Title: Memo: Draft Partnership Plan Dated 12/3/97
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Permanent Link: http://ufdc.ufl.edu/WL00003964/00001
 Material Information
Title: Memo: Draft Partnership Plan Dated 12/3/97
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Memo: Draft Partnership Plan Dated 12/3/97
General Note: Box 16, Folder 6 ( SWFWMD - 1997-1998 ), Item 6
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003964
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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0904 754 6878 SWFWMD LEGAL


Southwest Florida

Water Management District
2379 Broad Street Brooksville, Florida 34609-6899 1-800-423-1476 (Florida Only)
or (352) 796-7211 SUNCOM 628-4150 T.D.D. Number Only (Florida Only): 1-800-231-6103
Internet address: http://www.dep.state fl.us/swfwmd


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Roy G. Harrell, Jr.
Chairman. St. Petersburg
Joe L Davis, Jr.
Vice Chairman. Wauchula
CurtisL Law
Secretary. Land O Lakes
Sally Thompson
Treasurer, Tampa
James L Allen
Bushnell
Ramon F. Campo
8randon
Rebecca M. Eger
Sarasoto
John P. HarUee, IV
Bradenton
Ronald C. Johnson
Lake Wales
James E. Martin
St. Petersburg
Brenda Menendez
Tampa
E. D. "Sonny" Vergara
Executive Director
Gene A. Heath
Assistant Executive Director
Edward B. Helvenston
General Counsel



























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12/31/97 11:20


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12/31/97 11:21 9004 754 6878


December 8, 1997

MEMORANDUM

To: File

From: Jim Robinson
Frank Hearne
Dominick Graziano

Subject: Draft Partnership Plan Dated 12/3/97

We have reviewed the 12/3/97 draft and Jake's 12/5/97 transmittal letter to counsel, and would
offer the following comments.

1. No additional reductions in pumpage. Paragraph 1 of the letter, and corresponding
paragraph 2.K. on page 8 of the agreement, appear to say that the maximum reductions
which will be required are the reduction to 121 mgd by 2002 and the reduction to 90 mgd
by 2007. Those reductions are to be achieved by means of the following:

(1) "New alternative potable water supply facilities and regionally
significant transmission pipelines" paid for and permitted by the
District (para. 2.H.); and
(2) Conservation and reclaimed water projects co-funded and
permitted by the District (para. 6).

Is isn't clear whether or not the conservation/reuse savings would result in additional
reductions (beyond the 121 and 90), or whether such savings are merely an alternative
means, along with new facility development, for achieving those reductions milestones.
Arguably, the District should not pay out of the $183,000,000 for reductions to get to the
121 and 90 that can be achieved by reuse and conservation. Remember, the Judge
Quattlebaum found that there is available capacity in the City of St. Petersburg reuse
program sufficient to result in a 5 mgd reduction in demand on groundwater.

In 2.D. there is a reference to "permitted capacity from new sources that exceeds new
demand being used to reduce production from the eleven wellfields, but there is no
reference to any baseline from which this reduction will be taken. Does the reduction
come off of the target amounts?

2. District's Failure to Fund. Under 2.K., if the District fails to provide the requisite funds,
the Authority and its members appear to be relieved of any obligation to further reduce
pumping. This release appears to be unqualified. What if the District is unforeseeably
bound by law to cease funding? Our conditions for issuance and Standard Condition 2


SWFWMD LEGAL


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0904 754 6878 SWFWMD LEGAL


MEMORANDUM
Ed Helvenston & Jake Varn
December 8, 1997



require that a permitted meet the conditions for issuance 3-prong test throughout the term
of a permit. This paragraph would seem to get the Authority off the hook for developing
new sources, for conserving and for reusing should funding cease during the permit term.

Paragraph 20 provides that the "regulatory authority" of the District is not limited despite
the nullification and avoidance of the agreement. However, this is probably not strong
enough and clear enough to address the concern expressed above about the Authority
being "off the hook" in the event funding is stopped for whatever reason..

3. Source of New Supply. The agreement calls for pumpage reduction "as replacement
water supply facilities are permitted by the DISTRICT." (Para. 1.B.) The District does
not regulate Gulf desal and therefore would not issues permits,. Is the effect of this
provision to exclude desal as one source of new water?

4. Master Water Plan. Paragraph 6.A. refers to the Authority's Master Water Plan. Mr.
Maxwell testified at the 4-wellfield hearing that all of the projections of the Master Water
Plan are based on the assumption that existing water supply facilities will keep their
current permitted levels. Mr. Maxwell testified that, if current permitted levels were not
maintained, the Master Water Plan would be "invalid in terms of both the assessment of
current capacity and in its assessment of future demand and in its assessment of cost and
cost-related impacts."

5. Monitoring and Mitigation. It is unclear from the agreement the extent to which the
Authority will be required to monitor and mitigate environmental impacts.We understood
from John Heuer that the Authority will be required by the consolidated permit to monitor
and mitigate for environmental impacts, and that such mitigation will be over and above
mere reduction in pumping. Our draft of the consolidated permit will address both
monitoring and mitigation. You may wish to consider modifying the agreement to be
more specific on these subjects.

6. Potential New Sources of Supply. Exhibit 7 lists potential new sources. Are we
implicitly saying that they are environmentally sustainable sources for which the District
will grant permits? The agreement should make it abundantly clear that the District does
not represent that the listed sources will meet all conditions for issuance. Paragraph 2.J.
does not go far enough in making this point.

7. Actions to be Dismissed. The specifics are not yet provided in the agreement. The
Pinellas County declaratory judgment action pending in the Pasco County Circuit Court is


12/31/97 11:22





SWFWMD LEGAL _004


MEMORANDUM
Ed Helvenston & Jake Varn
December 8, 1997



against the District and a number of individuals and a citizen coalition. This agreement
isn't clear whether that action would have to be dismissed as against the District.
Certainly, Pinellas would be free to pursue the action against the remaining defendants. It
seems to us that even if Pinellas did dismiss the District from the action, the remaining
defendants could seek to bring a third party complaint against the District and bring the
District back into the suit.

8. Authority's Phase I and Phase I Water Facilities Plans. Paragraph 2.B. gives the District
90 days to consider the plans for funding purposes. Presumably by this time pending
litigation cases will be dismissed, including the 4-wellfields case, and we will have given
up all the favorable findings of facts and conclusions of law contained in the 4-wellfield's
recommended order. What happens if the District does not fund all or a portion of these
plans? If the Authority is then "off the hook" by reason of paragraph 2.K. (meaning that
the Authority keeps the permit until at least December 31, 2010 (see para. 2.J.) but does
not have to effect further reductions), and the agreement is null and void, where does that
leave us?

9. Funding. How could the District process funding within the 90-day deadline provided by
para. 2.B.? Paragraph 2.C. does not require the Authority to demonstrate reasonable
assurances that the planned sources meet permitting criteria. In effect, there is no permit
application required by the terms of this agreement for the sources for which funding will
be considered. What project components will the District fund? The agreement should
be very specific.

10. Reasonable Assurances and Permit Term. Paragraph 2J. provides for 20 year permits for
new supply sources, or such shorter terms for which reasonable assurances can be
provided, but in no event shall such terms expire prior to December 31, 2010. What
happens if reasonable assurances were provided for one or more of such permits only
through 2005 or 20077 Are we then saying that reasonable assurances need not be
provided for that 5 or 3 year difference? If so, this would not appear to be supported by
applicable law. For example, paragraph 3 C would seem to require only that
environmental "stresses' be minimized. Is this in keeping with Chapter 373 requirements.

11. Modification of Existing Rules or Orders, Including Permits. Paragraph 8.D. provides
that the agreement does not modify any existing rules or orders, including permits. This
should be modified to account for the fact that the agreement, and consolidated permit,
will modify a number of existing water use permits.


12/31/97 11:23 0904 754 6878






12/31/97 11:24 0904 754 6878


Q@005


SWFWMD LEGAL


MEMORANDUM
Ed Helvenston & Jake Vain
December 8, 1997



12. Minimum Flows for Hillsborough River. Paragraph 3.E. commits the District to propose
the quoted language as a minimum flow for this water course. One reading of this
paragraph indicates that the paragraph itself initiates rulemaking and ought, therefore, to
be published in the F.A.W. That might be cured by changing "proposes" to "has
proposed" in the third line, and go on to state the date and method of publication.
Furthermore, assuming that an ECOSWF or some other party successfully challenges this
proposed minimum flow, are we nevertheless bound to it under contract with the
Authority? What is the consequence of a successful challenge on the Authority's
obligations under the agreement and consolidated permit?

13. Effect of Agreement as Requiring Rulemaking. This agreement arguably would set an
effective minimum level for the Floridan and surficial aquifers in the Northern Tampa
Bay region as a whole. The reductions to 121 mgd and 90 mgd will result in a level for
these aquifers. If so, does this agreement constitute an agency statement of general
applicability requiring rulemaking?

14. Statutory Requirements for Recovery Strategy. Laws 1997, c. 97-160, Sec. 28, provides
that as it relates only to the counties of Hillsborough, Pasco, and Pinellas, in the event of
conflict between Sec. 373.0421(2), F.S. (recovery strategy), and prior and statutory and
case law, the prior law governs; provided, however, that the establishment and
implementation of minimum flows for the Hillsborough River and the Palm River/Tampa
By-Pass Canal are governed by Secs. 5 and 6 ofc. 97-160. The question arises as to
whether any such conflict exists and, if so, what effect that would have on the agreement.

15. Limitation of Liability. Suggest para. 15 be reworked. The underscored language doesn't
seem to go with the language which follows it in the same sentence.

16. What would happen if there is no completion of the purchase of the wellfields? The
Agreement contains no mechanism for dispute resolution other than scientific issues.

cc: Ken Weber








4




12/31/97 11:24 0904 754 6878


WocC P~obucT'

By December 31, 1998, the Authority shall have filed all permit
applications for New Sources which require Water Use Permits from
the District. Assuming the applications are complete and sufficiently
detailed to enable the District to make an informed decision whether
or not to grant or deny them in accordance with applicable permitting
criteria, the District's proposed agency action on said applications
shall be issued within 1 year from the date the application is filed.
Within 6 months of receipt of a complete application for a New
Source, the District shall advise the Authority in writing whether or
not funds will be made available for the project, and, if so, the
approximate amount of such funds. Any such commitment shall be
subject to permit issuance. The parties acknowledge that the actual
cost of funding the project will be unknown until such time as a
Water Use Permit and any and all other governmental permits and
approvals issue. Within 60 days of issuance of a Water Use Permit
for a particular project and the District's receipt from the Authority of
written evidence of the terms and conditions of any such
governmental permits and approvals for such project, the District
shall advise the Authority in writing of the precise amount of funds
that will be made available for such project. Disbursement of funds
shall be made in accordance with the terms and conditions of the
Partnership Plan.


oo006


SWFWMD LEGAL




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