CHARLOTTE COUNTY v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

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C. Miscellaneous Provisions

1. Inducement of Pollution - Rule 40D-2.301(1)(g) and BOR Section 4.6

837. Under Rule 40D-2.301(1)(g), F.A.C., an applicant must provide reasonable assurances that its proposed use of water, on an individual and cumulative basis, will not cause pollution of the aquifer.

838. BOR Section 4.6 corresponds to Rule 40D-2.301(1)(g) and provides:

839. These provisions are intended to help prevent a water withdrawal in the vicinity of a contaminant plume from spreading the contamination. Pinellas has alleged that BOR Section 4.6 arbitrarily and capriciously prohibits the beneficial use of an aquifer rather than punishing the upgradient polluter for contaminating the aquifer. This contention ignores the District's responsibility to protect the water resources. Irrespective of any remedies that could or should be sought against a polluter, there is a need to ensure that the issuance of a WUP in the area of contamination does not exacerbate the spreading of the contaminant plume through the aquifer. Contrary to Pinellas' contention, these provisions are a reasonable implementation of the three-prong test and there is adequate delineation of the factors the District will consider in applying the provisions

2. Catch-all Provisions - Rule 40D-2.301(1)(n) and BOR Section 4.13

840. Under Rule 40D-2.301(1)(n), F.A.C., an applicant must provide reasonable assurances on an individual and cumulative basis that its proposed use of water "will not be otherwise harmful to the water resources within the District."

841. BOR Section 4.13 is the corresponding section to Rule 40D-2.301(1)(n) and provides as follows:

842. These provisions are intended to provide the District with some flexibility to deal with unforeseen and/or new or changed conditions. Pinellas challenges these provisions because they do not include any standards for determining what constitutes a withdrawal which is otherwise harmful to the water resources. Pinellas claims the provisions are vague and vest the District with unbridled discretion. However, these provisions simply allow the District to exercise discretion to protect the water resources in circumstances that were not specifically contemplated or addressed in the rules. The District is not precluded from adopting such a catch-all provision that allows for the exercise of professional discretion. The District's exercise of this discretion would have to comport with the applicable statutory and case authorities on the development of incipient policy.

843. As noted by the District, under the rule ejusdem genres this type of a "catch-all provision is limited in scope to items of a like kind to those that were previously enumerated." See e.g., Mayo v. City of Sarasota, 503 So.2d 347, 348 (Fla. 2d DCA 1987).

3. Monitoring Requirements - BOR Section 5.0

844. Section 5.0 of the Basis of Review provides:

845. Pinellas has challenged this provision alleging the District's rules do not contain any specific standards or criteria for determining what will or will not be considered to be "unmitigated adverse impacts on the water resources and existing legal users." Pinellas also complains that there is no specification as to when or what types of mitigation will be required. Finally, Pinellas objects because the District's rules do not specify how and/or which existing legal uses of water are protected. These claims are not persuasive. Section 373.219, F.S., provides that the District "may impose such reasonable conditions as are necessary to assume that such use is consistent with the overall objectives of the district...."

4. Environmental Monitoring Criteria - BOR Section 5.8

846. Section 5.8 of the BOR provides, in pertinent part, as follows:

847. Pinellas argues that this provision should be invalidated because the District's rules do not include any standards for determining when "significant adverse impacts" occur. Pinellas contends that BOR Section 5.8 provides the District with unbridled discretion to determine what type(s) of environmental monitoring will be required without any specific standards or criteria. These contentions are not persuasive. See, Section 373.219, F.S.

5. MIA Saltwater Intrusion - Rule 40D-2.301(1)(f) and BOR Section 4.5

848. Rule 40D-2.301(1)(f) provides that an applicant must provide reasonable assurances on an individual and cumulative basis that its proposed water use will not significantly induce saline water intrusion.

849. BOR Section 4.5 is the corresponding section of the Basis of Review and provides:

850. Section 4.5.1 of the BOR sets forth performance standards relating to whether or not a proposed use of water will cause saline water intrusion. This provision generally describes the process for evaluating the impact of water withdrawals on salt water intrusion. It also establishes a performance standard prohibiting withdrawals which cause "significant salt water intrusion". Significant salt water intrusion is defined to include, any amount of movement of the saline water interface to a greater distance inland or toward a potable withdrawal than has historically occurred as a consequence of seasonal fluctuations.

851. Section BOR 4.5.2 contains a presumption relating to the impact of proposed withdrawals of new quantities of water in the Most Impacted Area ("MIA") of the ETB WUCA. This provision establishes a presumption that withdrawals of new quantities of groundwater from confined aquifers outside the MIA of the ETB WUCA that cause a potentionmetric surface drawdown of 0.2 feet or greater within the MIA will significantly induce saline water intrusion.

852. The MIA boundary encompasses the coastal area where the greatest drawdown in the potentiometric surface has been observed with a corresponding trend of increasingly deteriorating water quality. Furthermore, the MIA is projected to be the area of greatest potential for movement of the salt water interface.

853. The issuance of new permits within the MIA has been limited since the ETB WUCA rules went into effect in 1989. The presumption in BOR Section 4.5.2 was added in 1993 to limit the impact of withdrawals outside the MIA from extending into the MIA. The District felt that such withdrawals might exacerbate the saltwater intrusion problems in this area. The District sought to provide some protection against further reductions in the potentiometric surface in this area while a regulatory scheme addressing cumulative impacts (the SWUCA Rules) was being developed. This presumption was viewed as an interim step until the long-term regulatory strategy was in place.

854. The District wanted an impact threshold for the boundary of the MIA that could be applied through the use of a site-specific model. While the District did not specifically rely on the ETB WRAP in developing the 0.2 foot presumption in BOR Section 4.5.2, the District's on-going work confirmed its perceptions as to the nature and cause of the problems.

855. The District says it did not have an appropriate modeling program to consider on a cumulative basis the effect of permitting applicants whose withdrawals individually were less than two tenths of a foot. The District's decision to utilize an interim regulatory strategy premised upon the use of modeled water table drawdowns for individual withdrawals was not unreasonable in view of the information available to the District regarding the nature and extent of the problems in the MIA¹¹⁴ and the limits of the various modeling tools available at the time. As discussed in Section IV K, the SWUCA Rules would delete this presumption.

856. Pinellas has challenged the presumption as part of its case against the existing rules. ECOSWF has challenged the SWUCA Rules proposed repeal of the presumption. By its own terms, the presumption remains in effect during the pendency of the challenges to the SWUCA Rules challenges and until "final disposition of the proposed rule by the Governing Board." Since it is unclear when final disposition will occur, the suggestion that the challenges to this provision are moot is rejected.

857. The District applies the saline water intrusion presumption by modeling the potentiometric surface drawdown from the proposed withdrawal. If the modeling projects the drawdown to be less than two-tenths of one foot in the MIA, the presumption is deemed to be met. Unless an applicant meets the presumption, the District staff recommends denial of the WUP application. No applicant has ever successfully rebutted the presumption in BOR Section 4.5.2. If the District's modeling indicates the presumption will be exceeded, the District says an applicant could rebut the presumption by developing site-specific information for input into an acceptable model to show that the potentiometric surface would not be lowered by 0.2 feet at the MIA boundary or by use of a solute transport model to show that significant salt water intrusion will not occur. The presumption cannot be satisfied through monitoring or mitigation.

858. Pinellas objects because the District does not have any guidelines, rules, or standards either in the Basis of Review or the Water Use Design Aids regarding the types of groundwater flow or solute transport modeling that would be appropriate to use in demonstrating compliance with the saline water intrusion presumption found in BOR Section 4.5.2. This objection is not well taken. The District deliberately did not specify how the modeling was to be done because it wanted some flexibility to accommodate and utilize rapidly changing technology.

859. The District selected the 0.2 foot potentiometric surface drawdown threshold in BOR Section 4.5.2 in part because of its experience with modeling done in connection with the Verna Wellfield¹¹⁵ permit proceeding. As part of the modeling work done in that case, the District determined that, due to the limitations of computer modeling, any smaller number would be unworkable. Pinellas claims that, because saltwater intrusion was not an issue in the Verna Wellfield proceeding, the District's reliance upon the modeling work in that case to develop a saltwater intrusion presumption for the MIA was inappropriate. Pinellas' contention that this presumption should be invalidated because it was developed from the work on the Verna Wellfield case misperceives how that work was used and is rejected. The results of the Verna Wellfield modeling were only utilized for the general concept of establishing a boundary around an area of regulatory concern and then applying a computer modeled drawdown criterion at the boundary. The 0.2 foot threshold was selected because of the limitations from a computer modeling standpoint.

860. The District says that because its computer model is set up to produce output in one-tenth foot increments, the criterion was stated as 0.2 foot or greater rather than more than 0.1 foot. Anything below this level was considered to have insignificant impact. Pinellas suggested that the District's process for rounding off numbers to the nearest tenth was inconsistent with the MOD FLOW Code and/or was arbitrary. The greater weight of the evidence does not support this claim.

861. BOR Section 4.5.2 does not include a cumulative analysis of a proposed withdrawal with other withdrawals in the area. An individual permittee's requests over time can be aggregated to determine whether that permittee's requested quantities have exceeded the threshold impact on the MIA, but there is no protection from a cumulative perspective that the District's Condition of Issuance regarding saltwater intrusion will be met. Even after the results of the ETB WRAP and Supplemental Investigations were available, the District continued to approve permit applications falling below the threshold of this presumption.

D. Use of the Lowest Quality Water - Rule 40D-2.301(1)(e) and BOR Section 4.4

862. Rule 40D-2.301(1)(e) requires a permit applicant to provide reasonable assurances that its proposed water use "will utilize the lowest water quality the applicant has the ability to use."

863. The 1989 Rules Revision Committee developed BOR Section 4.4 to correspond to Rule 40D-2.301(1)(e).

864. Section 4.4 of the Basis of Review provides, in pertinent part:

865. These provisions address the quality of the raw water that is being pumped. The nature of the intended use of the water determines the need for treatment and the degree of treatment. Finished or treated water is regulated by DEP and under the purview of federal standards for water quality.

866. Pinellas claims that these provisions exceed the District's grant of rulemaking authority by authorizing the District to dictate the source of water that a water use permit applicant must utilize. Pinellas also claims these provisions conflict with and contravene Section 403.851, F.S., by requiring public water suppliers to use the lowest quality of water they have the ability to treat instead of the highest quality of water available for potable supply.

867. Whether a water user is using the lowest quality of water available is an appropriate consideration in applying the reasonable-beneficial use concept and/or determining the public interest, especially when water resources are limited.

868. In determining the lowest quality water available, the District says, many site-specific considerations come into play, including the potential sources, the types of uses for the water, how the water could be treated, and the related economics. As a result, the District claims it would be unworkable to fashion a rule listing every possible circumstance in advance. According to the District these considerations are "dynamic and subject to change, such that rigid criteria would be unworkable and unrealistic from a regulatory permitting perspective."

869. The District's rules do not contain any criteria or standards to use in determining whether lower quality of water is available. This term can and should be accorded its common meaning. BOR Section 4.4 provides that the District can consider the technical and economic feasibility for the applicant to use a lower water quality source. The testimony at the hearing indicated that the District views this provision as authority to decide which applicant has the ability to treat and use a lower quality of water than proposed. If applied in this manner, Rule 40D-2.301(1)(e) and BOR Section 4.4 could have the effect of reserving higher quality sources of water for those users with limited financial ability to treat lower quality sources. This interpretation is not clear from the face of the provision. As written, the rule and BOR Section 4.4 only apply to lower quality water sources that are available.

870. The District has no written or unwritten rules, guidelines, or standards that establish the criteria the District would use to determine whether or not it is technically or financially feasible for an applicant to treat and use a lower quality of water.

871. Problems arise if the provisions are applied so that the District unilaterally determines who must develop alternative sources. Whether an applicant has the financial or technical ability to utilize a lower quality source of water is potentially a matter of great controversy. For example, the Gulf of Mexico, which is not usable for potable water without construction of a extremely expensive desalination plant, could be considered within a utility applicant's ability to treat.

872. While some large users such as public supply providers have more financial resources that could be tapped to treat water than most small users, Chapter 373 does not recognize this factor as important, much less conclusive, in allocating scarce freshwater supplies which are by law considered a public resource.

873. Rule 40D-2.301(1)(e) and BOR Section 4.4 can and should be applied only to readily available sources of lower quality water. If the provisions are applied as suggested by some of the testimony, the District has unbridled discretion to determine whether an applicant has the ability to use a lower quality of water. The District could make its own assessment of an applicant's financial and technical capabilities, without any limitations on the factors that would be considered and without any standards or basis to review the District's decision. As discussed in the Conclusions of Law, Chapter 373 does not authorize the District to use the WUP process to shift the burden of developing alternative sources onto any particular class of water users. Even if it is assumed that the District can consider the financial and technical feasibility of developing alternative sources, the District must at least delineate the factors that would be considered and/or balanced in reaching its determination, or else the rules would be unacceptably vague. However, the existing provisions can be applied in a manner consistent with Chapter 373, thus, they need not be invalidated.

E. Impacts to Off-site Land Uses

1. Rule 40D-2.301(1)(h) and BOR Section 4.7

874. Rule 40D-2.301(1)(h) requires a permit applicant to provide reasonable assurances that the proposed water use "will not adversely impact offsite land uses existing at the time of the application."

875. The 1989 Rules Revision Committee developed BOR Section 4.7 to correspond to Rule 40D-2.301(1)(h).

Section 4.7 of the Basis of Review provides:

876. Rule 40D-2.301(1)(h), and BOR Section 4.7 are intended to protect land uses that are not necessarily dependent upon the withdrawal of water, but might be adversely affected by excessive withdrawals from adjoining lands. Contrary to Pinellas' suggestion, these provisions were not intended to nor can they reasonably be interpreted to address adverse impacts upon adjoining land uses which are not causally related to the water withdrawal.¹¹⁶

877. Similarity, Pinellas' contention that these provisions impermissibly involve the District in land use decisions which may be totally unrelated to protection of the water resource is rejected. Contrary to Pinellas' contention, these provisions do not allow the District to regulate land uses.¹¹⁷

878. Pinellas complains because the District does not have any written definitions or standards in its rules or the BOR to define the terms "adverse impact" or "off-site land uses". The District interprets the term "off-site" to mean property that is not owned or controlled by the water use applicant and not included within the property subject to the permit. For example, this provision would be used to address a groundwater withdrawal that is expected to cause sinkholes capable of damaging a domestic residence located off-site of the groundwater withdrawal. This is a reasonable interpretation of a common term that is not unduly vague. BOR Section 4.7 does not attempt to identify all the types of land uses that might fall within its purview because there are too many possibilities and there will necessarily be site-specific considerations that must be taken into account.

879. There are some uncertainties and ambiguities in determining when a land use comes into existence for purposes of these provisions. Pinellas claims, for example, that it is not clear whether a land use will be protected under these provision if only permit or zoning approval has been obtained from a local government or whether actual activity on the land must have begun. This issue is unlikely to arise except in very limited and unique circumstances and is not, by itself, a basis for invalidating the provision. A rule of general applicability cannot be specific enough to address all such circumstances. Some issues can appropriately be addressed on a case-by-case basis. A more fundamental problem, however, is the lack of clarity as to how this rule is to be applied upon renewal of a permit.

880. Rule 40D-2.301(1)(h) states that the proposed use of water must not adversely impact offsite land uses "existing at the time of the application." Section 4.7 of the Basis of Review indicates that the proposed use of water must not adversely impact off-site land uses that were in existence at the time the initial WUP was approved or at the time of modification of a WUP. Thus, there is arguably an ambiguity between Rule 40D-2.301(1)(h) and Section 4.7 as to whether offsite land uses are protected from the time of the pending application or from the time of the initial issuance of a WUP to permittee (or modification of that permit).

881. At the hearing and in its posthearing submittals, the District took the position that an offsite land use must come into existence prior to the approval of the "initial application" in order to be protected under these provisions. The District says impacts that surface after permit issuance would be addressed through Standard Permit Condition No. 13 in BOR Section 6.1, which could be used to require mitigation, minimization, or avoidance. In other words, a land use that comes into existence subsequent to the initial water withdrawal may be protected during the course of a permit under the mitigation rules, but would not be protected when a use is renewed. This rather confusing scenario highlights some of the ambiguities and confusion surrounding these provisions.

2. Rule 40D-2.381(3)(m) (mitigate environmental impacts and off-site land uses)

882. Rule 40D-2.381, F.A.C., lists the District's standard permit conditions. Rule 40D-2.381(3)(m) provides:

883. Pursuant to Rule 40D-2.381(3)(m) and BOR Section 6.1(13), the District places a standard condition on all WUPs requiring that the permittee mitigate "to the satisfaction of the District" any adverse impact to environmental features or offsite land uses as a result of the withdrawals. This is an unacceptably vague standard for determining what impacts must be mitigated and/or for determining what mitigation is satisfactory. Under Rule 40D-2.381(3)(m) as currently written the District has unbridled discretion without any meaningful basis for review.

884. The District's conditions for issuance of a WUP set forth in Rule 40D-2.301 do not specifically provide that an applicant can obtain a WUP by mitigating the adverse impacts resulting from the withdrawal. Only by reading Rule 40D-2.301 in conjunction with Rule 40D-2.381 and certain portions of the BOR including the introductory language of Section 4.0 and the language of the presumptions for 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.

885. Pinellas claims that Rule 40D-2.381(3)(m) improperly allows the District to require mitigation during the term of a WUP without regard to when the land use came into existence in contravention of Rule 40D-2.301(1)(h), which requires avoidance of impacts only to offsite land uses existing at the time of the WUP application. These provisions are somewhat confusing, and potentially inconsistent. If the District intends to protect all offsite land uses during the term of a permit, it is not clear why such impacts are not considered before a permit is issued and/or upon renewal.

886. Chapter 373 does not prohibit the District from imposing reasonable conditions upon issuance of a permit and/or requiring mitigation during the course of a permit. See, Section VIII A below regarding modification of a permit. While flexibility is necessary to deal with site-specific considerations, the District must provide reasonable notice as to the factors that will be considered in determining the need for and sufficiency of mitigation. These legal issues are discussed in more detail in the Conclusions of Law.

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