Title: Environmental and Land Use Law Referred to in Memo to Members of the Task Force on Water Issues by W'm Sadowski dated Aprl 28, 1983
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 Material Information
Title: Environmental and Land Use Law Referred to in Memo to Members of the Task Force on Water Issues by W'm Sadowski dated Aprl 28, 1983
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Language: English
Publisher: The Fla Bar Journal April 1983
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Environmental and Land Use Law Referred to in Memo to Members of the Task Force on Water Issues by W'm Sadowski dated Aprl 28, 1983 (JDV Box 54)
General Note: Box 17, Folder 2 ( Task Force on Water Issues, Bills Passed, Articles - 1980s ), Item 28
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Full Text



ENVIRONMENTAL AND LAND USE LAW


Drought in Florida:

Nature's response to "comprehensive" planning

By Raymond A. Rea


Florida is blessed with an abun-
dance of fresh water. Considering
the state as a whole, this resource can
potentially meet projected future de-
mand with ease.' Unfortunately, the
geographic and temporal distribu-
tion of naturally occurring water is
such that water management has
historically played a necessary role in
land development throughout Flori-
da, and within South Florida
specifically.
The drought of 1971, with its con-
cern over water shortages and other
growth-related problems, prompted
the passage of comprehensive en-
vironmental legislation in 1972.2 The
intent of the legislation was to pro-
vide an integrated approach to land
planning and water management
within the state. However, in
practice, land planning and water
management decisions have been
formulated in a vacuum. The result is
that problems which were recog-
nized during the climatic drought of
1971 have recurred due to a manage-
ment drought in 1981.3
In concept, land use planning and
water management policy can pro-
ceed along two divergent paths.
Water management decisions can be
tailored to meet future growth and
increased demand whenever and
wherever it occurs. Conversely, the
availability of water can dictate land
use decisions regarding when and
where future growth and demand
will be allowed. The determination
of a desired policy is essential to long
range comprehensive planning. The
proper coordination of land use and
water management decisions accord-
ing to a uniform planning policy is re-
quired to avoid management
droughts in the future.

"Comprehensive" planning from
the water manager's perspective
The Water Resources Act (WRA),
which is based upon the Model
Water Code,4 grants exclusive power
to the water management districts in


I zI


the determination of who can utilize
Florida's water resource. As original-
ly envisioned by the drafters, the
WRA was to provide a mechanism
whereby water management deci-
sions were to be premised upon com-
prehensive long range planning, inte-
grated with an understanding of
present and future use of land
resources.
Compliance with state policy was
considered to be of paramount im-
portance to the effectiveness of the
planning process. Thus a state water
use plan was to be formulated under
state control with assistance from the
water management districts. The
state plan would be implemented by
the water use permit process which
mandated that as a condition to ob-
tain a permit the use must be con-
sistent with the provisions of the state
water plan.' This approach is analo-
gous to the comprehensive land use
planning process in which zoning
laws effectively implement a local
government's comprehensive plan.
In practice, the comprehensive
water use planning process has not
proceeded in the fashion originally
intended. In 1974, the state delegated
its responsibility for formulation of
the plan to the water management
districts.* Due to the absence of state
direction, the Central and Southern
Florida Flood Control District, now
the South Florida Water Manage-
ment District (SFWMD), and the
Southwest Florida Water Manage-
ment District (SWFWMD) devel-
oped divergent views on how water


should be managed within their re-
spective areas. A brief comparison of
the two plans exemplifies the totally
divergent views taken by these
districts with regard to water
management philosophy.
* SFWMD as purveyor
Like all classical planning
documents, growth issues must be
confronted to prepare adequately
for the future needs of a particular
area. Addressing these issues,
SFWMD posed the question. "Is the
availability of existing and future
water supplies to be used to control
growth or are existing and future
water supplies to be provided to ac-
commodate whatever growth is pro-
jected?"7
Although this question is never
specifically answered within the plan
itself, the basic concepts contained
with it indicate that SFWMD policy
is to follow the latter approach. Thus
the bulk of the document is devoted
to development of structural and
nonstructural mechanisms to supply
water whenever and wherever
demand develops. Since develop-
ment decisions are by implication
abrogated to local government, the
district's role is that of a purveyor of
water, a role sanctioned by the
WRA.' Since the ability to meet de-
mand reflects favorably upon the
planning process utilized, consump-
tive use permits are generally avail-
able from SFW'MD with little regard
to the long term availability of the re-
source within an area.*
From a climatological viewpoint,
the drought of 1971 was considered
to have a recurrence interval of from
one hundred to several hundred
years." However, data available to
SFWMD in 1972 indicated that, from
a management perspective, droughts
of increasing magnitude can be ex-
pected to return on an eight-to-ten-
year interval." In spite of the water
shortage planning mandate con-
tained in the WRA of 1972 and data
indicating that management droughts


266 THE FLORIDA BAR JOURNAL/APRIL 1983






an be expected to recur frequently
and with increased severity,
SF\VMD delayed the implementa-
tion of a districtwide water shortage
plan until May 1982.12
* S'WF\MID as planner
S\ \FWMD has taken a classical
land planning approach to water
management within the district.
After a brief description of the physi-
cal environment, various social,
economic, and political factors, the
plan specifically delineates a "live
within our means" approach upon
which present and future uses will be
governed. 3
The "live within our means" phi-
losophy is based upon the water crop
theory.4 In effect, once the water
crop of a particular parcel of land is
allocated, further development
cannot take place. Thus. the amount
of water available in a region de-
termines where and how future
development will occur. According-
1\. S\\F\MD's plan delineates and
recommends specific areas which are
suitable for future development and
\\ which can sustain increased demand.
By this approach. S\WFW\ D has
assumed the regional growth plan-
ning functions originally envisioned
b\ the drafters of the Model \\ater
code.
S\\ F\VID has attempted to im-
plement its comprehensive plan by
utilizing the water crop as the basic
criterion of the permit process. This
approach has been held to be hydro-
logicall\ unsound, arbitrary and ca-
pricious. in excess of S\\ F\\ D's
statutory authority. and to effectively
create property rights to water con-
trary to the \RA.'5 As a result,
S\W FWMD's authority to actively
exercise a meaningful planning func-
tion has been eliminated.

Consequences of permits
without planning
The consumptive use permit pro-
cess is effectively the only tool avail-
able to implement water man-
agement policy objectives. The
\\ RA provides standards for the per-
mitting process. To obtain a permit,
the applicant must establish that the
proposed use of water is: a reason-
able beneficial use; will not interfere
with any presently existing legal use
of water: and is consistent with the
public interest.'6 Unfortunately.
considerable problems exist with the
application and interpretation of
these standards. Some commentators


ha e suggested that the standards
contained within the \\RA are suf-
ficiently vague to subject them
potentially to constitutional attack."7
Of the three standards delineated.
the standards of "reasonable benefi-
cial use" and "consistent with the
public interest" are essentially redun-
dant. Reasonable beneficial use is de-
fined as ". .. the use of water in such
quantity as ... is both reasonable and
consistent with the public interest.""'
The terms "reasonable" and "public
interest" are not defined in the W\RA.


Raymond Rea is an attorney and
groundwater geologist, presently
a sole practitioner with offices in
West Palm Beach and Tampa. He
holds a J.D. degree from Nova
University, and M.S. and B.S.
degrees from the University of
South Florida and Wayne State
University. Rea has worked for
government and private con-
sultants on groundwater investi-
garions throughout the western
U.S.. Florida. and Canada.
He writes this column on behalf
of the Environmental and Land
Use Law Section. Robert L.
Rhodes. Jr., chairman, and
Richard Hamann, editor.


As such, individual districts have
adopted conflicting interpretations
for these standards and are in essence
legislating their own directives"9 on
an ad hoc basis.
The remaining standard of nonin-
terference with presently existing
legal uses theoretically provides a
strong and meaningful standard for
the protection of vested rights per-
fected under the permit system but
provides little guidance for the use of
permits as a planning tool. In prac-
tice this standard can only work well
in areas where there is a definite and
dependable surplus over existing


uses. However, in Florida. nature sel-
dom gives us such a dependable
supply in areas where demand is in-
creasing at its greatest rate. During a
drought, the permit system may do
little to establish any quantifiable
legal right.
Since consumptive water use per-
mits appear to be granted on a con-
tinuous basis without, regard to
availability of or need for the re-
source,20 the water management dis-
tricts may play a significant role in
the creation or increased severity of
water shortages. The emergency
mechanisms" of the W'RA designed
to deal with such occurrences
establish no meaningful standards
for the exercise of extremely broad
discretionary power. Recurring and
potentially continuous management
induced drought may in effect make
the permit standards contained
within the \VRA and the legally
recognized water rights they establish
meaningless. This appears to be the
case today in South Florida. where
demand outstrips supply on a regular
basis.
The consequences of "business as
usual" cannot be ignored. Interbasin
transfer of water, desalination, and
quasi-permanent weather modifica-
tion programs are receiving in-
creased attention. These remedies
eventually may be required as a
result of today's water management
decisions occurring independently of
the land planning framework or any
statewide policy directive.

Land use water management
dichotomy: potential harmony
within the framework
A number of techniques are avail-
able within the present statutory
framework which may. however,
provide the appropriate nexus be-
tw"een land use planning and water
management.
The Local Government Compre-
hensive Planning Act (LGCPA) man-
dates that local governments develop
comprehensive plans to control the
use of land.22 These provisions also
mandate that the comprehensive
plan is to include a potable water and
conser action element.'3 Since \\a.ter
rights are interests in real proIpertN
which are perfected only once a per-
mit is issued pursuant to the \ RA.24 it
seems logical that water can be sub-
jected to similar forms of police
power regulation by local go ern-
ments as are other real property


THE FLORIDA BAR JOURNAL APRIL 1983 267








ENVIRONMENTAL AND
LAND USE LAW



interests. Thus, it could be argued
that a reasonable incident to the dele-
gated power to control the use of
land under the LGCPA is the regula-
tion of water which affects the use of
land. Preemption should not be a
factor due to provisions within the
W'RA which specifically permit local
governments to exercise such con-
trol contingent upon notification to
the Department of Environmental
Regulation." Thus, zoning of water
uses at the local level and according
to LGCPA authority may provide the
mechanism to coordinate both land
use planning and water management
decisions in one governmental body.
The appeal of this approach is that
the sentiment in most rural areas runs
strongly against the transfer of the
right to use water from agricultural
uses to municipalities outside county
boundaries. The ultimate effect of
this approach would be to effectuate
mandatory consideration of local
interests by the water management
districts. The ability of one county


government to limit or prohibit the
use of water within its boundaries to
outside municipalities may effec-
tively force those levels of govern-
ment to consider water as an integral
component of land development as
well. It cannot be ignored that this
mechanism may lead to substantial
conflict. However, conflict arising
from competing interests will by
necessity mandate consideration of
water as it relates to growth on a
regional level.
The regional general welfare re-
lated to water and growth can poten-
tially be injected into the DRI
process established within the
Environmental Land and Water
Management Act (ELWMA).2" Al-
though one court has indicated that
the DRI process is not applicable to
well field withdrawals,t' the deci-
sion, justified on the basis of statutory
construction, primarily turned on the
specific facts and equities of the case.
In light of the strong policy state-
ment contained in the ELWMA for
coordinated land and water manage-
ment, the WRA and ELWMA can be
construed harmoniously by consider-
ing well field development and
water transfers as within the DRI
process.


By subjecting large well field with-
drawals or transfers of water to the
DRI process, the water management
districts would be required to give
considerable weight to regional and
local issues. If conflict develops be-
tween the districts, regional councils,
and a local government which has
zoned water uses, the appeal process
established within the DRI procedure
is compatible with that established in
the WRA.3"
The appeal process to the Florida
Land and Water Adjudicatory Com-
mission (FLWAC) is an excellent
opportunity to inject state policy into :
a coordinated land and water man-
agement framework. If conflict
arises between various governmental
agencies, the FLWAC will effective-
ly be the final arbitrator. Recent case
law2' has suggested that, for all prac-
tical purposes, the FLWAC can be
considered as a statewide planning
board. Thus, the FLWAC could in
one process inject statewide policy
considerations into water manage-
ment decisionmaking. If necessary,
the FLWAC can modify or rescind
district actions to bring them in line
with regional or local concerns.
Conversely, the FL\WAC could
modify local water zoning laws
which conflict with the regional
general welfare.
This patchwork approach might
be cumbersome to utilize. However,
without such an approach it would
appear that land use planning and
water management will continue in a
segregated fashion. As such, manage-
ment droughts may recur with more
consistency and severity than in the
past. By default, water manage-
ment, not water itself, may be the
limit to growth in Florida. o

IMALONEY, PLACE & BALDWIN, WATER
LAW AND ADMINISTRATION, THE FLORIDA Ex-
PERIENE 406 (1966).
'The Florida State Comprehensive
Planning Act, FLA. STAT. 423.011-23.0193
(1972); The Local Government Comprehen-
sive Planning Act, FLA. STAT. 163.160-
163.3211 (1972); The Water Resources Act.
FLA. STAT. 373.012-373.6161 (1972); and The
Environmental Land and WVater Management
Act, FLA. STAT. 380.012-380.12 (1972).
3Benson & Gardner, THE 1971 DROtHcrr IN
SoUTH FLORIDA AND ITS EFFECT ON THE
HYDROLci SYTEM ('.S.Geological Survey
Uater Resources Investigation No. 12-74
(1974)), at 8. A climatic drought is defined in
terms of precipitation deficiencies. A water
management drought characterizes water de-
ficiencies that may result from the failure of
water management practices. This may
include the inadequate operation of storage
facilities which are necessary to bridge normal
or abnormal dry periods and equalize water







.pl% throughout the year. This is exempli-
.ed b% the fact that discharges of fresh water
to the ocean from four canals in South Florida
a\ eraged 1786 million gallons per day (MGD)
in 1970. Klein. Armbruster, McPherson &
Freiberger, WATER AND THE SoLTH FLORIDA
ENSRONMENT (U.S. Geological Survey Water
Resources Investigation No. 24-75 (1975)), at
76. This is approximately equal to the total
fresh and saline water consumed throughout
the State of Florida in 1970. Leach, SOURCE.
USE. AND DisposImIO OF WATER IN FLORIDA,
1975. (L'.S. Geological Survey W'ater
Resources Investigation No. 78-17 (1978)), at
37.
'MALONEY, AuSNESS & MORRIS, A MODEL
\ATER CODE (1972).
51d.. at 71-179.
6MALONEY. P.ACER, AUSNEss & CANTER,
FLORIDA N\ ATER LAW 1980. (W'ater Resources
Research Center, U. of Fla., Pub. #50) (1980),
at 215
"SFWMD. DRATr WATErR USE AND SUPPe~
DEVELOPMENT PLAN. Vol. II (April, 1977), at 3-
2
"FLA STAT. 373.1961 (1981).
'Between 1974 and 1980 a total of 500
billion gallons of water per year were
allocated to public and industrial uses. Permits
for agriculture accounted for an additional 1.3
milhon acres of irrigated crops. See, SFWMD,
Resource Control Department. ANNUAL
REPORT (Fiscal Year, 1979,.
Unpublished data obtained from SFWMD
indicates that in St. Lucie County the district
has allocated 41 percent more water than is
actually required for agriculture. (U.S.
Geological Survey, unpublished data from a


report in preparation on estimated water use in
Florida, 1980). The agricultural regions of St.
Lucie County have experienced water
shortages frequently. In response, SFWMD
has been forced to develop a water shortage
plan for this area. FLA. ADMIN. CODE ch. 40E-21
(Part II), (September 3, 1981).
O Benson & Gardner, THE 1971 DnoucHT IN
SoUrH FLORIDA AND rrS EFFECTS ON THE
HYDROLOCic SYSTEM, (U.S. Geological Survey
Water Resources Investigation No. 12-74
(1974)).
Central & Southern Florida Flood Control
District, DaoucHT ANALYSIS FOR THE FLORIDA
EAsT CoAsr, (unpublished report, 1972). The
eight-to-ten-year management drought
indicated in this report is substantiated by
historic data of reservoir capacities in Lake
Okeechobee which were at comparable levels
to 1971 in 1962, 1956, and 1932. Although lake
levels were lower in 1962, 1956. and 1932,
population and water demand were much
greater in 1971. Supra, note 10 at 43.
1:FLA. ADMIN. CODE ch. 40E-21 (May 31,
1982).
13SOLTHWEST FLORIDA WATER MANAGEMENT
DIsTrrcr. WATER MANAGEMENT PLAN (1978) at
27.
'4As originally promulgated, FLA. ADMIN.
CoDE, ch. 16J-2.11(3) (October 5, 1974),
issuance of a consumptive use permit would
be denied if the amount of water consump-
tivels used would exceed the water crop of
land owned or controlled by the applicant.
The water crop (precipitation less evapotrans-
piration) was assumed to be 365.000 gallons
per year per acre.
"Pinellas County v. Southwest Florida


Water Management District, Case No. 79-
2325R, and West Coast Regional M ater Supply
Authority v. Southwest Florida Water
Management District, Case No. 79-2392R
(Dept. of Admin., April 9, 1980) (Diane D
Tremor, Hearing Officer with the Div. of
Admin. Hearings).
'FLA. STAT. 6373.223 (1981).
'" ershow, An Update-Legal Implications
of Water Management in Florida's Future, 54
FLA. B.J. 525,529 (1980); Trelease, The Model
Water Code, The Wise Administrator and the
Goddam Bureaucrat, 14 NAT. RES. J 207
(1974). But see, Maloney, Capehart &
Iloofman, Florida's "Reasonable Beneficial
Water Use Standard: Have East and West
Met?, 31 U.FLA.L.REv. 253-83 (1979).
'5FLA. STAT. 373.019(4) (1981).
"Note 17. supra.
"Note 9, supra.
SFLA. STAT. 6373.246.(1981).
"Id., 163.3161 (1981).
"ld., 163.3177(6)(c)-(d) (1981).
24"Village of Tequesta v. Jupiter Inlet Corp.,
371 So.2d 663, 671 (Fla. 1980).
FLA. STAT. 373.023 (1981). Section
373.217 (1981), however, expressly preempts
the power to permit the consumptive use of
water.
2ld., 380.06 (1981).
Pinellas County v. Lake Padgett Pines, 333
So.2d 472 (Fla. 2d D.C.A. 1976).
I*FLA. STAT. 1380.07 and 373.114 (1981)
both authorize the LW AC to review rules and
orders pursuant to the authority exercised in
each act.
"Manatee County v. Estech Gen. Chem.
Corp. 402 So.2d 1251 (Fla. 2d D.C.A. 1981).


I-


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THE FLORIDA BAR JOURNAL/APRIL 1983 269


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ENVIRONMENTAL AND LAND USE LAW


Florida's new groundwater regulations

By William H. Green and William D. Preston


The 1979 rule'
Until 1979, groundwater quality in
Florida was largely unregulated by
the Department of Environmental
Regulation (DER) and the Environ-
mental Regulation Commission
(ERC). The groundwater provisions
of Chapters 17-3 and 17-4, Fla.
Admin. Code, which took effect in
1979 (the 1979 rule), divided ground-
waters into two types, depending
upon the total dissolved solids
(salinity) concentration: Class I-B,
deemed suitable for potable and agri-
cultural water supplies and storage1
and Class V-B, deemed suitable for
freshwater storage and utility and
industrial supply.3 Primary drinking
water quality standards4 were
applied to all Class I-B groundwaters
and to those Class V-B groundwaters
which were actually used or could
reasonably be expected to be used
for a potable water supply. Drinking
water standards were required to
meet outside zones of discharge.5
Zones of discharge are conceptually
similar to mixing zones in surface
waters.
Different zones of discharge
requirements were established for
existing and new sources. Zones of
discharge for existing discharges
extended to the property line of the
discharger unless the discharger
demonstrated that a larger zone was
appropriate or unless DER deter-
mined that a more restrictive zone
was necessary. In practice, existing
dischargers needed only to assure
that their discharges did not cause
violations of the primary drinking
water quality standards beyond their
property line. For new sources, the
zone of discharge was established on
a case-by-case basis after considera-
tion of enumerated factors. A zone of
discharge extending beyond the
property line could be approved for
an existing or new source after a
demonstration that the discharge
would not significantly impair any of
the designated uses of the receiving
groundwater or surface waters.


I-_ I

The only criteria that applied
inside the zone of discharge were
that the groundwaters be
.. .free from substances and concentrations
which
(a) are harmful to plants, animals, or
organisms native to the soil and responsible for
treatment or stabilization of waste material
and is required by the Department permit; or
(b) Pose a serious danger to the public
health, safety, or welfare. [Emphasis sup-
plied.] Rule 17-4.245(2) (1979), Fla. Admin.
Code.
These provisions were commonly
identified as "freefroms."

The 1983 rule
Comprehensive revisions to
Chapter 17-3 and 17-4, Florida
Administrative Code, took effect on
January 1, 1983.6 The 1983 rule
refined and considerably expanded
the scope of the earlier regulations in
several significant areas.
* Groundwater classifications
Groundwaters containing less than
10,000 mg/l TDS (Class I-B under
the 1979 rule) are designated as Class
G-II.7 The vast majority of Florida's
groundwaters will fall within this
category. Groundwaters containing
10,000 mg/1 or more TDS (Class V-B
under the 1979 rule) are designated as
Class G-III unless they are in confined
aquifers, in which case they are desig-
nated as Class G-IV.8 Class G-III
waters potentially include waters that
contain TDS concentrations between
3,000 and 10,000 mg/1 when such
waters have been specifically reclassi-
fied into Class G-III by the ERC or
have been designated as an exempted
aquifer by DER.


Groundwaters for potable water
use that are contained in "single
source aquifers"9 are designated as
Class I.'1 This classification is the
most stringently regulated under the
new classification scheme. With
minor exceptions, zones of discharge
are not allowed in Class G-I ground-
waters. The Class G-I groundwater
classification is somewhat analogous
to the outstanding Florida water
classification for surface waters." No
groundwaters were initially placed
within this category. In view of the
substantial restrictions placed upon
discharges to Class G-I ground-
waters and the corresponding
restraints upon land use, the ERC
adopted a separate process that it
will follow when redesignating
groundwaters into that category.12
The redesignations must follow ERC
rulemaking procedures and entail at
least one well-publicized, fact-
finding public workshop in the area
of the proposed single source aquifer.
The fundamental requisite for Class
G-I designation is that an aquifer
must be "the only reasonably avail-
able source of potable water to a
significant segment of the popula-
tion," and that "the designated use is
attainable, upon consideration of
environmental, technological, water
quality, institutional, and social and
economic factors."'3
* Applicable standards
Drinking water quality standards
apply to Class G-I and G-II ground-
waters. The health-related primary
drinking water quality standards
have applied since 1979 to essentially
the same areas of groundwater."
Secondary drinking water quality
standards have been recommended
by the U.S. Environmental Protec-
tion Agency (EPA) to protect public
welfare.'" For the first time, the 1983
rule, with minor exceptions, requires
the secondary standards to be met by
all new sources upon commencement
of discharge and by existing sources
no later than July 1, 1985. In addition,
existing dischargers are prohibited


THE FLORIDA BAR JOURNAL/MAY 1983 345


__







ENVIRONMENTAL LAW




from causing violations of the
secondary standards in existing
drinking water supplies on or after
January 1, 1983.1"
Primary and secondary standards
must be met at and beyond the
boundary of a permitted zone of
discharge in Classes G-I and G-II."7
Because zones of discharge are not
ordinarily allowed in Class G-I
groundwaters, the quality of dis-
charges into such waters must meet
primary and secondary standards,
as well as the freefrom prohibitions,
at the point of discharge into the
groundwater. This highly stringent
requirement directly applies only to
new discharges into Class G-I waters.
Existing discharges into Class G-II
waters that are later redesignated as
Class G-I are allowed to continue to
meet Class G-II requirements as long
as there is no increase of discharge
volume or change in waste stream
composition above levels specified
in discharge permits. Any such expan-
sions or changes will be required to
be segregated and treated as new
installations discharging into Class
G-I groundwaters.
Only the freefrom prohibitions
apply in Class G-III groundwaters.
For Class G-IV waters, no standards
apply unless there would otherwise
be a danger to the public health,
safety, or welfare.
Zones of discharge
The 1983 rule manifests a new
policy with regard to zones of
discharge. The zone of discharge
property line boundary presumption
is retained for existing sources, but


with substantial new limitations. For
example, zones of discharge are
prohibited when the discharge is
through a conduit that allows direct
contact with Class G-I or G-II ground-
waters (except for approved aquifer
recharge or transfer projects); zones
of discharge are not allowed that
may cause an imminent hazard to the
public or the environment; and, most
significantly, zones of discharge are
no longer allowed for freefrom
contaminants.
The 1983 rule places additional
restrictions upon zones of discharge
for new sources. In the absence of a
special showing, new sources are
allowed a zone of discharge
extending no more than 100 feet from
the site boundary'1 or the installa-
tion's property boundary, whichever
is less. A smaller zone of discharge
can be required if deemed necessary.
Extra property line zones of
discharge can only be granted to
existing sources.
* Freefrom prohibitions
The 1983 rule increased the list of
prohibited freefroms and moved the
point of compliance from the
boundary of the zone of discharge up
to the point of application of the
pollutants to the groundwater. The
freefroms now apply inside the zone
of discharge. Freefrom limitations
apply in all but Class G-IV ground-
waters.
The most controversial new
freefrom provision prohibits
discharges in concentrations which
are "carcinogenic, mutagenic,
teratogenic, or toxic to human
beings.""1 The primary difficulty
with this prohibition is its potentially
all-encompassing scope. It leaves
identification of particular chemicals
and their prohibited concentrations


to the DER, creating tremendous
uncertainty for dischargers. It also
was argued that this provision
effectuated an illegal delegation to
DER of the ERC's exclusive standard
setting authority."
To mitigate some of these concerns
and establish a procedure which
affords interested parties a greater
opportunity to participate, the ERC
amended the rule before its effective
date. Freefrom determinations must
now be made by the Secretary of
DER and, when made in connection
with a permitting action, must be
noticed in the Florida Administrative
Weekly. The ERC will be apprised at
least twice yearly of all instances in
which the freefrom provision is
implemented. Interested parties can
trigger a requirement that DER bring
the particular chemical and its asso-
ciated prohibited concentration level
to the ERC for adoption as a rule.
DER impositions of the particular
freefrom will be modified, if neces-
sary, to reflect final ERC action on
the rule. This innovative procedure is
untried and thus uncertain. Never-
theless, the final freefrom establish-
ment procedure represents a good
faith effort on the part of the ERC,
DER and participating environ-
mental and regulated interests to
achieve a workable rule.
Even if the freedom procedure
works smoothly, difficult substantive
questions remain. Determining
whether chemicals are carcinogenic,
mutagenic, teratogenic or toxic to
human beings involves the concept
of risk assessment. For example, one
concentration of a compound could
be carcinogenic to one person in
every million. On the other hand, this
same compound at 10 times that
concentration could be carcinogenic


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346 THE FLORIDA BAR JOURNAL/MAY 1983







to one out of every 10,000 persons.
DER must ultimately draw the line
and decide what level of risk is
acceptable when setting a prohibited
concentration. Notwithstanding
these problems, the rule provides
DER with what it views as an essen-
tial tool for extending adequate
protection to Florida's groundwater
resources.
* Monitoring plan
Perhaps the most immediate, and
in the aggregate, most costly com-
ponent of the 1983 rule is the
provision requiring the formulation
and implementation of groundwater
monitoring plans by new and existing
dischargers.t" All existing installa-
tions discharging to groundwater
must submit a monitoring plan to
DER for review and approval by a
date certain.2 A primary purpose of
the monitoring plan is to determine
the background presence and con-
centration of pollutants and the
effects of a discharge on ground-
water quality. In the simplest case,
the plans might involve one
upgradient monitoring well, one well
at the edge of the zone of discharge
downgradient from the discharge
site, and one intermediate down-
gradient well. For the most complex
case, numerous monitoring wells
might be required to allow an
adequate assessment of the situation.
Limited exemptions from monitoring
requirements are provided for specif-
ically listed facilities and for
discharges that are shown to meet the
applicable standards at the point of
discharge.
* Corrective action
DER may require dischargers to
take corrective action when the
installation represents an imminent
hazard to the public health, or where
in the absence of an imminent
hazard, the discharge plume has
extended beyond the zone of
discharge or threatens or is likely in
the foreseeable future to impair the
designated use of an underground
source of drinking water or surface
water immediately affected by the
groundwater. DER will assess the
nature, extent and toxicity of the
plume in relation to existing and
potential sources of drinking water,
together with the costs of cleanup or
other corrective action in comparison
with the benefits to the public of the
corrective action. Current and
projected future use of adjacent
ground and surface waters affected
by the plume will be an integral


consideration.
* Relief mechanisms
The 1983 rule contains relief
mechanisms of potentially great
import. Existing sources that,
through implementation of their
monitoring plans, discover they are
violating standards will have the
most immediate need for relief. The
DER Secretary is authorized to
exempt discharges from applicable
requirements upon an affirmative
demonstration that specified factors
have been met.3 These exemptions
will not be granted lightly.


Existing sources are still entitled to
seek a zone of discharge, on a
pollutant-by-pollutant basis, that
extends beyond the property line of
the discharger."4 These extra-
property line zones of discharge can
be granted only after notice to
adjacent property owners and a
public hearing. Stringent criteria for
the grant of extra-property line zones
of discharge are set forth in the rule.
Also, certain Class G-II ground-
waters may be reclassified Class
G-III if it can be shown that the
waters will not be consumed by


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THE FLORIDA BAR JOURNAL/MAY 1983








ENVIRONMENTAL LAW




humans.
F.S. 403.201 allows dischargers to
obtain a variance by showing that
compliance is either unattainable
because of current technology, is
attainable but will require time to
implement, or would produce a
hardship.'s The use of any of these
relief mechanisms will require the
generation of reliable scientific
information in order to understand
the impacts caused by the particular
discharge on groundwater quality.

Conclusions
The 1983 rule is far reaching,
ambitious and very stringent. If
nothing else, the rule promotes the
philosophy that rights to ground-
water belong to the public, in
general, and not to the owners of
surface rights. The distinction
between existing and new sources as
regard zones of discharge represents
a transition away from earlier
concepts of groundwater property
rights.
One of the most productive
aspects of the rule could turn out to
be the requirement that existing
dischargers undertake realistic
monitoring programs to assess the
impacts of what they have been
doing. Some believe that substantial
resources will be unnecessarily
expended to meet the monitoring
plan requirements. Nevertheless,
industry thus far has generally agreed
that reasonable monitoring is a price
they are willing to pay.
The imposition of secondary
drinking water quality standards in
Class G-I and G-II groundwaters is
believed by many to be unrealistic
and unachievable. Several industries
have provided DER with credible
evidence that secondary standards
are violated naturally in many areas
of the state. It may be difficult to
distinguish natural and man-made
pollutant contributions when
enforcing secondary standards. The
ERC will almost certainly need to
readdress the secondary standards
issue prior to their extension date of
July 1, 1985, to ensure that an
unreasonable requirement will not
be perpetuated.
The freefrom provision will un-
doubtedly be the hardest to imple-
ment. It is a difficult first step in an


attempt to bring under control
discharges of potentially scores of
chemical compounds that might
threaten Florida's groundwaters.
Success will hinge upon reasonable
implementation by the agencies and
a focus upon genuine problems. 0

'Most of the remainder of this article
discusses significant aspects and major
components of the 1983 amendments to the
1979 rule. Because of the necessary summariza-
tion in this article of key provisions, the reader
is advised to review thoroughly the 1983 rule
for a complete understanding of this regula-
tory scheme.
2FLA. ADMIN. CODE, Rule 17-3.101 (1979).
FuLA. ADMIN. CODE, Rule 17-3.151 (1979).
'Promulgated by the U.S. Environmental
Protection Agency under the federal Safe
Drinking Water Act to protect the public
health and adopted as rules by DER. FLA.
ADMIN. CoDE, Rule 17-22.104(1).
$FLA. ADMIN. CODE, Rule 17-3.021(27)
(1979).
The 1979 rule adoption was accompanied
by substantial controversy among interested
parties. The ERC, not totally satisfied, estab-
lished a deadline date for reconsidering the
1979 rule. A Groundwater Quality Task Force
was initially created and charged to meet
regularly and report findings and suggestions
regarding potential revisions to the 1979 rule.
This Task Force met several times in 1979,
1980, and 1981 and made little progress. In
early 1982, the ERC extended until July 1982
the deadline for reconsidering the 1979 rule.
The DER staff began to hold public work-
shops on proposed rule amendments at the
same time.
7FLA. ADMIN. CODE, Rule 17-3.403(1).
'Id.
*FLA. ADMIN. CODE, Rule 17-3.021(3). Not
to be confused with a "sole source aquifer"
such as the Biscayne Aquifer designated by the
EPA under the federal Safe Drinking Water
Act.
"FLA. ADMIN. CODE, Rule 17-3.403(1).
"FLA. ADMIN. CODE, Rule 17-3.041.
"FLA. ADMIN. CODE, Rule 17-3.403(5) and
(6).
131d..
"FLA. ADMIN. CODE, ch. 17-22 requires
community water systems (public water
systems serving at least 15 service connections
used by year-round residents or regularly
serving at least 25 year-round residents) to
meet primary drinking water quality regula-
tions. FLA. ADMIN CODE, Rule 17-22.104 estab-
lishes maximum contaminant levels for ten
inorganic compounds, six organic compounds,
turbidity, coliform bacteria, radionuclides,
and trihalomethanes.
"FLA. ADIN. CODE, ch. 17-22 also applies
secondary drinking water quality standards to
community water systems. These include
maximum contaminant levels for seven ele-
ments or compounds, corrosivity, odor and
total dissolved solids, and a minimum allow-
able level of pH.
SFLA. ADMIN. CODE, Rule 174.245(8).
7"FA. ADMIN. CODE, Rule 17-3.404(2).
A "site" means an area within an installa-
tion's property boundary where effluents are
released or applied to the groundwater, e.g., the
diameter of a liquid effluent spray irrigation
field. FLA. ADMIN. CODE, Rule 17-3.021(31).
SFLA. ADMIN. CODE, Rule 17-3.402(1)(b).
"See National Association of Industrial and


Office Parks, Florida Chapter and Orlando
Central Park, Inc. et al. v. State of Florida,
Department of Environmental Regulation,
DOAH Case No. 82-1887R. This case ulti-
mately was resolved prior to a hearing through
the execution by the parties of Joint Stipula-
tions in Settlement of Petitions on September
20 and November 1, 1982.
F FLA. ADMIN. CODE. Rule 17-4.245(6).
"The complete list of industries and corre-
sponding monitoring plan submittal dates for
existing installations is as follows:
Type of Discharge Date
A. Organic Waste Jan. 1983
B. Inorganic Waste April 1983
C. Landfills (both domestic
and industrial) May 1983
D. Industrial Septic Tanks August 1983
E. Pulp and Paper August 1983
F. Phosphogypsum Stacks
and Ponds Sept. 1983
G. Laundries Oct. 1983
H. Oil and Gas Producers Dec. 1983
I. Citrus Dec. 1983
J. Food and Beverages Jan. 1984
K. Domestic Waste Feb. 1984
L. Power Plants Feb. 1984
M. Others March 1984
N. Mining and Minerals March 1984
3 FLA. ADMIN. CoDE, Rule 174.243(2) and
(3).
UFuA. ADMIN. CODE, Rule 17-4.245(5)(d)4.
UIn most cases a practicable technology
that would achieve compliance is likely to
exist. Therefore, variances to the new ground-
water requirements would tend to be based
upon the need to be put upon a compliance
schedule in order to achieve compliance or a
need to grant relief because compliance is a
hardship that should not be borne by the
discharger. This latter ground is apt to produce
some interesting case law.


348 THE FLORIDA BAR JOURNAL/MAY 1983


A, Jt-


William H. Green and William D.
Preston are members of the firm of
Hopping Boyd Green & Sams,
P.A., and practice in Tallahassee.
Green received his B.S. and Ph.D.
degrees from the University of
South Carolina, and his J.D. from
Georgetown University in 1973.
He currently serves on the Execu-
tive Council of the Environmental
and Land Use Law Section.
Preston received his B.S. degree
from Rochester Institute of Tech-
nology and his J.D. from Florida
State University College of Law in
1975.
They write this column for the
Environmental and Land Use Law
Section. Robert L. Rhodes, Jr.,
chairman, and Richard Hamann,
editor.




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