CHARLOTTE COUNTY v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

PREVIOUS SECTION

G. Reuse - BOR Section 4.11, BOR Section 7.3.6.2 and proposed BOR Sections 3.1 (Alternative Sources within the SWUCA - Reuse Goal) and 3.6

1. Background

1020. The reuse of reclaimed water is regulated as a disposal option for effluent from a wastewater treatment plant ("WWTP") by DEP, which issues the permits for wastewater treatment and disposal. DEP does not have the authority to require reuse of wastewater. DEP Rules 62-40 and 62-610, F.A.C., identify which uses of reclaimed water qualify as "beneficial reuse" and provide specific criteria and quality standards for reused water.

1021. There is considerable uncertainty and controversy as to how and when reused water can be considered in the WUP process. The District notes that the Legislature and State Water Policy mandate the implementation of wastewater reuse. See, Sections 373.250 and 403.064, F.S. (1994 Supp.) and Rules 62-40.310(4) and 62-40.401(5), F.A.C.

1022. Section 373.250, F.S., provides in pertinent part as follows:

1023. Section 403.064(1), F.S., incorporates almost verbatim the policy statements in Section 373.250(1). Section 403.064 provides in addition:

1024. The State Water Policy, which provides policy guidance to the water management districts, contains several provisions relating to reuse. Rule 62-40.401(2)(j) includes reuse among the items that the water management districts should consider in the WUP issuance process. See also, Rules 62-40.310(4) and 62-40.401(5), F.A.C. The State Water Policy language pertaining to reuse has been in place since 1988.¹³³

1025. Reuse systems have been experiencing rapid growth in Florida. From 1986 to 1992 the number of reuse systems in the state grew from about 110 to more than 290, and reuse flow grew from about 200 MGD to about 290 MGD. Reuse capacity statewide grew during this period from about 370 MGD to about 600 MGD.¹³⁴

1026. Within the District, there were about 100 wastewater treatment plants at the time of this hearing generating a total wastewater flow of approximately 300 MGD. About 40 percent of these plants were at or above 50 percent reuse. This figure is expected to climb to almost 60 percent within five to ten years as a result of projects that are in the pipeline under the District's cooperative funding program. Additional projects underway apart from the District's program could bring the figure even higher. On a percentage of flow basis, an estimated one-third of the total flow is currently being reused, and DEP has already issued permits that could increase this capacity to about two-thirds.¹³⁵

1027. Section 403.064(2), F.S., (1994 Supp.) directs DEP to require that reuse feasibility studies be conducted by WWTP permit applicants located in water resource caution areas. The goal of this statute was to require WWTP operators who dispose of large quantities of treated effluent in areas with scarce water resources to consider whether that effluent could be reused instead of discharged.

1028. The requirement that a WWTP permit applicant perform a reuse feasibility evaluation was enacted in 1989. See, Section 7 of the 89-324, Laws of Fla. Prior to this legislation, there was no statutory requirement for WWTP permit applicants to perform reuse feasibility investigations. Subsection 2 of Section 403.064, as originally enacted provided that "the applicant's evaluation shall be final." In other words, DEP could not refuse a WWTP permit based upon its disagreement with an applicant's determination that reuse was not feasible. This statute reflected a legislative policy that, while the encouragement of reuse is an important state goal, the ultimate decision as to whether a utility should make the capital investment necessary to build a reuse system should be left to the utility.

1029. Allowing a WWTP the final say in determining whether it was feasible to build a reuse system has been controversial. The legislative goal of encouraging reuse and the legislative directive that gives a WWTP the final say as to whether it is feasible to develop a reuse system can conflict. However, when Section 403.064 was amended by the Florida Legislature in 1994, the amendment re-emphasized that the applicant's determination of feasibility is final by moving the following language into subsection (3): "The [reuse feasibility] study...shall be performed by the applicant, and the applicant's determination of feasibility is final if the study complies with the requirements of subsection (2)."

1030. A WWTP or utility does not have authority to require customers to hook up to a reclaimed water system even if the utility builds a pipe to the customer's area. Thus, there is considerable uncertainty involved in determining whether an investment in reuse facilities can be recaptured. This uncertainty is compounded by the ambiguity as to when reuse can be required in the WUP process. Some local utilities, municipalities and county governmental entities have implemented "local reuse programs" without the involvement of a water management district.¹³⁶ Section 403.064(7) provides that in issuing a WUP, the permitting agency shall take into consideration the local reuse program. This provision recognizes that water management districts can consider existing reuse distribution systems in issuing WUPs. Sections 373.250(5) and (6) also recognize that a water management district can consider an applicant's ability to utilize reused water as part of the WUP process.

1031. Section 373.250(2)(b), F.S. (1994 Supp.), provides that reuse can be presumed available to a WUP applicant when a utility exists that provides reclaimed water has uncommitted capacity available and has a distribution facility to the site of the proposed use. This statute implicitly limits a water management district's ability to require the use of reclaimed water as part of a WUP to situations where it can be shown that reused water is available. Even if reuse of reclaimed water is determined to be feasible, an applicant can be required to reuse only the amount of reclaimed water that is "uncommitted" as defined in Section 373.250(2)(a), F.S.

2. Existing and Proposed Rule Provisions

1032. The District says its experience has demonstrated that once reuse is started, demand for reclaimed water rapidly rises. Accordingly, the District wants its rules to create an environment that encourages reuse.

1033. Rule 40D-2.301(1)(1), F.A.C., requires a WUP applicant to provide reasonable assurances that its proposed water use will "incorporate reuse measures to the greatest extent practicable."

1034. Section 4.11 of the Basis of Review corresponds to this rule. Under BOR Section 4.11 applicants "shall demonstrate whether reclaimed water is available and appropriate for reuse and shall incorporate reuse of reclaimed water to the greatest extent practicable." In addition, BOR Section 4.11 states that "in determining whether an Applicant meets this criterion, the District shall consider whether the use is economically, environmentally and technically feasible." BOR Section 4.11 applies to all WUP applicants including public supply permittees.

1035. Under these provisions, the District Governing Board makes the final determination of the feasibility of a WUP applicant incorporating reuse. An applicant's proposed use request can be reduced by the amount of water that the District believes can be supplied through a reuse system.

1036. The District has not adopted any standards or guidelines for determining whether reuse is being incorporated to the "greatest extent practicable" or whether reuse is "economically, environmentally and technically feasible."

1037. Because the District decides whether or not a WUP applicant has incorporated reuse measures to the greatest extent practicable, theoretically the District could conclude that it was feasible for a WUP applicant that generated domestic wastewater to reuse reclaimed water even when the applicant had decided pursuant to Section 403.064, F.S., that reuse was not feasible. It is not clear whether the District has ever utilized the provisions in this manner. The evidence suggests the provisions have generally been applied to potential users of an available supply. Some District witnesses contended the provisions could also be applied to utilities that generate wastewater and hold a WUP.

1038. The NTB WUCA Rules include BOR Section 7.3.6 which is entitled Alternative Sources. The District says this reuse requirement for permittees in the NTB WUCA was intended to be more strict than the general reuse requirement found in Rule 40D-2.301(1)(1).

1039. Subsection 2 of the NTB provision provides: "Investigation of the feasibility of reuse may be required for all appropriate uses, and reuse shall be required where feasible." This provision is implemented by applying a permit condition set forth in BOR Section 7.3.6.2 to all "applicable" permits. Applicable permits for purposes of this provision does not specifically include public supply permits. Instead, the provision is aimed at those permits for which treated wastewater could serve as an alternate replacement or supplemental water source such as irrigation, industrial processing, cleaning and other non-potable uses.

1040. The permit condition in BOR Section 7.3.6.2 requires a WUP applicant in the NTB WUCA to investigate the availability of reuse and its feasibility as a source. These factors are to be included in a report submitted to the District. The intent of BOR Section 7.3.6.2 was to place an obligation on potential end users to consider the possibility of using reclaimed water and to match up WUP applicants who could use reclaimed water with reused water where it is available.

1041. The NTB provision does not directly impose requirements on public supply permittees who are potential providers of reclaimed water except as set forth on page B7.3-19 of the Basis of Review, which provides "if reclaimed water is available or is planned to be available within the next six years, the local wastewater entity shall provide a cost estimate for connection to the permit applicant." This provision seeks to provide a linkage between those who could use the reclaimed water and a wastewater utility that has reclaimed water available. While some witnesses suggested Section 7.3.6.2 could be applied to require public supply permittees to investigate the feasibility of developing a reuse system, it is not clear that the provision has ever been so applied. As discussed in the Conclusions of Law, such an application is beyond the current authority delegated to the District by the Legislature. Moreover, the rules do not adequately delineate the factors that would be considered in such an application.

1042. Pinellas claims that there are no rules that provide objective standards or criteria for determining if reuse is feasible. The criticism is well-taken if the rule is applied to require an investigation of the feasibility of developing a reuse system. To the extent that the provisions are applied to potential end-users of reclaimed water rather than suppliers, the requirements are not unacceptably vague. The permit condition set forth in BOR Section 7.3.6.2 delineates a number of factors that should be considered in submitting a report. So long as the requirement is read and applied consistent with the statutory requirements in Sections 373.250(2) and 403.064(3), F.S. (1994 Supp.), it does not vest the District with unbridled discretion. In sum, Petitioners have not presented any persuasive evidence or arguments for invalidating the existing provisions in Rule 40D-2.301(1)(1) and BOR Sections 4.11 and 7.3.6.2. The concerns that the provisions could be interpreted to require an investigation of the feasibility of constructing a reuse system do not provide a basis for invalidating the provisions since this result is not compelled by the language of the provisions. More problematic is the provision in the proposed SWUCA Rules.

1043. The SWUCA Rules include a subsection in proposed BOR Section 3.1 ("Reuse Feasibility Investigation within SWUCA") which would (1) establish a 50 percent reuse "goal" for permittees who generate treated domestic wastewater; (2) identify various uses of reclaimed water that will "be considered beneficial reuse" within the SWUCA; and (3) require all WUP permittees within the SWUCA to investigate the "feasibility" of using reclaimed water, and to implement reuse where "economically, environmentally and technically feasible."

1044. The NTB WUCA provisions do not include a 50 percent reuse goal nor is there a delineation of what constitute beneficial reuse. The issues raised with respect to these two factors, which are unique to the proposed SWUCA Rules, will be discussed below. The third aspect of the proposal has some similarities to the NTB WUCA provision in BOR Section 7.3.6.2. However, the SWUCA provision would specifically apply to potential suppliers as well as potential users. The only permittees excused from conducting the investigation are reclaimed water suppliers whose reclaimed water is 100 percent reused, reclaimed water users whose water use is 100 percent reclaimed water, and permittees with a reuse plan already accepted by the District.

1045. The SWUCA provision seeks to authorize the District to require the implementation of reuse whenever the District deems it to be economically, environmentally and technically feasible without regard to the applicant's determination and irrespective of the percentage of reuse that may have been achieved by the applicant.

3. State Water Policy and Reuse Coordinating Committee

1046. A state-wide Reuse Coordinating Committee, consisting of representatives from DEP, the five water management districts, and the PSC, has been established to coordinate agency activities to strengthen the state's reuse program and to develop consistent policies and approaches to promote, encourage and require reuse within the state.

1047. In October 1993, the committee published the Reuse Conventions Report, which made recommendations agreed upon by all of the agencies involved for improving, strengthening, and streamlining the reuse program. One objective of the Reuse Conventions Report was to create standardized terminology concerning reuse in order to promote consistency among the various regulatory agencies and to assist in the implementation of the water management plans contemplated by the 1988 revisions to the State Water Policy. Some of the policies and programs recommended by the Committee have already been incorporated into the State Water Policy and the DEP portion of the State Water Management Plan.

1048. The Reuse Conventions Committee recommended that water management districts be aggressive in requiring reuse as part of their WUP programs. The committee was concerned that some WWTPs have concluded that the development of a reuse system was not feasible after only a cursory analysis. The Committee expressed the view that allowing a WWTP to determine whether to implement a reuse program creates a loophole that negates the legislative goal of encouraging reuse. The Committee concluded that the legislative encouragement of reuse and the State Water Policy's requirement that reuse be implemented in designated water resource caution areas authorized the water management districts to implement mandatory reuse through their WUP programs. The SWUCA Rules have incorporated this view.

1049. The SWUCA provisions provide that reuse feasibility studies prepared by WWTP permit applicants pursuant to Section 403.064 can be submitted to satisfy the requirement of reuse feasibility as part of the WUP application process. However, the District says it will determine whether to accept the conclusions. In other words, the District could require domestic wastewater treatment facilities to develop a reuse system in order to obtain a WUP. In effect, this approach would allow the District to circumvent the legislative intent that a WWTP be allowed to make the determination of the feasibility of reuse by overriding that determination as part of the WUP process. As discussed in the Conclusions of Law, the District can properly consider readily available alternative sources as part of the WUP process. However, the WUP process is not the proper vehicle for allocating the costs of development of alternative sources.

1050. A comprehensive reuse program can include upgrades of the effluent treatment methods and construction of extensive transmission facilities. The cost of such a program for a major wastewater treatment plant could be tens of millions of dollars or more. Even the cost of preparing a reuse feasibility study for a comprehensive reuse system can range from tens of thousands to hundreds of thousands of dollars. The District's authority to implement a WUP program does not allow it to dictate to a local government how to allocate its resources between various important municipal functions.

1051. The District has not set forth any objective standards or criteria that would be used in determining when the development of a reclaimed water system is "economically, environmentally and technically feasible." The treatment requirements and public health considerations involved in a reuse system can be highly technical and complex. There are many uncertainties involved that are best addressed in the DEP permitting process under Chapter 403, F.S.

1052. While the District says that a project would not be considered feasible unless it was permitted by DEP, it is very difficult and costly to determine in advance whether a project is permittable. The DEP State Reuse Coordinator David W. York, who has primary responsibility for review of water management district reuse rules for consistency with the State Water Policy, testified that the State Water Policy should be read to mandate that reuse be implemented through the WUP process in designated water supply problem areas.¹³⁷

1053. While the State Water Policy contains broad encouragement for reuse, it cannot create authority for the District beyond that granted by the legislature. The statutory authority for requiring reuse is explored in the Conclusions of Law.

4. Reuse Goals

1054. In view of the conclusions reached herein regarding the limitations on the authority of the District to require reuse as part of the WUP process, many of the other issues raised by the parties are moot. Nonetheless, findings are made on some of the matters because of the uncertainty in this area and the importance of the issues.

1055. The proposed reuse goal in the SWUCA Rules provides as follows:

1056. There is no industry standard or generally accepted level of reuse for a WWTP. A survey of all WWTPs in the District with treatment capacities of 500,000 GPD or greater indicates that only about 40 percent of these facilities are currently at or above 50 percent reuse. The District has not performed an analysis to determine whether those permittees within the SWUCA who are currently below the 50 percent reuse goal can realistically achieve compliance with this level.

1057. The District claims that the "reuse goal" in the SWUCA Rules "simply encourages permittees who generate wastewater to demonstrate that they have achieved 50 percent beneficial reuse by the year 2004. The only mandate associated with this rule is that reuse be reported to the District. There is no penalty involved if this goal is not achieved." See, District's proposed findings of fact, No. 713, p. 268.

1058. In its review of the SWUCA Rules, DEP indicated that the 50 percent reuse goal should be mandatory. This view is arguably consistent with the State Water Policy. However, as discussed in the Conclusions of Law, mandatory reuse cannot be imposed on a WWTP through the WUP process.

1059. The District can require WUP applicants to provide general information regarding their ability to use available reclaimed water and/or to supply it. Establishing a goal of 50 percent reuse and requiring proof of progress toward this goal is consistent with legislative intent.

1060. The District's proposed 50 percent reuse goal exempts WWTPs with a capacity of less than 500,000 GPD. The District was concerned that these smaller WWTPs would have problems meeting the Class I reliability standards required by DEP's reuse rules. It can be difficult and/or cost prohibitive for smaller plants to incorporate reuse. These small plants only represent about 5 percent of the total wastewater flow and some are being phased out with flows directed to the larger regional plants. While, the State Water Policy does not recognize any minimum size thresholds or exemptions for WWTPs, the District's decision to not include such plants in the rule was not arbitrary.

5. Beneficial Reuse.

1061. The proposed subsection entitled "Alternative Sources Within the SWUCA, Beneficial Reuse" to be added to BOR Section 3.1 provides a list of activities that the District considers to be "beneficial reuse." The District proposed to use this list to assess the attainment of the 50 percent reuse goal. Pinellas argues that DEP is the only state agency authorized to regulate and permit reuse and that the District's efforts to separately define reuse could result in conflict and confusion. Over the last few years as more attention has been focused on reuse as an alternate supply source and policies to further reuse have been developing at the state and local level, there have been confusing and sometimes inconsistent changes in the manner in which beneficial reuse has been defined. Nonetheless, Pinellas' contention that the "beneficial reuse" provisions in the SWUCA Rules are invalid because they enlarge, modify or contravene State Water Policy and/or conflict with DEP rules regulating WWTPs is rejected.

1062. The State Water Policy includes a list of beneficial reuse options. Rule 62-40.210(15) sets forth examples as to what constitutes beneficial reuse, but this list was not intended to be exclusive or limiting. For example, indirect potable reuse involves the deliberate application of high quality reclaimed water as a means of augmenting either a ground or surface water supply for a subsequent withdrawal either downstream or down gradient as a potable water source. Although not specifically listed as a beneficial use in the State Water Policy, the evidence established that, under proper circumstances, DEP will consider it under the "other useful purposes" provision of the State Water Policy list.

1063. DEP has adopted detailed rules governing WWTPs and the reuse of reclaimed water. See, Ch. 62-610, F.A.C. These rules also include a list of beneficial reuse.¹³⁸

1064. DEP's November 8, 1994 official comment letter to the District indicated that the District's proposed beneficial reuse list was not consistent with the definition of reuse in the State Water Policy [Rule 62-40210(15)], Chapter 62-610, the pending revisions to Chapter 62-610, or the Reuse Conventions Report. A comparison of the list of activities contained in the SWUCA proposal confirms that it is not identical.¹³⁹

1065. There are certain activities described on the state-wide lists of acceptable forms of beneficial reuse which may not be considered beneficial reuse by the District. For example, applying reclaimed water to percolation ponds (or "rapid rate infiltration basins") may be an acceptable form of beneficial reuse under the DEP rules.¹⁴⁰ (See Ch. 62-610, Part IV, F.A.C.). However, the District would probably not consider this activity beneficial reuse under the proposed SWUCA provisions.

1066. Whether a particular method of reuse is beneficial can vary throughout the state depending upon the nature of the aquifer system. For example, a percolation pond may be beneficial in recharging the aquifer in one part of the state but not in another. The District says the differences between the SWUCA provisions and the lists contained in Rule 62-40.210(15) and Ch. 62-610, F.A.C., are the result of its effort to focus upon the particular types of reuse that would offset groundwater use within the SWUCA. The District's attempt to specify the types of reuse that are beneficial within the SWUCA is consistent with the legislative directive that it encourage reuse in water resource caution areas and has not been shown to be arbitrary, capricious or otherwise invalid.

1067. The District's definition of wastewater reuse in the glossary to the existing Basis of Review closely tracks the State Water Policy definition. The District has sought to provide itself with flexibility by including "other useful purposes" in subsection 8 which could encompass any uses considered beneficial by the DEP but not included within the District list.

6. Statutory Authority for BOR Section 4.11

1068. Pinellas claims that the District cannot rely upon Section 373.250 as support for BOR Section 4.11 because this statute was not enacted until after BOR 4.11 was adopted. The importance of conservation and reuse are implicit in the reasonable-beneficial use test and the regulation of water use in the public interest and have been recognized in the State Water Policy for some time. The District has proposed amendments to Rule 40D-2.091 to include additional citations of statutes under the "Specific Authority" and "Law Implemented" sections for the Basis of Review. Pinellas points out that, even as amended, the rule does not include any citation to Section 373.250, F.S. While it would be helpful to include this statute among the cited authorities, it is concluded that such citation is not essential.

7. Standing

1069. The District argues that Pinellas does not have standing to challenge the proposed reuse provision in the SWUCA Rules because Pinellas currently has no facilities that would fall under these provisions and because Pinellas has already begun implementing an aggressive reuse program which, when completed, is expected to result in a reuse rate of more than 90 percent. For the reasons set forth in Section VI. A. above, this contention is rejected.

8. Conclusion

1070. The District can require a WUP applicant to investigate the feasibility of utilizing reclaimed water from an available source. Such a requirement is a proper implementation of the reasonable-beneficial use test and the public interest test. While the State Water Policy -- with which District rules must be consistent, See Rule 62-40.110(3) -- mandates reuse measures within a critical water supply problem area such as the SWUCA, Chapter 373 does not authorize the District to override a determination as to feasiability by a utility regarding the development of a reuse system. A WUP applicant can only be required to reuse reclaimed water when it is available and "uncommitted" as defined in Section 373.250(2)(a), F.S.

1071. Moreover, because there are no standards or objective criteria to review the exercise of the District's discretion in determining whether a reuse system is "economically, environmentally and technically feasible," proposed BOR Section 3.1 is vague and grants unbridled discretion to the District.¹⁴¹

1072. The District says that it would utilize a pre-application conference with an applicant to discuss the parameters that would be applicable to a specific feasibility investigation. The evidence indicates that such conferences have been useful in the past. However, the rules must be evaluated on their face and the District's willingness to provide such conferences does not alter the unbridled discretion inherent in the rules.

1073. The District contends that its reuse provisions should be upheld because they are an attempt to regulate water use consistent with the public interest. The District argues that the provisions are consistent with State Water Policy, the Reuse Conventions Report and have the approval of the State Reuse Coordinator. The District points out that Section 373.250(3) requires the District to adopt rules in consultation with DEP to promote water conservation and reuse. In addition, subsection 4 provides that the statute was not intended to impair a district's authority to plan for and regulate consumptive uses. Admittedly, there is a great deal of ambiguity and confusion in trying to reconcile the various statutory directives. Requiring a WWTP to develop systems to make reclaimed water available is arguably consistent with the legislative policies set forth in Sections 373.250 and 403.064. However, absent legislative clarification, the development of such a system cannot be imposed through the WUP process.

H. Desalination - BOR Section 7.3.6.4 and proposed BOR Section 3.1

1. Background

1074. Desalination is a process by which water with an unacceptable chloride level is rendered fit for public consumption. This term can refer to treating brackish water as well as ocean or gulf water. Brackish water has lower levels of chlorides and solids than ocean or gulf water and can be found in groundwater at coastal areas or in surface water bodies where there is a mixing of freshwater and saltwater.

1075. There are hundreds of brackish water desalination plants existing throughout the United States, including more than 170 facilities in Florida. However, no seawater desalination facilities are currently operating in Florida. In fact, no major municipal seawater desalination plants are currently operating in the United States.¹⁴² There are only a few small "pilot" plants in California.

1076. The District's existing rules do not specifically mention desalination as a potential water source to be investigated except in the rules pertaining to WUCAs. The declaration of an area as a WUCA necessarily implies that problems exist with surface and/or groundwater. The District wants applicants in these areas to view desalination as an alternative source.

1077. Chapter 373 mentions desalination only in the context of "cooperative efforts" with local governments to promote desalination. The District contends the general conservation provisions of Chapter 373 and the State Water Policy authorize the District to require a permittee to implement desalination over another source of water.

2. Current and Proposed Provisions

1078. Section 7.3.6.4 of the Basis of Review requires all industrial and public supply WUP applicants seeking new quantities in the NTB WUCA to investigate the feasibility of desalination, and to implement desalination if feasible. Under BOR Section 7.3.6.4 these applicants must provide "a detailed economic analysis of desalination, including disposal costs, versus development of freshwater supplies, including land acquisition and transmission costs."

1079. BOR Section 7.3.6.4 went into effect on March 1, 1991, and requires a feasibility investigation of brackish water as well as seawater desalination.

1080. As part of the SWUCA Rules, the District has proposed a new Section 3.1 of the Basis of Review which includes a subsection titled "Investigate Desalination Within The SWUCA." This provision would require all industrial and public supply applicants located in a coastal county within the SWUCA seeking new or replacement quantities of groundwater of 500,000 GPD or greater to investigate the feasibility of desalination and to implement desalination if feasible.

1081. The proposed SWUCA provision is similar to the NTB WUCA requirement in BOR Section 7.3.6.4 except that the SWUCA provision applies to "replacement" quantities as well as new quantities. "Replacement" is not defined, but the provision could require desalination feasibility studies from existing uses upon renewal, while the NTB rule applies only if an increased quantity is sought. Another difference is that the proposed SWUCA provision only applies in coastal areas to industrial and public supply applicants seeking "new or replacement quantities of groundwater of 500,000 gpd...or greater where salt water exists," while the NTB WUCA provision requires a desalination investigation for all industrial and public supply applicants seeking new quantities of any amount.

1082. A desalination investigation in the SWUCA would only have to address seawater. The District is concerned that the removal of brackish water in the coastal zones could exacerbate the SWUCA's saltwater intrusion problem.

3. Feasibility

1083. The evidence established that there are virtually no available quantities of desalinated seawater from existing plants within the District. Accordingly, the investigation required under these provisions would necessarily involve an evaluation of the feasibility of construction of a new desalination plant.

1084. Seawater desalination requires a massive capital investment with a number of environmental permitting issues involved.¹⁴³

1085. A feasibility study for a desalination plant can be an immensely complex and expensive undertaking. Simply evaluating financing possibilities for a capital investment of this magnitude is a major task. Depending on the size of the project and the detail of the study, the cost for a feasibility study could be several hundred thousand dollars. For example, Pinellas is in the process of preparing a desalination feasibility study at a cost of about $300,000.00.¹⁴⁴

1086. If the District staff and a public supply utility applicant disagree as to the appropriate contents of a desalination feasibility study under either the NTB or SWUCA provisions, the District says it could determine that the application was incomplete and deny the WUP application if satisfactory information was not submitted in a timely manner.

1087. If, after completion of a desalination feasibility investigation, an applicant concludes that it is financially unable to construct such a facility, the District has discretion under these provisions to reject the applicant's economic feasibility determination and consequently refuse to issue a WUP. It is not clear what standards the District would utilize in evaluating an applicant's determination of financial feasibility.

1088. Neither rule delineates specific areas an applicant must include in its feasibility study other than generally requiring that "the investigation shall include a detailed economic analysis of desalination including disposal costs, versus development of fresh water supplies, including land acquisition and transmission costs."

1089. The testimony at the hearing indicated that the District expects a WUP applicant to investigate, among other things, concentrate disposal costs, coastal zone management requirements, and environmental issues such as the toxicity of brine discharge. The District has not developed any form or guidelines for the feasibility studies nor has it adopted any criteria or standards for evaluating such studies.

1090. The requirement to prepare a desalination feasibility study is unacceptably vague because it provides little guidance as to what should be included in such a study and it grants unbridled discretion to the District in determining whether the study is acceptable and/or the project is feasible without any meaningful basis to review that decision.

4. Cost

1091. The District has performed desalination cost analysis for the Electric Power Research Institute and has also gathered information from the desalination industry regarding cost elements and the different types of processes associated with costing a desalination project. However, the District has not undertaken any in-depth studies to evaluate the financing and capitalization costs for construction of a desalination facility in the District.

1092. The July 1994 draft RDP by West Coast estimates the total cost of producing potable water from a one million gallon per day seawater desalination facility was more than seven times the cost estimates of other alternative source projects such as the Hillsborough Recovery and Tampa Bypass Canal Project. This was the only evidence presented as to the cost of desalination.

1093. "Reverse osmosis" is a membrane filtration desalination technique currently used by many brackish water desalination plants within the District. There are about 40 reverse osmosis plants in operation in the District. With this process, water is forced through a membrane with very small openings which filter out the chloride compounds. Brackish water desalination is less expensive than seawater desalination because the lower salt concentrations reduce the energy requirements for membrane filtration and chemicals. A plant can generally use a "low-pressure" filtration process for water that has less than 4,000 parts per million. In contrast, desalination of water with more than 4,000 parts per million (seawater) is significantly above this level and must generally use a "high-pressure" system, which requires much more energy to accomplish the same objective. As noted above, the SWUCA provision is limited to the much more expensive seawater desalination process.

5. Brine Disposal and Other Permitting Issues

1094. Desalination necessarily involves the disposal of a brine by-product. A primary factor affecting the implementation of any desalination project is the utility's ability to lawfully dispose of the brine by-product. DEP is the state agency responsible for permitting such disposal.¹⁴⁵

1095. It is not clear whether the District would require a WUP applicant's feasibility study to include an investigation of the applicant's ability to obtain permits from DEP for a desalination facility and reject disposal system.

1096. Current methods of disposing of brine concentrate include deep well injection, surface water discharge, and land application. Each of these methods has shortcomings. Surface water discharge is often unacceptable because of environmental concerns. Deep well injection involves many unknowns and is very controversial. Land application has never been considered a viable alternative in Florida because of the amount of salt and water that must be disposed.

1097. Some existing brackish water desalination facilities within the District have encountered permit compliance problems relating to the toxicity and/or level of radioactivity in their discharge. District staff, in particular Deputy Director Mark Farrell, have been working with DEP and the Federal EPA to address issues surrounding the possible disposal of brine by-product into the Gulf of Mexico. In cooperation with the Electric Power Research Institute and others, Mr. Farrell co-chaired a "Desalination and Reuse Committee," which prepared reports on disposal methods. The committee funded a project that reconfigured the EPA plume discharge model so it was capable of modeling a brine discharge and then submitted the model to EPA and DEP for consideration. In addition, a study was undertaken relating to toxicity issues which demonstrated that the source of toxicity was salinity. The study concluded that through dilution with existing seawater or other sources, or establishment of a mixing zone, toxicity issues could be resolved. Prior to this study DEP did not have specific data to show how much pre-dilution would be necessary.

1098. In a letter to Mr. Farrell dated April 12, 1995, DEP acknowledged that ocean disposal may be a viable way to dispose of brine through existing DEP rule criteria involving pre-dilution mixing and mixing zones, or a combination of both. In this letter, DEP commented on the pilot study concerning brine disposal and indicated that, in concept, "seawater brine discharge can be managed to meet [DEP's] water quality standards and is manageable and permittable with appropriate conditions under current [DEP] point source discharge criteria. It should be understood that any permit approvals are site specific and other conditions may apply."

1099. This April 12, 1995 letter only addresses toxicity issues associated with reject brine disposal and does not address other environmental problems potentially associated with desalination.

1100. Thus, while it now appears it may be possible to obtain a permit for brine disposal, other uncertainties are involved. For example, a seawater desalination plant would almost certainly have to be located on coastal property, which could be very expensive and raises complex environmental permitting issues that could include the possibility of a third-party challenge making it virtually impossible to accurately determine the feasibility of a project.

6. Site-specific Issues

1101. The construction of a desalination plant necessarily involves site-specific issues including the selection of plant location and size, and the techniques to be employed. Permitting issues related to brine disposal, pipelines, dredge and fill, and wetlands, as well as other possible environmental concerns such as mangroves and "Outstanding Florida Waters" are often dependent on the site.

1102. Notwithstanding the site-specific matters, there are many major factors affecting the feasibility of desalination that are common for any such facility. Ultimately, the determination of whether to proceed with such a facility should be made on a regional (or larger) basis as part of an overall management and resource development plan and should not be imposed upon individual permit applicants.¹⁴⁶

1103. A thorough investigation of the potential for desalination to help alleviate the stress on groundwater supplies is certainly a laudatory goal that the District should encourage and pursue. However, the District's determination of whether to grant an application for the consumptive use of water from an existing resource must be based upon the statutory three-prong test. As discussed in the Conclusions of Law, this test in its current form does not authorize the imposition of a requirement on certain classes of applicants to incur significant and undefined expenses to evaluate the potential of desalination when there is no facility currently producing excess desalinated water and no such facility is even in the planning process.

1104. The District contends that "if all alternative conservation measures for reducing demand and/or obtaining alternative supplies, such as reuse, have been exhausted, the District believes that the public supply applicant must make a growth management decision. It is not the District's intent to compel applicants to utilize an alternative source, such as reuse or desalination, but the District believes that it cannot allocate additional water supplies from sources where the water is no longer available." See, District's proposed findings of fact No. 778, p. 291.

1105. When the demand for water from a particular resource, exceeds the safe yield of that resource, Chapter 373, F.S., provides some alternatives to a district. See e.g., Section 373.242, F.S. As discussed in the Conclusions of Law, the current regulatory framework established in Chapter 373 does not authorize classes of users or potential users to be singled out to bear the total cost of developing alternative sources.

I. Proposed BOR Section 3.1 ("REPORTING ALTERNATIVE SOURCE QUANTITIES WITHIN THE SWUCA")

1106. The SWUCA Rules include a proposed new sub-subsection which would be part of Section 3.1 of the Basis of Review and would require all permittees in the SWUCA that generate treated wastewater to submit an annual "Alternative Source Supplier Report." In addition, permittees who receive reclaimed water would be required to submit detailed reports to the District. The proposed provision states the requirements will be implemented by "attaching a permit condition to all applicable permits."

1107. This proposal is intended to provide the information necessary for the District to match suppliers of reclaimed water with demand. The District has actively tried to facilitate such coordination. It has developed maps which outline where wastewater treatment plants are located, how much wastewater is being generated and how much is available for reuse.

1108. This proposal is also intended to enable the District to obtain the information necessary to meet the reporting requirements of Section 373.250(6), F.S. This statute places responsibility on the water management districts to report and inventory the use of reclaimed water. In addition, the State Water Policy directs that reuse programs be established in water resource caution areas. See, Rule 62-40.401(5), F.A.C.

1109. Pinellas argues that Section 373.250, F.S., does not require the District to provide DEP with all of the specific details that would be required by the proposed SWUCA Rule. Pinellas claims some of the information required by the proposal is arcane and is expensive and burdensome to provide. Similar provisions have been in place since the inception of the ETB WUCA, NTB WUCA and HR WUCA with no apparent problems. The District can require from permittees the information necessary to prepare the legislatively mandated reports. Pinellas has not met its burden of showing how the proposed rule unreasonably or arbitrarily requires permittees to provide information that is not related to these reports. Under a WWTP operation permit, a utility is required to provide quarterly reports to DEP concerning its reuse system. While there may be some duplication in the information the District is requiring Pinellas has not established that the District's requirements are arbitrary or otherwise invalid.

1110. Pinellas also complains that the provisions are vague and/or overbroad because they refer to "stormwater" without defining this term. Pinellas speculates that the term could be broadly interpreted so that any WUP permittee who receives stormwater discharge onto its property from some upstream piece of property would have to monitor and report all amounts of stormwater received. However, if the rules are read in context, it is apparent that Pinellas' concerns are not warranted and they do not provide a basis for invalidating the proposal.

1111. Pinellas' remaining challenges to this provision are rejected. In particular, the contention that this provision conflicts with or contravenes Sections 373.250 and 403.064 is without merit. The nature and limitations of the District's duties under those statutes are discussed in Section VII G above.

NEXT SECTION