and Level 2 analyses should be conducted, the general parameters and framework regarding the application of the Design Aids can and should be adopted in accordance with the procedures set forth in Chapter 120, F.S. The rules could be drafted in a manner that would allow the District and applicants adequate flexibility to address site-specific conditions.