Title: WCRWSA, Petitioner, and Pinellas County, Intervener v. SWFWMD, Respondent, and Pasco County and Florida Citrus Mutual, Interveners. Case No. 88-0693R
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Permanent Link: http://ufdc.ufl.edu/UF00052369/00001
 Material Information
Title: WCRWSA, Petitioner, and Pinellas County, Intervener v. SWFWMD, Respondent, and Pasco County and Florida Citrus Mutual, Interveners. Case No. 88-0693R
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Spatial Coverage: North America -- United States of America -- Florida
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Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text
',88 05/19 1139 2 0904-796-7458--1500 SWFWMD 021

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

three statutorily prescribed conditions for isoaunce 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

" "*4O*7'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 tound to be in violation of tho 5-23-

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 Distriot's cited rulemaking

authority, because it requires applicants to meet its terms in

addition to the statutory criteria set forth at Section
173.223(1), Florida Statutes. Similarly, Pinellas County v.

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

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

contravenes Sdction 373.2235, Florida Statutes, which states:

373,2235 Effect of prior land
acquisition on consumptive use
permitting.--The fact tiat 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 rigat-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 per)nit. Evidence relating


'88 05/19 11-34 904-796-7458--1500 SWFWMD ___ 11


aquifer coefficients, in order to induce an equivalent of 12

inches of recharge into the artesian system.

17. This alternative explanation of the ?asis of the

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

.. pof 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.

CTuu Lhwb.L ..t ida Water Manageient pri D riob a rAL 547-A (108 ).

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 mean's use and for maintaining natural systems. West

Coast Regional Supply 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

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.
1i. A determination concerning compliance with the

-.3-l 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 Districtt' 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 treaLtuwL uV oonuumptiivc ucoa nince *th

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

*upply welltielao 30, 60, 75 and 120 days has been used. No


'88 05/19 11:40 P'904-796-7458--1500 SWFWMD _022

to such prior acquisition of land or right-
of-waY by any applicant is not admissible
in any roceedingcr relating to consumptive
use permitting and has no'bearing upon a
water management district's determination
of reasonable beneficial use in the
permitting process. Xn the event that an
applicant elects to acquire land prior to
..l. ...,> ..... 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 otbLisch compli-n o wit-h tbhe 5-3-41 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


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


S 88 05/19 11:29 V904-796-7458--1500 SWFWMD



Petitioner, )

S...... I..... a n d ... ,; ... ... )
'I A.,)r 4 s, #,t
?Intervenor, )

vs. ) 'CAS8 NO. 88070693R

Respondent, )
and )

Intervenors. )


The final hearing in this case was held in Brooksville,

Florida on March 23-24, 1988 before Donald D; Conn, Haaring

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 3. 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

'88 05/19 11:35 0904-796-7458--1500 SWFWMD __12

formal policy or criteria sets forth an explanation for this

variation which has also been applied differently by staff over


22. There is also a variation among users concerning

S.. .where the 5-3-1 Rule is applied For some public until cities ,

oompliance with the Rule is determined at the boundary of

individual vellsites, 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 or t he? --1 Ru%. Complianoc with tha nulo dopondc,
in many cases, on wnicn boundary I used Lo udu cLt.lit wIhathAj an

applicant met e the Rule's limitations.

23. Stress to the hydrologic system can be caused by

the withdrawal of water, and the magnitude of ouch stries can be

measured by the drawdown in the potentiometric surface, the water

tablf icad LlW lwvcl uu uj.asa watLo& Ludiie. Thcrofore,

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 ILaru waLrj reeiuui.ws vi. inLestrat? with othel- l^^al uacro at

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

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

the public interest, and not intearere with existing legal users.
However, at somtne locations within the District a withdrawal which
cauf a YAduction in vwl$r lpvrla hy 1 t-hAn h1A 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


' 8'8 .0/19 11-.41 V904-796-7458-1600 SWFWMD ...023

water beneath his land. Village of Tequesta v. Jupiter Tnlet

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 tue

record concerning the extensive additional aoreage which the

AuLhu&iL-y *ld Pinalla would have to aqutir to oomply with the

mandatory application of this Rule.

The Rule Is Vague And Fails
To Establish Adequate 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,

wyroBrrnttythgl g %i waJI, njth. intent EUrorty
a 16PW 1&Iko 4 %0 0 %n too &a

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
r^=-c-r-r^^t nr Annn r S iP.rR, At fmuch. it is
invalid due to ite vagueness and failure to establish adequate

standards for its application. Southeastern Fisheries

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


' 88 05/19 11:29 0904-796-7458--1500 SWFWMD

j \
6 -

Daniol P. Fernandez, Esquire
Carlyn Harper, Esquire
Kent A. Zaiser, Esquire
Southwest Florida Water Management
2379 Broad Street
Brookaville, Florida 33512-9712
(Southwest Florida Water
..y-.. ....... ....... .... .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.oast 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 (Pacco)

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 tact submitted by the


S'88 05/19 11:35 g904-79g-7458--1500 SWFWMD i 013

mandatory, uniform application of this Rule throughout the


25. An exception under subsection (4) of Rule

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

I-.F.ow -- be in violation of the 5w3-1 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 tu 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 mako

any aite 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

13 ___________________

" 88 05/19 11:41 2904-796-7458--1500 SWFWMD 1_024
S.--Il I -- .. I I -- I I

(Fla. 1984); City of St. Petersburcq Pinallas County Poloce

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
. ... .i..^* .. ', .' ,- --.. ., ",,..* o. ,' < ... ...
(average annual witnarawal rate vb. maxiiuum 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 7

criteria or policies to explain these factors, which staff hab

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 unbri led discretion in its application, and

therefore does not provide a basis for upholding the challeiqed

rule. Pinellas County v. Southwest Florida Water Management

District, Iupra.
'I __________________________

'88 05/19 11:30 '904-796-7458--1500 SWFWMD 1004



1. The Authority is a special district created by

interlocal agreement in October, 1974, and encompasses PaDco,

Hillsborough and Pinellas Counties. Its voting members include

.... Pinellas, Hillsborough and Pasco counties, Tampaand 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.

'88 05/19 11:36 2904-796-7458--1500 SWFWMD 8016

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

-..-..u 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 laely -n 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 400-2.301(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 iaplies to both the 5-3-1 Rule

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

criteria for its applioaticj to either rule,

z2. Although the District has chosen-to administer the

6-3-1 Rule as a guideline, by its very terms, as well as the

14 ____________

"88 05/19 11:'42 '904-796-7458--1500 SWFWMD ___ ,, 025

The Rul. Is Arbitrary And
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 unsotin1. The
-- No l .. -ist. '<," ., .' .
..... .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 fop 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. Aqrico Chemical Company v. Department

of Environmental Requlation, 365 So.2d 759 (Fla. lst DCA 1978).

The record establishlos 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 af

porosity in the water table'lnd 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

24 .

'88 05/19 11:30 '904-796-7458--1500 SWFWMD

*iY 17 '?86 14: 16 HBEH & UJLPPFLf'k

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

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

Florida Administrative code, as follows:
40D-3.301 Conditions for Issuance of
(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 rake 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
(1) The intended consUmp.tive use:
(a) Must be a reasonable, beneficial
(b) Must be consistent with the public
(c) Will not interfere with any legal
use of water existing at the time of
(2) Issuance of a permit will be denied
if the withdrawal of water

'88 05/19 11:37 P904-796-7458---1500 SWFWMD 1016

term 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

.-0__,case basis, stice its adoption. Nothing in the Rul, explains
such interpretations which are critical to an understanding of

how it will be applied to an individual applicant. The
"Rexceptions" 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 Welltields), 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. 'cXdditionally, 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


"8 8 05/L 11:42 904-796-7458--1500 SWFWMD 026

wri+en aa unitemn, ndotory permit rquirement, it io

arbitrary and capricious since it is not based upon fact or


Based upon the foregoing, it is:

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

....,r Adminiatrative 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.- '7^ y of May, 1988, in

Tallahassee, Florida.

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

File with the Clerk of the
Division of Administrative Hearings
this J day of May, 1988.


______ '>^ ~____________- ---

'88 05/19 11:31 V904-796-7458--1500 SWFWMD 3006

(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 d6wered below
the regulatory level established by the
.. _......... ...... (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
(e) Will cause the water table to be
lowered so that the lake states or
vegtation will be adversely and
significantly affected on lands other than
those owned, leased, or otherwise
controlled by the applicant.

(4) The Board for good cause shown may
grant exceptions to the provisions'of
subsections (2), (3), and (11) of this rule
when after consideration of all data
presented, including economic information,
"it finds that it is consistent with the
public interest.
(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 to 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,
Sor other hydrologic unit; and the change in
storage that such withdrawal and use will
'. *
(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 suoh
notification to 6e postmarked no later than
five (5) days after the date of such .
commencement .
(b) Installation of flow metering or
other measuring devices.


Q8 519 11: 37 '904-796-7458--1500 SWFWMD 1017

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 Pincllas'

.....__, ldridge-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 out by 5o. 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.


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. Aqrico Chemical

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

(Fla. Ist DCA' 1978), cert. den. 376 So.2d 74 (Fla. 1979); Austin

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

777 (fla. lst DCA 1986). '
Section 120.b2(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 _________

'88 05/19 11'43 1904-796-7458--1500 SWFWMD i027

Copies furnished;

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

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

S... 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
450a Central Avenue
St. Petersburg, Florida 33711

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

David D. Henderson, Esquire
P. 0o 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, Flqrida 32399-1300


'88 05/19 11-31 '904-796-7458--1500 SWFWMD 1007

MA'' 17 5 14:(' n1rit.HJ I ,_ .,- -M .r.,

(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
......... .. s. such reductions or withdrawals shall be sit
forth specifically on the face of the
(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 fe ,of water, as
conditions warrant, and forbidding the
construction of new diversion facilities or
wells, the initiation of new water uses, or
the modlfioation. of any existing uses,
diversion facilities, or storage facilities
within the affected area.
(b) Requlate the use of watey within the
affected area by apportioning, limiting, or
rotating uses of water or by preventing
those uaes which the aoveaning board finds
have ceased to be reasonable or -ben-a icial*

. '88 Q051 11:38 _. 904-796-7458 1500 SWFWMD__ 18

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);

.. .. () The rule enlarges, modifies, or
S...... ..... .. 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
Rulemakinq Authority and Enlarges,
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; Roqet's

Thesaurus, 4th Edition, p. f88. 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


'88 05/19 11'32 V904-796-7458--1500 SWFWMD B1008
%P Q0 1.-4 IC rfr-L- L-14 f

(c) Make other rules, regulations, and
orders necessary for the preservation of
the interests of the public and of affected
water users,
S4 -,.
(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


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 boax4 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.--
"(I), To obtain a permit pursuant to the
provisions of this chapter, the applicant
must establish that the proposed use of
(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

S88 05/19 11:38 1904-796-7458-1500 SWFWMD 1i019


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. hryant, 149 So.2d 529 (Fla.

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

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

obviously does not set forth criminal or monetary penalties for

ui(-i-^uorirwu U, th9 deprivation whioh would rVeult: froenm >oinrj

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. 194);

Enqlewood Water District V. Tate, '334 So.2 626 (Fla. 2nd DCA


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

I &_______ _

'88 05/19 11:33 C904-796-7458--1500 SWFWMD s009

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

s----since its adoption on September 11, 1974, although it was

renumbered as Rule 16J-2.11(4)(b), (c) and (d) on December 14,
1074. and was so numbered when reviewed bV the Joint
S .. ... J-.L, 4a4a,,r ,,r 4 4",,&

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


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 wat 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

rer^^^^^ !* ^Srn holf t'.rg nrP.I ndrtr thh t


S '88 05/19 11.33 V904-796-7458--1500 SWFWMD Ii010

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 ceolocv and hydrogeoloay, 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

wtthdrawal.i 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
runoff. The corresponding equivalents of this recharge was

calculated to be: 1 foot .r lakes or impoundments with a

storage factor of 1.0; 3 feet in the water table, assuming 33%

porosityt and S feet of driving potential, based on average

'88 05/19_11:39 g904-796-7458--1500 SWFWMD D1020

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 pince it is only

appropriate to rely upon contemporaneous, administrative

-.-. c -onstruction 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. slt DCA 1985).

As observed in Gadsden State Bank v. Lewis, 348 So.2d 343, 345 at

n.2 (Fla. let 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
sTust honor their own substantive rules
until, pursuant to Sootion 130.54, 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,

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