CHARLOTTE COUNTY v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

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F. Interference With Existing Legal Withdrawals - Rule 40D-2.301(1)(i) and BOR Section 4.8

1. Generally

887. Rule 40D-2.301(1)(i) requires permit applicants to provide reasonable assurances that the proposed water use "will not adversely impact an existing legal withdrawal." This rule reiterates the "no interference" standard set forth in the statute. Specifically, Section 373.223(1)(b) of the three-prong test requires that an applicant demonstrate that its proposed water use "will not interfere with any presently existing legal use of water." While there are some minor wording differences between the Rule and the statute -- e.g., Rule 40D-2.301(1)(i) omits the word "presently" which appears in the statute -- no persuasive evidence or argument was presented that these variations have any significance. The District interprets and applies the rule and the statute the same way.

888. The rule was adopted as part of the 1989 Rule Revisions which included corresponding Section 4.8 of the Basis of Review.

889. Section 4.8 of the Basis of Review describes the process for evaluating the impact of water withdrawals on existing legal withdrawals of water. This provision includes a performance standard prohibiting withdrawals that, "together with other withdrawals would cause an unmitigated adverse impact to a legal water withdrawal existing at the time of the permit application." This section also includes the following presumptions:

890. An "affected well" in the first presumption is a well completed into the Floridan Aquifer or some other confined aquifer. An "affected well" in the second presumption is a well completed into the water table. In both instances, the District presumes that an adverse impact will not occur if the proposed water withdrawal does not lower the relevant surface by more than the presumptive threshold at an affected well.

891. The District applies the "affected well" presumptions found in BOR 4.8 to all production wells completed into the confined aquifer and the surficial aquifer regardless of type, construction, or location of the well. An "affected well" for purposes of BOR Section 4.8 includes both permitted wells under the District's water use permitting rules and domestic wells which are exempt from the District's water use permitting rules. The District says the BOR Section 4.8 presumptions are intended to protect the ability of existing legal users to continue to withdraw groundwater in the presence of a new or modified water withdrawal. The goal of the presumptions was to provide some guideline measure of the water level that must be maintained in the affected well so that it can operate efficiently. Although it is not specifically stated in the rules or the BOR, the District applies the BOR Section 4.8 presumptions only on an individual basis, not a cumulative basis. The actual impact to an existing legal use of water will be a function of the cumulative effects of groundwater withdrawals. As discussed below, the presumptions in BOR Section 4.8 attempt to indirectly address cumulative impact.

892. ECOSWF complains that the rules do not recognize interference when an existing legal user's pump will not work properly because of water quality degradation. The District admits that the challenged provisions were not intended and have not been applied to address adverse water quality impacts. Water quality degradation can cause interference with an existing legal use. As written, the District's presumptions could lead to a conclusion that there is no interference even when there is water quality degradation.

893. There is no standard approach for measuring the impact that a proposed use has on existing legal uses.¹¹⁸

894. It is not clear from the language of the rule whether, upon renewal of a permit, a permittee has to satisfy the BOR Section 4.8 presumptions with respect to wells that came into existence subsequent to the initial WUP. In practice, the District does not apply the rule and/or provisions to protect any uses that began subsequent to the date the initial permit was issued to an applicant. Thus, for permit renewals, the date of the original permit is utilized in applying the non-interference prong of the three-prong test and the presumptions in BOR Section 4.8.¹¹⁹ If renewal was not requested before the expiration date of the permit, the original permit lapses for all purposes. If the quantity has increased or the location of withdrawal has been modified, those changes are evaluated with respect to interference with legal uses that came into existence before the changes.

895. Under the District's interpretation, the original permitted quantity for uses that pre-dated the permitting program are considered existing legal uses with respect to all subsequently issued permits.¹²⁰ In other words, because converted common law uses pre-date uses that were subsequently permitted, the District does not believe it is necessary to evaluate the impact of the converted common-law uses on subsequent permittees with respect to the original permitted quantity. Because the rules do not clearly delineate or explain these applications, they are confusing, ambiguous and unacceptably vague. The legal issues related to the District's interpretation and application of these provisions are addressed in the Conclusions of Law.

2. Development of the Presumptions

896. The 1989 Rules Revision Committee created the performance standards and the presumptions found in BOR Section 4.8. The technical basis for the presumptions is set forth in a March 7, 1989, memorandum by Mr. Andy Smith. His analysis focused on the level of drawdowns that would impact the functioning of a well. The guidelines were designed with the goal of keeping the water level in the well at a sufficient distance above the pump so that it could operate efficiently. The five-foot presumption applies to wells that withdraw from a confined aquifer which require a submersible pump. The two-foot drawdown presumption is applied to wells that withdraw from the water table aquifer where centrifugal pumps are typically used.

897. Submersible pumps push the water up and are more efficient than centrifugal pumps, which pull the water up and are limited to a maximum depth of from 20 to 25 feet. Submersible pumps can operate until the water level drops to the level of the pump, but the efficiency decreases as the head over the pump decreases. Manufacturers generally recommended 20 feet of head above a submersible pump in order for it to operate at maximum efficiency. Centrifugal pump manufacturers generally recommend a minimum of five feet of submergence below the pumping level.

898. In developing the presumptions, Mr. Smith recognized that a pump in the Floridan Aquifer should be set at a depth that takes into account the historic seasonal fluctuation of the potentiometric surface, the drawdown that will be caused by the well withdrawals itself, the necessary submergence of the pump to properly operate within the well, and an appropriate reserve to account for unexpected fluctuations or the drawdown caused by other users in the well's surrounding area. A properly installed well accounts for these factors by allowing for twenty feet of head above the well. Similarly, Mr. Smith assumed that water table or surficial aquifer wells typically have eight feet of allowable drawdown.

899. In his analysis, Mr. Smith assumed as a worst case scenario four (4) permits surrounding the affected well. So long as the permits were roughly equidistant from each other and from the affected well and none of the four permits had more than five feet of drawdown impact on a well in the confined aquifers or two feet of drawdown impact on a well in the surficial aquifer, Mr. Smith concluded that the wells would not be adversely impacted. This conclusion does not take into account regional cumulative impacts. Moreover, in the real world it is unlikely that surrounding wells would actually be configured as precisely as assumed by Mr. Smith.

900. The actual drawdown impact to an affected well is a function of the sum of all the drawdowns from surrounding wells, as well as the affected well's drawdown. The inherent variability of pumpage distributions, hydrology, and hydrogeology within the District makes the selection of a single conclusive threshold for interference with or adverse impact to an affected well impossible.

901. Generally, only a very large withdrawal would have more than five feet of potentiometric surface drawdown outside the property boundary. A five foot potentiometric surface drawdown without any other influences would not be expected to cause damage to a properly constructed well necessitating modification or remedial work. However, there is no hydrological or scientific basis for concluding that less than a 5 foot potentiometric surface drawdown from a withdrawal will never adversely impact a neighboring well especially in an area where there are many demands on the resource. Similarly, a two foot water table drawdown at an affected well without any other influence would not be expected to adversely impact a well, especially if it is properly designed and constructed. However, there is no scientific or hydrologic basis for concluding that such a drawdown will never affect a nearby well.

902. The District's contention that the presumptions are used only as screening mechanisms is not consistent with the language of the presumptions. As written, the presumptions conclude that there is no impact if the modeled drawdowns do not exceed the thresholds. While the District says the presumptions can be overcome by site-specific information, they effectively shift the burden of proof from the applicant.

903. When an applicant is unable to demonstrate that its proposed withdrawal will not lower the potentiometric surface at an affected well by more than five feet and/or will not lower the water table at an affected well by more than two feet, the District will still approve a WUP if the applicant can obtain approval from the owner of the "affected well." In other words, if the owner of an "affected well" agrees in writing to the applicant's withdrawal, the District will not apply the Section 4.8 presumptions to protect the owner's affected well. Essentially, the District considers the adverse impact in such a case to have been mitigated. This policy is not specifically set forth in the District's rules. It is not clear what happens if the current owner sells his property since there is no requirement for a covenant that runs with the land. It is also not clear how this policy will be applied upon renewal. For example, if an applicant gets approval from the affected well owner and obtains a WUP, it is not clear whether or not the applicant would have to again satisfy the BOR Section 4.8 presumptions with respect to the affected well on renewal.

3. Mitigation of Impacts to Existing Legal Uses - Rule 40D-2.381(3)(I)

904. The District has adopted provisions in Rule 40D-2.381, F.A.C., regarding the mitigation of impacts to existing users.

905. Subsection (1) of Rule 40D-2.381(3) provides:

906. Rule 40D-2.381(3)(l) sets forth a standard permit condition requiring a permittee to mitigate to the "satisfaction of the District" any adverse impacts to existing legal users caused by water withdrawals. This is an unacceptably vague standard for assessing mitigation because it grants the District unbridled discretion without any meaningful basis of review.

907. This standard permit condition is placed in every WUP without any clarification as to how the District will determine when a legal use is protected or how this provision will be applied upon the renewal of existing uses. As noted above, the District interprets Rule 40D-2.301(l)(i) so that existing uses that predate the advent of water use permitting do not have to demonstrate upon renewal of their WUP that the use will not interfere with other existing uses. Nonetheless, the District places the standard permit condition in Rule 40D-2.381(3)(1) on the WUP issued to those existing users which ostensibly would require them to mitigate adverse impacts to other existing users. Even if it is assumed that the District's interpretation of how this requirement should be applied upon renewal is legally sound, the rules do not adequately describe this application. Thus, the standard permit condition is potentially very confusing.

G. Utilization of Local Resources - Rule 40D-2.301(1)(j), F.A.C.

908. Rule 40D-2.301(l)(j) requires permit applicants to provide reasonable assurances that the proposed water use "will utilize local water resources to the greatest extent practicable."

909. The 1989 Rules Revision Committee developed this provision and the corresponding provision of the Basis of Review, Section 4.9, which provides, in pertinent part, as follows:

910. Essentially, these provisions authorize the District to deny a WUP application from a "non-local source" unless the applicant demonstrates that development of local water resources is not feasible. The rules do not contain a definition of what constitutes a "local water resource." There is no commonly accepted definition or set of standards for judging or determining what constitutes a local as opposed to a non-local water resource. Under these provisions, the District makes the final determination of what constitutes a local water source and whether an applicant has the technical and financial ability to develop a more local source and/or to transport water for the intended use.

911. The District interprets the term "local water resource" for individual or non-utility applicants to mean the water resources overlying or underlying the applicant's property. For a utility or public supply applicant, the District considers a "local water resource" to include those sources of water located within the entity's service area or political boundary, whichever is greater. For a regional water supply authority, it would include the combined geographic or jurisdictional boundaries of the members. Property that is owned by a governmental entity or authority outside those boundaries would not be included. The District also contemplates that agricultural uses could form cooperatives and be treated similarly to water supply authorities and public supply utilities.

912. A critical issue in applying these provisions is determining when a local water resource has been utilized "to the greatest extent practicable." According to the District, "to the greatest extent practicable" within Rule 40D-2.301(1)(j), F.A.C., is explicated by BOR Section 4.9, which sets forth some considerations of "feasibility." The District says that in this context "feasible" and "practicable" should be viewed as synonymous terms.

913. The District argues that the "local resources" provision of Rule 40D-2.301(1)(j), F.A.C., does not prohibit the utilization of a public supply source that is outside the service area or political boundary of a public supply authority, provided all resources between the point of supply and the point of demand have been utilized. The District says it will consider and evaluate the cost and environmental impacts associated with the development of a proposed remote water use. The District claims that these and similar factors can be determined only on a site-specific basis and, consequently, cannot be spelled out in a rule.

914. Pinellas claims that these provisions improperly elevate the use of local resources over the use of regional resources. Pinellas also contends that they deny public water supply users access to the highest quality water available in contravention of Section 403.851, F.S., and improperly allow the District to dictate the sources of water that an applicant must utilize. These issues are discussed in the Conclusions of Law.

915. The District claims its criteria are consistent with the State Water Policy and argues that the reference to the use of "local and regional surface and groundwater supplies" in Rule 62-40.301(1)(f), F.A.C., indicates that the District should look at different scales of proximity within the District before going outside the District.

916. These local source provisions are intended to help prevent one political entity from usurping or depleting the water resources located in another political entity's boundaries which might be needed for future growth. The District says the goal is not just to protect the growth potential of more distant counties, but also to have the local source developed by the local users.

917. The District asserts that "demand management is facilitated by requiring that local resources be fully utilized and itemized before resources that are at a greater distance can be utilized. It is necessary to consider the sources that are available to the applicant in determining whether a proposed use is reasonable and beneficial...One of the purposes of this provision is to avoid a situation where public utilities were going long distances for water in a haphazard fashion when closer supplies are available." District's Proposed Findings of Fact No. 647, pp. 244-245.

918. As discussed in the Conclusions of Law, Chapter 373 provides for consideration of local concerns in water supply determinations; however, the statute does not make local concerns an overriding factor.

919. While local availability may be a consideration for issuing a WUP under Chapter 373, and the District can appropriately request reasonable information from an applicant in this regard, this statute recognizes that the public interest may transcend local concerns. The District's rules impermissibly raise local concerns to a determinative factor in the WUP process. Moreover, the rules as written vest the District with unbridled discretion to make a final determination of whether water exists or can be developed at the local level without any meaningful standards to review that determination.

920. Pinellas has also alleged that these provisions could be applied so as to require more concentrated development in certain areas and cause degradation of a resource. In view of the conclusions reached herein, that issue is moot. It is noted, however, that Subsection 1 of BOR Section 4.9 provides that in determining the feasibility of using local resources "impacts to the water resources and associated environmental resources of the local versus remote area of withdrawal" should be considered. The District says this provision obviates Pinellas' concern that the local resources criterion would be applied so as to require more concentrated development in certain areas and cause degradation of a water resource. In the event that unanticipated adverse impacts were to occur, the District says it would rely upon the standard permit conditions which authorize mitigation, modification or revocation of the permit.

H. Augmentation - BOR Section 4.12.2 and BOR Section 7.3.4

921. Augmentation is the use of one source of water to supplement another source. Pinellas has challenged certain portions of the Basis of Review that apply to augmentation, including BOR Section 4.12.2 which provides, in pertinent part:

922. Pinellas has also challenged existing Section 7.3.4 of the Basis of Review, which is applicable in the NTB WUCA. Section 7.3.4 of the Basis of Review generally describes the process for evaluating a consumptive use of water that augments one source of water with another source within the NTB WUCA, (e.g., using groundwater to supplement surface water levels of lakes, ponds and wetlands). This rule sets forth criteria for permitting augmentation uses and establishes a category of unpermittable augmentation uses.

923. BOR 7.3.4 provides in pertinent part:

924. No persuasive evidence or arguments were presented to establish that BOR Section 4.12.2 and/or the NTB WUCA provision BOR Section 7.3.4 are an invalid exercise of delegated authority. To the contrary, they are reasonable interpretations of the reasonable-beneficial use and/or public interest prongs of the statutory three prong test.

925. Pinellas' contention that these provisions improperly modify existing uses in contravention of Section 373.239, F.S., is addressed in Section VIII A and the Conclusions of Law below.

I. Miscellaneous Provisions

1. BOR Section 1.6 - Application Review Process

926. Under BOR Section 1.6, once a WUP application is deemed complete by the District, the District must issue or deny the permit within 90 days. This provision provides that "[t]ypically, permits authorizing withdrawals [of less than] 500,000 GPD will be issued or denied within 60 days."

927. Pinellas' contention that this provision is invalid because the rules do not include any standards for determining what constitutes an "atypical" situation is rejected.

2. BOR Section 6.2 Special Permit Conditions

928. In BOR Section 6.2, the District sets forth special permit conditions that may be added to the standard permit conditions imposed on WUPs if the District deems them necessary.

929. Pinellas has objected to Special Condition No. 9 in BOR Section 6.2 which provides:

930. The discussion of this condition in Section 6.2 provides:

931. Pinellas has objected to the use of a twelve month running average for reporting purposes. No persuasive evidence or arguments were presented to establish that this provision is an invalid exercise of delegated authority.

932. The use of a twelve month running average for monitoring compliance with annual average quantities can provide an early warning that permitted quantities are being exceeded rather than having to wait until completion of an annual reporting period in order to make this determination. Use of a running average takes into account the transient nature of the water resource and fluctuations in both hydrologic systems and withdrawals over time.

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