Title: WCRWSA v. SWFWMD DOAH Case No. 88-0693R/ Florida Phosphate Council's Petition for Leave to Intervene. Mar. 16, 1988. 6p.
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Title: WCRWSA v. SWFWMD DOAH Case No. 88-0693R/ Florida Phosphate Council's Petition for Leave to Intervene. Mar. 16, 1988. 6p.
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CERTIFICATE OF SERVICE

We hereby certify that a true copy of the foregoing

"Florida Phosphate Council's Petition for Leave to Intervene" has

been provided by United States Mail, postage prepaid, to Edward

P. de la Parte, Jr., de la Parte, Gilbert & Gramovot, P.A., 705

East Kennedy Boulevard, Tampa, Florida 33602-5011; to Carlyn Har-

per and Dan Fernandez, Southwest Florida Water Management

District, 2379 Broad Street, Brooksville, Florida 33512-8712; to

John T. Allen, Jr., P.A., 4508 Central Avenue, St. Petersburg,

Florida 33711; and to Bram D. E. Canter, Haben & Culpepper, P.A.,

306 North Monroe Street, Tallahassee, Florida 32301; all on this

16th day of March, 1988.







Lawrence E. Sellers, Jr.
HOLLAND & KNIGHT
Post Office Drawer 810
Tallahassee, Florida 32302
(904) 224-7000

185-243P3/15:194
















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9. One of the purposes of the Council as a trade asso-

ciation is to represent the interests of its members in regula-

tory and legislative matters. The interests which the Council

seeks to protect in these proceedings are germane to the

Council's purposes and are within the Council's general scope of

interest and activity. An order determining the validity of the

challenged 5-3-1 Rule is clearly appropriate relief for a trade

association to receive on behalf of its members.



Request for Relief

WHEREFORE, the Council respectfully requests that the

Hearing Officer enter an order granting it leave to intervene as

a party respondent, with all rights and privileges thereof.



Respectfully submitted,




Roger W. Sims
Julia Sullivan Waters
HOLLAND & KNIGHT
Post Office Drawer BW
Lakeland, Florida 33802
(813)682-1161

-- and --

Lawrence E. Sellers, Jr.
HOLLAND & KNIGHT
Post Office Drawer 810
Tallahassee, Florida 32302
(904) 224-7000

Attorneys for Florida
Phosphate Council, Inc.






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6. In deciding whether to issue or to renew these

permits, Respondent applies the challenged 5-3-1 Rule, as well as

the exception contained in Rule 40D-2.301(4). The Council's mem-

bers benefit from the 5-3-1 Rule (and the other specific provi-

sions in Rule 40D-2.301) because it provides objective numerical

guidelines for determining whether the applicable statutory

criteria have been met and whether the requested permits should

be issued. Absent these specific guidelines, there would be con-

siderable uncertainty as to how the statutory criteria should be

applied.


7. Respondent also applies the 5-3-1 Rule in determin-

ing whether to issue a consumptive use permit to a new user whose

use would interfere with existing legal uses, including the ex-

isting legal uses of the Council's members. For example, the

numerical guidelines in the 5-3-1 Rule have been applied in con-

sidering whether a consumptive use permit sought by Petitioner

would adversely affect existing legal uses of water by Gardinier,

Inc., a member of the Council. See Gardinier v. West Coast

Regional Water Supply Authority, DOAH Case No. 85-0602.


8. If Petitioner's challenge is successful and

Respondent's 5-3-1 Rule is declared invalid, then the objective

numerical guidelines provided by the rule will not be available

for use in determining whether permits should be issued or

denied. The substantial interests of a substantial number of the

members of the Council therefore will be affected by any decision

of the validity of the challenged rule.

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Rule 40D-2.301. The validity of certain of these regulatory

provisions already has been sustained in response to an adminis-

trative challenge brought by Petitioner and Intervenor. See West

Coast Regional Water Supply Authority v. Southwest Florida Water

Management District, DOAH Case No. 80-1004R [4 FALR 1858-A]

(August 8, 1980). Another of these provisions, Rule 40D-

2.301(4), authorizes Respondent to grant certain exceptions, in-

cluding exceptions to the 5-3-1 Rule, if it finds that it is con-

sistent with the public interest. Accordingly, the 5-3-1 Rule,

when applied in connection with the available exceptions, simply

is part of a rule that provides objective numerical guidelines to

be used in determining whether the applicable statutory criteria

have been met.


Facts Demonstrating that the Council's
Substantial Interests Will be Affected

5. The Council is a trade association of 11 member

companies engaged in the mining and processing of phosphate rock

and the manufacture of fertilizers and other phosphate-based

products. In carrying out their mining, processing and manufac-

turing activities, all of the Council's members use significant

quantities of water. These existing legal uses are authorized by

consumptive use permits issued by the Respondent. These permits

expire on specified dates, and a substantial number of the

Council's members will seek to renew these permits. From time to

time, Council members also apply for permits that authorize new

or modified uses of water.



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Identification of Challenged Rule

3. Petitioner West Coast Regional Water Supply
Authority has filed a Petition for Administrative Determination

of the Invalidity of Rules 40D-2.301(3)(b), (c) and (d)

(hereinafter "Petition"). By its Petition, Petitioner seeks an

administrative determination of the invalidity of paragraphs (b),

(c) and (d) of Subsection (3) of Rule 40D-2.301, Florida Adminis-

trative Code. This rule was promulgated by Respondent Southwest

Florida Water Management District, and the challenged paragraphs

are commonly known as the 5-3-1 Rule.


4. The challenged 5-3-1 Rule is but a part of the sev-

eral specific regulatory standards that Respondent has developed,

through rulemaking, interpreting and implementing the statutory

criteria for determining whether a consumptive use permit should

be granted. The statutory criteria are contained in Section

373.223, which provides as follows:


(1) To obtain a permit pursuant to the
provisions of this chapter, the applicant must
establish that the proposed use of water:

(a) Is a reasonable-beneficial use as
defined in s. 373.019(4);

(b) Will not interfere with any presently
existing legal use of water; and

(c) Is consistent with the public
interests.
Section 373.223(1), Florida Statutes (1987). The specific regu-

latory standards that interpret and implement these statutory

criteria are set forth in the 11 subsections and 22 paragraphs in



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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS

WEST COAST REGIONAL
WATER SUPPLY AUTHORITY,

Petitioner,
v. DOAH CASE NO. 88-0693R

SOUTHWEST FLORIDA WATER
MANAGEMENT DISTRICT,

Respondent.




FLORIDA PHOSPHATE COUNCIL'S
PETITION FOR LEAVE TO INTERVENE


The Florida Phosphate Council, Inc. ("Council"), pur-

suant to Section 120.56(5), Florida Statutes, and Rules 221-6.010

and 28-5.207, Florida Administrative Code, hereby moves for an

order granting it leave to intervene as a party respondent in

these proceedings. In support thereof, the Council states:



Identification of Parties
1. The name and address of the Petitioner and Respon-

dent are set forth in Petitioner's Petition. The name and ad-

dress of Intervenor Pinellas County are set forth in the Petition

of Pinellas County to Intervene.


2. The Council's address is Florida Phosphate Council,

Inc., 830 First Florida Bank Building, 215 South Monroe Street,

Tallahassee, Florida 32301.





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