MEMORANDUM



TO: LMB
FR: DPMIf k
DATE: June 22, 1988
RE: 5-3-1 Rule Appeal


On June 17, 1988 Pinellas county filed a Motion to Transfer South
West Florida Water Management District's (SWFWMD) Appeal of the
final order declaring the 5-3-1 rule invalid from the Fifth
District Court of Appeal to the First District Court of Appeal.

Background

On February 15, 1988 the West Coast Regional Water Supply
Authority (WCRWSA) filed a petition changing SWFWMD's Rule 40D-
2.301(3) (b), (c) and (d) better known as the 5-3-1 rule.
Subsequently, a number of parties attempted to intervene in the
proceedings. Those parties granted intervention in the
proceeding are: Pinellas county aligned with WCRWSA and Pasco
county and Florida Citrus Mutual aligned with SWFWMD.

On March 16, 1988 the Florida Phosphate Council, Inc. filed a
Motion to Intervene in the rule challenge proceedings. On March
21, 1988 the hearing officer denied Florida Phosphate Council,
Inc.'s Motion to Intervene. It then filed a Notice of Appeal on
March 21, 1988 with the First District Court of Appeal.

On March 25, 1988 SWFWMD filed a Notice of Joinder in Florida
Phosphate Council, Inc.'s appeal. On May 17, 1988 the hearing
officer issued the final order declaring the 5-3-1 rule to be
invalid. SWFWMD filed a Notice of Appeal of the final order on
May 20, 1988 with the Fifth District Court of Appeal. Florida
Citrus and Pasco county have joined with SWFWMD in the appeal
proceedings.

Motion Filed by Pinellas County

On June 17, 1988 Pinellas county filed a Motion to Transfer
Appeal to the District Court of Appeal, First District of Florida
with the Fifth District Court of Appeal. In this motion Pinellas
county argues that the appeal of the final order filed by SWFWMD
should be transferred from the Fifth District Court of Appeal to
the First District Court of Appeal. Pinellas county's rationale
is that the First District Court of Appeal and the Fifth, both


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have jurisdiction to hear the appeal. The First District Court
of Appeal became involved in the matter on March 21, 1988 when
Florida Phosphate Council filed its appeal. The Fifth District
Court of Appeal did not become involved until May 28, 1988 when
SWFWMD filed its appeal to the final order. Pinellas county
argues that the district court of appeal that first obtained
jurisdiction in the proceedings should handle all appeals
involving the proceedings.

To further complicate the issues, WCRWSA has appealed the
SWFWMD's determination to deny WCRWSA's petition for rule making
to the Second District Court of Appeal.

SWFWMD has not determine whether or not it will strongly oppose
the transfer of the action from the Fifth District Court to the
First District Court.

Currently, initial briefs in the appeal of the rule challenge
will not be due until July 29, 1988. As of this date the record
on appeal has not been transmitted to the court.


DPM/onc

mh7appea.mem


























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