Title: Appendix to Motion to Transfer Appeal to District Court of Appeal, First District of Florida. May 17, 1988. 90p.
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Title: Appendix to Motion to Transfer Appeal to District Court of Appeal, First District of Florida. May 17, 1988. 90p.
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Carlyn Harper
Assistant General Counsel

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

Attorneys for the Appellant

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the
foregoing Notice of Administrative Appeal has been mailed to the
following this2ot-J day of May, 1988:

John T. Allen, 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



Kent A. Zaise'
Courtesy copies furnished to:

L. M. Blain Lawrence E. Sellers, Jr.
Blain & Cone, P.A. Roger W. Sims
202 East Madison Street Holland & Knight
Tampa, Florida 33602 Post Office Box 810
Tallahassee, Florida 323C2

2
C; K)










by its mandatory terms, adds a fourth set of requirements to the

three statutorily prescribed conditions for issuance of a

consumptive use permit found at Section 373.223(1), Florida

Statutes, it enlarges and modifies the specific provisions of law

which govern the District. No matter how admirable the goal of

an agency's rule may be, it cannot be contrary to, or enlarge

statutory provisions. Capeletti Brothers v. Department of

Transportation, 499 So.2d 855 (Fla. 1st DCA 1986).

It should be noted that the record establishes that

unless an applicant who is found to be in violation of the 5-3-1

Rule is granted an exception under Subsection (4), no consumptive

use permit can be issued. Although no application has ever been

denied due to such violation, all applicants receiving a permit

who are in violation have been granted exceptions. Thus, the

mandatory and prohibitory effect of the 5-3-1 Rule is clear, and

as such, it exceeds and enlarges the District's cited rulemaking

authority, because it requires applicants to meet its terms in

addition to the statutory criteria set forth at Section

373.223(1), Florida Statutes. Similarly, Pinellas County v.

Southwest Florida Water Manaaement District, 2 FALR 547-A (1980).

The 5-3-1 Rule is also inconsistent with, and

contravenes Section 373.2235, Florida Statutes, which states:

373.2235 Effect of prior land
acquisition on consumptive use
permitting.--The fact that any applicant
has acquired, by exercise of eminent domain
or otherwise, any land for the specific
purpose of serving as a site for a
wellfield or right-of-way prior to
obtaining a consumptive use permit from a
water management district does not create
any presumption of entitlement to a
consumptive use permit. Evidence relating


2C











aquifer coefficients, in order to induce an equivalent of 12

inches of recharge into the artesian system.

17. This alternative explanation of the basis of the

5-3-1 Rule is the "Water Crop Concept" which assumes the amount

of water that will be available on the average throughout the

District for consumptive use is equivalent to 12 to 13 inches of

rainfall a year or, assuming average aquifer parameters, 1,000

gallons per acre per day. The District adopted the "Water Crop

Rule" (16J-2.11(3)) at the same time the 5-3-1 Rule was adopted,

but that rule was declared to be an invalid exercise of delegated

legislative authority on April 9, 1980 in Pinellas County v.

Southwest Florida Water Manacement District, 2 FALR 547-A (1980).

18. Because the amount of water that can be withdrawn

from any specific parcel of land is dependent upon rainfall

amounts that the parcel receives, soil types, aquifer parameters,

existence of confining layers, types of vegetation and other

variable hydrologic factors, the water crop concept is

hydrologically unsound if applied to individual parcels and

consumptive uses. However, it is a valid district-wide

estimation of the average quantity of water available within the

District for man's use and for maintaining natural systems. West

Coast Regional Suppoly Authority, Pinellas County v. Southwest

Florida Water Management District, 4 FALR 1858A, 1859A (1982).

There are simply too many variables concerning precipitation,

evapotranspiration and runoff to apply a concept based upon

district-wide estimates to individual parcels in a uniform and

mandatory manner since necessary assumptions about porosity in



10













DISTRICT COURT OF APPEAL, FIRST DISTRICT


Tallahassee, Fl. 32301

Telephone (904) 488-6151

DATE May 16, 1988

CASE NO. 88-685



FLORIDA PHOSPHATE COUNCIL, vs. WEST COAST REGIONAL WATER
appellant/petitioner appellee/respondent
INC., et al. SUPPLY AUTHORITY
ORDER




Appellees' motion to dismiss denied.

















RAYMOND E. RHODES, CLERK



I HEREBY CERTIFY that a true and correct copy of the above was

mailed this date to the following:

Roaer W. Sims Edward de la Parte, Jr.
Lawrence E. Sellers, Jr. Dan Fernandez
Carlyn "Harper
John T. Allen, Jr. \CL
By order of the court












James Benjamin Harrill
David Henderson
Bram D.E. Canter
rT o7














adjoini= properties not orned, leased, or ot.heCrse controlled by the

coaspcipte use permit holder. o1
co


20. The fact that the Mid-dAlf Study did not ncocpass the entire

sixtoen county area wvihin the jurisdiction of the South West Florida Mange-
43


mrcnt District does not mean that the 5-3-1 Rile is arbitrary and capricious
CD


in that it is a reasonable limitation oni the withdraal of vater applied

?rniforly district-wide.
21. That the existence of the "public interest' exception as set forth

in Rule 40D-2.301(4) does not render the Rule vague and does not vest -
co


nbridled discretion in the ancy as a decision to grant the exception

requires the finding that the public interest will be served, which finding
CO


is consistent with requirsavits of the legislative authority set forth in

Sections 372.223(1) (c) nmd 373.,171l) (c), Florida Statutes.
o


22. Corary to PeItitoner's assertion, the application of te Rule

recognizes the public interest in the state's wrer resources 3d does not

allc the u;bridled withdrawal of water under one' s lands by tying the right

of water withdrawal to wcership of the overlying property. Thus, the rules

application is coistent with the decision of the Florida Supremr Court in

Village of Tecestz vs. Juiter Inlet Corn., 371 So.2d 663 (Fla. 1979).

23. The applicaticx of the Rule does not deprive an individual of any

private property rights but is an exercise of validly delegated legislative

authority to the Scuth est Florida 'atcr Management District.

24. The application of the exception for public interest allows for the

valid and reasonable exercise of discretion on the part of the gcrerning

board, which discretion has consistently been exercised in favor of public

supplier sch as Pettiioner and the Counry.

25. Ihe 5-3-1 Rule as applied to the boundaries cf the consurptive use


-6-

"". *












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

The court in Farmwcrker Richts Orca.ization went on to hold

that there was no distinction between the standing

requirements for associations in Section 120.56(1) or

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

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

16. FLORIDA CITRUS MUTUAL seeks to intervene as party

Respondent to WEST COAST REGIONAL WATER SUPPLY AUTHORITY's

Petition for Administrative Determination of the Invalidity

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

FLORIDA CITRUS MUTUAL in this rule challenge proceeding is

not limited to intervention only as a party petitioner. As

the First District Court of Appeals has written,

"[W]e conclude that S120,56(5) does not limit
participation in a rule challenge proceeding to
those parties seeking to intervene on behalf of
the petitioner." Florida Electric Power
Coordinating Group, Inc., et al., v. Count'v or
Manatee, et al., Fla. App. 417 So.2d 75z, 753.

17. A 5-3-1 Rule violation is not an absolute bar to

obtain a consumptive use permit from Respondent, SOUTHWEST

FLORIDA WATER MANAGEMENT DISTRICT, It is one factor weighed

by Respondent, and is subject to exception vis Florida

Administrative Code Rule 40D-2 .301 (4). In effect, the












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

provisions already has been sustained in response to an adminis-

trative challenge brought by Petitioner and Intervenor. See West

Coast Regional Water Supply Authority v. Southwest Florida Water

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

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

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

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

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

when applied in connection with the available exceptions, simply

is part of a rule that provides objective numerical guidelines to

be used in determining whether the applicable statutory criteria

have been met.


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

5. The Council is a trade association of 11 member

companies engaged in the mining and processing of phosphate rock

and the manufacture of fertilizers and other phosphate-based

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

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

quantities of water. These existing legal uses are authorized by

consumptive use permits issued by the Respondent. These permits

expire on specified dates, and a substantial number of the

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

time, Council members also apply for permits that authorize new

or modified uses of water.





is i












221-6.002, Florida Administrative Code. This same rule provides

that, in computing any period of time prescribed or allowed by

these rules, the day of the act from which the designated period

of time begins to run shall not be included, and the last day of

the period shall be included unless it is a Saturday, Sunday or

legal holiday, in which event the period shall run until the end

of the next day which is neither a Saturday, Sunday or legal

holiday. Id. The hearing officer read these rules together and

concluded that the Council's petition was not timely filed.


5. Specifically, in considering whether the Council's

petition was timely filed, the hearing officer excluded: (1) the

day on which the petition was filed (Wednesday, March 16),

(2) the intervening Saturday and Sunday (March 19 and 20), and

(3) the day of the hearing (Wednesday, March 23). The hearing

officer therefore concluded that the Council's petition had been

filed only four days before the scheduled final hearing. In com-

puting the period of time, the hearing officer properly excluded

the day on which the petition was filed and the intervening Sat-

urday and Sunday. However, the hearing officer clearly erred in

excluding the day of the hearing, and he therefore departed from

the essential requirements of law. Rule 221-6.002; Roper v. Pest

Control Comm'n, 155 So.2d 846, 847 (Fla. 3d DCA 1963). See also

Crawford v. Feder, 27 Fla. 523, 8 So. 142 (1891); Jacksonville

Land Holdinc Co. v. American Oil, 135 Fla. 322, 188 So. 809

(1938); Priest v. Plus Three, 447 So.2d 338 (4th DCA 1984). See

generally Annotation, 9 A.L.R. 2d 1331 (1964) (general rule is



LI













STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS


FLORIDA PHOSPHATE COUNCIL,
INC.,

Appellant,

v. DOAH CASE NO. 88-0693R

WEST COAST REGIONAL WATER SUPPLY
AUTHORITY,
Appellee.




NOTICE OF APPEAL


Notice is. given that the Florida Phosphate Council ap-

peals to the District Court of Appeal, First District, the order

of the Division of Administrative Hearings dated March 21, 1988.

The nature of the order is a final order denying the Florida

Phosphate Council's Petition for Leave to Intervene.


Respectfully submitted,




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

Attorneys for Florida
Phosphate Council, Inc.










rj












CERTIFICATE OF SERVICE


We hereby certify that a true copy of the foregoing

"Notice of Appeal" has been provided by Purolator to Edward P. de

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

Kennedy Boulevard, Tampa, Florida 33602-5011; to Dan Fernandez

and Carlyn Harper, Southwest Florida Water Management District,

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

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

33711; James Benjamin Harrell, Pasco County Attorney, Pasco

County Government Center, 7530 Little Road, New Port Richey,

Florida 34654; David D.-Henderson, Florida Citrus Mutual, 302

South Massachusetts, Lakeland, Florida 33801; and by hand deliv-

ery to Bram D. E. Canter, Haben & Culpepper, P.A., 306 North Mon-

roe Street, Tallahassee, Florida 32301; all on this 21st day of

March, 1988.






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


185-243P3/21:194












8












that in computing time for performing an act which must take

place a certain number of days before a known future date, one of

the terminal dates is included and the other is excluded).


6. At the hearing on the Council's Petition for Leave

to Intervene, the hearing officer orally denied the petition

solely because he believed it to be untimely filed. However, the

hearing officer's written order for the first time includes an

additional ground for denial:


Additionally, the interests alleged in [the
Council's] Petition are purely speculative, in
contrast to the specific and immediate in-
terests alleged-by Pasco County in paragraphs
7-10 [and] 14-16 [of its petition for leave to
intervene] and by Florida Citrus Mutual in
paragraphs 10-13 [of its petition for leave to
intervene]. Vague speculation about future
consequences to unnamed members of the Florida
Phosphate Council if the rule at issue is de-
clared invalid does not meet the standing
requirements to participate in this rule-
challenge proceeding, particularly when the
Respondent and two Intervenors will partici-
pate in support of the questioned rule.

Order at p. 2 (citations omitted).


7. For the reasons explained in its Petition for Leave

to Intervene [Exhibit A], a substantial number of the Council's

members will be substantially affected by a determination of the

validity of the challenged rule. Indeed, the Council's members'

interests are quite similar to those identified in the petitions

for leave to intervene filed by Pasco County and Florida Citrus

Mutual. (As noted, both of these petitions for leave to inter-

vene were granted by the hearing officer.) For example, the Peti-












6. In deciding whether to issue or to renew these

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

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

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

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

guidelines for determining whether the applicable statutory

criteria have been met and whether the requested permits should

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

siderable 'uncertainty as to how the statutory criteria should be

applied.


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

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

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

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

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

sidering whether a consumptive use permit sought by Petitioner

would adversely affect existing legal uses of water by Gardinier,

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

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


8. If Petitioner's challenge is successful and

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

numerical guidelines provided by the rule will not be available

for use in determining whether Dermits should be issued or

denied. The substantial interests of a substantial number of the

members of the Council therefore will be affected by any decision

of the validity of the challenged rule.


A10












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

process is similar to the Rule found in 40C-2.3C(6) and

(7), Florida Administrative Code which has been previously

upheld as a valid exercise of delegated authority.

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

"120.52(13) and 1.01(3), FlaStat., whose substantial

interests will be affected by this court's determination of

the validity of the challenged rule.



V. Facts, Rules, and Statutes
Which Entitlie :ntervencr to Relief



10. FLORIDA CITRUS M"'UTUAL, for the reasons stated

above, is deeply involved with Respondent's, SOUTC ST

FLORIDA WATER MANAGEMENT DISTRICT, consumptive use

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

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

resource through its consumptive use permitting process. It

is a valid rule to enable Respondent, SOUTHWEST FLORIDA

WATER MANAGEMENT DISTRICT, to assess properly applicants'

effect upon the finite resource which it is charged to

protect.



WHEREFORE, FLORIDA CITRUS MUTUAL, a voluntary

cooperative association, requests:

1. That it be allowed to participate in the

proceedings as a party Responden--Intervenor; and














permit apicants property is reasonably related o conservation of the

vater resources and limiting any adverse impact upon onpeting users or

adjoining properties.

26. The 5-3-1 Rule, with the associated excepticn, creates a reqaI- abSle

balance between the public interest in conservation of water resources,

limiting adverse impac upxn adjoining properties and the need for a reasco-

,hlc, cost fficienc pocable water supply.
"Cr


IV.
DISTrrD ISSUES OF MATERIAL FACT



27. The disputed issues of mistrial tact are as follcs: 0



(a) The applicaticr of the 5-3-1 Rule stupors the

conservation of the states resources by providing

reasonable standards uxn the impact of potentimetric

surface, water table and surface wimer bodies.



(b) Wither he e applica-ion of the 5-3-1 Rule, and

esccptions thereto, is supported by the Mid-Gulf Stuidy

and other hydrological information in the possession

of the South West FloriLa IMageaent District.



(c) Whether South west Florida Management Districe

treats all permit applicants consistently and

uniformly when issuing exceptions to the 5-3-1 Rule.



(d) >ctcher any applicant has been effectively

"-1-











STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS

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


FINAL ORDER

The final hearing in this case was held in Brooksville,

Florida on March 23-24, 1988 before Donald D. Conn, Hearing

Officer, Division of Administrative Hearings, to determine

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

Code, is an invalid exercise of delegated legislative authority.

The parties were represented as follows:

Petitioner: Edward P. de la Parte, Jr., Esquire
705 East Kennedy Boulevard
Tampa, Florida 33602
(West Coast Regional Water
Supply Authority)

Respondent: Bram D. E. Canter, Esquire
306 North Monroe Street
Tallahassee, Florida 32302
and

59












the water table and driving potential needed to induce 12 inches

of recharge into the artesian system vary widely throughout the

district, and even within individual parcels.

19. A determination concerning compliance with the

5-3-1 Rule requires an assessment of several factors, including

the amount of withdrawal, its duration, and the extent of

property controlled by the applicant. However, an explanation of

these factors is not set forth in the District's rules, and

therefore there is no written policy or criteria which would

inform applicants how these factors are to be applied to their

project. The District's staff interpretation of these factors

has changed over time, but applicants are not informed of current

interpretations prior to the filing of their application.

20. The 5-3-1 Rule does not specify whether it refers

to the average annual daily withdrawal rate or a maximum daily

rate of withdrawal. Whichever rate is applied can determine

whether an applicant is in compliance with the Rule. There is

also an inconsistent treatment of consumptive uses since the

average annual daily rate is used to determine compliance for

agricultural and industrial uses, and a combination which

includes the maximum daily rate is used to determine compliance

for some public water supply wellfields.

21. Inconsistent treatment among users is also evident

concerning the duration of withdrawals when compliance with the

5-3-1 Rule is assessed. A thirty day withdrawal time period is

used for agricultural and industrial users, but for public water

supply wellfields 30, 60, 75 and 120 days has been used. No


11












to such prior acquisition of land or riaht-
of-way by any applicant is not admissible
in any proceeding relating to consumptive
use permitting and has no bearing upon a
water management district's determination
of reasonable beneficial use in the
permitting process. In the event that an
applicant elects to acquire land prior to
obtaining a consumptive use permit from a
water management district, such action
shall be considered a voluntary risk
assumed by the applicant, and the fact of
such prior acquisition shall not be
admissible in any administrative or
judicial proceeding relating to consumptive
use permitting under this chapter,
including any appeal taken from a water
management district decision.
(Emphasis supplied).

Since compliance with the 5-3-1 Rule is determined, in many

instances, at the boundary of land owned, leased or otherwise

controlled by the applicant, the more property an applicant owns

or controls the greater the amount of water he will be allowed to

withdraw. If an applicant does not own, lease or otherwise

control land, compliance with the Rule cannot be shown, and

failure to establish compliance with the 5-3-1 Rule is grounds

for denial of a consumptive use permit. The fact that Section

373.2235 prohibits the admission of any evidence of property

acquisition in a consumptive use permit proceeding makes it

impossible for an applicant to show compliance with the 5-3-1

Rule.

With the enactment of this statute, the Legislature

clearly separated an applicant's ownership of land from the

District's evaluation of consumptive use permits. The ability to

use water is not premised, in Florida, on the ownership of land,

and the owner of real property has no ownership interest in the


21 2











IN THE DISTRICT COURT OF APPEAL
FIFTH DISTRICT OF THE STATE OF FLORIDA


SOUTHWEST FLORIDA WATER
MANAGEMENT DISTRICT and
FLORIDA CITRUS MUTUAL,

Appellants,

vs. CASE NO. 88-1008

WEST COAST REGIONAL WATER
SUPPLY AUTHORITY,

Appellee.







APPENDIX TO MOTION TO TRANSFER APPEAL TO
DISTRICT COURT OF APPEAL, FIRST DISTRICT OF FLORIDA



















JOHN T. ALLEN, JR. of
JOHN T. ALLEN, JR., P.A.
4508 Central Avenue
St. Petersburg, FL 33711
(813) 321-3273
FLORIDA BAR #1284
Attorney for Appellee,
Pinellas County













STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS


WEST COAST REGIONAL
WATER SUPPLY AUTHORITY,

Petitioner,

and

PINELLAS COUNTY,

Intervenor,

v. DOAH CASE NO. 88-0693R

SOUTHWEST FLORIDA WATER
MANAGEMENT DISTRICT,

Respondent,

and PASCO COUNTY, and FLORIDA
CITRUS MUTUAL,

Intervenors.



FLORIDA PHOSPHATE COUNCIL'S
MOTION FOR STAY PENDING REVIEW


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

suant to Rule 221-6.016, Florida Administrative Code and Florida

Rule of Appellate Procedure 9.310, hereby moves for an order

staying these proceedings pending review of the order denying the

Council's Petition for Leave to Intervene. In support thereof,

the Council states:


1. The final hearing in this cause presently is sche-

duled to commence on Wednesday, March 23, 1988.







'-I












tion for Leave to Intervene filed by the Council includes

allegations:


(1) That the Council is a trade association of member

companies who use significant quantities of ground water, the

withdrawal of which is authorized by consumptive use permits is-

sued by Respondent Southwest Florida Water Management District

(SWFWMD); that these permits expire on specified dates, and that

a substantial number of the Council's members will seek to renew

these permits; that a number of the Council's members also will

apply for permits that authorize new or modified uses of water.

Council's Petition for-Leave to Intervene, 5. Cf. Petition of

Florida Citrus Mutual to Intervene, 10


(2) That, in deciding whether to issue, modify or renew

these permits, Respondent SWFWMD applies the challenged rule, as

well as the exception contained in the rule; that the Council's

members benefit from the rule because it provides objective num-

erical guidelines for determining whether the applicable stat-

utory criteria have been met and whether the requested permits

should be issued; that, absent these specific guidelines, there

will be considerable uncertainty as to how the statutory criteria

should be applied. Council's Petition for Leave to Intervene,

6. Cf. Petition of Florida Citrus Mutual to Intervene, 12-13.


(3) That Respondent SWFWMD also applies the challenged

rule in determining whether to issue a consumptive use permit to

a new user whose use would interfere with existing legal uses,


-5-


19












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

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

"tory and legislative matters. The interests which the Council

seeks to protect in these proceedings are germane to the

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

interest and activity. An order determining the validity of the

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

association to receive on behalf of its members.


Request for Relief

WHEREFORE, the Council respectfully requests that the

Hearing Officer enter an order granting it leave to intervene as

a party respondent, with all rights and privileges thereof.


Respectfully submitted,




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

-- and --

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

Attorneys for Florida
Phosphate Council, Inc.






-5-
29-












2. Thhat Rule 40D-2.3 (3) (b), (c), and ) be upheld as

constituting a valid exercise of delegated authority.



Respectfully submitted,




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

Attorney for Intervenor,
FLORIDA CITRUS MUTUAL




CERTIFY OF....- SERV!C-



I HEREBY CERTIFY that a copy of the foregoing has been

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

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

33602, Attorney for Petitioner, West Coast Regional Water

Supply Authority; BRAM CANTER, Esquire, 306 North Monroe

Street, Tallahassee, Florida 32301 and CARLYN HARPER,

Esquire, Assistant General Counsel, Attorneys for

Respondent, Southwest Florida Water Management District,

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

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

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

this the 14th day of March, 1988.




DAVID D. HENDERSO













deprived of any proper-y rights as a result of r te)

application of the 5-3-1 Rale. c



IfEREORE, the Cort-y rcspecfully reCquets:-
-.l

i. r"e Divisixon of Adainistrative Hear2irs to gr-nt intervention by

Pasco County as a full party in the referenced procediL s before tte

Diviys ion; *

2. te DivL.ion of Adcinistrative Hearings issue a Final Order finding

Rule 40D-2.301(3) Mb), (c) and (d) is a valid ezCrcise of delegated 3

legislative authority.
0-

Respectfully cbri ed, on


bien

Pascx Contry Afttrer"
Pasco Coun-y GcrVrnxM nt Center
7530 Little Road
tNe- Port Richey, FL 3465 4
(813) 847-6120 (1


CiI -FIQCTE OF SERVICE



I EBY CE1TIFY that a true and correct coy of the foregoing was furnished

by Federal Express to Edard P. de la Partc, Jr., 705 East Kennedy Blvd.,

Tampa, Florida 33601, Kent Zeizer, Deputy General Coun-sel, South West Florida

atrer Kanageuent District, 2379 Broad Stcrt, Brockz-ville, Florida 33512-8732

and John T. Allen, Jr., 4508 Central Aveaue St. Petersburg, Florida 33711

on this 14 day of March, 1988.

J3aaeB benj \ri hairiLl
Pas County attorney




-6-

o~ C












Daniel P. Fernandez, Esquire
Carlyn Harper, Esquire
Kent A. Zaiser, Esquire
Southwest Florida Water Management
District
2379 Broad Street
Brooksville, Florida 33512-9712
(Southwest Florida Water
Management District)

Intervenors: John T. Allen, Jr., Esquire
4508 Central Avenue
St. Petersburg, Florida 33711
(Pinellas County)

Brent E. Simon, Esquire
James B. Harrill, Esquire
Pasco County Government Center
7530 Little Road
New Port Richey, Florida 33552
(Pasco County)

David D. Henderson, Esquire
P. O. Box 89
Lakeland, Florida 33802
(Florida Citrus Mutual)

At the hearing, the West Coast Regional Water Supply

Authority (Authority) called five witnesses and introduced

thirty-seven exhibits; Pinellas County (Pinellas), which

intervened on behalf of the Authority, called two witnesses. The

Southwest Florida Water Management District (District) called

three witnesses and introduced one exhibit; Pasco County (Pasco)

and Florida Citrus Mutual (Mutual), who intervened on behalf of

the District, did not call any witnesses or introduce any

exhibits. Three public witnesses were also allowed to testify.

The hearing transcript was filed on April 13, 1988, and the

parties were thereafter allowed to file proposed final orders and

memoranda. The Appendix to this Final Order contains a ruling on

each timely filed proposed finding of fact submitted by the

parties.

GO
2











formal policy or criteria sets forth an explanation for this

variation which has also been applied differently by staff over

time.

22. There is also a variation among users concerning

where the 5-3-1 Rule is applied. For some public utilities,

compliance with the Rule is determined at the boundary of

individual wellsites, while for others compliance is measured at

the boundary of their service area. There are no written

policies or criteria concerning such a variation in the

application of the 5-3-1 Rule. Compliance with the Rule depends,

in many cases, on which boundary is used to determine whether an

applicant meets the Rule's limitations.

23. Stress to the hydrologic system can be caused by

the withdrawal of water, and the magnitude of such stress can be

measured by the drawdown in the potentiometric surface, the water

table and the level of surface water bodies. Therefore,

drawdowns are an obvious and accurate measurement of stress and

potential detrimental effects of water withdrawal.

24. However, non-compliance with the 5-3-1 Rule will

not harm water resources or interfere with other legal users at

all times and places. A consumptive use can exceed the 5-3-1

Rule and still be a reasonable beneficial use, be consistent with

the public interest, and not interfere with existing legal users.

However, at some locations within the District a withdrawal which

causes a reduction in water levels by less than the limits in the

5-3-1 Rule would be harmful and interfere with other users. It

all depends on site specific conditions which preclude the



12












water beneath his land. Village of Tecuesta v. Jupiter Inlet

Corporation, 371 So.2d 663 (Fla. 1979). Because the 5-3-1 Rule

abrogates the legislatively and judically recognized separation

and distinction between the right to use water and land ownership

or control, it exceeds and contravenes the District's rulemaking

authority. The impermissible dependence of water use on land

ownership or control is clearly demonstrated by evidence in the

record concerning the extensive additional acreage which the

Authority and Pinellas would have to acquire to comply with the

mandatory application of this Rule.

The Rule Is Vaaue And Fails
To Establish Adeauate Standards

The record establishes that staff of the District has

unbridled discretion in the interpretation of the 5-3-1 Rule

concerning essential factors which must be applied when

determining compliance with the Rule. Specifically, factors

including the amount of water to be withdrawn by an applicant,

the duration of the withdrawal and the extent of property

controlled by the applicant, all influence compliance. Yet, no

guidance or explanation of these factors is provided in the Rule,

and they have been applied in a varying manner over time to

different users by the District staff. The Rule does not give

notice of what activity is prohibited, and invites a

discriminatory interpretation among users. As such, it is

invalid due to its vagueness and failure to establish adequate

standards for its application. Southeastern Fisheries

Association v. Department of Natural Resources, 453 So.2d 1351



22C
22











IN THE DISTRICT COURT OF APPEAL
FIFTH DISTRICT OF THE STATE OF FLORIDA


SOUTHWEST FLORIDA WATER
MANAGEMENT DISTRICT and
FLORIDA CITRUS MUTUAL,

Appellants,

vs. CASE NO. 88-1008

WEST COAST REGIONAL WATER
SUPPLY AUTHORITY,

Appellee.







APPENDIX TO MOTION TO TRANSFER APPEAL TO
DISTRICT COURT OF APPEAL, FIRST DISTRICT OF FLORIDA



















JOHN T. ALLEN, JR. of
JOHN T. ALLEN, JR., P.A.
4508 Central Avenue
St. Petersburg, FL 33711
(813) 321-3273
FLORIDA BAR #1284
Attorney for Appellee,
Pinellas County












2. On Wednesday, March 16, 1988 -- some seven days

before the hearing -- the Council filed its Petition for Leave to

Intervene.


3. Following a motion hearing held on Friday, March

18, 1988, the Hearing Officer orally granted petitions for leave

to intervene filed by Florida Citrus Mutual and Pasco County, but

he denied the Council's Petition for Leave to Intervene. The

Hearing Officer also denied the Council's ore tenus motion for

leave to participate in the hearing as an amicus curiae. The

Hearing Officer's oral rulings are reflected in a written order

dated March 21, 1988, and the Council today has sought appellate

review of that order.


4. The Hearing Officer denied the Council's Petition

for Leave to Intervene for two reasons. First, he concluded that

the Council's petition was untimely because it was not filed in

accordance with the time limits in Rule 221-6.010, Florida Admin-

istrative Code. This rule requires that petitions for leave to

intervene be filed at least five days before the final hearing.

Another rule provides that, when the period of time prescribed or

allowed is less than seven days, intermediate Saturdays, Sundays

and legal holidays are to be excluded in the computation. Rule

221-6.002, Florida Administrative Code. This same rule provides

that, in computing any period of time prescribed or allowed by

these rules, the day of the act from which the designated period








.0












including existing legal uses of the Council's members; that the

numerical guidelines provided in the challenged rule have been

applied in considering whether a consumptive use permit sought by

Petitioner/Appellant would adversely affect the existing legal

uses of water by one of the Council's members. Council's Peti-

tion for Leave to Intervene, 7. Cf. Petition of Florida Citrus

Mutual to Intervene, T112-13.


(4) That the substantial interests of a substantial

number of the Council's member will be adversely affected if the

rule is declared invalid because the objective numberical

guidelines provided by the challenged rule will not be available

for use in determining whether a permit should be issued or

denied. Council's Petition for Leave to Intervene, 8. Cf. Pet-

"ition of Florida Citrus Mutual to Intervene, 12-13.


8. As can be seen, the Council clearly has alleged

that the substantial interests of a substantial number of its

members will be affected by a decision on the validity of the

challenged rule. The Council has alleged that its members actu-

ally withdraw water; that these members actually have permits;

that these permits actually will be required to be renewed or

modified; and that the challenged rule actually has been or will

be applied in determining whether to issue or deny these permits.

The Council also has alleged that the challenged rule actually

has been and will be applied in protecting its members' existing

legal uses of water. As such, the stated interests of the

Council's members are very real; these interests are far from

-6-












CERTIFICATE OF SERVICE


We hereby certify that a true copy of the foregoing

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

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

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

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

per and Dan Fernandez, Southwest Florida Water Management

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

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

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

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

16th day of March, 1988.






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

185-243P3/15:194











A D A V IT



STATE OF FLORIDA )

COUNTY OF POLK )



I, JOHN D. COOK, being duly sworn, depose and say:


1. I live at 3615 Walker Road, Mulberry, Florida

33860.

"2. I have been a member of FLORIDA CITRUS MUUAL since

June, 1981.

3. That I grow citrus on my property, approximately 19

acres more or less, located in Hillsboro' g County on he

West side of State Road 39 approximately two and one-half

miles South of state Highway 60.

4. That WEST COAST REGIONAL WATER SUPPLY AUTHORITY has

condemned one acre of my citrus grove in order to place a

wellfield on my property. See, West Coast Recional Water

Supply Authority v. John D. Cook and Thisbv B. Cook, et al.;

Case No. 86-17207, Thirteenth Judicial Circuit of Florida,

Hillsborough County.

5. That WEST COAST REGIONAL WATER SUPPLY AUTHORITY -has

actually drilled a well on the site which your affiant on

information and belief believes is 24 incheE in diameter and

placed to a depth of 950 feet.

6. That on information and belief, your affiant

believes that his interest in obtaining the water necessary











STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS

WEST COAST REGIONAL WATER
SUPPLY AUTHORITY,
Petitioner,
)
and
)
PINELLAS COUNTY, )
)
Intervenor, )
)
vs. ) CASE NO. 88-0693R

*SOUTHWEST. FLORIDA WATER
MANAGEMENT DISTRICT,
)
Respondent, )
)
and
)
PASCO COUNTY, and FLORIDA CITRUS )
MUTUAL, )
)
Intervenors. )
)


ORDER

A telephone conference call was held on March 18, 1988

to consider a Motion for Continuance filed on behalf of

Respondent, which is opposed by Petitioner, and Petitions for

Leave to Intervene filed on behalf of Pasco County, Florida

Citrus Mutual and The Florida Phosphate Council, which are also

opposed by Petitioner. After having heard argument of counsel,

and being fully advised, it is:

ORDERED that

(1) The Motion for Continuance is DENIED. Attorneys

who have been representing Respondent in this matter since its

inception are still with, and available tc, the Respondent. This


51

E .-4,-- r-.












FINDINGS OF FACT

1. The Authority is a special district created by

interlocal agreement in October, 1974, and encompasses Pasco,

Hillsborough and Pinellas Counties. Its voting members include

Pinellas, Hillsborough and Pasco Counties, Tampa and St.

Petersburg, and it also has a non-voting member, New Port Richey.

Seven wellfields are operated by the Authority in Pasco and

Hillsborough Counties under consumptive use permits issued by the

District for which renewal applications are now pending. The

water produced from these wellfields is sold to member utility

systems, comprising from 60%-100% of the public water supply of

those members. The public water systems supplied by the

Authority serve approximately one million persons in the Tampa

Bay area.

2. Pinellas currently operates the Eldridge-Wilde

Wellfield under a consumptive use permit from the District, for

which a renewal application is now pending. It is also a co-

applicant on two of the Authority's permit renewal applications.

3. The District is a state agency which, for purposes

of this case, is charged with regulating consumptive uses of

water in sixteen counties, including all of Hillsborough, Pasco

and Pinellas.

4. Pasco owns and operates public supply wells within

its jurisdiction which are permitted and regulated by the

District's consumptive use program.

5. Mutual is a voluntary association representing

citrus growers, including growers who are regulated by the

District's consumptive use program.
(" \
U i












mandatory, uniform application of this Rule throughout the

District.

25. An exception under subsection (4) of Rule

40D-2.301 is the way that all applicants who have been found to

be in violation of the 5-3-1 Rule have obtained consumptive use

permits, and, therefore, no permit has ever been denied based

upon the violation of this Rule. However, there are no specific

written standards or criteria for the granting of an exception to

the 5-3-1 Rule. Staff recommends, and the District approves such

exceptions on a case by case basis. According to the evidence,

Subsection (5) of Rule 40D-2.301 is not used by the District in

determining compliance with the 5-3-1 Rule or whether an

exception should be granted. Subsection (7) of Rule 40D-2.301 is

used by District staff in recommending permit conditions,

particularly for an application in violation of the 5-3-1 Rule,

but the provision does not contain all conditions which may be

imposed on consumptive uses.

26. The District concedes that the application of the

5-3-1 Rule to individual parcels can have different consequences

depending upon variable hydrogeologic conditions existing

throughout its area of jurisdiction, and that staff do not make

any site specific inspection of a parcel when initially

determining compliance with the Rule. It urges, however, that

the 5-3-1 Rule was not intended to be, and in fact has not been,

applied in a mandatory and uniform manner, but is used simply as

a guideline to identify permit applications that require closer,

site-specific evaluation. According to the District, the 5-3-1











(Fla. 1984); City of St. Petersbura v. Pinellas County Police

Benevolent Association, 414 So.2d 293 (Fla. 2nd DCA 1982).

Applicants have no way of knowing whether their

consumptive use complies with, or violates, the 5-3-1 Rule

without knowing the rate of withdrawal used in applying the Rule

(average annual withdrawal rate vs. maximum daily withdrawal

rate), the duration of withdrawal (30, 60, 75 or 120 days) and

the property boundary (well site vs. service area) that will be

used to determine compliance with the Rule. There are no written

criteria or policies to explain these factors, which staff has

applied on a case by case basis, and inconsistent treatment among

consumptive users has resulted. As a result, applicants have no

way of knowing, before they submit their application, how these

various factors will be applied to their consumptive use.

Therefore, they have no way of determining how compliance with

the 5-3-1 Rule will be measured.

While discussing the Rule's vagueness and lack of

standards, it should also be noted that even if the District's

interpretation of the 5-3-1 Rule as a guideline is accepted, the

Rule must be declared invalid on this same basis since the

exception provision found in Subsection (4), upon which the

District relies for its "guideline" construction, is totally

lacking of any standards or criteria for its use. The exception

provision may authorize a non-mandatory administration of the

Rule, but it permits unbridled discretion in its application, and

therefore does not provide a basis for upholding the challenged

rule. Pinellas County v. Southwest Florida Water Management

District, surra.
23 01












INDEX TO APPENDIX


Page

Florida Phosphate Council's
Petition for Leave to Intervene 1-6

Notice of Appeal by Florida
Phosphate Council 7-8

Florida Phosphate Council's
Motion for Stay Pending Review 9-54

Order Denying Florida Phosphate
Council's Motion for Stay Pending
Review 55

Notice of Joinder in Appeal as
Appellant by Southwest Florida Water
Management District 56-57

Order Denying Appellee's Motion
to Dismiss 58

Final Order of Division of
Administrative Hearings 59-86

Notice of Administrative Appeal by
Southwest Florida Water Management
District 87-88












of time begins to run shall not be included, and the last day of

the period shall be included unless it is a Saturday, Sunday or

legal holiday, in which event the period shall run until the end

of the next day which is neither a Saturday, Sunday or legal

holiday. Id. The Hearing Officer read these rules together and

concluded that the Council's petition was not timely filed.


5. Specifically, in considering whether the Council's

petition was timely filed, the Hearing Officer excluded: (1) the

day on which the petition was filed (Wednesday, March 16),

(2) the intervening Saturday and Sunday (March 19 and 20), and

(3) the day of the hearing (Wednesday, March 23). The Hearing

Officer therefore concluded that the Council's petition had been

filed only four days before the scheduled final hearing. In com-

puting the period of time, the Hearing Officer properly excluded

the day on which the petition was filed and the intervening Sat-

urday and Sunday. However, the Hearing Officer erred in exclud-

ing the day of the hearing. Rule 221-6.002; Roper v. Structural

Pest Control Comm'n, 155 So.2d 846, 847 (Fla. 3d DCA 1963).


6. The Hearing Officer's order also states that the

Council's petition is denied because the interests identified in

the petition are "purely speculative, in contrast to the specific

and immediate interests alleged by Pasco County in paragraphs 7-

10 [and] 14-16 and by Florida Citrus Mutual in paragraphs 10-13."

However, the Council's members' stated interests are similar to


-3-




11












"speculative" or "vague," as characterized by the hearing

officer. The Council's members therefore are much like the peti-

tioners who were found to have standing by this Court in Profes-

sional Firefighters of Florida v. DHRS, 396 So.2d 1194 (Fla. 1st

DCA 1981); they currently operate in the area regulated by the

challenged rule and their reliance on the rule has a clear,

direct effect on their ability to continue to renew or modify the

permits that are necessary to continue their operations. The

Council therefore has standing to intervene in the proceeding

below. Id.; Florida Home Builders Ass'n v. Department of Labor

and Employment Security, 412 So.2d 351 (Fla. 1982); Florida Elec-

tric Power Coordinating Group, Inc., v. County of Manatee, 417

So.2d 752 (Fla. 1st DCA 1982).


9. As can be seen from the foregoing, the hearing of-

ficer clearly erred in denying the Council's Petition for Leave

to Intervene.


10. If the hearing is held on March 23-24 as scheduled

and this court subsequently determines that the Council's Peti-

tion for Leave to Intervene was timely filed and should have been

granted, then the hearing may be required to be held again so

that the Council may participate. In order to avoid this poten-

tial waste of the hearing officer's and the parties' time and

effort, the Council respectfully requests that this Court stay

the proceedings in the lower tribunal pending review of the order

denying the Council's Petition for Leave to Intervene.



--











STATE OF FLORIDA
DIVISION OF ADvMINISTRATIVE HEARINGS



WEST COAST REGIONAL WATER
SUPPLY AUTHORITY, )

Petitioner, )

and

PINELLAS COUNTY, )

Intervenor, ) CASE NO. 88-0693R

vs. )
)
SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT, )
)
Respondent. )


PETITION OF FLORIDA CITRUS MUTUAL TO INTERVENE


Intervenor, FLORDA CTRS MUTUAL, a voluntary

cooperative association representing 12,137 citrus grower

members, by and through its undersigned attorney and

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

Fla.Stat., and Florida Administrative Code Rules

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

for leave to intervene as a party Respondent in "the

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

Intervene, would state:



I. Identification of Parties and Notices



1. Petitioner, WEST COAST REGIONAL WATER SUPPLY

AUThORZT', is a special district of the State of Florida












for the operation and maintenance of his citrus crove is

substantially affected by the 5-3-1 Rule's effect on

Petitioner, WEST COAST REGIONAL WATER SUPPLY AUTHORIY's

wellfield drilling,






JOHN D. COOK
3615 Walker Road
Mulberry, Florida 33860





SWORN TO AND SUBSCRIBED BEFORE me this 4th day of March,
19RS.




Notary Public
State of Florida


My Commission expires:























2A :
f- (7)











case must be heard on an expedited basis in accordance with

Section 120.56(2), Florida Statutes, and the fact that the

District has recently retained additional counsel in this matter

is not a basis for a continuance since original counsel are still

available to Respondent. The District's reference to the

unavailability of witnesses is also not persuasive since this

case was set for hearing with the agreement of counsel on

February 23, 1988.

(2) The Petitions to Intervene filed on behalf of

Pasco County and Florida Citrus Mutual are GRANTED, subject to

proof at hearing.

(3) The Petition to Intervene filed on behalf of The

Florida Phosphate Council is DENIED as untimely filed. See Rules

221-6.002 and 221-6.010, Florida Administrative Code. The

Petition was filed on March 16, 1988, which is not counted in the

computation of time. Therefore, the Petition was filed only four

days before the hearing, not counting Saturdays and Sundays,

rather than the required five days before the final hearing.

Additionally, the interests alleged in this Petition are purely

speculative, in contrast to the specific and immediate interests

alleged by Pasco County in paragraphs 7-10, 14-16 and by Florida

Citrus Mutual in paragraphs 10-13. Vague speculation about

future consequences to unnamed members of The Florida Phosphate

Council if the rule at issue is declared invalid does not meet

the standing requirement to participate in this rule-challenge

proceeding, particularly when the Resp'ondent and two Intervenors

will participate in support of the questioned rule. Professional


2 u











6. The parties stipulated that the Authority has

standing to maintain this challenge to the District's rule, and

that Pinellas, Pasco and Mutual have standing to intervene.

7. The rule at issue in this case is known as the

"5-3-1 Rule" and is found at Rule 40D-2.301(3) (b), (c) and (d),

Florida Administrative Code, as follows:

40D-2.301 Conditions for Issuance of
Permits.

(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.

8. Although not challenged in this case, other

sections of Rule 40D-2.301, which are relevant and necessary for

the application and interpretation of the 5-3-1 Rule, are set

forth as follows:

40D-2.301 Conditions for Issuance of
Permits.
(1) The intended consumptive use:
(a) Must be a reasonable, beneficial
use.
(b) Must be consistent with the public
interest.
(c) Will not interfere with any legal
use of water existing at the time of
application.
(2) Issuance of a permit will be denied
if the withdrawal of water:


4












Rule establishes thresholds that are generally less likely to

have adverse hydrologic effects on the water resources in the

District than are drawdowns which exceed these limits. When the

limits are exceeded, staff has recommended exceptions under

subsection (4) of Rule 40D-2.301, and in fact the District has

never denied a permit or reduced the amount of water requested by

an applicant solely because of the 5-3-1 Rule. It would be

hydrologically unsound to deny a permit solely on the basis of a

5-3-1 Rule violation.

27. As written, the 5-3-1 Rule is a mandatory

restriction on the withdrawal of water throughout the District by

a consumptive use permit applicant. Not only does the rule

itself proscribe certain drawdowns which "must not" be caused by

the applicant's withdrawal of water, but also Rule 40D-2.301(2)

clearly states that permits "will be denied" if the withdrawal of

water "will cause" the potentiometric surface and the level of

the surface of the water to be lowered below the regulatory or

minimum levels established by the District. It is precisely the

5-3-1 Rule that establishes such regulatory and minimum levels,

and therefore the mandatory terms used in Rule 40D-2.301(2) must

also be considered when interpreting the 5-3-1 Rule which is

referenced therein. Although the "exceptions" provision of

Subsection (4) of Rule 40D-2.301 applies to both the 5-3-1 Rule

as well as Rule 40D-2.301(2), there are no specific standards or

criteria for its application to either rule.

28. Although the District has chosen to administer the

5-3-1 Rule as a guideline, by its very terms, as well as the
ri i

14












The Rule Is Arbitrary And
Capricious

Insofar as the 5-3-1 Rule is applicable to individual

parcels located throughout the sixteen counties under the

District's jurisdiction, it is hydrologically unsound. The

uniform application of the Rule throughout the District is not

supported by competent, substantial evidence. In fact, it has

been shown that the 5-3-1 levels should, at most, be used as

estimations. Humana, Inc. v. Department of Health and

Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985). The

5-3-1 Rule, by its terms, applies to all consumptive use

applications district-wide, and in the case of the Authority and

Pinellas the application of this Rule to their consumptive uses,

in accordance with its mandatory terms, will have very

significant adverse consequences for users' water rates, and

their supply of water. Since there is no rational or factual

basis for such an application of the Rule, as drafted, it is

arbitrary and capricious. Agrico Chemical Company v. Department

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

The record establishes that the 5-3-1 Rule cannot be

used to accurately determine the amount of water that can be

withdrawn from a specific site without harming the water resource

or interfering with other legal users. Varying hydrologic

factors must be considered for each parcel, such as

precipitation, evapotransporation and runoff levels, as well as

porosity in the water table and driving potential needed to

induce 12 inches of recharge into the artesian system. Since the

rule does not account for these critical variations, but is
rC -'












STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS


WEST COAST REGIONAL
WATER SUPPLY AUTHORITY,

Petitioner,

v. DOAH CASE NO. 88-0693R

SOUTHWEST FLORIDA WATER
MANAGEMENT DISTRICT,

Respondent.




FLORIDA PHOSPHATE COUNCIL'S
PETITION FOR LEAVE TO INTERVENE


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

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

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

order granting it leave to intervene as a party respondent in

these proceedings. In support thereof, the Council states:


Identification of Parties

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

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

dress of Intervenor Pinellas County are set forth in the Petition

of Pinellas County to Intervene.


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

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

Tallahassee, Florida 32301.






I













those identified in the petitions for leave to intervene filed by

Pasco County and Florida Citrus Mutual. As noted, both of these

petitions for leave to intervene were granted by the Hearing

Officer. Accordingly, the Hearing Officer erred in denying the

Council's Petition for Leave to Intervene.


7. If the hearing is held on March 23-24 as scheduled

and the appellate court subsequently determines that the

Council's Petition for Leave to Intervene was timely filed and

should have been granted, then the hearing may be required to be

held again. In order to avoid this potential waste of the Hear-

ing Officer's and the parties' time and effort, the Council

respectfully requests that the Hearing Officer stay these

proceedings pending appellate review of the order denying the

Council's Petition for Leave to Intervene.


8. The undersigned counsel is authorized to represent

that Respondent Southwest Florida Water Management District, and

Intervenors Pasco County and Florida Citrus Mutual have no objec-

tion to the granting of this Motion for Stay Pending Review;

counsel for Petitioner West Coast Regional Water Supply Authority

has indicated that Perititoner opposes the granting of this

motion. The undersigned has been unsuccessful in his efforts to

contact counsel for Intervenor Pinellas County.






-A-




CL 0
4..-












11. Pursuant to Rule 9.310, Florida Rules of Appellate

Procedure, the Council today also has filed in the lower tribunal

a Motion for Stay Pending Review. However, the Council is

concerned that there will be insufficient time to obtain an order

on that motion and subsequent review of that motion, if it is

denied, given the very short period of time before the scheduled

commencement of the final hearing (on Wednesday, March 23).

Accordingly, it has filed this Emergency Motion for Stay Pending

Review with this Court.


12. In order to minimize any necessary delay of the

proceedings below, the Council also requests that, if the stay is

granted, the Court enter an order expediting this appeal by esta-

blishing a shortened briefing schedule.


13. The undersigned counsel is authorized to represent

that Respondent Southwest Florida Water Management District and

Intervenors Pasco County and Florida Citrus Mutual have no objec-

tion to the granting of this Emergency Motion for Stay Pending

Review; counsel for Petitioner/Appellee West Coast Regional Water

Supply Authority has indicated that it opposes the granting of

this motion. The undersigned has been unsuccessful in his ef-

forts to contact counsel for Intervenor Pinellas County.











-8--











encomrassinE Pasco, Hillsborough, and Pinelas Counties.

The Authority was created by interlocal agreement on October

25, 1974, pursuant to Sections 163.01 and 373.1962,

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

representatives of Hillsbcrough County, Pinellas County,

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

Petersburg. It is statutorily charged with the

responsibility for the design, construction, operation, and

maintenance of facilities in the locations and at the times

necessary to insure an adequate water supply will be

available to all persons residing within the Authority's

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

Authority presently operates wells and wellfields in Pasco

and Hillsborough Counties and holds consumptive use permits

for these facilities.

2. Respondent, SOUTHWEST FLORIDA WATER MANAGE MEANT

DISTRICT, is a state agency created pursuant to Section

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

uses of water in sixteen counties located in Southwest

Florida, including all of Pinellas County, Pasco County and

Hillsborough County. See Section 373.219, Fla.Stat.

Pursuant to this statutory charge, Respondent has

implemented a permitting program which requires all persons

seeking to withdraw water in excess of an annual average

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

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

the Southwest Florida Water Management District Governing


0) A













STT Or nFxFJ z5



EST CM= AST REXICOAL WAIER )
SUPPLY Y AMI RPTY, )



vs. ) Casc No -O.c ?R
)
SOUTiH WEST FL= I WER )
,f X DISIJCXL )
CO





SP;ra TO IEKVrN 3 IN OPPOSITIcOK PEITITICN
ALMNIS2RAIVE DCIERMINATION OF 2HE IfALIDIr GOF 1LES S
40OD-2.301(3) (), (c) and (d) n
C-J
on

PASLC Ca(NI by a t-l .-trhu its undersigned attorney, pzstat to the

prvisions of 5ectinZ 120.56(5). Florida Statutes and Florida Administxative

Code Rule 221-6.010, hereby files its Peti:LUi to Interve= e in Opposition to 0

the PetitiMn for Administrative Dertmination of the Invalidity of Rules "

04D-2.301(3)(b), (c) and (d), as filed herein by Pecitioner, WEST CXST

REGIXCN L WATER SUPLY AyTHERIT and in support thereof wuld state as fol-

lows:
I.




1. PASCO CCITY, is a political subdivision in the State of Florida

charged under Chapters 125 and 163, Florida Statutes, with the sound and

appropriate management of land, water, rnd other natural resources within the
County.
2. Pezitioxer, WEST COAST SUKaFL SJPPLY ALbRIT, is a regional

water supply authority created by Inter-Local Agreement on OtLcber 25, 1974





E>--''T C












Firefighters of Florida v. De artment of Health and

Rehabilitative Services, 396 So.2d 1-194 (Fla. 1st DCA 1981)

Farmworkers Richts OrCanization v. Department of Health and

Rehabilitative Services, 417 So.2d 753 (Fla. 1st DCA 1982).

DONE AND ORDERED this _).-I day of March, 1988, in

Tallahassee, Florida.


6NLD D. CONN
Hearing Officer
Division of Administrative Hearings
The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675

Filed with the Clerk of the
Division of Administrative Hearings
this a day of March, 1988.




Copies furnished:

Edward P. de'la Parte, Jr., Esquire
705 East Kennedy Boulevard
Tampa, Florida 33602

Daniel P. Fernandez, Esquire
Carlyn Harper, Esquire

Kent A. Zaiser, Esquire
Southwest Florida Water
Management District
2379 Broad Street
Brooksville, Florida 33512-9712

L. M. Blain, Esquire
202 Madison Street
Tampa, Florida 33602

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

Bram D. E. Canter, Esquire
306 North Monroe Street
Tallahassee, F crida 22302
r 3
-s0












(a) Will cause the rate of flow of a
stream or other watercourse to be lowered
below the regulatory level established by
the Board.
(b) Will cause the level of the
potentiometric surface to be lowered below
the regulatory level established by the
Board.
(c) Will cause the level of the surface
of water to be lowered below the minimum
level established by the Board.
(d) Will significantly induce salt water
encroachment.
(e) Will cause the water table to be
lowered so that the lake stages or
vegetation will be adversely and
significantly affected on lands other than
those owned, leased, or otherwise
controlled by the applicant.

(4) The Board for cood 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.
(5) Among other factors to be considered
by the Board in determining whether a
particular use is consistent with the
public interest will be: the maximum
amount to be withdrawn during a single
week, during a typical growing (or
irrigation) season, during an extreme cold
season, during a year of extreme drought
and during the term of the proposed permit;
the amount tc be withdrawn from adjacent or
nearby properties; the proximity of
withdrawal points to location of points of
withdrawal by others; the total amounts
presently permitted from the entire basin,
or other hydrologic unit; and the change in
storage that such withdrawal and use will
cause.
*
(7) The Board may condition the granting
of a permit so as to require:
(a) Notification of the date on which
withdrawals are commenced with such
notification to be postmarked no later than
five (5) days after the date of such
commencement.
(b) Installation of flow metering or
cther measuring devices.

c.J,,
a,=












terms of Rule 40D-2.301(2) in which it is referenced, the 5-3-1

Rule is written as a mandatory, uniform prohibition. Staff

interpretations of the Rule, and the way in which it is to be

applied, have changed repeatedly and significantly, on a case by

case basis, since its adoption. Nothing in the Rule explains

such interpretations which are critical to an understanding of

how it will be applied to an individual applicant. The

"exceptions" provision of Subsection (4) offers little guidance

to its application particularly since the record establishes that

Subsection (5), which appears to set forth specific criteria for

determining whether a particular use is consistent with the

public interest, is not used in interpreting or implementing the

"exceptions" provision of Subsection (4).

29. If the 5-3-1 Rule were to be applied to six of the

Authority's seven wellfields located within the District in Pasco

and Hillsborough Counties, which have been found to violate the

Rule at current rates of withdrawal (Cosme-Odessa, Cypress Creek,

Cross Bar Ranch, Section 21, Northwest Hillsborough Regional and

South Central Hillsborough Regional Wellfields), the combined

average annual daily withdrawal rate for these facilities would

be reduced from 127 million gallons to 61 million gallons, with

significant adverse consequences to the public water supply which

is dependent upon the Authority. Additionally, the Authority

would have to acquire 80,164 acres in and around these wellfields

in order to maintain current production levels, and the fair

market value of such property is approximately $747,000,000.

This would result in an increase in the Authority's water rates


15











written as a uniform, mandatory permit requirement, it is

arbitrary and capricious since it is not based upon fact or

reason.

Based upon the foregoing, it is:

ORDERED that Rule 40D-2.301(3)(b), (c) and (d), Florida

Administrative Code, is declared to be an invalid exercise of

delegated legislative authority pursuant to Sections 120.52(8)(b)

through (e), Florida Administrative Code.

DONE AND ORDERED this /L7 y of May, 1988, in

Tallahassee, Florida.


D LD D. CONN, hearing Officer
Division of Administrative Hearings
The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675

Filed with the Clerk of the
Division of Administrative Hearings
this i/ day of May, 1988.



A PARTY WHO IS ADVERSELY AFFECTED
BY THIS FINAL ORDER IS ENTITLED TO
JUDICIAL REVIEW PURSUANT TO SECTION
120.68, FLORIDA STATUTES. REVIEW
PROCEEDINGS ARE GOVERNED BY THE
FLORIDA RULES OF APPELLATE
PROCEDURE. SUCH PROCEEDINGS ARE
COMMENCED BY FILING ONE COPY OF A
NOTICE OF APPEAL WITH THE AGENCY
CLERK OF THE DIVISION OF
ADMINISTRATIVE HEARINGS AND A
SECOND COPY, ACCOMPANIED BY
FILING FEES PRESCRIBED BY LAW,
WITH THE DISTRICT COURT OF APPEAL,
FIRST DISTRICT, OR WITH THE DIS-
TRICT COURT OF APPEAL IN THE
APPELLATE DISTRICT WHERE THE PARTY
RESIDES. THE NOTICE OF APPEAL MUST
BE FILED WITHIN 30 DAYS OF
RENDITION OF THE ORDER TO BE
REVIEWED.


25 00












Identification of Challenaed Rule

3. Petitioner West Coast Regional Water Supply

Authority has filed a Petition for Administrative Determination

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

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

administrative determination of the invalidity of paragraphs (b),

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

trative Code. This rule was promulgated by Respondent Southwest

Florida Water Management District, and the challenged paragraphs

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


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

eral specific regulatory standards that Respondent has developed,

through rulemaking, interpreting and implementing the statutory

criteria for determining whether a consumptive use permit should

be granted. The statutory criteria are contained in Section

373.223, which provides as follows:


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

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

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

(c) Is consistent with the public
interests.

Section 373.223(1), Florida Statutes (1987). The specific regu-

latory standards that interpret and implement these statutory

criteria are set forth in the 12 subsections and 22 paracraphs in













WHEREFORE, the Council respectfully requests that the

Hearing Officer enter an order staying these proceedings pending

review of the order denying the Council's Petition for Leave to

Intervene.


Respectfully submitted,




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

"--and--

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

Attorneys for Florida
Phosphate Council, Inc.






















-5-




~t )












WHEREFORE, the Council respectfully requests that this

Court enter an emergency order staying these proceedings pending

review of the the hearing officer's final order denying the

Council's Petition for Leave to Intervene. The Council further

requests that the Court expedite this appeal by establishing a

shortened briefing schedule.


Respectfully submitted,




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

"Attorneys for Florida
Phosphate Council, Inc.












Board. The criteria applicable to these permits are

contained in Florida Administrative Code Rule 40D-2.301.

3. Intervenor-party Petitioner, PINELLAS COUNTY,

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

which is charged with the responsibility of obtaining and

supplying a potable water supply to its inhabitants of

several hundred thousand people. Pinellas County is within

the jurisdiction of the Respondent, SOUTHWEST FLORIDA WATER

MANAGEMENT DISTRICT. PINELLAS COUNTY is a co-applicant for

consumptive use permits now pending before the SOUTHWEST

FLORIDA WATER MANAGEMENT DISTRICT, with the other

co-applicants being the WEST COAST REGIONAL WATER SUPPLY

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

4. Intervenor, FLORIDA CITRUS MUTUAL, is a voluntary

cooperative association representing 12,137 citrus grower

members, FLORIDA CITRUS MUTUAL has a substantial number of

its members located within the jurisdiction of the

Respondent, SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT.

FLORIDA CITRUS MUTUAL growers in particular, comprise a

significant percentage of consumptive use permit applicants

before the SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT.

FLORIDA CITRUS MUTUAL has its headquarters at 302 South

Massachusetts Avenue, Lakeland, Florida 33801.

5. FLORIDA CITRUS MUTUAL has obtained notice that the

WEST COAST REGIONAL WATER SUPPLY AUTHORITY has filed a

Petition for Administrative Determination of the Invalidity

of Rules 40D-2.301(3) (b) (c) and (d) ("5-3-1 Rule"), in


"^ o 0














prsb ant to Sections 163.01 and 373.1962. Flo-ida Strute-. Petitioer

presently operates wells and wellficds in Pasco County and holds oesumptive'
Co

ue permits for thcse facilities issd by the South West Florida WVater

Manag nt District. Pascoo County is a member of the West Coast Regional

Water Supply Auth2rity pursuant to the above-refernced Inter-Local Agree- -

went. .

, .. 3. Respodt, SOUIH UWST FULORIA WTIER MWAT INEDE DISTRICT is respcn-

sible under (Capter 373. Florida Statxues for permitting consuptive uses of o

water provided such uses cmcply with the roquixmn+ts of Chapter 373, lorida

Stat-utes and Chapter 40D, Florida Adcnistrative Code.

4. O February 22, 1988, Pasco Cuty received a copy of the Petitio

for Admrinizsratie Detei-miaticn of the Invalidity of Rules 40D-2..301(3)(b),

(c) and (d) as filed by the Pctitioner, WEST CCST EWICL SL Y Al FIY.

5. This Peritic. as filed by the Autority challe ges the validity of

what is coonl-iy referred to as the "5-3-1" rule prcaitlg.ted by the South

west Florida tr Mtnage t DitrctDis ic iich reads as follows:

(3). The Witdrawal of Water:






Cb). 1Mst Ino cause the level of the potentimaetric

surface under lands not owned, leased, or otherwise

controlled by the applicant to be lcered by nore than

five feet (5').


(c). 2st not cause the level of the watcr table under

lani not ownOd, leased or otherwise controlled by the


-2-
f A














James B. Harrill, Esquire
Pasco County Government Center
7530 Little Road
New Port Richey, Florida 34654

David D. Henderson, Esquire
P. 0. Box 89
Lakeland, Florida 33802

Lawrence E. Sellers, Jr., Esquire
P. 0. Drawer 810
Tallahassee, Florida 32302















































4i











(c) Reports of withdrawals on forms to
be provided, which shall be submitted
within the times prescribed.
(d) Installation of observation wells or
other monitoring facilities and may
establish regulatory levels.
(e) Future reductions in withdrawals or
diversions, provided the schedule of any
such reductions or withdrawals shall be set
forth specifically on the face of the
permit.
(Emphasis supplied.)

9. The District has cited the following statutes as

specific authority for the 5-3-1 Rule:

373.044 Rules and regulations;
enforcement; availability of personnel
rules.--In administering this chapter the
governing board of the district is
authorized to make and adopt reasonable
rules, regulations, and orders which are
consistent with law;. .. .

373.113 Adoption of regulations by the
governing board.--In administering the
provisions of this chapter the governing
board shall adopt, promulgate, and enforce
such regulations as may be reasonably
necessary to effectuate its powers, duties,
and functions pursuant to the provisions of
chapter 120.

373.171 Rules and regulations.--
(1) In order to obtain the most
beneficial use of the water resources of
the state and to protect the public health,
safety, and welfare and the interests of
the water users affected, governing boards,
by action not inconsistent with the other
provisions of this law and without
impairing property rights, may:
(a) Establish rules, regulations, or
orders affecting the use of water, as
conditions warrant, and forbidding the
construction of new diversion facilities or
wells, the initiation of new water uses, or
the modification of any existing uses,
diversion facilities, or storage facilities
within the affected area.
(b) Regulate the use of water within the
affected area by apportioning, limiting, or
rotating uses cf water or by preventin-
those uses which the coverninc board finds
have cease to be reas.nabe or beneficial.
6e












by up to twenty times the 1988 rates, and could be expected to

increase individual customers' bills by up to seven times the

1988 rates.

30. If the 5-3-1 Rule were to be applied to Pinellas'

Eldridge-Wilde Wellfield, which has been found to violate the

Rule at current rates of withdrawal, the average annual daily

withdrawal rate for this wellfield would be cut by 50%. Pinellas

would have to acquire an additional 16,000 acres in and around

this wellfield to maintain current production levels, at a fair

market value of approximately $109,000,000. This would

significantly increase water rates to the 500,000 customers

served by this wellfield.

CONCLUSIONS OF LAW

The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this cause.

Section 120.56, Florida Statutes. The Authority and Pinellas

have the burden in this proceeding since they are challenging the

validity of the District's Rule 40D-2.301(3)(b), (c) and (d),

Florida Administrative Code, the 5-3-1 Rule. Agrico Chemical

Company v. Department of Environmental Regulation, 365 So.2d 759

(Fla. 1st DCA 1978), cert. den. 376 So.2d .4 (Fla. 1979); Austin

v. Department of Health and Rehabilitative Services, 495 So.2d

777 (Fla. 1st DCA 1986).

Section 120.52(8), Florida Statutes, defines and

specifies that an "invalid exercise of delegated legislative

authority means action which goes beyond the powers, functions,

and duties delegated (to an agency) by the Legislature." It



16












Copies furnished:

Edward P. de la Parte, Jr., Esquire
705 East Kennedy Boulevard
Tampa, Florida 33602

Bram D. E. Canter, Esquire
306 North Monroe Street
Tallahassee, Florida 32302

Daniel P. Fernandez, Esquire
Carlyn Harper, Esquire
Kent A. Zaiser, Esquire
Southwest Florida Water
Management District
2379 Broad Street
Brooksville, Florida 33512-9712

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

Brent E. Simon, Esquire
James B. Harrill, Esquire
Pasco County Government Center
7530 Little Road
New Port Richey, Florida 34654

David D. Henderson, Esquire
P. O. Box 89
Lakeland, Florida 33802

Liz Cloud, Chief
Bureau of Administrative Code
1802 The Capitol
Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director
Administrative Procedures Committee
120 Holland Building
Tallahssee, Florida 32399-1300















26f












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

provisions already has been sustained in response to an adminis-

trative challenge brought by Petitioner and Intervenor. See West

Coast Regional Water Supply Authority v. Southwest Florida Water

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

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

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

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

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

when applied in connection with the available exceptions, simply

is part of a rule that provides objective numerical guidelines to

be used in determining whether the applicable statutory criteria

have been met.


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

5. The Council is a trade association of 11 member

companies engaged in the mining and processing of phosphate rock

and the manufacture of fertilizers and other phosphate-based

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

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

quantities of water. These existing legal uses are authorized by

consumptive use permits issued by the Respondent. These permits

expire on specified dates, and a substantial number of the

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

time, Council members also apply for permits that authorize new

or modified uses of water.




0












CERTIFICATE OF SERVICE


We hereby certify that a true copy of the foregoing

"Florida Phosphate Council's Motion for Stay Pending Review" has

been provided by Purolator to Edward P. de la Parte, Jr., de la

Parte, Gilbert & Gramovot, P.A., 705 East Kennedy Boulevard,

Tampa, Florida 33602-5011; to Dan Fernandez and Carlyn Harper,

Southwest Florida Water Management District, 2379 Broad Street,

Brooksville, Florida 33512-8712; to John T. Allen, Jr., P.A.,

4508 Central Avenue, St. Petersburg, Florida 33711; James Benja-

min Harrell, Pasco County Attorney, Pasco County Government

Center, 7530 Little Road; New Port Richey, Florida 34654; David

D. Henderson; Florida Citrus Mutual, 302 South Massachusetts,

Lakeland, Florida 33801; and by hand delivery to Bram D. E.

Canter, Haben & Culpepper, P.A., 306 North Monroe Street,

Tallahassee, Florida 32301; all on this 21st day of March, 1988.






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


185-243P3/18:194






-6-





14?












CERTIFICATE OF SERVICE


We hereby certify that a true copy of the foregoing

"Appellant's Emergency Motion for Stay Pending Review and Motion

to Expedite Appeal" has been provided by Purolator to Edward P.

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

Kennedy Boulevard, Tampa, Florida 33602-5011; to Dan Fernandez

and Carlyn Harper, Southwest Florida Water Management District,

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

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

33711; James Benjamin Harrell, Pasco County Attorney, Pasco

County Government Center, 7530 Little Road, New Port Richey,

Florida 34654; David D. Henderson; Florida Citrus Mutual, 302

South Massachusetts, Lakeland, Florida 33801; and by hand deliv-

ery to Bram D. E. Canter, Haben & Culpepper, P.A., 306 North Mon-

roe Street, Tallahassee, Florida 32301; all on this 21st day of

March, 1988.






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


1E5-243-P3/21:194







-1 0-












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

SUPPLY AUTHORITY and -Itervenor, PINELLAS COUNTY challenged

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

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

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

Petitioner in Paragraph 9 of its petition in the case sub

_udi.ce, the water crop rule was held invalid. However,

Peitionor fails to note a companion challenge also filed by

Petitioner, WEST COAST REGIONAL WATER SUPPLY AUTHORITY, and

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

Regional Water Supptv Authority, et al. v. Scuthwest Florida

Water .Manacement District, DOAH Case Nc. 80-10C4R. The two

subsections of proposed Rule 40D-2.301 which were challenged

read as follows:

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

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

(7) If the proposed consumptive use will average
Ir=t Liaji l,ooc 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 Doint. If the


5 '- /.
^ 0^-















applicant to be lowered by nore than tree feet (3').
Cn



(d),. h=st not cause the level of trh surface of water in

any lake or other iinpouniAent to be layered by more than

one foot (1') unless the lake or inpounxxcknt is wholly
Co
owned, leased or otherwise ca-ttro2led by the applicant.


ftC
cn
FAZ .qflt PrM ASX COXUTlY VIL= JH EJSTASTLIALLY AFFEirD
CD


6. PASC5 COUKTY, is a political subdivision of the State of Florida, =
en


Sd a imeber of the, est Cbast Regional Supply Authority as a pari y to the

Inter-Local Agrpemmnt -*hicih originally created the Atarity.

7. Pasco County has acted a Ccmprehensive Pl an d 2inie i Ordinance,

both of i.-ich a& r designed to protect and conserve natural resources and to

encourage the wise and unst appropriate uses of thLe mnd, water and other

resources within the Countyv.

8. Four of the major w.llfields operated by Petitioner and referenced

in the Petition, including the Cypress Creek Wellfield, Cross Bar Ranch

Wellfield, the Starkey Wellfield and the Section 21 Wellfield all lie within

the boundaries of Pasco Coutcy.

9. The potable witer produced by tle Authority at the Starkey Wellfield

pursuant to an Inter-Local Agreenent between the Auatority, Pasco County and

the City of New Port Richey is solely for the benefit of the County and the

City of Ne Port Riche:.
10. Pasco County cws and operates apprconizately forty-five potable

3.ater production wells within the County vsed to supply the plhlic water

supp3 nocidz of its citizens. Pasco County possesses coCsuaptive use peCrrLts

-3-
KtJ 4 3














DISTRICT COURT OF APPEAL, FIRST DISTRICT


Tallahassee, Fl. 32301

Telephone (904) 488-6151

DATE March 22, 1988

CASE NO. 88-685



FLOPITDA PHOSPHATF COUNNTT., TNC. vs. WEST COAST REGIONAL WATER SUPPLY
appellant/petitioner appellee/respondent
AUTHORITY
ORDER


Appellant-'s--emergency motion for stay pending review is

denied without prejudice to pursue the motion for stay filed with

the hearing officer.











.RAYMOND E. RHODES, CLERK
.Roger W. Sims Edward Pi.

.Lawrence E. Sellers, By order of the court
JohnRAYMOND E. RHODES, CERK

I HEREBY CERTIFY that a true and correct copy of the above was
mailed this date to the following:
Roqer W. Sims Edward P. de la Parte, Jr.
Lawrence E. Sellers, Jr. Dan Fernandez

John T. Allen, Jr. C /2^ yC ^
James Benjamin Harrell Deputy Clerk
David Henderson
Bram D.E. Canter












(c) Make other rules, regulations, and
orders necessary for the preservation of
the interests of the public and of affected
water users.

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

In addition, Section 373.149, Florida Statutes, is cited as

specific authority, but nothing in the record establishes a basis

upon which this statute can be relied upon to support the 5-3-1

Rule.

10. The laws which the District cites as being

implemented by the 5-3-1 Rule are as follows:

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. However, no permit
shall be required for domestic consumption
of water by individual users.

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.
(Emphasis supplied.)

In addition, Section 373.229, Florida Statutes, is cited as a law

being implemented by this rule, but said statute governs permit

7 '- .












further provides that if any one or more of the following

applies, an agency's proposed or existing rule is invalid:

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

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

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

(e) The rule is arbitrary or capricious.

The Authority and Pinellas concede that proper

rulemaking procedures were followed in the adoption of the 5-3-1

Rule, but urge that the Rule be declared an invalid exercise of

delegated legislative authority based upon Subsections (b)

through (e) of Section 120.52(8), Florida Statutes, shown above.

For the reasons set forth below, it is concluded that it has been

established that the District's 5-3-1 Rule is invalid based upon

Section 120.52(8)(b) through (e), Florida Statutes.

The Rule Exceeds The District's
Rulemaking Authority and Enlaraes,
Modifies, Or Contravenes Specific
Provisions Of Law

The 5-3-1 Rule, by its clear and explicit terms, is

mandatory. The word "must" as used in this Rule is generally

synonymous with "shall" and indicates an obligatory requirement.

See Black's Law Dictionary, 5th Edition, p. 919; Roget's

Thesaurus, 4th Edition, p. 1088. In addition, Rule 40D-2.301(2),

which references the limitations of the 5-3-1 Rule, is also

written in mandatory terms. As with statutes, rules that are

17 7 ,










APPENDIX
(DOAH Case No. 88-0693R)

Rulings on Proposed Findings of Fact submitted by the

Authority:

1-62 Adopted in Findings of Fact 1, 6 and 29, but otherwise
Rejected as unnecessary and cumulative.
63-68 Adopted in Findings of Fact 2, 6 and 30 but otherwise
Rejected as unnecessary and cumulative.
69 Adopted in Finding of Fact 7.
70-74 Adopted in Finding of Fact 11.
75 Rejected as speculative, and irrelevant.
76-78 Rejected as irrelevant.
79-82 Adopted in Finding of Fact 12, but otherwise
Rejected as unnecessary and cumulative.
83-86 Adopted in Finding of Fact 13.
87-88 Adopted in Finding of Fact 14.
89-90 Adopted in Finding of Fact 15.
91-92 Adopted in Finding of Fact 13.
93-120 Adopted in Findings of Fact 16, 17 and 18, but
otherwise Rejected as unnecessary and irrelevant.
121-153 Adopted in Findings of Fact 19-22 but otherwise
Rejected as irrelevant, cumulative and unnecessary.
154-156 Rejected as irrelevant and unnecessary.
157-158 Adopted in Finding of Fact 24.
159 Rejected as irrelevant and unnecessary.
160 Adopted in Finding of Fact 24.
161 Adopted in Findings of Fact 27, 28.
162 Adopted in Finding of Fact 26.
163 Adopted in Finding of Fact 25.
164 Adopted in Finding of Fact 26.
165-167 Adopted in Finding of Fact 25.
168 Rejected as unnecessary.
169-170 Adopted in Finding of Fact 28.
171 Adopted in Finding of Fact 25.
172-173 Rejected as irrelevant and unnecessary.
174 Adopted in Finding of Fact 11.
175-184 Adopted in Finding of Fact 29, but otherwise
Rejected as unnecessary and cumulative.
185-190 Adopted in Finding of Fact 30, but otherwise
Rejected as unnecessary and cumulative.

Rulings of Proposed Findings of Fact submitted by

Pinellas:

1-2 Adopted in Findings of Fact 1 and 6, but otherwise
Rejected as unnecessary and cumulative.
3 Adopted in Findings of Fact 2 and 6, but otherwise
Rejected as unnecessary.
4 Adopted in Findings of Fact 3 and 7.
5-6 Adopted in Finding of Fact 8.
7 Adopted in Findings of Fact 4 and 6.
8 Adorted in Findings of Fact E and 6.
9-10C Adcped in Findings of Fact 13, 14, 15.
27
ul 0












6. In deciding whether to issue or to renew these

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

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

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

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

guidelines for determining whether the applicable statutory

criteria have been met and whether the requested permits should

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

siderable uncertainty as to how the statutory criteria should be

applied.


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

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

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

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

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

sidering whether a consumptive use permit sought by Petitioner

would adversely affect existing legal uses of water by Gardinier,

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

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


8. If Petitioner's challenge is successful and

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

numerical guidelines provided by the rule will not be available

for use in determining whether permits should be issued or

denied. The substantial interests of a substantial number of the

members of the Council therefore will be affected by any decision

cf the validity of the challenged rule.


4i













IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA


FLORIDA PHOSPHATE COUNCIL,
INC.,

Appellant,

v. DOCKET NO.

WEST COAST REGIONAL WATER SUPPLY
AUTHORITY,

Petitioner/Appellee.




APPELLANT'S EMERGENCY MOTION FOR STAY PENDING REVIEW
AND MOTION TO EXPEDITE APPEAL


Appellant Florida Phosphate Council, Inc. ("Council"),

moves this Court for an emergency order staying the proceedings

below pending review of the final order denying the Council's

Petition for Leave to Intervene. The Council also moves for an

order expediting this appeal. In support thereof, the Council

states:


1. The proceedings below were initiated on February

15, 1988, when Appellee West Coast Regional Water Supply

Authority (the Petitioner below) filed, pursuant to Section

120.56, Florida Statutes, its "Petition for Administrative Deter-

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

(d)." By this pleading, Petitioner/Appellee contests the valid-

ity of an administrative rule adopted by the Scuthwest Florida

Water Management District (a Respondent below). The final hear-

in_ in this cause presently' is scheduled to commence in just two

da ys, on Wednesday, March 23, 1988.

^- gS












STAT. OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS


WEST COAST REGIONAL
WATER SUPPLY AUTHORITY,

Petitioner,

v. DOAH CASE NO. 88-0693R

SOUTHWEST FLORIDA WATER
MANAGEMENT DISTRICT,

Respondent.




FLORIDA PHOSPHATE COUNCIL'S
PETITION FOR LEAVE TO INTERVENE


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

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

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

order granting it leave to intervene as a party respondent in

these proceedings. In support thereof, the Council states:


Identification of Parties

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

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

dress of Intervenor Pinellas County are set forth in the Petition

of Pinellas County to Intervene.


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

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

Tallahassee, Florida 32301








.=!..-.- A a see ,












Sezion 3737.> C4), Fla. Stat, provides the following

definition:

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

The challenged rule serves in the consumptive use permit

application process to assist Respondent balance the

competing interests of applicants to ensure that reasonable

beneficial uses of permitted consumption are met. As stated

above, FLORIDA CITRUS MUTUAL members comprise a significant

number of permit applications under Respondent, SOUTHWEST

FLORIDA WATER MANAGEMENT DISTRICT's jurisdiction.

"13. The competing interests of consumptive use

applicants must be constantly considered by Respondent,

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, in its

consumptive use permitting process. As stated above, a

related pending formal administrative proceeding involves

Petitioner, WEST COAST REGIONAL WATER SUPPLY AUTHORITY, and

Mr, FREEMAN POLK, a property owner adjacent to the

weillfields whose interests are substantially affected by

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

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

citrus grove owner whose grove is located within the

jurisdiction of Petitioner, W2ST COAST REGIONAL WATER SUPPLY

AUTHORITY, and Respondent, SOUTHWEST FLORIDA WATER

MANAGEMENT DSTRiCT. Mr. COOK's substantial interest ir.

obtaining the water necessary for operation and maintenance



8 n w















issued by th Sout-h est Florida Water Mnagemernt District for these

facilities Ihich total appraxirmtely 5.5 Million gallons on an average dy \
Co


basis.

11. In the past, the Sorth West Florida Water Manag.s rnt District has -
-<3



permitted production capacities for sene of the facilities based upxc the
Co


exceptions to the- 5-3-1 Rule which provide that after consideration of all

.datl presented, including eccoomic infonmatioc, an excCptix may be ranted
to


if it finds the same is consistent with the public interest. ,

12. The eli inrati- n of the 5-3-1 Rule will create confusion am x -
"co
CD


competing vater users and property owners within the County 3nd the allo-

cation of the water resources in that, individual analysis of water oC
Co



withdrawal inparts upo adjoining properties will be required to be performed
cn


in order to assure te absence of dgradation to adjoninio n roperies or to 0

idmtify the need for mitigation as a result of water withdrawal.

13. The eliminati of the 5-3-1 Rule will require additional costs to

be born by applicants for consumtive use permits in order to conduct site

specific analysis of the ipacts of with&drawls upn adjoining properties and

water resources.

14. The existence of the 5-3-1 IRle procmtes the cotinued existence and

development of envircaeally sensitive areas and wetlands such as, but not

limited to, bayheads, cypress domes and, freshwater marshes within Pasco

CouRnzty

15. That the existence of the 5-3-1 Riue prtoxztes conservation of the

water resources and effectively encourages the sound msnageoent of under-

ground wa ter resources and .-urface water bodies within Pasco Ccury.

16. The existing expntions autlxrized to the 5-3-1 Rule create an

effective balance between the public interest in the supp.y of potable water


-'4-

/ 7-'
*)













IN THE DISTRICT COURT OF
APPEAL, FIRST DISTRICT
OF FLORIDA

DCCKET NO. 88-685

FLORIDA PHOSPHATE COUNCIL,
INC. and SOUTHWEST FLORIDA
WATER MANAGEMENT DISTRICT,

Appellants,

VS.

WEST COAST REGIONAL WATER
SUPPLY AUTHORITY,

Appellee.


NOTICE OF JOINDER IN APPEAL AS APPELLANT

The Southwest Florida Water Management District, by and

through the undersigned counsel, which is the Respondent in the

proceeding before the Division of Administrative Hearings from

which this appeal is taken, hereby joins in this appeal as an

appellant pursuant to Rule 9.360(a), Florida Rules of Appellate

Procedure.



Respectfully submitted,

Bram D. E. Canter
Haben & Culpepper, P.A.
Post Office Box 10095
Tallahassee, Florida 32302
(904) 222-3533



Daniel P. Fernandez
General Counsel



Carlyn Harper
Attorney

Attorneys for the Appellant
Southwest Florida Water
Management District
2379 Broad Street
Brooksville, Florida 34609-6899
(904) 796-7211















5-











application requirements and does not appear to be relevant to

the 5-3-1 Rule under review in this case.

11. The language of current Rule 40D-2.301(3)(b), (c)

and (d), Florida Administrative Code, has remained unchanged

..since its adoption on September 11, 1974, although it was

renumbered as Rule 16J-2.11(4) (b), (c) and (d) on December 14,

1974, and was so numbered when reviewed by the Joint

Administrative Procedures Committee in 1976. At the time of its

adoption, the District did not apply the 5-3-1 Rule to Manatee

and Sarasota Counties, although these counties are within the

District's jurisdiction. No other water management district has

adopted a 5-3-1 Rule.

12. During 1976, the Joint Administrative Procedures

Committee objected to portions of the 5-3-1 Rule on the ground

that they exceeded the District's statutory authority. The 5-3-1

Rule was not revoked or modified in response to the Committee's

objection.

13. The basis for the 5-3-1 Rule is primarily found in

a 1970 United States Geological Survey report prepared by Cherry,

Stewart and Mann titled, "General Hydrology of the Middle Gulf

Area, Florida" (Mid-Gulf Report). The information contained in

this Report was gathered over a two year period beginning in 1964

from 13 wells located in parts of the Mid-Gulf area which

includes portions of Hillsborough, Pasco, Hernando and Citrus

Counties, as well as all of Pinellas County. The Mid-Gulf area

represents less than half the area under the District's

jurisdiction.












written in a mandatory manner may be construed as permissive and

directory when they relate to some immaterial matter where

compliance is more a convenience rather than a matter of

substance. Generally, where a violation of a rule or statute

..results in a penalty or deprivation, the mandatory language used

is to be given effect. Neal v. Bryant, 149 So.2d 529 (Fla.

1962); In re Forfeiture, 448 So.2d 78 (Fla. 4th DCA 1984);

Drury v. Harding, 461 So.2d 104 (Fla. 1984). Although this Rule

obviously does not set forth criminal or monetary penalties for

non-compliance, the deprivation which would result from being

denied a consumptive use permit is real and immediate for the

Authority and Pinellas, as well as water users in the Tampa Bay

area, if a mandatory effect were given to the 5-3-1 Rule.

Compliance with the Rule is clearly a matter of substance. It

would, therefore, not be appropriate to attribute a permissive

interpretation to this Rule under these circumstances.

It is well settled that where the language used in a

statute or rule is plain and unambiguous, there is no reason to

resort to rules of construction. The plain and obvious

provisions must control, and limitations or modifications should

not be implied in derogation of the express terms used in the

statute or rule. Holly v. Auld, 450 So.2d 217 (Fla. 1984);

Enclewood Water District v. Tate, 334 So.2d 626 (Fla. 2nd DCA

1976).

In this case, the mandatory terms used in the 5-3-1

Rule are clear and unambiguous, and must be given effect when

interpreting the Rule. The fact that the District has



18 '" u










11-12 Adopted in Finding of Fact 17.
13 Adopted in Finding of Fact 7.
14 Adopted in Findings of Fact 27 and 28.
15-16 Adopted in Findings of Fact 25 and 26.
17 Rejected as irrelevant and unnecessary.
18-19 Adopted in Findings of Fact 19-22, but otherwise
Rejected as unnecessary.
20 Rejected as irrelevant and unnecessary.
21 Adopted in Finding of Fact 19.
22-23 Adopted in Finding of Fact 26, but otherwise
Rejected as cumulative and irrelevant.
24 Adopted in Findings of Fact 26 and 28.
25-26 Rejected as conclusions of law rather than findings
of fact.
27 Adopted in Findings of Fact 29 and 30.
28-29 Adopted in Finding of Fact 12, but otherwise
Rejected as unnecessary and cumulative.

Rulings on Proposed Findings of Fact submitted by the

District, in which Pasco and Mutual have joined:

1 Adopted in Finding of Fact 1.
2 Adopted in Findings of Fact 1, 2 and 6.
3 Adopted in Findings of Fact 4 and 6.
4 Adopted in Findings of Fact 5 and 6.
5-6 Adopted in Finding of Fact 7.
7 Rejected as irrelevant since the rule is not challenged
under Section 120.52(8)(a), Florida Statutes.
8-10 Rejected in Findings of Fact 27, 28, although the
District's position is recognized in Finding of Fact
26.
11-16 Rejected as irrelevant and unnecessary. Regardless
what available data is used, or the procedures staff
uses in applying the Rule, it is written as a
mandatory, uniform requirement which all applicants
must meet. Factors essential to the Rule's
application and interpretation are not set forth in
writing, and reasons for variations in those
factors are not set forth. There are nc standards
for granting exceptions to the Rule. If applied in
accordance with its terms, the Rule violates Section
120.52(8)(b) through (e), Florida Statutes.
17 Rejected in Finding of Fact 29.
18 Adopted in Findings of Fact 13 and 14, but Rejected
in Findings of Fact 15 through 18.
19 Rejected as simply a summation of testimony rather
than a finding of fact.
20 Rejected in Finding of Fact 24 and as an argument on
the evidence rather than a finding of fact.
21 Adopted in Finding of Fact 23.
22 Rejected in Findings of Fact 24, 27, 28.
23 Rejected as irrelevant, and as an argument on the
evidence rather than a finding of fact.

r. '-4
2a (- '-












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

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

tory and legislative matters. The interests which the Council

seeks to protect in these proceedings are germane to the

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

interest and activity. An order determining the validity of the

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

association to receive on behalf of its members.


Reauest for Relief

WHEREFORE, the Council respectfully requests that the

Hearing Officer enter an order granting it leave to intervene as

a party respondent, with all rights and privileges thereof.


Respectfully submitted,




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

-- and--

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

Attorneys for Florida
Phosphate Council, Inc.







5













2. On Wednesday, March 16, 1988 -- some seven days

before the hearing -- the Council filed its Petition for Leave to

Intervene [Exhibit A]. Petitions for leave to intervene also

were filed by Florida Citrus Mutual and Pasco County on Monday,

March 14, and Tuesday, March 15, respectively [Exhibits B and

C].


3. By order dated Monday, March 21, 1988, the hearing

officer granted the petitions for leave to intervene filed by

Florida Citrus Mutual and Pasco County, but he denied the

Council's Petition for Leave to Intervene [Exhibit D]. The Coun-

cil today has sought appellate review of the hearing officer's

order pursuant to Section 120.68, Florida Statutes, and Rule

9.110, Florida Rules of Appellate Procedure. See Laborers Inter-

national Union of North America, Local 666 v. Public Employees

Relation Comm'n, 336 So.2d 450 (Fla. 1st DCA 1976) (agency order

denying a petition to intervene is final agency action reviewable

under Section 120.68).


4. The hearing officer denied the Council's Petition

for Leave to Intervene for two reasons. First, he concluded that

the Council's petition was untimely because it was not filed in

accordance with the time limits in Rule 221-6.010, Florida Admin-

istrative Code. This rule requires that petitions fcr leave to

intervene be filed at least five days before the final hearing.

Another rule provides that, when the period of time prescribed or

allowed is less than seven days, intermediate Saturdays, Sundays

and legal holidays are to be excluded in the computation. Rule

-2-












Identification of Challenaed Rule

3. Petitioner West Coast Regional Water Supply

Authority has filed a Petition for Administrative Determination

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

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

administrative determination of the invalidity of paragraphs (b),

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

trative Code. This rule was promulgated by Respondent Southwest

Florida Water Management District, and the challenged paragraphs

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


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

eral specific regulatory standards that Respondent has developed,

through rulemaking, interpreting and implementing the statutory

criteria for determining whether a consumptive use permit should

be granted. The statutory criteria are contained in Section

373.223, which provides as follows:


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

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

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

(c) Is consistent with the public
interests.

Section 373.223(1), Florida Statutes (1987). The specific regu-

latory standards that interpret and implement these statutory

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



t2,Li











of his citrus grove is substantially affected by

Petitioner's placement of a wellfield on his property.

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

affect Mr. COOK's substantial interest in the necessary

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

COOK is attached hereto as Exhibit A.

14. The undersigned has contacted counsel for the

Respondent and is authorized to represent that the

Respondent does not object to FLORIDA CITRUS MUTUAL's

intervention in this case,



IV' Disouted Issues of Material Fact and Law


15. FLORIDA CITRUS MUTUAL is a voluntary cooperative

association with a substantial number of its grower members

whose consumptive use permits for water are governed by

Respondent, SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT,

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

three part test for association standing to institute a rule

challenge stated in Florida Home Builders Association, et

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

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

Farmworker Riahts Ocranization, Inc. v. Department of Health

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

which states:

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















and the public interest in the cxnservaio and sond utilizatiox of Ixaited
(n

water resources.\
cD



IPII.
PASCO CCXIrY'S POSTIO ON THE VALIDIY OF TE 1M JLE
Ct



17. The 5-3-1 Rule as promulgated by the South West Florida managementt

"Di=stict in Rule 400-2.301(3)(b), (c), and (d) is a valid exercise of

delegated legislative authority in that SectiJon 373.171. Florida Statutes,
-o


provides, in pertiri nt part, as follows:
(1) In order to obtain the most beneficial use of the
o7

ter reurces of the state and to protect the Vpublic

health, ,safety, and vefre and the interest cf the water n

users affected, governing boards, by a:ctica t incozsis-

tent with the other provisions of this law and without

pairing property rights, may.



(b) regulate the use of water within the affected area

by aportianin=, z Imiring, or rotating uses of water or

by preventing those uses which the gwoerning board finds

have ceased to be reasonable or beneficial. (Ihphasis

added .

18. The 5-3-I Rule constitutes a reasonable limitation on the withdrawal

of water wh.ch Peticicner itself adrnits was based upon the findings of the

United States Ceological Survsy entitled, "General HydroDlo of the YMiddle

Ql1f Area, Elorida".

19. The 5-3-1 Rlule promotes the conservation and effcccive managcmfnt of

-ater resxxres by limiting withdrawals and mitigating averse iMpacts upon


-5--















CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the

foregoing Notice of Joinder in Appeal As Appellant has been

mailed to the following this 6-2^ day of March, 1988:

John T. Allen, 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

James Benjamin Harrill
7530 Little Road, Room 203
New Port Richey, Florida 34654
Attorney for Pasco County, Florida

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

Lawrence E. Sellers, Jr.
Roger W. Sims
Holland & Knight
Post Office Box 810
Tallahassee, Florida 32302
Attorneys for Florida Phosphate Council, Inc.





-aniel P. Fefrnahdez


Courtesy copy furnished to:

L. M. Blain
Blain & Cone, P.A.
202 East Madison Street
Tampa, Florida 33602





















rt
0U'












14. The Mid-Gulf Report found that the potentiometric

surface of the Floridian aquifer and the water table fluctuated

from 3 to 5 feet a year and that lake levels fluctuated between 1

and 4 feet a year during the two year period of the study.

15. The District's reliance on annual water level

fluctuations contained in the Mid-Gulf Report to establish the

limitations of the 5-3-1 Rule is hydrologically unsound if the

rule is applied uniformly and mandatorily throughout the

District, because it is incorrect to base water level limitations

on levels that normally fluctuate from year-to-year and from

place-to-place. The results of the Mid-Gulf Report are site

specific, are not representative of water levels underlying most

of the area under the District's jurisdiction due to variations

in geology and hydrogeology, and are not reliable since the

Report is based on data gathered over too short a duration.

16. It has also been urged by the District that the

5-3-1 Rule is based on the amount of net recharge available to

the water resource system, and results in allowing net

withdrawals equal to net recharge, thereby maintaining regional

water levels on a longer-term basis. The District maintained

that information available at the time the 5-3-1 Rule was adopted

indicated that about 12 to 13 inches of recharge resulted from

average annual rainfall, after subtracting evapotranspiration and

runcff. The corresponding equivalents of this recharge was

calculated to be: 1 foot for lakes or impoundments with a

storage factor of 1.0; 3 feet in the water table, assuming 33%

porosity; and 5 feet of driving potential, based on average


9 "












administered the 5-3-1 Rule as a guideline, and has not given

effect to its mandatory terms, does not change the mandatory

construction which must be given to the Rule since it is only

appropriate to rely upon contemporaneous, administrative

construction of a statute or rule when there is doubt as to the

terms used, or meaning of the enactment. While an administrative

construction may be persuasive, it is not controlling when found

to be contrary to the clearly expressed terms of the rule or

statute. Woodley v. Department of Health and Rehabilitative

Services, 505 So.2d 676 (Fla. 1st DCA 1987). An agency's

interpretation of unambiguous rule language will not be given

effect simply to uphold the rule. Kearse v. Department of Health

and Rehabilitative Services, 474 So.2d 819 (Fla. 1st DCA 1985).

As observed in Gadsden State Bank v. Lewis, 348 So.2d 343, 345 at

n.2 (Fla. 1st DCA 1977), wherein an agency's contrary

construction of the clear meaning of its own rules was rejected,

it is well-recognized that although:

(an agency's) experience and (the
court's) intervening constructions of the
APA may account for (the agency's)
discomfort with the unintended consequences
of its rules, we reaffirm that agencies
must honor their own substantive rules
until, pursuant to Section 120.54, Florida
Statutes, they are amended or abrogated.

While statutory provisions require an applicant to show

that the proposed consumptive use is reasonable and beneficial,

does not interfere with other water users, and is consistent with

the public interest, the 5-3-1 Rule requires that the applicant

also show that the proposed use does not violate the mandatory

limitations set forth therein. Therefore, since the 5-3-1 Rule,

19 ( '











IN THE STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CASE NO. 88-069R

SOUTHWEST FLORIDA WATER
MANAGEMENT DISTRICT,

Respondent, Appellant,

vs.

WEST COAST REGIONAL WATER
SUPPLY AUTHORITY,

Petitioner, Appellee,

and

PASCO COUNTY, FLORIDA;
PINELLAS COUNTY, FLORIDA; and
FLORIDA CITRUS MUTUAL;

Intervenors.


NOTICE OF ADMINISTRATIVE APPEAL

Notice is given that the SOUTHWEST FLORIDA WATER MANAGEMENT

DISTRICT, Appellant, appeals to the District Court of Appeal,

Fifth District of Florida, the Final Order of Hearing Officer

Donald D. Conn rendered May 17, 1988. The nature of the order is

a final order determining that Rule 40D-2.301(3)(b), (c) and (d),

Florida Administrative Code, is an invalid 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

Daniel P. Fernandez
General Counsel



Kent A. Zaiser
Deputy General Counsel
rU












CERTIFICATE OF SERVICE


We hereby certify that a true copy of the foregoing

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

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

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

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

per and Dan Fernandez, Southwest Florida Water Management

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

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

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

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

16th day of March, 1988.






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


185-243P3/15:194

















C










APPENDIX
(DOAH Case No. 88-0693R)

Rulings on Proposed Findings of Fact submitted by the

Authority:

1-62 Adopted in Findings of Fact 1, 6 and 29, but otherwise
Rejected as unnecessary and cumulative.
63-68 Adopted in Findings of Fact 2, 6 and 30 but otherwise
Rejected as unnecessary and cumulative.
69 Adopted in Finding of Fact 7.
70-74 Adopted in Finding of Fact 11.
75 Rejected as speculative, and irrelevant.
76-78 Rejected as irrelevant.
79-82 Adopted in Finding of Fact 12, but otherwise
Rejected as unnecessary and cumulative.
83-86 Adopted in Finding of Fact 13.
87-88 Adopted in Finding of Fact 14.
89-90 Adopted in Finding of Fact 15.
91-92 Adopted in Finding of Fact 13.
93-120 Adopted in Findings of Fact 16, 17 and 18, but
otherwise Rejected as unnecessary and irrelevant.
121-153 Adopted in Findings of Fact 19-22 but otherwise
Rejected as irrelevant, cumulative and unnecessary.
154-156 Rejected as irrelevant and unnecessary.
157-158 Adopted in Finding of Fact 24.
159 Rejected as irrelevant and unnecessary.
160 Adopted in Finding of Fact 24.
161 Adopted in Findings of Fact 27, 28.
162 Adopted in Finding of Fact 26.
163 Adopted in Finding of Fact 25.
164 Adopted in Finding of Fact 26.
165-167 Adopted in Finding of Fact 25.
168 Rejected as unnecessary.
169-170 Adopted in Finding of Fact 28.
171 Adopted in Finding of Fact 25.
172-173 Rejected as irrelevant and unnecessary.
174 Adopted in Finding of Fact 11.
175-184 Adopted in Finding of Fact 29, but otherwise
Rejected as unnecessary and cumulative.
185-190 Adopted in Finding of Fact 30, but otherwise
Rejected as unnecessary and cumulative.

Rulings of Proposed Findings of Fact submitted by

Pinellas:

1-2 Adopted in Findings of Fact 1 and 6, but otherwise
Rejected as unnecessary and cumulative.
3 Adopted in Findings of Fact 2 and 6, but otherwise
Rejected as unnecessary.
4 Adopted in Findings of Fact 3 and 7.
5-6 Adopted in Finding of Fact 8.
7 Adopted in Findings of Fact 4 and 6.
8 Adorted in Findings of Fact E and 6.
9-10C Adcped in Findings of Fact 13, 14, 15.
27
ul 0












CERTIFICATE OF SERVICE


We hereby certify that a true copy of the foregoing

"Florida Phosphate Council's Motion for Stay Pending Review" has

been provided by Purolator to Edward P. de la Parte, Jr., de la

Parte, Gilbert & Gramovot, P.A., 705 East Kennedy Boulevard,

Tampa, Florida 33602-5011; to Dan Fernandez and Carlyn Harper,

Southwest Florida Water Management District, 2379 Broad Street,

Brooksville, Florida 33512-8712; to John T. Allen, Jr., P.A.,

4508 Central Avenue, St. Petersburg, Florida 33711; James Benja-

min Harrell, Pasco County Attorney, Pasco County Government

Center, 7530 Little Road; New Port Richey, Florida 34654; David

D. Henderson; Florida Citrus Mutual, 302 South Massachusetts,

Lakeland, Florida 33801; and by hand delivery to Bram D. E.

Canter, Haben & Culpepper, P.A., 306 North Monroe Street,

Tallahassee, Florida 32301; all on this 21st day of March, 1988.






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


185-243P3/18:194






-6-





14?





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