Group Title: Competing Applications, Inter-District Transfers, and Other Aspects of Competition for Consumptive Water Use by William L Earl and Thomas T. Ankersen
Title: Competing Applications, Inter-District Transfers, and Other Aspects of Competition for Consumptive Water Use by William L Earl and Thomas T. Ankersen
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Title: Competing Applications, Inter-District Transfers, and Other Aspects of Competition for Consumptive Water Use by William L Earl and Thomas T. Ankersen
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Richard Hamann Collection - Competing Applications, Inter-District Transfers, and Other Aspects of Competition for Consumptive Water Use - by William L Earl and Thomas T. Ankersen
General Note: Box 25, Folder 1 ( Water Use - Difficult Decisions for the 90's - 1988 ), Item 3
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004671
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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COMPETING APPLICATIONS, INTER-DISTRICT TRANSFERS,
AND OTHER ASPECTS OF COMPETITION FOR CONSUMPTIVE WATER USE



WILLIAM L. EARL
THOMAS T. ANKERSEN



I. INTRODUCTION


Since the Florida Supreme Court issued its landmark opinion

in Village of Tequesta v. Jupiter Inlet Corporation, 371 So.2d

663 (Fla. 1979), Part II of Chapter 373, Florida Statutes, which

regulates the consumptive use of water, has, until recently,

received little significant judicial or legislative attention.

As Florida moves toward its third decade of experience with a

statutory water allocation scheme, however, Chapter 373 is

increasingly being tested against the demands of water users.

Growing pressures on Florida's water resources are being

translated into political and economic pressure on the regulatory

framework created to allocate water in Florida. How Chapter 373

copes with competition among consumptive users will go a long way

towards shaping Florida's long-term water resource future. If

the 1987 amendment to the statute providing for inter-district

transfers of groundwater is any indication, then Chapter 373 can

be expected to be revisited considerably more in the next decade.


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II. COMPETING APPLICATIONS


1. Section 373.219, Florida Statutes, authorizes water

management districts to require permits for the consumptive use

of water within their boundaries. Section 373.223 sets forth the

standards by which such permits may be issued. Pursuant to this

authority, each of the districts has developed rules governing

the issuance of consumptive use permits. See Fla. Admin. Rule

40(a)(2) (Northwest Florida Water Management District); 40(b)(2)

(Suwannee River Water Management District); 40(c)(2) (St. Johns

River Water Management District); 40(d)(2) (Southwest Florida

Water Management District); 40(e)(2) (South Florida Water

Management District).

2. Chapter 373 also addresses competing applications -

those instances when two otherwise qualified applicants seek

permits for a quantity of water that is inadequate for both or

all, or which may otherwise conflict. 5373.233(1), Fla. Stat.

(1987). In such cases, the statute authorizes the water

management districts to approve or modify the application which

"best serves the public interest." Id. Furthermore, water

management districts must give preference to renewals over

initial applications. S373.233(2), Fla. Stat. (1987).

a. Each of the five water management districts has

adopted rules which either incorporate by reference or directly

follow the language of the statute with respect to competing

applications. See Fla. Admin. Code Rule 40(a)-(d) 2.311. The


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South Florida Water Management District incorporates this

language in its permit information manual. See 33.2.1.1.9, Water

Use, Permit Information Manual, Vol. III (June, 1985)

(incorporated by reference at Fla. Admin. Code Rule

40E2.091(1) (a).

3. Neither Chapter 373 nor the districts' implementing

regulations provide any guidance by which to illuminate the

public interest standard of Section 373.233. Furthermore, there

has, as yet, been no appellate consideration of this section.

a. One well publicized administrative hearing has

utilized this section to resolve competing applications. See

West Coast Regional Water Supply Authority v. Gardinier, DOAH

Case No.'s 85-0599 0602 (June 11, 1986) (recommended order).

In Gardinier the hearing officer was required to referee the

competing uses of a large industrial water user and a municipal

water supplier. The hearing officer made no determination

concerning which use was most in the public interest, but instead

accommodated both applications by requiring the municipal

supplier to mitigate any adverse impacts which its withdrawals

may have on the industrial use. Significantly absent was any

express determination as to which use "best served the public

interest."

b. The absence of precedent by which to examine the

application of Section 373.233 to competing applications may soon

change. The South Florida Water Management District has


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established a rule which causes the expiration of all irrigation

permits on the same date within specifically designated basins.

See Basis of Review, Vol. III at 95.1.2.3. The expiration date

for the densely populated Gold Coast regions afflicted by salt

water intrusion, groundwater contamination, and continued growth

is October 15, 1988. (This date was recently extended for many

of these applications to allow for further study of the

resource.) Depending on the status of the resource at the time

the renewals come due, the District can expect considerable

competition for renewal of these applications. Such competition

may test the adequacy of Section 373.233, Florida Statutes.

4. Although Chapter 373 does not expressly establish any

standards for determining when a particular application is "most

in the public interest," there is authority in Chapter 373's

progenitor, the Model Water Code, and in other jurisdictions with

long histories of water scarcity. See F. Maloney, R. Ausness, &

J. Morris, A Model Water Code (University Presses of Florida,

Gainesville, 1972).

a. The commentary to the Model Water Code suggests

that public bodies should be preferred over private users,

economically more productive uses should be preferred over less

productive uses, and uses which have a lesser impact on water

quality should be preferred over those which may have a

deleterious effect. Finally, the Code provides that when all

other factors are equal, priority of application may be









determinative. Id. at 186 189.

b. In addition, Section 373.036(9) authorizes the

Department of Environmental Regulation ("DER") to "designate cer-

tain uses in connection with certain sources of supply .

which would result in an enhancement or improvement of the water

resources of the area" as a component of the State Water Use

Plan. Applications for such uses in departmentally designated

areas are expressly preferred in the event of competing

applicants. 373.036(9), Fla. Stat. (1987). However, DER has

not designated any such areas as yet.

c. The South Florida Water Management District has

determined that where the public interest balancing factors are

equal as to each new or renewal applicant then each will be

equitably allocated a portion of the resource. See 33.2.1.1.9,

Water Use, Permit Information Manual, Vol. III (June 1985).

5. For a more thorough discussion of priorities and

preferences among competing water users, see Earl & Ankersen,

Slicing the Water Supply Pie: Competing Applications Under

Florida's Water Resources Act, 61 Fla. B. J. 87 (June 1987).


III. INTER-DISTRICT TRANSFERS


1. Inter-district transfers involve the transport of water

for consumptive use from one water management district to

another. Inter-basin transfers involve the transport of water

from one hydrologic basin to another. See, generally, Kemp,


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Interbasin Transfer of Water in Florida: Common Law and the

Water Resources Act, 56 Fla. B. J. 9 (Jan. 1982). Because water

management districts in Florida were established to generally

coincide with hydrologic basin boundaries, in most instances an

inter-district transfer will also be an inter-basin transfer.

2. Prior to 1987, Chapter 373 was silent as to whether

water could be transported from one water management district to

another for consumptive use purposes. However, the uneven

distribution of water with respect to the population centers in

need of additional water resources insured that the issue

eventually would present itself. A new round of competition

ensued when a local water authority in need of water sought to

satisfy its need for water from beyond the jurisdictional

boundary of the district in which it was located. See Osceola

County v. St. Johns River Water Management District, 504 So.2d

385 (Fla. 1987).

a. In Osceola County, the respondent Water Management

District relied on DER's inter-district transport rule, see Fla.

Admin. Code Rule 17-40, which required a permit from both the

water management district where the resource was located and the

district where it was needed. Petitioner Osceola County filed a

writ of prohibition seeking to prohibit the local water authority

from applying for a permit from the district where the authority,

but not the water, was located. The writ was denied by the Fifth

District Court of Appeal which found the DER rule to be


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authorized by Chapter 373. Osceola County v. St. Johns River

Water Management District, 486 So.2d (Fla. 5th DCA 1986). The

Supreme Court affirmed the procedural scheme established by DER's

Rule which required permits from both the district with the need

and from the district with the resource.

b. Despite the decision in Osceola County, the 1987

Florida Legislature revisited the issue of inter-district

transport and amended Chapter 373 to specifically authorize

inter-district transport of groundwater and addressed many of the

issues raised by the proceedings in Osceola County. See Section

373.2295, Fla. Stat. (1987).

i. Importantly, the inter-district transport

amendment refers by its terms solely to groundwater and does not

address surface water, implying that no such authorization exists

for inter-district transport of surface water.

3. Rather than codifying the permit and appeal procedures

established by DER in Florida Administrative Code Rule 17-40, the

inter-district transfer amendment to Chapter 373 establishes the

water management district in which the resource is located as the

only district which may issue a permit. Section 373.2295(2),

Fla. Stat. (1987). The water management district having

jurisdiction over the area where the water is to be used may

comment upon the proposed application. Section 373.2295(5), Fla.

Stat. (1987).

a. The water management district that is considering


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the permit must prepare a notice of preliminary intended agency

action which includes an evaluation of the application and

recommendations. This notice permits "an interested person" to

notify the district considering the application and submit

comments or objections to the preliminary intended action. Once

the governing board has considered such comments or objections,

it must issue a notice of intended agency action. S373.2295(6),

Fla. Stat. (1987).

b. The statute then permits any substantially affected

person who has submitted a notice with comments and objections to

request review of the application by DER. If no such request is

filed, the notice of intended agency action becomes final order

of the governing board. 373.2295(6) (d) Fla. Stat. (1987)

(Note the use of the term substantially affected to limit the

standing of those who commented upon the application.)

c. If DER receives a request for review it must,

within thirty days approve, deny or modify the water management

district's action on the proposed inter-district transfer and use

of groundwater. 373.2295(7), Fla. Stat. (1987). Any

substantially affected person who had requested review by DER may

then request an administrative hearing pursuant to Chapter 120.

Id. The parties to this hearing shall include, at a minimum, the

two water management districts and the applicant. Id.

d. DER's final order is subject to appellate review

pursuant to Section 373.114, Florida Statutes, which authorizes








review by the Florida Land and Water Adjudicatory Commission

("FLAWAC"), or pursuant to Section 120.68, Florida Statutes,

which authorizes appellate review by the District Court of

Appeal. 373.2295(8), Fla. Stat. (1987).

4. The inter-district transfer amendment leaves little

doubt that it is intended to preempt all other conflicting

regulatory activity by any state agency, water management

district, or local government.

a. Neither the district nor DER may adopt special

rules which prohibit or restrict inter-district transfers and use

of groundwater in a manner inconsistent with the statute.

S373.2295(10), Fla. Stat. (1987).

b. The statute further provides that FLAWAC may review

decisions by local governments concerning zoning or siting of

production, treatment or transmission facilities, and the

Commission must authorize a variance or non-conforming use to

local government comprehensive plans or zoning ordinances unless

contrary to the public interest. 373.2295(12), Fla. Stat.

(1987).

c. Appeal to FLAWAC is also authorized when a local

government denies a permit or other authorization under Chapter

125, empowering county governments, or Chapter 153, authorizing

establishment of independent water districts, to develop an

infrastructure to produce, treat, transmit or distribute

groundwater. The Commission may reverse, modify or approve the


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local government's actions pursuant to those statutes.

3373.2295(14), Fla. Stat. (1987).


IV. THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT'S
"5-3-1" RULE



1. Recently, the focus of Florida's water wars has shifted

from the inter-district transfer battle on the east coast back to

the west coast where they first began. At issue is the Southwest

Florida Water Management District's so-called 5-3-1 rule, which

regulates the extent to which a withdrawal can affect the water

table or piezometric surface beyond the boundary of the land over

which the withdrawal is made.

a. Florida Administrative Code Rule 40D-2.301(3),

adopted by the Southwest Florida Water Management District

provides that the withdrawal of water may not reduce the

piezometric surface under lands not owned, leased, or otherwise

controlled by the applicant by more than five feet. The water

table may not be lowered under such property by more than three

feet, and the level of surface water may not be lowered more than

one foot unless the water body is entirely owned, leased, or

controlled by the applicant.

2. In West Coast Regional Water Supply Authority v.

Southwest Florida Water Management District, DOAH Case No.

88-0693R (May 17, 1988), the Water Management District sought ,to

apply its 5-3-1 rule to the Water Authority's wellfields. The


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hearing officer found that if the rule were applied to the

Authority's Pasco and Hillsborough County wellfields the

Authority's average annual daily withdrawal rate would be reduced

by half or the Authority would have to acquire an excess of

80,000 additional acres at a fair market value of $747,000,000 in

order to maintain current production levels. Id. at 15-16.

a. The hearing officer determined that the District's

5-3-1 rule constituted a invalid exercise of delegated

legislative authority under Section 120.52(8), Florida Statutes,

by enlarging the statutorily prescribed conditions for issuance

of consumptive use permits under Section 373.223(1). Id. at 20.

In other words, the hearing officer found that in addition to

establishing that a proposed consumptive use of water is

reasonable beneficial, will not interfere with any pre-existing

legal uses, and is consistent the the public interest, the

applicant must also comply with the 5-3-1 rule.

b. The hearing officer further found that the 5-3-1

rule "abrogates the legislatively and judicially recognized

separation and distinction between the right to use water and

land ownership and control." Id. at 22 (citing Village of

Tequesta v. Jupiter Inlet Corporation, 371 So. 2d 663 (Fla.

1979); Section 373.2235, Fla. Stat. (1987)).

c. The hearing officer also found that the District's

5-3-1 rule is unconstitutionally vague and fails to establish

adequate standards for determining compliance with the rule. Id.


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at 22 (citing Southeastern Fisheries Association v. Department of

Natural Resources, 453 So.2d 1351 (Fla. 1984)). The hearing

officer concluded byi finding that the rule was arbitrary and

capricious in its application because, although it was applied

district-wide, varying hydrologic factors within the district

were not accounted for by the rule. Id. at 24.

3. Even before the hearing officer's decision was rendered,

the District took its 5-3-1 rule to the Legislature and is

seeking to have it codified in Chapter 373. See H.B. 501

(seeking to amend Section 373.223(1), Fla. Stat. (1987)).


V. CONCLUSION


Despite the abundance of water in Florida, competition for

water for domestic, agricultural, irrigation, recreational and

industrial purposes can be expected to become increasingly

fierce. Pressures on the resource will continue to challenge the

procedural mechanisms for water allocation established by Chapter

373. Whether the statute can withstand this pressure in its

present form will depend in large part on how it is applied by

the water management districts responsible for its fair and

impartial implementation.


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