Title: Letter from Bram Canter to Division of Administrative Hearings re Case No. 88-0693R enclosing a copy of SWFWMD's Proposed Findings of Fact, Conclusion
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Title: Letter from Bram Canter to Division of Administrative Hearings re Case No. 88-0693R enclosing a copy of SWFWMD's Proposed Findings of Fact, Conclusion
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MA 22 '88 09:04 HABEI.i CUL'EFERA 4 FALR ..-... -

1858 A ADrvIUNISTRATIVE ORS
A ADN ORDERS" ... ..... '.-

because the legislature failed to give adequate direction for their invalid exercise of delegated legislative authority.
promulgation. APPEARANCES: For Petitioner: Kenneth E. Apgar,
1 7. There is merit however to the argument that the Depart- de la Parte and Butler, P.A., 403 N. Morgan Str., Ste. 102,
S ment may not establish a penalty'without specific legislative Tamap, FL 33602; For Intervenor: Steven C. Sweet, John T
Authorization Subsection 120.54(14), F.S. (1979) expressly Alien, Jr., P.A. 4508 Central Ave., St. Petersburg, FL 33711;
prohibits the creation of penalties by administrative agencies For Respondent: L M. Blain and Thomas E. Cone, Blain and
unless first expressly authorized. Even in those cases where Cone, P.A., 202 Madison Str., P. O. Box 399, Tampa, FL 33601
there is already an existing legislatively created penalty, the INTRODUCTION: By a petition timely filed with the DOAH
agencies may not tack that penalty to a rule without prior pursuant to F.S., Sec. 120.54(4), the West Coast Regional Water
legislative approval. Here the agency created a penalty out of Supply Authority seeks an administrative determination of the
Sthin air. For this reason all language relating to the imposition invalidity of respondent's Rule 40D-2.301(6) and (7) F.A.C.
of a penalty for the late payment of an assessment should be Thereafter, Pinellas County filed a motion to intervene as a
stricken from proposed Rule 38F-13.04 at paragraph b. party-petitioner.
CONCLUSION: While the Legislature may have invalidly Prior to the hearing, the petitioner filed a motion for official
S delegated its authority to govern the operation of the self- recognition of certain documents and a motion for summary fl
insurers guaranty trust fund, and while the rules proposed as order. The intervenor joined in said motions. These prehearing
a result of the delegation may necessarily be invalid, See Cross motions were considered at the outset of the hearing.
Key Waterways v. Askew, 351 So.2d -1062 (Fla. 1st DCA Without objection from the respondent, the motion ofPinealh
1977), such a determination may not be made here. What County to intervene as a party-petitiner. was granted. The motion
Scan be determined is that the penalty for the late payment of for official recognition was granted for the sole purpose of
assessment is without authority and must be stricken. considering the motion for summary final order. This latter
Based upon the foregoing Findings of Fact, Conclusions of motion sought a summary order declaring the proposed rule
k. Law, it is therefore invalid on the grounds of collateral estoppel or estoppel by
|(' ORDERED THAT: 1. The following language in proposed judgment. In support of the motion, the parties-petitioner cite
S Rule 38F.13.04(b) is objectionable as an invalid exercise of the consolidated cases of Pinellas Cty. v. SW Florida Water Mgt
Sdelegated legislative authority: Dist., Case No. 79-2325R, and West Coast Regional Water
"If the self-insurer fails to mail the total assessment due by Supply Authority v. SW Florida Water.Mgt. Dist., Case No.
the due date, there shall be assessed a civil penalty equal 79-2393R, wherein by Final Order entered on April 9, 1980,
to 10 percent (10%) of the amount so unpaid .... and [2 FALR 547-A] the undersigned Hearing Officer declared the
penalties .... No penalty assessed under this section shall respondent's existing Rule 16J-2.11(3), F.A.C., to be an invalid
be waived unless the self-insurer demonstrates circumstances exercise of delegated legislative authority. That rule provided
entirely beyond its control were responsible for the late that the issuance of a consumptive use permit would be denied
payment of assessment. Protest as to penalties assessed if the amount of water consumptively used would exceed the
by this section shall be made pursuant to Sec. 440.021, F.S." water crop of lands owned, leased or otherwise controlled by
2. The remainder of proposed Rules 38F-13.01 through the applicant. After considering the motion for summary final
13.07 are not an invalid exercise of delegated legislative order, the respondent's response to the motion and oral srgu-
authority ment by the respective parties, the motion was denied on the
DONE and ORDERED this 4th day of August, 1980, in grounds that the factual and legal issues in the instant proceeding
Tallahassee, Fl. were not litigated and determined in the prior proceedings.
s/ Mch arcDodson, Hearing Officer, DOAH. The cause then proceeded to an evidentar hearing Follo
the close of the testimony, the respondent requested permission
*to submit to the Hearing Officer a final, approved version of the
proposed challenged rule with correct numbering of subsection.
DIVISION OF ADMINISTRATIVE HEARINGS. The parties-petitioner had no objection provided that the procobd-
Rule-Validity-Southwest Florida Water Management ing be kept open through July 8, 1980, to allow any response
District-Consumptive Use Permit-Criteria for they may have to the revised version of the challenged rule. The
Determining Whether Application Is "Consistent with revised proposed rule was timely submitted and no further
the Public Interest" Are Reasonable-Presumption response was filed. The hearing was officially closed on July 8,
that Particular Quantities of Water Withdrawals Are 1980, and the transcript was filed on July 22, 1980.
"Consistent with the Public Werestg" Is Reasronable. Subsequent to the hearing, all parties submitted proposed orden
"Consistent with the Public Inter Is Reasonable. containing proposed findings of fact and proposed conclusions of
law. These documents, aswell as the memoranda submitted by
WEST COAST REGIONAL WATER SUPPLY AUTHORITY, Petitioner, the parties, have been carefully considered by the undersigned.
and PINELLAS COUNTY, Intervenor, v. SOrTHWESf FLORIDA To the extent that the parties' proposed findings of fac are not
WATER MANAGEMbENT DISTRICT, Rcspondent. Case No. 80-1004R.ndc
incorporated in this Final Order, they are rejected as being
FINAL ORDER either irrelevant and immaterial to the issues for determination
Pu ant to notice, an administrative hearing was held herein, not supported by competent, substantial evidence adduced
before e Dane D Tremor, Hearing Offier with the iDA, on at the hearing or as constituting conclusions of law as opposed to
June 27 and 30, 1980, in Tampa, Fl. The isue for determina- findings of fact.
tion at the hearing was whether respondent's proposed Rule documentary evidence adduced at the hearing, the following
40D-2.301, subsections (6) and (7), F.A.C., constitutes an
relevant facts are found:













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

District, -- FALR -- DOAH Case Nos. 79-2325 and 79-2393 (April 9,

1980). This holding is appropriate, since the Committee is not a

judicial or quasi-judicial authority and its objections are not

intended to have the effect of legal rulings. If the Committee's

objections are relevant, the history of these particular

objections indicates that the Committee ultimately found the rule

to be valid.

The Rule Does Not Enlarge, Modify, or
Contravene the Specific Provisions of Law Implemented

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

Florida Statutes, which state in pertinent part:

373.219 Permits required.


(1) The governing board or the department may require
such permits for consumptive use of water and may
impose such reasonable conditions as are necessary to
assure that such use is consistent with the overall
objectives of the district or department and is not
harmful to the water resources of the area.

373.223 Conditions for a permit.

(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.

The term "reasonable-beneficial use" is defined in Section

373.019(4) 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".

19













13. The District calculates the actual drawdowns that would

be caused by a proposed water use, using analytical methodologies

which may differ according to the type of use involved and what

methodology has proven most accurate. For example, maximum daily

withdrawal rates have been used in evaluating the drawdowns that

would result from public water supply well fields but average

annual withdrawal rates when evaluating the drawdowns that would

result from agricultural withdrawals. T, I 83-85. The

District's choice of analytical methodologies is not required by

5-3-1 Rule but are based on the District's experience with

hundreds of consumptive use permits. If the 5-3-1 Rule did not

exist, the methodologies would not change.

14. If the District staff predicts that adverse impacts

will result from a proposed water withdrawal exceeding one of the

5-3-1 thresholds, permit conditions are recommended which will

avoid or satisfactorily mitigate the impacts. T, II 77-80.

Richard McLain: The types of things that we
would normally look for under 5-3-1, the
types of impacts if those thresholds are
exceeded, these are several types, but some
of them include impacts to other users,
impacts to other lands, impacts to lakes,
ponds, wetlands, and saltwater intrusion.
Those are the types of things we look at.

Now, what we do if these thresholds are
exceeded and we find impacts, the next phase
of this is to develop conditions in the
permit. T, II 77.

Q: How do you go about developing a
recommendation if there is an exceedance?














36. The purpose of the 5-3-1 Rule is to identify and

prevent harm to the water resources of the District and other

water users in furtherance of Sections 373.219 and 373.223,

Florida Statutes. It accomplishes this purpose by facilitating

the District's evaluation of the potential harm which can result

from drawdown of the potentiometric surface, water table and

surface waters.

37. Rather than adding to or modifying the conditions for

issuance of a permit set forth in Section 373.223, Florida

Statutes, the 5-3-1 Rule is simply a tool for evaluation of the

statutory conditions which must be met by the CUP applicant. T, I

103. Adverse impacts to the hydrologic system and to other water

users affects the District's public interest analysis which is a

" criterion set forth in Section 373.223 and a component of the

reasonable-beneficial use definition.

38. An agency's construction of a statute is entitled to

great weight and is not to be overturned unless clearly

erroneous. Austin v. Department of Health and Rehabilitative

Services, 495 So.2d 777 (Fla. 1st DCA 1986); Department of

Professional Regulation v. Durrani, 455 So.2d 515 (Fla. 1st DCA

1984). The District's interpretation of Sections 373.171 and

373.323, Florida Statutes, as conferring authority to control the

adverse impacts associated with drawdowns is reasonable and gives

effect to the legislative intent expressed in those statutes.

39. Where, as here, an agency construes the statute in its

charge in a permissible way, that interpretation must be

20





:..- MAR 22 '88 0: 0-5 HABEN & CULF'EPPER F i
ADO^NISTRATIVE ORDf~rtS 185^A i

I) Te Petitioner West Coast Regaional Water Supply with the public interest and the applicant will not be required
rity (WCRWSA) was formed in 1974 by inter-local agree- to submit further evidence on this point. If the proposed
nUt under Ch. 373, F.S., as a supply entity to provide and consumptive use is to average 1,000 gallons or more per acre
elop sources of water for its members and other govern- per day, the applicant must establish that the proposed use of
g tcita entities. The members of WCRWSA include the two water in such quantity is consistent with the public interest.
d of St. Petersburg and Tampa and the three counties of (OTE: Present subsections 6 through 11 wll be renumbered
yrcla (intervenor herein), Hilsborough and Pasco. consecutively following the above new subsections.)
(2) The petitioner and the intervenor own and operate setl olloin subsections.)
muitted well fields which ae regulated by the respondent (5) The factors listed in subsection (6) of the proposed rule are
SW Florida Water Management District (SWFWMD) and are not all-inclusive. Each of the facts listed are resource related or
S rtrefore subject to the rules and regulations of SWFWMD. All hydrological considerations. The effect of each of the factors listed
parties have stipulated, and the evidence so demonstrates, that is appropriate for consideration by the Governing Board of
th WCRWSA and Pinellas County are substantially affected by SWFWMD when making a determination as to whether a consump-
the challenged proposed rule and therefore have standing to tive use permit should be granted. With the exception of that
challengee its validity, portion of subsection (6) relating to a weekly average amount to
(3) The proposed rule being challenged in this proceeding be withdrawn, the factors listed in subsection (6) are covered
was considered by the Governing Board of SWFWMD as a by existing specific rules of SWFWMD.
result of a prior rule being declared invalid in another proceed- (6) The word "acre" in the phrase "1,000 gallons per acre
tog. The prior rule, codified as Rule 16J-2.11(3), F.A.C., per day" is intended to mean land owned, leased or otherwise
provided as follows: controlled by the applicant.
16J2.11 Conditions for a Consumptive Use Permit (7) The figure of 1,000 gallons per acre per day represents
(3) Issuance of a permit will be denied if the amount of the average quantity of water which is available within the
water consumptively used will exceed the water crop of respondent's District for man's use and to maintain natural
lands owned, leased or otherwise controlled by the applicant, systems. The figure is a districtwide estimation. It cannot be
(Except where determined otherwise, the water crop arbitrarily applied to any specific site within the District due
[precipitation less evapotranspiration] through the District to the fact that different parcels of land do not possess identical
will be assumed to the three hundred sixty-five thousand geologic or hydrologic characteristics. The amount of water
(365,000) gallons per year per acre.) which is available from a specific parcel of land is dependent
By Final Order dated April 9, 1980, that rule was declared to upon geographical and hydrological factors which vary considerably
be an invalid exercise of delegated legislative authority on the from site to site. These factors incude, among other things,
grounds that the amount of rainfall the land receives, the water table, the
(a) it exceeded SWFWMD's statutory authority under Ch. existence of confining layers, solid and vegetation types, and
373, F.S., transmissivity, storage andleakance coefficients.
(b) it impermissibly conflicted with provisions of Ch. (8) Withdrawals of water in small amounts per acre per day
373, FS., are generally less likely to have adverse hydrologic effects on the
(c) it created property rights to water by virtue of land water resources within the District than are withdrawals in
ownership contrary to Ch. 373 and the decision in the case of greater amounts. In most areas of the District, 1,000 gallons
Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d 663 (Fla. per acre per day can be withdrawn without jeopardizing or
1979); and adversely affecting the resource or the availability of water for
(d) it was a hydrologically unsound method of determining others. This would not necessarily be true of coastal areas
the issuance or denial of consumptive use permits and was where salt water intrusion is a possibility or in areas where wells
accordingly arbitrary and capricious in nature. presently exist which withdraw large quantities of water on a
(4) The two subsections of proposed Rule 40D-2.301 daily basis. Eighty-nine percent (89%) of the.more than 6,000
being challenged in this proceeding read as follows: consumptive use permits which have been issued by the
"40D-2.301. Conditions for Issuance of Permits. SWFWMD are for amounts less than 1,000 gallons per acre per
(6) Among other factors to be considered by the Board in day.
determining whether a particular use is consistent with the CONCLUSIONS OF LAW: There is no issue in this proceed- :
public interest will be: the maximum amount to be with- ing as to the standing of the petitioner or the intervenor to seek
drawn on a single day; the average amount to be withdrawn an administrative determination as to the validity of proposed
during a single week, during a typical growing (or irrigation) Rule 40D-2.301(6) and (7), nor is there any issue concerning
season, during an extreme cold season, during a year of the respondent's compliance with the procedural requirements
extreme drought and during the term of the proposed permit in the rule adoption proceeding. The sole issue is whether
the amount to be withdrawn in relationship to amounts subsections (6) and (7) of Rule 40D-2.301 constitute invalid
being withdrawn from adjacent or nearby properties; the exercises of delegated legislative authority.
proximity of withdrawal points to location of points of The multi-faceted contentions of the petitioner and the
withdrawal by others;the total amounts presently permitted intervenor to support their claim of invalidity include
from the entire basin, or other hydrologic unit; and the assertions that
change in storage that such withdrawal and use will cause. (a) SWFWMD has no authority to add a fourth criterion to
(7) If the proposed consumptive use will average less the three statutory criteria for obtaining a consumptive use
than 1,000 gallons per acre per day, in the absence of permit;
evidence to the contrary, the Board will presume that the (b) SWFWMD may not create a property right to water by
quantity of water proposed for consumptive use is consistent virtue of land ownership;














Kenneth Weber: Based on whether or not an
impact would occur as a result of an
exceedance of 5, 3, or 1, and if one were to
occur, based on whether or not that impact
could be mitigated. T, II 97-98.

Q: Okay. Instead of those factors, what are
the factors that you discuss in your
recommendation?

A: It is based solely on the impacts that
might occur and any mitigation of those
impacts.

Q: Is it always about the impacts and how to
mitigate them?

A: Yes. The 5-3-1 are ... That's all they
really are for, is to look at impacts. T, II
112.


15. The staff then brings these permit applications before

the Governing Board for review and action. There is no

requirement placed on the CUP applicant to make separate

application for an exception provided for in subsection 40D-

2.301(4). T, I 113. The exception is nothing more than a

specific finding that the proposed water use is consistent with

the public interest which is necessary to demonstrate that the

use is a reasonable-beneficial use. Although the Authority has

made much of the fact that no proposed withdrawal that would

exceed the 5-3-1 thresholds has ever been denied by the Board,

this is simply the result, thus far, of every applicants'

willingness to abide by the conditions placed in the permit to

avoid or mitigate predicted adverse impacts.

16. The 5-3-1 Rule does not, of itself, cause any

conditions to be imposed on permit applicants. If conditions are


10













sustained though another may be possible or even, in the view of

some, preferable. State, Department of Health and Rehabilitative

Services v. Framat Realty, Inc., 407 So.2d 238, 241 (Fla. 1st DCA

1981). Pan Am World Airways, Inc. v. Fla. Public Service

Commission v. Fla. Power and Light Co. 427 So.2d 716, 719 (Fla.

1983).

40. The argument that the 5-3-1 Rule ties water use permits

directly to land ownership is simply another attempt to link the

5-3-1 Rule to the invalidated water crop rule. However, the fact

that the Authority and Pinellas County did not also challenge the

5-3-1 Rule in 1974 suggests that these parties clearly saw the

distinctions between the two rules. The water crop rule as

originally adopted was a clear allocation of water rights. If

one knew the acreage owned or controlled by the applicant, one

would also know the exact amount of water that could be

withdrawn. There is no such correlation between acreage and the

5-3-1 Rule because it requires a site-specific analysis of off-

site impacts. Before the conclusion of the site-specific

analysis, one cannot know how much water can be withdrawn without

adverse consequences. If very large drawdowns can occur on a

very small parcel of land without harming the water resources or

other existing water users, the 5-3-1 Rule does not prevent the

issuance of the permit. T, II 98. In fact, the 5-3-1 Rule is not

used as a criterion for determining whether a permit will be

issued or denied.

41. Control of impacts is the focus of the rule, not land


21





MAR 22 '88 9: 06 HABEN &" CLLPEPPFERPI '-*"" -*-
1860A ADMINnCTRAT[VE ORDER '

(c) the rule is arbitrary and without a rational basis in fact; there may be other, equally valid factors to be cond
(d) SWFWMD has no authority to attempt to define the evaluation of permit applications does not render thed
term "public interest" in strictly hydrological terms; subsection (6) invalid. That portion simply defines sbmQdz
(e) the list of factors in proposed subsection (6) is factors which will be considered in the "public interest' ;-, 'oI
incomplete and vague, without reference to the effect to be determination. The proposed rule does not preclude the app&Ll,
allocated to the factors bsted therein; and cant or the Governing Board from considering other factors,
(f) the phrase "in the absence of evidence to the contrary" Also, under the terms of Sec. 373.223, P.S., the applicant -r r..
in subsection (7) is vague, must still demonstrate that the proposed use is a reasonable .i
The permitting of consumptive uses of water is governed beneficial use" and that it "will not interfere with any presently
by F.S., Ch. 373, Part II, SWFWMD is given authority to existing legal use of water." Factors pertaining to these crtteria '
promulgate rules not inconsistent with Ch. 373. Sees. 373.171 must still be presented by the applicant and considered by th .teI
and 373.113, F.S. The criteria required to be met prior to the Governing Board. Finally, it should be remembered that a
issuance of a consumptive permit have been set forth by the person regulated by an agency or having a substantial interest .
legislature as follows: in an agency rule may petition the agency to adopt or amend
"373.223. Conditions for a pnerit a rule. F.S., Sec. 120.54(5). .
(1) To obtain a permit ..., the applicant must The next group of assertions by the petitioner and the inte.
establish that the proposed use of water: venor relate to subsection (7) of the proposed rule. In summay,
(a) Is a reasonable beneficial use as defined in s. 373.019 it is contended that use of the test of "1,000 gallons per acre
(5); and per day" (the water crop theory) is hydrologically and legally
(b) Will not interfere with any presently existing legal invalid and cannot be utilized as the basis for a presumption.
use of water; and The language and effect of the prior rule is equated by the
(c) Is consistent with the public interest. challengers with the present, proposed rule.
The definition of "reasonable-beneficial use" is now set forth The prior rule, in unequivocal terms, called for a denial of
in Sec. 373.019(4), F.S. (1979), as a permit application to withdraw amounts in excess of 1,000
"the use of water in such quantity as is necessary for gallons per acre per day. The present proposed rule simply
economic and efficient utilization for a purpose and in a creates a presumption that particular quantities of water
manner which is both reasonable and consistent with the withdrawals, absent evidence to the contrary, are consistent
public interest." with the public interest. Unlike the prior rule, the rule does
The challenged portions of proposed Rules 4 301 not mandate denial of a permit when the applicant requests
The challenged portions of proposed Rules 40D-2.301 in excess of 1,000 gallons of water per acre per day. It
constitute an attempt by SWFWMD to list some of the factors in excess of 1,000 glons of water per acre per day. It
which will be considered by the governing Board in simply states that when the quantity of water requested
detrmwhichning whether an applicawill be consider by t h the will average less than 1,000 gallons per acre per day, that
determining whether an application is "consistent with the q tity of water, in the absence of evidence to the contrary,
public interest" and to inform the public as to the quantum of quantity of water, in the absence of evidence to the contrary,
public interest" an to icom the p story the qantum of will be presumed to be consistent with the public interest and
proof necessary to comply with the statutory criterion the applicant will not be required to submit further evidence
relating to the concept of public interest. An agency certainly the applicant wll not be required to submit further evidne
has the authority to set forth in rule form its interpretation of with reward to that criterion. The proposed rule does not
the statutes it is called upon to implement or enforce and to premo that the permit be issued r denied based upon
inform the pubc of the procedures it follow in the amount of water to be withdrawn. It simply presumes
inform the public of the procedures it will follow in carrying that if the withdrawal rate is less than 1,000 gallons per acre
out the language of the statute. Indeed, the very definition of per day, it satisfies the "public interest" criterion without
"a "rule" includes agency statements of general applicability necessr day, it satisfies the "pubic interest" criterion without
which "implement, interpret or prescribe law or policy" or he proposed t rue does not create nt or deny p
describe the "procedure or practice requirements of an agency. to water by virtue of land ownership. It s dmpy provdety
Sec. 120.52(14)1 F.S Irights to water by vitue of land ownership. It simply provides
Sec. 120.52(14) F.S. the applicant information as to the amount and nature of proof
The petitioner and intrvnor contend, in a summary form,atisfy one of the three statutory criteria for
that the SWFWMD has improperly defined the term "public consrequed to tiv sfye osper t three figstaure story citria fo
interest" in vague, purely hydrological terms and have consumptive use permits. Grouping the fagengue of 1,000 gallons
created an unlawful presumption with respect to the considera- ipe day to the amoudensitnt of provides the agwals fromncy
tion of consumptive use permit applications The evidence a given formation concerning the density of withdraw fom
adduced at the hearing, together with the language contained a given area. The factor of density, along with the size of a
in the challenged rule, does not support such contentions, wi wl, is rtionally related to the nce.ssue of
With respect to the contentions that the factors listed in adverse hydrological consequence.
subsection (6) are vague, incomplete and confined to The undersigned concludes that the respondent has
hydrolosubsectial considerations, i t mus fleetest be noted that athority to create such a procedural evidentiary presumption
hydrological considerations it must first be noted thatit is otherwise reasonably and rationally related to the
subsection (6) begins with the language "among other factors ur poses other easonablng legislationally related to the
to be considered by the Board ...." This language clearly plr poses of theenabl iosln and is not arbitrary and
illustrates that the list of factors is not intended to be all-inclu- capricious. SWFWMD obviously has authority to et gpurpdes of
sive, and the evidence adduced at the hearing conflrns such for the regulation of consumptive uses within the purposes of
sivent. Each ofnd the evidence adductrs listed consat the hearing conCh. 373. It has illustrated two rational reasons for creating
intensidration whe factorsng upon a pstitt application. They a presumption in favor of the "public interest" criterion based
arconside reasonably related to the protection of the resource and upon a withdrawal rate of less than 1,000 gallons per acre per
the consumptive use of water by the public. the fact that day..First, this figure represents the average quantity of water
that is available throughout the District. In other words, that













imposed, they are the result of adverse impacts predicted by the

District's analysis of site-specific hydrogeologic conditions.


Q: To the best of your knowledge, has the
Southwest Florida Water Management District
ever reduced the quantity of water requested
by an applicant solely on the basis of the 5-
3-1 Rule?

Richard McLean: Not on the basis of the 5-3-
1, but on the basis of impacts. T, I 79.

Q: Dr. Stewart, do the 5-3-1 thresholds
cause the need to move withdrawals away from
property boundaries, or is it the stress or
impacts caused by those withdrawals?

A: What is measured or predicted would be
the stresses caused by withdrawals. T, II 72.

17. The testimony of the property appraiser, Mr. George

Cuddeback, regarding the cost impacts of the 5-3-1 Rule was based

on the assumption that the District would apply the 5-3-1 Rule in

a way in which it has never been applied as an absolute limit

on drawdowns. T, I 192; Petitioner's Exhibit No. 45. Since the

5-3-1 Rule does not limit drawdowns, Mr. Cuddeback's testimony is

of no import to the issue of the validity of the rule as

interpreted and applied by the District.


Technical Basis for the Rule

18. Prevention of harm to the water resources and other

water users is the focus of the 5-3-1 Rule and the decision-

making process under Rule 40D-2.301(4). As both District and

"Authority witnesses testified, the 5-3-1 Rule was derived in

major part from the water balance analysis discussed in the

Middle Gulf Study (Petitioner's Exhibit No. 7). T, I 64, 282.

11













ownership. In this way, the 5-3-1 Rule is similar to a zoning

setback requirement which requires all land uses within a

particular zoning category to be set back a certain distance from

"the property boundaries. Obviously, owners of larger properties

will have more land remaining to be put to a profitable use than

the owners of smaller properties, but that does not tie the

setback requirement directly to land ownership. A setback is

also a police power regulation of off-site impacts and its

effects of land ownership are merely incidental and indirect.

The 5-3-1 Rule is concerned only with the public interest in

eliminating or mitigating adverse off-site impacts, if any, that

are predicted to result from the actual drawdowns that would

occur.

The Rule is Not Vague, Does Not Fail
to Establish Adequate Standards, Nor
Vest Unbridled Discretion in the Agency

42. Although the invalidated water crop rule expressly

stated that, "Issuance of a permit will be denied if the amount

of water consumptively used will exceed the water crop," the 5-3-

1 Rule did not use this language. The use of different terms in

different portions of the same rule is strong evidence that

different meanings are intended. Ocasio v. Bureau of Crimes

Compensation, Division of Workers' Compensation, 408 So.2d 751

(Fla. 3rd DCA 1982). Together with subsection 40D-2.301(4), the

5-3-1 provisions simply direct the Governing Board to scrutinize

the unusually large drawdowns that common sense and hydrology

teach are more likely to cause harm to the water resources and


22






MARH 22 '8 '09:07' HBE PEPPER I\OF 1 S F. 1


- amount will be naturally replenished on a districtwide basis by FINAL ORDER
ie o hydrologic cycle. Second, the SWFWMD has demonstrated Pursuant to notice, the DOAH, by its duly designated
that in most areas throughout the District, quantities of water Hearing Officer, William E. Willams, held a public hearing in
may be withdrawn up to 1,000 gallons per acre per day without this cause on December 1 1980, in Fort Lauderdale, Fl.
substantial risk of adverse hydrologic impact. SWFWMD's accu- APPEARANCES: For Petitioners: Bruce E. Friedman,
emulated experience in regulating withdrawals of less than Esq., 5130 N. Federal Highway, Ste. 10,Ft. Lauderdale,
1,000 gallons per acre per day is vast (89% of the 6,000 permits Fl. 33308; For Respondent: Stanley J. Niego, Esq., P. O.
issued), and drawing the line at this numerical amount has not Box V, 3301 Gun Club Rd., West Palm Beach, Fl. 33401.
been demonstrated to be arbitrary or capricious. By Petition filed with the DOAH on October 16, 1980,
Petitioner and intervenor have argued that a presumptive Petitioners, Joe Burgess, Earl Kaier, Keith Finlayson and
cannot be based upon a hydrologically unsound concept, and Concerned Citizens for the Everglades, Inc., pursuant to
cite the final order entered in the cases challenging the prior Sec. 120.56, F.S., challenged as an unpublished "rule"
existing rule which was declared invalid. In those cases, cited an "order" of Respondent, South Florida Water Manage
elsewhere in this Order, the concept which was declared ent District (hereinafter "Respondent" or "District"),
invalid based upon hydrological unsoundness was that a authorizing Respondent's staff to lower water levels in
specific permit could be denied solely on the basis of Repondents jisdiction known as Water
the water crop theory. As indicated above, the present rule Conservation Area 2A commencing on November 1, 978,
does not purport to use the water crop theory as a basis for and extending thereafter for a period of three years. This
granting or denying an application for a permit. It is simply cause was assigned to the undersigned Hearing Officer by
an evidentiary presumption which disappears in the face of Order of Assignment dated October 21, 1980. Final
some evidence that the application is inconsistent with the hearing was scheduled for December 1, 1980, by Notice of
public interest. Applicants who seek to withdraw more than Hearing dated November 17, 1980.
1,000 gallons per acre per day are not even affected by the At the final hearing, Petitioners called Keith Finlayson,
presumption. For them, the burden of proof is to illustrate Joseph Burgess, James H. Hartwell and Shirleen Yedder
to the Governing Board that the three statutory criteria are met. as their witnesses. Petitioner, Earl Kaimer, made no
Finally, it is claimed that the terms and phrases used in appearance either personally or by counsel or other
subsections (6) and (7) of the challenged rule are vague and representative. Petitioners offered no exhibits. Respondent
ambiguous and do not put an applicant or other interested called J. Walter Dineen as its only witness, and, in addition,
person on notice as to the type of information called for or as offered Respondent's Exhibits A through I, inclusive,
to the effect to be given the information provided. The each of which as received into evidence,
challengers have failed to demonstrate such a contention on the FINDINGS OF FACT: The South Florida Water Manage-
record of this proceeding. The hydrological factors listed in ment District is a multi-county water management district
proposed subsection (6) are specifically covered in a more which was created by Ch. 25270, Laws of Florida, 1949,
detailed fashion by other rules of the respondent. Guidance and which operates pursuant to the provisions of Ch 373,
can therefore be gleaned from those rules as to the effect to F.S. The District is the local sponsor for the federally
be given to the various factors. This is also true with respect authorized "Central and Southern Florida Project for
sto the phrase "i the absence of evidence to the contrary in lood Control" and, as such, operates and maintains various
subsection (7). The phrase pertains to any evidence which water control facilities and impoundments in South
would tend to illustrate -that the quantity proposed by an Florida as authorized and constructed by the Federal
applicant is not consistent with the public interest. Government. The jurisdiction of the District encompasses
FINAL ORDER: Based upon the findings of fact and 16 counties in southern and central Florida, from
conclusions of law recited herein, it is ORDERED that Marion County in the north to Monroe County in the
respondent's proposed Rule 40D-2.301(6) and (7) constitutes south.
a valid exercise of delegated legislative authority. Water Conservation Area 2A is one of several water
Done and entered this 8th day of August, 1980. conservation areas within Respondent's jurisdiction, and is
/s/ Diarem Tremor, Hearing Officer, DOAH. a part of the federally authorized Central and Southern
1. Pinellas cry. v. SWFWMD, DOAH Case No. 79-2325R, and Florida Project for Flood Control. On April 13, June 2,
WCRSAv. SWFWMD, DOAH Case No. 79-2393R (2 FALR 547-A]. August 10, September 26, October 19 and October 20, 1978,
S* <* the Governing Board of the District held public hearings and
DIVISION OF ADMINISTRATIVE HEARINGS. workshop meetings to receive comments from the District
DIRule-V alidity--S outhwestFlorida Water Mangement staff and the general public concerning the proposed
Rule-Valoweringdity-Southwest Florida Water Mandement "drawdown" or alteration of water levels in Water
Distric-Lowering of Water Lvel-Order Mandating Conservation Area 2A. Notice of the September 26, 1978,
Drppicability", Is Limited in Geographic Area and public hearing was published in the Fla. Admin. Wkly.,
Applicability", Is Limited in Geographic Area anVoL No. 4, No. 36, on September 8, 1978. By the terms
Limited in Time-Standing-Concerned Citizens Group of the notice, the purpose of the September 26 public
Not "Substantially Affected". hearing was:
JOE BURGESS, EARL KAIMER, KEITH FINLAY SON and the To provide interested citizens with an opportunity to
CONCERNED CITIZENS FOR THE EVERGLADES, INC.. a not-for- express their opinions and hear testimony regarding
profit Florida corporation, Petitioner, v. THE SOUTH FLORIDA WATE the District's proposal to lower the water level in
MANAGEMENT DISTRICT. Respondent. Case No. 80-1899R. Conservation Area 2A, located in western Palm Beach













The data contained in that report is accurate and has been

confirmed by data collected by the District and others since the

publication of the report. T, II 10-14. The water crop rule was

similarly derived, but in the case of the water crop rule the

district wide water balance was transformed into a maximum water

allocation of 1000 gallons per acre per day. Although the water

crop rule was later invalidated, the water balance or water

concept approach was not. This is a well-established hydrologic

concept which has nothing to do with how water is allocated. T, I

71. In fact, a specific finding was made in the case of West

Coast Regional Supply Authority and Pinellas County v. Southwest

Florida Water Management District, 4 F.A.L.R. 1858-A, 1859-A

(September 6, 1982), that:

The figure of 1,000 gallons per acre per day
represents the average quantity of water
which is available within the respondent's
District for man's use and to maintain
natural systems. The figure is a district-
wide estimation.

19. Dr. Mark Stewart, an expert in hydrology and

hydrogeology, testified that the derivation of the 5-3-1

thresholds from the water budget of 1000 gallons per day was

hydrologically sound. T, II 16. He explained that the 1000

gallons per acre per day approximated one cubic foot of recharge

per square foot of area which, if removed from the hydrologic

system, would approximate a drop in lake levels of one foot. The

same withdrawal would correspond to approximately three feet of

drawdown in the surficial aquifer of drawdown and five feet in

the potentiometric surface. T, II 16-18.

12













other water users, in order to determine whether the proposed use

is consistent with the public interest as required by Section

373.223, Florida Statutes.

43. The central purpose of the consumptive use permitting

program established in Part II of Chapter 373 is to provide for

the maximum use of the State's water resources without causing

harm to them or interfering with other water users. The 5-3-1

Rule focuses the District staff's efforts on those proposed water

uses which have the greatest potential for harm and interference.

The District's exercise of discretion to grant or deny a proposed

withdrawal that would exceed the 5-3-1 thresholds is not

unbridled. Will harm result? How can it be prevented? In

"confining itself to these questions in determining whether a

proposed use is consistent with the public interest, the

Governing Board is simply utilizing the clear standards set forth

in Chapter 373.

The Rule is Not Arbitrary or Capricious

44. In order to effectively make rules it is often

necessary to develop average quantifiable levels to be used as

guidelines. In the area of natural sciences such as geology, it

is impossible to formulate numbers which will describe the

circumstances in every case. It is well recognized that the

geology within the District varies considerably. It is

reasonable for the District to establish guidelines based on

averages as a tool for evaluating consumptive use permits.




23













20. The Authority and Pinellas County miss the point in

making so much of the great variability of the hydrogeologic

conditions found throughout the District and the fact that a 5

foot, 3 foot and 1 foot drawdown could have different

consequences depending on these variable hydrogeologic

conditions. The District has never contended otherwise and its

application of the 5-3-1 Rule reflects this understanding. Like

the water balance of 1000 gallons per acre per day, the 5-3-1

levels are simply district-wide estimates. As an estimate, the

water balance of 1000 gallons per acre per day was found to be

technically sound and its use to create a presumption that

a withdrawals of 1000 gallons per day or less are in the public

interest was held to be rationally related to the District's

statutory mandate to protect water resources, because of the

simple finding that:

Withdrawals of water in small amounts per
acre per day are generally less likely to
have adverse hydrologic effects on the water
resources within the District than are
withdrawals in greater amounts.

West Coast Regional Supply Authority v. Southwest Florida Water

Management District, 4 F.A.L.R. 1858-A, 1859-A (September 6,

1982). The record supports a similar finding that drawdowns less

than or equal to the 5-3-1 thresholds are generally less likely

to have adverse hydrologic effects on the water resources within

the District than are drawdowns which exceed these amounts. T, II

101-102.




13













45. The 5-3-1 rule has been proven again and again to be an

effective tool to predict the probabilities for adverse impacts.

T, II 101-102. As Dr. Mark Stewart, an expert in water resources

management, testified:

Therefore, regulatory agencies require
general rules which are guidelines for them
to decide which withdrawals or effects pose a
greater chance of detrimental effects. It's
in a sense a screening procedure, a triage.
Therefore, there is a strong argument from a
management standpoint for having generalized
rules of thumb and guidelines which allow
regulatory agency to make some preliminary
decisions as to which applications,
withdrawals or uses of the resource
constitute the potential for greatest harm.
T, II 30.

46. The Authority included in its rule challenge a copy of

the final order in the first water crop rule challenge decided in

April, 1980. The Authority thus attempted to correlate the 5-3-1

Rule with the infirmities of the original water crop rule.

However, it is the second water crop rule validated in a final

order rendered in August, 1980 that more closely resembles the 5-

3-1 Rule. A copy of the decision is attached as Appendix A. The

water crop rule that was the subject of the second rule

challenge, 40D-2.301(7), provided:


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 proposed
consumptive use is to average 1,000 gallons
or more per acre pre day, the applicant must
establish that the proposed use of water in

24













21. Withdrawals of water from the hydrologic system cause

stress to the system and the greater the stress, the greater the

probability of detrimental effects. T, II 29. Since the

magnitude of the stress is measured by drawdowns in the

potentiometric surface, the water table and the level of surface

water bodies, drawdowns are an obvious and accurate measurement

of stress and potential detrimental effects. Id. 28.

Dr. Stewart: In that sense the 5-3-1 rule
has the effect of integrating both geology
and withdrawal. Hydrologically that's good.
The stress on the system is the appropriate
parameter to look at. Id. 18.

22. The contrary testimony of the expert witnesses of the

Authority and Pinellas County is of little merit since their

expert opinions were directed to the question of whether the rule

was technically sound if applied as an absolute limitation on

water withdrawals without regard to site-specific hydrogeologic

conditions. Since that is not how the 5-3-1 Rule works, such

testimony is irrelevant. Furthermore, the credibility of Mr.

Peter Schreuder's testimony is questionable in light of his

statement that the only possible impact to the hydrologic system

that could occur from a drawdown in the potentiometric surface

was to water quality (T, I 182-183) and his refusal to agree that

increasing drawdowns generally increases the potential for

detrimental effects. This testimony is rebutted by Dr. Stewart

and by common sense. T, II 19-29.

23. Despite the attempt by the Authority to create the

appearance of a hydrologic problem with the 5-3-1 Rule, it was


14














such quantity is consistent with the public
interest.

47. In determining that this rule was technically sound,

reasonably related to the purposes of Chapter 373, and otherwise

valid, Hearing Officer Diane Tremor made factual findings which

correlate closely to facts established in the present proceeding.

She found that withdrawals or water in small amounts per acre per

day are generally less likely to have adverse hydrologic effects

on the water resources within the District than are withdrawals

in greater amounts. See Appendix A at 1859-A. The record shows

that drawdowns in the potentiometric surface, water table and

surface waters are generally less likely to have adverse

hydrologic effects on the water resource within the District than

are drawdowns in greater amounts.

48. She found that eighty-nine percent of the consumptive

use permits which have been issued by the District are for

amounts less than 1,000 gallons per acre per day. Id. The

record shows that perhaps as many as ninety-nine percent of the

consumptive use permits issued by the District are for drawdowns

that do not exceed the 5-3-1 thresholds.

49. She found that 1,000 gallons per acre per day

represents a district-wide estimate of the average quantity of

water available within the District for man's use and to maintain

natural systems. Id. The record shows that the 5-3-1 Rule was

derived from this same water balance calculation as a district-

wide estimate of the drawdowns beyond which the potential


25













admitted by the Authority's General Manager, Mr. Gene Health,

that the Authority's real problem with the rule was planning for

future water supply. T, I 215-216. However, the District's

decision to issue or deny a consumptive use permit depends on the

evaluation of site-specific hydrogeologic conditions and impacts

which are not in any way affected by the 5-3-1 Rule. The

Authority's planning, therefore, would not be simplified by

elimination of the 5-3-1 Rule.

PROPOSED CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case

pursuant to Section 120.56, Florida Statutes.

25. The parties stipulated that the Authority has standing

to maintain this rule challenge and that Pinellas County has

standing to intervene. The parties also stipulated that Florida

Citrus Mutual and Pasco County have standing to intervene on

behalf of the District in support of the rule.

26. The Authority and Pinellas County have devoted a great

deal of effort in these proceedings to demonstrate that if the

challenged paragraphs were applied as absolute limits on

drawdowns, substantial costs and other problems would result to

the Authority's operations. The Authority and Pinellas County

have likewise focused their legal arguments on the invalidity of

these rule provisions if they were applied as absolute limits on

drawdowns. But that is not how the District interprets and

applies the rule.


15













increases for harm to the water resources and existing water

users.

50. She found that the second water crop rule simply

created a presumption in the evaluation of permit applications:

The present proposed rule simply creates a
presumption that particular quantities of
water withdrawals, absent evidence to the
contrary, are consistent with the public
interest. Unlike the prior rule, the rule
does not mandate denial of a permit when the
applicant requests in excess of 1,000 gallons
of water per acre per day. Id., 1860-A.

The 5-3-1 Rule does not even go so far. It simply directs the

Governing Board to determine that a proposed water use that would

exceed the 5-3-1 levels is consistent with the public interest.

A determination that is required by Section 373.223, Florida

Statutes.

51. The hearing officer determined that the public interest

criterion of Chapter 373 was properly implemented by the second

water crop rule because the size of water withdrawals is

rationally related to the"ultimate issue of adverse hydrologic

consequences." The 5-3-1 Rule also properly implements the

public interest criterion because the size of drawdowns is

rationally related to the same "ultimate issue".



CONCLUSION

52. The Authority and Pinellas County bear the burden in

this case to establish that the challenged rule exceeds the

District's delegated statutory authority, is not reasonably

related to the enabling legislation and the intent of the

26













27. The District has never applied the rule in the manner

which the Authority and Pinellas County argue makes the rule

invalid. Most rules are capable of being interpreted and applied

in an invalid manner. However, the validity or invalidity of a

rule must turn on the way in which it is interpreted and applied.

Furthermore, the fact that an agency may wrongfully or

erroneously apply a rule in a given situation does not invalidate

the rule. Hasper v. Dept. of Administration, 459 So.2d 398 (Fla.

1st DCA 1984). There are adequate safeguards to protect

aggrieved persons from arbitrary application of the 5-3-1 Rule.

Section 120.57, Florida Statutes, provides for formal

administrative review of agency decisions and Section 120.68,

provides an avenue of judicial appellate review.

28. Section 120.52(8), Florida Statutes, defines "invalid

exercise of delegated legislative authority" as action which goes

beyond the powers, functions, and duties delegated by the

Legislature and, more specifically, sets forth the following five

grounds for finding a rule invalid:

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

(b) The agency has exceeded its grant of rulemaking
authority;

(c) The rule enlarges, modifies, or contravenes the
specific provisions of law implemented;

(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 or capricious.


16













legislature as expressed therein, or that the District has acted

arbitrarily or capriciously in the interpretation and application

of Chapter 373, Florida Statutes. The Authority and Pinellas

County have not sustained their burden of proof. Therefore, the

rule challenge petition must be denied and the 5-3-1 Rule

declared a valid exercise of delegated legislative authority.

Respectfully submitted,




Bram D. E. Canter
Haben & Culpepper, P.A.
306 North Monroe Street
Tallahassee, Florida 32301
(904) 222-3533


Carlyn Harper
Attorney

Daniel P. Fernandez
General Counsel

Southwest Florida Water
Management District
2379 Broad Street
Brooksville, Florida 34609-6899
I (904) 796-7211


















27














29. The Authority has stipulated that it is not challenging

the rulemaking procedures followed by the District in adopting

the 5-3-1 Rule, but does claim the rule is invalid on the four

other grounds listed in Section 120.52(8).

The District Has Not Exceeded Its
Grant of Rulemaking Authority

30. The District has generous rulemaking authority in

Chapter 373, Florida Statutes, to promulgate the 5-3-1 Rule. In

addition to its general rulemaking authority set forth in Section

373.044 and 373.113, the District has specific authority in

Section 373.216 to implement a permit program for regulating

consumptive uses of water. Legislative guidance in the

objectives to be accomplished by the District's consumptive use

permitting program is contained in Section 373.223 which states

that proposed water uses must be consistent with the public

interest. Since the 5-3-1 Rule is part of the consumptive use

permitting program and is used by the District to ensure that

large water withdrawals are consistent with the public interest

it fits squarely into the rulemaking authorized by Chapter 373.

31. The Authority contends that the rule exceeds the grant

of rulemaking authority in that it is not designed to promote the

most beneficial use of the water in accordance with Section

373.171. That argument is actually a claim that the rule

contravenes the law and is addressed later.

32. In 1976, the Joint Administrative Procedures Committee

initially objected to Rules 16J-2.11(3)(b) and (c) [now Rules


17













CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing Proposed Findings of Fact, Conclusions of Law and Final

Order have been sent by United States mail to the counsel listed

below this 21st day of April, 1988.




ram D. E. Canter


John T. Alien, Jr.
John T. Allen, Jr., P.A.
4508 Central Avenue
St. Petersburg, Florida 33711
Attorney for Pinellas County, Florida

Edward P. de la Parte, Jr.
de la Parte, Gilbert & Gramovot, P.A.
705 East Kennedy Boulevard
Tampa, Florida 33602
Attorney for West Coast Regional Water
Supply Authority

David D. Henderson
Florida Citrus Mutual
Post Office Box 89
Lakeland, Florida 33802
Attorney for Florida Citrus Mutual

James Benjamin Harrill
Pasco County Attorney
7530 Little Road
New Port Richey, Florida 34654
Attorney for Pasco County


Courtesy copy furnished to:

L. M. Blain Lawrence E. Seller, Jr.
Blain & Cone, P.A. Holland and Knight
202 East Madison Street Post Office Box 810
Tampa, Florida 33602 Tallahassee, Florida 32302





28













40D-2.301(3)(b) and (c)] which are the 5 foot drawdown and the 3

foot drawdown provisions, respectively. Petitioner's Exhibit

Nos. 17 and 18. The Committee did not object to Rule 16J-

2.11(3)(d) [now Rule 40D-2.301(d)] which is the 1 foot drawdown

provision of the 5-3-1 Rule. However, the Committee did not have

these objections published in the Florida Administrative Weekly

as is statutorily mandated when an objection is not resolved to

the satisfaction of the Committee, and no objection notation was

ever added to the history note for Rule 40D-2.301 published in

the Florida Administrative Code. See Section 120.545(8), Florida

Statutes (1987).

33. During the year 1976 when the Committee was considering

the two provisions challenged by the Authority in this case, it

did arrange for other objections to be published in the Florida

Administrative Weekly. See 2 FAW, No. 13, 15-22 (March 26,

1976); 2 FAW, No. 19, 25-26 (May 7, 1976); 2 FAW, No. 24, 16-17

(June 11, 1976); 2 FAW, No. 30, 21-25 (July 23, 1976); 2 FAW, No.

36, 42-43 (September 3, 1976). Since the 5-3-1 Rule was not

modified nor repealed by the District, the only possible

conclusion that can be drawn from this history is that the

Committee's objection to the rule was withdrawn which obviated

the statutory requirement for publication in the Florida

Administrative Weekly and Florida Administrative Code.

34. The objections of the Joint Administrative Procedures

Committee have been held to be irrelevant and immaterial to rule

challenge proceedings under Section 120.56, Florida Statutes.


18










HABEN & CULPEPPER, P.A.
ATTORNEYS AT LAW
306 NORTH MONROE STREET
TALLAHASSEE, FLORIDA 32301




BRAM D. E. CANTER REPLY TO:
ROBERT S. COHEN P.O. BOX 10095
BRUCE CULPEPPER TALLAHASSEE, FLORIDA 32302
JOHM F. GILROY, III TELEPHONE: (904) 222-3533
RALPH H. HABEN, JR. TELECOPIER: (904) 222-2126
BOB L. HARRIS
STEVEN T. MINDLIN

April 21, 1988





Donald D. Conn
Hearing Officer
Division of Administrative Hearings
The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301

Re: West Coast Regional Water Supply Authority v.
Southwest Florida Water Manacement District,
DOAH Case No. 88-0693R

Dear Mr. Conn:

Please find enclosed for your consideration Respondent
Southwest Florida Water Management District's Proposed Findings
of Fact, Conclusions of Law and Final Order in the above-
referenced case.

Sin el y




Bram D. E. Canter

BDEC/jh

cc: Counsel of Record
















STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS


WEST COAST REGIONAL WATER
SUPPLY AUTHORITY,
)
Petitioner,
)
and
)
PINELLAS COUNTY,
)
Intervenor, )
)
vs. ) CASE NO. 88-0693 R
)
SOUTHWEST FLORIDA WATER
MANAGEMENT DISTRICT,
)
Respondent,
)
and
)
PASCO COUNTY, and FLORIDA
CITRUS MUTUAL, )
)
Intervenors. )



SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT'S
PROPOSED FINDINGS OF FACT,
CONCLUSIONS OF LAW AND FINAL ORDER

Pursuant to notice and stipulation, an administrative

hearing was held on March 23 and 24, 1988, in Brooksville,

Florida before Donald D. Conn, Hearing Officer, Division of

Administrative Hearings. The issue in this proceeding is whether

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

constitutes an invalid exercise of delegated legislative

authority.













APPEARANCES

The parties were represented as follows:

Edward P. de la Parte, Jr.
de la Parte, Gilbert & Gramovot, P.A.
705 East Kennedy Boulevard
Tampa, Florida 33602

Attorney for West Coast Regional Water Supply Authority

John T. Allen, Jr.
John T. Allen, Jr., P.A.
4508 Central Avenue
St. Petersburg, Florida 33711

Attorney for Intervenor, Pinellas County, Florida

Bram D. E. Canter
Haben & Culpepper, P.A.
305 North Monroe Street
Tallahassee, Florida 32301

Daniel P. Fernandez
General Counsel
Southwest Florida Water Management District
2379 Broad Street
Brooksville, Florida 34609-6899

Carlyn Harper
Attorney
Southwest Florida Water Management District
2379 Broad Street
Brooksville, Florida 34609-6899

Attorneys for Respondent, Southwest Florida Water
Management District

David D. Henderson
Florida Citrus Mutual
Post Office Box 89
Lakeland, Florida 33802

Attorney for Intervenor, Florida Citrus Mutual

Brent E. Simon
Pasco County Attorney's Office
Pasco County Government Center
7530 Little Road
New Port Richey, Florida 33552

Attorney for Intervenor, Pasco County

2













INTRODUCTION

After initiation of this rule challenge by petition of the

West Coast Regional Water Supply Authority ("Authority"),

Pinellas County filed a Petition to Intervene on the side of the

Authority to challenge the rule, and Pasco County, Citrus Mutual,

and the Florida Phosphate Council filed Petitions to Intervene on

the side of the Southwest Florida Water Management District

("District") in support of the rule. Without objection, the

motion of Pinellas County to intervene was granted. The

Petitions to Intervene filed on behalf of Pasco County and

Florida Citrus Mutual were also granted. The Petition to

Intervene filed on behalf of Florida Phosphate Council was denied

as untimely filed and for failing to allege a sufficient interest

in this proceeding.

The cause then proceeded to an evidentiary hearing. At the

close of the hearing the hearing officer granted the District's

request to keep the record open for an additional ten days to

give the District an opportunity to supplement the record with

evidence that was not available at the time of the hearing. No

supplemental filings were made. The proceedings were officially

closed on March 11, 1988, and the transcript was filed on April

13, 1988. The parties then submitted proposed orders and legal

memoranda.

In this pleading, references to the hearing transcript will

indicate volume and page numbers as follows: "T, II 100."




3













PROPOSED FINDINGS OF FACT

1. The Authority was formed in 1974 by inter-local

agreement pursuant to Section 373.1962, Florida Statutes, to

provide and develop sources of water for its members and other

governmental entities. The members of the Authority include the

City of Tampa, City of St. Petersburg, Pinellas County

(intervenor herein), Pasco County (intervenor herein) and

Hillsborough County.

2. The Authority and Pinellas County own and operate

wellfields which are regulated by the District through its

consumptive use permit (CUP) program. All parties have

stipulated that the Authority and Pinellas County have standing

to challenge the validity of the rule.

3. Four major wellfields operated by the Authority are

located within the boundaries of Pasco County. In addition,

Pasco County owns and operates public supply wells within its

boundaries which are regulated under the District's CUP program.

Pasco County is, therefore, substantially affected by the

challenged rule and its standing to intervene in this proceeding

has been stipulated by all parties.

4. Florida Citrus Mutual is a voluntary cooperative

association representing citrus growers in the state of Florida,

including grower members who are regulated under the District's

CUP program. Florida Citrus Mutual is substantially affected and

its standing to intervene has been stipulated by all parties.




4













5. The challenged Rule 40D-2.301(3)(b), (c) and (d),

Florida Administrative Code, 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 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 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 more
than one foot (1') unless the lake or impoundment is
wholly owned, leased or otherwise controlled by the
applicant.

6. These rules are referred to by the Authority as the "5-

3-1 Rule". However, an integral part of the 5-3-1 Rule, as

applied by the District, is subsection 40D-2.301(4). T, II 93.

This subsection states:

The Board for good cause shown may grant exceptions to
the provisions of subsections (2), (3) and (11) of this
rule when after consideration of all data presented,
including economic information, it finds that it is
consistent with the public interest.

The Rulemakinq Process

7. The evidence in the record in the form of hearing

transcripts, minutes and witness testimony demonstrates clearly

that the rulemaking process for the adoption of the 5-3-1 Rule in

1974 was thoughtful and deliberate. Petitioner's Exhibit Nos. 8-

13. The public had ample opportunity to participate in the

rulemaking process.




5













8. Much of the debate during this rulemaking revolved around

the controversial "water crop" rule, 16J-2.11(3), which

established a maximum volume of water that could be withdrawn

based upon the total acres of land owned by a CUP applicant.

However, from early in the rulemaking process, the District and

the rulemaking participants understood and intended that the 5-3-

1 Rule was not an absolute permitting limit like the water crop

rule.

General Counsel Blain: [It] does not lock
you into that figure but if it's anything
over that then it's going to be before this
Board and it's going to be considered and
you're going to take into consideration all
of the interest involved and make your
decision. Petitioner's Exhibit No. 14 at
96.


Board Member Vaughn: What it's actually
doing is giving us a guideline and saying
we'll make decisions as we get to them.

Chairman McAteer: That's what it boils down
to. I don't think there's any other way.

Mr. Cherry: It would cut out a lot of stuff
which would come before the Board.
Petitioner's Exhibit No. 15 at 42.



Chairman McAteer: That's merely a guideline
for the protection of the resources which..
Id. at 65.

The Authority's own witness agreed:

Q: At the time the 5-3-1 Rule was developed,
did staff intend it to be used as an absolute
restriction on the amount of water that an
applicant could withdraw from a particular
parcel of property?

Harry Oelson: No, sir. T, I 54.

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Q: Was there ever any intent among staff to
use the 5-3-1 Rule other than just as a
guideline?

A; No, sir. Id.

9. While some comments were made in the rulemaking hearings

which loosely refer to the 5-3-1 levels as standards, that is

explained by the contemporaneous debate regarding the water crop

rule. Any confusion regarding the use of the 5-3-1 levels as

permit review guidelines rather than as absolute standards

disappeared years ago when the original water crop rule was

invalidated. According to Mr. Kenneth Weber who has been

intimately involved in consumptive use permitting at the

District, the 5-3-1 levels have consistently been used as

guidelines for allocating staff efforts in the review of permit

applications. T, II 93.

How the Rule is Applied

10. The 5-3-1 Rule is simply a threshold for more efficient

and effective permit evaluations.

Kenneth Weber: It's essentially a threshold
so that we can focus our attention on the
larger permits that are more likely to have
adverse impacts. T, II 93.

The Authority's own witness confirmed that this was the

original purpose for the rule:

Harry Oelson: We anticipated there to be a
lot of permits coming in. We needed to have
a quick criteria for evaluating whether these
permits should go through a serious technical
review or be passed forward to the Board for
approval. T, I 54.



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11. The District utilizes all the site specific information

available to it to determine what the actual drawdown caused by

any proposed water withdrawal will be. T, II 93-94. The 5-3-1

Rule does not in any way prevent the use of all available data on

site-specific hydrogeologic conditions in the evaluation of a

proposed withdrawal. T, II 98.

Q: Is it your opinion, then, that the 5-3-1
Rule should be used as a substitute for those
site-specific evaluations of impacts?

Dr. Mark Stewart: It would be impossible for
it to be used as a substitute, because in
order to apply the rule, it is necessary to
determine what the effects of the withdrawal
will be at the site. T, II 35.


12. Whether a proposed withdrawal exceeds the 5-3-1

thresholds or does not, the District always evaluates the

proposal to determine whether adverse impacts to the water

resources of the District or other water users would result from

the withdrawal. T, II 98. However, when a proposed withdrawal

exceeds one of the 5-3-1 thresholds, the staff of the District

more closely scrutinizes the predicted effects of the withdrawal

and brings the permit application to the attention of the

Governing Board for a specific finding that the proposed water

use is consistent with the public interest. Based on an analysis

of the consumptive use permits issued in 1986 and 1987, this

amounts to approximately one percent of the total. T, II 100.

As Mr. Weber and Dr. Stuart testified, it would be impractical

and perhaps impossible to give the same degree of attention to

every proposed withdrawal, no matter the size. T, II 31, 105.

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