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CHARLOTTE COUNTY v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
ORDERED AND CONCLUDED Based on the foregoing Findings of Fact and Conclusions of Law, it is concluded: I. Proposed SWUCA Rules The extensive scientific information developed by the District regarding the groundwater resources in the SWUCA have amply demonstrated the need for a consistent, basin-wide regulatory program. The District's proposed methodology for calculating minimum aquifer levels for this region is scientifically and statistically sound. The minimum levels selected by the District will not halt saltwater intrusion. Even if the levels are achieved, there will be continued movement of the saltwater interface for the next 50 years and beyond. As a result, there will be deteriorating water quality in many wells in coastal and other sensitive areas. Moreover, it is not clear that the minimum levels will protect wetlands in the SWUCA from adverse impacts due to groundwater withdrawals. Nonetheless, achievement of the proposed minimum levels would help to ensure that, on average, a seaward gradient of freshwater flow will be maintained within the Upper Floridan Aquifer System. While the evidence supports the District's scientific analysis of the water resource problems in the SWUCA, the District's proposed method of applying the minimum levels would grant existing users a priority that is not consistent with the current statutory framework. Similarly, the proposed reallocation program creates water rights that have not previously been recognized in Florida. Accordingly, the following provisions in the proposed SWUCA Rules are declared to be an invalid exercise of delegated authority: a. That portion of proposed Rule 40D-2.801(3)(b) that includes within the SWUCA the portion of Polk County lying south of Interstate 4 and north of the line between townships 29 and 30 South, referred to in this proceedings as the "Polk County Nub". b. That portion of proposed Rule 40D-8.628(1) that provides that current permitted quantities would not be considered in violation of the minimum level, even on renewal. c. Proposed Rule 40D-2.301(2). d. Proposed Rules 40D-2.331(3) and proposed BOR Section 1.15. e. Proposed BOR Section 4.3. f. That portion of proposed BOR Section 4.2.B.3.d(2) which automatically allows new groundwater withdrawals to replace existing surface water withdrawals. g. The proposed subsection to BOR Section 3.6 titled "Wholesale Customers within the SWUCA". h. That portion of the proposed subsection to BOR 3.1 titled "Alternative Sources within the SWUCA" which requires applicants to implement reuse where "economically", environmentally and technically feasible." i. That portion of proposed BOR Section 3.1 which requires an investigation of the feasibility of desalination. II. Existing Water Use Permitting Rules With respect to the District's existing water use permitting rules, most of the District's "conditions for issuance" of a water use permit are appropriate considerations in implementing the statutory three-prong test. However, by making each condition a separate basis for issuance of a permit while allowing certain matters to be mitigated "to the satisfaction of the District," the existing rule structure grants unbridled discretion to the District without any meaningful basis to review the exercise of that discretion. It is also concluded that the District's use of hydrologic presumptions is not adequately explained in the rules and there is an insufficient scientific basis for many of the presumptions as they are currently written. Many of the concepts incorporated in the presumptions can be useful tools in water use regulation. However, as currently written, the presumptions are unacceptable. Certain portions of the existing rules impermissibly seek to grant the District unbridled discretion to determine which user groups will be required to incur the cost of developing alternative water resources. Even if it is assumed that the District can make this selection, the current rules are unacceptably vague in delineating the factors that will be considered. Accordingly, the following provisions in the District's existing rules are declared to be an invalid exercise of delegated authority: a. Rules 40D-8.041(2), (3) and (4). b. The presumptions in BOR Section 4. c. That portion of Rule 40D-2.301(1) which requires an applicant to satisfy each subsection of the rule in order to obtain a water use permit. In addition, the requirement in subsection (j) of this rule that an applicant exhaust local resources before an application from a more remote source will be considered is inconsistent with Chapter 373. d. Rules 40D-2.381(3)(l) and (m) e. BOR Sections 4.7; 4.9; and 7.3.6.4. III. Non-Rule Policies Finally, it is concluded that the District's failure to adopt the Design Aids as a rule constitutes a violation of Section 120.535, F.S. (1993). DONE AND ORDERED this 26th day of March, 1997, in Tallahassee, Leon County, Florida. ___________________________________ J. STEPHEN MENTON Administrative Law Judge Filed with the Clerk of the
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