Second DCA Upholds SWFWMD SWUCA Rules
 
October 11, 2000
 
Roger W. Sims- Orlando

Southwest Florida Water Management District (SWFWMD or the District) has been concerned for a number of years about over-pumping of groundwater in areas of the “Southern Basin” (a geographic area running roughly from Interstate 4 in Hillsborough County south to Charlotte County and from the Gulf of Mexico east to the Highlands Ridge). Beginning in the early 1990s, the District staff identified saltwater intrusion along the Gulf Coast and depressed lake levels on the Highlands Ridge as being indicative of the urgent need for new management strategies to reduce stress on the aquifer system.

The Southern Basin was declared a Water Use Caution Area (WUCA) under provisions of Chapter 373, Florida Statutes and the SWFWMD rules, and the area became known as the SWUCA (Southern Water Use Caution Area). A minimum aquifer level was established and SWFWMD developed plans to effect a recovery of actual levels in the aquifer to the designated minimum elevation. Since the basin was viewed by the District as a uniform hydrologic unit, permitting rules for the entire area were developed to reduce permitted quantities and actual usage by encouraging conservation, re-use, and development of “new” water supplies. Limitations on approval of new quantities anywhere in the SWUCA were also proposed. Water re-allocation by cooperative means (i.e., between permittees) was initially included in the proposed rules.

Inland and coastal water users and environmental interests clashed and a number of parties challenged the proposed SWUCA rules. Some inland interests argued, among other things, that the aquifer levels in their particular area were not causing the problems at hand (i.e., salt water intrusion). The longest administrative hearing on record was concluded in 1995 but the Administrative Law Judge (ALJ) did not issue a decision until March of 1997. The ALJ essentially rejected the SWUCA rules and even invalidated some of the previously existing general rule provisions for permitting withdrawals of water.

The parties subsequently appealed some of the issues, which are discussed in part below. Other issues, such as re-allocation, were invalidated by the ALJ but not raised on appeal.

On September 1, 2000, the Second District Court of Appeal rendered its decision, reversing the ALJ on numerous points and generally upholding the rules as proposed by SWFWMD. The court confirmed the authority of the District to act effectively as a water manager under existing law.

The court upheld the ALJ’s determination that SWFWMD’s use of terms such as “unacceptable adverse impact” and “significant environmental impact” do not automatically render the rules invalid because it is “appropriate and acceptable for the rules to allow the exercise of professional judgment.”

The court reversed the ALJ and found that SWFWMD could allow applicants for water use permits to consider mitigation in meeting conditions for issuance of a water use permit. The authority of the District to consider water use mitigation has been a controversial issue among interested parties and was characterized in the litigation by opponents as an invalid exercise of delegated legislative authority.

On other points, the court:

• reversed the ALJ and determined that SWFWMD may require certain types of applicants to investigate the feasibility of desalination

• reversed the ALJ and found that SWFWMD does have authority to require reuse of water

• reversed the ALJ and determined that SWFWMD does have the authority to require wholesale public supply customers located within the SWUCA to obtain separate permits that would subject them to the same water conservation requirements imposed on public supply permittees from whom they are purchasing their water

• upheld the ALJ determination that District rules requiring water supply utilities to adopt a water conserving rate structure are valid

The court declined to rule on issues which became moot when the District withdrew certain provisions. Particularly, the ALJ finding that “societal interests” must be taken into consideration in establishing minimum flows and levels became moot when minimum aquifer levels were withdrawn due to a settlement agreement with some of the objectors. “Societal interests” meant (for the most part) economics and public welfare apart from pure “environmental” considerations. Some parties felt that minimum levels should be based only on science and natural systems considerations, to the exclusion of such “societal interests.”