CHARLOTTE COUNTY v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

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VI. Challenges to Conditions of Issuance and Basis of Review

 A. Existing Rules and Basis of Review - General Issues

590. As discussed in more detail in Section III above and in the Conclusions of Law below, the Florida Water Resources Act of 1972 directs the water management districts to issue permits for the consumptive use of water based on the three-prong test set forth in Section 373.223, F.S.

591. The District's rules regarding water use permitting are set forth in Chapter 40D-2, F.A.C. Rule 40D-2.301(1), F.A.C., sets forth the "Conditions For Issuance Of Permits." Fourteen such conditions are listed in subsections a-n. While individual conditions are not specifically correlated to the criteria of the three-prong test, the Conditions for Issuance are intended to be the implementation of that three-prong test.

592. Rule 40D-2.301(1) provides that an applicant for a water use permit "must demonstrate that the water use is reasonable and beneficial, is in the public interest, and will not interfere with any existing legal use of water, by providing reasonable assurances, on both an individual and a cumulative basis," that the water use complies with each of the fourteen subsections.

593. The District's Basis of Review, which is incorporated by reference in Rule 40D-2.091, F.A.C., "provides guidelines for determining whether a water use meets the conditions for issuance set forth in Rule 40D-2.301." See, Section 4.0 of the BOR, p. B-4.

594. The District generally categorizes the Conditions for Issuance in Rule 40D-2.301(1) as either "demand-related" or "impact-related". The impact-related conditions have corresponding sections in the BOR. Those BOR sections generally provide performance standards and presumptions that are used by the District to evaluate WUP applications and determine if the Conditions for Issuance have been met.

595. If a WUP applicant satisfies the presumptions for a particular impact-related criteria, such as those relating to adverse environmental impacts to wetlands, lakes, and streams, then the applicant is considered to have met the related performance standards and the corresponding condition in Rule 40D-2.301(1), unless there is site specific information that dictates a contrary result.

596. Several of the Conditions for Issuance and presumptions have been challenged in these proceedings and are discussed in detail below. There have also been several general challenges raised to the District's existing permitting program. Many of these general challenges involve legal issues which are addressed in the Conclusions of Law. The following Findings of Fact are pertinent to the general challenges.

1. Consistency with State Water Policy and Requirement to Meet Each Condition Individually

597. Some Petitioners have alleged that Rule 40D-2.301(1) and Chapter 4 of the Basis of Review are inconsistent with the State Water Policy. See, Rule 62-40.110, F.A.C. (which requires that district rules be consistent with State Water Policy). As discussed in the Conclusions of Law, this proceeding is not the proper forum to resolve disputes over the consistency of the rules with State Water Policy. See, Section 373.114(1)(a), F.S. However, the manner in which the District applies the Conditions for Issuance is an appropriate matter to be considered in this case. In this regard, some portions of the State Water Policy are pertinent.

598. Rule 62-40.401 of the State Water Policy sets forth seventeen criteria to be considered in determining whether a proposed water use is reasonable-beneficial. Rule 40D-2.301(1) closely tracks the criteria from the State Water Policy and there are no apparent conflicts in the factors listed. However, unlike the State Water Policy, which simply indicates that each of the factors is to be taken into account in determining whether a use is reasonable-beneficial, the District's rule purports to require each of the criteria to be met on an individual and cumulative basis. Many of the criteria are defined only in broad terms that necessarily require the exercise of professional and/or scientific judgment and, in some cases, a balancing of competing policy choices. There is no provision that specifically allows the nature and/or history of the use to be considered in determining the degree of impact that would be acceptable. The rules allow certain of the conditions to be mitigated "to the satisfaction of the District," but there is no delineation of the factors that would be considered. As discussed in the Conclusions of Law, this regulatory scheme grants unbridled discretion to the District without any meaningful basis for review of the exercise of that discretion.

2. Cumulative Impact

599. Pinellas argues Rule 40D-2.301(1) unlawfully enlarges, modifies and contravenes Sections 373.223, 373.226 and 373.233, F.S., by requiring applicants to demonstrate compliance with the permitting criteria on a "cumulative" basis. The legal issues related to this challenge are discussed in the Conclusions of Law. It should be noted that, while the introductory language to Rule 40D-2.301 indicates that an applicant must demonstrate compliance with all the listed criteria on both an individual and cumulative basis, as a practical matter only subsections (b), (c), (d), (f), (g), (h), (i), and (n) of Rule 40D-2.301(1) can be applied cumulatively.

3. Two-Prong vs. Three-Prong Test

600. Pinellas contends that Chapter 373 provides a different test for determining whether to renew a permit for a use that predated the adoption of the permitting program. This contention is rejected for the reasons set forth in the Conclusions of Law.

601. While the District does not recognize the present viability of the "two-prong" test advocated by Pinellas, the District does apply the three-prong test differently to WUP applications seeking to renew "existing" water uses. Upon renewal, an applicant is deemed to automatically satisfy the third-prong relating to interference with existing uses of water with respect to any uses that commenced subsequent to the use under review. This assumption is not clear from the face of the permitting rules or the BOR. For most of the Conditions for Issuance, a withdrawal is evaluated based upon its impact irrespective of the date of origination of the withdrawal. Thus, if a wetland is impacted by a number of withdrawals from the surrounding area, the contribution of each withdrawal is considered separately based on its magnitude rather than the date or origination of the withdrawal. This issue is discussed in Section VI F below and in the Conclusions of Law.

602. Pinellas also claims that many of the District's rules impermissibly add permitting criteria that are not specified in either the Section 373.223 three-prong test and/or the Section 373.233 two-prong test. This issue is also discussed in the Conclusions of Law.

4. Incorporation by Reference

603. The Basis of Review is incorporated by reference into the Florida Administrative Code by Rule 40D-2.091, which states:

604. Some of the Petitioners have alleged that the District's incorporation by reference of the Basis of Review conflicts with and contravenes Section 120.54(7), F.S.

605. Section 120.54(7), F.S., provides:

606. None of the chapters, sections or subsections of the BOR contains any references or citations to particular sections of the Florida Statutes or to the Laws of Florida being implemented or interpreted, nor are there any additional citations to rulemaking authority other than in Rule 40D-2.091.

607. The statutory authority cited in Rule 40D-2.091 does not contain all of the relevant statutory authority for the requirements imposed by the BOR. However, as discussed in more detail in the Conclusions of Law, the statutory authorities that are cited in Rule 40D-2.091 (Sections 373.044 and 373.113) grant the District broad authority to implement a comprehensive permitting program. Considering the scope of the cited provisions, the contention that the Basis of Review should be invalidated solely on the technical ground that individual citations are not included for each separate provision is rejected.

608. Section 120.54(8), F.S., provides:

609. The District acknowledges that it cannot change the Basis of Review without amending Rule 40D-2.091 so that it correctly references an existing document. With respect to the proposed changes to the Basis of Review included in the SWUCA Rules, the District has proposed an amendment to Rule 40D-2.091 to incorporate by reference a revised Basis of Review. This procedure comports with the applicable rulemaking procedures and provides adequate notice to interested parties.

610. Contrary to the contention of some Petitioners, there is no prohibition on an agency incorporating by reference a document or publication prepared by that agency.

5. Use of General Terms

611. Many of the District's regulatory provisions utilize general terms such as "significant adverse impact," "adversely impact the water resources," "adverse environmental impact," and "unacceptable environmental impact" in delineating the types of impacts to environmental features, other existing legal users, and the water resources of the state, which the permitting program seeks to guard against. See e.g., Rules 40D-2.301(1)(b), (c), (h), and (i); 40D-2.341(2)(e); and 40D-2.381(3)(1) and (m), F.A.C.; and BOR Sections 4.0, 4.2 and 4.8.

612. Some Petitioners contend that the use of such terms is unacceptably vague and vests the District with unbridled discretion because there are no objective criteria or standards for interpreting and/or applying the terms which are used as standards for evaluating a WUP application.

613. Whether or not an adverse impact will occur is essentially a scientific determination. Adverse impacts include both de minimis impacts and unacceptable impacts. De minimis impacts are so minimal as to be insignificant.⁹² What is "significant" or "acceptable or unacceptable" are value judgments. For example, an "unacceptable environmental impact" could range from any impact that can be perceived or measured to a large scale impact. Some significant impacts may be acceptable because of the needs of the applicant and/or the public interest. Thus, the value judgments in water use regulation include application of scientific principles and techniques, but ultimately the judgments require a balancing of societal needs with the extent of the impact and the feature(s) involved.

614. The District's rules leave it to the discretion of individual permit reviewers and/or scientists at the District to interpret what constitutes an adverse, significant, or unacceptable impact. The District emphasizes that the staff's scientific decision about adverse impacts can be overruled by the District Governing Board's evaluation. Pinellas notes that this approach raises potential problems with consistency in the interpretation of the terms. While a rule can allow for the exercise of professional discretion and still pass muster under Chapter 120, the rules must provide adequate principles or guidance for the exercise of the discretion.

615. It is impractical to adopt by rule a quantitative approach to delineate what constitutes an "unacceptable adverse impact" for every particular feature because of the numerous site-specific factors involved. For example, a multitude of species inhabits lakes and wetlands within the District, each with its own environmental requirements. It would be impossible to develop a level of de minimis impact for each species that could be applied to the varying hydroperiods of every lake and wetland. Moreover, it is often difficult, if not impossible, to differentiate between the impacts caused by groundwater withdrawals and the impacts that are due to other causes such as land development, ditching and drainage alterations. Thus, the rules must be flexible enough to be applied on a site-specific basis. However, the rules should set forth, at least generally, the factors that will be considered and they cannot serve to insulate the District's decisions from meaningful review.

616. In some instances, the performance standards in the Basis of Review provide objective standards for applying the general terms of the rule. These performance standards provide a useful delineation of the factors that should be considered in determining whether an impact is significant. However, in many instances the application of the performance standards is complicated by corresponding provisions in the BOR that set forth presumptions which are utilized in applying the performance standards. The District claims that the performance standards are the ultimate determining factor in deciding if there is unacceptable adverse impact, but the evidence indicates that in many instances the presumptions are in fact conclusive.

617. The performance standards seek to delineate what changes will be considered unacceptable adverse impacts for certain specified criteria. The District claims that an impact that would exceed a performance standard in a quantifiable sense is considered an unacceptable impact. It appears, however, that in some instances such an impact will be allowed and/or can be mitigated at the District's discretion, but there are no standards against which the exercise of the discretion can be measured.

6. Use of Presumptions

618. As part of the 1989 Rule Revisions, the District included in the Basis of Review hydrologic presumptions relating to wetlands, lakes, streams, and affected wells, which serve as a threshold between acceptable and unacceptable impacts. The District's inclusion of presumptions in the Basis of Review for certain impact-related criteria has been challenged both generally and specifically. The legal issues surrounding the use of presumptions are discussed in the Conclusions of Law. The scientific underpinnings for certain of the challenged presumptions in the Basis of Review are explored below in the context of the corresponding Condition for Issuance. The following general findings (Nos. 619-620) are made.

619. The manner of application, the effect and the meaning of the presumptions are not clearly set forth in the District's rules. Indeed, the testimony indicates that there are different categories of presumptions within the District's rules and that some of the presumptions do not work in the same manner as others. For example, while some are "screening" or "guideline" presumptions, other presumptions are apparently used more in the nature of a "pass/fail" mechanism. However, there is no specific distinction within the District's rules as to which are "screening" or "guideline" presumptions, "pass/fail" presumptions, "evidentiary" or "non-evidentiary" presumptions, or "rebuttable" or "non-rebuttable" presumptions.

620. The burden of proof placed upon a permit applicant, a third-party challenger or the District can be greatly affected depending on how the presumptions are applied. The evidence indicates some confusion and uncertainty amongst staff as to the role of the presumptions, especially when a withdrawal falls below a presumptive threshold. It is not clear whether the burden of proof, which normally and properly rests with a permit applicant, shifts to the District to produce evidence that a presumption is not applicable if a withdrawal is under the threshold. Moreover, there is no guidance as to how the presumptions may be rebutted.

7. Regulation Without Minimum Flows and Levels

621. Pinellas claims that much of the District's existing permitting program is invalid because the District is improperly attempting to regulate the effect of water withdrawals on "wetlands, lakes, streams, estuaries, fish and wildlife or other natural resources" without first establishing minimum flows and levels pursuant to Section 373.042 and/or without reserving quantities of water for environmental and resource protection pursuant to Section 373.223(3). As discussed in more detail in the Conclusions of Law, while the establishment of minimum flows and levels is very important, the District is authorized and, indeed, obligated to regulate water use in the public interest even when such levels have not been adopted.

8. Modification of Existing Uses

622. Pinellas also contends that the District is improperly applying some of its existing rules, including Rule 40D-2.301(1)(e) and BOR Section 4.4, to require existing users to abandon long-standing uses without proof that the uses are detrimental to other users or the water resources of the state as required by Section 373.171(3), F.S. Petitioners have not met their burden of proof on this issue. No clear evidence was presented that the provisions are applied in this manner. In any event, as discussed in the Conclusions of Law, Pinellas' interpretation of Section 373.171(3) is overly broad.

9. Mitigation

623. The Conditions for Issuance in Rule 40D-2.301 do not specifically provide that an applicant can obtain a WUP by mitigating the adverse impacts resulting from a withdrawal. Only by reading Rule 40D-2.381 in conjunction with the introductory language in BOR Section 4.0, BOR Section 4.7 and/or the presumptions in BOR Section 4.8 is this possibility revealed. While this somewhat cumbersome approach might be acceptable if the rules provided an applicant with reasonable notice of the standards or criteria that would be used in assessing a mitigation scheme, the existing rules do not. These issues are discussed in more detail in Sections VI B-G below regarding the specific conditions and in the Conclusions of Law.

10. Property Boundaries

624. Pinellas claims that some aspects of the District's existing rules are invalid because they require information about the applicant's property boundary to be used as the demarcation between off-site and on-site impacts. Essentially, Pinellas contends that these provisions elevate property boundaries and land ownership to a level prohibited by Chapter 373. In this regard, Pinellas points out that the more property owned by an applicant, the more likely it is that an applicant can demonstrate compliance with certain of the standards. According to Pinellas, such a result is contrary to the holding in the 5-3-1 Case. Pinellas also cites to Section 373.2235, F. S., to support its argument. That statute provides as follows:

625. Pinellas' attempt to read this statute as a blanket prohibition against any regulation whose impact may vary depending on the amount of property owned is fallacious. While the application of some provisions may vary somewhat depending on the amount of property owned by an applicant, and it might be easier for an applicant with more property to demonstrate compliance with some rules, such a result is not automatically contrary to Chapter 373 and/or the holding in the 5-3-1 case.

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