Title: Citrus will be Hard Hit if SWUCA is Created
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Permanent Link: http://ufdc.ufl.edu/WL00002346/00001
 Material Information
Title: Citrus will be Hard Hit if SWUCA is Created
Physical Description: Book
Language: English
Publisher: Citrus Industry
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Citrus will be Hard Hit if SWUCA is Created, Aug 1993
General Note: Box 10, Folder 14 ( SF-Water Use Caution Areas-SWFWMD - 1993-1994 ), Item 61
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00002346
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.

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Much will hang in the balance
when the Southwest Florida
Water Management District decides
in the next few months whether to
declare a water use caution area
(WUCA) in an eight-county area of
Central Florida.
The decision of Swiftmud's
Governing Board may well deterinine
the future of land uses-including
agricultural uses-throughout penin-
sular Florida over the long haul.
The proposed WUCA covers all of
Manatee, Sarasota, Hardee, and
Desoto Counties; almost all of Polk;
and major portions of Hillsborough,
Highlands, and Charlotte Counties.
Extensive as that area is, the poten-
tial impact of the decision reaches far
beyond those eight counties. Because
of the precedential effect of the pro-
posed WUCA if designated-it is
being carved out in response to a
problem common to large areas along
both the Atlantic and Gulf coasts-
both the St. Johns and South Florida
Water Management Districts are like-
ly to follow up by similar designa-
tions of major chunks of real estate
throughout South and Central Florida.
The legal significance of designa-
tion of any area as a WUCA is that
the statutorily-mandated standards for
consumptive use permits are
superceded by special requirements.
While the statutes establish the test by
which all permit applicants must be
judged, thereby establishing a rough
equality of treatment, declaration of
an area as a WUCA allows the water
management district to treat different
classes of applicants differently with-
in the WUCA. Thus, the district may
discriminate in favor of, say, munici-
pal wellfields, or against fish farmers,
within a WUCA. It can impose
stricter standards or harsher require-
ments for whichever group it elects to
distinguish. In fact, under rules pro-
posed for the WUCA, citrus would be
held to a higher efficiency standard
than other ag enterprises.
To be sure, the proposed Southern
WUCA (SWUCA) will not be the
first area so designated by Swiftmud.
In fact, two of the existing three
WUCAS already declared by
Swiftmud (the Highlands Ridge
WUCA and the East Tampa Bay
WUCA) are to be merged into this
new SWUCA if the Board adopts the
staff proposal.


What's different and dangerous
about SWUCA is (1) the huge land
mass involved and (2) the pooling of
areas enjoying an abundance of water
resources with areas suffering a water
shortage.
By pooling the water-rich areas
with the water-short areas in a single
WUCA, Swiftmud will force users in
the rich areas to cut back to overcome
the deficiencies in the shortage areas.
The situation is not unlike a bank
forcing depositors with balances
above a certain minimum to reduce
their withdrawals in order to help cus-
tomers who have overdrawn their
accounts.
The staff at Swiftmud is admitting,
by implication at least, that it has
over-permitted groundwater with-
drawals in certain coastal areas of
Manatee, Sarasota, and eastern
Hillsborough Counties. The over-
pumping there has invited saltwater
intrusion which threatens freshwater
supplies; if unchecked, the inland
movement of salty water from the
Gulf could be calamitous.
If Swiftmud, however, has over-
allocated in those particular areas,
there has been an under-allocation for
the most part in the interior areas.
Thus, the staff proposes to cut back
on allocations (for both existing and
new permits) throughout the proposed
SWUCA; the water "saved" from
allocation in Highlands or Hardee will
thereby be available for use in the
impacted coastal areas.
These reductions in interior areas
are not limited to agriculture, of
course. City and county wellfields, for
instances, will be required to reduce
their pumpage to 150 gallons per day
per household under the plan now
being pushed by Swiftmud staff. And,
of course, there are agricultural enter-
prises right in the most impacted
coastal areas.
Nevertheless the general pattern is
for agriculture to be located away
from the coast and in the under-allo-
cated regions. Thus, agriculture will
take a hard hit if Swiftmud requires
cutbacks in the interior.
Under the current staff proposal,
these cutbacks will be accomplished
in the following three ways when an
agricultural permit comes up for
renewal:
1) Acreage. A primary factor in
determining the quantity of water


28 CITRUS INDUSTRY August, 1993


[


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Citrus will be hard hit


if SWUCA is created
By Mgynon Evans, Attorney at Law




, I 1 1 1 ; U ii


allowed for irrigation is the number of
acres to be irrigated. Under present
rules this is determined largely by
property boundaries.
The staff now proposes rules with-
in SWUCA to establish acreage by
"backing out" the square footage of
land surface not under irrigation, such
as wetlands. A more radical sugges-
tion would further reduce acreage cal-
culations by eliminating areas
between rows that are not directly
watered by low volume under-tree
systems.
2) Actual Use. Another staff pro-
posal would reduce the amount of
water permitted to an individual
grower to the amount he actually used
during the 1988-92 period. Since few
growers had meters on their wells
during that time period, determining
the amount of actual acreage poses a
critical problem. Will Swiftmud place
the burden of proof on the individual
grower? How would a grower prove
that? On the other hand, would a
grower dare to rely on Swiftmud staff
to establish that amount?
One staff proposal calls for basing
the pumpage on the amount reported
by the grower. (The writer recalls
advising growers back in the mid-
'80s, while serving as attorney to
Florida Citrus Mutual, that putting
meters on their wells and reporting
gallons to the District was a no-win
situation.)
If they reported pumping more
water than allowed by their permit,
they would have admitted violating a
permit condition and would be subject
to permit revocation; on the other
hand, if they reported pumping less
than permitted, they could lose the
right to pump that quantity.)
3) Rainfall. Irrigation is generally
considered a supplement to rainfall,
so the amount of irrigation permitted
depends on how much rainfall is
expected. Obviously, if one assumes
rainfall of only 20 inches annually,
more water will be permitted than if
one assumes, say, 50 inches of rain.
Under current policy the District
utilizes the "two in ten years" rule.
Rainfall is calculated for the two dri-
est years in the last ten.
Under a staff-proposed policy for
SWUCA, rainfall would be calculated
as the average for a statistical ten
years and irrigation needs adjusted
accordingly. That calculation will, of
course, succeed in cutting back on
permitted withdrawals; it will also
leave the grower without sufficient
water during times of long-term
drought or during hard freezes, and it
is during atypical conditions that
water is most needed.
How will applications for new per-
mits be treated in SWUCA if the staff


proposal is adopted by Swiftmud's
Governing Board? There's no official
answer to that question other than
noting that a new formula must be
devised. Both staff and board mem-
bers deny any intent to declare a
moratorium on new permits over the
entire proposed SWUCA, as has
already been done in a smaller area.
Nevertheless, a cautious mind notes
that language in at least one staff
position paper lends itself to such an
interpretation.
And, in the long run, it will be the
staff that interprets and applies what-
ever regimen is adopted by the board.
It remains to be seen whether the
board will adopt the staff proposal
when it begins formal rulemaking
proceedings late this year. It is antici-
pated that formal proceedings will
begin in October or November. If the
board does designate this eight-coun-
ty area as SWUCA and if it adopts
SWUCA regulations even similar to
those now proposed by staff,
Swiftmud will have embarked on a
course which would have been
unthinkable a few years ago.
It will have determined that per-
sons living in the interior of peninsu-
lar Florida must sacrifice their water
rights for the benefit of highly popu-
lar coastal areas. That will hurt not
only growers in the interior, but
municipal supply, industry, and urban
development interests as well.
Depending in part on how zealous-
ly the regulations would be applied,
Swiftmud may place the future of cit-
rus in considerable doubt. The grow-
er, already awash with ever increas-
ing government regulations, confront-
ed with labor shortages and falling
prices, squeezed by declining land
values, and facing unfair competition
from Mexico under NAFTA, simply
cannot withstand a significant reduc-
tion in his water allocations. That
would have a direct and deleterious
impact on production and damage his
already-battered bottom line. N


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--


Mygnon Evans, formerly staff attor-
neyfor Florida Citrus Mutual, is in
the private practice of law in
Lakeland. Comments and questions
may be directed to her at 813-853-
4656 or 5600 U.S. 98 North, a f.
Lakeland, 33809.
CITRUS INDUSTRY August, 1993 29




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