Title: Petition for Administrative Determination of the Invalidity of Rules
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 Material Information
Title: Petition for Administrative Determination of the Invalidity of Rules
Alternate Title: WCRWSA v. SWFWMD. Petition for Administrative Determination of the Invalidity of Rules 40D-2.301 (3) (b), ( c ), and (d).
Physical Description: 22p.
Language: English
Publication Date: Feb. 15, 1988
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
General Note: Box 4, Folder 12A ( FIVE - THREE - ONE RULE ), Item 9
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00052302
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS


WEST COAST REGIONAL WATER )
SUPPLY AUTHORITY, )
)
Petitioner, ) CASE NO.
)
vs. )
)
SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT, )
)
Respondent )



PETITION FOR ADMINISTRATIVE DETERMINATION OF THE
INVALIDITY OF RULES 40D-2.301(3)(b), (c) and (d)

Petitioner, WEST COAST REGIONAL WATER SUPPLY AUTHORITY

("Authority"), by and through its undersigned attorneys and

pursuant to Section 120.56, Florida Statutes, and Florida

Administrative Code Rule 221-6.04, petitions the Division of

Administrative Hearings to invalidate rules [Fla. Admin. Code

Rules 40D-2.301(3)(b), (c) & (d)] promulgated by Respondent,

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT ("SWFWMD"), as an

invalid exercise of delegated legislative authority, and in

support would state:



I. Identification of Parties, Files and the Rules
Challenged Herein

1. Petitioner is a special district of the State of Florida

encompassing Pasco, Hillsborough and Pinellas Counties. The

Authority was created by interlocal agreement on October 25, 1974

pursuant to Sections 163.01 and 373.1962, Florida Statutes. 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 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

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. The address of the

Authority's principal office is 2535 Landmark Drive, Suite 211,

Clearwater, Florida 34621.

2. Respondent is a state agency created pursuant to Section

373.069, Florida Statutes, and charged with regulating

consumptive uses of water in sixteen (16) counties located in

Southwest Florida, including all of Pinellas, Pasco and

Hillsborough Counties. See 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 SWFWMD Governing Board. The criteria

applicable to these permits are contained in Florida

Administrative Code Rule 40D-2.301. The address of SWFWMD's

principal office is 2379 Broad Street, Brooksville, Florida

33512-9712.



2











3. This petition challenges the validity of SWFWMD Rules

40D-2.301(3)(b), (c) and (d). This rule is known as the 5-3-1

Rule, and reads as follows:

"(3) The withdrawal of water:



(b) Must not cause the level of the
potentiometric surface under lands not owned, leased or
otherwise controlled by the applicant to be lowered by
more than five feet (5').

(c) Must not cause the level of the water table
under lands not owned, leased or otherwise controlled
by the applicant to be lowered by more than three feet
(3').

(d) Must not cause the level of the surface of
water in any lake or other impoundment to be lowered by
more than one foot (1') unless the lake or impoundment
is wholly owned, leased or otherwise controlled by the
applicant."

4. The Authority is unaware of the names and identification

numbers of any files maintained by SWFWMD with respect to the

above-referenced rules. However, the Authority was able to

obtain copies of transcripts, rule drafts, minutes, tapes, and

correspondence dealing with these rules from the Processing and

Records Division of the Resource Regulation Department.



II. Background

5. SWFWMD 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). A copy

of the original rule is attached hereto as Exhibit A. The rules

3











were later renumbered as Florida Administrative Code Rules 16J-

2.11(4)(b), (c) and (d). A copy of these rules are attached

hereto as Exhibit B. 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.

6. The rulemaking authority identified for the 5-3-1 Rule

are Sections 373.044, 373.113, 373.149 and 373.171, Florida

Statutes. The specific statutory provisions implemented by the

rule are Sections 373.219, 373.223 and 373.229, Florida Statutes.

7. The 5-3-1 Rule had its genesis in a report prepared by

the United States Geological Survey titled, "General Hydrology of

the Middle Gulf Area, Florida" ("Mid-Gulf Report"), a copy of

which is attached hereto as Exhibit C. The report contains

general hydrologic information concerning the entire Middle Gulf

area of Florida, which includes parts of Hillsborough, Citrus and

Pasco Counties and all of Pinellas County. The report finds that

during the period of study, the annual fluctuation in the

potentiometric surface of the Floridan Aquifer and the water

table amounted to approximately five feet and three feet,

respectively. SWFWMD used this fluctuation to establish the five

foot and three foot limits contained in the rules at issue

herein, essence, SWFWMD determined applicants for consumptive

uses would only be allowed to double the annual fluctuations of

the Floridan Aquifer and water table at the boundary of their

property. The one foot limit on impacts to lakes and other

impoundments located on property not owned, leased or otherwise

4











controlled by the permit applicant was developed on the basis of

the three foot fluctuation in the water table.

8. In 1976, the Joint Administrative Procedures Committee

objected to the 5-3-1 Rule on the grounds the rule exceeds

SWFWMD's statutory authority, is not reasonably related to the

ends specified by the Legislature for Chapter 373, Florida

Statutes, and conflicts with the statutory criteria for a

consumptive use permit. SWFWMD declined to revoke or modify the

rule in response to the Committee's objection.

9. In 1979, the Authority and Pinellas County challenged a

companion rule known as the water crop rule. See Pinellas

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

al., DOAH Case Nos. 79-2325 and 79-2393 (Final Order entered

April 9, 1980).1 Like the 5-3-1 Rule, the water crop rule had

its origin in the Mid-Gulf Study and had received 'a similar

objection from the Joint Administrative Procedures Committee.

The water crop rule was invalidated by the hearing officer

assigned to the case.2 A copy of the Final Order is attached

hereto as Exhibit D.





1The hearing officer assigned to this case was Diane D.
Tremor.

2The Final Order was appealed by the Southwest Florida Water
Management District to the Second District Court of Appeal. See
Southwest Florida Water ManaQement District, et al. v. Pinellas
County, et al., Case Nos. 80-800, 80-801, 80-803, 80-804, 80-828,
and 80-829. The appeal was dismissed by the court on October 3,
1980 on the basis of the appellants' voluntary dismissal.

5











10. No other water management district in Florida has

promulgated a rule or requires compliance with a rule similar to

the 5-3-1 Rule.

11. If the 5-3-1 Rule is invalidated, there are still

adequate statutory and rule criteria for evaluating consumptive

use permit applications.



III. Facts Showing Petitioner will be Substantially
Affected

12. The Authority currently operates the Cypress Creek

Wellfield, the Cross Bar Ranch Wellfield, the Starkey Wellfield,

the Section 21 Wellfield, the Cosme-Odessa Wellfield, the

Northwest Hillsborough Regional Wellfield and the South Central

Hillsborough Regional Wellfield. The oldest (Cosme-Odessa

Wellfield) of these facilities was constructed in the 1930's and

the newest (South Central Hillsborough Regional Wellfield)

facility is still only partially completed.3 These installations

consist of approximately 193 production wells located in Pasco

and Hillsborough Counties. The water produced from these

facilities is used to supply the public water supply needs of

approximately one million persons residing within the Authority's

boundaries.



3The Cosme-Odessa Wellfield was constructed in the 1930's,
the Section 21 Wellfield was constructed in the 1960's, the
Cypress Creek Wellfield was constructed in 1975-77, the Cross Bar
Ranch Wellfield was constructed 1978-80, the Starkey Wellfield
was constructed in 1982-83, the Northwest Hillsborough Wellfield
was constructed in 1984-86 and construction was commenced on the
South Central Hillsborough Regional Wellfield in 1986.

6











13. These seven wellfields supply over half of the public

water supply needs of the Pinellas County and City of St.

Petersburg water systems and nearly all of the public water

supply needs of the Hillsborough County and Pasco County water

systems.

14. The Authority currently holds individual consumptive

use permits issued by SWFWMD for each of these facilities.4

These permits authorize the Authority to produce water from these

facilities at a combined average annual daily rate of 127.2

million gallons and at a combined maximum daily rate of 209

million gallons.

15. In the past, SWFWMD has determined the permitted

production capacity of each of these facilities exceeds the five

foot potentiometric surface limit specified in Florida

Administrative Code Rule 40D-2.301(3) (b). SWFWMD has also

determined several of these facilities exceed the three foot

water table limit and the one foot surface of water limit

specified in Florida Administrative Code Rules 40D-2.301(3)(c)

and (d). Despite these apparent violations of the 5-3-1 Rule,

SWFWMD has issued consumptive use permits for the Authority's







4Consumptive Use Permits were first issued to the Cosme-
Odessa and Section 21 Wellfields in 1976, the Cypress Creek and
Cross Bar Ranch Wellfields in 1978, the Starkey Wellfield in
1979, the Northwest Hillsborough Regional Wellfield in 1984 and
the South Central Hillsborough Regional Wellfield in 1986.
7











facilities.5 In issuing these permits, SWFWMD has relied on

Florida Administrative Code Rule 40D-2.301(4), which authorizes

the Governing Board to grant exceptions to the 5-3-1 Rule

"...when after consideration of all data presented, including

economic information, it finds it is consistent with the public

interest."

16. The consumptive use permits for four (Cypress Creek,

Cross Bar Ranch, Starkey and Northwest Hillsborough Regional

Wellfields) out of seven of the Authority's wellfields are up for

renewal. The consumptive use permit for the other three (Section

21, Cosme-Odessa and South Central Hillsborough Regional

Wellfields) will expire in 1992. The Authority has no assurance

that upon renewal the SWFWMD Governing Board will grant new

exceptions to the 5-3-1 Rule. Without an exception to the 5-3-1

Rule, SWFWMD could decline to issue consumptive use permits for

the Authority's facilities.

17. The Authority is currently involved in a formal

administrative proceeding 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,





5SWFWMD has issued at least three consumptive use permits
each for the Cosme-Odessa, Section 21 and Cypress Creek
Wellfields, two consumptive use permits each for the Starkey and
Cross Bar Ranch Wellfields and one consumptive use permit each
for the Northwest Hillsborough Regional and South Central
Hillsborough Regional Wellfields.

8











et al., Case Nos. 87-8644, 87-4645 and 87-4647.6 The SWFWMD

Proposed Agency Action and Staff Evaluation of these two permit

applications finds the production capacity of these two

facilities violate Florida Administrative Code Rules 40D-

2.301(3)(b), (c) and (d). The Staff Evaluation recommends the

Governing Board grant the Authority an exception to these rules

pursuant to Florida Administrative Code Rules 40D-2.301(4).

However, the third party, Mr. Freeman Polk, contends the

Authority should be denied both the exception and permits. If

Mr. Polk's view prevails before the hearing officer and the

Governing Board, the Authority's permit applications could be

denied on the basis of the 5-3-1 Rule.

18. The denial of consumptive use permits for these seven

wellfields on the basis of the 5-3-1 Rule will result in the

Authority being prohibited from producing water for the benefit

of all citizens residing within its boundaries. See 373.219,

Fla. Stat., and Fla. Admin. Code Rule 40D-2.041. This would

prevent the Authority from fulfilling its statutory obligations

under Section 373.1962(7) and would deprive those persons being

served by the Hillsborough County and Pasco County water systems

of all their water and those persons being served by the Pinellas

County and the City of St. Petersburg water systems of over half

of their water. Such action would leave approximately one




6The hearing officer assigned to this case is Donald Conn
and a final hearing has been set to start on March 21, 1988.
9











million persons residing in the Tampa Bay area without a public

water supply.

19. The Authority is substantially affected by the 5-3-1

Rule and is authorized to seek an administrative determination of

its invalidity pursuant to Section 120.56, Florida Statutes.



IV. Grounds for the Invalid Exercise of Delegated
Legislative Authority

A. Introduction

20. Section 120.56, Florida Statutes, authorizes the

Division of Administrative Hearings to invalidate rules

constituting an invalid exercise of delegated legislative

authority. This term is defined as action which goes beyond the

powers, functions, and duties delegated by the Legislature in the

following fashion:

(a) The agency has materially failed to follow
the applicable rulemaking procedures set
forth in s. 120.54;

(b) The agency has exceeded its grant of
rulemaking authority, citation to which is
required by s. 120.54(7);

(c) The rule enlarges, modifies, or contravenes
the specific provisions of law implemented,
citation to which is required by s.
120.54(7);

(d) The rule is vague, fails to establish
adequate standards for agency decisions, or
vests unbridled discretion in the agency; or

(e) The rule is arbitrary and capricious.

See 120.52(8), Fla. Stat.



10











21. The 5-3-1 Rule is an invalid exercise of delegated

legislative authority under Section 120.52(8) (b), (c), (d) and

(e), Florida Statutes. Petitioner does not challenge the fact

the rules were adopted substantially in accordance with Section

120.54, Florida Statutes.



B. The 5-3-1 Rule is Arbitrary ad Capricious

22. Under Florida Law, a capricious action is one which is

taken without thought or reason or irrationally. An arbitrary

decision is one not supported by facts or logic, or despotic.

See Agrico Chemical Company v. Department of Environmental

Regulation, 365 So.2d 759 (Fla. 1st DCA 1978).

23. The 5-3-1 Rule is arbitrary and capricious because

there is absolutely no scientific evidence to support the

specific numbers contained in the rule. There are no

demonstrable harmful effects that will occur when these limits

are exceeded. In fact, SWFWMD frequently issues permits for uses

which substantially exceed one or more of these limits.

24. The 5-3-1 Rule is based on potentiometric surface and

water table fluctuation information contained in the Mid-Gulf

Study. The rule in essence permits users to double the annual

fluctuation in the potentiometric surface and water table

recorded by the United States Geological Service, the Florida

Department of Natural Resources and SWFWMD during the 1950's and

1960's in wells located in the study area. However, the study

area was limited to parts of Citrus, Pasco and Hillsborough

11











Counties and all of Pinellas County. See Exhibit C at 7-9.7

This area only covers a small segment of the sixteen county area

within SWFWMD jurisdiction. There was no information at the time

the rule was promulgated on the annual fluctuation in the

potentiometric surface and water table in those areas of SWFWMD

not encompassed by the Mid-Gulf Study. Additionally, the geology

of those areas not included in the study, especially the southern

third of SWFWMD, is significantly different from the geology of

the Middle Gulf area. Therefore, the 5-3-1 Rule is arbitrary and

capricious because it applies district-wide, while the

information used to justify its promulgation is limited to only a

small segment of SWFWMD.

25. The 5-3-1 Rule is also arbitrary and capricious because

there is no scientifically valid reason for choosing a doubling

of the annual fluctuation in the potentiometric surface and the

water table as a limit on consumptive uses. In many cases, the

doubling of the annual fluctuation in the potentiometric surface

and the water table may interfere with other existing legal users

and could damage the resource. In other cases, the tripling or

even quadrupling of these annual fluctuations will not harm the

resource or other legal users of water. A determination of the

impact of a water use on other legal users and the water resource

can only be made on a case-by-case basis using state of the art

hydrological information.



7The Authority's South Central Hillsborough Regional
Wellfield is located outside the Middle Gulf area.
12











26. The 5-3-1 Rule is arbitrary and capricious because

these limits do not accurately reflect the amount of water that

could be consumptively used on a particular tract of land.

Generally, the amount of water that can be used consumptively

without damaging the resource or injuring other users is far

greater than that permitted under the 5-3-1 Rule. In a few

cases, the amount of water that can be safely used is less than

permitted under the 5-3-1 Rule. Therefore, the rule is an

unsound method of regulating and determining the issuance of

consumptive use permits.

27. The one foot limit on the impact of a consumptive use

on lakes and other impoundments is also arbitrary and capricious.

The annual fluctuation in lake levels recorded in the Mid-Gulf

Study is about three to five feet. Instead of using this

information to set a standard for impacts on lake levels as it

did with respect to the standards for impacts on the

potentiometric surface and the water table, SWFWMD used a

derivation of the water table fluctuations to set the one foot

standard. There is no logical reason for this deviation.

28. The 5-3-1 Rule is arbitrary and capricious because the

limits are imposed at the boundary of property owned, leased or

otherwise controlled by the permit applicant. Since groundwater

is not static nor controlled by the owner of the overlying real

estate,8 this rule makes it possible for large landowners to



8See Village of Tequesta v. Jupiter Inlet Corporation, 371
So.2d 663 (Fla. 1979).

13











cause significant damage to the resource. There is no logical

reason for this action.

29. Since the 1950's and 1960's, the annual fluctuation in

the potentiometric surface and water table underlying the Middle

Gulf area has changed dramatically. Annual fluctuations of five

and three feet are no longer the norm. Assuming it was logical

for SWFWMD to establish the 5-3-1 Rule in 1974 on the basis of

annual fluctuations recorded in the Mid-Gulf Study, the numbers

relied upon by SWFWMD as the basis for the rule no longer appear

reasonable.



C. The 5-3-1 Rule Enlarges, Modifies, or Contravenes the
Specific Provisions of Law Implemented

30. The 5-3-1 Rule implements Sections 373.219, 373.223 and

373.229, Florida Statutes. Section 373.219 authorizes water

management districts to require permits for consumptive uses of

water. Section 373.223 establishes the criteria for consumptive

use permits. It provides in pertinent part 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 interest.

See 373.223(1), Fla. Stat. Finally, Section 373.229 recites the

information that may be requested of a consumptive use permit

applicant.

14











31. The 5-3-1 Rule modifies Section 373.223 by adding

permitting criteria that bear no reasonable relationship to the

three standards listed in the statute. Consumptive uses can

comply with all three statutory criteria and still be denied a

permit because the use's impact on the potentiometric surface,

water table and lake levels exceeds five feet, three feet and one

foot, respectively. In fact, the Authority's seven wellfields

have in the past all been found by SWFWMD to meet the criteria

listed in Section 373.223, even though the Governing Board found

they would all exceed one or more of the limits identified in

Florida Administrative Code Rules 40D-2.301(3)(b), (c) and (d).

32. The 5-3-1 Rule contravenes Section 373.223. This

provision favors reasonable-beneficial uses. This term is

defined as "...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." See 373.019(5), Fla. Stat. By tying the use of

water to standards set at the boundary of property owned, leased

or otherwise controlled by the applicant, the rule in effect

reserves water to those owners of land within SWFWMD who have not

applied for a permit but who may wish to use the water in the

future. This deprives users of water that would otherwise have

been available for consumptive use. Also, to overcome the

violation the rule forces the applicant to expend large sums of

money to acquire sufficient property to completely encompass the

area covered by a five foot reduction in the potentiometric

15











surface, a three foot reduction in the water table and a one foot

reduction in lake levels. This is not an economic and efficient

utilization of water.

33. The 5-3-1 Rule enlarges the statutory provisions it was

designed to implement. The Rule creates an unexercised right to

use water under one's land by tying the right to water to

ownership of the overlying property. This is contrary to the

Florida Supreme Court's decision in Village of Tequesta v.

Jupiter Inlet Corporation, supra.



D. The 5-3-1 Rule is Vague, Fails to Establish Adequate
Standards for Agency Decisions, or Vests Unbridled
Discretion in the Agency

34. The 5-3-1 Rule vests unbridled discretion in SWFWMD to

approve or deny consumptive use permits. Most consumptive uses

permitted by SWFWMD exceed one or more of the standards listed in

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

This includes all of the Authority's wellfields. The only way

these uses are permitted are through the issuance of an exception

by the SWFWMD Governing Board pursuant to Florida Administrative

Code Rule 40D-2.301(4). This rule does not contain adequate

standards for the issuance of an exception. Also, SWFWMD does

not treat all permit applicants consistently and uniformly. In

some cases, the agency does not condition the exception on

special permit conditions. At the opposite extreme, the agency

requires numerous special permit conditions in return for an

exception. This creates an atmosphere in which most users are

16











unable to predict the outcome of their permit applications and

are subject to SWFWMD's whim and caprice.

35. The 5-3-1 Rule is impermissibly vague. The rule

prohibits the reduction of the potentiometric surface, the water

table and lake levels outside the boundary of land owned, leased

or otherwise controlled by the applicant below certain specified

standards. The rule, however, does not identify the term

"otherwise controlled by the applicant." For example, does the

term mean the service area of a public or private utility? On

several occasions, SWFWMD has interpreted the phrase to include

such areas. On other occasions, the agency has refused to

consider service area when determining the extent of property

controlled by the applicant. Since property ownership is so

important to the operation of the 5-3-1 Rule, the vagueness of

this phrase is a material defect.



E. The 5-3-1 Rule Exceeds SWFWMD's Grant of Rulemaking
Authority

36. The specific authority for the 5-3-1 Rule are Sections

373.044, 373.113, 373.149 and 373.171, Florida Statutes. The

most prominent of these provisions is Section 373.171, which

provides in pertinent part as follows:

(1) In order to obtain the most beneficial use of
the water resources of the state and protect
the public health, safety, and welfare and
the interests of the water users affected,
governing boards, by action not inconsistent
with other provisions of this law and without
impairing property rights, may:


17











(a) Establish rules, regulations, or orders
affecting the use of water, as conditions
warrant, and forbidding the construction of
new diversion facilities or wells, the
initiation of new water uses, or the
modification of any existing uses, diversion
facilities, or storage facilities within the
affected area.



(3) No rule, regulation or order shall require
any modification of existing use or
disposition of water in the district unless
it is shown that the use or disposition
proposed to be modified is detrimental to
other water users or to the water resources
of the state.

See 373.171(1)(a) and 373.171(3), Fla. Stat.

37. The 5-3-1 Rule exceeds SWFWMD's grant of rulemaking

authority because it is not designed to promote the most

beneficial use of water in accordance with Section 373.171(1)(a),

Florida Statutes. As stated herein in Paragraph 31, the 5-3-1

Rule in effect reserves water to those owners of land who have

not applied for a permit but who may wish to use the water in the

future. This does not obtain the most beneficial use of water,

since it deprives users of water needed to meet their present

demands and saves water for potential users who own land but may

never have a demand for the water.

38. The 5-3-1 Rule exceeds SWFWMD's grant of rulemaking

authority because it is inconsistent with other provisions of

Chapter 373. See 373.171(1), Fla. Stat. As stated herein in

Paragraph 30, the 5-3-1 Rule conflicts with statutory criteria

for consumptive use permits. See 373.223(1), Fla. Stat.


18











39. The 5-3-1 Rule exceeds SWFWMD's grant of rulemaking

authority because it could require the modification of existing

uses of water which are not detrimental to other uses and the

water resource. See 373.171(3), Fla. Stat. Generally, an

existing use is a use of water that was in existence prior to

January 1, 1975. See Fla. Admin. Code Rule 40D-2.041(2) (a). The

5-3-1 Rule applies to all uses of water requiring a consumptive

use permit, including existing uses.9 Existing uses may not be

detrimental to other uses and the water resource and still be

denied a permit because the use's impact on the potentiometric

surface, water table and lake levels exceeds five feet, three

feet and 6ne foot, respectively. In fact, the Authority's

Section 21 and Cosme-Odessa Wellfields have been found by SWFWMD

to exceed one or more of the limits identified in Florida

Administrative Code Rules 40D-2.301(3)(b), (c) and (d), even

though they were found not to interfere with other users and were

in the public interest.



IV. Disputed Issues of Material Fact

40. The disputed issues of material fact are as follows:

(a) The specific limits established in the 5-3-1 Rule

are unsupported by scientific evidence and no demonstrable

harmful effect will occur if they are violated.



9The Cosme-Odessa and Section 21 Wellfields are both
existing uses of water. Nevertheless, SWFWMD applied the 5-3-1
Rule to them the last time their consumptive use permits were up
for renewal.
19











(b) SWFWMD frequently issues permits which exceed one

or more of the limits specified in the 5-3-1 Rule.

(c) The 5-3-1 Rule is based on potentiometric surface

and water table fluctuation information contained in the Mid-Gulf

Study and it in essence permits users to double the annual

fluctuation in the potentiometric surface and water table

recorded by the United States Geological Service, the Florida

Department of Natural Resources and SWFWMD during the 1950's and

1960's in wells located in the study area.

(d) There was no information available at the time the

5-3-1 Rule was promulgated on the annual fluctuation in the

potentiometric surface and water table in those areas of SWFWMD

not encompassed by the Mid-Gulf Study.

(e) The geology of those areas of SWFWMD not included

in the Mid-Gulf Study are significantly different from the

geology of the Middle Gulf area.

(f) There is no scientifically valid reason for

choosing a doubling of the annual fluctuation in the

potentiometric surface and the water table as a limit on

consumptive uses.

(g) In many cases, the doubling of the annual

fluctuation in the potentiometric surface and water table may

interfere with other users or damage the resource and in other

cases tripling or even quadrupling these annual fluctuations will

not harm the resource or other users.



20











(h) The limits specified in the 5-3-1 Rule do not

accurately reflect the amount of water that could be

consumptively used for a particular tract of land.

(i) Instead of using the annual fluctuations in lake

levels recorded in the Mid-Gulf Study, SWFWMD derived the one

foot standard from water table fluctuations.

(j) Since the 1950's and 1960's, the annual

fluctuation in the potentiometric surface and water table

underlying the Middle Gulf area has changed dramatically and

annual fluctuations of five and three feet are no longer the

norm.

(k) SWFWMD does not treat all permit applicants

consistently and uniformly when issuing exceptions to the 5-3-1

Rule.

(1) In some cases, SWFWMD has treated the service area

of a public or private utility as land otherwise controlled by

the applicant for the purpose of demonstrating compliance with

the 5-3-1 Rule and on other occasions has refused to interpret

the rule in this fashion .



WHEREFORE, the Authority requests:

1. The Division of Administrative Hearings conduct a formal

hearing on this petition pursuant to Sections 120.56 and

120.57(1), Florida Statutes;

2. The Division of Administrative Hearings issue a Final

Order finding Rule 40D-2.301(3) (b), (c) and (d) is an invalid

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exercise of delegated legislative authority and declare the rule

void ab initio.
Respectfully submitted,

de la PARTE, GILBERT
& GRAMOVOT, P.A.


By: urrc. cL- 9r ?cA
Edward P. de la Parte, Jr.
705 E. Kennedy Blvd.
Tampa, Florida 33602
813-229-2775

Attorneys for Petitioner,
West Coast Regional Water Supply
Authority


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing was furnished by hand delivery by Federal Express to

Kent Zaiser, Esquire, Deputy General Counsel, and Carlyn Harper,

Esquire, Assistant General Counsel, Southwest Florida Water

Management District, 2379 Broad Street, Brooksville, Florida

33512-8712, on this 15th day of February, 1988.



Edward P. de la Parte, Jr.













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