Florida SWFWMD Proposed Minimum Flows and Levels Rules - Settlement of Rule Challenge
 
March 1, 2000
 
Roger W. Sims- Orlando

On November 25, 1998, the Southwest Florida Water Management District (the District) published in the Florida Administrative Weekly proposed rules regulating minimum flows and levels in the Northern Tampa Bay area. The Northern Tampa Bay area includes various existing wellfields that have generated concerns about associated environmental impacts.

The rules were developed in a lengthy process involving numerous affected parties. Among those parties were Hillsborough County (County) and the Environmental Protection Commission of Hillsborough County (EPC), which continued to have concerns about how the rules would be administered even after the District approved a final draft. The next phase of rule development was "scientific peer review" of the methodologies and data used to establish the minimum levels in designated lakes and cypress wetlands in the area of concern.

While the actual levels established were generally accepted by interested parties and upheld by the peer review panel, the proposed rules would have allowed these levels to be exceeded by new withdrawals, as long as "supplemental hydration" or other mitigation was provided by the permittee. The existing rule did not allow an applicant to anticipate exceedances and rely on mitigation to offset adverse impacts, but provided that in order to obtain a water use permit, an applicant must demonstrate that the water use, among other things, would not cause water levels or rates of flow to deviate from established minimums. Moreover, the proposed rule language purporting to explain how this "prospective mitigation" would be considered and implemented by the District contained several vague phrases and was difficult to understand.

In light of these considerations, the County and EPC, represented by Holland & Knight LLP, elected to challenge the proposed rules. Central to the concerns raised in the challenge was the potential for overuse of the supplemental hydration technique allowed by the broad rule language, which could have resulted in impacts to water resources and the environment unacceptable to the County and EPC. The County filed a Petition for Administrative Determination of the Invalidity of Proposed Rules on October 25, 1999. Shortly thereafter, Tampa Bay Water, formerly the West Coast Regional Water Supply Authority, intervened on behalf of the District.

Although the rule challenge proceeded through extensive discovery and legal arguments on preliminary matters, the parties were able to reach a settlement, which resulted in substantial changes to the proposed language. The new language, which will be published by the District in the Florida Administrative Weekly pursuant to the Settlement Agreement, provides greater clarity and additional safeguards concerning the manner in which water supply development will be balanced by the need for protecting the water resources of the area, and greater assurance to the public that the "sustainability" of withdrawals will be evaluated in the permitting phase, addressed by enforceable permit conditions, and subject to detailed monitoring criteria.