Title: Letter from Attorney for WCRWSA Board of Governors enclosing WCRWSA's Challenge to SWFWMD 5-3-1 Rule, and including copy of SWFWMD Governing Board Hea
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Title: Letter from Attorney for WCRWSA Board of Governors enclosing WCRWSA's Challenge to SWFWMD 5-3-1 Rule, and including copy of SWFWMD Governing Board Hea
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we're not trying to do either. We don't have the
authority. It's very clear in the law.

Mr. Blain

Mr. Chairman, I do think it appropriate that you look
at this 3-3-1 or 5-3-1 formula as a guideline or as a
starting point. I'm not sure that I would agree with
Chairman Curry's letter that this is arbitrary, but
certainly we're lacking in any kind of guidelines today
and this is an attempt to set some guidelines of what
happens at the property line so that you could
anticipate whether this is going to have an adverse
affect to an adjacent land or not. We've got two ways
of checking this.

One, you're giving notice to those adjacent property
owners that these permits are being applied for, and
two, if it exceeded these amounts of 5, 3, and 1, then
it would have to be after good cause was shown and the
Board granted such an exception.

Mr. Vaughn

What was the level used on the -- (obscure).

Mr. Blain

There was no such level used at the property line. That
was a regulatory level and that gave variances from the
weekly averages of three feet in one instance and four
feet in another. Now, it would not be inappropriate for
this Board to adopt a 10-5-2 or a 20-12-8. We feel like
that a 5-3-1 is putting a pretty close handle on it and
it may be that over a period of time after using it it
will need to be revised, but this seems to be a
reasonable guideline to start with.

Chairman McAteer

I have no question with that. Does anyone else? Do we
have any other discussion or any other considerations
on the formula for water withdrawal? If not, it's
passed as presented by the Staff.

pp 64-73.






15












Chairman McAteer

That's the problem, John. I questioned the three feet
but any other way is worse.

Mr. Anderson

Well, how are you going to determine the three feet
when you get a complaint form a property owner?

Chairman McAteer

Well, yes, that was the original concept.

Mr. Anderson

How are you going to know what the original was?

Chairman McAteer

Well, I say that was the original concept.

Mr. Anderson

No. I say, how are you going to know what the original
water level was at the point where you get the
complaint?

Mr. Blain

This was not after the permit had been issued, but at
the time the permit has been applied for. Consider
the factors and see what effect it would have upon the
potentiometric level at the boundary of the property
and then staff would not issue a permit if it was going
to lower the water at the property line more than three
feet. If it was going to lower it more than three feet
then it would have to come in to the Board for public
consideration, so three feet is the seasonal variation.

It does give you, would allow you in some instances, to
exceed the water crop theory, but it would be not more
than three feet on someone else's property without the
Board taking more specific action.

Mr. Duynslaaer

Mr. Chairman, if the potentiometric surface is not to
be lowered more than three feet at the edge of the
property and if we assume Buddy is correct that the

5






JO N'J ...J i I IS'J'IA'I' i.VE 1' (.,IDUL.S t,,a lTTLE

OBJE )NS REPORT


AGENCY: Southwest Florida Water Management District

RULE NUMBER: 16J-2.1(4 (b)

TITLE: ConditionE a Consumptive Use Permit.

OBJECTIONABLE PROVISION:
16J-2.11 Conditions for a Consumptive Use Permit.
S* .

(4) The withdrawal of water:



A (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').
*





CITED AGENCY AUTHORITY:
(a) Rulemaking (b) Implementation
373.044, F.S. 373.223, F.S.
373.113, F.S.
373.149, F.S. 373.223 Conditions for a permit.-
373.171, F.S. (1) To obtain a permit >jursuant to the provisions
373 216, F. S of thisclhapter, the applicant must establish that the
proposed use of water:
S 373.249, F.S. (a) ]s a reasonable beneficial use as defined in s.
3- .373.019..5); andr
( i) '"ill not i1.tc.itfc.rc vwi th any pc.sc... .t]y exA *
legno l use of water; and
,W (c) Is consistent with the public interest.
(2) The governing board or tih deparllt nt may
authorize the holder oft' use ierinit to transport and
t use ground or surfLhce water beyond ovet lying land
or outside the watershed from which it. ih taken iftie
6 governing board or department determiines that
such transport and use it; consistent with the public
interest.
.u (3) The governing board or t Ihe depart mcnt., by
regulation, may reserve froni use by permiit appli-
t cantss, water in such location, and oua:ntities, and obr
such seasons of the year, as init." iud;:lint may he
SrIl ^required for Ihe protection of firh and wild tii l or the

R"m 0 changed conditions., ihweve, all t:resent ly exisl.in,
legal uses of water .shall lbe pro cted so Ion:: as such
De La Parte, Gilbert & Gramovot use s not contrary t-, the public inlterrf..
"1 lli.atory.-- p.

A t
3I 9 SPECIFIC OBJECTIONS:
Rule 16J-2.11(4)(b) exceeds its statutory authority by requiring
the District to deny the issuance of a consumptive use permit if the
S potentiometric surface under an adjoining landowner's land will be
3. lowered more than five feet (5').

The method used to calculate the reduction in the potentiometric
2. surface is the water crop theory.

SThe District should issue a permit if the application meets the
o requirements of 373 .223, F.S., and doesn't lower the potentiometric
uto. surface below a level which would be significantly harmful to the
area's water resources.




DATE: PAhE: EARING:________
-7











potentiometric surface will lower naturally three feet,
then it will be impossible to have a well.

Mr. Blain

No, sir, three feet more than your natural level.

Mr. Duynslager

Well, be that as it may, with that clarification, I'm
not sure that we have any well fields in the District
that can comply with this, because those wells are
located around the perimeter of the property.

(Emphasis added) pp. 231-234


3. Mr. Cherry

We recognize and as a matter of fact, we used both of
these examples in some of the discussion the citrus
processing plant as well as the -- some of the
phosphate-related industries. We recognize them and
therefore, we would do initially the special
consumptive use permit. We recognize that if there was
enough water within an area, generally within the area,
there should be special considerations given to certain
industries, to a well or to a municipal supply.

So, we simply substituted 7 to take care of that
provision. I don't think that either one of you could
get by with three foot on your property. Your property
would be more like 40 feet.

p. 285


C. September 11, 1974 Rule Workshop

1. Mr. Blain

Proposed Change No. 7. Because of the many comments
that have been received on this, we have decided to
take another crack at it and we are now recommending to
you that you consider revising this Rule as set out in
this Proposed Change. It may be appropriate that we
read through it and paraphrase it, if you will, showing
the intent. We're not sure whether we've arrived at it
or not.



6








JOINT ADMINISTRATIw'w PROCEDURES COMMITTEE

OBJECTIONS REPORT



AGENCY: Southwest Florida Water Management District

RULE NUMBER: 16J-2.11(4) (c)

STITLE: Conditions for a Consumptive Use Permit.

OBJECTIONABLE PROVISION:
16J-2.11 Conditions for a Consumptive Use Permit..

S* *

(4) The withdrawal of water:

4 *
(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').
*



CITED AGENCY AUTHORITY:
(a) Rulemaking (b) Implementation
373.044, F.S. 5373.223, F.S.
373.113, F.S.
373.149, F.S.
373.171, F.S. 373.223 Conditions for a permit.-
S37..216 F S (1) To obtain a permit pursuant.to the provisions
37 3. 216 ofthis chapter, the applicant must establish that the
373.249, F.S. proposed use of water:
ta) Is a reasonable beneficial use as defined in s.
373 01905); and
(b) Will not interfere with any presently existing
l,. a*nl ,'Is:r o wlatefr: an:ti
(c) Is consistent with the public interest.
"(2) The foverninf. board or the department may
Sauthorize the holder of'a use permit to transport and
Sus;e ,round or surface water beyond overlying land
or outside the watershed from which it. is taken it the

4 I'.overning board or department d(eteriniies tliat.
S:such transport and use is consistent with the public

Sinl crest.
(3) The governing hoard or the department, by

j1 rregulation, may rcr,,erve from use by permit appli-
Scants, water in such locations and quantities, and for
Such sensons of lhe year, as in its judgment mn:y be
"required for the protection o fish and wildlife or the
Public health and salty. Such reservations shall be
subli,.ct to periodic review and revi.;ionl iin Ihe lirht o't

J11 ch:li.ed conditions. I however, all presently existing
l'g.',l uses of water shall be protected so long as such
Su:4e is not contrary to the public interest.
:'l f..,y'.-- ,.- n. lt 11, :. 7;t- j. : s. i. ci 7f.x-l ).



-1 SPECIFIC OBJECTIONS:

Rule 16J-2.11(4) (c) exceeds its statutory authority in that
the District has no authority to deny a permit under 373.223, F.S.,
i solely because the prospective consumptive use may lower the level
of the water table by more than three (3') feet on adjoining land
''JJ not owned, leased or otherwise controlled by the applicant.
If the water table cannot be lowered by more than three (3')
"-' feet, the production well in the area must, in many cases, cease
pumping far short of its capacity below which sale water intrusion
would occur. The result is far less production from a well, far
greater cost to the consumer, and a thwarting of legislative in-
tent that the water resources should be utilized to their safe *
maximum.

Once again, the District is attempting to deny a permit because
a well would lower any neighbor's water table more than three (3')
feet, even though the permit is a reaconable-beneficial use, doesn't
interfere with any presently existing use of water, is in the pub-
lic interest and docr.n't lower the water table below a level which
would b1 sirinificantly harmful to the water resources of the area.

_____ "j~C ____g











Now, the fourth paragraph provides that "The withdrawal
of water: From a stream or other watercourse must not
reduce the flow by more than ten (10) percent at the
time and point of withdrawal; (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 (5) feet; (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 (3) feet; (d) Must not
cause the level of the surface of water in any lake or
other impoundment to be lowered by more than one (1)
foot unless the lake or impoundment is wholly owned,
leased or otherwise controlled by the applicant; (e)
Must not cause the potentiometric surface to be lowered
below sea level.

(5) The Board for good cause shown may grant
exceptions to the provisions of paragraphs (2), (3) and
(4) above when, after consideration of all data
presented, including economic information, it finds
that it is consistent with the public interest and will
not interfere with any other legal use of water
existing at the time of application.



Now, going back through this, you will recall that
before we had a criteria that said ordinarily, and we
talked about presumptions. We have eliminated those
and have set more standards that will not be granted.
However, for good cause shown after consideration of
all data presented, including the economic implications
if the Board finds that it is consistent with the
public interest and will not interfere with any other
legal use of water existing at the time of the
application, they could grant exceptions to the
provisions

Mr. Vauqhn

For instance, canning plants we raised the last time.
This, then, would provide a means for them to get
permitting from the Board.

Mr. Blain

Canning plants, municipalities, public supply -- there
may be a vast number of exceptions that should be
properly granted when all factors are considered and
this would allow the Board, after taking into
consideration all these things, to make a valid
7











judgment as to whether this is consistent with the
public interest, and will not interfere with any other
legal use, then for good cause they could grant the
exception.

Chairman McAteer

We are charged, under the law, with providing these
Regulations, gentlemen, and being able to make a
decision. This is about as fine as I believe we're
going to be able to cut it for us to have any decision-
making capability. This is a long way from where we
started.

Any other comments?

Mr. Vaughn

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

pp. 34-42


2. Mr. Blain

Let me point out on this that even if you gave credit
for all the land they owned throughout the State of
Florida, they still would have to come in and show a
reason why they would be able to create a drawdown at
the boundary of any property in excess of this five
feet, so we think we've got it checked both ways. Then
the Board could make a judgment. If they did, in
fact, own much land and if, in fact, this was going to
be an isolated area then they could --

pp. 46-47


3. Mr. Loqan

With your permission, I would like to read
approximately half of it and it's not very long, and
while I am doing this I would like to point out that
Hillsborough County will make a statement as to what we
call the "3-3-1" formula, but I see in this draft
that's just been circulated it's been changed to "5-3-
1", so bear with me please, on that, and I'd like to
make a brief comment on it at the end.



8












This is an official communication from the Hillsborough
County Board of Commissioners from Wednesday of last
week, a letter addressed to Derrill S. McAteer,
Chairman, Board of Governors, Southwest Florida Water
Management District.

"Dear Derrill: The Board of Commissioners of
Hillsborough County is following the development of
your proposed Rules and Regulations with great
interest. The law of this State charge the Southwest
Florida Water Management District with the
responsibility of regulating the use of this region's
water resources for the public benefit and this Board
feels that the District will soon meet that
responsibility in an outstanding manner through the
adoption of the proposed rules.

This Commission believes that you have a sound starting
point. Your proposed rules will provide the base you
need for the equitable management of the District's
water resources. We support your efforts and we
commend you for the job you have done to date.

Our comment on the proposed Rules are few in number and
relate only to major topics."

With your permission, I'd like to skip "A" and "B"
which are topical points and which I'll discuss at a
later time, and come to the remaining points which
refer to the key issues we're now discussing.
***

Again, reading from page 3, Subsection D, Water Crop
and Controls at Property Boundaries.

"The Board of Commissioner of Hillsborough County
believes that a person should be able to extract the
water that underlies his land for a reasonable
beneficial use as long as he does not unduly injure
his neighbor and as long as there are no overriding
considerations in the broad public interest. Ownership
or legal control of land is an indispensable foundation
of this practice.

The pumping of even a modest amount of ground water
from a small land holding could cause serious injury to
a neighbor. But if the land area were to increase, the
possibility of injury would decrease in proportion,
even if pumping remained unchanged. The larger area
provides more protection by permitting a greater
9











distance between the well and the property boundary
and by providing a larger volume of direct recharge to
the well.

In most cases, we believe that pumping rates must be
linked directly to land control and thus we support
water-crop theory. We recognize the various weaknesses
in that theory and we look forward to the day a better
managerial tool becomes available. But for the
present, we support water-crop.

Such support, however, must be conditioned upon the
addition of a section to the regulations which provides
that exceptions to the water-crop requirements must be
granted fairly and equally. Further, the additional
section must provide standards so that any exceptions
granted to St. Petersburg and Pinellas County for the
Eldridge-Wilde, Cosme-Odessa and Section 21 wellfields
must also be granted to Hillsborough County. Such
specific language is necessary not only to ensure that
the water-crop provisions in some situations and
granting individual exceptions in other situations
without adequate standards and criteria applicable to
all governmental bodies.

Believing as we do about possible damage to a
neighboring user of water, we also support your
provisions about lowered water levels at property
boundaries and lakes according to your "3-3-1" formula.
The specific number used in that formula are clearly
arbitrary but they appear to be quite reasonable and we
urge that they be adopted without change as your point
of beginning."

pp. 41-61


3. Mr. Anderson

Mr. Chairman, we started talking a little bit about
philosophy as far as it pertains to the 5-3-1 rule.
Going back over this chapter 373, it appears to me as
if we are adopting rules for the protection of private
property as well as adopting rules that are in the
public interest. There is nothing that I know of in
Chapter 373 that says we have anything to do with the
protection of private property for the water levels
under private property ownership. We are here to adopt
rules which protect the water resources in the public
interest, and when we start getting into the protection
of private property rights, I think we're invading an
area that we're not charged by law to invade.
10












Chairman McAteer

Mr. Anderson, that's a two-sided coin that you're
referring to and I have been somewhat dismayed by
agriculture's insistence that they own the water under
their land, per se, that they own block under God's
heaven from the center of the earth and everything in
it. The law doesn't give us that right.

Mr. Anderson

I don't believe the law gives us the right really to
say that we should not lower the water table more than
three feet at a property line.

Chairman McAteer

That's merely a guideline for the protection of the
resources which --

Mr. Anderson

That's not for the protection of the resources. That's
for the protection of the adjacent property owners,
which I think we're getting into an area that we're not
charged to be in, and I would like some comment from
the attorneys.

Mr. Blain

Mr. Chairman, I have seen this coming from --

Mr. Anderson

Well, I've been considering this for the last many
meetings that we've been in and I've read the law and
I've read it twenty times, the Rules, and I think
again that we're in an area that we have no business to
be in.

Chairman McAteer

Let me ask you, are you saying, Mr. Anderson, that we
should not consider any damages to a land-owner, is
that what you're saying?







11












Mr. Anderson

We should consider only the protection of the resources
and what it sets forth in the law. The protection of
the resources is what we're doing in the public
interest.

Chairman McAteer

The law does give us land protection criteria.

Mr. Anderson

Not for private land it doesn't.

Chairman McAteer

But it gives us land protection criteria in the rules.

Mr. Anderson

I don't care what's in the rules. I'm telling you
philosophically and according to the law we have no
business concerning ourselves with private interest in
water.

Mr. Bexley

Mr. Anderson, I have got to disagree with you very
strongly. I don't disagree with some of the statements
that agriculture has come out with, but I certainly
think the Board is charged with the responsibility of
seeing that private property rights are not damaged by
misuse from whatever the source and we're charged with
that.

Mr. Anderson

Where?

Chairman McAteer (to Mr. Blain)

Will you get a copy of the law? I agree with Mr Bexley
wholeheartedly, but with ownership.

Mr. Bexley

I think I'm entitled to be protected from being raped
by Pinellas County as a citizen.


12












Mr. Anderson

I agree with that. It that's the case, then the
Legislature should have put that in the law. We're not
here to make laws. We are here to adopt rules and to
implement the law. If we're making rules that do not
correctly relate to those laws that were passed by the
Legislature then we're not doing what we should be
doing. It's up to the Legislature and the courts to
take care of making the laws and protecting private
property, not us.

Chairman McAteer

I want to read the sentence that I was looking for in
the law. "It is further declared to be the policy of
the Legislature to provide for the management of water
and related land resources."

Mr. Anderson

I agree.

Chairman McAteer (Reading Further)

"To promote the conservation and development and grant
the proper utilization of surface and ground water."
Proper utilization is another key word.

Mr. Anderson

No problem.

Chairman McAteer

"To prevent damage from floods, soil erosion and
excessive drainage" -- it again refers to land, "to
preserve natural resources, fish and wildlife." So,
throughout the regulations, throughout the regulations
throughout the law, it does refer continuously to
land, Mr. Anderson.

Mr. Johns

It refers to the vested interest of the people.

Mr. Anderson

The public.


13












Mr. Johns

People.

Mr. Anderson

The public interest.

Mr. Gibbons

May I read 373.171, Rule and Regulations? "In order to
obtain the most beneficial use of the water resources
of the State and to protect the public health, safety
and welfare, in the interest of water use as affecting
local boards by, without the inconsistence of other
provisions of this law and without impairing property
rights" -- and there are certain property rights
created by the State of Florida under the common law
that you cannot use, I cannot use more water on my land
which will ill-affect or damage you by my use. That's
just a reasonable use doctrine. This is what we're
talking about. This part of property rights. It
doesn't say that I own the water, but I have the right
to use this water and you don't have any right to use
any more of that water if it will adversely affect my
use of it by what you do with your water and it's
similar to taking land. You can't take land out of
yours where my land would fall into yours because you
have dug a big hole, so this is a basic law and this is
what the Rules and Regulations provide for and we're
charged with it because you cannot impair the property
rights and we couldn't do it under the Constitution.

Chairman McAteer

Well, one more point on this and then we will proceed,
"No rule, regulation or order shall require any
modification of any existing use or disposition of
water unless it is shown that this use or disposition
proposed to be modified is detrimental to other water
uses." So, you have to have protection in your
guidelines, John. Again, I want to say to agriculture
a't no time do these regulations in any way attempt to
determine the ownership of water under the land of the
State of Florida. We do not have that authority and I
want you to take that back with you to every one of
your boards and organizations. The law clearly
delineates that and we do not have that says, and I
have heard much public comment by many of your
organizations that Southwest is trying to say either
we do own the water or we don't own the water, and
14






Memo From:

Patricia R. Pieper




March 22, 1988



Dear Buddy,
Louie concentrated on comments made
by you and J. Anderson from the enclosed
minutes marked in blue underliner.



Pat






P.O. Box 15 Land O' Lakes Florida 33539





P.O. Box 15 Land 0' Lakes, Florida 33539C










de laPARTE, GILBERT AND GRAMOVOT, P A.
ATTORNEYS AT LAW


EDWARD P. de la PARTE,JR.
LOUIS A. de le PARTE
L.DAVID de ia PARTE
RICHARD A. GILBERT 705 EAST KENNEDY BOULEVARD
LARRY I. GRAMOVOT TAMPA, FLORIDA 33602-5011
FRANK J. GRECO (813) 229-2775
WALTER R. HEINRICH
PATRICK J. McNAMARA
MATTHEW S. MUDANOMEMORANDUM
DOUGLAS M.WYCKOFF


TO: Board of Directors,
West Coast Regional Water Supply Authority

FROM: Edward P. de la Parte, Jr.Egp)

DATE: March 8, 1988

RE: WCRWSA'S CHALLENGE TO SWFWMD 5-3-1 RULE



On February 15, 1988, the West Coast Regional Water Supply
Authority ("Authority") petitioned the Florida Division of
Administrative Hearings to determine the validity of three
Southwest Florida Water Management District ("SWFWMD") rule
provisions collectively known as the "5-3-1 Rule". The
Authority's petition as assigned to Hearing Officer Donald Conn
and a final hearing has been scheduled to commence on March 23,
1988 in SWFWMD's Brooksville headquarters. A ruling is expected
from Mr. Conn within thirty days after the conclusion of the
hearing.

The Authority filed this Petition as a result of Freeman F.
Polk's recent challenge to renewal of the consumptive use permits
for the Cypress Creek and Cross Bar Ranch Wellfields. These two
facilities have been in operation for about ten years and
currently supply over half the water used by the Pinellas County,
Pasco County, Hillsborough County and City of St. Petersburg
utilities systems. Mr. Polk contends the facilities should not
be permitted because they violate the 5-3-1 Rule. Although the
facilities have in the past received exceptions to the 5-3-1 Rule
from the SWFWMD Governing Board and SWFWMD Staff is recommending
a continuation of these exceptions, there is no assurance new
exceptions will be granted. Therefore, in order to protect the
integrity of the regional water supply system, the Authority had
no choice but to challenge the validity of these rules. This
action was authorized at the Board of Directors' meeting of
September 21, 1987.




le -ID. L












The 5-3-1 Rule requires consumptive use permit applicants to
demonstrate their proposed use of water will not cause the
potentiometric surface, water table and surface of water under
lands not owned, leased or otherwise controlled by the applicant
or in lakes not wholly owned, leased or otherwise controlled by
the applicant to be lowered by more than five feet, three feet
and one foot, respectively. This rule was promulgated on October
4, 1974 and became effective on January 1, 1975. A memorandum
summarizing comments made by the SWFWMD Governing Board and the
public during the rule adoption hearings is attached for your
consideration as Exhibit A. Except for renumbering, the rule has
remained unchanged.

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 Study"). This report
contains general hydrological information collected during the
1950's and 1960's from parts of Hillsborough, Pasco, Hernando and
Citrus Counties and all of Pinellas County. SWFWMD used the
average annual fluctuation of the potentiometric surface and
water table measured during this period of time as the basis for
the five foot and three foot standards found in the 5-3-1 Rule.
The one foot limit on lake impacts is based on the three foot
water table standard.

In 1976, the Joint Administrative Procedures Committee of
the Florida Legislature objected to the 5-3-1 Rule on the grounds
it exceeds SWFWMD's statutory authority, is not reasonably
related to the ends specified by the Legislature in the Water
Resources Act of 1972, and conflicts with the statutory criteria
for a consumptive use permit. Copies of the Joint Administrative
Procedures Committee's objections are attached for your
consideration as Exhibit B. The SWFWMD Governing Board declined
to revoke or modify the rule in response to the Committee's
objection.

In recent years, SWFWMD Staff has begun to question the
utility of this rule. Recent drafts of the consumptive use
permit rule revisions do not contain the rule. However,
rulemaking is not scheduled to commence on these rule revisions
until the next fiscal year.

The 5-3-1 Rule is technically and legally invalid for the
following reasons:

The numbers utilized in the 5-3-1 Rule are based on the
average annual fluctuation of the potentiometric
surface and water table underlying the Middle Gulf area
during the 1950's and 1960's. These numbers are not
representative of the average annual fluctuation of the
potentiometric surface and water table underlying the
2











other two-thirds of SWFWMD's land area, nor are they
representative of current annual fluctuations of the
potentiometric surface and water table underlying the
Middle Gulf area. Additionally, these numbers do not
accurately reflect the amount of water that can safely
be withdrawn from a tract of property without harming
the water resource or interfering with other uses.
Along the coast where the threat of saltwater
intrusion is prevalent, the numbers utilized in the 5-
3-1 Rule could allow the withdrawal of entirely too
much water. Further inland where the supply of potable
water is substantial, the numbers are much too
restrictive. For these reasons, the rule is arbitrary
and capricious.

* The 5-3-1 Rule conflicts with statutory criteria
established by the Legislature for consumptive use
permits. The rule establishes a standard that bears no
reasonable relationship to the three standards listed
in the statute. A consumptive use could be reasonable-
beneficial, not interfere with other legal uses and in
the public interest, and yet still violate the 5-3-1
Rule. This is precisely what has occurred with respect
to the Authority's Cypress Creek and Cross Bar Ranch
Wellfields.

The overwhelming majority of consumptive uses permitted
by SWFWMD violate the 5-3-1 Rule. SWFWMD has granted
all of these uses an exception to the rule. These
exceptions are issued at the discretion of the SWFWMD
Governing Board. There are no standards established
for the exercise of this discretion nor are exceptions
granted uniformally to all applicants. In some cases,
such as the Cypress Creek and Cross Bar Ranch
Wellfields, numerous permit conditions are imposed on
the consumptive use in return for this exception. In
other cases, exceptions are granted without any special
permit conditions. This creates an atmosphere in which
most permit applicants are unable to predict the
outcome of their permit application and are subject to
the Governing Board's whim and caprice.

The 5-3-1 Rule prohibits the reduction of the
potentiometric surface, water table and lake levels
outside the boundary of the land owned, leased or
otherwise controlled by the applicant. The rule,
however, does not identify the term, "otherwise
controlled by the applicant." Does the term mean a
service area of a public and private utility? On
several occasions, SWFWMD has interpreted the rule to
include such area. However, the agency has refused to
consider the Authority's service area, when reviewing
3











its application to renew the consumptive use permit for
the Cypress Creek and Cross Bar Ranch Wellfields.
Clearly, this term is much too vague to allow the rule
to be applied in a uniform and consistent manner.

The 5-3-1 Rule exceeds SWFWMD's rulemaking authority.
By tying the standards to the boundary of the property
owned, leased or otherwise controlled by the applicant,
the 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 deprives the
public of water that would have otherwise been
available for consumptive use. Alternatively, the rule
forces the applicant to purchase large tracts of
property as a condition to producing water., These
effects do not promote the reasonable-beneficial use of
water mandated by the Legislature.

The Authority has petitioned SWFWMD to initiate rulemaking
to replace the 5-3-1 Rule. We have suggested establishing these
standards as guidelines. This is, in fact, the way the rule is
currently used by SWFWMD staff. The Authority intends to pursue
this petition regardless of the outcome of the rule challenge
proceeding.




























4






( r(





MEMORANDUM

TO: WCRWSA 5-3-1 Rule Challenge
Transcript of SWFWMD Governing Board Meeting

FROM: Ed de la Parte

DATE: February 26, 1988

RE: SWFWMD Governing Board Hearings, and Rule
Workshops -- 5-3-1 Rule Adoption Process



A. July 10, 1974 Workshop

1. Mr. Cherry

"Now er' ve [we're] tried to put some standards that
could be used as a guideline for the staff to handle
this, after you adopt such guidelines. We are saying
that ordinairly (sic) and until shown to the contrary,
the Board will presum (sic) that the state and to
preserve the interest of the public and of effective
[effected] water users. Issuance of the permit should
be withheld under certain conditions.



The second one is that if the withdrawal of water by
the applicant will cause the level of the
potentiometric surface under lands not owned, leased or
otherwise controlled by the applicant to be lowered
three feet, or more.

That takes care of Mr. Talley's problem, by the
applicant to be lowered three feet or more. It could
be two feet that means that if the property line, this
would be three feet maximum. That appointment with that
specific Board approval would be issued by staff."

pp. 46-50


2. Mr. Blain

"If the withdrawal of water by the applicant will cause
the level of water under lines [lands] not owned,
leased, or otherwise controlled by the applicant to be
lowered three feet or more. If the withdrawal of water
by the applicant would case [cause] the level of the
surfact (sic) of water in any or other impoundment be


"A"











lowered by more than one foot or more unless the lake
or impoundment is owned, leased or otherwise controlled
by the applicant. I am sure wholly that there are some
that are within six inches or a foot or two feet."

p. 51.


3. Mr. Cherry

"The question in Six is we're dealing with largely the
effect of the surface aquafer (sic). We are very
specific there. We meant it that way. In the real
sense, we don't care what the potentiometric surface is
because you could lower it five to six feet. We don't
see any problem involved with that."

Chairman McAteer

"If you lower the water table two or three feet, you
would affect someone."

Mr. Cherry

"I would agree a water table would be greatly damaged,
but five feet or six feet of the potentiometric surface
is going to affect pumping. Even with a line across the
county is going to affect this situation.

Going down five or six feet is going to increase the
pumping cost, but as far as the resources are
concerned, we don't see any effect."

pp. 67-68


B. August 14, 1974 Rule Workshop

1. Mr. Blain

"What we have attempted to do is reduce this to
criteria that your staff may then apply in routinely
considering permits. There's no doubt there will be a
number of permits. This all has to do with use of the
Works of the District this entire section, and with
these criteria, that the issuance of permits can be
considered and if they exceed these points then it
would be up to the applicant to come forward and show
to the Board why they should go ahead and issue the
permit even though it might exceed these factors.
These give you some reasonable, or they're designed to

2











be reasonable, guidelines for issuing permits for use
of the Works of the District."

Chairman McAteer

That three feet in Item B, I'm not saying I'm opposed
to it, but I question this three feet, based on other
criteria in the regulations. Where's that?

Mr. Vaughn

5 sub. B, B as in boy.

Mr. Blain

We picked three feet, this seems to be the nearest to
your annual variation. It seemed an appropriate
figure. It would not be inappropriate for you to
consider adopting a larger or smaller figure.
Obviously, there should be some leeway.

Chairman McAteer

I know of cases where that would certainly get some
adverse affect on existing facilities.

Mr. Drossick

Mr. Chairman, Albert Drossick, W. R. Grace and Company.
I'm prepared to make a presentation later on in the
Public Hearing pertaining to the deletion of Subsection
I in that same area, which has to do with floodplain,
so I thought maybe it would be pertinent to bring up at
this point.

Chairman McAteer

Not really relevant to the discussion now on the three-
foot drop, though, on other properties. We have been
over that three feet in other cases and other times and
I just wanted to be sure that three feet is a figure
that you feel like is enforceable, recognizable and
practical.

Mr. Blain

What we have attempted to do is come up with a
yardstick that would not create more chanQe at the
boundary line of property than is experienced normally
throughout your annual variation. This is why the three
feet came in. Four feet could be a tolerable amount,
three-and-a-half feet, five feet, but it seems that we
3











needed some number in there that was close to what your
annual variations are so that the staff could then have
this as a guideline and these could be handled
routinely. If they exceeded this then they would have
to be considered in great detail by the Board.

Chairman McAteer

That wordage is not such that a change of more than
three feet could not be granted by the Board if
necessary.

Mr. Blain

Well, certainly, the Board could grant more than three
feet.

Chairman McAteer

And the wording is not strong enough to prevent the
Board from making the ultimate decision. Any other
comments?

(Emphasis added) pp. 91-94


2. Mr. Blain

Mr. Duynslager suggested that the words three feet or
more be struck and that we inset below the minimum
regulatory level established by the Board.

Mr. Vaughn

I think we've argued this through before.

Chairman McAteer

We've been down this road before.

Mr. Anderson

I don't know, Mr. Chairman, maybe it would be better to
tie it in with the minimum regulatory levels.

Mr. Blain

This would mean that you'd have to establish a minimum
regulatory level at the boundary of every person's
property for which there was an application.


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