Title: Administrative Hearing: Case No. 94-5742RP
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 Material Information
Title: Administrative Hearing: Case No. 94-5742RP
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Administrative Hearing: Case No. 94-5742RP, Charlotte County vs. SWFWMD
General Note: Box 10, Folder 14 ( SF-Water Use Caution Areas-SWFWMD - 1993-1994 ), Item 1
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00002286
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS


CHARLOTTE COUNTY, FLORIDA, )
)
Petitioners,
)
vs. ) CASE NO. 94-5742RP
)
SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT, )
)
Respondent.



SETTLEMENT AGREEMENT

Petitioners, FLORIDA FARM BUREAU FEDERATION; FLORIDA

NURSERYMEN & GROWERS ASSOCIATION, INC.; FLORIDA CITRUS PRODUCTION

MANAGERS ASSOCIATION; MANATEE COUNTY FARM BUREAU; FLORIDA TROPICAL

FISH FARM ASSOCIATION; IMPERIAL POLK COUNTY FARM BUREAU; GULF

CITRUS GROWERS ASSOCIATION, INC.; FLORIDA TOMATO EXCHANGE; FLORIDA

FRUIT & VEGETABLE ASSOCIATION; FLORIDA STRAWBERRY GROWERS

ASSOCIATION; HILLSBOROUGH COUNTY FARM BUREAU; PEACE RIVER VALLEY

CITRUS GROWERS ASSOCIATION; ROLLING MEADOW RANCH, INC.; and BOWEN

BROTHERS, INC., hereinafter referred to as "PETITIONERS", hereby

enter into this Settlement Agreement with Respondent, SOUTHWEST

FLORIDA WATER MANAGEMENT DISTRICT, hereinafter referred to as

"DISTRICT", in order to resolve the proposed rule, existing rule


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and non-rule policy challenges regarding Chapter 40D-2 and 40D-8

F.A.C. in this proceeding and agree and stipulate to the following:

WHEREAS, the DISTRICT published proposed rules amending Rule

Chapters 40D-2 and 40D-8 on December 2, 1994; and

WHEREAS, PETITIONERS filed a proposed rule, existing and non-

rule policy challenge on December 23, 1994; and

WHEREAS, the DISTRICT and the PETITIONERS desire to resolve

all rule challenge issues without the necessity of further legal

proceedings.

NOW, THEREFORE, in consideration of the covenants and

conditions to be performed and observed as set forth below, it is

agreed by and between the DISTRICT and the PETITIONERS as follows:

1. Intent.

a. The DISTRICT has proposed a modification of Rule 40D-

2 and 40D-8, F.A.C., to reflect its intent that the minimum aquifer

levels proposed for adoption reflect the DISTRICT's goal to obtain

safe yield withdrawal levels over a reasonable time in the Floridan

aquifer in the SWUCA, and that they not be construed as regulatory

levels, the breach of which alone would amount to a breach of

permit conditions. Further, the SWUCA minimum aquifer levels alone

shall not be used to reduce currently existing water use permit

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quantities (as of the date of this Agreement) on renewal,

modification, transfer or relocation. If the rule were interpreted

or changed in any way to affect this result, the DISTRICT would

withdraw the minimum aquifer levels or render the levels invalid

for the SWUCA in order to prevent these types of reductions to

existing water uses. This does not preclude rules contained in

40D-2 from reducing permitted quantities.

b. It is the intent of the DISTRICT to provide complete

and open public review of all of its scientific information

regarding the SWUCA. The DISTRICT will provide reasonable

assistance to hydrologists from interested user groups to obtain

the data, studies, documents and requested compilation of data from

the DISTRICT's sources over the next five years in order to provide

for further understanding of the hydrologic systems in the SWUCA.

The DISTRICT intends to cooperate and work with interested

hydrologists representing users in the SWUCA to provide a better

understanding of the hydrogeologic system through outside peer

review. The DISTRICT will provide a forum for the exchange of

scientific information concerning water quantity and water quality

issues in the SWUCA. A purpose of these public workshops will be

for the Governing Board to receive the DISTRICT's information and


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the user group hydrologist's information regarding any necessity to

reopen the minimum aquifer level rules or Chapter 40D-2 for further

rulemaking.

c. The DISTRICT intends to promote increased stability

in the calculation of crop irrigation requirements. The DISTRICT's

AGMOD computer model and analysis provide one method for

determining water allocations for agricultural irrigation. The

DISTRICT will provide adequate public review and comment prior to

any change or amendment to AGMOD.




2. SPECIFIC PROVISIONS.

a. The DISTRICT agrees that a DISTRICT staff

hydrologist will meet with the user group hydrologist at a minimum

on a semi-annual basis to discuss all current information regarding

the hydrology of the Southern Water Use Caution Area. This

information shall include reasonable requested data compilations by

the user group hydrologist from source information at the DISTRICT

and any ongoing analysis, drafts of analysis or reports generated

by or on behalf of the DISTRICT regarding the SWUCA and any and all

other information that provide information regarding the SWUCA.

The DISTRICT shall provide access to this information beginning




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thirty days after the conclusion of the litigation from the SWUCA

rule challenge, Case No. 94-5742RP.

b. The DISTRICT agrees to receive information from the

user group hydrologist regarding possible new rulemaking for 40D-2

and 40D-8 at the end of five years, and the DISTRICT agrees to

establish two public workshops at the conclusion of its five year

data gathering on the SWUCA. At the end of its five year study

period for the SWUCA, the DISTRICT will conduct at least two public

workshops, one of which shall be a DISTRICT Governing Board

workshop, in order to assess any necessary revisions to Chapter

40D-2 and 40D-8 regarding the minimum aquifer levels, boundaries

and regulatory and non-regulatory solutions for the water resource

in the SWUCA.

c. The DISTRICT agrees to approve and publish the

proposed language attached hereto as Exhibit "1".

d. The DT that if the intent language

providing for no impact to existing users from the direct

application of minimum aquifer levels is found to be invalid in a

rule challenge proceeding or if any of the proposed rule language

contained in Exhibit "1" is found to be invalid in a rule challenge

proceeding or any other legal proceeding that the DISTRICT shall

5











withdraw 40D-8.628 in its entirety within ninety (90) days of the

determination of invalidity.

e. The DISTRICT agrees that prior to any future changes

or amendments to AGMOD as described in the appendices to the Basis

of Review of the current proposed revisions to 40D-2, F.A.C., it

must provide for a public review and comment period to afford an

opportunity for examination of the proposed changes or amendments

of at least twelve (12) months. At the end of this public review

period, any changes to AGMOD shall be approved by the Governing

Board, and the DISTRICT shall provide a six (6) month notice period

to all affected permittees prior to implementation.

f. The PETITIONERS agree to voluntarily dismiss or

withdraw all petitions filed on their behalf and not to intervene

in opposition to Ch. 40D-2 or 40D-8 F.A.C. in proceeding Case No.

94-5742RP.

3. MISCELLANEOUS PROVISIONS:

a. Entire Agreement. This Agreement embodies the

entire agreement and understanding between the parties with respect

to the subject matter, expressly superseding all prior agreements

and understandings whether oral or written.


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b. Modification. This Agreement may be modified or

amended by the mutual agreement of the parties; provided, however,

no such modification or amendment shall be effective until reduced

to writing and signed by an authorized representative of each party

or such party's successor in interest.

c. Severability. If any covenant or condition

contained in this Agreement shall ever be determined by a court of

competent jurisdiction or the Division of Administrative Hearings

to be invalid, illegal or incapable of being enforced, then such

covenant or condition, with such modifications as shall be required

in order to render such covenant or condition not invalid, illegal

or incapable of being enforced, shall remain in full force and

affect, and all other covenants and conditions contained in this

Agreement shall, nevertheless, remain in full force and affect, it

is the intention of the parties that no covenant or condition shall

be dependent upon any other covenant or conditions unless so

expressed herein.

d. Construction. This Agreement shall not be construed

more strongly against any party, regardless of who may have been

deemed to have prepared it.




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e. Applicable Law. This Agreement shall be governed by

and construed in accordance with the laws of the State of Florida.

f. Litigation. In the event any litigation is

instituted for the purpose of interpreting or enforcing any of the

provisions of this Agreement, the prevailing party or parties, as

determined by the court or administrative body having jurisdiction

thereof, shall be entitled to recover from the non-prevailing party

or parties, in addition to all other relief, all costs and expenses

incurred in connection with such litigation including, without

limitation, reasonable fees of engineers, hydrologists and other

experts and reasonable attorneys' fees at both the fact finding

level and in connection with all appellate proceedings.

IN WITNESS WHEREOF, FLORIDA FARM BUREAU FEDERATION; FLORIDA

NURSERYMEN & GROWERS ASSOCIATION, INC.; FLORIDA CITRUS PRODUCTION

MANAGERS ASSOCIATION; MANATEE COUNTY FARM BUREAU; FLORIDA TROPICAL

FISH FARM ASSOCIATION; IMPERIAL POLK COUNTY FARM BUREAU; GULF

CITRUS GROWERS ASSOCIATION, INC.; FLORIDA TOMATO EXCHANGE; FLORIDA

FRUIT & VEGETABLE ASSOCIATION; FLORIDA STRAWBERRY GROWERS

ASSOCIATION; HILLSBOROUGH COUNTY FARM BUREAU; PEACE RIVER VALLEY

CITRUS GROWERS ASSOCIATION; ROLLING MEADOW RANCH, INC.; and BOWEN

BROTHERS, INC. have caused this Agreement to be executed by the




li I I


following


authorized representatives


this


day of


, 1995.


WITNESSES:


FLORIDA FARM BUREAU FEDERATION


By:


FLORIDA NURSERYMEN
ASSOCIATION, INC.


& GROWERS


By:


FLORIDA CITRUS PRODUCTION MANAGERS
ASSOCIATION



By:





MANATEE COUNTY FARM BUREAU



By:











9












FLORIDA TROPICAL
ASSOCIATION


FISH


FARM


By:





IMPERIAL POLK COUNTY FARM BUREAU



By:


GULF CITRUS GROWERS ASSOCIATION,
INC.



By:





FLORIDA TOMATO EXCHANGE



By:


FLORIDA FRUIT
ASSOCIATION


& VEGETABLE


By:




10


I. i i ,


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FLORIDA
ASSOCIATION


STRAWBERRY


By:


HILLSBOROUGH COUNTY FARM BUREAU



By:





PEACE RIVER VALLEY CITRUS GROWERS
ASSOCIATION



By:


ROLLING MEADOW RANCH, INC.



By:





BOWEN BROTHERS, INC.


By:




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GROWERS


_ -----------~F-




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IN WITNESS WHEREOF, the Governing Board of the Southwest

Florida Water Management District on January 25, 1995, delegated

its authority to its Executive Director, Peter Hubbell, Chairman,

Joe Davis, Jr. and Chairman of its Regulatory Committee, Raymond

Campo to execute a settlement agreement on this matter as its duly

authorized representatives. Executive Director, Peter Hubbell,

Chairman of the Southwest Florida Water Management District

Governing Board, Joe Davis, Jr. and Chairman of the Southwest

Florida Water Management District Governing Board Regulatory

Committee, Raymond Campo, cause this Agreement to be executed as

the duly authorized representatives of the Governing Board of the

Southwest Florida Water Management District.



WITNESSES: SOUTHWEST FLORIDA WATER MANAGEMENT
DISTRICT



By:
Joe Davis, Jr.
Chairman
Signed at Wauchula, Florida this
day of January 1995.





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SOUTHWEST FLORIDA WATER MANAGEMENT
DISTRICT



By:
Raymond Campo
Chairman, Regulatory Committee
Signed at Tampa, Florida this
day of January 1995.



SOUTHWEST FLORIDA WATER MANAGEMENT
DISTRICT



By:
Peter Hubbell
Executive Director
Signed at Brooksville, Florida
this day January 1995.




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