Title: WCRWSA and Pinellas County v. SWFWMD
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 Material Information
Title: WCRWSA and Pinellas County v. SWFWMD
Alternate Title: WCRWSA and Pinellas County v. SWFWMD, Case No. 88-0693R. Petition of Florida Citrus Mutual to Intervene.
Physical Description: 12p.
Language: English
Publication Date: May 14, 1988
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
General Note: Box 4, Folder 12A ( FIVE - THREE - ONE RULE ), Item 6
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00052299
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: Levin College of Law, University of Florida
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Full Text
STATE OF FLORIDA
1SION OF ADMINISTRATIVE F RINGS



WEST COAST REGIONAL WATER
SUPPLY AUTHORITY, )

Petitioner,

and

PINELLAS COUNTY,

Intervenor, ) CASE NO. 88-0693R

vs.

SOUTHWEST FLORIDA WATER
MANAGEMENT DISTRICT, )

Respondent. )



PETITION OF FLORIDA CITRUS MUTUAL TO INTERVENE


Intervenor, FLORIDA CITRUS MUTUAL, a voluntary

cooperative association representing 12,137 citrus grower

members, by and through its undersigned attorney and

pursuant to Sections 120.54(4)(d), 120.56(5), and 120.57,

Fla.Stat., and Florida Administrative Code Rules

221-6.004(3) and 221-6.010, petitions the Hearing Officer

for leave to intervene as a party Respondent in the

above-styled cause, and in support of the Petition to

Intervene, would state:



I. Identification of Parties and Notices



1. Petitioner, WEST COAST REGIONAL WATER SUPPLY

AUTHORITY, is a special district of the State of Florida








encompassing Pasco, lillsborough, and Pinellas Counties.

The Authority was created by interlocal agreement on October

25, 1974, pursuant to Sections 163.01 and 373.1962,

Fla.Stat. The Authority's Board of Directors is composed of

representatives .of Hillsborough County, Pinellas County,

Pasco County, the City of Tampa, and the City of St.

Petersburg. It is statutorily charged with the

responsibility for the design, construction, operation, and

maintenance of facilities in the locations and at the times

necessary to insure an adequate water supply will be

available to all persons residing within the Authority's

boundaries. See Section 373.1962(7), Fla.Stat. The

Authority presently operates wells and wellfields in Pasco

and Hillsborough Counties and holds consumptive use permits

for these facilities.

2. Respondent, SOUTHWEST FLORIDA WATER MANAGEMENT

DISTRICT, is a state agency created pursuant to Section

373.069, Fla.Stat., and charged with regulating consumptive

uses of water in sixteen counties located in Southwest

Florida, including all of Pinellas County, Pasco County and

Hillsborough County. See Section 373.219, Fla.Stat.

Pursuant to this statutory charge, Respondent has

implemented a permitting program which requires all persons

seeking to withdraw water in excess of an annual average

daily rate of 100,000 gallons and a maximum daily rate of

1,000,000 gallons to obtain a consumptive use permit from

the Southwest Florida Water Management District Governing


2







Board. The criteria applicable to these permits are

contained in Florida Administrative Code Rule 40D-2.301.

3. Intervenor-party Petitioner, PINELLAS COUNTY,

FLORIDA, is a political subdivision of the State of Florida,

which is charged with the responsibility of obtaining and
*a
supplying a potable water supply to its inhabitants of

several hundred thousand people. Pinellas County is within

the jurisdiction of the Respondent, SOUTHWEST FLORIDA WATER

MANAGEMENT DISTRICT. PINELLAS COUNTY is a co-applicant for

consumptive use permits now pending before the SOUTHWEST

FLORIDA WATER MANAGEMENT DISTRICT, with the other

co-applicants being the WEST COAST REGIONAL WATER SUPPLY

AUTHORITY, Petitioner here, and the City of St. Petersburg.

4. Intervenor, FLORIDA CITRUS MUTUAL, is a voluntary

cooperative association representing 12,137 citrus grower

members. FLORIDA CITRUS MUTUAL has a substantial number of

its members located within the jurisdiction of the

Respondent, SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT.

FLORIDA CITRUS MUTUAL growers in particular, comprise a

significant percentage of consumptive use permit applicants

before the SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT.

FLORIDA CITRUS MUTUAL has its headquarters at 302 South

Massachusetts Avenue, Lakeland, Florida 33801.

5. FLORIDA CITRUS MUTUAL has obtained notice that the

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) ("5-3-1 Rule"), in


3







this case pending before the Division of Administrative

Hearings. This notice was received at a meeting of

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT's Agriculture

Advisory Committee on February 19, 1988. FLORIDA CITRUS

MUTUAL supports Rules 40D-2.301(3)(b),(c), and (d) (the

5-3-1 Rule) of Respondent, SOUTHWEST FLORIDA WATER

MANAGEMENT DISTRICT, and thus petitions this court to uphold

the challenged rule as constituting a valid exercise of

delegated legislative authority.


II. Background



5. The SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

promulgated the 5-3-1 Rule on October 4, 1974, and it became

effective on January 1, 1975. The rules were originally

codified by the Department of State as Florida

Administrative Code Rules 16CB-2.11(4)(b),(c) and (d). The

rules were later renumbered as Florida Administrative Code

Rules 16J-2.11(4)(b),(c) and (d). The rules presently

appear in the Florida Administrative Code as

40D-2.301(3)(b),(c) and (d). From their inception, the

rules have remained unchanged.

7. The rulemaking authority identified for the 5-3-1

Rule are Sections 373.044, 373.113, 373.149 and 373.171,

Fla.Stat. The specific statutory provisions implemented by

the rule are Sections 373.219, 373.223 and 373.229,

Fla.Stat.


4








8. In 1979, the Petitioner, WEST COAST REGIONAL WATER

SUPPLY AUTHORITY and Intervenor, PINELLAS COUNTY challenged

a rule known as the water crop role. See, Pinellas County,

et al., v. Southwest Florida Water Management District, et

al., DOAH Case Nos. 79-2325 and 79-2393. As noted by

Petitioner in Paragraph 9 of its petition in the case sub

judice, the water crop rule was: held invalid. However,

Peitioner fails to note a companion challenge also filed by

Petitioner, WEST COAST REGIONAL WATER SUPPLY AUTHORITY, and

Intervenor, PINELLAS COUNTY, in 1980. See, West Coast

Regional Water Supply Authority, et al. v. Southwest Florida

Water Management District, DOAH Case No. 80-1004R. The two

subsections of proposed Rule 40D-2.301 which were challenged

read as follows:

"40D-2.301. Conditions for Issuance of Permits.

(6) Among other factors to be considered by the
Board in determining whether a particular use is
consistent with the public interest will be: the
maximum amount to be withdrawn on a single day;
the average amount to be withdrawn during a single
week, during a typical growing (or irrigation)
season, during an extreme cold season, during a
yeat of extreme drought and during the term of the
proposed permits the amount to be withdrawn in
relationship to amounts being withdrawn from
adjacent or nearby properties; the proximity of
withdrawal points to location of points of
withdrawal by others; the total amounts presently
permitted from the entire basis, or other
hydrologic unit; and the change in storage that
such withdrawal and use will cause.

(7) If the proposed consumptive use will average
less than 1,000 gallons per acre per day, in the
absence of evidence to the contrary, the Board
will presume that the quantity of water proposed
for consumptive use is consistent with the public
interest and the applicant will not be required to
submit further evidence on this point. If the

5








proposed consumptive use is to average 1,000
gallons or more per acre per day, the applicant
must establish that the proposed use of water in
such quantity is consistent with the public
interest."

The same hearing officer upheld the challenged rule as

constituting a valid exercise of delegated legislative

authority.

9. FLORIDA CITRUS MUTUAL notes that Petitioner, WEST

COAST REGIONAL WATER SUPPLY AUTHORITY, has pending formal

administrative proceedings with respect to its applications

to renew the consumptive use permits for the Cypress Creek

and Cross Bar Ranch Wellfields. See, West Coast Regional

Water Supply Authority, et al., v. Southwest Florida Water

Management District, et l._, Case Nos. 87-8664, 87-4645 and

87-4647. The final hearing on these cases have been

continued to a future date unknown. A third party to these

actions is Mr. Freeman Polk who lives in between both

wellfields. Petitioner, WEST COAST REGIONAL WATER SUPPLY

AUTHORITY, requested consumptive use permits for the two

facilities. They have been found to be in violation of

Florida Administrative Code Rule 40D-2.301(3)(b),(c), and

(d). A staff evaluation by Respondent, however, recommends

that these permits be issued via an exception to these rules

pursuaht to Florida Administrative Code Rule 40D-2.301(4),

Mr. Polk has objected to the proposed exceptions and their

resulting permits.


III. Facts Demonstrating Effects Upon
Intervenor's Substantial Interest

6








10. FLORIDA CITRUS MUTUAL has substantial interest in

having water resources available to its grower members for

the production of citrus. FLORIDA CITRUS MUTUAL members

actively participate in Respondent, SOUTHWEST FLORIDA WATER

MANAGEMENT-DISTRICT's Agricultural Advisory Committee. This

committee was established to foster better information

transfer between Respondent and agricultural consumptive use

applicants.

11. FLORIDA CITRUS MUTUAL is involved with the

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT on numerous

occasions concerning the water use activities of its grower

members. FLORIDA CITRUS MUTUAL's continued activity in this

crucial area of interest: to its grower members is pursued in

an on-going basis through its sponsoring support of the

Agriculture Irrigation Monitoring (AIM) project. This

program provides grower participants who voluntarily supply

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT with metered

results of consumptive water usage. These data are the

actual numbers for consumptive water use which can be

compared to the stated numbers enumerated in this 5-3-1 Rule

challenge.

12. The application of the challenged rule is

instrumental as part of Respondent, SOUTHWEST FLORIDA WATER

MANAGEMENT DISTRICT's review of consumptive use permits. In

balancing competing interests, Respondent is required to

have applicants in Section 373.223(1), Fla.Stat.:

"establish that the proposed use of water: (a) Is
a reasonable-beneficial use as defined in Section
373.019(4). .
7








Section 373.019(4), Fla.Stat. provides the following

definitions

"'Reasonable beneficial use' means the use of
water in such quantity as is necessary for
economic and efficient utilization for a purpose
and in a manner which is both reasonable and
consistent with the public interest."

The challenged.rule serves in the consumptive use permit

application process to assist Respondent balance the

competing interests of applicants to ensure that reasonable-

beneficial uses of permitted consumption are met. As stated

above, FLORIDA CITRUS MUTUAL members comprise a significant

number of permit applications under Respondent, SOUTHWEST

FLORIDA WATER MANAGEMENT DISTRICT's jurisdiction.

13. The competing -interests of consumptive use

applicants most be constantly considered by Respondent,

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, in its

consumptive use permitting process. As stated above, a

related pending formal administrative proceeding involves

Petitioner, WEST COAST REGIONAL WATER SUPPLY AUTHORITY, and

Mr. FREEMAN POLK, a property owner adjacent to the

wellfields whose interests are substantially affected by

Petitioner. In a situation similar to Mr. POLK is Mr. JOHN

D. COOK, a member of FLORIDA CITRUS MUTUAL. Mr. COOK is a

citrus' grove owner whose grove is located within the

jurisdiction of Petitioner, WEST COAST REGIONAL WATER SUPPLY

AUTHORITY, and Respondent, SOUTHWEST FLORIDA WATER

MANAGEMENT DISTRICT. Mr. COOK's substantial interest in

obtaining the water necessary for operation and maintenance


8







of his citrus grove is substantially affected by

Petitioner's placement of a wellfield on his property.

The removal of the challenged 5-3-1 Rule would significantly

affect Mr. COOK's substantial interest in the necessary

water for bjs grove operation. An Affidavit of Mr. JOHN D.

COOK is attached hereto as Exhibit A.

14. The undersigned has contacted counsel for the

Respondent and is authorized to represent that the

Respondent does not object to FLORIDA CITRUS MUTUAL's

intervention in this case.


IV, Disputed Issues of Material Fact and Law


15. FLORIDA CITRUS MUTUAL is a voluntary cooperative

association with a substantial number of its grower members

whose consumptive use permits for water are governed by

Respondent, SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT,

under Sections 373.219, 373.223, and 373.229, Fla.Stat. The

three part test for association standing to institute a rule

challenge stated in Florida Home Builders Association, et

al., v. Department of Labor and Employment Security, 412

So.2d 351 (Fla.1982) is perhaps best summarized in

Farmwotker Rights Organization, Inc. v. Department of Health

and Rehabilitative Services, Fla. App. 417 So.2d 753, 754

which states:
"[I]n Florida Home Builders, the Supreme Court of
Florida held that a trade or professional
association has standing to institute a rule
challenge under Section 120.56(1), Florida

9







Statutes (1979), even though it acted solely as
the representative of its members, provided the
following requirements are met:
(1) the association demonstrates that a
substantial number of its members, although not
necessarily a majority, are substantially affected
by the challenged rule;
(2) the subject matter of the challenged
rule is within the association's general scope of
interest and activity; and
(3) the relief requested is of a type
appropriate for a trade association to receive on
behalf of its members."

The court in Farmworker Rights Organization went on to hold

that there was no distinction between the standing

requirements for associations in Section 120.56(1) or

120.57(1) Fla.Stat. proceedings, even though no individual

member had been made a party to the petition in the case.

16. FLORIDA CITRUS :MUTUAL seeks to intervene as party

Respondent to WEST COAST REGIONAL WATER SUPPLY AUTHORITY's

Petition for Administrative Determination of the Invalidity

of Rules 40D-2.301(b),(c), and (d). Participation by

FLORIDA CITRUS MUTUAL in this rule challenge proceeding is

not limited to intervention only as a party petitioner. As

the First District Court of Appeals has written,

"[W]e conclude that $120.56(5) does not limit
participation in a rule challenge proceeding to
those parties seeking to intervene on behalf of
the petitioner." Florida Electric Power
Coordinating Group, Inc., et al., v. County of
Manatee, et al., Fla. App. 417 So.2d 752, 753.

37, A 5-3-1 Rule violation is not an absolute bar to

obtain a consumptive use permit from Respondent, SOUTHWEST

FLORIDA WATER MANAGEMENT DISTRICT. It is one factor weighed

by Respondent, and is subject to exception via Florida

Administrative Code Rule 40D-2.301(4). In effect, the


10







5-3-1 Rule as applied to the consumptive use permitting

process is similar to the Rule found in 40D-2.301(6) and

(7), Florida Administrative Code which has been previously

upheld as a valid exercise of delegated authority.

18. FLORIDA CITRUS MUTUAL is a "person" under Sections

120.52(13) and 1.01(3), Fla.Stat., whose substantial

interests will be affected by this court's determination of

the validity of the challenged rule.


V. Facts, Rules, and Statutes
Which Entitle Intervenor to Relief



19. FLORIDA CITRUS MUTUAL, for the reasons stated

above, is deeply involved with Respondent's, SOUTHWEST

FLORIDA WATER MANAGEMENT DISTRICT, consumptive use

permitting process. The 5-3-1 Rule is part of Respondent's

statutory duty under Section 373.036(e) to protect the water

resource through its consumptive use permitting process. It

is a valid rule to enable Respondent, SOUTHWEST FLORIDA

WATER MANAGEMENT DISTRICT, to assess properly applicants'

effect upon the finite resource which it is charged to

protect.



WHEREFORE, FLORIDA CITRUS MUTUAL, a voluntary

cooperative association, requests:

1. That it be allowed to participate in the

proceedings as a party Respondent-Intervenori and



11








2. That Rule 40D-2.301(3) (b), (c) and (d) be upheld as

constituting a valid exercise of delegated authority.


Respectfully submitted,



DAVID D, HENDERSON
Post Office Box 89
Lakeland, Florida 33802
813/682-1111

Attorney for Intervenor,
FLORIDA CITRUS MUTUAL



CERTIFICATE OF SERVICE



I HEREBY CERTIFY that a copy of the foregoing has been

furnished by regular U.S. Mail to EDWARD P. de la PARTE,

JR., Esquire, 705 East Kennedy Boulevard, Tampa, Florida

33602, Attorney for Petitioner, West Coast Regional Water

Supply Authority; BRAM CANTER, Esquire, 306 North Monroe

Street, Tallahassee, Florida 32301 and CARLYN HARPER,

Esquire, Assistant General Counsel, Attorneys for

Respondent, Southwest Florida Water Management District,

2379 Broad Street, Brooksville, Florida 33512-8712; JOHN T.

ALLEN,' JR., Esquire, Attorney for Intervenor, Pinellas

County, 4508 Central Avenue, St. Petersburg, Florida 33711;

this the 14th day of March, 1988.



AVID D. HENDERSON

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