The Issue Whether or not the action taken by the Respondent, St. Johns River Water Management District, in the person of its Governing Board at a meeting held on March 15, 1978, and by an amendment to the action which took place on November 15, 1978, constituted the adoption of a rule, which is invalid for failure to meet the requirements of Section 120.54, Florida Statutes. (The motion and amendment stated the following: March 15, 1978 "That the St. Johns River Water Management District close District-owned fee simple land in the St. Johns Marsh to half-track or full-track vehicles which have as an integral part tires and/or rubber tracks for propulsion hut excluding four-wheel and conventional to-wheel-drive vehicles, and direct staff to return to the Board within 90 days with an Impact of vehicu- lar use on Marsh ecosystems and the management policy with regard to these track vehicles, and that emergency vehicles be excluded from the prohibition proposed." November 15, 1978 "1. A motion to ban all vehicles excepting boats from the District marsh held in fee simple."
Findings Of Fact THIS CAUSE comes on for consideration based upon the Petition for Administrative Determination filed by the Petitioner, Lacy Everett, and received by the State of Florida, Department of Administration, Division of Administrative Hearings, on November 9, 1978. This Petition was filed pursuant to provisions of Section 120.54(4), Florida Statutes. Subsequent to the receipt of the Petition, the Director of the Division of Administrative Hearings reviewed the Petition and made an order of assignment of the case to Charles C. Adams, Hearing Officer with the Division of Administrative Hearings. The date of the Order of Assignment was November 13, 1978. By that Order, the Director of the Division of Administrative Hearings required that a final hearing be held within thirty (30) days of the date of the Order. The hearing was conducted on December 4, 1978. The Petitioner, Lacy Everett, is a resident of Delray Beach, Florida. Beginning in 1957 and continuing through 1978, the Petitioner has hunted or desired to hunt in the area known as the St. Johns Marsh. This marshland Is under the ownership and control of the Respondent, St. Johns River Water Management District. During the pendency of the time that the petitioner has hunted in the subject area he has used half-track, four-wheel-drive and conventional two-wheel-drive vehicles. For the last nine years the type vehicle he has used has been a half-track vehicle. The petitioner has elected this method of transportation because in his judgment it is the only vehicle which would allow him access to the St. Johns Marsh. The Petitioner has hunted in the St. Johns Marsh area on every weekend over a two-month period in each year during the time frame which began in 1957 up to 1578, in which year he was prohibited from using the half-track vehicle. He wishes to hunt in the St. Johns Marsh area in succeeding years and to use the half-track vehicle. The Respondent, St. Johns River Water Management District, is an agency created pursuant to Chapter 373, Florida Statutes, which statute deals with the water resources of the State of Florida. Chapter 373, Florida Statutes, Part I, is entitled "State Water Resources Plan." The overall policy statement of that plan may be found in Section 373.016, Florida Statutes, which reads as follows: "373.016 Declaration of policy.-- The waters in the state are among its basic resources. Such waters have not hereto- fore been conserved or fully controlled so as to realize their full beneficial use. It is further declared to he the policy of the Legislature: To provide for the management of water and related land resources; To promote the conservation, development, and proper utilization of surface and ground water; To develop and regulate dams, impoundments, reservoirs, and other works and to provide water storage for beneficial purposes; To prevent damage from floods, soil erosion, and excessive drainage; To preserve natural resources, fish and wildlife; To promote recreational development, pro- tect public lands, and assist in maintaining the navigability of rivers and harbors; and Otherwise to promote the health, safety, and general welfare of the people of this state. The Legislature recognizes that the water resource problems of the state vary from region to region, both in magnitude and complexity. It is therefore the intent of the Legislature to vest in the Department of Environmental Regulation or its successor agency the power and responsibility to accomplish the conservation, protection, management, and control of the waters of the state and with sufficient flexibility and discretion to accomplish these ends through delegation of appropriate powers to the various water management districts. The department may exercise any power heroin authorized to be exercised by a water management district; however, to the greatest extent practicable, such power should be delegated to the governing board of a water management district." To implement those policies, certain water management districts were created pursuant to Section 373.069, Florida Statutes. Respondent, St. Johns River water Management District, was one of the agencies established to create and exercise the overall policies of the State Water Resources Plan. Chapter 373, Florida Statutes, Part I, also allowed for agencies, such as the St. Johns River Water Management District, to purchase land as a means to effectuate management policies. This authority is granted in Section 373.086, Florida Statutes. In keeping with the statutory authority granted through Chapter 373, Florida Statutes, the Respondent, St. Johns River Water Management District, purchased the property known as the St. Johns Marsh and holds fee simple title to that land. On March 15, 1978, at a meeting of the Governing Board of the St. Johns River Water Management District a motion was made and amended to the effect that: "The St. Johns River Water Management District close District-owned fee simple land in the St. Johns Marsh to half-track or full-track vehicles having as an integral part tires and/or rubber tracks for propulsion but excluding four-wheel and conventional two-wheel-drive vehicles, and direct staff to return to the Board within 90 days with an impact of vehicular use on Marsh ecosystems and a management policy with regard to these track vehicles, and that emergency vehicles be excluded from the prohibition proposed." That motion was seconded and carried unanimously by the directors present at the meeting. The terms and conditions of this motion may be found In the copy of the minutes made of the meeting held on March 15, 1978, which is Petitioner's Exhibit No. 2 admitted into evidence. At the meeting certain members of the public were allowed to speak on the issue of the motion, among these were persons who desired to use track vehicles in the St. Johns Marsh. The minutes do not indicate that the Petitioner was among those persons speaking. However, it was stipulated between the parties that the Petitioner did attend certain public hearings before the St. Johns River Water Management District Governing Board which dealt with the question of utilization of track vehicles in the St. Johns Marsh. On June 21, 1978, at a meeting of the Governing Board of the St. Johns River Water Management District, the question of the prohibition of certain vehicles in the St. Johns Marsh was raised. In the course of that discussion one of the staff members presented four possible alternatives on the question of the continuation of the prohibition against the utilization of the aforementioned classes of vehicles. Those alternatives were that "(1) no action with no ban; (2) continue ban and extend the study period; (3) discontinue the ban-extend the study period; and (4) continue the ban with no more study." The matter was further considered in the course of the meeting and, under a motion which was carried unanimously, a decision was made to extend the ban for 90 days, meaning that the prohibition against the utilization of the type vehicles mentioned in the March 15, 1978, action would be extended for 90 days. Another element of the motion was that the public be notified that the final decision on the matter would be made by the Governing Board in 90 days and that no public hearing be advertised if it was not necessary. The discussion as reported in the minutes of the Governing Board of the St. Johns River Water Management District may be found in Petitioner's Exhibit No. 3 admitted into evidence. The Governing Board of the St. Johns River Water Management District met on October 13, 1978, and discussed the matter of a ban on half-track vehicles in the 8t. Johns Marsh. At that time a motion was made to extend the ban on utilization of half-track vehicles in the St. Johns Marsh until the next Board meeting, at which time a public hearing would be held. The expressed rationalization for extending the ban was due to the fact that there was in the mind of the Respondent an immediate danger to the public welfare in the area where the ban was imposed. The motion as stated was carried unanimously. Again, this discussion may be found in the minutes of the Governing Board of the St. Johns River Water Management District for the date of October 13, 1978. These minutes are found as Petitioner's Exhibit No. 4 admitted into evidence. Before the next meeting of the Governing Board of the St. Johns River Water Management District was convened, the Petitioner requested a "draw out" hearing before the St. Johns River Water Management District. This request was made pursuant to Subsection 120.54(16), Florida Statutes. That request may be found as the Respondent's Exhibit No. 2 admitted into evidence. In his prayer for relief the Petitioner states that to proceed under Subsection 120.54(3), Florida Statutes, would not protect his interest and, therefore, it is necessary to proceed under Subsection 120.54(16), Florida Statutes. The request for hearing also alludes to the fact that the proposed rule had been published in the Florida Administrative weekly on October 20, 1978, and the rule published was the one originally adopted 00 March 15, 1978, as extended by the various meetings of the Governing Board of the St. Johns River Water Management District held in the interim period. On November 14, 1978, a public hearing was held on the question of the motion which had been passed on March 15, 1978, and is the subject of this hearing. At the November 14, 1978, meeting the existence of the request for hearing under Subsection 120.54(16), Florida Statutes, was brought to the attention of the Governing Board, as well as the Petition which is the subject of this cause filed with the Division of Administrative Hearings. It was also discussed that an injunction suit was to be instituted against the Petitioner, Lacy Everett, on the basis that Mr. Everett intended to use a half-track vehicle to hunt on Use St. Johns Marsh in spite of the prohibition which had been instituted on March 15, 1978. The attorney for Mr. Everett was allowed to speak to the Board in the course of the meeting and expressed his legal theory of the case, as well as relating certain hearsay information pertaining to experiences which had been reported in the Florida Everglades pertaining to the utilization of half-track vehicles. The minutes of the November 14, 1978, meeting may be found as Petitioner's Exhibit No. 5 admitted into evidence. On November 15, 1978, the Governing Board of the St. Johns River Water Management District again met and considered the question of the use of off-road vehicles in the St, Johns Marsh. According to the minutes of the meeting, the attorney for the Respondent characterized the request for a "draw out" hearing made by the Petitioner as being a request for a Section 120.57, Florida Statutes, hearing if the Respondent adopted the prohibition against the use of off-road vehicles as a rule. The minutes indicate that the attorney for the Respondent then instructed the Governing Board that in view of the absence of Petitioner's attorney at the November 15, 1978, hearing, the Board need not contact the Petitioner further on the question of the prohibition of off-road vehicles in the St. Johns Marsh. Subsequent to that instruction by the attorney for the Respondent, certain motions were made and passed as follows: "1. A motion to ban all vehicles excepting boats from the District marsh held in fee simple. This motion is to authorize our attorney to publish and advertise for rule adoption a rule prohibiting all vehicles excepting boats from the District marsh field in fee simple. Emergency vehicle use, District vehicle use and vehicle use necessary for ranch and farm operations of adjacent property owners shall be excepted from this rule. This motion will also authorize appropri- ate officers to arrest and prosecute all persons violating the Board's order on vehicle use in the marsh fee simple ownership. This motion is also to authorize nod ratify conjunctive suits against all persons violating the Board's order on vehicle use in the marsh fee simple ownership." In considering the facts and law involved in this dispute, the initial question to be resolved concerns the standing of the Petitioner to challenge the action prohibiting off-road vehicles which was taken on March 15, 1978, and amended on November 15, 1978. Petitioner has demonstrated his standing by establishing the long term pattern of his usage of the St. Johns Marsh for purposes of hunting and proving his reliance on the restricted classes of vehicles to transport him into the hunting area. Therefore, he is a proper party within the meaning of Subsection 120.52(10)(b), Florida Statutes, which reads: "Any other person who, as a matter of con- stitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceed- ing, or whose substantial interests will be effected by proposed agency action, and who makes an appearance as a party." (emphasis added) Moreover, under the provisions of Subsection 120.54(4)(a), Florida Statutes, the person substantially effected may seek an administrative determination of the invalidity of any proposed rule, using as a grounds the fact that the proposed rule is an invalid exercise of delegated legislative authority. See Sarasota County Anglers Club, Inc. v. Burns, 193 So.2d 691 (1 Fla.App. 1967), Sarasota County Anglers Club, Inc. v. Kirk, 200 So.2d 178 (Fla. 1967) and City of Key West v. Askew, 324 So.2d 655 (1 Fla.App. 1975) On the merits of the Petition filed with the Division of Administrative Hearings, the Petitioner is correct when he asserts that the procedural provisions of Section 120.54, Florida Statutes, have not been complied with and the Respondent has agreed with this contention by written stipulation. This noncompliance with the provisions of Section 120.54, Florida Statutes, pertains to the procedural requirements for summarization, a statement of authority, a statement of the estimate of the economic impact, notice and publication. The Petitioner is incorrect when he asserts that the Respondent has no legal authority for the promulgation of a rule pertaining to the regulation of the use of vehicles in the St. Johns Marsh which is held in fee simple by the Respondent. Respondent does have authority to regulate and that authority is found in Subsections 373.016 and 373.086, Florida Statutes. These provisions allow for the purchase of the land and for the protection of the environment and efficient use of water resources in the area of their concern. Therefore, the prohibition of vehicular traffic in the St. Johns Marsh is not per se an invalid exercise of legislative authority. Thus, the inquiry becomes one of whether or not the action taken of March 15, 1978, and the amendment to that action which occurred on November 15, 1978, is a rule and subject to the procedural requirements of Section 120.54, Florida Statutes. In Subsection 120.52(14) a rule is defined as: "(14) 'Rule' means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organi- zation, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an exist- ing rule. The term also includes the amendment or repeal of a rule. The term does not include: Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum. Legal memoranda or opinions issued to an agency by the Attorney General or agency legal opinions prior to their use in connection with an agency action. The preparation or modification of: Agency budgets. Contractual provisions reached as a result of collective bargaining. Agricultural marketing orders under chapter 573 or chapter 601. Curricula by an educational unit." The action taken by motion on March 15, 1978, and the November 15, 1978, amendment found in Motion No. 1 on that day's agenda should be analyzed in view of the definition of a rule stated in Subsection 120.52(14), Florida Statutes. When this is done, the inescapable conclusion that must be reached is that the original action of March 15, 1978, and the amendment of November 15, 1978, in which additional categories of vehicles were banned, were agency statements of general applicability that implemented and interpreted or described law or policy of that agency. Those actions of the two dates mentioned have broad application and have present and prospective effect. They, therefore, are not properly characterized as a rule which the agency Intends to adopt. They constitute a rule which exists and the passage and implementation of this rule is an invalid exercise of delegated legislative authority within the meaning of Section 120.56, Florida Statutes, because the rule was not passed in accordance with the procedures required by Section 120.54, Florida Statutes. (Although the Petitioner has not plead his case under the provisions of Section 120.56, Florida Statutes, the issues are duly joined and there is no prejudice to the parties in considering the case as a Section 120.56, Florida Statutes, dispute. The standing which the Petitioner had to assert his claim under Section 120.54, Florida Statutes, would exist in a Section 120.56, Florida Statutes, hearing because he is substantially affected by the stated rule for the same reasons as set forth in the discussion of his Petition under Section 120.54, Florida Statutes.) The Respondent has tried to argue that the action it has taken on March 15, 1978, and extended up to and including the amendment of November 15, 1978, found in agenda motion No. 1 is an order of the agency not subject to attack under the provisions of Section 120.54, Florida Statutes. It urges that the actions taken under various hearings before the Governing Board of the St. Johns River Water Management District were preliminary to the passage of a proposed rule and that the authorization for the publication and advertisement of the rule did not take place until November 15, 1978, as Motion No. 2 on the agenda which has been spoken of. Had the Respondent requested studies by its staff on the feasibility of prohibiting certain classes of vehicles from being allowed to operate in the St. Johns Marsh as opposed to an absolute prohibition of certain classes of vehicles, then the Respondent's argument would be persuasive. In fact, the Respondent has implemented policy which prohibits specific members of the general public from utilizing the disputed area and has done so without affording an opportunity to those individual citizens to be heard on the question of the passage of such a rule and without following the mandated requirements found in Section 120.54, Florida Statutes. Respondent also argues that a "draw out" hearing was given in accordance with the requirements of Subsection 120.54(16), Florida Statutes, arid Section 120.57, Florida Statutes. Therefore, any challenge to the action taken in that proceeding before the Respondent may not be made by a collateral attack under the provisions of Section 120.54, Florida Statutes, that alleges that the action is a rule. This Order does not undertake to consider the propriety of the action taken in the Section 120.57, Florida Statutes, hearing held before the Governing Board of the St. Johns River Water Management District. That action is viewed as an effort on the part of the Petitioner to protect himself against the short- term implications of the prohibition against the utilization of his half-track vehicle in the St. Johns Marsh, That in no way prohibits the Petitioner from filing an Independent attack against the rule itself under the provisions of either Section 120.54, Florida Statutes, or Section 120.56, Florida Statutes. Once the Respondent has entered its order in the Section 120.57, Florida Statutes, hearing, which was the "draw out" hearing requested under Section 120.54(16), Florida Statutes, the Petitioner may appeal or not at his discretion. The underlying rule of March 15, 1978, as amended November 15, 1978, because of its prospective application is a proper subject of a rule challenge on the ground that its passage did not comply with the procedural requirements of Section 120.54, Florida Statutes. The Division of Administrative Hearings has exclusive jurisdiction over rule challenges filed pursuant to Section 120.54, Florida Statutes, and/or Section 120.56, Florida Statutes, and this remedy does not constitute a collateral scrutiny of agency action by a Hearing Officer within the meaning of the case of State Dept. of Health, Etc. v. Barr, 359 So.2d 503 (1 Fla.App. 1978). In the Barr case the Court indicated that the Respondents in the appeal could not on the one hand request a declaratory statement from an agency which was subject to appeal, and then make a collateral attack on that declaratory statement on the basis that the declaratory statement was an improperly promulgated rule. The Barr case facts may be distinguished from the facts sub judice, in that this Petitioner sought to protect himself via the Section 120.57, Florida Statutes, hearing, against the short-term acts of the Respondent which were prohibiting the utilization of the vehicles at the moment, and concurrently challenged the underlying basis of the actions which the agency was taking by filing his rules case under the provisions of Section 120.54, Florida Statutes. By pursuing these remedies, the Petitioner is not subjecting the Respondent to harassment through duplicitous litigation.
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
Findings Of Fact Existing Conditions Between 1952 and 1957 the United States Army Corps of Engineers (Corps) and the Florida Central and Southern Flood Control District (the forerunner of SFWMD) constructed a chain of levees, L-1, L-2, L-3 and later L-4 in eastern Hendry County, Florida. These levees which begin approximately 10 miles to the southwest of Lake Okeechobee run first east, then south and then east again for a distance of approximately 38 miles. The purpose of these levees is to shield the land5/ to the east of them from the natural sheet flow of water which comes from the west during the area's rainy season. The EAA which is protected from natural flooding consist of rich muck soils which have been successfully exploited for years by sugar cane farming. The present levees were created by excavating a "borrow" canal parallel to the southern and western sides of L-1, 2, 3 and 4. The borrow canal is no larger than was required to provide sufficient material for construction of the levees; nevertheless, the canal has a considerable water carrying capacity in the amount of 1,260 CFS 6/ at peak flow. The canal is a navigable fresh water of the state. It interconnects into other navigable canals which terminate in either Lake Okeechobee or the Miami River. The water carried by the borrow canal flows south and discharges into the Miami canal via either a pumping station designated S-8, or via the borrow canal next to L-28.7/ The water which enters the Miami canal ultimately travels to canal C-60 and then into the section of WCA-3 south of Alligator Alley (State Road 84). Flooding The rain water which once moved from west to east directly across the eastern portion of Hendry County, Florida into the EAA is now interdicted by L- 1, 2 and 3. As a result it ponds in the corner of the intersection of L-1 and L-2 (known in these proceedings as the L-1 angle). The area flooded is grass land used by Hendry County ranchers for the open grazing of beef cattle. Some of the pasture is improved, that is fertilized, but the majority of the area is unimproved range. During flood times the ranchers move their cattle to alternative pastures either to the north or to the west. The deepest flooding, when it occurs, is immediately next to the levees in the L-1 angle. The flooding has been known to reach depths as great as 10 feet and to extend westward for several miles. Because the land to the west of the L-1 angle is higher, the depth of the flooding decreases in a westerly direction. The duration of the ponding immediately in the L-1 angle has been as long as 80 days after a prolonged and heavy rainfall event. This flooding occurs despite the capacity of the borrow canal to remove 0.18 inch of flood water per day from the inundated area. When there is flooding in the L-1 angle there is also high water In the northeast corner of WCA-3A where some of the water from the borrow canal is presently discharged. During a dry season the land immediately adjacent to the present borrow canal suffers overdraining due to seepage of ground water into the canal and its resulting evaporation or conveyance south. Water Conservation Area 3A is part of a series of conservation areas established as their name implies to conserve water. Extending over portions of several South Florida counties including Palm Beach, Broward and Dade, they provide the recharge source for the Biscayne Aquifer and other aquifers which are the water supply for metropolitan South Florida. The water conservation areas are also wildlife refuges and provide natural habitats for numerous South Florida animals such as deer, alligator, and wading birds. Description of Project The Hendry County plan as described by the Corps in General Design Memorandum No. 2, 8/ envisions the construction of a flood control canal, C- 139, with two water flow control structures, S-239 and S-243. To create C-139, the Corps plans to further excavate the existing borrow canal next to L-2, L-3 and L-4 for a total distance of 37 miles. See Illustration I.* This excavation will result in the removal of 5.2 million cubic yards of earth and limestone. Some of the resulting spoil will be used to create a levee along the west side of C-139. Most of the excavation will be done by draglines on the canal banks. Upon its completion C-139 will be an immense water conveyance. At its northern end the canal will be only five feet across the bottom with a depth of 10.6 feet, but by the time the canal reaches WCA-3A it will have enlarged to a bottom width of 80 feet across and a depth of 19.5 feet. Its peak design capacity is 3,000 CFS. That is more than twice the present capacity of the existing borrow canal. Downstream from S-239 C-139 turns south to be designated C-139(S) and to gradually become increasingly shallower. This will cause a discharge pattern designed to create a sheet flow across WCA-3A. Benefits, Future Land Use It appears that when levees L-1, 2 and 3 were constructed the Corps failed to fully consider the adverse effect which would result from the impoundment of water by the new levees. According to the General Design Memorandum, Levees 1, 2, 3 and 4 were constructed in the mid 1950s to prevent flood waters originating on the then sparsely developed lands westward of the levees from contri- buting to flooding on the rich agricultural lands lying to the east of the levees. The original borrow canals were sized based on materials needed for the levee construction. The sparse economic development of the lands to the west precluded increasing the con- veyance capacity of these canals to prevent flooding on those lands. Construction of the levees and the subsequent increased de- velopment over the drainage area have aggra- vated flooding problems on the lands. Water stands on some of the land during practically the entire wet season virtually every year. As the landowners developed the land, they became increasingly vociferous about con- struction of works to alleviate the flooding for which they contend is project-induced. There is merit in their contention in that the adjacent project works adversely affected both depth and duration of flooding in the area west of Levees 1, 2 and 3. (Emphasis added) The facts presented at the instant final hearing are somewhat to the contrary, in that there was no showing of significant subsequent development west of the levees after their construction. For many decades vast family ranches have raised cattle on the mentioned lands as they continue to do today. The primary purpose of the proposed project is to now provide flood control to an approximately 261 square mile drainage basin west of the flood-causing levees.9/ With a design capacity of 3,000 CFS, C-139 can handle twice the water which drains through the present borrow canal. By way of comparison the present canal has a drainage capacity of .18 inches per day from the flooded area during a ten-year flood,10/ while C-139 has the capacity to drain .43 inches per day. This heightened discharge rate will cause land in the L-1 angle to flood less, and once flooded, to be underwater for a shorter period of time. For instance, an area which during a ten-year storm might have been submerged for 40 days prior to the construction of the project Is estimated to have an inundation period of only 10 days upon the project's completion. The significance of the reduced flooding to the landowners in the flooded area is difficult to gauge from the evidence. Because an intensification of land use would result in a lowering in the quality of the water which runs off the land and into C-139 and thence into the environmentally sensitive water conservation area,11/ the landowners supporting the project were understandably reluctant to testify that the project will allow them to use their land for more than continued cattle grazing. The testimony of Mr. Joe Hillard, a partner in Hillard Bros. of Florida, Inc., one of the larger ranches is illustrative: Q If this project, the flood control portion, were built, would your company change any of its land uses on this land that you described? A No, sir, not at all. Not with what I understand is going to be done with the project I wouldn't change anything. In response to the Hearing Officer's later inquiry, Mr. Hillard explained that the project would allow pasture land to be used for twelve months per year as opposed to the current nine months per year during a flood season. He does not anticipate grazing any more head per acre after the project. This evidence contrasted with the assumptions made by the Corps in that part of the General Design Memorandum which discusses the cost-benefit ratio of the project. The Memorandum states at p. 52: As noted previously, the existing activity within the area is predominately agricultural with major emphasis in beef cattle production. Local landowners and managers were asked to indicate the production changes they expected to make with the reduced flood hazards available under with (sic) project condi- tions. These expectations were prepared as a land use map with the basic control matrix. For the most part, these changes in land use represented more intensive types of agricultural cultivation. In some cases, existing beef pastures were expected to be replaced with sugarcane, truck crops, and citrus production. The majority of the changes were an upgrading of existing beef cattle operations. Such upgrading was affected (sic) by planting the more pro- ductive types of pasture such as clover and grass combinations, and the application of additional fertilizers and supplemental water. These expectations were assumed to exist under favorable cultivation conditions. Because of the nature of soil conditions in the project drainage basin, sandy with poor nutrient and water retention ability, it is unlikely that land use in the 261 square mile drainage basin will change significantly. As predicted by Mr. Hillard, it is likely that all the project would do is allow more grazing time on land which is now periodically flooded. Since it is not the function of this proceeding to inquire into whether the purported cost- benefit ratio of the project is accurate, no findings will be made concerning that issue. Project Permitting History The Hendry County portion of the Central and Southern Florida Flood Control project for flood control west of levees 1, 2 and 3 was authorized by the Congress of the United States in the Flood Control Act of October 27, 1965. The Army Corps of Engineers is the actual builder of the project, but SFWMD is the local sponsor and is the Corps' agent in applying for the necessary permits from DER. The Department as the permitting agency is in a curious position here. Its Bureau of Water Resources (BWR) was responsible for the State Public Works Program through which Florida requested Congress to fund the Hendry County Project. Mr. Charles Littlejohn who was head of the Bureau in 1976 had the responsibility of lobbying in Washington for funding of the project. The DER through its Bureau of Permitting is now asked to pass on the validity of a project which the BWR has so vigorously promoted. The Department's uncomfortable posture was recognized by its permitting staff. In a memorandum dated March 9, 1979 to Mr. E.D. "Sonny" Vergara, Mr. Forrest Fields at DER wrote: I told Mr. Brown, as I told you yesterday that I felt rather awkward in reviewing for permitting a project which the agency had endorsed for the public works list." Every year projects being sponsored for federal approval are reviewed by a process In the Division of State Planning called the A-95 Clearinghouse.12/ The Hendry County Project had a checkered history there. Serious objections concerning the environmental impact of the project were raised; nevertheless, DER through the BWR continued to seek and was successful in obtaining federal funding. On November 15, 1978, SFWMD filed an application with DER for the requisite permits to begin construction. During the course of DER's review of the project several issues arose between the parties. Among them were: Whether local approval pursuant to Section 253.124, Florida Statutes would be required? Would an exception from dissolved oxygen (DO) standards be necessary? Whether local water quality standards would apply if they were stricter than state standards? Local Approval As early as February 19, 1979, DER noted that plans submitted by the applicant proposed the placement of fill in waters of the state. In a letter to Mr. Lee M. Brown of SFWMD, Mr. Forrest Fields, the DER permit processor, observed: Second, on page 2/11 of your drawings, you indicated that approximately 5,800 cubic yards of fill material will be placed water- ward of ordinary mean high water. I pre- sume that this fill is associated with structures S-243 and S-239. Pursuant to Section 253.124, Florida Statutes, approval of this filling by resolution of the local government is required. To do this I will, upon receipt of the Department of Environ- mental Regulation field report, summarize and send this to the Hendry County Commission. The Commission will have to consider this report, and, by vote, adopt a resolution approving the project. I will send you a sample resolution. The requirement of local approval was reiterated numerous times. In March, 1979, Mr. Fields sent a staff report of a biological survey of the project to the Hendry County Commission for consideration in their approval of the project. During a meeting on March 21, 1979 in the DER Secretary's office representatives of SFWMD were told that local approval would be required. On April 10, 1979 the County Commissioners of Hendry County gave their approval to the project. In correspondence to Mr. Charles Lee of the Florida Audubon Society, Secretary Jacob D. Varn noted that the permit applications were still incomplete because local approval for filling associated with the two water control structures had not yet been received by DER. During a public meeting held on May 22, 1979, the County Commissioners of Broward County, after three and one-half hours of testimony, voted 6-0 against approving the project as it related to fill in Broward County. Subsequent to that vote the Corps and SFWMD asserted that local approval by Broward County was not required. In response to this assertion Mr. Charles Littlejohn, on behalf of the Secretary, requested a legal opinion from DER's General Counsel. On October 30, 1979, General Counsel's Legal Opinion 79- 72 concluded that the Department could assert Chapter 253 jurisdiction over the project and therefore "local approval" is a statutory requirement for its permitting. On March 17, 1980 Mrs. Evelyn Jackman of Jackman and Sons, Inc., one of the major ranchers in the project drainage basin, wrote to Governor Graham to urge the rapid approval of the project. Her correspondence was forwarded to DER for an appropriate response. Ms. Victoria J. Tschinkel as Assistant Secretary noted in her reply on April 3, 1980 that: Pursuant to Section 253.124(3), Florida Statutes approval must be obtained from the County Commissioners before we can complete the processing of a permitting application for fill in navigable waters. Approval has not been received from Broward County and there Is fill proposed for the Broward County portion of the project. Ms. Tschinkel did, however, assure Mrs. Jackman that: The Department of Environmental Regulation is sympathetic to the problems outlined in your letter, and for that reason the Depart- ment has made this project part of its public works package given each year to Congress. We still support this as a public works pro- ject and for that reason we are attempting to work out the permitting problems as ex- peditiously as possible. Shortly after Ms. Tschinkel's letter was sent there was another meeting in the Secretary's office to discuss the project. Mr. Lotspeich's interoffice memorandum outlines the Department's new position as it related to local approval. In addition, the issue of what constituted fill pursuant to Chapter 253, Florida Statutes, for local approval purposes was discussed. Helen Setchfield also partici- pated in this discussion. After Helen and I looked more closely at the project, it appeared that only a concrete structure (S-239) was to be placed waterward of OHW.13/ We both agreed that in past permitting practices we had not required local approval for the construction of structures waterward of OHW, but only when fill to extend existing lands or create new lands was involved. Since the application drawings did not clearly show the relation of the fill and structure relative to OHW and sheet 2 of 11 clearly indicates that fill will be placed "below MHW" Forrest must have assumed that local approval would be required if the canal was determined to be under Chapter 253, Florida Statutes jurisdic- tion. GCO-79-72 from Randie Denker indicated that the Department can assert Chapter 253, Florida Statutes jurisdiction in the canals and therefore local approval would be required. It would appear that there was really no clear understanding as to what the "fill" consisted of in the case of structure 239. Conversation with Mr. Walker [counsel for SFWMD] and Messrs. Parsons [counsel for Alico and other landowners] and Davis [SFWMD] indicated that there was no intention to place fill in the canal waterward of OHW and that the concrete structure would span the entire canal width. Since the application drawings did not clearly show the relation of the structure and fill re- lative to existing OHW, Mr. Walker said he would provide new drawings which would show this. Helen and I discussed the situation and we scheduled an appointment to talk the problem over the (sic) Terry Cole. It was agreed at the meeting that simultaneous "intent" letters would be sent on May 5, 1980 from permitting and the exception review people. May 16, 1980 DER entered into a Stipulation with SFWMD which states in its entirety: The SOUTH FLORIDA WATER MANAGEMENT DISTRICT and the DEPARTMENT OF ENVIRONMENTAL REGULA- TION for purposes of this proceeding hereby stipulate and agree that: The DEPARTMENT OF ENVIRONMENTAL REGULA- TION has jurisdiction under Chapter 253, Florida Statutes, to require permits autho- rizing construction and other activities described in the application which is the subject of this proceeding. None of the activities or construction, including the construction of the proposed Spillway S-239, as described in the appli- cation which is the subject of this pro- ceeding, constitute construction of islands or an addition to or extension of existing lands and islands so that approval of local governments as described in Section 253.124, Florida Statutes, is not required. This Stipulation is executed by counsel for each party on the date shown. On May 20, 1980 coordinated letters of intent to grant permits for the construction of the project were issued. Pursuant to the Stipulation local approval was no longer being required by DER. Alternative Site Specific Criteria After receipt of SFWMD's permit application for the construction of C- 139 and associated structures, DIR noted that it did not have adequate data on dissolved oxygen. In correspondence dated March 9, 1979, Mr. Forrest Fields said: Fourth, the dissolved oxygen data are not adequate. The available data were col- lected during daylight, only, and these data include occasional concentrations of less than 4.0 mg/l. In an effort to re- solve these deficiencies so that reasonable assurances may be provided, you, Walt Dineen, and I will discuss the South Florida Water Management District data on Thursday, March 15. The results of the March 15, 1979 meeting were memorialized by Mr. Fields in a file memorandum dated March 19, 1979. The memorandum stated in pertinent part that: On March 15, 1979, Mr. Lee Brown, Mr. Walt Dineen, and Mr. Fred Davis, from SFWMD, called to discuss the staff's request for "reasonable assurance" re. the Department's water quality standards. Mr. Davis, the applicant's chief chemist, said that, throughout the Everglades, in both canals and conservation areas, the water quality standards for both conductivity and dis- solved oxygen are frequently violated. He asserted that this is typical of the area. He believes that these data represent natural background. The situation regarding affirmative, reasonable assurance appears to be this: widespread and frequent observations of DO data which are less than the minimum for Class III waters commonly occur within the existing L-1, L-2, L-3 canals. The increase in depth associated with C-139 is predicted to exacerbate existing stress- es on the DO regime.... However, the SFWMD's response does not constitute reasonable assurance re. other Class III standards. The District's DO and conductivity data may conceivably supply assurances that these standards will be violated in C-139. (Whether background DO and conductivity violate the standards may become important.) The District appears to have two alternatives: 1) attack the Class III standard; 2) apply for variances for, at least, DO and conductivity. A follow-up meeting was held on March 21, 1979. Again, in a file memorandum dated March 28, 1979 Mr. Fields wrote: Consideration of reasonable assurance began at the March 15, 1979, conversation among Messrs. Brown, Davis and Fields. According to the SFWMD, widespread and frequent violations of the Class III water quality standard for dissolved oxygen, as contained in Chapter 17-3, F.A.C., occur throughout the Everglades, in the canals, agriculture areas, Lake Okeechobee, and the conservation areas. The existing borrow canals follow this pattern. The SFWMD alleges that this condition is natural back- ground. They agree that it is probable that any existing DO stresses exist in the borrow canal will be exacerbated in the proposed C-139. However, both the former and present editions of Chapter 17-3 F.A.C. allow for exceptions for natural background. The SFWMD will review these rules to determine which regulatory approach will be taken. In addition, the SFWMD will supply to DER data for the "benchmark" station in the L-28 canal and at Everglades National Park to demonstrate lower back- ground concentrations of DO. Furthermore, the SFWMD will apply, per Ch. 403.087, F.S., for a temporary operating permit for the completed structure. Conditions governing private connections and incor- porating BMPs may be included in the TOP. On April 5, 1979, SFWMD submitted in support of its original permit application a document called Evaluation of Natural Background Dissolved Oxygen in Conservation Area 3-A, South Florida. This evaluation received unfavorable reviews at. DER. Landon P. Ross, chief biologist, wrote in an April 9, 1979 memo that: I have reviewed the data provided by SFWMD regarding background DOs in the Everglades area and have the following comments: Indication that DOs are not harmful to local organisms are, in a legal sense, irrelevant to the question. The data provided give evidence of the occurrence of low DOs in the area. Since the measured low DOs seem to be from artificial drainage channels, they can hardly be supposed to be "natural". The measures that SFWMD provided, however, do not seem too different from the values that I would expect to find in a natural swamp habitat. The proposed "standard" cannot be logically derived from the DO measurements provided. This Evaluation was later submitted in support of first Petition for Exception noted infra. In his review of the data Mr. Fred Bartleson at DER wrote:14/ The data submitted by the South Florida Water Management District does not justify the requested exception for dissolved oxy- gen criteria for the Hendry County Project. The petition alleges that D.O. concentra- tions lower than 1.0 mg/l occur in the re- ceiving waters of Conservation Area 3A. However, the data submitted from that area indicate a minimum value of 2.3 mg/l. The value cited in the petition of less than 1.0 mg/l was recorded in the L-3 borrow canal adjacent to the conservation area. This canal drains an agricultural area. Similar data from the L-28 east canal which is less affected by cultural activity depicts minimum D.O. values between 3 - 2 mg/l. The low D.O. values found naturally in fresh- water wetlands during the warmer months ob- viously result in stress to the biota. The introduction of larger quantities of water from the proposed Hendry County Project, which is anticipated to have lower D.O. values as well as nutrients and pesticides from agricultural runoff, could adversely affect the ecosystem. The proposed exception allowing discharge of water with not less than 1.0 mg/l for more than two consecutive hours in any 24-hour period is arbitrary and not supported by data. It may well be that an exception could be granted for some lowering of the D.O. criteria with time constraints. However, more defini- tive and conclusive data are required to in- sure that this action would not cause adverse effects. The burden of supplying this infor- mation should rest with the petitioner. His views were supported by Messrs. Kevin Edwards, Vernon Myers, and G. J. Thabaraj. Mr. Edwards also noted the difference in DO readings between the WCA- 3A and the borrow canals. SFWMD filed a Petition for an Exception on July 23, 1979. The Petition alleged that the receiving waters of the proposed discharge are located in WCA-3A and that due to natural causes that portion of WCA-3A which will receive the discharge does not meet the state standards for DO as set out in Section 17-3.121, Florida Administrative Code. The DO levels of the proposed discharge are alleged to be similar to those levels already present in the water conservation area. In response to the Petition DER requested more information by a letter from Stephen Fox dated August 29, 1979. The letter requested: Data which supports the contention that the condition of the waters is the re- sult of natural causes, that is, there is an absence of man-induced alteration; or Data which supports the contention that the condition of the waters is the re- sult of man-induced causes which cannot be controlled or abated with technology or management practices. Data which supports the contention that the biota have not been adversely af- fected or will not be affected adversely. The data submitted with the application did not address the possibility that the low dis- solved oxygen levels may be caused by the practice of pumping water off the agriculture areas during the summer wet season. Compari- son with similar subtropical, undisturbed aquatic environment should be made. The dis- solved oxygen data should be compared with pumping schedules and with dissolved oxygen values of water pumped. Comprehensive water- shed and land use data is needed for a thorough review. Further, the data submitted did not support the contention in the petition of a corre- lation between C.A. 3A and canals L-3 and L-28. Also, the contention that in C.A. 3A dis- solved oxygen concentrations were below 1.0 mg/l were recorded was unsupported. The data array was not adequate in terms of distri- bution and frequency of sampling, to demon- strate that the dissolved oxygen regime ap- proaches the proposed alternative criteria. On October 2, 1979, E. D. Vergara summarized the status of the SFWMD application for the DER Secretary, Jacob D. Varn. His memorandum with respect to dissolved oxygen states: ... (permits) originally requested under old 17-3 rules, it was found quality assurances could not be made due to a naturally occurring condition of low DO. The Department requested information sup- portive of the low DO background, but due to differences in opinions among the biologists, the district elected to re- quest an exception under the provisions of the new 17-3 rule instead. Additional information has now been requested by the Department to support the request for an exception, and the District is cur- rently putting this together. It is the general feeling that with this additional data, granting the exception should be possible. SFWMD responded to Mr. Fox's letter above by submitting in the Spring of 1980, an Amended Petition for Exception from Criteria. In its Amended Petition the District abandoned the comparison, found in the original petition, of the proposed discharged waters' dissolved oxygen levels to the levels found in the water conservation district. Instead the District concentrated on a comparison of the dissolved oxygen levels in the proposed discharge waters to the levels in the relatively clean canals in the South Florida area, specifically the L-28 canal system. The District proposed that as an alternative to Class III standards the following criterion be established: During any 24-hour cycle the dissolved oxygen concentration within the photic zone shall exceed 1.0 mg/l, except during the extreme low point when values shall not be less than 1.0 mg/l for more than two consecutive hours. (Emphasis added) Accompanying SFWMD's Amended Petition was a report (Supporting Report) dated February, 1980, which provided a voluminous compilation of data to justify the alternative standard proposed.15/ On April 8, 1980, Ms. Helen Setchfield sent a memorandum to DER staff requesting that they review the Amended Petition and report back to her within five days. Also on April 8, 1980, after a meeting attended by both SFWMD representatives and DER representatives, it was decided that DER would issue coordinated letters of intent on May 5, 1980 for both the exception and the dredge and fill applications. In spite of the decision to issue letters of intent, DER permitting staff were not satisfied with the concept that ban-made canals were "natural" background or that the proposed DO standard was reasonable. On April 16, 1980, Rick Lotspeich wrote to Suzanne Walker, Chief of the Bureau of Permitting, that: I have reviewed the referenced "request for exception" and it appears that the petition and supporting report are suf- ficiently complete to allow evaluation of the merits of the request. It would appear that the proposed dis- solved oxygen standard of 2.0 mg/l over 24 hours and 1.0 mg/l "during the extreme low point" for not more than two hours, is excessively low and not warranted by the data presented. A review of the data from figures 4 and 5 generally indicate that the following standard would be appropriate: Dissolved Oxygen: The concentration should not average less than 4.0 mg/l in a 24-hour period and not less than 3.0 mg/l except during the months of June--September, when the concentra- tion shall not average less than 3.0 mg/l in a 24-hour period and never less than 1.0 mg/l. Later, after having received comments from Rick Cantrell and Bob Siciler, Mr. Lotspeich wrote to Ms. Walker the following: My recollection from reading the request for exception was that SFWMD had indeed recognized the fact that the canals and their design had contributed to the de- pressed DO values of the water in them. Pursuant to Subsection 17-3.031(1), Florida Administrative Code, there may be a consideration for "man-induced causes which cannot be controlled or abated I am in full agreement with Cantrell and Siciler's discussion of the adverse impacts that canals in general, and the specific canal involved in this project, have on water quality and biological resources. However, I disagree with the conclusions that they reached. Clearly, there are extenuating circumstances involved in this case which set it apart from other dredge and fill cases. In light of these circum- stances, the fact that the depressed DO levels have resulted from man-induced causes which cannot be controlled, and Cantrell and Siciler's own statement that approval of this project has little probability of worsening the existing water quality of L-2, L-3 and WCA-3, I would recommend that the exception be granted. However, the alternate DO standard which I recommended in my previous memo is still applicable. (Emphases added. The "extenuating circum- stances" were never explained.) Subsequently, on May 20, 1980, the Department issued a coordinated letter of intent to grant an exception but for the standard proposed by Mr. Lotspeich, not that requested by the Water Management District. Dissolved Oxygen and Exception Section 17-3.121(14), Florida Administrative Code requires that discharges into fresh waters of the state must exhibit dissolved oxygen concentrations of 5.04 mg/l or more. Normal daily and seasonal fluctuations above that level must be maintained. Dissolved oxygen in certain concentrations is required for aquatic life. The amount of oxygen contained in water is subject to numerous variables, many of which are interrelated. They include: amount of sunlight entering the water, ability of the water to transmit light, photosynthetic activity of aquatic plants, water temperature, mechanical oxygenation, mixing with other water which may have either a higher or lower dissolved oxygen content, depth of water, rate of oxygen consumption by resident biota, and time of day. It is undisputed that during certain seasons and times of day the water in the existing borrow canal does not meet the state dissolved oxygen standard. Readings as low as 0.9 mg/l have been obtained there. These low readings usually occur in the months of heavy rainfall, primarily July through September. See the data on Figure 4 of SFWMD's Supporting Report. Similar, though not so low measurements have been obtained in neighboring man-made canals such as L-28. L-28 has been used by water quality experts as a "benchmark" for canal water quality since it does not receive large amounts of runoff from agricultural areas where pollutants such as fertilizers are used. There are numerous times during a given year that the dissolved oxygen levels in L-28 are below the 5.0 mg/l state standard. It is also possible to find at least two locations in WCA-3A wetlands where dissolved oxygen readings are below Class III standards. At Gauge 3-2 in the northwest corner of WCA-3A near where the project would discharge, dissolved oxygen levels have varied from 2.3 mg/l to 10.8 mg/l; however, the mean value for the measured levels has been 5.5 mg/l as reported on Table 2 of the Supporting Report.16/ Unfortunately, the data regarding dissolved oxygen concentrations in the proposed discharge area are scant. This paucity was recognized by the Supporting Report which states at page 6: "No systematic study of the dissolved oxygen conditions or requirements for fresh water wetlands in general, or WCA-3A in particular, have yet been conducted." Despite the limited data on WCA-3A, certain comparisons between DO readings in it and in the borrow canal which would discharge into the area can be made. Readings taken at Gauge 3-2 do not sink to levels as low as those found in L-3. Compare Figure 4 of the Report to Table 2. The minimum readings taken in L-3 were during those periods of greatest discharge. If the discharge from the existing borrow canal were presently sent into the area of Gauge 3-2 during months of peak discharge, the waters entering WCA-3A would have a lower dissolved oxygen concentration than would exist naturally in the area. It is not surprising that water in the borrow canal exhibits unusually low dissolved oxygen levels. The levee sides limit reaeration which could occur due to wind movement. The surface-to-volume ratio is also unfavorable. Much oxygenation occurs at the interface between the water and surrounding air, but because the canal is relatively deep compared to its surface area, the proportion of water coming into direct contact with the air is low.17/ The depth of the photic zone, i.e., the section of water penetrated by light, is limited due to the naturally high color of canal water. Construction of C-139 will add somewhat to a lowering of dissolved oxygen levels in the entire canal water column. To increase its conveyance capacity, the existing borrow canal will be deepened significantly, particularly in its southern reaches. This deepening will result in a lowering of the ratio between the area of water surface to the depth of the canal. No mathematical data were presented by which the lowered ratio can be computed; however, an examination of Plates A-24 and A- 25 of the General Design Memorandum indicates that completed C-139 will contain a higher ratio of water below the photic zone than is presently contained in the borrow canal.18/ This is true only during those times when the canal is relatively full of water. As the canal level drops during a drought the photic zone will approach the canal bottom in the shallower sections. Both SFWMD and DER have proposed site specific DO alternative standards. These have been set out in the foregoing discussion of the permitting history. There is a significant difference between the proposals. SFWMD's proposal includes only the waters contained in the photic zone. It fails to recognize that during times of discharge, the waters of C-139 which are deposited in WCA-3A will not be only those of the photic zone, but will come from the entire water column of the canal. While SFWMD's standard might be acceptable for C-139 when it is in a no discharge state, the standard is completely unacceptable when the canal is discharging. Neither the standard proposed by DER nor SFWMD recognizes the difference between the dissolved oxygen regime which can be predicted for C-139 and that presently existing in WCA-3A. The data submitted would justify an exception from the present 5.0 mg/l Class III standard. There are certainly times when both the water existing in relatively unpolluted canals and in the water conservation area contain less than the present minimal content of dissolved oxygen. When C-139 is not discharging an exception, which would have a range now exhibited by the existing borrow canal, would be justified for the new canal. Sufficient data was not presented here to suggest the precise figures for such an exception. The information given for L-3 for instance, is compiled from samples taken only once during a given day. The water depth of the sample is not given. Accurate data would account for the diel variation and the effect of water depth on each sample. Without data which gives a daily average, it is impossible to determine if the water either standing in, or discharging from C- 139 will meet any proposed alternative criterion. For the same reason the data obtained for the present DO concentrations in WCA-3A is incomplete for establishing appropriate levels for discharge waters entering that area. The establishment of site specific alternative criteria must await the submission of more complete dissolved oxygen readings from the applicant. One of the elements in considering whether to grant an exception to established standards is whether the existing biota have adapted to the background DO levels. The proof here shows that the fish and other biota now living in the borrow canal either tolerate or have adapted to the present low DO regime there. It has also been proven that the biota in WCA-3A are tolerant of the naturally occurring low DO levels in that area. It was not shown how they would respond to a massive influx of low DO water when C-139 would be discharging. Hydroperiod in WCA-3A The northwest corner of WCA-3A, where C-139 and C-139(S) will discharge, has a higher ground elevation than that of the southern portion of the water conservation area. The highest elevation in the extreme northwest corner is approximately 17 feet above mean sea level (MSL). It tapers down to approximately ten feet MSL at the southern boundary of WCA-3A. The project is designed to facilitate the sheet flow of discharge water from the northwest area towards the southeast with an ultimate destination being flow into the Miami canal. The construction of the Miami canal, C-123, which runs on a northwest- southeast diagonal across the area, causes overdrainage of the northwest section. The borrow canal along Alligator Alley also contributes to excess runoff. This overdrainage has shortened the hydroperiod in the northwest corner from approximately 9 to 10 months to approximately 5 to 7 months. "Hydroperiod" is the span of time during which land is inundated by ponded water. The shorten hydroperiod has a profoundly destructive impact on the natural environment. The muck soil when not submerged oxidizes at an accelerated rate. At the present time the rate of oxidation in the northwest corner is more rapid than the replacement rate. Since the natural hydroperiod has been altered muck fires have been more severe and frequent. These fires destroy existing tree islands which dot the Prior to 1974 WCA-3A received discharges from the waters of the L-1, 2 and 3 borrow canal. The outlet of the canal at L-4 was determined to be inadequate for flood control purposes in the L-1 angle. To increase the discharge rate of the borrow canal culverts G-88 and G-89 were installed at the L-3/L-4 intersection in October of 1974. G-89 directs part of the flow from the L-3 canal into canal L-28 west, and then into pumping station 5-140 and into C- 60 (parallel to Alligator Alley). G-88 directs another part of the flow from the L-3 canal into the L-4 borrow canal and then into S-8 where it is pumped into the Miami canal. Rather than being allowed to flow in a shallow sheet across the water conservation area, the direct water flow is now sent southeast in canals for ultimate discharge outside the area. This waste would be eliminated by the proposal to have C-139 discharge into WCA-3A via C-139(S). There is no dispute that more water is needed annually in the northwest corner of the water conservation area. What is at issue here is the timing of placing additional water there. Generally when there is flooding in the L-1 angle and C-139 would be discharging at its maximum rate there is already flooding in WCA-3A. Rainstorm events are somewhat regional and cover both areas. The applicant estimates that if the volume of water discharged by C-139 in a two-week period were to be instantaneously spread over the northwest corner of WCA-3A 20/ it would raise the water stage by 0.4 feet. This would occur during a one in ten year storm. At that time the wildlife in the water conservation area would already be stressed by high water levels. A 0.4 foot increase in stage could kill deer and other terrestrial animals and destroy alligator nests, but it also could benefit the more aquatic animals. The result of this increase cannot be accurately predicted on the data supplied by the applicant.21/ While expert witnesses on behalf of the applicant were willing to express an opinion that the influx of drainage water from C-139 would be beneficial, the opinions were simplistically based on the unsupported assumption that because WCA-3A currently suffers from overdrainage, any additional water at any time would be beneficial. It is possible that those opinions were based on studies conducted which prove that a discharge of water such as will come from C-139 may create a beneficial increase in the marsh hydroperiod. Unfortunately, no evidence of the existence of such studies is in this record. The applicant's expert witnesses' opinions are therefore given little weight. In the present situation WCA-3A receives some water from the borrow canal during the dry season when additional water is most beneficial. At the expense of overdraining the land west of the borrow canal, ground water seepage now enters the canal and travels south through L-1, 2 and 3. After the construction of S-239, designed to prevent overdrainage, any possible flow into WCA-3A during dry periods will be cut off. No evidence was presented on what quantity of water WCA-3A will lose during a dry season due to S-239. Also the record does not reflect what effect that reduction will have on biota in the water conservation area. S-239 and Fill When the level of water in the borrow canal drops below the nearby water table, there is groundwater seepage laterally into the canal. If C-139 were to be constructed without any water control devices, it would exacerbate the overdrainage because it will be a far more efficient conveyance than is the borrow canal. S-239 has been designed to prevent this overdrainage. The structure will be located in Broward County. On May 22, 1979 the County declined to give its approval of the use of any fill, as the term is used in Section 253.124, Florida Statutes, for the construction of this project in Broward County. The Department of Environmental Regulation has not maintained a consistent unwritten policy on what is "fill" in navigable waters of the state.22/ Testimony from past and present Department employees indicated that at times a "use" concept was employed to determine what was fill. If additional dry land were created which would be used for commercial purposes, then the newly created land was called fill which required local approval. At other times use was unimportant. The test was whether or not the result of the additional material would be moving the point, at which the high water mark intersected the land, in a waterward direction. It is found that what constituted fill in past permit cases depended upon the personal interpretation of each Department employee. S-239 as proposed is a massive structure which will cost 1.32 million dollars 23/ to build. It will contain 11,000 cubic yards of fill and backfill; 530 cubic yards of 1' by 1' pieces of stone rip-rap; 1,230 cubic yards of concrete and 647,000 pounds of cement. 153,800 pounds of reinforcing steel will be required. The structure will be over 50 feet high and will span C-139 where it is 60 feet wide. Each of the two vertical lift gates which control the water flow will be 27 feet wide. See Illustration II.* In between them will be a concrete pier three feet wide and approximately 38 feet long. The cement bottom of the structure will rise from an elevation of 8.0 feet MSL to a crest of 3.3 feet MSL for a total height of 11.3 feet. In order to allow service vehicles to pass across the canal a bridge 13 feet wide will span from one bank to the other. This bridge will support large trucks. The stone protection provided for in the plans consists of 1 foot square pieces of rip-rap to be placed 40 feet immediately upstream from the control gates and 30 feet immediately downstream of the gates. The purpose of this protection is to prevent erosion of the canal bottom and sides where the water flows by at a relatively high velocity. The majority of rip-rap will be placed below the ordinary high water mark. Local Water Quality Standards The issue of local water quality standards arose late in the permitting process. DER had already issued two letters of intent to SFWMD before the Department gave consideration to standards promulgated by Broward County. It appears from the record that the Broward County standards were formally brought to DER's attention through the County's Petition for Formal Hearing filed on June 3, 1980. On June 26, 1980, DER issued an amended letter of intent which said: This letter is an amendment of the letter of intent to issue signed by the Department on May 20, 1980. In that letter, the Depart- ment stated: "This intent to issue is contin- gent upon the applicant being granted an exception from the criteria for dis- solved oxygen, for Class III waters, pursuant to Section 17-3.031, Florida Administrative Code." The preceding paragraph is hereby amended to include a provision that the applicant must obtain relief from the dissolved oxygen stan- dards that appear in Section 27-5.072(19), Broward County Code, through a variance or other legal mechanism, in addition to the exception from state standards for dissolved oxygen. Section 27-5.072(19), Broward County Code, states that DO is to have a "daily average not less than 5 mg/l; single reading never less than 4 mg/l. The May 20, 1980, letter also contained a paragraph that read: "However, should the Department grant an exception from the dissolved oxygen criteria pursuant to Section 17-3.031, Florida Administrative Code, the Division intends to issue the permit." This paragraph is hereby stricken and the following paragraph substituted: "If the Department grants an exception from the State dissolved oxygen criteria pursuant to Section 17-3.031, Florida Administrative Code, the Division intends to issue a conditional permit which will only become valid upon the granting of relief by Broward County from its existing local standards for dissolved oxygen." The Department is taking this position upon consideration of Section 403.182(6), Florida Statutes, which requires the Department to en- force all stricter or more stringent rules, regulations or orders in the jurisdiction where they apply. It is the Department's position that it is without discretion to grant relief from Broward County's local standard for dis- solved oxygen. By its Petition the County alleged that it has an approved local pollution control program and that the proposed project will violate its local standards for dissolved oxygen and nutrients found in Sections 27-117(b)(9) and 27-117(11) of the Broward County Code.24/ Neither SFWMD nor the Corps has applied to the Broward County Environmental Quality Control Board for either a license under Chapter 27 of the County Code or for a variance from the standards established therein. On April 20, 1972, the Florida Department of Pollution Control (the predecessor of the Department of Environmental Regulation) gave temporary and conditional approval for six months to the Broward County Pollution Control Program. This approval provided that the County has full authority to enforce its own laws, rules and regulations, provided that they must be as strict or stricter than those of the State. The County was also required to modify its rules if the State subsequently adopted the regulations in conflict with those of the County. On November 7, 1972, the Department of Pollution Control gave Broward County full and final approval pursuant to Section 403.182, Florida Statutes. Subsequently, in 1974 and 1976 the State and Broward County entered into new agreements. These agreements were the result of DER's desire to make uniform all its agreements with all qualified local programs. The Broward County pollution control program including the portion administered by the Environmental Quality Control Board, continues to be an approved local program as defined at Section 403.182, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter an Order denying South Florida Water Management District's application for a water quality permit and for a dredge and fill permit. DONE and RECOMMENDED this 13th day of October, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Department of Administration Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1982. * NOTE: Illustration I, noted in paragraph 8 and Illustration II, noted in paragraph 49 are not a part of this ACCESS document. Illustrationn II is available for review in the Division's Clerk's Office.
The Issue The issue in this case is whether the development order issued by Polk County for Robert Crowder's development known as Paradise Country Estates complies with Chapter 380, Fla. Stat. (1991). The Department of Community Affairs' Petition for Appeal of Development Order (the DCA Petition) alleges that the development order is contrary to Polk County's 1985 comprehensive plan for the following reasons: Paragraph 11 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 9, Objective III, "Natural Resources," of the Land Use Element (LUE) of the 1985 Plan. Policy 9 states: "Structures should be placed in a manner which will not adversely affect the natural flow regime and which will not reduce the recharge capabilities." Paragraph 12 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 10, Objective III, "Natural Resources," of the LUE. Policy 10 states: "Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973." Paragraph 13 of the DCA Petition alleges that the development order is contrary to the provisions of Policy 11, Objective III, "Natural Resources," of the LUE and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element of the Plan. Respectively, these policies state: 11. Groundwater withdrawal should not exceed the safe yield per acre as determined by Water Management Districts or successor agencies. * * * Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Paragraph 14 of the DCA Petition alleges that the development order is contrary to a section of Part II of the Conservation Element of the Polk County Comprehensive Plan entitled "Rare and Unique Natural Resources," which describes the Green Swamp as a "rare and unique land area resource for conservation consideration" and also states: The potentiometric high of the Floridan Aquifer lies within this area. . . . The area has a high potential for recreational and natural enjoyment. . . . The Green Swamp area is the largest expanse of forest in Polk County, with abundant water and wooded areas to provide for wildlife habitats. This area has great significance as an area for conservation of land, air, water, open space and wildlife habitats. Paragraph 15 of the DCA Petition alleges that the development order is contrary to the following section on "Density" found in Part IV of the Conservation Element, entitled "Summary of Special Problems, Areas, Issues, and Relationships": The subject of development density is a particular issue of vital importance to the county. Low density development in some areas and high density in other areas is important so that demands for public facilities can be economically and efficiently handled, so that environmental degradation is minimized, and so that land, not suitable for development, can be saved for important natural functions. The present zoning ordinance classifies most of the county in a Rural Conservation (RC) classification that permits low density development without proper regard for those areas that are best suited for development. Portions of the county should be protected from development pressures and appropriate areas should be zoned to accommodate rational densities. The present level of protection, provided by the zoning system is not brought to bear for conservation purposes. Paragraph 16 of the DCA Petition alleges that the development order is contrary to Policy 14 of the "Water Resource Objective" of the Conservation Element of the Plan: "Protect or improve existing ground and surface-water quality." Paragraph 17 of the DCA Petition alleges that the development order is contrary to Policy 2, Objective I, "Agricultural Uses," in Part V of the LUE: Protect, to the maximum extent possible, agricultural lands from encroachment of incompatible land uses and any detrimental effects of development adjacent to agricultural areas. Paragraph 19 1/ of the DCA Petition alleges that the development order is contrary to Policy 2, Objective IV, "Residential Uses," in Part V of the LUE: Promote and encourage new residential development adjacent to established growth centers, to ensure the orderly use of land and the efficient provision of facilities and services. Paragraph 20 of the DCA Petition alleges that the development order is contrary to Section 5-1(6) of Polk County Ordinance 81-28 (the County Flood Protection and Surface Water Management Code). 2/ Article V is entitled "Flood Protection Standards." Section 5-1 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to new construction and substantial improvements in all areas of special flood hazard, and to any development, other than phosphate mining, within 100 feet of a watercourse: * * * (6) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. Paragraph 21 of the DCA Petition alleges that the development order is contrary to Section 5-2(4) of Polk County Ordinance 81-28. 3/ Section 5-2 provides in pertinent part: SPECIFIC STANDARDS: The following minimum standards shall apply in all areas of special flood hazard where base flood elevation data has been provided: * * * Subdivision Proposals: All subdivision proposals and other proposed developments shall be reviewed by the County Engineer. [I]f the proposal is in an area of special flood hazard, it shall be reviewed to assure that the following standards are met: All such proposals shall be reasonably safe from flood waters resulting from the base flood. All such proposals shall have public utilities and facilities such as sewer, gas, electrical and water systems located and constructed to minimize flood damage. Base flood elevation data shall be provided for all such proposals. Roads shall be reasonably safe from flood waters resulting from the base flood. Paragraph 22 of the DCA Petition alleges that the development order is contrary to Section 6-2(3)(a) of Polk County Ordinance 81-28. Article VI of Polk County's Flood Protection and Surface Water Management Code is entitled "Water Management Standards." Section 6-2 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to all development which occurs within an area of special flood hazard and to any man-made change to improved or unimproved real estate . . .. * * * (3) (a) The amount of site alteration within a wetlands soil association shall be limited to ten percent (10%) of the area of wetlands soil association within any given total site.
Findings Of Fact The Proposed Project and Location. The project site is on Dean Still Road in Polk County, approximately 2 miles west of State Road 33. It is approximately 6 and 1/2 miles from Polk City and 15 miles from the City of Lakeland. The proposed project is comprised of 356 lots on approximately 1280 acres with a gross density of 1 unit per 3.6 acres. Although the average lot size varies, the project was reviewed under the Southwest Florida Water Management District's (SWFWMD) criteria for rural development which requires that at least 90% of the lots be at least 2 acres in size (excluding jurisdictional wetlands), and 10% of the lots be at least 1 acre (excluding jurisdictional wetlands). The site has been zoned Rural Conservation under Polk County's Zoning Code for approximately 12 years. This designation allows a density up to 1 unit per acre. Individual water wells and on-site waste disposal systems (septic tanks) will be utilized for each home. There are no water or sewer extensions proposed for the site or for adjacent areas by any governmental entity. Access to the site from Polk City is along Dean Still Road, which is unpaved at this time. The County has plans to pave it in the near future. Of the 1280 acres comprising the project site, 362 acres have been claimed as jurisdictional wetlands and approximately 642 acres have been mapped within the 100-year floodplain by the Federal Emergency Management Agency (FEMA). 51 of the lots platted in the project are entirely within the FEMA 100- year flood plain. Several other lots contain large portions within FEMA 100- year flood plain. Despite the significant amount of wetlands and floodplains on the site, the project is designed so that no net loss will occur in the floodplains and less than 1% (.59%) of the jurisdictional wetlands will be impacted by development. Impervious conditions on the site will only increase by 2.8% after development. All structures will be set at or above the 100 year flood elevation, as calculated by the project engineers, and will be constructed in accordance with the County's flood protection standards. The project is designed so that post-development runoff is less than pre-development runoff and post-development drainage basins conform to pre-development drainage basins. Existing drainage patterns for the site are designed to be maintained. The property comprising the project has been used through the years for a variety agricultural purposes, including harvesting watermelons, soybeans, corn, and silage. It has been drained and ditched to facilitate these activities. It is currently being used for grazing cattle. A sod farm is located to the south of the property. Additional cattle grazing lands run south from there to Polk City. To the north of the site are ranchlands which run to the border of the Withlacoochee Wildlife Area. Immediately to the west of the site are 20-30 scattered mobile homes and additional ranchlands in a subdivision known as Evans Acres. This subdivision was initially approved by DCA in 1983, and was comprised of 48 lots on approximately 1,290 acres. The original lots ranged in size from 5 to 60 acres. Apparently, individuals have since split their lots and many of the existing lots are 2 to 5 acres in size. A few of the original lots are used for both residential and ranching purposes. Including the large and small lots, there are approximately 163 lots on the property comprising Evans Acres. On the property directly to the east of the site are approximately 16 mobile homes along Melody Lane. These existing homesite numbers are small and scattered when compared to the 356 lots proposed for Paradise Country Estates. Approximately 120 families live in the general vicinity of the proposed project. The Green Swamp. The project is within the Green Swamp Area of Critical State Concern (ACSC). The site is within the drainage basin of the Withlacoochee River, which has been designated an Outstanding Florida Water (OFW) and is approximately three and a half miles to the north. The Green Swamp ACSC was designated by the Legislature. Chapter 79- 73, 380.0551, Florida Statutes (1991). It was the second area to be designated and now is one of only four areas in the State retaining this designation. The Green Swamp was designated because the area's natural resources were considered to be of regional and statewide importance and because of concerns that uncoordinated development could endanger these resources. The Green Swamp is a regionally significant area for recharge of the Floridan Aquifer. The Green Swamp is unique because the top of the Floridan Aquifer is at or near the surface over much of the area. This creates what is known as the potentiometric high of the Floridan Aquifer. The potentiometric high pressurizes the Floridan Aquifer, permitting it to be used for drinking water wells. The Florida Aquifer serves as the principal source of drinking water for central Florida. It supplies the entire State with about 48 percent of its ground water supply. The potentiometric high also serves to hold back salt water intrusion into the Floridan. Recharge is important in maintaining the potentiometric high of the Floridan Aquifer. Although the Green Swamp has been characterized as a recharge area for the Floridan Aquifer, the actual recharge capabilities of the Green Swamp vary considerably throughout the region. Some areas within the Green Swamp, such as the high, dry, sandy ridge on the eastern boundary of the Green Swamp clearly are high recharge areas. In some areas, the Floridan Aquifer rises essentially to the ground surface, with no confining layer above it. In those areas, a considerable amount of surface water filters into the Floridan Aquifer. In other areas, including in the vicinity of the project site, recharge capability is considerably less. See "G. Review under the 1985 Plan and the Flood Protection and Surface Water Management Code, (3) Ground Water Recharge." The head waters of several rivers, including the Withlacoochee River, are in the Green Swamp. Polk County's Comprehensive Plan. Polk County's Comprehensive Plan, as amended by Polk County Ordinance 85-08 (Ordinance 85-08), is referred to as Polk County's 1985 comprehensive plan, or the 1985 plan. It includes a Land Use Element (LUE) and a Conservation Element. The Land Use Element. The 1985 Plan is a "policy plan." As a "policy plan," the LUE does not map land use classifications or densities or intensities of development. The different parts of the plan must be considered together to ascertain their meaning. As stated in the Foreward to the LUE: The Policy Plan is a flexible and realistic guide to future public decisions. Existing conditions are first determined and analyzed. Then, community goals are identified providing a process of finding out where we are and where we want to go. * * * . . .. The challenge is to determine the means of achieving the identified community goals at minimal cost and the least possible hardship on any segment of our society. Under the policies planning process this is accomplished by developing all possible alternative courses of action that will advance the community toward the desire goal. The policies are then a general statement of purpose and outlining broad principles toward which the plan is guided in the implementation stage. A policy plan does not detail specific actions or locations on a map. Rather it provides a broad framework within which day-to-day decisions are made in a consistent manner toward an identified goal. The ultimate product of those community goals will be the heritage of Polk County's future. At 4-2, the LUE discusses the need to give attention to "the proper distribution of population densities in keeping with sound planning practices, the physical capabilities of the land, and the relationship of the population and housing densities to existing or proposed transportation facilities and other community services." It then speaks to "Retention of Open Spaces": A second potential problem to be faced, as urban growth continues, is the potential loss of the open space characteristics that now contribute substantially to its desirability as a community in which to live and visit. To a large extent, the desirable characteristics are provided by extensive agricultural areas. Such uses are compatible with residential and other types of urban land uses and should be encouraged to remain to the maximum extent possible. Desirable open space is also presently provided by . . . wetland areas not suited for urban development. By encouraging such areas to remain in their present condition, a substantial amount of open space can be retained to provide the needed visual relief and openness necessary within a highly urbanized community. At 4-5, discussing "Retention of Unique Agricultural Lands," the LUE states that cattle raising and field crops are subject to potential intrusion by urban development and states: "The development of planning techniques, which will encourage the retention of important agricultural lands and provide for orderly urban development, thus becomes a matter of considerable importance." The Goals, Objectives, and Policies (GOPs) of the LUE starting at 5-1 include the following: General Goal: To maintain productive and mutually compatible use of lands and waters within Polk County in a manner consistent with the economic, physical and social needs, capabilities, and desires of Polk County and its citizens. Objective I - Agricultural Uses: To ensure that a sufficient quantity of appropriate lands are available and protected for productive agricultural uses necessary to a sound economic base. Policies: * * * 2. Protect, to the maximum extent possible, agricultural lands from encroachment of incompatible land uses and any detrimental effects of development adjacent to agricultural areas. * * * 5. Provide all possible incentives for the retention of lands into agricultural production. * * * Objective III - Natural Resources Minimize adverse impacts of development on valuable natural resources including the protection of water quality and quantity in surface and ground waters. Policies: * * * 2. The subdivision and platting of land shall be permitted in accordance with the zoning district applied to the property and in compliance with the Polk County Subdivision Regulations and Flood Protection/Surface Water Management Ordinance. * * * Site alteration should be permitted only when such alteration will not adversely affect the natural flow regime or the natural recharge capabilities of the site. Site alteration should be permitted only when such alteration will not result in the siltation of wetlands or reduce the natural retention and filtering capabilities of wetlands. Site alteration activities should provide for water retention and settling facilities; should maintain an overall site runoff equivalent to the natural flow regime prior to alteration and should maintain a runoff rate which does not cause erosion. * * * Storm water runoff should be released into the wetlands in a manner approximating the natural flow regime. Structures should be placed in a manner which will not adversely affect the natural flow regime and which well not reduce the recharge capabilities. Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973. Groundwater withdrawal should not exceed the safe yield per acre as determined by Water Management Districts or successor agencies. Objective IV - Residential Areas To ensure that an adequate supply of appropriately located lands are available for the development and maintenance of residential areas that can be efficiently and effectively provided with necessary public facilities and services. Policies: Promote and encourage the provision of a wide range of housing opportunities, in appropriate locations, to permit a choice of housing types to suit the particular needs of all citizens. Promote and encourage new residential development adjacent to established growth centers, to ensure the orderly use of land and the efficient provision of facilities and services. * * * Encourage new residential development that can be effectively served by the existing transportation facilities. Promote new residential development in non-urban areas, that is properly designed to combine with future adjacent development, to create a neighborhood of sufficient size to facilitate the efficient and effective provision of all necessary public facilities and services. Part VI of the LUE, entitled "Alternate Approaches," discusses the pros and cons of different concepts for planning and managing of growth. It settles on a "Resource-Responsive Concept" as the preferred growth alternative. This concept holds in part: Wherever possible, future growth should be encouraged to take place in or near established urbanized areas. Scattered growth incapable of functioning as meaningful self-contained communities should be discouraged. And it is preferable that the urbanizing area, as it extends over extensive areas within the County, not be developed in one continuous, monotonous maze of residential, commercial, and industrial uses - but that there be open space provided at appropriate intervals so as to provide visual relief and a sense of scale to the overall urban community. Such open space areas can be productively utilized for agricultural and conservation purposes or recreation areas, public facilities and services required. It is proposed that the most appropriate urban growth concept to meet such guide-lines and the policy statements of this land use plan be a resource-responsive growth concept. Under this concept, urban growth and development will be guided and encouraged with respect to its responsiveness to the natural and human resource capabilities of the County. Within any given area of the County, the resources will be careful evaluated in terms of their capability to support growth, and the physical form and intensity of development will be then shaped to provide the physical form and intensity of development will be then shaped to provide a balance with such resources. Prime resources to be considered are as follows: Natural Resources Topography and soil conditions Vegetation and tree cover Wildlife habitats present Drainage characteristics; relationship to rivers and lakes Natural water supply capabilities General aesthetic qualities Human Resources Transportation facilities (roads, railroads, airports) Available water supply and sewage facilities Community facilities, such as schools, parks, libraries Protective services, such as fire and police Established land uses within the area Economic conditions and potentials. Part VII of the LUE, entitled "Implementation," states: "Initial implementation of a Comprehensive Plan and initiation of the continuing planning process for growth management requires the establishment of principals and standards for measurement of proposed activities against the adopted policies of the community." It includes a section entitled "Principles and Standards for the Control and Distribution of Population Densities and Structural/Development Intensity," which provides in part: All Types of Urban Development: * * * Each new development or land use should follow sound land planning principles to maximize site advantages, avoiding when possible, adverse impacts on the natural resources and hazards to health, safety, or general welfare. * * * Residential Development: Low-density single-family development (1-4 units/acre), other than rural residences related to agricultural operations, shall be located in areas capable of being developed into stable, cohesive neighborhoods. In a section entitled "Legal Requirements of Implementation," it states that "all actions taken by local government, whether in the form of permitting private development to occur or in the provision of public facilities and services, are required to be fully consistent with the adopted Comprehensive Plan. The plan, once adopted, must occupy a central position in the consideration of all proposed development." In another section, entitled "Coordination with Other Plan Elements," it states that the "land use element cannot be implemented alone [but] must be coordinated with the [other elements]." In another section, entitled "Needed Improvements in the Zoning Ordinance," it is recognized that "it will be essential that a thorough review of the zoning ordinance be undertaken and that the ordinance be revised as appropriate to achieve consistency with overall planning objectives." It acknowledges that there were "major identified deficiencies in the current zoning regulations" and advises that "the following needs among others should be addressed as a minimum in making revisions to the zoning ordinance": "Revision of the Density Requirement in Residential Districts." Despite the admonitions in the 1985 Plan, to date there has been no revision of the land use classifications, densities, or intensities in the County's zoning code. As before the 1985 Plan was adopted, zoning in the Green Swamp ACSC remains Rural Conservation (RC) and allows up to one unit per acre residential development. The Conservation Element. Part II of the Conservation Element of the Polk County Comprehensive Plan is a "Summary of Natural Resources." At 2-18, there appears a section entitled "Rare and Unique Natural Resources," which describes the Green Swamp, as well as other natural resources in the County, as a "rare and unique land area resource for conservation consideration." At 2-19, as amended by Ordinance 85-08, this element of the comprehensive plan also states: This area comprises the hydrologic heartland of Central Florida and contains the headwaters of the Withlacoochee, Hillsborough, Peace and Oklawaha Rivers. The potentiometric high of the Floridan Aquifer lies within this area. . . . The area has a high potential for recreational and natural enjoyment. . . . The Green Swamp area is the largest expanse of forest in Polk County, with abundant water and wooded areas to provide for wildlife habitats. This area has great significance as an area for conservation of land, air, water, open space and wildlife habitats. Part IV of the Conservation Element is a "Summary of Special Problems, Areas, Issues, and Relationships." Starting at 4-2, it addresses the following: Displacement . . .. Cities in Polk County have historically developed on the ridges and the urbanized areas are spreading outward rapidly into the prime citrus lands and the "marginal" (flood prone) lands. There is considerable concern about urban development in wetland soils and flood prone areas. The double barreled concern for development in wetland soils and wetland areas is that they might well serve valuable natural functions and the private and public problems created by development subjected to flood damages. This property damage promotes public pressure for drainage in wet areas. The issue in wetland drainage and flood control is the jeopardy of natural functions that wetlands and water fluctuations provide in natural systems and flood damage costs. . . . [C]oncern for the growing demand for uplands development which steadily displaces [good pasture land] . . . relate[s] to the use of good pasture land for development. Density The subject of development density is a particular issue of vital importance to the county. Low density development in some areas and high density in other areas is important so that demands for public facilities can be economically and efficiently handled, so that environmental degradation is minimized, and so that land, not suitable for development, can be saved for important natural functions. The present zoning ordinance classifies most of the county in a Rural Conservation (RC) classification that permits low density development without proper regard for those areas that are best suited for development. Portions of the county should be protected from development pressures and appropriate areas should be zoned to accommodate rational densities. The present level of protection, provided by the zoning system is not brought to bear for conservation purposes. * * * Water * * * Another area of concern relates to the draw down and recha[r]ge of the Floridan Aquifer and is claimed to be a rational concern of an area much larger than Polk County. * * * Pollution Environmental pollution, as it relates to water, is a major local concern. * * * Water pollution is concerned because of its effects on recreation and tourism. Water degradation and the pollution of lakes and rivers tends to remove the intangible value that Polk County enjoys in thee form of its surface water resources. * * * Also, the related cost issues of municipal sewage treatment and disposal, effluent disposal techniques, septic tank useage are environmentally economic choices to be made by the public. Discussing the topic, "Preservation and Management," starting at 4-4, Part IV of the Conservation Element states in part: Many issues relate to what, how, or when something should be conserved. * * * Lakes, rivers and canals of the county are of concern as sources of flooding and as resources for flood control, if properly managed. Flood prone areas surrounding surface water have been identified for much of the county. These water bodies are also legitimate concerns as the habitat for fish and other wildlife that provide a significant value in their own right. The area of these water bodies are also special scenic and recreational values that contribute to tourism and development. Part V of the Conservation Element is where the "Goals, Objectives and Policies" are found. It start with some general observations, including in part: . . .. It can be expected, therefore, that the natural environment of the county will continue to undergo modification of one type or another in response to the needs of people. . . . The inventory of total space will, therefore, diminish as these changes take place, resulting in corresponding losses within particular categories of natural resources. What is important is that no critical loss of impairment of a natural resource take place; that development be managed so as to create minimum disturbance of the remaining natural resource systems; and that there be compensation replenishments of resources wherever possible. It then lists a General Goal and several resource-specific objectives and policies: General Goal: Maintain, protect, develop and utilized the natural resources in a manner that will balance and replenish the natural ecological systems and will best serve and promote the desired quality of life for Polk County resident, present and future. * * * Water Resource Objective: To conserve and protect the quality and quantity of water resources through proper management. * * * 6. Identify and protect significant acquifer [sic] recharge areas for maximum recharge capability and protect the water available for aquifer recharge. * * * Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands and flood-detention areas. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. Protect the functions of the Potentiometric High of the Floridan Aquifer. Prevent further salt-water intrusion into the Floridan Aquifer. Protect or improve existing ground and surface-water quality. Protect the water retention and biological-filtering capabilities of wetlands. Protect the natural flow regime of drainage basins. Rare and Unique Natural Resource Objective: To conserve and protect, through proper resources management, areas having unique natural characteristics and particularly sensitive environmental balance. * * * Policies: Identify all significant areas in Polk County deemed to have unique natural resource characteristics. Encourage proper management of unique wetland areas of the County as a vital water resource. Encourage a proper system for control of development in flood prone and wetland areas to regulate alternation [sic] of the natural system of water retention and storage during periods of heavy rainfall. Preserve and protect, to the maximum extent possible, all delineated areas having valuable unique resource characteristics. Part V of the Conservation Element concludes with a "Summary," which states in part: The objectives and policies set forth above should not be considered as controls to be rigidly applied in every instance of decision-making dealing with the natural environment. Rather, in dealing with resource conservation issues, guidance is preferable to control. . . . A number of potential implementation actions and programs, presented in the following part, will further assist in establishing the direction and scope of conservation activities in the County. Part VI of the Conservation Element is entitled "Implementation." While acknowledging at 6-1 that Polk County cannot establish an implementation program unilaterally, without regard to the co-responsibilities of other governmental authorities at the regional state and federal levels, it states at 6-2 that Polk County "can and should": Utilize the general objectives and policies established by this Element as considerations in all decision making concerning the use and improvement of land within the County. * * * 3. Utilize, to the fullest extent possible, the policies and implementation controls of other elements of the Polk County Comprehensive Plan, and those of other governmental entities having jurisdiction, to further the conservation of natural resources. Starting at 6-3, Part VI discusses the Conservation Element's "Relationship to Other Plans." At 6-4, after stating that the Conservation Element will be largely implemented through the policies and programs of other comprehensive plan elements, Part VI provides: Land Use Element - This element will provide the overall framework for conservation [sic] potentialities through the manner in which land uses are distributed, arranged, and interrelated throughout Polk County. Policies and implementation programs of this element will determine the degree to which new development is properly related to soil types and capabilities, natural habitats, flood prone areas, wetlands and unique resource areas of the County. Land regulatory controls such as zoning, subdivision regulations and development impact reviews provide the basic tools for implementation of the policies of the Land Use Element. Starting at 6-5, Part VI discusses "Guidelines for Implementation." At 6-5, it points out: The nature of conservation policy, being of such broad application and diversity of interest, requires that its effective implementation utilize many approaches, techniques and procedures. Its application is carried out, for the most part, in an indirect way as a by-product of other more direct decisions and actions relation to the development and growth of the County. It is essential, therefore, that Polk County draw upon all possible alternative mechanisms and techniques which will lead to the effective conservation of its natural resource systems. Among the various approaches which Polk County may utilize to further its conservation objectives are the following. * * * Influence in the allocation of resources to achieve the objectives of the conservation plan. Control of events which determine resources allocation in keeping with the conservation plan. * * * Specific procedures and techniques which may be utilized to facilitate the implementation process include the following. * * * 7. Protect natural water bodies and adjacent wetland areas through the regulation of development densities and proper management of stormwater runoff. This would require a cooperative effort with the Water Management Districts in identifying flood plains for various flood frequencies. Polk County's Flood Protection and Surface Water Management Code. Polk County's Flood Protection and Surface Water Management Code was enacted as Ordinance 81-28 and was amended by Ordinance 85-07. Article V is entitled "Flood Protection Standards." Section 5-1 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to new construction and substantial improvements in all areas of special flood hazard, and to any development, other than phosphate mining, within 100 feet of a watercourse: * * * (6) On-site waste disposal systems shall be located to avoid impairment to them or contamination from them during flooding. Section 5-2 provides in pertinent part: SPECIFIC STANDARDS: The following minimum standards shall apply in all areas of special flood hazard where base flood elevation data has been provided: * * * Subdivision Proposals: All subdivision proposals and other proposed developments shall be reviewed by the County Engineer. [I]f the proposal is in an area of special flood hazard, it shall be reviewed to assure that the following standards are met: All such proposals shall be reasonably safe from flood waters resulting from the base flood. All such proposals shall have public utilities and facilities such as sewer, gas electrical and water systems located and constructed to minimize flood damage. Base flood elevation data shall be provided for all such proposals. Roads shall be reasonably safe from flood waters resulting from the base flood. Article VI of Polk County's Flood Protection and Surface Water Management Code is entitled "Water Management Standards." Section 6-2 provides in pertinent part: GENERAL STANDARDS: The following minimum standards shall apply to all development which occurs within an area of special flood hazard and to any man-made change to improved or unimproved real estate . . .. * * * (3) (a) The amount of site alteration within a wetlands soil association shall be limited to ten percent (10%) of the area of wetlands soil association within any given total site. Review under the 1985 Plan and the Flood Protection and Surface Water Management Code. Land Use, Density and Intensity. DCA alleges that the land use, density and intensity of the development Crowder proposes for the site is inconsistent with: (1) the section on "Density" found in Part IV of the Conservation Element, entitled "Summary of Special Problems, Areas, Issues, and Relationships"; (2) a section of Part II of the Conservation Element of the Polk County Comprehensive Plan entitled "Rare and Unique Natural Resources"; (3) Policy 2, Objective I, "Agricultural Uses," in Part V of the LUE; and (4) Policy 2, Objective IV, "Residential Uses," in Part V of the LUE. 6/ As previously stated, the 1985 Plan is a policy plan that does not map land use classifications or densities or intensities of development. Crowder's Paradise Country Estates is consistent with the County's Zoning Code, which has not changed since before the 1985 plan, and Zoning Map. The development was not otherwise reviewed for land use, density or intensity. But it is clear that the 1985 plan does not condone exclusive resort to the zoning code to determine the appropriateness of the land use, density and intensity for development in the Green Swamp ACSC. See, especially, the section entitled "Density" in Part IV of the Conservation Element of the Plan. In the Green Swamp ACSC, especially, reference must also be made to the Plan itself. See Part VII of the LUE, entitled "Implementation." It is not found that all residential use on the Crowder property would be, in itself, inconsistent with the 1985 Plan. But, taking into consideration all of its land use, density and intensity provisions, it must be found that the development order issued in this case, especially at its level of density and intensity and especially in the manner of its issuance, is inconsistent with the 1985 Plan. The crux of the problem with this development, like others in the Green Swamp ACSC already permitted by County development orders, is that, first, the 1985 comprehensive plan and the County zoning regulations in place at the time were inadequate and, second, the steps envisioned in the plan to make them adequate have not been taken. For the plan and the zoning regulations to be adequate, and for a development order for a project in the Green Swamp ACSC in Polk County to be consistent with the 1985 comprehensive plan, either: (1) the plan must be amended to map land use classifications, densities and intensities of development in the Green Swamp ACSC; (2) the zoning code must be amended as envisioned in the comprehensive plan for the Green Swamp ACSC; or (3) the County must evaluate development orders for projects in the Green Swamp ACSC on a case- by-case basis for consistency with the comprehensive plan. None of these three possibilities happened in this case. 7/ Flood Plain Delineation. Paragraph 12 of the DCA Petition alleges that the Crowder development violates Policy 10 of Objective III, "Natural Resources," of the LUE: "Placement of structures shall be consistent with sound flood plain management practices such as compliance with the Flood Disaster Protection Act of 1973." Specifically, it is alleged that the use of a Federal Emergency Management Agency (FEMA) undetailed "A" zone to map the flood prone area on the site, and the failure to perform a detailed study, did not comply with the Flood Disaster Protection Act of 1973. Other allegations in the DCA Petition also implicate the delineation of the flood prone areas on the site. See, (5) Ground and Surface Water Quality, below. A FEMA "A" zone is the zone depicting the area determined by FEMA to be flood prone. In this context, FEMA defines a "flood prone" area as an area flooded in a 100-year, 24-hour storm. At the time Polk County reviewed the Crowder project for approval of the roadway and construction drainage plans, FEMA was requiring that a detailed study be performed to delineate the flood prone area. Polk County apparently was not aware of this requirement and was not enforcing it. Nor, apparently, was Crowder's engineer aware of it. In any event, Crowder did not have a detailed study performed to delineate the flood prone area on the site, and the County did not require it. In approximately March, 1992, Polk County received a written communication from FEMA advising of the requirement for a detailed study of the flood prone area in the case of developments like Crowder's. Polk County now requires compliance with this FEMA requirement. Crowder did not rely simply on the FEMA undetailed "A" zone to map the flood prone area on the site. Crowder's engineers used the existing undetailed FEMA maps as a starting point for determining base flood elevations. The engineers digitized the areas which had been designated as flood prone on the FEMA panels. The engineer then overlayed the digitized FEMA map with the on- site wetlands survey of the property, which had been field-staked and field- shot. Topographical field shots of the property which had been conducted throughout the site at one foot intervals were also overlayed on the digitized FEMA map. In addition, the engineer took into consideration mapped wetlands soils and compared flooding conditions which had occurred on adjacent property to assess whether all areas actually prone to flooding had been characterized as flood prone on the FEMA map. The methodology used by the project engineers was based on sound engineering practices. Nonetheless, it does not qualify as a "detailed study" as far as FEMA is concerned. A "detailed study" would include the application of a computer program that would "route" hypothetical flood waters onto and through the property to ascertain flood elevations in different stages of the hypothetical flood. It is not possible to determine how a detailed study would change the delineation of the flood prone area in Crowder's proposal. The total area of flood prone area could either increase or decrease; it could increase in some places and decrease in others. As it is, several of the lots platted in the Crowder development would be entirely within both the FEMA undetailed "A" zone and the flood prone area mapped by Crowder's engineers. Ground Water Recharge. DCA alleges that platting Paradise Country Estates will adversely impact recharge of the Floridan Aquifer, contrary to Policy 9 and 11, Objective III, "Natural Resources," of the LUE, and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. In the vicinity of the project site, the Floridan Aquifer comes to within 35 feet approximately of the ground surface. Above the Floridan Aquifer is a shallow aquifer, which rises to within approximately 12 inches of the surface. There is a layer of clastic soils (sand and clay) between the surficial aquifer and the Floridan Aquifer. This confining layer slows the rate of recharge to the Floridan. As a result, the project site is in an area having low, or even very low, to moderate recharge capabilities, at best. USGS Professional Paper 1403-E, which was released in 1990, uses groundwater modelling to quantify recharge rates, instead of using qualitative terms such as "low," or "poor," "moderate" and "high" to describe recharge capabilities. USGS Professional paper 1403-E reports that many areas in the Green Swamp previously labeled as good, moderate or high recharge areas are actually capable of only recharging at rates of 3 to 4 inches per year. The subject property appears to be in the 2 to 3 inch range per year for recharge according to USGS Professional Paper 1403-E. Only three known sample soil borings have been taken on the project site. As a result, the extent of permeability and overall thickness of the confining layer between the surficial and Floridan aquifers is not certain. But there is no reason to believe that there are any karst features or other geologic faults in the area that would allow for direct connections between the surficial and Floridan aquifers. The soil borings that have been taken on the site verify the various geological surveys and studies describing the recharge capabilities in the area. Due to the site's limited capabilities as a recharge area, it is unlikely that the platting of this site will result in any significant reduction in its natural recharge rate. The project is not inconsistent with Policy 9 or 11, Objective III, "Natural Resources," of the LUE, or Policies 9 or 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. Individual Water Well Use. DCA alleges that the planned use of individual water wells in Crowder's Paradise Country Estates will impact the quantity of the Floridan Aquifer (and the surficial aquifer) contrary to Policy 11, Objective III, "Natural Resources," of the LUE, and Policies 9 and 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. The potentiometric level of the Floridan Aquifer protects the Floridan Aquifer from salt-water intrusion. Significant de-watering of the aquifer caused by large municipal or industrial wells extracting a high volume of water from the aquifer at an intense rate can lower the potentiometric pressure, thus increasing the potential for salt-water intrusion into the aquifer. (Furthermore, the lowered potentiometric pressure creates a hydraulic gradient which encourages surface waters to percolate downward at a faster rate due to the decreased pressure in the Floridan Aquifer. See the preceding sections on Ground Water Recharge and the following section on Ground and Surface Water Quality.) Large municipal, industrial or agricultural wells which exceed 6 inches in diameter must obtain consumptive use permits from the SWFWMD. The Water Management District takes into account what the District determines to be a safe yield per acre when issuing a consumptive use permit. Small, residential wells are not subject to this permitting process as their impacts are much smaller and less intense, and not a concern with regard to their effect on the potentiometric pressure. For this reason, some coastal areas have begun using smaller, individual wells as an alternative to larger municipal wells. The Floridan Aquifer is replenishing itself fast enough for residential wells not to "de-water" or "draw down" the aquifer's supply of ground water. Residential wells do not lower the potentiometric pressure of the Floridan to a significant degree. Nor would they affect the normal supply of ground water, or contribute to salt-water intrusion. Pumping tests performed within two to three miles west of the project site which utilized several residential-size wells support the foregoing conclusions. For these reasons, it is found that the development will not adversely impact the normal supply of ground water and thus will not interfere with the functions of the potentiometric high of the Floridan Aquifer, including its protection against salt-water intrusion. Since the water wells would pump only from the Floridan Aquifer, they would not impact the supply of surface water. In regard to the use of water wells, the project is not inconsistent with Policy 11, Objective III, "Natural Resources," of the LUE, or with Policies 9 or 10 of the "Water Resource Objective" of the Conservation Element, of the 1985 comprehensive plan. Ground and Surface Water Quality. DCA alleges that Paradise Country Estates will result in unacceptable contamination of the Floridan Aquifer, the surficial aquifer, and the surface water (particularly the Withlacoochee River) contrary to Policies 9, 10 and 14 of the "Water Resource Objective" of the Conservation Element. Paragraph 20 of the DCA Petition alleges that the use of individual on-site disposal systems (OSDS), or septic tank systems, in violation of Section 5-1(6) of Polk County Ordinance 81-28 (the County Flood Protection and Surface Water Management Code), 8/ in particular, will be part of the cause of the unacceptable contamination (other causes being from lawn and garden maintenance and automotive wastes.) On-Site Disposal Systems. Chapter 10D-6, Florida Administrative Code, sets forth requirements for the use of on-site waste disposal, or septic tank, systems in the State of Florida. That chapter, which is administered by the Department of Health and Rehabilitative Services ("HRS") through local health departments, provides construction standards for the installation of on-site waste disposal systems. The septic tank serves as a holding tank designed to separate solids and floatable materials and allows anaerobic digestion of organic materials. The remaining effluent exits the tank into the soil infiltrative process, which is referred to as the drainfield. The drainfield is composed of gravel placed around perforated pipes, which are designed to evenly distribute and release the effluent into soil material where the effluent undergoes aerobic digestion. Eventually, any constituents remaining in the effluent which have not been absorbed by the root zone or otherwise decomposed reach the subsurface waters which are referred to as the surficial water table. Each individual lot owner will be required to obtain a permit from the local health department prior to installing an on-site waste disposal system. Prior to issuing a permit, HRS inspects each site to assess soil limitations and to conduct a percolation test to determine the seasonal high water table for the site. Because the soils on the site are severely limited for filtration purposes and the high water table is only 10 to 12 inches below the surface, individual lot owners will be required to mound their on-site waste disposal systems to overcome these limitations. Although the fill used to mound the systems will be comprised of suitable soils, it is possible that the foreign soils will absorb moisture from the existing soils on this site, a phenomenon referred to as capillary fringe affect. This phenomenon can cause those portions of the fill which come in direct contact with the existing soils on the site to lose their filtration capabilities. Unless the fill becomes saturated from other sources, it is unlikely that capillary fringe affect will render the filtration process ineffective. The effects of capillary fringe affect can be lessened by mixing fill with soils found on the site, a practice undertaken by contractors when installing on-site waste disposal systems. In addition, increasing the amount of fill used to mound the system would decrease the potential affects of this phenomenon. 9/ Floridan Aquifer Water Quality. In some areas of the Green Swamp, the Floridan Aquifer is actually considered a surficial aquifer since no confining layers of soil or clay separate the subsurface water from the Floridan Aquifer. These areas would typically be characterized as areas with high recharge capabilities (or high potential for contamination). However, throughout the project site, a confining layer exists which is composed of clayey sands which have a very low permeability. Therefore, there is relatively little interaction between the surficial aquifer and the Floridan Aquifer on this particular site. For this reason, the use of individual on-site waste disposal systems on this site would pose no significant risk to the water quality of the Floridan Aquifer. Surficial Aquifer and Surface Water Quality.-- As for the surficial aquifer and surface water quality, Chapter 10D-6, Florida Administrative Code, requires on-site waste disposal systems be located at least 75 feet from waterbodies. Normally, and when the systems are operating properly, this assures that adequate filtration and decomposition occurs before wastewater reaches surface waters on or near the site. But, in the case of the Crowder proposal, it is necessary to consider that at least some of the mounded systems will be subjected to flooding and will become saturated. Even based on the analysis by Crowder's engineers, 51 of the lots in Paradise Country Estates are entirely flood prone; there is no place to put an OSDS on those lots that is not flood prone. If a "detailed study" had been done, it is possible that more lots would be entirely within the flood hazard zone. Other lots not entirely within the flood zone may not be able to accommodate an OSDS on the part of the lot not within the flood zone. If the OSDS mound is saturated during flood conditions, the system will fail, and untreated waste, or inadequately treated waste, will be released into the surface flood waters. This waste water will move laterally across the project site. Roots may absorb some nitrates or other organic compounds; 10/ otherwise, the waste water and its constituents will remain in the surface water. Lateral movement across the site generally will be slow, as the site is relatively flat. Some of the waste water and its constituents will get into the surficial aquifer. There are ditches or canals alongside and on the site that will direct the rest of the surface water into Pony Creek and other tributories of the Withlacoochee River, an Outstanding Florida Water approximately three and a half miles to the north. The Department of Environmental Regulation issued a dredge and fill permit for the project's road network's impact on wetlands on the site. But it did not pass on the use of OSDS in the individual lots. It also erroneously referred to the Withlacoochee as a natural Class III, instead of an Outstanding Florida Water. See F.A.C. Rule 17-302.700(9)(i). The Southwest Florida Water Management District (SWFWMD) issued a surface water management permit for the project. In evaluating a permit application, SWFWMD considers surface water quality. But the focus of SWFWMD's inquiry is the pre- and post-development peak flows. Also, when it considers water quality, SWFWMD considers the impact of site alteration on water quality, not the impact of the use of OSDS on the site. In addition, the Crowder project was reviewed under special criteria for low-density rural subdivisions that do not require the submission of as much information. It was not clear from the evidence precisely how SWFMD evaluates water quality under those criteria. For these reasons, based on the evidence, it cannot be said that the Crowder project's OSDS will be meet the minimum standard of being "located to avoid impairment to them or contamination from them during flooding," as required by Section 5-1(6) of Polk County Flood Protection and Surface Water Management Code, or that the project will "protect the normal . . . quality of ground and surface water . . . necessary for the protection of resources of state and regional concern," as required by Policy 10 of the "Water Resource Objective" of the Conservation Element of the Plan. Finally, the project will not "protect or improve existing ground and surface-water quality," as required by Policy 14 of the "Water Resource Objective" of the Conservation Element of the Plan. Other Appeal Issues. Except as set forth above, the Crowder development did not violate the 1985 comprehensive plan and Flood Protection and Surface Water Management Code provisions cited in the DCA Petition. Agency Practice - Other Development in the Area. As previously described, Evans Acres, to the west of the Crowder site, was approved by DCA in 1983. (See Finding 10, above.) As approved, it was comprised of 48 lots on approximately 1,290 acres (a density of one unit per 27 acres). The original lots ranged in size from 5 to 60 acres. Unbeknownst to the DCA, individuals apparently have since split their lots and many of the existing lots are 2 to 5 acres in size. A proposed development known as Turkey Creek is located between the project site and Evans Acres. Turkey Creek is comprised of approximately 57 lots on 170 acres with a gross density of 1 unit per 3 acres. The physical characteristics of the Turkey Creek property, including the abundance of wetlands and floodplains, are essentially the same as the proposed project site. DCA appealed Turkey Creek in June of 1992. However, in that case, the County had been approximately two years late in rendering the Turkey Creek development order to the DCA. Meanwhile, the developer incurred development expenses and already had constructed roads and drainage facilities for the development. The developer, the County and DCA executed a settlement agreement which allows the development to proceed according to the original construction plans, but requires homeowners to install dual septic tank systems and have their septic tanks cleaned and inspected every three years. Several other developments, which are in the general vicinity of the project site and have many of the same physical characteristics, including Yearling Trace and Buck Hill, have been appealed by DCA. Yearling Trace is comprised of 108 units on approximately 544 acres. Buck Hill is comprised of 55 units on approximately 214 acres. Those projects were appealed by DCA in June and April, 1992. In some of these cases, the County did not timely render development orders to DCA in a timely manner. In the case of Buck Hill, the DCA had been mailed an unapproved copy of development plans in October, 1990; in early 1992, DCA contacted the County to inquire, as no County-approved development plans ever had been sent to the DCA. In many of these cases, substantial development expenses had been incurred; in some cases, roads and drainage facilities already had been constructed. DCA decided to settle the pending appeals in which the County was late rendering the development order, and in which the developer already had constructed roads and drainage facilities, consistent with the Turkey Creek settlement. In cases where the County was late rendering the development order, but the developer had not already constructed roads and drainage facilities, the DCA determined to settle not only for stipulations to upgrade the OSDS, as in the Turkey Creek settlement, but also for requirements that a "detailed" flood zone study be done, in accordance with the FEMA requirements. Prior to the DCA appeal, Crowder had expended approximately $31,000 in permit fees. In addition, he has incurred development costs, primarily for engineering fees and related services. Through the time of the final hearing, he had spent approximately $99,000 on engineering fees and services. (The evidence was not clear how much had been incurred by the time of the DCA appeal.) However, the County was not late in rendering the Crowder development order, and Crowder has not constructed roads or drainage facilities. In view of the different circumstances in Crowder's case, DCA's prior agency practices do not compel that Crowder's development be treated in the same manner, i.e., be settled on the same terms, as the Turkey Creek and the others. DCA has argued that FLWAC's Final Order in the case of Dept. of Community Affairs v. Narbi International Company, Inc. and Lake County, 14 FALR 3223 (1992), controls this case and requires the Crowder development order to be overturned on appeal. Narbi involved development Green Swamp ACSC, albeit in Lake County. Factually, there are many differences between Narbi and this case. The Narbi development order was a rezoning from agricultural with a residential density of up to one unit per five acres to a residential planned unit development (PUD) zoning with a density of one unit per 1.35 acres. Also, Lake County's comprehensive plan had an "urban containment policy," which DCA equated with its non-rule policy preventing "urban sprawl" or "leap-frog development." Thirdly, in Narbi, it was found that a geologic fault existed on the project site which allowed a direct connection from the surficial aquifer to the Floridan Aquifer. Because of the factual differences, Narbi does not control the outcome of Crowder's case. Conditions for Approval. Based on the testimony of its witnesses, DCA has proposed that, notwithstanding its deficiencies, the Crowder project can be approved if its density is lowered to between one unit per ten acres and one unit per 20 acres. The rationale of DCA's witnesses seems to be that the proposed lower density, in and of itself, would cure at least the most significant of the deficiencies. Since the Crowder development order under review was for approval of particular road and drainage plans, the plans would have to be redrawn at the lower density and resubmitted for approval by the County subject to the final order to be entered in this case. It is not possible for the Commission to approve, on condition of lowered density, the plans that were the subject of the development order in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Land and Water Adjudicatory Commission enter a final order rescinding and denying approval for the development order in this case. RECOMMENDED this 10th day of March, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1993.
The Issue The primary issue in these consolidated cases is whether the proposed Southern Water Use Caution Area ("SWUCA") rules of the Southwest Florida Water Management District (the "District") constitute an invalid exercise of delegated legislative authority. Also at issue in the proceedings is the validity of certain portions of the District's existing water use permitting rules contained in Chapter 40D-2, Florida Administrative Code ("F.A.C."), and the "Basis of Review for Water Use Permit Applications" that the District has adopted by reference in Rule 40D-2.091, F.A.C. Finally, certain policies allegedly utilized by the District in its water use permitting program have been challenged as unpromulgated rules in contravention of Section 120.535, Florida Statutes (1993) ("F.S.").
Findings Of Fact Based upon the oral and documentary evidence adduced at the final administrative hearing and the entire record in this proceeding, the following findings of fact are made: Identification of Parties and Related Facts Petitioner Charlotte County ("Charlotte") is a political subdivision of the State of Florida, organized under Article VIII, Section 1, of the Florida Constitution (1968). All or part of the county lies within the geographic jurisdiction of the Southwest Florida Water Management District ("District"). Fed by the Peace and Myakka Rivers, Charlotte Harbor is located in Charlotte County. It is an extremely productive body of water and is the second largest estuary in the State of Florida. Charlotte Harbor is one of the most important resources of Charlotte County, both from an economic and an ecological standpoint. Petitioner Citrus Grower Associates, Inc. ("Citrus Grower"), a corporation organized and existing under the laws of the State of Florida, is an association of citrus growers owning groves that lie within the District's jurisdiction. Petitioner DeSoto County ("DeSoto") is a political subdivision of the State of Florida organized under Article VIII, Section 1, of the Florida Constitution (1968). All or part of the county lies within the District's geographic jurisdiction. DeSoto's population - approximately 26,000 people in 1995 - has been experiencing slow but continual growth over the last decade. It is primarily an agricultural county and its principal source of groundwater is the Floridan Aquifer. DeSoto is concerned that a moratorium on or suspension of the District's issuance of new water use permits could hinder its prospects for future development and reduce its ad valorem tax base. Petitioner Environmental Confederation of Southwest Florida, Inc. ("ECOSWF") is a non-profit corporation organized and existing under the laws of the State of Florida. ECOSWF is an environmental advocacy group established for the purpose of conserving the natural resources of Southwest Florida. Intervenor Florida Citrus Mutual ("Florida Citrus") is a corporation organized and existing under the laws of the State of Florida. Florida Citrus is a voluntary cooperative association of Florida citrus growers with 11,956 active members representing some 800,000 acres of citrus statewide. Approximately 350,000 acres owned by members are located within the boundaries of the District. Petitioner GBS Groves, Inc. ("GBS") is a corporation organized and existing under the laws of the State of Florida. GBS owns a citrus grove located in Section 23, Township 27 South, Range 27 East, Polk County, Florida, that is subject to regulation by the District. Petitioner Hardee County ("Hardee") is a political subdivision of the State of Florida, organized under Article VIII, Section 1, of the Florida Constitution (1968). All or part of the county lies within the District's geographic jurisdiction. Hardee's population has been growing at a slow but relatively steady rate over the last five years, currently totaling approximately 22,000. The county is predominantly agricultural, and the Floridan Aquifer is a principal source of its groundwater. Hardee is concerned that a moratorium on or suspension of the District's issuance of new water use permits could hinder any prospects for future development and reduce its ad valorem tax base. DeSoto and Hardee contend that the Floridan Aquifer is not stressed within the confines of their respective political boundaries and the District has not concurred with their requests for reservations of water for future permitting needs. The counties further maintain that permitted withdrawals from within their respective jurisdictions have not contributed to the present water problems within the District and that they should not be required to sacrifice their current and future needs to solve those problems. Intervenor Manatee County ("Manatee") is a political subdivision of the State of Florida, organized under Article VIII, Section 1, of the Florida Constitution (1968). All or part of the county lies within the District's geographic jurisdiction. As discussed below, the District designated portions of Hillsborough, Manatee and Sarasota Counties as the Eastern Tampa Bay Water Use Caution Area by Resolution Number 933 dated June 28, 1989, and by Resolution Number 942 dated October 24, 1989. Currently, Manatee County is almost entirely encompassed within the Eastern Tampa Bay Water Use Caution Area and much of the county was designated by the District as a "Most Impacted Area" within that Water Use Caution Area. Petitioner Pinellas County ("Pinellas") is a political subdivision of the State of Florida, organized under Article VIII, Section 1, of the Florida Constitution (1968). All or part of the county lies within the District's geographic jurisdiction. Pinellas is a charter county that owns and operates its own public water supply utility - the "Pinellas County Water System." Petitioner Polk County ("Polk") is a political subdivision of the State of Florida, organized under Article VIII, Section 1, of the Florida Constitution (1968). All or part of the county lies within the District's geographic jurisdiction. Polk is an operator of public potable water and sewer utilities. The District is an independent special district of the State of Florida created pursuant to Section 373.069, F.S. Chapter 373, F.S. (1993) ("Chapter 373"), charges the District with the regulation of "consumptive uses of water" in a 16-county area of west-central Florida. Among the many duties and responsibilities conferred on the District by Chapter 373 are the following: (1) authority to establish minimum flows and levels for watercourses and bodies of water; (2) responsibility for the development of groundwater basin resource availability inventories; and (3) ability to reserve quantities of water for non-consumptive uses. See, Sections 373.042, .0395 and .223(3), F.S. The District is subdivided into eight surface-water drainage basins each of which is further governed by its own basin board. Basin boards participate in the funding of local water resource-related projects within their respective boundaries and receive approximately fifty percent of the annual ad valorem taxes assessed by the District. Water management districts issue permits for the consumptive use of water pursuant to Part II of Chapter 373, F.S., and Chapter 40, F.A.C. The permits authorize, as well as regulate, the consumption and use of water by individuals and entities. The District refers to the permits as "water use permits" ("WUPs"), and within the District's territorial boundaries, the issuance of WUPs is governed by Chapter 40D-2, F.A.C. Standing General Statement The parties have stipulated that all petitioners have standing to challenge the existing District rules identified in each of the petitions filed pursuant to Section 120.56, F.S. (1993). The parties have also stipulated that all petitioners except Pinellas have standing to challenge the District's proposed rules for the Southern Water Use Caution Area (the "SWUCA Rules") under Section 120.54, F.S. Pinellas' Standing The District has contested Pinellas' standing to challenge the SWUCA Rules, but it has stipulated to Pinellas' standing in all other respects. Essentially, the District contends that Pinellas does not have standing to challenge the proposed SWUCA Rules because the county was not included within the geographic boundaries of the SWUCA as defined in the proposed rules. As discussed in detail below, the Southern Water Use Caution Area ("SWUCA") was delineated by the District to roughly coincide with an area identified as the Southern Basin, one of three groundwater basins identified by the District to represent hydrologically distinct groundwater flow systems within its jurisdiction. While the District did not include Pinellas within the legal description of lands included within the SWUCA, several District reports depict southern Pinellas lying within the Southern Basin. The Upper Floridan Aquifer System extends beneath Tampa Bay and is continuous between central and southern Pinellas and portions of the SWUCA, such as Hillsborough and Manatee Counties. Thus, although Pinellas is not within the geographic boundaries of the SWUCA (as defined in the proposed rules), there is a hydrologic connection (i.e., the Floridan Aquifer) between the SWUCA and central and southern Pinellas. The District confirms that there are no physical, geologic or impermeable barriers beneath Tampa Bay to prevent groundwater flow between portions of the SWUCA and portions of Pinellas, but claims that the effects of withdrawals in the Southern Basin on Pinellas are limited because most of the UFAS flow discharges into overlying aquifers or to the bottom of Tampa Bay before it reaches Pinellas. In addition, the District points out there is minimal pumpage from the Floridan Aquifer in southern Pinellas because of its salinity. The District's groundwater flow models that were prepared as part of the Eastern Tampa Bay Water Resource Assessment Project ("ETB WRAP") simulate the aquifer system within the Southern Basin. The models included permitted Floridan Aquifer withdrawals and reclaimed water injection wells within central and southern Pinellas, even though impacts from the withdrawal and injection wells were considered minimal. Pursuant to Section 373.196(2), F.S., "municipalities, counties, and regional water supply authorities are to have the primary responsibility for water supply[.]" In its coastal location, Pinellas has limited ability to develop freshwater resources within its boundaries without causing significant environmental consequences. Section 373.1962(1), F.S., recognizes that "regional water supply authorities may be created for the purpose of developing, recovering, storing, and supplying water for county or municipal purposes in such a manner as will give priority to reducing adverse environmental effects of excessive or improper withdrawals of water from concentrated areas." See also, Section 373.196(1), F.S. (legislative mandate for cooperative efforts among cities, counties, water management districts, and the Department of Environmental Protection to meet water supply needs). Section 153.03(1), F.S., generally authorizes counties to purchase, construct, improve, extend, enlarge, operate, and maintain water supply systems "within such county and any adjoining county or counties[.]" See also, Section 125.01(k)1., F.S. Consistent with this authorization, Pinellas owns and operates its own public water supply utility and has various water production facilities located throughout Pinellas, Hillsborough, and Pasco Counties (the "Tri-County Area"). The withdrawal and use of water from the facilities is regulated by the District's water use permit program. Pinellas is the largest water utility in southwest Florida. Pinellas supplies water to approximately 630,000 citizens within its geographic boundaries, with most of its service area lying north of St. Petersburg. Pinellas provides water on a retail basis to thirteen cities, on a wholesale basis to four other cities, on a standby basis to three cities, and serves water to all unincorporated areas of the county. In total, Pinellas provides to its customers approximately sixty- nine million gallons of water per day ("MGD"), the majority of which it has contracted to purchase from the West Coast Regional Water Supply Authority ("West Coast"). Pinellas is a founding member and wholesale customer of West Coast, a cooperative regional water supply authority created in 1974 by interlocal agreement between Hillsborough County, Pasco County, Pinellas County, the City of St. Petersburg and the City of Tampa. West Coast is governed by a board of directors comprised of one representative from each of its five member governments. The City of New Port Richey is a non-voting member. West Coast was established to plan, coordinate, develop, and supply water (on a wholesale basis only) for the rapidly growing Tampa Bay area while giving "priority to the reduction of adverse environmental impacts". See, Section 373.1962(1), F.S. Each member county or municipality has a preferential right to purchase water from West Coast to meet its water supply needs. Id. About ninety percent of the population residing within the Tri-County Area (more than two million residents) relies upon water supplied by West Coast and its member governments. In 1990, the average demand for public supply and other potable water uses from West Coast was 252.7 MGD. At current use rates and with anticipated population growth, West Coast projects a 66 percent increase in public supply demand by the year 2020, to approximately 419.3 MGD. In 1992, West Coast and its member governments began working on a Water Resources Development Plan (the "RDP"). Around this same time period, the District was preparing a "needs and sources" report for its entire 16-county territory. At the time of the hearing in this case, the RDP had not been completed; the latest draft is dated July 8, 1994. In July 1994, work on the RDP was suspended so that policy issues raised during its drafting could be addressed by the Tampa Bay Water Coordinating Council ("TBWCC"), a voluntary advisory board comprised of policymaking representatives from West Coast, its member governments, and the District. Under a 1991 Regional System Water Supply Contract (the "Regional Supply Contract"), member governments have contracted with West Coast for present and future delivery of water, and West Coast operates existing structures and develops new water supply facilities or interconnections to meet those demands. Each member government is entitled to receive a percentage of the water produced by facilities developed by West Coast, in proportion to the member's contributions toward development costs. West Coast and its member governments collectively own and operate the following ground and surface water supply Area : facilities in the Tri-County 8 Cross Bar Ranch Wellfield, Cypress Creek Wellfield, Cypress Bridge Wellfield, Starkey Wellfield, North Pasco Wellfield, South Pasco Wellfield, Eldridge-Wilde Wellfield, East Lake Road Wellfield, Cosme-Odessa Wellfield, Section 21 Wellfield, Northwest Hillsborough Regional Wellfield, Morris Bridge Wellfield, Tampa Bypass Canal Facility, Hillsborough River Facility, and South Central Hillsborough Regional Wellfield. Some West Coast projections indicate that by the year 1999 the existing wellfields may not be able to meet the potable water demands of the Tri-County Area. The Regional Supply Contract describes and governs West Coast's long-term plan to meet members' water supply needs by conveying water through an interconnected network of water production facilities and transmission mains, and distributing the "pooled" water to its members based upon their respective annual needs. The Regional System Contract limits new water supply development in Pasco County by West Coast and its member governments. Interconnection provides water supply safety by ensuring delivery to members despite potential equipment failure. In addition, interconnection allows West Coast and its member governments to rotate water production (i.e., withdrawals) from one facility to another to avoid systemic stresses that could otherwise arise. For example, to prevent environmental degradation in a particular area, withdrawals from an impacting wellfield could be reduced or halted with other system facilities making up the difference. The following seven West Coast wellfield facilities are interconnected by water transmission lines (the "Interconnected System"): the Cross Bar Ranch, Cypress Creek, Eldridge-Wilde, South Pasco, Section 21, Cosme-Odessa, and Northwest Hillsborough Regional Wellfields. As of May 1, 1995, the actual system use of the Interconnected System was approximately 115 MGD. The Regional Supply Contract which governs the production and distribution of water through the Interconnected System, also describes the construction of an additional loop in the transmission main system that would facilitate greater water- sharing by West Coast's member governments. The SWUCA includes portions of central and southern Hillsborough County that serve as sources for current and anticipated future water production for West Coast and its member governments. In addition, other locations within the SWUCA are being considered by Pinellas and West Coast as possible new sources of water to meet the projected potable water demands of their service areas. If adopted, the proposed SWUCA Rules would impose direct and immediate restrictions on water resources that could be developed by West Coast and Pinellas for current and future consumers. Therefore, the proposed SWUCA Rules directly and indirectly impact the potable water supplies of both West Coast and Pinellas, and Pinellas would be substantially affected by the District's proposed regulations. The South Central Hillsborough Regional Wellfield ("South Central") located in western Hillsborough County, is one of the wellfield facilities owned and operated by West Coast. South Central is the only West Coast wellfield currently in operation in the SWUCA. The consumptive use permit for withdrawals from South Central is held jointly by West Coast and Hillsborough County. Pinellas is not a co-permittee of South Central, nor does it directly receive any water from that wellfield. While there have been discussions between West Coast and its members about linking South Central with the Interconnected System, those considerations were suspended following creation of the TBWCC. The Regional Supply Contract did not specifically contemplate inclusion of South Central and there are currently no definitive plans to contractually formalize the connection. South Central is located in an area where declines of more than sixty feet have occurred in the potentiometric surface of the UFAS. [See Section III B and C for definitions and details.] In addition, there have been numerous citizen complaints associated with withdrawals from South Central. South Central's withdrawal capacity is fully committed to Hillsborough County, and the RDP projects that no surplus outflow from South Central will be available for use outside the wellfield's immediate service area. West Coast projections indicate that by the year 2000, the permitted capacity of South Central will not be able to meet the average or maximum daily water needs of its service area. Although West Coast and its members are investigating the possibility of increasing the permitted capacity of South Central, the District has recommended that no additional expansion occur at the wellfield. During the District's recent review of South Central's consumptive use permit, there was no suggestion that water from South Central would be supplied to Pinellas. The District argues that potential water sources other than South Central are available to meet Pinellas' future needs, and that Pinellas will not need to seek surplus quantities from South Central. However, the effect of the proposed SWUCA Rules on South Central could restrict production from the wellfield and necessitate West Coast's diversion of other system waters to service the South Central area, thereby heightening West Coast's need to develop additional water supplies. In addition, without any increase in production from the South Central site, Hillsborough and West Coast's other members may have to place greater reliance upon the Interconnected System with the result that a smaller portion of that water would be available for Pinellas. Pinellas would be substantially affected by any such developments because of increased infrastructure costs. In March 1994, the District issued two water shortage orders affecting West Coast's Interconnected System. In June 1994, the District also entered an emergency order (District Executive Director Order No. 94-58) which reduced the permitted withdrawal capacity of West Coast's Interconnected System. The District is considering the imposition of additional restrictions on withdrawals from the Interconnected System. The wellfields covered by the District's two water shortage orders and the emergency order constitute the primary sources of water supply for Pinellas and St. Petersburg. The reductions imposed by the orders will affect Pinellas' ability to meet projected future water needs and may increase the need to seek new water sources in the immediate future. Pinellas is concerned about its ability to depend on West Coast and the Interconnected System to satisfy its customers' long-term water demands. Even though Pinellas does not have any direct interest in any wellfield located within the SWUCA, it is affected by any District rule that restricts the development of new water sources in the District, particularly in areas where West Coast operates. Pinellas' uncertainty regarding the manner in which the SWUCA Rules may affect development of new sources impairs its ability to plan for and provide necessary infrastructure to support future growth as contemplated by the Local Government Comprehensive Planning and Land Development Regulation Act, Chapter 163, F.S. The SWUCA Rules include a number of water conservation requirements, many of which have been challenged by Pinellas. The District claims that the conservation provisions will not be applicable to Pinellas because it is not a permittee in the SWUCA. However, Pinellas' membership in West Coast provides an adequate connection with the proposed rules to establish its standing to challenge the conservation provisions. It should also be noted that many of the SWUCA conservation requirements have similar or corresponding provisions in rules adopted in 1989 for the Northern Tampa Bay Water Use Caution Area ("NTB WUCA"). Although Pinellas has been subject to the latter water conservation requirements since their initial adoption, it had not challenged any portion of the NTB WUCA rules prior to this proceeding. Pursuant to Section 120.56, F.S., Pinellas has challenged several provisions of the NTB WUCA rules in this proceeding. There is no question that Pinellas has standing to challenge provisions contained in the NTB WUCA rules. Many of its challenges to the SWUCA provisions address identical issues. District Regulatory Authority and Rule Development Historical Perspectives The District and Its Statutory Authority Respondent, the Southwest Florida Water Management District (the "District"), is an independent special district of the State of Florida created in 1961 by Special Act of the Legislature. Ch. 61-691, Laws of Fla. At all times material to this proceeding, the District was generally charged by Chapter 373"), 373, F.S. (1993 & 1994 Supp.) ("Chapter 9 with the management, regulation, and protection of regional water resources within its boundaries. In addition, Chapter 373 directs the District to collect and analyze water-related data, design and operate flood control facilities, manage the consumptive use of water, supervise water well construction, regulate surface water systems, and evaluate water supplies within its jurisdiction. The District was created primarily in response to severe flooding that occurred after abnormally high rainfall in 1959 and 1960, and became the "local sponsor" of the federal flood control "Four Rivers Basin Project," covering the Hillsborough, Oklawaha, Withlacoochee, and Peace Rivers. District boundaries -- developed primarily on the basis of surface water drainage basins and hydrologic divides -- do not strictly follow political borders and are based on groundwater considerations. The boundaries were revised to their present configuration between 1976 and 1978. Currently, the District is one of five water management districts in Florida and encompasses about 10,000 square miles in west-central Florida, including all or part of sixteen counties. Approximately 3.5 million people reside within the District's boundaries. As discussed in more detail in the Conclusions of Law, in 1972, the Florida Legislature enacted the Florida Water Resources Act of 1972, Ch. 72-299, Laws of Fla. This landmark legislation was codified at Chapter 373, and is substantially Code . derived from A Model Water 10 The Water Resources Act created a comprehensive, interrelated set of laws that seek to further the conservation, protection, management, and control of the state's water resources while maximizing their beneficial use. The Water Resources Act provided that the Florida Department of Environmental Regulation (now the Department of Environmental Protection, or "DEP") and the state's five regional water management districts (the "districts") would be the governmental entities principally responsible for assessing and regulating the water needs of citizens, industry, agriculture and natural systems. Prior to passage of the Water Resources Act in 1972, the District operated under authority delegated by Chapter 378 and the then-existing Chapter 373. Although a number of provisions found in the existing Chapter 373 were retained when the Water Resources Act was enacted, it was the 1972 Act that delegated to the districts and DEP the statutory authority to regulate the consumptive use of water in Florida. See, Section 373.217, F.S. The current Chapter 373 includes the Water Resources Act, some portions of the chapter that were in existence prior to passage of the Water Resources Act, and a few legislative modifications adopted after codification of the Water Resources Act. Section 373.026(10), F.S., was enacted in 1989 and directs DEP to adopt by rule a "State Water Policy." The State Water Policy is intended to provide policy guidance to DEP and the districts for the development and implementation of comprehensive, coordinated, statewide water management 11 programs and rules relating to water resources. See, Section 7 of Ch. 89-279, Laws of Fla. This section mandates consistency between the state water policy and the State Comprehensive Plan 12 contained in Chapter 187, F.S. (the "State Comp Plan"). In 1994, DEP transferred the State Water Policy to Chapter 62-40, 13 F.A.C. Chapter 373 authorizes the districts to adopt reasonable rules to implement their statutory powers, duties, and functions. See e.g., Sections 373.044 and 373.113, F.S. In addition, DEP can delegate or authorize the districts to exercise or perform various powers and duties compatible with Chapter 373 and other district-enabling statutes. See, Sections 373.016(3) and 373.103, F.S. Chapter 373 is to be liberally construed to effectuate its purposes. Sections 373.616 and 373.6161, F.S. Chapter 373 recognizes that an important aspect of water resource planning and allocation is a determination of the extent and limits of the state's water resources. Section 373.042, F.S., directs the districts and DEP to establish minimum flows for all surface watercourses and minimum water levels for surface waters and groundwaters within their respective jurisdictional areas. "Minimum flow" refers to the limit for a watercourse (e.g., a river or stream) at which further withdrawals would be significantly harmful to the water resources or ecology of the area. Similarly, "minimum water level" is statutorily defined as the level of groundwater in an aquifer and the level of surface water (e.g., a lake) at which further withdrawals would be significantly harmful to the water resources of the area. The statute does not require that minimum flows and levels ("MFLs") be established by rule, nor does it provide time limitations within which they must be set. MFLs must be calculated using the best information available and may reflect seasonal variations when appropriate. Section 373.042, F.S. The establishment of MFLs is intended to provide districts with baseline information to utilize in the water permitting process, and it provides a way to include public purposes, such as recreation, wildlife protection and ecological protection, in the water allocation process. In addition, MFLs can provide local governments and potential consumptive use permittees with advance notice of the locations and amounts of available water supplies. See, Sections 373.0391-.0395, F.S. Rule 62-40.473(2) of the State Water Policy provides that minimum flows and levels established by a water management district shall be "a consideration where relevant to...the 14 issuance of [consumptive use] permits." As discussed in more detail in Section IV below, one of the primary issues in the pending cases is the District's endeavor to establish a minimum aquifer level for the Upper Floridan Aquifer System in an area designated by the District as the Southern Water Use Caution Area or the SWUCA. This effort is the District's first attempt to set a minimum aquifer level by administrative rule. The proposed minimum aquifer level would be 15 based upon measurements of the potentiometric surface of the aquifer. There are a number of complex scientific and legal issues involved in the establishment and implementation of such a level. Some of these issues are addressed in Section IV and V below. In 1974, the Legislature authorized the creation of regional water supply authorities to develop, recover, store, and supply water for local governments "in such a manner as will give priority to reducing adverse environmental effects of excessive or improper withdrawals of water from concentrated areas." See, Section 373.1962, F.S. As the collective agent for member local governments, a regional water supply authority obtains water use permits, develops wellfields or other sources of water, and wholesales the water produced to its member governments for retailing to consumers within each member's jurisdiction. The West Coast Regional Water Supply Authority ("West Coast") -- the first in Florida -- was established in October 1974, by agreement among its five voting numbers: Hillsborough, Pasco, and Pinellas Counties and the Cities of St. Petersburg and Tampa. The City of New Port Richey is a non-voting member of the West Coast governing board. West Coast supplies potable (drinking) water to much of the Tampa Bay metropolitan area. About 90 percent of the population in these areas, more than two million residents, rely upon water supplied by West Coast and its member governments. 2. History of the District's Water Use Permitting Program Part II of Chapter 373, which was enacted as part of the Water Resources Act of 1972, governs the permitting of the consumptive use of water. It directs the districts to adopt a program for the issuance of permits to ensure that a proposed water use is consistent with the general objectives of the district and not harmful to area water resources. See, Sections 373.216 and 373.219(1), F.S. A consumptive use permit applicant must establish that the proposed use: "(a) Is a reasonable- beneficial use as defined in Section 373.091(4); (b) Will not interfere with any presently existing legal use of water; and (c) Is consistent with the public interest." Section 373.223(1), F.S. This statutory basis for issuing permits is commonly referred to as the "Three-Prong Test." "Reasonable-beneficial use" is defined as "the use of water in such quantity as is necessary for economic and efficient utilization for a purpose and in a manner which is both reasonable and consistent with the public interest." Section 373.019(4), F.S. For each water management district, the development and implementation of an accurate, effective, and cost-efficient water use regulatory process has been an immensely complicated task because of the numerous variables that must be considered, e.g., disparate hydrogeology, unpredictable rainfall and climatic changes, land use modifications, and shifts in the location, amounts, and seasons of water use. By necessity, a district's permitting rules must be general enough to accommodate the diverse needs and conditions throughout its jurisdiction, yet specific enough to accomplish statutory directives while providing the regulated public with adequate notice of criteria and standards to be applied during permit application review. The District's implementation of a consumptive use permitting program has been further hindered by the absence of detailed and reliable scientific information on the extent of groundwater withdrawals occurring at the time the permitting program was first adopted, and the condition and workings of groundwater systems in the District. The lack of reliable, uncontroverted scientific information complicates the water use permitting process, where attempts to incorporate a "range" of possibilities to account for scientific uncertainty can result in regulation that is unpredictable to the potential or existing permittee and ineffective in its protection of the resource. To place the current rule challenges in perspective, it is helpful to briefly review the history of the District's efforts to implement a water use permitting program and prior administrative proceedings regarding those efforts. The District's initial consumptive use permitting rules became effective January 1, 1975 (the "1975 Rules"). Then-existing uses of water (that were not otherwise exempt from regulation) could continue after adoption of the rules, but only with a permit issued by the District. An initial permit for the continuation of an existing use was issued if the water use met what was commonly referred to as the "Two-Prong Test," which required that the existing water consumption be a reasonable-beneficial use and allowable under the common law of Florida. See, Section 373.226, F.S. An existing user had to apply for an initial water use permit within two years after the effective date of the District's implementing rules. Failure to apply for a consumptive use permit within the two-year period resulted in a statutory "conclusive presumption" that the existing use had been abandoned. Id. The 1975 Rules were based on a "water crop approach," i.e., a water withdrawal would be permitted on the basis of the total amount of water generally available for consumptive use throughout the District in proportion to the amount of land owned or controlled by the applicant. Under Rule 16J-2.11(3), F.A.C. (1975) (the "Water Crop Rule"), the District's evaluation of a consumptive use permit application involved calculating the "water crop" attributable to the applicant's property -- quite 16 simply, the total annual rainfall less evapotranspiration in the District, times the acreage owned or controlled by the 17 applicant. The Water Crop Rule was challenged and declared invalid on the grounds that it created a water "property right" in contravention of Chapter 373 and imposed a non-statutory permit qualification that made water withdrawals dependent upon the amount of property owned or controlled by the applicant. Although the District claimed that it used the water crop calculation only as a threshold application inquiry, it was concluded that the issuance of a consumptive use permit under the Water Crop Rule ultimately was dependent upon the size of an applicant's land-holdings. Because this methodology for permitting water withdrawals involved allocation of the resource on the basis of property ownership or control rather than its reasonable-beneficial use, it was deemed to be contrary to Chapter 373. In addition, the water crop methodology was found to be hydrologically unsound as a means of determining the amount of water that could be safely withdrawn from a specific piece of property. See, Pinellas County v. Southwest Florida Water Management District, (DOAH Case No. 79-2393R) 2 Fla. Admin. L. Rep. 547-A (1980). In 1980, the District proposed rule revisions that (a) listed several factors that the District would consider in determining whether a proposed withdrawal would be "in the public interest" and (b) established a rebuttable presumption that a proposed use of less than 1,000 gallons-per-acre-per-day would be consistent with the public interest. The proposals were challenged on some of the same grounds asserted in the Water Crop Rule challenges as well as on vagueness grounds since the rule did not describe the effect that would be attributed to the various factors. The rule challenges were rejected in West Coast Regional Water Supply Authority v. Southwest Florida Water Management District, (DOAH Case No. 80-1004R), 4 Fla. Admin. L. (1982). Rep. 1858-A 18 After the proceedings on the Water Crop Rule and the subsequent list-of-factors rule revisions, District permit application evaluation relied on the listed factors and the following provision, commonly referred to as the "5-3-1 Rule," which had been adopted as part of the 1975 Rules: 40D-2.301 Conditions for Issuance of Permits [formerly 16J-2.11(4)(b)-(d), F.A.C.] * * * The withdrawal of water: * * * Must not cause the level of the potentiometric surface under lands not owned, leased, or otherwise controlled by the applicant to be lowered more than five feet (5'). Must not cause the level of the water table under lands not owned, leased, or otherwise controlled by the applicant to be lowered more than three feet (3'). Must not cause the level of the surface of water in any lake or other impoundment to be lowered more than one foot (1') unless the lake or impoundment is wholly owned, leased, or otherwise controlled by the applicant. The 5-3-1 Rule was challenged pursuant to Section 120.56, F.S., on the grounds that the mandatory nature of the rule did not account for site-specific variations in rainfall, evapotranspiration, aquifer recharge, runoff, soil and vegetation types, or porosity of the underlying substratum or aquifer. The District claimed that it did not apply the 5-3-1 Rule as a mandatory restriction on permit issuance, but rather used the provision as a threshold guideline to identify those applications requiring site-specific evaluation. Although the District Governing Board routinely granted exceptions to the 5-3-1 Rule, neither the rule nor the District provided permit applicants with written guidelines or policies by which the applicant could anticipate how the rule compliance determination would be made. The 5-3-1 Rule was declared invalid on May 17, 1988, in West Coast Regional Water Supply Authority v. Southwest Florida Water Management District, (DOAH Case No. 88-0693R), 10 Fla. Admin. L. Rep. 4239 (1988) ("Although the District has chosen to administer the 5-3-1 Rule as a guideline, by its very terms...the 5-3-1 Rule is written as a mandatory uniform prohibition." Id. at 4250). In 1989, the District proposed the adoption of substantial modifications to its consumptive use permitting rules. These proposals were developed by a "Rules Revision Committee" which was comprised of senior District staff and legal counsel. The Rules Revision Committee received scientific and technological assistance from numerous District experts and also obtained input from special advisory committees established for public supply, industry and agriculture. The proposals sought to accomplish a number of goals including the development of mechanisms to: (a) streamline permitting procedures and allow District staff to focus on the review of larger permits with the greatest potential for impact; (b) take into account cumulative impacts in permitting decisions; and (c) consider on-site environmental impacts. Prior to the 1989 proposals, the District's consumptive use permitting rules were effectively non-cumulative, i.e., the District's evaluation of a permit application considered only impacts generated by the proposed use. The 1989 revisions were the District's first attempt to provide a basis for analyzing the cumulative impacts of water withdrawals during the permit application review process. According to the District, however, its ability to accurately evaluate the cumulative impacts associated with a proposed use was limited by the scientific data and modeling programs available at the time the rules were being developed. The 1989 proposals also represented the first time that the District sought to take into consideration on-site environmental impacts as part of permitting decisions. After several public workshops and formal adoption by the District Governing Board, the new rules (collectively referred to as the "1989 Rules") went into effect on October 1, 1989. Codified at Chapter 40D-2, F.A.C., the rules describe the District's application requirements and exemptions and set forth criteria and procedures for the review, issuance, modification, 19 revocation, and transfer of a water use permit ("WUP"). The 1989 Rules incorporate by reference a document called the Basis of Review for Water Use Permit Applications (the "Basis of Review" or "BOR"). See, Rule 40D-2.091, F.A.C. As discussed in more detail below, the Basis of Review includes "performance standards" for several of the water use permitting conditions adopted by the District. In addition, the Basis of Review includes hydrologic presumptions relating to wetlands, lakes, streams, and affected wells, which served as screening guidelines or thresholds between acceptable and unacceptable environmental impacts. As part of these proceedings, the District's general use of presumptions and several individual presumptions have been challenged. These issues are discussed in Section VI below. With a few notable modifications (e.g., adoption of specific provisions governing various water use caution areas), the 1989 Rules form the basis of the District's current water use regulatory program. It does not appear that any challenge to the 1989 Rules was pursued prior to initiation of the instant consolidated cases. District Evaluation of Water Use Permit Application Conditions for Issuance Since adoption of the 1989 Rules, the District has evaluated a water use permit application by measuring the proposal against fourteen interpretive criteria that are contained in Rule 40D-2.301(1)(a-n), F.A.C., entitled "Conditions for Issuance of Permits" (the "Conditions for Issuance"). The District currently applies the Conditions for Issuance to applications for new water uses, as well as to those seeking renewal of an existing water use permit. The rule provides as follows: 40D-2.301 Conditions for Issuance of Permits. In order to obtain a Water Use Permit, an Applicant must demonstrate that the water use is reasonable and beneficial, is in the public interest, and will not interfere with any existing legal use of water, by providing reasonable assurances, on both an individual and a cumulative basis, that the water use: Is necessary to fulfill a certain reasonable demand; Will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters; Will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife or other natural resources; Will not cause water levels or rates of flow to deviate from the ranges set forth in Chapter 40D-8; Will utilize the lowest water quality the Applicant has the ability to use; Will not significantly induce saline water intrusion; Will not cause pollution of the aquifer; Will not adversely impact offsite land uses existing at the time of the application; Will not adversely impact an existing legal withdrawal; Will utilize local water resources to the greatest extent practicable; Will incorporate water conservation measures; Will incorporate reuse measures to the greatest extent practicable; Will not cause water to go to waste; and Will not otherwise be harmful to the water resources within the District. Although the rule provides that an applicant must provide reasonable assurances that a proposed water use complies with the conditions for issuance on both an "individual and cumulative basis," the District currently has a limited ability to analyze cumulative impact. Some of the details and limitations of the modeling tools and other analysis techniques are more specifically discussed below. Although the specific permit criteria contained in the Conditions for Issuances are not directly linked to the individual requirements of the Three-Prong Test, they are intended by the District to implement that statutory test. Under the District's current interpretation, a water use permit will be issued only if all fourteen criteria in the Conditions for Issuances are met. Several of the conditions have been challenged in these proceedings and are discussed in Section VI below. To evaluate whether a proposed use would comply with the fourteen criteria, the District relies on its Water Use Permit Information Manual (the "Permit Manual"), which includes the Basis of Review as Part II of "Part B." In addition, the Permit Manual includes "Part III (Part C), the Water Use Design Aids" (the "Design Aids" or "Part C"). The Design Aids delineate methods acceptable to the District for analyzing impacts which may result from withdrawals. As discussed below, much of the analysis is predicted on the use of modeling. As previously noted, the District has incorporated the Basis of Review into Chapter 40D-2 by reference in Rule 40D- 2.091, F.A.C. The District has not, however, incorporated the Design Aids into its water use permitting rules, and there are currently no pending efforts to adopt Part C as a rule. Some Petitioners have alleged that the District's failure to adopt the Design Aids as a rule violates Section 120.535, F.S. (1993). This issue is addressed in Section IX below. Permit Review Process Under Section 120.60(2), the District has ninety days to approve or reject a WUP application once it is deemed complete. The District's time for consideration of an application is further limited by its collegial decision-making process, since the Governing Board usually meets only once each month to address a noticed agenda. In part to accommodate these time constraints, the District has structured its permitting rules and review mechanisms to distinguish and quickly process applications for permits that individually are less likely to cause adverse impacts, thereby allowing staff more time for the review of impact-intensive applications. However, absent some mechanism to ensure consideration of the cumulative impacts of all water withdrawals the District's selective review approach can lead to the continued issuance of lower-volume permits even when the total quantity of water being withdrawn from the resource exceeds its "safe yield." This problem is particularly troublesome when the resource is a highly transmissive aquifer or is substantially interconnected with other aquifers and surface water features. Prior to the submission of a WUP application, an applicant may participate in one or more pre-application conferences with staff to identify and discuss particularly complex permitting issues. The District says it generally encourages such conferences, especially for larger permits, so the applicant can ascertain the information and data that should be submitted in support of the application, and so the District can become familiar with details of the proposed use and thus make best use of the limited review time allowed after an application is filed. Upon receipt of a WUP application, the District's permit evaluators review the application and supporting data submitted by the applicant along with any other site-specific information that is available. If District staff determines that the application is not complete or if they have questions concerning the application, the District may request additional information from the applicant which has the effect of tolling the 90-day permit review clock. District staff will occasionally perform a site inspection, especially if significant wetlands or other surface water bodies are involved. The District says full-blown biological assessment of every proposed withdrawal site is a practical impossibility because of the hundreds of WUP applications received each year. Once the District determines that the WUP application is complete, the permit reviewer completes an analysis and issues a staff report indicating whether the District's permit requirements have been met and recommends proposed agency action to grant or deny the application. The staff recommendation is then presented to the District's Governing Board, which ultimately decides whether to issue the WUP. Section 6.0 of the Basis of Review sets forth standard conditions placed on all WUPs issued by the District and lists a number of special conditions that may be applied to different use types and scenarios. The standard permit conditions impose upon a permit holder a continuing obligation to meet the Three-Prong Test or face the prospect of revocation of the permit. If necessitated by the size and location of a proposed withdrawal, the District may require extensive monitoring as a condition for permit approval. As part of its permit compliance monitoring, the District compares the information gathered from monitor sites with the predictions modeled during the permit application review process. This procedure has enabled the District to improve the predictive analysis of its computer modeling. Performance Standards and Presumptions Section 4 of the Basis of Review contains thirteen subsections, each of which corresponds to one of the Conditions 20 for Issuances found in Rule 40D-2.301(1)(a-n). The District categorizes the Conditions for Issuance as either "demand-related" or "impact-related." For impact-related conditions, Section 4 of the BOR includes performance standards and presumptions. The performance standards are generally narrative, qualitative factors that delineate the broad objectives of the criteria. The presumptions are specific numerical thresholds that serve as a demarcation between acceptable and unacceptable impacts in determining whether a 21 particular Condition for Issuance has been met. BOR Section 4.0, titled "Conditions for Issuance -- Technical Criteria," includes the following preliminary statement: This Chapter provides guidelines for determining whether a water use meets the Conditions for Issuance set forth in Rule 40D- 2.301. If the criteria described in this Chapter are not met, Applicants may consider reduction of withdrawal quantities, a pumpage rotation schedule, mitigation, or other means to bring a proposed use into compliance with the Conditions for Issuance. For some criteria, presumptions have been developed to facilitate evaluation. If site-specific information is provided which demonstrates that the presumption is incorrect, this information will be used to evaluate compliance with the performance standards. If the WUP applicant satisfies (i.e., does not exceed) the BOR presumption for a particular impact-related criteria, the District presumes that the proposed use meets the BOR performance standards and the corresponding Condition for Issuance in Rule 40D-2.301(1), unless site-specific information is available to the contrary. The District also applies the inverse of the BOR presumptions for impact-related criteria in its review process. In other words, if a presumptive threshold is exceeded, the District presumes that the proposed withdrawal violates the applicable BOR performance standard. The District's rules do not specifically explain that the inverse of the presumptions will be applied during permit application evaluation, nor do the rules provide any guidance regarding the type and/or extent of evidence necessary to overcome application of the inverse of the presumptions. If a BOR presumptive threshold is exceeded, the District says it will consider additional site-specific information to determine whether or not an unacceptable adverse impact is likely to occur. Site-specific data can be developed and provided by the applicant, the District, or an interested third party. For large water production facilities (e.g., wellfields), site-specific data may be obtained from test wells drilled in strategic locations. See, Rule 40D-2.051(1)(e), F.A.C. The District contends that it only uses the BOR presumptions as "guidelines," and that site-specific information can sometimes provide the reasonable assurances necessary for approval of a WUP application. In certain circumstances, the District will issue a permit and require monitoring to ensure that the performance standards are met and/or that unacceptable adverse impacts do not occur. The District also says there have been situations where the BOR presumptive thresholds were not exceeded, but site-specific information convinced District staff that the applicant could not provide reasonable assurances that the performance standards would not be violated. When a third party challenges the issuance of a permit that satisfies or does not exceed a presumption and the District is not aware of site-specific information that contravenes or contradicts the presumption, the District requires the challenging third party to provide additional site-specific information or some other evidence to show that the performance standards would be exceeded. Thus, the presumptions can, in effect, be relied upon to establish a prima facie case of entitlement to a WUP. The District suggests that this use of the presumptions prevents a third party from capriciously challenging a permit. If site-specific information is presented, the District maintains that the presumption essentially becomes irrelevant. This conclusion is not clear from the face of the rules or the BOR. According to the District, the presumptions facilitate efficient application review by separating nominal- impact withdrawals from large, impact-intensive withdrawals. The District maintains that the BOR presumptions do not constitute rigid minimum thresholds that applicants must meet in all cases and that the presumptions do not supersede the performance standards. The District's use of presumptions as a tool within the regulatory permitting process has been the source of considerable controversy in these proceedings. The District asserts that the presumptions minimize the need for each applicant to conduct detailed studies to demonstrate that the proposed use will comply with the Conditions for Issuance. The District claims the regulated public has been largely supportive of the District's use of presumptions and the degree of predictability they provide to the permitting process. This support is not surprising since, as discussed below, the presumptions result in only the very largest users having to address the impact-related conditions. Without presumptions, the District is concerned that the permitting process would be more arduous and time-consuming for both the District and the applicant and the process might present an insurmountable financial hardship to some applicants who could not afford to hire consultants to conduct site-specific ecological surveying or monitoring. The District argues that applicants with "deep pockets" would have an advantage in the permitting process if there were no presumptions because only they could afford to hire consultants to provide detailed data to assist the District's evaluation of a proposed use. Unfortunately, the BOR presumptions as currently written are not limited to use as a screening tool. The District acknowledges that in certain regions or areas it may not be appropriate to apply the BOR presumptions. In the northern Tampa Bay region, for example, the District claims it has sufficient knowledge of actual conditions (i.e., that existing withdrawals have caused unacceptable adverse environmental impacts), that it no longer uses the BOR presumptions when reviewing permit applications within that region. Similarly, in other areas -- such as the Southern Water Use Caution Area -- where it may be necessary to limit access to a water resource because of perceived adverse impacts, the District may not use the BOR presumptions to evaluate WUP applications. However, on the face of the rules, the presumptions would still be applicable, and it would be up to the District to prove site-specific conditions that rendered them inappropriate. As discussed in more detail in Section VI below, most of the BOR presumptions are based upon broad generalizations or correlations rather than specific scientific relationships. While a screening mechanism may be helpful in distinguishing withdrawals that warrant closer scrutiny, the BOR presumptions lack an adequate scientific foundation to be used as a basis for concluding that a specific withdrawal will or will not have a significant impact on a particular resource. To the extent that the presumptions are used to determine factual issues on a site- specific basis, they impermissibly shift the burden of proof from an applicant. In sum, the evidence indicates there is confusion and uncertainty as to when and how the presumptions can be used and whether they can serve as affirmative evidence. In the current rules and Basis of Review, the District's use of presumptions is unacceptably vague and results in the exercise of unbridled discretion by the agency. The Water Use Design Aids and Levels of Analysis Withdrawing water from an aquifer causes drawdowns or reductions in the potentiometric surface of the aquifer. The extent of a drawdown is sometimes referred to as the "cone of influence" or "cone of depression," which can be depicted graphically as a series of contour lines extending outward from the withdrawal site reflecting the amount of change in the potentiometric surface caused by the withdrawal. The radius of the cone increases as the quantity of water withdrawn increases. The extent of the cone or the "propagation" of the drawdown from a particular withdrawal is dependent upon the site of withdrawal and the characteristics of the aquifer from which the withdrawal is made. Because a small-quantity withdrawal will have a smaller cone of influence and impact radius compared to a large- quantity withdrawal, the District contends that its application review process appropriately requires less extensive review for small proposed withdrawals, thereby focusing staff resources on large proposed withdrawals, which are most likely to have significant impacts. The Water Use Design Aids (Part C of the Water Use Permit Manual) describe computer modeling and analysis techniques that the District deems acceptable for analyzing the projected impacts from a withdrawal and evaluating whether or not a proposed water use will comply with the Condition for Issuances. The Design Aids are not utilized in connection with applications for water use permits seeking to withdraw less than 100,000 gallons per day ("GPD") on an annual average basis. See, Section 373.118, F.S. and Rule 40D-2.041, F.A.C. The District has concluded these "general" permits will not cause unacceptable 22 impacts on an individual basis. For all other applications, 23 the District's evaluation begins with the Design Aids. The District claims the Design Aids are simply a "help manual" to aid applicants in designing a withdrawal system that meets the Condition for Issuance, and that the Design Aids do not independently require anything from an applicant or impose any requirements beyond those otherwise set forth in the District's rules. The District asserts that an applicant is not required to use the modeling programs contained in the Design Aids and is free to propose its own methodology to demonstrate compliance with the Basis of Review and Conditions for Issuance. It does not appear that any applicant for a WUP has ever tried to utilize an approach other than the Design Aids methodology. Even if an alternative were proposed, the evidence establishes that the District would still apply the Design Aids analysis to the application and would compare the results with any alternative proposed. There are two groundwater flow models generally used by the District in reviewing WUP applications: the Jacob- Hantush Analytical Model (the "J-H Model") and the MODFLOW Model ("MODFLOW"). The J-H Model contains several simplifying assumptions, e.g., that the Floridan aquifer is inexhaustible and that the water table aquifer is fixed and not impacted by groundwater withdrawals. The MODFLOW was developed by the United States Geological Survey ("USGS") and has been the industry standard for groundwater modeling for the past ten years. It does not contain the same limiting assumptions as the J-H Model. With MODFLOW, boundary conditions can be delineated, and the water table aquifer can be represented as an active unit that can be affected by an underlying aquifer drawdown. MODFLOW can simulate changes in a hydrological system from a selected initial surface by calculating estimated drawdown contours at the end of a given simulation period under certain withdrawal conditions. Depending on the parameters used, MODFLOW can provide some ability to consider cumulative impacts, at least on a limited basis. These regulatory models are strictly "drawdown" models that analyze the impact of a proposed withdrawal without considering other variables that will also affect the hydrological system. These models are used only to assess the additional stress that is placed upon a system as a result of the modeled water withdrawal. Neither model should be used to predict the actual results of a withdrawal. Some Petitioners have objected to the District's use of "non-calibrated" impact or stress models - that is, models that are not standardized with defined or fixed parameters - for regulatory purposes. A reasonably constructed stress model that uses the best available data and appropriate time periods can be helpful in analyzing the additional stress upon a specific water resource caused by particular withdrawal or proposed withdrawal. A non-calibrated impact model is significantly less complex and costly than a calibrated model, which necessarily incorporates substantially more data and the accuracy of which is limited by the parameters and time periods used in calibration. However, a non-calibrated impact model has a limited ability to provide a cumulative analysis. The limitations of these models must be considered when they are utilized for regulatory purposes. The District's evaluation of a WUP application begins with the "Level 1 -- Basic Analysis" described in Section Aids C-1 of the Design 24 ("Level 1 Analysis") which analyzes the WUP applicant's requested withdrawal to estimate if its projected impacts will exceed the specified thresholds. If the model simulation shows that the projected drawdown is below the Level 1 threshold, and there is no site- specific information to the contrary, the District concludes, without further analysis, that the impact-related performance standards and presumptions in the Basis of Review have been met. The WUP application is then recommended for approval provided the proposed use complies with the non-impact-related conditions for issuance, e.g., it uses the lowest quality water available, avoids impacts to existing offsite land uses, employs conservation methods, incorporates reuse measures, etc. According to the District, the Level 1 Analysis thresholds are not specifically related to the BOR presumptions, but the District believes that a withdrawal that does not exceed the Level 1 threshold is unlikely, by itself, to exceed any of the 25 BOR presumptions. A permit application is not subject to any cumulative impact analysis if the proposed withdrawal satisfies the Level 1 Analysis. The District contends that the Level 1 thresholds are sufficiently low so that, when met, a proposed withdrawal is unlikely to significantly impact the water resources 26 of the area or exceed the Basis of Review presumptions. The District notes that modeling limitations and the varying hydrogeologic characteristics throughout the District make it difficult to conduct any cumulative impact analysis. In areas where the District determines that performance standards are not being met, the District says it will not apply the Level 1 Analysis. In fact, in some areas where the performance standards are not being met, the District says it has determined additional quantities of water should not be permitted, and it will apparently not apply any portion of the Design Aids, regardless of the size of the proposed withdrawal. There are no clearly articulated standards or guidelines for when the Design Aids will be applied and when they won't. As discussed in Section IX below, the introductory language to the Design Aids states that the Withdrawal Impact Analysis set forth therein will be applied to all applications. If the Level 1 Analysis of a proposed use reflects a potential drawdown in excess of the Level 1 thresholds, the proposed withdrawal is then evaluated under the Level 2 Comprehensive Analysis ("Level 2 Analysis") which is also Aids. described in Section C-1 of the Design 27 Under a Level 2 Analysis, the District seeks a more detailed understanding of the likely impacts of a withdrawal by modeling an applicant's requested withdrawal with other existing permitted contour withdrawals.First, a computer model is run to determine the one-foot drawdown 28 of the proposed withdrawal, i.e., the area where the projected drawdown of the aquifer's potentiometric surface is projected to drop by one foot or more as a result of the withdrawal. Then, all existing withdrawals within this contour area are added and the model is run again to assess what has been referred to in these proceedings as the "limited cumulative impact." The analysis is "limited" in the sense that the model does not depict the cumulative impacts of all withdrawals within the region. The results of the Level 2 Analysis are applied to the presumptions and performance standards in the BOR. If the projected drawdowns do not exceed the presumptions, the District will conclude that the performance standards of BOR Section 4.0 have been met. If it has site-specific evidence to the contrary, the District will disregard the presumptions. In addition, if the requested water use lies within a designated water use caution area (a "WUCA",) the application would be further evaluated in accordance with the particular rules adopted for the area. If the Level 2 Analysis projects a drawdown in excess of the presumptions, the District will proceed to examine site-specific conditions to determine whether or not the proposed withdrawal could nonetheless meet the performance standards BOR. contained in the 29 If a comprehensive site-specific analysis indicates that the proposed withdrawal will not comply with the performance standards, the District will consider the possibility that placing limiting conditions on the permit might enable the applicant to provide the reasonable assurances required by the Condition for Issuances. If limiting conditions are not possible, District staff will recommend denial of the permit. The applicant could then modify the withdrawal application or provide additional site-specific information that would otherwise provide the reasonable assurances required. The District's failure to adopt the Design Aids as a rule has been challenged in these proceedings. Additional issues pertinent to those challenges are discussed in Section IX below. In response to these contentions, the District points out that, in addition to computer modeling, it uses other tools to assess the potential impact of a proposed withdrawal, including historical changes in water levels in the vicinity of the withdrawal and on-site hydrological and environmental conditions. For permit renewals, the District also considers records that may be available from monitoring requirements on withdrawal amounts and water levels. While those factors are considered on a case- by-case basis, it is clear that the computer modeling and analysis reflected in the Design Aids is an integral part of the District's regulatory strategy. Regional Models With respect to regional problems, the Design Aids provide as follows: Regional Cumulative Impacts - In addition to assessing the cumulative impacts in the immediate area of withdrawals, as discussed above, regional cumulative impacts of withdrawals may be assessed through the use of regional analysis. This regional analysis may be aided by the use of regional models, or a District-wide model, to assess and predict stressed areas on a large-scale. [Emphasis added.] The District maintains that the regional cumulative impacts of withdrawals can best be addressed (when necessary) through the designation of a "water use caution area" ("WUCA") and the development of special rules for the area where regional water problems have been identified. In many of the areas where the District is concerned about the cumulative impact of water withdrawals, it has been trying to develop regional computer models. However, a regional groundwater flow model is not currently an accurate means of predicting localized impacts of a proposed water withdrawal. This approach has been followed in the northern Tampa Bay area, where management of the overall regional water withdrawal impact problem is currently under review as part of the plan. District's development of a regional management 30 The Northern Tampa Bay Regional Groundwater Flow Model (NTBRGFM) is an example of a regional groundwater flow model that has been developed and used by the District to formulate a regional regulatory strategy. It uses the MODFLOW code and seeks to simulate the actual hydrological system. It tries to account for the status of the surficial aquifer and two different layers of the Floridan Aquifer, and includes the confining beds that separate each aquifer. Information that may be programmed in the model includes data regarding net aquifer recharge from rainfall (after evaporation and runoff have been substracted), lateral groundwater flow, and artificial recharge resulting from irrigation. Data on transmissivity, hydraulic conductivity, and physical attributes of the aquifer system can also be utilized. While some of the parties argued there were problems or flaws with the NTBRGFM, the validity of that model is beyond the scope of this proceeding. The evidence established that a properly constructed and reasonably calibrated regional model is the best tool currently available to predict regional responses to groundwater withdrawal. There are limitations, however, on the usefulness of the information currently provided by regional models. Such models are incapable of simulating precise water levels on a specific basis. Moreover, alterations and the unpredictability of drainage and land use limit the usefulness of regional models in predicting changes to the surficial aquifer. Thus, such models are generally not helpful in reaching individual permitting decisions. An "integrated model" represents another step forward in the complexity of computer models, but such models are not currently in general use or utilized by the District for regulatory purposes. An "integrated model" - which attempts to account for both groundwater and surface water systems in its simulations - is a very complicated and costly model to develop and use. It requires tremendous amounts of high-quality data to be effective or practical. The District has contracted for the development of an integrated model, but it will be two to four years before sufficient data is acquired for the model to be useful. The precise manner in which this integrated model can be used on a cost-effective basis is unclear at this time. 4. Establishment of Minimum Flows and Levels in the District As noted above, Section 373.042, F.S., directs each water management district to establish minimum flows and levels ("MFLs") for surface water bodies, watercourses, and aquifers within their respective jurisdictions. While MFLs can provide a baseline against which the cumulative effect of water withdrawals can be measured, the establishment of a minimum flow or level for any particular water body or course can be an immensely complicated task. Moreover, the interdependency between groundwater and surface water - which varies greatly throughout the District and fluctuates as climate and hydrologic conditions change - is only beginning to be understood. This interdependency can greatly affect how MFLs can be used for regulatory purposes. While the scientific understanding of the systems is improving, the District has been required to regulate water withdrawals to address the needs of the population and industries that, in some cases, began using the resource well before the Water Resources Act of 1972 directed districts to establish consumptive use permitting programs. The statutory directive to establish MFLs was included in the Water Resources Act when it was enacted by the Florida Legislature in 1972. The District, like the other districts in the state, has not yet established MFLs for many watercourses and lakes, or any of the aquifers within its boundaries. Several parties have attacked the District's failure to establish MFLs on a comprehensive, district-wide basis for all aquifers and surface-water bodies. In response, the District points to the enormous diversity of hydrogeologic conditions throughout the District, the complexity and expense of the scientific effort necessary to establish MFLs, the extent and intricacy of the District's other regulatory duties, and the limited personnel and financial resources available to the District for the implementation of those responsibilities. The propriety of the District's prioritization of its regulatory duties during the twenty-something years since enactment of the Water Resources Act is beyond the scope of these proceedings. Instead, this proceeding is limited to an examination of whether the District's existing and proposed rules, including the proposed minimum aquifer level in the SWUCA, are within the scope of the District's delegated legislative authority. The extensive, technical and scientific evidence presented during these proceedings, does, however, confirm the immense complexity involved in the establishment of a minimum aquifer level. The District has made substantially more progress on establishing minimum levels for surface waters than it has in establishing minimum aquifer levels. More precise data is available on surface water fluctuations, because water volumes for lakes, rivers, streams, and springs are usually easier to calculate than groundwater volumes. Groundwater systems are much more amorphous and difficult to measure and monitor. Since 1977, the District has maintained a staffed program to adopt management levels for lakes throughout the District. The objective of the program is to identify a series of levels that represent a range of healthy fluctuations for each lake, which can be used for regulatory and resource management purposes. The lake management levels have been based upon historical lake-level fluctuations which generally factor out seasonal fluctuations and impacts from groundwater withdrawals. At the time of the 1989 Rule Revisions, the District had adopted "regulatory" or management levels for 334 lakes; at the time of hearing, minimum levels had been adopted for more than 370 lakes - - approximately eighty percent of the lakes in the District having more than twenty acres. The District has conducted studies on every major river within its jurisdiction, and regulatory minimum flows are in effect for three: the Little Manatee River (since 1975), the Peace River (since 1980), and the Manatee River (since 1984). Minimum flows have not been established for four impounded watercourses in the District that currently support major withdrawals: the Hillsborough and Braden Rivers, Shell Creek, and Big Slough Canal. Dams were built or impoundments established on these rivers years before the District had the authority to regulate water use. Thus, by the time the District first adopted rules governing water use in 1975, the public was already relying extensively on these systems. Ecological studies are currently being conducted on the Hillsborough and Braden Rivers, and Shell Creek Big Slough Canal and will be evaluated by the District as part of the renewal process for permits on those watercourses. With respect to streams and other flowing watercourses, the District has not adopted individual minimum flows by rule. The District has established in some water use permits allowable withdrawal rates that specify volumes of water that can be removed from a particular stream or other surface watercourse over various time intervals. The quantities allowed are typically expressed as "average daily" and "maximum daily" rates of withdrawal. In some of those permits, the District has also set regulatory minimum flows at which permitted withdrawals must cease entirely. Section 4.2.C of the Basis of Review includes a maximum ten percent reduction presumption for stream withdrawals. The District contends that this presumption, as implemented through the consumptive use permitting program, satisfies the requirements of Section 373.042 that it set minimum flow levels for streams. The ten percent threshold is intended to be measured against daily stream flow and is aimed at protecting the natural flow characteristics of streams. The stream flow presumption has been challenged by some of the Petitioners in this proceeding, including Charlotte and Pinellas Counties. The issues raised in those challenges are examined at length in Section VI. B. below. The proposed SWUCA minimum level is the first minimum aquifer level that the District has attempted to establish by rule. The District has imposed "regulatory" levels through the permitting process on the following five public-supply wellfields located in Hillsborough and Pasco Counties: Section 21, South Pasco, Cosme Odessa, Eldridge Wilde, and Cypress Creek. The intermediate aquifer poses some particularly difficult problems with respect to the establishment of a minimum level. Because there are a great number of zones and pockets within the intermediate aquifer, it is a practical impossibility to develop minimum levels for that groundwater at this time. To establish an appropriate minimum level for the intermediate aquifer, thousands of wells would have to be drilled in many different locations within a several-hundred-square-mile area to determine the location of various pockets of water and how they were interconnected. Similarly, the water table or surficial aquifer varies significantly throughout the District, making the establishment of a minimum level very difficult. Geography, Hydrology and Water Use in the District District Groundwater Basins and Aquifer Systems General Varying hydrogeology throughout the District influences groundwater location and accessibility. Along the coast, where a significant portion of the District's population is clustered, groundwater supplies are limited and primarily brackish. Differences in hydrogeological characteristics also influence the consequences of withdrawing fresh water from underground aquifers. Thus, a withdrawal in the northwestern part of the District will have significantly different impacts than the same size withdrawal in the southwestern part of the District. The Floridan Aquifer provides 90 percent of Florida's drinking water and underlies most of the state and a large portion of the Southeastern United States. The Floridan Aquifer is composed of porous rock (including limestone) that is laterally extensive throughout Florida and parts of Georgia, Alabama, and South Carolina. A hydrological interconnection can exist throughout a region of the Floridan Aquifer system where there is a continuous distribution of porous rock with no geological barriers to lateral groundwater flow. The location and depth of the Floridan Aquifer below ground varies greatly within the District. It is close to the land surface in the northern part of the District, but it lies 600 feet or more below the land surface and is overlain by a clay confining layer in the southern area. In some areas, particularly in the southern part of the District, the surficial and/or intermediate aquifers are found between the land's surface and the Floridan Aquifer. Where the Floridan Aquifer is close to the surface (e.g., in Pinellas, Pasco and Hillsborough Counties), a withdrawal reduction in groundwater from the aquifer can directly affect surface waters and wetlands. From southern Hillsborough County through Manatee County, the Floridan Aquifer runs far beneath the surface, and the intermediate aquifer, encased in rock and clay, forms above it. Rainwater that is absorbed into the ground can serve to replenish or recharge an aquifer. Variations in geology affect an aquifer's recharge capability and rate as well as the potential for contamination or adverse impacts to natural systems as a result of groundwater withdrawals. There are areas in the District where recharge is poor because the aquifer is either very deep or the overlying soil is composed of clay or some other 31 non-porous substance. In such areas, water withdrawn from a confined aquifer can be replaced by horizontal flow within the aquifer. Basins A groundwater basin is generally defined as an area within which all of the groundwater is derived from rainfall and recharge from that area. As a general rule, rainfall and recharge that occur on one side of a groundwater basin divide tend to travel in one direction, while rainfall and recharge on the other side of the divide migrate in a different direction. A withdrawal from one location within a groundwater basin can affect water resources throughout the entire basin. While the measurable change that a withdrawal has at any particular location within a basin depends on the proximity of the withdrawal site to that location, withdrawals from within a groundwater basin affect the overall condition and/or potential of the water resource. There have been some variations and resulting confusion in the identification and nomenclature of groundwater basins in the District. In most depictions of groundwater basins prior to 1987, the District's jurisdictional area was divided into the Northern West-Central Florida Groundwater Basin ("NWCFGWB") and the Southern West-Central Florida Groundwater Basin ("SWCFGWB"). The boundary between the basins was a groundwater divide that generally ran in a westerly direction from the potentiometric "high" in the Green Swamp (located in northern Polk County), through another high in Pasco County, to a point on the west coast that lies within northwestern Pasco County. This delineation is consistent with and apparently based upon the United States Geological Service (USGS) Regional Aquifer Systems Analysis ("RASA") depictions of the Floridan Aquifer system. This configuration has been utilized by the District in many reports over the years and has been reflected in some District illustrations as late as 1993. As part of its investigation of water resource problems in certain areas, in particular the eastern Tampa Bay region, the District has identified an additional groundwater divide based on persistent groundwater flow lines in the Upper Floridan Aquifer System. This divide extends in a southwesterly direction from the Green Swamp potentiometric high to Tampa Bay and essentially splits the SWCFGWB into the "Central Basin" - lying north of the persistent flow line and encompassing much of the area now designated by the District as the Northern Tampa Bay WUCA") Water Use Caution Area ("NTB 32 - and - the "Southern Basin" lying south of the divide and roughly coinciding with the area currently designated by the District as the Southern Water 33 Use Caution Area ("SWUCA"). The District's recognition and delineation of two distinct groundwater basins within the SWCFGWB is not without precedent. Similar basin boundaries have been used by researchers as early as 1980. Several parties have objected to the District's delineation of the Southern Basin as a distinct hydrogeologic groundwater basin, noting that the USGS does not depict or officially designate the area as a separate basin on its potentiometric surface maps. However, the USGS focuses on major regional basins and views the Floridan Aquifer only from a macro perspective. The failure of the USGS maps to specifically depict the Southern Basin does not obviate the results of the District's analysis of groundwater flow lines. Persuasive evidence was adduced at the hearing to support the District's analysis and its delineation of the Southern Basin. In sum, the District currently identifies three groundwater basins within its jurisdictional area: the Northern, Basins. Central and Southern Groundwater 34 Each basin represents a hydrologically distinct groundwater flow system of the Upper Floridan Aquifer, with limited groundwater flow across basin boundaries. The groundwater divides are not absolute barriers to flow. Changes in potentiometric surface levels can affect the location of a basin divide and, absent a specific geologic barrier, the boundaries of a groundwater basin can fluctuate or shift with changing conditions. Theoretically, a withdrawal of water from the Central Basin could impact potentiometric levels within the Southern Basin. However, to have a noticeable impact, the withdrawal would have to be fairly significant and located close to the basin divide. The Central Basin is less confined than the Southern Basin and is generally described as "semi-confined." In other words, the groundwater aquifers are often directly connected to the water table and to surface water bodies. Consequently, withdrawals of groundwater in this area tend to impact wetlands and other surface water features more immediately and noticeably than withdrawals in the Southern Basin where the Floridan aquifer is more confined. While there is some interconnection between the Floridan Aquifer and the intermediate and/or surficial aquifer in certain areas of the Southern Basin, the District's studies indicate that the linkage is isolated and sporadic. Aquifers and Surface Water With regard to the quantity and availability of groundwater within its jurisdiction, the District completed initial "Groundwater Basin Resource Availability Inventory" reports on all but two of the counties within its region by 1988. The investigations undertaken in connection with this inventory helped the District to identify certain problem areas as discussed in Section III-C below. The District continues to assess and 35 update the report data. Within the District's boundaries, there are thirteen major rivers (five of which provide public water supply) and approximately 1,800 lakes measuring at least 10 acres. The productive groundwater system in the District consists primarily of the following three aquifers in descending order: the surficial, intermediate, and Upper Floridan. The depth of the aquifers varies greatly throughout the District. In some areas, particularly in the northern and eastern parts of the District, there is no intermediate aquifer. Different zones or pockets of relatively consistent geology have been identified for the intermediate and Floridan Aquifers in various areas of the District. The surficial aquifer extends downward from the land surface to the top of the upper confining bed of the underlying aquifer system. The surficial aquifer provides a base flow of water to rivers, lakes and streams and acts as a repository for water that is required for evapotranspiration and recharge to the underlying artesian aquifers. Discharge from the surficial aquifer occurs by seepage into lakes and streams, evapotranspiration, downward leakage into the underlying aquifers, and pumping. Lakes and wetlands are part of the surficial aquifer system, which is an important source of recharge to the Floridan Aquifer. In areas where the aquifers are not well- confined, groundwater withdrawals from the Floridan Aquifer can induce the leakage of water from the surficial aquifer into the Floridan Aquifer, thereby lowering lake levels and/or reducing surface water flow. The intermediate aquifer system consists of all water bearing units and confining beds between the overlying surficial aquifers and underlying Floridan aquifer systems. Basically non-existent in Pasco County and sporadic along the Highlands Ridge, the intermediate aquifer system is used in varying degrees as a source of water in the Southern Basin. The formation begins about 15-20 miles south of the Pasco-Hillsborough County line, and the thickness of the water-bearing portion increases to about 300 feet at Charlotte County's southern 36 boundary. The Upper Floridan Aquifer System ("UFAS") is the most highly developed and productive limestone reservoir in west- central Florida, and is currently the lowest-cost source of high quality fresh water in southwest Florida, supplying water for public consumption, agriculture and industry for much of the 37 District, except in Charlotte County and the coastal area of Sarasota County. The UFAS consists primarily of porous limestone and dolomite units. As noted above, the degree of confinement of the UFAS changes between the Central and Southern Basins. The UFAS in the Central Basin is less confined with much greater connection between the UFAS and other aquifers and surface water features. The increasing confinement in the south is due to the thickening of the confining bed, the occurrence of the intermediate aquifer and the presence of a confining unit separating the intermediate from the UFAS. Generally, the base of the UFAS is the top of the middle confining unit of the Floridan Aquifer, which is sometimes called the evaporites. This relatively impermeable confining layer separates the overlying fresh water portion of the UFAS from the lower Floridan Aquifer which underlies much of the UFAS. The lower Floridan Aquifer is comprised of highly saline brine and is not a source of groundwater supply. While technologies exist for treating a wide range of low-quality water to drinking water standards, treatment becomes increasingly expensive as water quality falls. Water quality in the UFAS is generally very good above the evaporites, but it deteriorates at the base of the UFAS and toward the coast. As groundwater moves down-gradient in the UFAS, limestone, dolostone and gypsum units are dissolved. Groundwater near the bottom confining layer of the Upper Floridan has a high concentration of sulfates and total dissolved solids (TDS). In the coastal areas, chloride-rich seawater is located beneath the sulfate-rich groundwater, and water quality decreases with depth from the fresh, bicarbonate-rich groundwater above, through sulfate-rich saline water, to chloride-rich water of seawater origins. In other words, the saline water consists of a layer of mineralized water characterized by sulfate concentrations that are much higher than chloride concentrations. Seawater, which possesses chloride concentrations up to seven times greater than sulfate concentrations, exists below the mineralized water in the coastal areas. In the inland areas, seawater is generally not present in the UFAS but there is poor quality, highly mineralized water at the base of the aquifer. Chloride levels in the parts of the UFAS that have been completely flushed with fresh water are generally about 25 mg/liter. Seawater contains chloride concentrations of approximately 18,500 mg/liter and TDS levels (which include chloride, sulfate and other minerals) of approximately 35,000 mg/liter. The coastal water-quality transition zone between the fresh water and saltwater is interpreted by the District to begin at a chloride concentration of 1,000 mg/liter. Chloride concentrations above 1,000 mg/liter are non-potable and cause crop damage. The saline water which underlies the fresh water in the Floridan Aquifer is connected with the Gulf of Mexico through the aquifer system and has a relatively constant head (of pressure) nearly equivalent to sea level. The interface between the fresh and saline waters is not abrupt or sharp; it occurs over distances of one to several hundred feet. In other words, a zone of transition in water quality exists between the fresh and saline waters. When the pressure in the aquifer is reduced in the coastal areas, the transition zone between fresh water and saline water shifts. This movement of the interface causes what is commonly known as saltwater intrusion. The nature of this problem in the District is explored further in Section III C-1 a. below. Aquifers, such as the UFAS in west central Florida, that were filled with saline water during some geologic period(s) in the past can contain "connate water." Connate water was entrapped in sediment or the pore space of rock after its original deposition or the most recent retreat of the sea. Connate water is easily recognized by its chemical signature. Some of the parties have suggested that connate water explains much of the poor water quality currently being reported in the Southern Basin. The more persuasive evidence established that connate water is not present in significant volumes in an aquifer, such as the Southern Basin, that is interconnected and has experienced a high degree of flushing. Potentiometric Surfaces In a confined aquifer, the water in the pores of the rock is pressurized. The potentiometric level or surface at a particular point in an aquifer represents the total head in the aquifer at that point, and is made up of both the pressure head and the elevation head. The pressure head is a determination based upon the height to which a column of water would rise in a tightly confined well. The elevation head is a measure of water surface in relation to sea level. A potentiometric surface map consists of contour lines charted from well measurements of an aquifer in a particular geographic area. Potentiometric surface maps do not portray the distribution of pressures in the aquifer; rather, they depict the distribution of its total head, which is a reflection of the energy available to produce the movement of water. The earliest map of potentiometric surface levels in the District was prepared by Stringfield in the 1930's. In predevelopment " 1980, R.H. Johnston and others prepared a " 38 potentiometric surface (or "water level") map of the Upper Floridan aquifer system based upon the earlier Stringfield Map modified to reflect available information on changes that had occurred as a result of pumpage. While it is impossible to completely and accurately determine predevelopment groundwater levels, the more persuasive evidence established that the Johnston Map was based on the best available data and is a reasonable and the most reliable depiction of predevelopment conditions of the UFAS within the District. The USGS has a well-developed system of monitor wells for the UFAS and utilizes data from the wells to prepare potentiometric surface maps. It has contracted with the District to prepare potentiometric surface maps for the District twice each year. One map is based upon measurements taken in May, following what typically represents the dry season and the time of heavy agricultural pumping. The second map is prepared in September, following completion of the rainy season when withdrawals from the Upper Floridan are typically low. Aquifer Characteristics For the most part, in the areas pertinent to this proceeding, the UFAS is generally free of impediments to the lateral movement of water within the aquifer, although there are variations in District hydrogeology that influence how persistent flow patterns develop. Groundwater flow in the UFAS originates as rainfall that percolates downward. "Leakance" is a measure of the ease with which water flows through a confining unit into an aquifer. "Leakage" or "recharge" - the actual flow of water through the confining unit - can occur naturally when a gradient exists, or can be induced by the pumping of groundwater beneath the confining unit. In areas of high recharge, rainfall that is not lost to evapotranspiration eventually recharges the aquifer. In areas where there are subsurface confining layers reducing recharge capability, significant amounts of rainfall become run- off into streams or other surface waters. In a low-recharge area, such as eastern Tampa Bay, horizontal flow is the primary way in which water withdrawn from the aquifer is replaced. Depending on the head differentials, that flow can be saline water from the coast or fresh water from the east. A drop or reduction in the potentiometric surface of an aquifer can result in differing hydraulic heads among the various aquifers. Depending upon the geology at a particular site, the aquifers will tend to equilibrate, which can result in downward leakage (induced recharge) from the overlying aquifers resulting in lower amounts of surface water run-off. Thus, a decline in the potentiometric surface can affect streamflow and/or lake levels by increasing the potential for downward leakage from the overlying aquifers. The direction of groundwater flow within the UFAS is affected by changes in potentiometric levels within the aquifers. As the hydraulic gradient (i.e., the amount of fresh groundwater moving towards the coast) decreases, the saltwater transition zone moves vertically upward in the aquifer and is reflected by the inward or landward movement of the saltwater- freshwater interface. Lower potentiometric surface levels can also cause the deterioration of inland water quality due to the upward movement of chlorides and sulfates from the poor-quality mineralized water that lies at the base of the Floridan Aquifer. Water withdrawals from deep wells above the zone of mineralized water can produce an effect called "upconing," where the low- quality water is drawn up into the freshwater aquifers. When groundwater withdrawals exceed groundwater recharge, upconing can increase. "Transmissivity" is a key aquifer characteristic that influences how a groundwater withdrawal-induced drawdown in the potentiometric surface is transmitted throughout a confined 39 aquifer. Groundwater withdrawals at different locations can create very different cones of depression depending on transmissivity. Although wide variations exist throughout the Floridan Aquifer, it is generally considered a very transmissive unit within the District with measurements in the "high" range for measured aquifers worldwide. Partly because of its high transmissivity, the Southern Basin equilibrates relatively quickly. Thus, after heavy groundwater pumping in May, lowered potentiometric levels recover significantly by September, when the amount of pumping is significantly lower and the rainy season has just concluded. 2. Water Use in the District Upon implementation of a water use permitting program in 1975, the District began the process of converting common law uses to permitted uses. Owners of domestic wells that serve individual households were not required to obtain permits. See, Section 373.219(1), F.S. Most other users were required to obtain a WUP in order to continue the use. As of the final hearing in this case, the District had issued 10,230 permits.40 Approximately 93 percent of the current outstanding permits are for quantities less than 0.5 MGD. These permits, which are characterized under the District's 41 existing rules as "general permits," account for about 22 percent of the total quantity of permitted water withdrawals District-wide. The remaining 7 percent of the permits account for 78 percent of the total quantity permitted. In fact, roughly 52 percent of the total permitted amount can be attributed to one percent of the permits. Subsection 373.236(2), F.S., authorizes the issuance of a water use permit for up to fifty years for certain public supply purposes. For other uses, permits up to twenty years are authorized. See, Section 373.236(1), F.S. Because the District has been obligated to process permit applications while it was gathering data and accumulating information regarding the condition and interactions of the various resources, the District has generally issued permits for shorter periods, in part so that it retains flexibility to adjust to conditions as they become known. Under the current rules, the District generally issues a new permit for the withdrawal of 0.5 MGD or more for a period of 6 years or less. For a withdrawal of less than 0.5 MGD or for the renewal of an existing use where no problems or difficulties have been encountered during the prior term, permits for up to 10 years are typically issued. The District's rules and the Basis of Review provide sufficient flexibility to allow issuance of a permit for a longer term when the facts warrant it. "Permitted quantity" refers to the maximum amount of water that a user is allowed to withdraw under a District- issued permit, assuming no emergency or other restrictive conditions at the time of withdrawal. Due to a variety of factors, permitted quantities and actual water use can be substantially different figures. Such a discrepancy is 42 particularly common with agricultural permits. In 1989, the District began work on a "Needs and Sources Study" -- a major water supply research and planning project. The most recent draft of this study available at the hearing was dated January 1992. The District anticipates updating the study every two years. The study predicts water use trends for all major users in the District for the ensuing thirty years. According to the Needs and Sources Study, total freshwater use within the District for 1990 was estimated to be over 1625 MGD. The Study estimates that groundwater presently supplies 90 percent or more of current water supply demands in the District. Some of the parties have challenged the accuracy of the data on actual water use within the District and in particular, the Southern Basin. The evidence established that the District utilized the best information available and that the information provides a reasonably accurate estimate of actual water use. Precise data on actual water use is not available because only permit-holders withdrawing large quantities of water have historically been required to monitor their use. Under the District's existing rules, all water users permitted to withdraw 0.5 MGD (500,000 gallons) of water or more must submit metered 43 pumpage records to the District. Permittees who pump less than 500,000 gallons per day are not required to meter their pumpage except permit-holders who (1) irrigate pasture land or (2) are located in a Water Use Caution Areas ("WUCA"), and are permitted day. for at least 100,000 gallons of water per 44 Prior to October 1989, agricultural operations 45 were exempt from metering requirements. Metered records of actual agriculture use are now becoming available. Consequently, the accuracy of actual use estimates within the District has increased significantly in the last few years. No persuasive evidence was presented to establish that the lack of totally accurate historical water use data is a basis for rejecting or disregarding any of the District's studies or analyzes. The District's estimates are the best information available. Water use is sometimes classified into the following broad categories: agricultural; industrial; mining; public supply; and recreational. During the period from 1975 through 1995, water use in the District increased for public supply and agriculture (primarily citrus and tomatoes), but decreased for industry 46 (principally phosphate mining). Public supply has been the fastest-growing category of the District's water uses, more than doubling since the 1970's. Agriculture is a major contributor to the District's economy and a large number of agricultural operations are located in the Southern Basin. The District has worked for several years with representatives of the agricultural community to determine and implement more efficient irrigation techniques. The District is proposing water conservation measures for farms in the SWUCA that will involve the increased use of efficient water- delivery systems such as "drip" irrigation, which delivers water to crops through a flexible, perforated pipe. Compared to traditional irrigation methods, drip systems can be relatively expensive to install and maintain. The Needs and Sources Study forecasts that district water demands will rise to nearly 2400 MGD by the year 2020, with the largest user (agriculture) requiring about 1050 MGD, or about 44 percent of the total estimated demand based upon the efficiencies existing at the time of the study. While the District projects that water conservation and greater use of reclaimed wastewater and desalinized water will reduce dependence on groundwater and surface waters in coming years, the Needs and Sources Study anticipates that groundwater will remain the primary source of fresh water. The projected increases in demand heighten concerns over the impacts of groundwater withdrawals. The District is faced with the immense and interrelated responsibilities of determining the nature and extent of the existing problems, developing adequate data and understanding of the systems and formulating long term management strategies while administering the current regulatory program. The District already characterizes the current overall condition of water resources within its jurisdiction as "stressed." As discussed below, the District has been examining particular problem areas over the past several years. Effects of Groundwater Withdrawals in the District and the District's Efforts to Address Them. 1. Overview The coastal areas of Hillsborough, Manatee and Sarasota Counties have been a source of concern since the mid-to- late 1980s because of deteriorating water quality in wells drilled into the UFAS. As discussed in more detail below, the District's concerns in this region led to the initiation of the Eastern Tampa Bay Water Resources Assessment Project ("ETB WRAP") and the establishment of the Eastern Tampa Bay Water Use Caution Area ("ETB WUCA"). To the east of Hillsborough County, potentiometric pressures of the UFAS in southwest Polk County showed dramatic decreases throughout the 1960s,47 reaching a low point in 1975 in 48 the area around Bartow. Along the central and southern portions of the eastern boundary of the District is an area commonly referred to as the Highlands Ridge (the "Ridge" or "HR"), which encompasses 49 portions of Polk and Highlands Counties. The Highlands Ridge consists primarily of high sandy areas and a large number of lakes. There tends to be a great deal of interconnection between the groundwater system and surface waters in this area. Lake levels in this area have been in a general state of decline since the late 1950s. Some Petitioners have suggested that many of the problems are the result of accrued deficits in annual rainfall. The more persuasive evidence established that declines in water levels cannot be attributed solely to rainfall. Analysis of water levels, rainfall and pumping indicate that water level declines (including seasonal fluctuations) are, to a large extent, related to increased groundwater pumping. 2. Saltwater Intrusion and Upconing In a marine coastal environment, freshwater aquifers are recharged landward of the coastline. The terrestrial groundwater then moves from the inland region of higher potentiometric pressure to the coast's lower potentiometric pressure and is discharged. The denser seawater remains below the freshwater as it discharges along the sea floor, creating a wedge of seawater beneath the fresh, terrestrial groundwater. Where the freshwater and saltwater meet and mix, a transitional zone or "interface" is formed. The coastal area where fresh groundwater discharges is called the "discharge zone," and is located on the sea floor for an unconfined aquifer or at the base of the unit(s) immediately above a confined aquifer. At the discharge zone, dilute seawater is forced upward by the denser, undiluted seawater, producing a flow of seawater that circulates within the interface where it becomes further diluted and discharged above with freshwater. As groundwater at the base of the aquifer flows towards the coast, it skims along the evaporite layer dissolving minerals and producing a sulfate-rich water. Thus, higher sulfate concentrations are often found near the coast due to the regional freshwater flow pattern. Saltwater intrusion can occur as a result of the landward movement of saline water from the marine environment or from upconing (upward movement) of sulfate water from the base of the aquifer. The two sources of saline water can be distinguished by monitoring the ratio of sulfates to chlorides. In seawater, the ratio is constant, but water from the aquifer's base has a much higher ratio of sulfates to chlorides. Protecting the quality of the resource requires consideration of the movement of both types of water. The District monitors sulfate-to-chloride ratios through monitor wells to understand better the nature, extent, and movement of saltwater intrusion. Pressure differentials determine the rate and direction of the saltwater transition zone's movement. Saltwater intrusion will occur when groundwater heads are lowered, even if they remain above sea level. In the Southern Basin, saline water intrusion into the freshwater of the UFAS is caused by a decline in hydraulic potentionals resulting from groundwater withdrawals from the UFAS. front. Due to geologic and transmissivity differences, the saltwater intrusion zone does not move as a straight or uniform 50 Within six to ten miles of the coast, the chloride-rich portion of the transition zone has approximately one degree of slope and almost always appears within the Avon Park Formation of the UFAS. Because of the high transmissivity of the fractured dolomite, this formation is particularly susceptible to saltwater intrusion and most of the interface movement is in this formation. The upward and landward movement of this interface ("saltwater intrusion") causes the lens of freshwater in the aquifer in areas to be replaced by nonpotable water. The movement of the interface (which lies closer to the surface near the coast) has been reflected by deteriorating water quality in wells located in southern Hillsborough and central Manatee Counties. Since it leads to water quality deterioration, some parties contend saltwater intrusion should be treated as a pollution source. Saltwater intrusion is a long term problem that has resulted from long-term pumpage and while it is a matter of great importance that demands attention, the District has calculated that an immediate "fix" is not necessary or even possible without drastic reductions in changes reductions in pumping. The District considers saltwater intrusion a long-term management issue. The District is concerned not only with saltwater intrusion that is currently occurring, but also with the existence of conditions in the potentiometric surface that encourage further and potentially more serious intrusion. The evidence established that changes in potentiometric surface levels affect saltwater intrusion, but the actual inland movement of the saltwater interface occurs over decades. In other words, while potentiometric levels will equilibrate quickly throughout a basin, the saltwater transition zone moves at the rate of groundwater velocity. Thus, if all pumping within a basin were halted, the potentiometric surfaces throughout the basin would recover relatively quickly, but the saltwater transition zone would take longer to return to predevelopment conditions. Consequently, the implementation of any strategy to slow saltwater intrusion should extend over a sufficient period of time to ensure effectiveness of the program. With the first withdrawal of water from the Floridan Aquifer in the SWUCA, saltwater intrusion theoretically began. Man's decision to utilize water from the Floridan Aquifer System unavoidably altered the system from its "predevelopment" condition. Management of saltwater intrusion is critical to protection of the District's water resources, particularly in the southern portion. The difficult task is balancing the use of the resource with the need to protect its long-term health -- a test of man's scientific knowledge combined with critical policy choices. The District's ability to implement an appropriate regulatory scheme is complicated by the heterogeneity of the areas involved and the practical and financial constraints of essential scientific analysis. In a confined region such as the Southern Basin, managing saltwater intrusion can be accomplished only by reducing and/or regulating groundwater withdrawals. 3. Development of Water Resource Assessment Projects and Water Use Caution Areas (Highlands Ridge, Eastern Tampa Bay, Northern Tampa Bay, and Southern) WRAPs As noted above, during the 1980s, the District initiated and completed "Groundwater Resource Availability Inventories" for most of its jurisdictional area. The purpose of these inventories was to identify areas where pumping was excessive or projected to become excessive and try to quantify the amount of water available for allocation. The inventories were helpful in identifying certain critical areas. The District Governing Board directed staff to conduct comprehensive hydrogeologic evaluations, referred to as Water Resource Assessment Projects ("WRAPs"), in the areas of greatest concern. The District identified the WRAP areas based on a "number of factors including hydrogeologic regime, types of impacts observed, and profile of water use and future growth". The WRAPs sought, among other things, to provide the Board with scientific and technical information necessary to assess the amount of water that could be safely withdrawn in the particular areas. Four WRAP areas were initially identified: Eastern Tampa Bay, Northern Tampa Bay, Highlands Ridge, and the Peace River Valley. The District's assessment of water resource conditions in Eastern Tampa Bay, including Manatee and southern Hillsborough Counties, began in approximately 1987 and was completed in approximately 1992. The results of the project were presented to the Governing Board over a five-month period. A written report was completed in March, 1993, and is known as the ETB WRAP. In the Northern Tampa Bay ("NTB") area, where surface waters are more directly affected by groundwater withdrawals, a lowering of water levels prompted the initiation of a WRAP in approximately 1988. A WRAP for the Peace River basin (which flows through Polk, Hardee and DeSoto Counties and discharges through Charlotte Harbor) was also begun in the late 1980s. The status of the Peace River WRAP is not clear from the record and is beyond the scope of this proceeding. Apparently, the data and information developed as part of some of the other studies, including the ETB WRAP, prompted the District to focus its efforts on development of a strategy for the entire Southern Basin. Before the District began the ETB and NTB WRAPs, it had begun studying problems along the Highlands Ridge. An initial study of lake level declines along the Ridge was conducted in 1978-80 (the "Ridge I report"). A subsequent study, the "Ridge II Report" was initiated around 1985-86, after the District observed a continued drop in lake levels in the years following the completion of the first report. The Ridge II Report was completed in 1989. Those reports documented a continuing decline in lake levels along the Ridge. A WRAP was subsequently initiated for the Highlands Ridge. At the time of the hearing, the HR WRAP had not been completed. Several parties have suggested that the SWUCA Rules are premature, since the HR WRAP and other studies are still ongoing. The District believes that it has developed sufficient information to proceed with the proposed regulatory strategies which are embodied in the SWUCA Rules. The District anticipates continued study of the entire Southern Basin throughout the foreseeable future. However, based upon the information being gathered, the District concluded it could not wait until the completion of all the studies before taking action to protect the water resources. The more persuasive evidence supports the District's conclusion that there is adequate information available to proceed with the implementation of a regulatory strategy for the Southern Basin. However, as discussed in Sections IV and V below, there are some problems with the proposals set forth in the SWUCA Rules. WUCAs When the District determines that an area has critical water supply problems or that such problems will occur within the next twenty years, it designates the area a water use caution area, commonly called a WUCA. On June 28, 1989, the District established the Northern Tampa Bay Water Use Caution Area ("NTB WUCA"), the Eastern Tampa Bay Water Use Caution Area ("ETB WUCA"), and the Highlands Ridge Water Use Caution Area ("HR WUCA") because of its growing concerns regarding wetlands impacts, saltwater intrusion and lowered lake levels. The NTB WUCA includes portions of Hillsborough, all of Pinellas and part of Pasco Counties. The ETB WUCA includes portions of Hillsborough, Manatee and Sarasota Counties. The HR WUCA includes portions of Polk and Highlands Counties. Several work groups were formed by the District in connection with the declarations of these WUCAs. In addition, various advisory committees established by the District for various user groups including public supply and agriculture, gave the District feedback during the process leading up to the declaration of the WUCAs. The WUCA declarations were part of the Board's three-stage strategy to develop short mid- and long-term solutions to water resource problems in each of the study areas. Short-term protection measures were prescribed within the WUCA declarations. Mid-term measures -- including demand management, metering requirements and designation of a "most impacted area" for ETB 51 (described in BOR Section 7), were subsequently completed. According to the District, final, long-term remediation and resource protection measures for ETB and Highlands Ridge are embodied in the proposed SWUCA Rules. NTB As noted above, a WRAP was initiated for the NTB area in the late 1980s and the area was designated a WUCA in 1989. The status of the WRAP report and the nature and extent of the problems in the NTB area are beyond the scope of this proceeding. Certain developments in the regulation of that area are, however, relevant to note. First, because of perceived impacts to wetlands and record low water levels in lakes near wellfields in the NTB area, the District has taken some steps to reduce groundwater pumping in an effort to prevent further adverse impacts to the natural systems. On March 1, 1994, the District issued two Declarations of Water Shortage, which sought to limit public demand and reduce pumping at certain wellfields in the northern Tampa Bay region. In June of 1994, the District issued an Emergency Water Shortage Order requiring West Coast to reduce groundwater pumping at certain wellfields in NTB. In addition, the District sought to reduce the permitted quantities at some of the wellfields. The Emergency Water Shortage Order and permit renewals are subjects of separate ongoing litigation. Highlands Ridge The Highlands Ridge was not originally included in the District, but was added in the late 1970s upon recognition of a persistent flow-line which ran southward from the Green Swamp parallel with and along the length of the center of the Ridge itself. The HR contains land both east and west of the persistent flow-line. The Highlands Ridge is an area of approximately 750 square miles and is characterized by discontinuous ridges separated by broad valleys. On the eastern side of the Highlands Ridge, surface water drains to the Kissimmee River and on the western side it drains to the Peace River. The Highlands Ridge is characterized by numerous sinkhole lakes that resulted from dissolution of the underlying limestone and dolomite and ultimate collapse of the Karst terrain. Sinkhole features can provide paths for water to flow from the lake/surficial aquifer system to the underlying Floridan Aquifer. Lake levels in the Highlands Ridge have been declining since the late 1950s. Long-term well hydrographs from this area show a downward trend in annual peak water levels and an increase in seasonal water level fluctuations since the 1960s. The period of decline coincided with a period of low annual rainfall and increasing groundwater withdrawals for agricultural irrigation, mining, and public supply. A multitude of factors can affect the level of a lake. Groundwater withdrawals are only one of the influencing factors, and its significance can vary greatly from lake to lake. Changes in surface water drainage can play an important role. Contrary to the suggestion of some Petitioners, the long-term declines in lake levels cannot be attributed solely to a reduction in local rainfall or to an increase in sinkhole activity that breaches the underlying semi-confining layer. The District's Ridge II Report concluded that water use outside the Ridge area contributed to declines in aquifer potentiometric levels along the Ridge, which in turn contributed to lower lakes levels. The more persuasive evidence supports the District's conclusion that some lakes on the Highlands Ridge have been significantly harmed by groundwater withdrawals from the UFAS. Over the last five years, lake levels along the Highlands Ridge have improved somewhat as groundwater pumping has decreased in the area. In addition, higher-than-normal rainfall in recent years has contributed to higher lake levels. Although September wet-season levels have been generally maintained since the 1980s, they have not recovered to historical levels recorded prior to 1964. Accordingly, the potential for induced recharge from the surficial aquifer to the UFAS remains higher than under predevelopment conditions with the net effect being decreased water levels in lakes and the surficial 52 aquifer. It should be noted that, during the period of recovery, the potentiometric surface of the UFAS has been close to the proposed minimum aquifer level in the SWUCA Rules, thus indicating that the minimum level will help prevent further declines in the lake levels. ETB The primary concern addressed in the ETB WRAP was a deterioration in water quality, especially in the area along the coast. There was also concern that declining water levels could lead to well failures or increased pumping costs for existing wells. Aided by the District's utilization of the expertise of hydrogeologic consultants, the ETB WRAP included a review of existing data and information, analysis of data, expansion of the existing data network, groundwater flow and transport model development and calibration, analysis of cause and effect relationships, and simulations of historic and potential withdrawal scenarios. Peer review for the ETB WRAP report was provided by District staff, U.S. Geological Survey professionals, and professors of geology and hydrogeology from the University of South Florida. The District undertook expensive and extensive efforts to collect and analyze water quality data from the field, including data from existing monitor and production wells, supplemented by surface exploration and the construction of new monitor wells. Some Petitioners have claimed that the quality and reliability of the data collected vary greatly because of the different sources and that not all of the data supports the District's conclusions. The heterogeneous nature of the aquifer naturally results in great variation of water quality in wells with similar construction characteristics, pumping rates, and location. Nonetheless, by analyzing numerous wells over time, trends in water quantity can be observed. The more persuasive evidence established that the District's efforts to assimilate and analyze field data were well planned, scientifically and statistically sound, and reasonably framed. The District's efforts are ongoing as reflected by the Supplemental Investigations Report discussed below. It is expected that the continuing accumulation of data will provide further understanding of the condition, changes and functioning of the groundwater system. The ETB WRAP determined that there had been significant lowerings of the potentiometric surface levels in the Southern Basin since predevelopment, and these changes were directly related to groundwater pumping. Some of the specific findings are discussed in Section IV below. The ETB WRAP concluded that reduced groundwater levels resulting from pumpage within the entire Southern Basin contribute to several problems: 1) the saltwater intrusion problem in the coastal region of the Basin; 2) reduced well efficiencies as a result of pumps being required to lift groundwater from lower depths; 3) reductions in spring-flow and stream-flow; 4) wetlands impacts; and 5) lowered lake levels in Highlands and Polk Counties. In addition, the ETB WRAP concluded that the UFAS in the Southern Basin was a highly transmissive, well confined aquifer. Because it is such an interconnected system, groundwater levels at any location in the Southern Basin were found to be a function of the cumulative groundwater withdrawals occurring throughout the Basin. Accordingly, the ETB WRAP concluded that the "safe yield" for ETB was partly a function of the amount of water withdrawn from other areas within the groundwater basin. The ETB WRAP sought to develop the technical information necessary to formulate a management strategy to halt saltwater intrusion along the coast. One of the principal objectives was to develop tools or mechanisms for the Board to utilize in regulating water use. As part of that effort, the District sought to develop a "safe yield" for the region. "Safe yield" is not defined in Chapter 373 or the District's rules. It is commonly understood as being the level of use which can be sustained without causing unacceptable effects. In this regard, safe yield is comprised of both hydrologic and socioeconomic components. The hydrologic element involves the determination of the adverse impacts associated with the withdrawal of specific quantities of water. The socioeconomic element involves the determination of what is an unacceptable adverse impact. During the ETB WRAP process, unacceptable impact was considered to be any further landward movement of the saltwater - freshwater interface. In other words, "safe yield" in this context was viewed as the quantification of the amount of water that could be withdrawn from existing wells in the ETB WUCA without producing significant additional movement of the saltwater-freshwater transition zone. As part of the ETB WRAP, two "safe yield" scenarios were analyzed for the region. The first was to reduce groundwater withdrawals to 100 MGD in the Eastern Tampa Bay WUCA; the second was to reduce groundwater withdrawals in the Eastern Tampa Bay WUCA to 150 MGD and limit groundwater withdrawals in the MGD. remainder of the Basin to about 500 53 To arrive at these safe yield quantities, the District utilized a groundflow model for the region. Using an assumed pumping distribution based on existing withdrawals, the flow model predicted future potentiometric surfaces for the UFAS in the area. Model scenarios were run for 50 year periods with pumping quantities reduced until the models did not project any additional movement of the saltwater interface. The modeling results confirmed that if pumping continued to increase as projected by the Needs and Sources Study, movement of the saltwater interface would affect water quality in wells further inland. In fact, the studies indicated that saltwater would continue to replace fresh water in the aquifer if 1989 water use levels continued in the future. When presented with the results, the District decided that the potentiometric levels and projections of continued movement of the saltwater interface associated with 1989 pumping levels would result in significant harm to the resource and were unacceptable. As discussed in more detail in Section IV below, the District ultimately selected the potentiometric surfaces that occurred in 1991 as the proposed minimum level for the SWUCA. The 1991 levels reflect a reduction in groundwater pumpage from 1989 of approximately 30 percent within the ETB WRAP area and approximately 15 percent throughout the SWUCA. The 30 percent/15 percent reductions are roughly comparable to the safe yield proposal in the ETB WRAP. The approach, results, and conclusions of the ETB WRAP have been evaluated by several independent experts. In addition, the ETB Computer Model Report has had extensive high level peer review. Comment and input from reviewers regarding the groundwater quality and trend analysis in the ETB WRAP led to further analysis of existing data utilizing two different statistical methods. These further analyses confirmed that there was a deterioration in water quality as measured by chlorides, sulfates and total dissolved solids in the UFAS. The SWUCA Declaration of the SWUCA The information developed as part of the ongoing ETB and HR WRAPs led the District to conclude that the Floridan Aquifer within the Southern Basin was an highly transmissive and well-confined aquifer, with groundwater withdrawals anywhere in the Basin contributing to overall resource conditions in the Basin. The District analyzed the information and determined a need to develop a regulatory strategy for the Southern Basin as a 54 whole. In October 1992, it created the Southern Water Use Caution Area or SWUCA. The declaration of the SWUCA was meant to be an interim step while more information was obtained. The boundaries of the SWUCA were developed by the District based upon a rough approximation of persistent flow lines within the UFAS. Encompassing nearly all of the Southern Basin and including most of the District south of the Hillsborough River, the SWUCA consists of about 5,100 square miles, and includes all of DeSoto, Hardee, Manatee, and Sarasota Counties, and portions of Charlotte, Highlands, Hillsborough, and Polk Counties. The SWUCA includes those portions of the District previously designated as the ETB WUCA and the HR WUCA, as well as land areas that lie between those two WUCAs (the "non-WUCA SWUCA"). One of the fundamental conclusions reached by the District (and a major premise behind the SWUCA Rules) is that the entire area should be treated as a linked groundwater basin even though geologic differences exist throughout. For example, there is greater interconnection between the surficial and Floridan Aquifers in the Highlands Ridge area than in Manatee County. In addition, the transmissivity and recharge characteristics vary throughout the SWUCA. Despite these differences, the District has concluded that the impacts of withdrawals from anywhere within the Southern Basin permeate throughout the Basin. While several Petitioners have challenged those conclusions, the more persuasive evidence established that declines in the Upper Floridan's potentiometric surface at a particular location result not only from localized water use, but also from regional water use. Although shifts in the location of pumping can alter the measurable impacts in certain locations, such changes do not refute the existence of regional impacts as well. For example, water use reductions by industry along the Highlands Ridge have been reflected in increased surface levels in some neighboring areas. SWUCA Management Plan Upon declaration of the SWUCA, the District Board directed staff to develop a management plan for water use permitting in the area. As part of that effort, the Board authorized the formation of a SWUCA Work Group. The SWUCA Work Group included representation from agricultural, mining, industrial, local government (public water supply), environmental, and citizens' groups. The purpose of the Work Group was both to educate the affected user groups regarding the nature and extent of the problems within the SWUCA, and to furnish the District with input and feedback regarding various options for dealing with those problems. The SWUCA Work Group had no formal decision-making authority. In addition to monthly meetings in various locations throughout the District from January 1993 through September 1993, individual members of the Work Group often met with District Staff to provide input regarding particular issues. The District also utilized a SWUCA Advisory Group of Experts ("SAGE") to assist in the development and review of scientific and technical information related to formulating water management policy for the SWUCA. This technical advisory disciplines, committee, comprised of experts in various 55 began its work in 1993, assisted throughout the rule development process, and apparently continued to provide input during the hearing process. The SAGE Group reviewed and critiqued numerous documents prepared by the District with regard to the SWUCA and studies. assisted in the preparation of some 56 Following the conclusion of the Work Group meetings, the District published a draft SWUCA Management Plan in September 1993. That draft was considered by the Governing Board in a series of public meetings beginning in late 1993. A revised draft Management Plan was prepared and released in April 1994. This version will be referred to as the "SWUCA Management Plan." The primary goal of the SWUCA Management Plan was to develop a long-term strategy to significantly curtail or reduce the advance of saltwater intrusion and stabilize lake levels in Polk and Highlands Counties. Additional goals included preservation of the resource (including environmental features) and protection of existing legal uses. The District says the SWUCA Management Plan is a dynamic process, and it expects to continually revisit the strategies and goals as new information becomes available and conditions change over time. The SWUCA Management Plan included a number of proposed water conservation measures such as basing agricultural use on higher efficiencies, permitting public supply use based on lower per-capita usage rates, and requiring other water users to increase water conservation as appropriate for the particular 57 activity. The SWUCA Management Plan projects that new alternative water sources can reasonably be pursued to offset existing groundwater demand and/or extend existing surface water sources.58 Potential new water sources include, but are not limited to, reuse of treated waste water, additional use of surface waters, desalination, increased surficial aquifer withdrawals, and storm-water reuse. There are, however, problems associated with several of the potential new sources identified in 59 the Plan. Even if the conservation and alternative source projections in the Management Plan are met, the Management Plan recognized that to stabilize the saltwater interface and lake level declines within the SWUCA, actual withdrawals from the confined aquifers within the Eastern Tampa Bay area and the remaining SWUCA area had to be limited to 150 MGD and 550 MGD, respectively. Both the ETB WRAP and the SWUCA Management Plan anticipated that achievement of those pumping levels and maintenance of the 1991 potentiometric surface levels throughout the SWUCA would halt saltwater intrusion over the 50-year planning horizon. In the early part of 1994, the Board directed staff to begin development of administrative rules to implement the SWUCA Management Plan. During the rule development process, additional public meetings, hearings and workshops were conducted. Supplemental Investigations Report After the ETB WRAP was completed in March 1993, the District, recognizing the complexity of the scientific issues and the implications to numerous parties affected by limiting withdrawals, undertook a series of post-report investigations and analyses to evaluate the conclusions and address certain post- report suggestions and comments received from both internal and external reviewers including the SAGE Group. These supplemental investigations and reports were assembled and published by the District in October 1994. The resulting document is referred to as the "Supplemental Investigations Report". The Supplemental Investigations Report included additional documentation regarding the water-use estimation methods, an assessment of trends in groundwater levels in the SWUCA, an evaluation of the computer modeling utilized in the ETB WRAP, several studies regarding water quality trend analyses in the area including time-domain electromagnetic mapping of the saltwater transition zone and conceptual modeling of saltwater intrusion prepared by HydroGeoLogic, Inc., a nationally recognized consulting firm out of Virginia. The Supplemental Investigations Report included refined and improved modeling techniques. These additional modeling efforts generally confirmed the District's conclusions regarding the interrelationship of withdrawals in the Basin and the ongoing movement of the saltwater interface. The Supplemental Investigations Report concluded that the northern section of the Southern Basin is more susceptible than the southern section to water quality deterioration from saltwater intrusion, and that the ETB WRAP and SWUCA Management Plan's prior estimates of cutbacks necessary to achieving "safe yield" may not halt the landward movement of the saltwater interface from its current location. In other words, the studies revealed that the saltwater interface would continue to move under the "safe yield" scenarios. This modeling, along with the other studies in the Supplemental Investigations Report, confirmed the need to cap withdrawals and redistribute pumping. Some Petitioners have suggested that the different results obtained with the refined modeling indicate that the District has yet to assemble conclusive evidence as to the nature and extent of saltwater intrusion in the SWUCA. The modeling efforts are not the sole or even the primary evidence upon which the District relies to conclude that saltwater intrusion is occurring. As discussed in more detail in Section IV B, the District has relied heavily upon its monitoring well network and actual data regarding the vertical rate of migration of the saltwater interface to reach its conclusions. The District acknowledges that solute transport modeling is very complicated, and the resulting predictions as to future movement are based on assumptions regarding numerous interrelated variables. The modeling efforts confirm the District's analysis of existing data and provide a mechanism to estimate future conditions. The more persuasive evidence supports the District's analysis. Conclusions Regarding Scientific Investigations of the SWUCA The evidence established that in assessing the current groundwater conditions in the Southern Basin, evaluating long-term trends in the hydraulic potential of aquifers in the SWUCA, and analyzing the complex and interrelated mechanisms that affect groundwater levels, the District has evaluated the available scientific information and employed a wide variety of highly trained professionals to analyze the information and to assist in developing new techniques and strategies for understanding the functioning of the groundwater systems. The District also sought input from independent scientists and representatives from groups and entities that comprise the primary users of the resource. As part of these efforts, the District developed sophisticated computer programs to project the consequences of future pumping on the groundwater systems. While there are inherent limitations on the accuracy and use of any current computer modeling of groundwater systems, the District has utilized state-of-the-art programs, subjected them to rigorous critique and evaluation from independent, highly qualified experts, and utilized a variety of scenarios to compare and evaluate the impact of different groundwater pumping levels within the Basin. The evidence supports the District's conclusion that saltwater intrusion and lowered lake levels in the SWUCA are regional problems which require a regional solution. The issues cannot adequately be addressed on a permit-by-permit basis with current modeling programs and the District's existing rules. Similarly, the more persuasive evidence supports the District's conclusions that the amount of groundwater withdrawals in the SWUCA in 1989 was detrimental to the water resources of the District, that the current permitted quantity poses a risk that similar or higher withdrawal levels may occur in the future, and that regulatory measures are necessary to address these issues. SWUCA Rules Development In early 1994, the District Governing Board directed staff to develop rules regulating water use in the SWUCA. A number of additional public meetings and workshops were conducted as part of the rule development process. A draft of proposed Rules was first made public in the early summer of 1994. Because of its concern about the economic impact of mandating reduced withdrawals by existing users, the District has sought a regulatory strategy to address the resource problems over a period of time while minimizing impacts to existing users. Some of the issues raised by this approach are discussed in Section IV. The District has prepared an economic impact study ("EIS") analysis of the proposed rules, in part to seek assurance that their implementation would not significantly harm the area's economy. While some of the parties originally challenged the District's EIS, those challenges were dropped during the cause of the proceedings. District staff presented the proposed rules to the Governing Board with the explanation that (among other things) the rules would "substantially inhibit further migration of saltwater intrusion," and that "to halt saltwater intrusion would take a substantial reduction in the amount of pumping." The Preliminary Statement to this Final Order contains a overview of the complicated procedural history of the District's proposed regulatory strategy for the SWUCA. Because some Petitioners have challenged various procedural aspects of the rule promulgation process, including the District's modifications to the initial proposals, Section III E of this Final Order sets forth specific Findings of Fact on the procedural history of the SWUCA Rules. Before the procedural history, Section III D 2 sets forth a general overview of the SWUCA Rules as currently proposed. 2. Proposed SWUCA Rules Overview As noted above, the SWUCA was originally designated by a 1992 resolution of the District's Governing Board. The proposed rules would establish the SWUCA boundaries by rule. The SWUCA Rules would supersede the existing rules for the ETB and HR WUCAs. The areas within the two WUCAs would be regulated as part of the SWUCA. Upon the effective date of the proposed rules, each water use permits would be automatically modified to include all new SWUCA regulations applicable to that permit. The SWUCA Rules include new provisions that would establish a minimum aquifer level for the UFAS in the SWUCA. There are also a number of additions and changes to the Basis of Review that impose specific permitting requirements in the SWUCA. Under the SWUCA Rules, no new withdrawals from the Floridan Aquifer in the SWUCA would be considered by the District until the minimum aquifer level established for each of three areas specified in the rules is achieved and sustained for a period of five years. See, proposed Rule 40D-8.628. The three areas are: the SWUCA as a whole; the area previously designated as the ETB WUCA; and the area previously designated as the HR WUCA. The methodology for calculating and applying the minimum level is discussed in Section IV B below. The proposed rules include a new subsection (2) to be added to the Conditions for Issuance set forth in Rule 40D- 2.301, F.A.C. The new subsection would provide that applications for renewals of existing permits or for reallocation permits within the SWUCA would not be denied for the sole reason that the minimum aquifer level in Rule 40D-8.628 had not been met. The District claims that this provision is necessary to allow existing users to decrease their uses over time and prohibit the issuance of permits for new quantities while the resource is recovering. The District contends that an applicant for a renewal permit or a reallocation permit would still have to meet the Conditions for Issuance as interpreted by the Basis of Review. To facilitate implementation of this new subsection (2) the District proposes to repeal the existing standard permit condition that requires compliance with minimum aquifer levels. In addition, the District will only apply the Conditions for Issuance regarding minimum aquifer levels and saltwater intrusion in Rule 40D-2.301(d)&(f) on a "localized" or "limited" cumulative basis. The District is concerned that these provisions could otherwise be utilized by interested third parties as a basis for challenging the issuance of a reallocation permit or the renewal of an existing permit. The District's decision to treat reallocation permits and renewals of existing permits differently than applications for new permits is discussed in detail in Section IV B below. Theoretically, withdrawals in the SWUCA could be redistributed in a manner that increases the "safe yield" and/or minimize impacts to the resource. The District was concerned that significant economic disruption and major capital expenditures could result if redistribution was instantaneously imposed on existing permitting. The proposed rules contain reallocation provisions that would allow the transfer of existing permitted quantities to different uses and locations. See, proposed Rule 40D-2.331(3) and and proposed BOR Section 1.15. These provisions are intended to minimize the impact of the rules on existing users while providing a mechanism to redistribute withdrawals away from impacted areas. If the SWUCA Rules are adopted, in order to obtain a permit for a new or expanded use, applicants would have to either negotiate a transfer of withdrawal authorization for all or part of the water quantities held by an existing permit holder or develop and use alternative water sources. The duration of a water use permit issued under the SWUCA Rules could not exceed 10 years. See, proposed Rule 40D-2.321(4). The District's existing MIA Rules prohibit new withdrawals from any confined aquifer, which includes both the intermediate and the Floridan. The SWUCA Rules would apply only to withdrawals from the Floridan Aquifer. This change has been challenged by ECOSWF and is discussed in Section IV B below. Currently, a permit is required outside the MIA of the ETB WUCA only if a proposed withdrawal is a well having an outside diameter of six inches or more. Within the MIA, a cumulative six inch well diameter threshold is applied: i.e., if the aggregated diameter of all wells at a particular site is six inches or more, a permit is required. The SWUCA Rules expand the more restrictive MIA standard to the entire SWUCA, but the change affects only wells constructed after the effective date of the proposed rules. See, proposed Rule 40D-2.041(1)(e). The SWUCA rules establish an alternative source credit system which is intended to serve as an economic incentive for water users and suppliers to use and supply water from sources other than groundwater, e.g., reclaimed water and stormwater runoff. See, proposed Rule 40D-2.601. This program is not at issue in this proceeding. It provides for the issuance of a groundwater withdrawal credit (or right of use) for groundwater that is replaced by an alternative source water. The person or entity that obtains the credit would apply under and satisfy the District's permitting criteria to utilize the credit. The permitted user would retain its existing groundwater withdrawal permit, but the permitted quantities would be available only on a standby basis under certain circumstances. The proposed rules change water use efficiency parameters -- used to establish permitted withdrawal quantities, induce and reflect increased water use efficiency. The District anticipates that the revisions will promote permittees' use of water conservation measures to help ensure that actual water use does not approach the quantity currently permitted. Water use permits issued to potable water suppliers within the SWUCA would be calculated under a specified methodology that utilizes an adjusted gross per capita amount of 130 gallons per day ("GPD") starting October 1, 1999, and 100 GPD staring October 1, 2004. See, proposed BOR Sections 3.1 and 3.6. In addition, the proposed rules would extend to the entire SWUCA the District's requirement that public water supply utilities adopt conservation rate structures and undertake leak detection programs. These issues are discussed in Section VII. The quantity of water permitted for other users in the SWUCA would be based on the use of best management practices and best water conserving technologies for the particular activity. Conservation measures for existing permittees would be phased in over a ten-year period, with increasing conservation levels to be met every three-to-four years. See, proposed amendments to BOR Section 3.0. The phase-in period for maximum water use efficiencies is intended to allow existing permittees to postpone technological conservations until closer to the end of the current technology's economic life. The proposed rules would allow a permittee some flexibility to choose the technologies or methods necessary to increase water use efficiency. Currently, agricultural permits are issued for quantities of water greater than typical usage to ensure that quantities are available for emergencies. Under the SWUCA Rules, agricultural permittees would lose some of the water "cushion" they were previously granted. See, proposed amendments to BOR 3.3. Section 60 To minimize adverse financial and economic impacts while encouraging water conservation, the District proposes to allow growers to accumulate irrigation "credits" when the actual metered amount of water applied is less than the permitted water quantity assigned to the platted acreage. A grower could carry forward to subsequent years permitted groundwater withdrawal amounts that were not used. The credited amounts of water would be deducted from the permittee's accumulated balance as they are used for irrigation in drought years, during a temporary expansion of crop operations in reaction to market demands, or to protect 61 crops from a freeze or frost. These provisions are not at issue in this proceeding. Applicant and permittee reporting requirements would be strengthened by the SWUCA rules to facilitate identification of water conservation investments by permittees and to improve permit compliance monitoring. The SWUCA Rules include a provision that the District will study permitted uses by category of use over a three-year period to determine whether the use in any category is rising. Changes in use patterns could result in rule amendments. Procedural History of the Proposed Rules and Modifications Several of the parties have alleged that the District failed to comply with the procedural requirements of Chapter 120 in the SWUCA rule development process. In this regard, it has been alleged that the numerous revisions made during the rulemaking process and/or the nature of the changes have rendered the proposed rules unlawfully vague. Without question, the changes have been the source of great controversy and considerable confusion during this proceeding. The Preliminary Statement provides a general overview of the procedural history of the rule challenge proceedings and the modifications made to the SWUCA Rules. Many of the legal issues raised by the parties have been addressed in the Order Denying SFO referenced in the Preliminary Statement. Because certain parties have reiterated their procedural challenges in their proposed final orders, the following Findings of Fact are made. 1. Background On July 22, 1994, the District published notice of public workshops to be conducted in August 1994, regarding "proposed amendments to Chapter 40D-2, F.A.C., including the Southern Water Use Caution Area." See, Volume 20, Number 29, p. 5263, F.A.W. The District first published proposed rules related to the SWUCA on August 26, 1994, in Vol. 20, No. 34, pp. 4020-4143, F.A.W. The "Purpose and Effect" Statement published with the proposals provides that the District's purpose in proposing the rules was to "prevent further adverse effects resulting from excessive withdrawals" within the SWUCA. In addition to provisions directly related to the SWUCA, the proposals included a number of general amendments to the District's existing water use permitting rules and the Basis of Review, which have been referred to as the District-Wide Enhancements. At a District Governing Board meeting on August 31, 1994, the Board decided to withdraw the proposed rules and give interested persons an opportunity to provide District staff with written comments. At the August 31 meeting, the Board affirmatively voted to consider adoption of the proposed rules, with any changes made by staff after reviewing the written comments, at its regular meeting scheduled for October 31, 1994. Written comments were submitted by several interested parties, including Pinellas. On September 23, 1994, the District again published notice of its intent to adopt the proposed rules. See, Vol. 20, No. 38, pp. 6908-7033. The proposed rules published on September 23, 1994, collectively referred to as the "Initial Proposed Rules," were identical to those published on August 26, 1994, and included the District-Wide Enhancements. The notice published on September 23, 1994, stated that, if requested within 21 days of the date of notice, a hearing would be held at 9:00 a.m. on October 31, 1994, to consider the proposed rules. By letter dated September 28, 1994, Pinellas timely requested that the District conduct a public hearing on the Initial Proposed Rules pursuant to Section 120.54(3)(a), F.S. As noted in the Preliminary Statement, on or about October 14, 1994, 25 separate petitions were filed with DOAH challenging the Initial Proposed Rules. The District Governing Board hearing scheduled for October 31, 1994, was cancelled and rescheduled for November 15, 1994. Public comments on the Initial Proposed Rules were received at the hearing on November 15, 1994. During that meeting, the Board voted to withdraw the District-Wide Enhancements and proceed with rulemaking on only the provisions related to the SWUCA. On December 2, 1994, the District published notice of its intent to adopt the proposed rules related to the SWUCA in Vol. 20, No. 48, of the F.A.W., pp. 8905-8954 (the "Revised Rules"). At that time, the District also withdrew the Initial Proposed Rules published on September 23, 1994. The Revised Rules included the following sentence to be added to Subsection (2) of Section 4.5 in the Basis of Review: In addition to the Performance Standards above, the District presumes that proposed withdrawals of new quantities of groundwater from the Floridan aquifer applied for after the effective date of this rule, from the Floridan aquifer within the SWUCA, will significantly induce saltwater intrusion...This presumption does not apply to reallocations,...This presumption does not apply to the renewal of previously permitted quantities. As discussed in more detail below, near the end of the final hearing, the District withdrew this proposed amendment to BOR Section 4.5 by publishing a Notice of Withdrawal in the F.A.W. on November 3, 1995. On December 30, 1994, the District published two Notices of Change in Vol. 20, No. 52, of the F.A.W., pp. 9735- 9737. The Notices included what the District deemed to be "technical" changes to proposed Rules 40D-2.301(2) and 40D-8.628 and proposed BOR Section 4.3. Following the publication of the proposed SWUCA Rules on December 2, 1994, and the "technical" amendments published on December 30, 1994, numerous petitions challenging the rules were filed pursuant to Section 120.54, F.S. Those petitions have resulted in this proceeding. 2. Prior to Commencement of the Hearing. The December 2, 1994, version of the SWUCA Rules included a proposed addition to BOR Section 4.3 titled "Minimum Flows and Levels." This proposal included a Figure 4-1 titled "Potentiometric Surface of the Floridan Aquifer - 1991 Average Conditions." In the December 30, 1994, "technical" changes, the District included a change to the proposed addition to BOR Section 4.3. The December 30 version of the proposed addition to BOR Section 4.3 provides as follows: Within the Southern Water Use Caution Area (SWUCA), new groundwater quantities will be permitted to be withdrawn from the Floridan aquifer when the potentiometric surface has, based on an average of the previous five consecutive years, been above the minimum level established in 40D-8.628, F.A.C., and depicted in Figure 4-1, and the potentiometric surface resulting from the proposed withdrawals together with the annual average withdrawal for the previous five years as determined by the District will remain above the minimum level established in 40D-8.628, F.A.C., and depicted in Figure 4-1. [emphasis added] This Notice of Change did not include a copy of or change to Figure 4-1 which was published on December 2, 1994. Prior to commencement of the hearing, the District reached a settlement with certain parties who had challenged the SWUCA Rules. As part of that settlement, the District modified proposed Rule 40D-8.628 to "clarify" the District's intent regarding the application of the minimum aquifer levels to renewal and certain other types of permits. The change was published on February 10, 1995, in Vol. 21, No. 6 of the F.A.W., pp. 870-871 and included the following language: The minimum aquifer level will not be used by itself to reduce permitted withdrawals existing as of [effective date of this rule]. It is the intent of this rule that the minimum water level of the Upper Floridan Aquifer in the SWUCA be achieved over a reasonable period of time, by reasonable means, and without undue effect on existing legal uses.... Modifications after the hearing commenced April 14, 1995, Changes After Phase I of the hearing, the District decided to change the methodology for calculating and applying the proposed minimum level for the SWUCA. The District Governing Board approved staff recommendations to make the changes during a Board meeting on March 22-23, 1995. On March 31, 1995, the District published a Notice of Change in the Vol. 21, No. 13, of the F.A.W., pp. 1959-1962. This Notice of Change sought to substitute newly-proposed language to BOR Section 4.3 including a proposed new Figure 4-1 titled "SWUCA and 1991 Average Values of Upper Floridan Aquifer Potentiometric Surface." There was a separate Notice of Change published on March 31, 1995, setting forth a revised version of proposed Rule 40D-8.628. See, Vol. 21, No. 13, F.A.W., pp. 1962-1964. The March 31st Notices of Change indicated that the December 2 and December 30th versions of the proposed additions to Section 4.3 of the BOR and Rule 40D-8.628 were being modified in response to comments and discussion at the Governing Board meeting on March 22, 1995. Over the objection of several parties, the District sought to include the new methodology as part of these rule challenge proceedings. After several telephone conference hearings regarding the authority and proper procedure to modify proposed rules after rule challenge proceedings had been initiated, the District opted to withdraw the March 31 proposed changes and all of the prior proposed changes to Rule 40D-8, including those published on December 2nd and December 30, 1994, and February 10 and March 31, 1995. The District decided to incorporate the new methodology in a revised version of Rule 40D- 8.628 and to provide substantially affected persons with a new point of entry to challenge the proposals. Those changes are reflected in the April 14 Modifications which the District published on April 14, 1995, in Vol. 21, No. 15, of the F.A.W., pp. 2295-2300 and 2323. While the substance of the April 14 Modifications is the same as the changes approved by the Governing Board on March 23, 1995, the Board did not formally approve the April 14 Modifications until April 25, 1995. According to the District, the withdrawal of the March 31 changes to the December 2 and December 30 proposed additions to BOR Section 4.3 means that the December 2 and December 30 proposals relating to BOR Section 4.3 are still pending. As detailed in the Order Denying SFO and in the Preliminary Statement, the hearing in these consolidated cases proceeded on issues that were unrelated to the changes in methodology. After the point of entry for filing challenges to the new methodology passed, the parties were allowed to conduct reasonable discovery regarding the new proposals, and their challenges to the revised methodology set forth in the April 14 Modifications have been incorporated into these proceedings. No further amendments have been published by the District to proposed Rule 40D-8.628 or to the proposed additions to BOR Section 4.3. The end result of this circuitous and confusing series of events is that the District's proposed methodology for calculating the minimum level for the SWUCA is set forth in the April 14 version of proposed rule 40D-8.628. The April 14 version of proposed Rule 40D-8.628 includes Figure 8-1 which utilizes the existing ETB WUCA and the HR WUCA boundaries for purposes of calculating and applying minimum aquifer levels. (A level is also calculated for the SWUCA as a whole.) Also proposed for adoption are additions to BOR Section 4.3 as set forth in the December 2 and December 30, 1994, publications. The proposed amendments to Section 4.3 of the BOR reference Figure 4-1 which can be found only in the December 2 publication and is not included in the December 30 publication. This reference in proposed Section 4.3 to Figure 4-1 is even more confusing since that figure would not be used in determining the minimum level under the April 14 methodology, which includes a new Figure 8-1 in proposed Rule 40D-8.628. Accordingly, the language "and depicted in Figure 4-1" which appears twice in proposed BOR Section 4.3 is vague and ambiguous. On May 4, 1995, DeSoto and Hardee Counties requested (in writing) a hearing before the Governing Board pursuant to Section 120.43(3)(a), F.S. on the rule amendments published on April 14, 1995. The request was denied by the District. On May 5, 1995, DeSoto and Hardee Counties filed a Petition for Formal Administrative Hearing and for Determination of Invalidity of Proposed Water Use Permitting Rule 40D-8.628, challenging the modifications published on April 14. On June 2, 1995, DeSoto and Hardee Counties filed a Motion for Summary Final Order to Declare Rule 40D-8.628 Invalid for Failure to Follow Required Rulemaking Procedure and to Cancel Final Hearing. After extensive argument on June 7, 1995, the motions were denied in the Order Denying SFO entered on September 8, 1995. DeSoto and Hardee Counties claim that the various changes to the proposed minimum level provisions have been so confusing that it is impossible to discern the meaning and intent of the proposals and, consequently, the proposals should be declared invalid. In this regard, DeSoto and Hardee Counties argue that it is impossible for a member of the public to ascertain the District's intent without resorting to numerous different publications and, even then, DeSoto and Hardee Counties suggest, the provisions are unacceptably confusing, especially as they relate to the December 30 version of BOR Section 4.3. Without question, the various modifications to the proposed rules undertaken by the District during the course of these proceedings have further complicated what was already an extremely complicated case. Nonetheless, as noted in the Preliminary Statement and in the Order Denying SFO, at the time of the April 14 Modifications (and at the time of the November 3 Modifications discussed below), the District provided a separate point of entry to allow any substantially affected party to join in these proceedings. All parties have been afforded a reasonable opportunity to conduct discovery with respect to the District's proposals and the modifications thereto, and all parties have had a full and adequate opportunity to present their challenges to the substantive issues involved. DeSoto and Hardee Counties point out that the District failed to include the currently existing portion of BOR Section 4.3 when it published the proposed additions on December 2nd and December 30, 1994. Furthermore, the December 30, 1994, publication references Rule 40D-8.628, but the final version of proposed Rule 40D-8.628 was not published until April 14. DeSoto and Hardee Counties argue that the failure to include the full text of these rules in the December 30, 1994 publication violates Section 120.54(8), F.S. follows: Section 120.54(8) provides in pertinent part as Each rule adopted shall contain only one subject and shall be preceded by a concise statement of the purpose of the rule and reference to the rules repealed or amended, which statement need not be printed in the Florida Administrative Code. Pursuant to rule of the purposes of such rule, changes in such material shall have no effect with respect to the rule unless the rule is amended to incorporate such material as changed. No rule shall be amended by reference only. Amendments shall set out the amended rule in full in the same manner as required by the constitution for laws. (Emphasis added). The BOR is a lengthy technical document which has been incorporated by reference through Rule 40D-2.091, F.A.C. The proposed new language to be added to Section 4.3 of the BOR would apply only in the SWUCA and would not amend or change any language in the existing BOR. To require publication of the entire BOR in the F.A.W. in order to effectuate the additional language sought to be added to Section 4.3 would be an unnecessary waste of time and expense and would probably be a source of more confusion than clarification, since it would be very cumbersome to wade through the entire document. Because the existing language of Section 4.3 would not be altered or affected in any way, the District's failure to include this language is not a basis for invalidating the proposed addition. Likewise, proposed Rule 40D-8.628 creates a whole new section that addresses independent subject matter and does not alter or modify any other provisions of Rule 40D-8. The failure to include any other provisions of Rule 40D-8 with the April 14 publication does not provide a basis for invalidating the proposal. November 3, 1995, Changes The proposed rules published on December 2, 1994, included the following proposed amendment to Rule 40D- 2.801(3)(b)8, F.A.W.: 40D-2.801 Water-Use Caution Areas. (3)(b)8. Presumptions in this Chapter 40D-2 and the Basis of Review described in 40D-2.091 relating to permitting within the SWUCA are rebuttable and non- evidentiary. Chapter 373, F.S., provides that the applicant has the burden of demonstrating that the proposed use meets the "three-prong test". Whenever these presumptions apply, the burden of proof remains with the applicant. These presumption constitutes [sic] a threshold below or above which, as the case may be, the nature and extent of the information sufficient to rebut the presumption may vary. The December 2 version of the SWUCA Rules also included a "presumption" in proposed Rule 40D-2.301(2) that renewal permits, reallocation permits and certain other specified classes of permits met the Conditions for Issuance in Rule 40D- 2.301(1)(a)-(n) provided they did not exceed the criterion in the Basis of Review. In addition, new language was proposed to be added to Section 4.5 of the Basis of Review which stated that new groundwater withdrawals from the Floridan Aquifer within the SWUCA were "presumed" to cause or contribute to unacceptable saltwater intrusion. During the course of the hearing, questions arose as to exactly how these new "presumptions" were to be applied and how they compared to other presumptions in the District's existing rules. On October 10, 1995, after testimony as part of DeSoto and Hardee Counties' case during Phase IV regarding the validity of presumptions in the proposed rules, the District's principal rulemaking attorney advised all counsel in this case in writing that the District staff was going to recommend to the Governing Board that it withdraw the proposed amendments to Rule 40D- 2.301(2), Rule 40D-2.801(3)(b)8, and the proposed paragraph 2 to BOR Section 4.5. There was also an indication that staff would recommend that part of the withdrawn language be included in a proposed new version of Rule 40D-2.301(2). Some of the original Petitioners who had dismissed their petitions in February 1995 in reliance upon the February 10 Modifications, appeared at the hearing and expressed concern regarding the District's announcement and the effect of the intended withdrawal of the proposed provisions. On October 20, 1995, the District advised all counsel that the staff had changed its position: staff was still going to recommend that the Governing Board withdraw the proposed amendments to Rule 40D-2.801(3)(b)8 and to BOR Section 4.5, but, instead of withdrawing Rule 40D-2.301(2), certain amendments were going to be recommended. These recommendations were subsequently approved by the Board. On November 3, 1995, the District published Notices of Withdrawal of the proposed amendments to Rule 40D-2.801(3)(b)8 and to BOR Section 4.5 and a Notice of Change to the proposed amendment of Rule 40D- 2.301(2). See, Vol. 21, No. 44, F.A.W., pp. 7759-7760 (the "November 3 Modifications"). These actions by the District have rendered moot DeSoto and Hardee Counties' challenges to proposed Subsection (b)8 of Rule 2.801(3) and the proposed additional BOR Section 4.5. The District provided a point of entry for substantially affected parties to challenge the November 3 Modifications. That window of opportunity expired with no new petitions filed. The parties to this proceeding were afforded an adequate opportunity to respond to these changes. The new version of proposed Rule 40D-2.301(2) published on November 3, 1995, provides: (2) Applications for modifications of permits, renewal permits, Reallocation Permits and Ground Water Withdrawal Credit Permits with the Southern Water Use Caution Area (SWUCA) are determined presumed to meet 40D-2.091(1)(a)-(n) so long as the withdrawals meet or do not exceed the criteria set forth in the Basis of Review described in 40D-2.091. This determination presumption is necessary to facilitate movement (reallocation) of existing permitted ground water quantities within the Southern Water Use Caution Area (SWUCA). Since the District has already determined that on a regional cumulative basis existing withdrawals are causing unacceptable adverse impacts, Without this determination presumption any permit application, including those for reallocation could be determined not to meet the Conditions for Issuance in 40D-2.301(1)(a)- (n) even though there may be no net increase in withdrawals from within the SWUCA. [The stricken language in this quote was in the previously- proposed amendment. The language that was added for the first time in the November 3 version is underlined.] The District contends that these changes only clarify its intent and do not reflect a change in position. Essentially, these changes were prompted by confusion surrounding the use of the terms "presumes" and "presumption." The newly-proposed language of Rule 40D-2.301(2) provides that applicants for certain types of permits including modifications, renewals, reallocations, and permits associated with groundwater withdrawal credits are "determined" to meet the Conditions of Issuance so long as the criteria in the Basis of Review are met. In other words, such applicants are not subject to any regional cumulative analysis and would not have to meet the minimum level requirements of BOR Section 4.3 and proposed Rule 40D-8.628. The issues related to these "determinations" and the treatment of renewal permits are discussed in Section IV.B. below. 4. Withdrawn Change after Conclusion of Hearing Following the conclusion of the hearing, the District on February 16, 1996, filed a Motion for Official Recognition of a change to the Department of State's official version of Rule 40D-2.511, F.A.C. The new version included an additional statutory citation as part of the "law implemented" reference at the end of the rule. This change was apparently accomplished through the District's contact with the Department of State in October of 1995 requesting that the additional citation be added as a technical change. This contact took place without notification to any of the parties to these proceedings. Certain parties, including DeSoto and Hardee Counties (which had not challenged this Rule during the course of the proceedings), objected to the District's Motion based on the procedure followed and the lack of notice. After several telephone conference hearings on this change and its implications to this proceeding, the District announced on March 12, 1996, that it had requested the Department of State to publish a notice of revision of Rule 40D-2.511 to delete the reference to the additional law implemented. This deletion was to be effective immediately, thereby restoring Rule 40D-2.511 to the same condition and wording it contained during the hearing and prior to the amendment. This action has rendered moot the District's Motion for Official Recognition of the change and the parties' objections thereto. 5. Conclusion This case demonstrates the difficulty when dealing with comprehensive highly scientific rules to determine the appropriate manner of providing required notice and information without obfuscating the ultimate message. With respect to the SWUCA Rules, the District has engaged in an extensive rule development process that provided the public with numerous opportunities to obtain information and provide comment. No persuasive evidence was presented that the District refused to consider alternate views and/or that the process was merely perfunctory. In considering the technical and procedural objections raised by the various petitioners throughout the course of these proceedings, the primary concern has been to insure that appropriate points of entry were offered and that a fair opportunity to address the merits of the issues was provided. While the numerous changes to the rules have been the source of confusion and frustration, it is concluded that all parties to this case have been afforded a reasonable opportunity to conduct discovery and present evidence regarding the merits of the District's proposals including the modifications made during the pendency of these proceedings. Existing Rules, Proposed Rules, and Agency Statements Concerning Minimum Water Levels and Flow Rates Section 373.042, F.S., directs the water management districts to set minimum flows and levels for streams, lakes and aquifers. See, Section III A.5. Existing Rules Concerning Minimum Water Levels and Flow Rates - Rule 40D-8.041 ECOSWF has challenged the District's existing rules regarding minimum flows and levels, Rules 40D-8.041(2), 40D- 8.041(3), and 40D-8.041(4), F.A.C., alleging that the rules exceed the statutory authority of the District, contravene, enlarge or modify the rules' enabling statutes and are arbitrary and capricious. Rules 40D-8.041(2) and (3) purport to establish a methodology for calculating minimum flows and levels for streams and the water table aquifer. It does not appear that the District utilizes the existing methodology rules, and the District was not able to provide any scientific basis for them. A minimum flow or level established by the existing rule methodologies would not necessarily protect the water resources from further harm. The District conceded that Rule 40D-8.041(4) was premised on the "water crop" methodology and has no current viability for regulating the consumptive use of water resources in the District. See, Section III A.2. Proposed Rules Establishing the SWUCA and the Minimum Aquifer Level - Proposed Rules 40D-2.801(3)(b)1., 40D- 8.628 and BOR Section 4.3 1. Water Use in the SWUCA As discussed in Section III, withdrawals of groundwater in the Southern Basin have caused reductions of the potentiometric surface in the Floridan Aquifer and a consequent flow. reduction of the seaward gradient of groundwater 62 When the seaward gradient is reduced, coastal discharge of freshwater is reduced and saltwater can move upward and inland in the aquifer. Underground flow migrates toward areas of low potentiometric pressure. Saltwater intrusion will occur much more rapidly in an area where potentiometric levels fall below sea level, particularly if there is no barrier or buffer having a positive seaward gradient to the coast. Under predevelopment conditions, potentiometric levels near the Gulf Coasts of Hillsborough and Manatee Counties were 20-to-30 feet above sea level. In more recent years, however, potentiometric surface levels of the UFAS in southern Hillsborough and central Manatee Counties have been near or below sea level under average annual conditions. During certain periods, declines in the potentiometric surface of the UFAS measured up to 50 feet in central Manatee, portions of east-central Hillsborough, and central Polk Counties. For example, due to very high pumping in 1989, an area developed in northern Manatee and southern Hillsborough Counties where the potentiometric surface was below level. sea 63 This condition was not present in 1991, and a positive flow-gradient to the coast was re-established. Both the ETB WRAP and SWUCA Management Plan concluded that groundwater pumping needed to be capped in the SWUCA. At the time these studies were concluded, total permitted quantities of groundwater in the SWUCA were more than 1300 MGD. That number has since risen to almost 1500 MGD. These figures greatly exceed the "safe yield" estimates of the ETB WRAP and SWUCA Management Plan. The District projects that the imposition of the conservation measures in the SWUCA Rules would ultimately decrease permitted quantities to approximately 1000 MGD. It also predicts that the permitted quantities would never be fully utilized at any given time. In the SWUCA, more than 90 percent of non-public- supply water withdrawals are derived from groundwater sources. Public supply utilizes surface water reservoirs for some of its use but also depends on groundwater. According to District estimates, 1989 was the year of highest groundwater use in the SWUCA. In that year, the lowest potentiometric levels on record for most areas of the SWUCA were recorded. In 1989, permitted withdrawals for all groundwater users in the SWUCA totaled approximately 1,268 MGD. Actual groundwater use in the SWUCA for 1989 was estimated at 832 MGD with agriculture accounting for 531 MGD (64 percent), mining and percent), industrial uses approximately 166 MGD (20 64 and public percent). supply 114 MGD (14 65 In 1991, actual groundwater usage in the SWUCA was estimated at approximately 688 MGD or about 20 percent less than the estimated water use in 1989. Although it has been suggested by some Petitioners that post-1991 figures showing declines in actual water usage in the SWUCA resulted from better estimating procedures and more accurate metering, no persuasive evidence was presented to support that contention. The District's Needs and Sources Report projects that total water demand in the SWUCA could increase to approximately 1,300 MGD by the year 2020. Such an increase in water use would add significant additional stress to the water resources in the SWUCA. The District has estimated that there is from 203- 336 MGD total water available from sources in the SWUCA other than confined aquifers that have not yet been developed. Potential alternative water sources include rivers (100-143 MGD), lakes (up to 31 MGD), reclaimed water by the year 2015 (0-160 MGD) and surficial aquifers (2 MGD). 2. The Need for Regulation Faced with ever increasing demand in upcoming years, the District has concluded that it is necessary to put in place regulatory tools to address the cumulative impacts of regional groundwater withdrawals. The District is faced with a task of enormous complexity as it attempts to address the significant water resource issues within its jurisdiction. A vast number of difficult choices must be made, and it is not possible to resolve the issues in a manner acceptable to all affected interests. The proposed rules were developed by the District after many years of study and extensive public input. Because of the extensive water use already existing when the Water Resources Act was enacted in 1972, the District was not able to initially assess availability of the resource and determine an appropriate minimum aquifer level. Without question, a regulatory program would have been easier to implement if it had been possible to establish minimum levels before water use began. The District notes that district-wide water use from all sources has not changed significantly since the inception 66 of the water use permitting program in 1975. Likewise, the District claims that total use in the SWUCA have not increased significantly since 1975. While the District has suggested that the over-permitting in the SWUCA can largely be attributed to the continuation of water uses that pre-dated the District's consumptive use permitting program, all existing uses should have been subject to at least one renewal process in the intervening years. Moreover, there have been changes in the nature and location of water uses in the SWUCA. For example, during the 20- year period that the District's permitting program has been in place, there has been a decline in water use by the phosphate industry, which is primarily located in the northern inland portions of the SWUCA. During the same period, there has been increased usage by agriculture (principally citrus and tomatoes) and public supply, much of which has been located in the coastal counties of Hillsborough and Manatee. 3. Saltwater Intrusion in the SWUCA Some of the parties argue that the District does not have adequate evidence to indicate that saltwater intrusion is occurring in the SWUCA. However, the more persuasive evidence supports the District's conclusion to the contrary. In the late 1970s, the District started the Regional Observation and Monitoring Program ("ROMP") which included drilling monitor wells along the coast to locate and monitor movement of the saltwater transition zone over time. Although sometimes drilled as deep as the evaporites to gain data for a water quality profile, the wells were plugged slightly above the level where the 1,000 mg/liter chloride concentration occurs, close to freshwater portions of the aquifer. Because the monitor wells were specifically selected, drilled and operated according to reliable standards, they have been an important and reliable source of data. The District confirmed the regional movement of the saltwater interface by monitoring chloride levels at the ROMP wells over time. As expected, wells along the coast have shown increasing trends in chlorides. In addition, in some areas of southern Hillsborough and Sarasota Counties, sulfates have also increased. Overall, the ROMP wells have shown an increase in both sulfates and chlorides in the SWUCA in patterns consistent with the District's conclusions regarding movement of the interface. The District has performed statistical analysis of data from individual wells to confirm that the trends demonstrated have not been the result of random error. In reaching its conclusions, the District has taken into account site-specific information regarding the influences on each well. The District's approach has been reviewed and approved by a number of statisticians, and no persuasive evidence was presented to refute the conclusions that the data demonstrated statistically significant trends. The District has also examined data from hundreds of WUP wells that have been monitored by permittees as a condition of the permits. While the data is not as reliable as the ROMP well data, it is largely consistent with and confirms the trends 67 evidenced by the ROMP wells. The consistency of the WUP and ROMP wells' data is particularly notable in the lower production zone, where the proportion of increasing chloride trends has increased significantly in the last five years. Not only are there a growing number of wells showing increased chloride trends, but median chloride values have also increased over time. In the upper production zone, the median chloride values have increased from 17 mg/liter (between 1977-1982) to 51 mg/liter (during 1989-1993). Median sulfate values in the upper production zone have increased from 73 mg/liter to 360 mg/liter over the same time periods. Although saltwater intrusion is often considered a coastal phenomenon caused by coastal water withdrawals, in actuality the entire aquifer is underlain by water that is high in chlorides and sulfates. Therefore, the entire aquifer is potentially susceptible to saltwater intrusion with resulting adverse impacts upon potable water supplies due to a loss of pressure within the potentiometric surface. Wells along the coast generally show the first signs of adverse impact because of the increasing slope of the interface toward the coast. Whether a particular well is affected by saltwater intrusion is a function of its location and depth. It is not surprising that some wells have not yet been affected. Inland wells are more likely to show increased saltwater intrusion the deeper they are drilled. The District relies primarily upon its monitor well network and actual WUP data well to reach its conclusions on the vertical rate of saltwater interface migration. The District has also conducted solute transport modeling of saltwater interface movement calibrating the models with the best available data. Solute transport modeling is very complicated, and the resulting predictions of future interface movement are based on assumptions regarding numerous interrelated variables. The District's modeling runs attempt to project the anticipated movement of the saltwater interface (1000 mg/1 isochlor line). The original runs were included in the ETB WRAP and were completed in March 1993. Although the modeling efforts confirmed the District's conclusions regarding the continuing movement of the saltwater interface, they are not the sole or primary evidence upon which the District relies to conclude that saltwater intrusion is occurring. In sum, the District has sufficient data to document that saltwater intrusion is occurring in the SWUCA. The District continues to install water quality and water level monitoring wells and to perform additional modeling and surface water studies to augment its data base. Some of the District's efforts are reflected in the Supplemental Investigations Report. Saltwater intrusion is a gradual process that ebbs and flows with pressure differentials. The best computer model simulations indicate that along the coast of the SWUCA, there has been one-to-two miles of saltwater intrusion into the UFAS from predevelopment times to the present. Saltwater intrusion progressively reduces an aquifer's freshwater storage and supply capabilities. While at least one expert in this case suggested that saltwater intrusion permanently destroys fresh groundwater resources of the UFAS by causing irreversible degradation of water quality, the greater weight of the evidence indicates that if the head differentials are great enough, saltwater intrusion can be reversed and freshwater can replace saltwater in the aquifer. In that situation, there may be minimal loss of storativity and water quality in certain areas where water quality may not be as high as prior to intrusion because small pockets of saltwater may remain but the aquifer is not permanently lost. Thus, if the potentiometric surface in the SWUCA returned to predevelopment levels, movement of the saltwater interface would reverse and progress toward the coast at approximately the same rate at which it has progressed inland. With a reverse interface movement, freshwater would gradually flush the aquifer and, given enough time, would return to the same quality that existed prior to seawater inundation. Of course, the hypothetical reversal assumes a total halt to groundwater pumping. As long as groundwater is withdrawn from the region, the location of the saltwater transition zone will necessarily be landward of its pre-development location. The key question, then, becomes how much landward movement is acceptable. The decision is complicated by the diverse hydrogeology, the uncertainty of projecting future events which are influenced by numerous variables, and the socio-economic consequences of the decision. 4. Unified Basin Regulation A fundamental premise of the District's entire SWUCA regulatory strategy is that the designated area should be regulated as a unified groundwater basin. Although several petitioners challenge the concept, the more persuasive evidence establishes that the Southern Basin of the UFAS essentially acts as a single hydrologic unit, especially with regard to saltwater intrusion, which is heavily influenced by cumulative stresses throughout the basin. Within the Southern Basin, the UFAS is well- confined, highly transmissive, and has a relatively low storage coefficient, which means that a cone of depression caused by groundwater pumping generally propagates over a large area. While transmissivity values vary throughout the Southern Basin, the differences are not significant from a hydrogeological 68 perspective. Consequently, the Southern Basin tends to equilibrate from groundwater withdrawals within a matter of months. An analysis of well hydrographs in the SWUCA indicates that peaks and valleys generally occur during the same period. While an individual well may vary because of local conditions and/or local pumping, persuasive evidence was presented to support the District's view that there is a regional pattern. While a particle of water moves very slowly throughout the Floridan Aquifer, pressure changes are translated much more quickly. In a confined aquifer like the Floridan, pressure changes significantly affect available water supplies and the direction of groundwater flow. The flow of the UFAS in the Southern Basin is derived principally from rainfall recharge that occurs in the Green Swamp and Lake Wales Ridge area, located along the northern and eastern edges of the basin, respectively. Down-gradient of the recharge areas, groundwater gradually flows west and southwest toward and into the Gulf of Mexico, except in southern Hillsborough and western Manatee Counties, where groundwater pumping has modified the natural flow pattern. The persistent flow lines currently found in the Southern Basin are fairly consistent with those in predevelopment times. Because the flow lines that formed the basis of the District's Southern Basin delineation have been persistent over the period for which maps are available, it is not anticipated that they will change by any significant degree. Even though the flow lines may shift slightly due to climatic conditions and/or withdrawals, and there may be withdrawals outside the flow lines that affect the basin, the persistence of the flow lines indicates that in terms of potentiometric pressure, a more dominant impact results from withdrawals within the Southern Basin as opposed to without. While there are no absolute physical divides between the basins, there is no significant interrelationship between hydrological events occurring on the north and south sides of the basin boundaries. The adverse impacts associated with saltwater intrusion along the ETB coast and lowered lake levels in the HR area are functions of the pressure within the aquifer system. The lowering of water levels in the Southern Basin can lead to a deterioration of water quality in vulnerable areas because of regional lowering of hydraulic heads throughout the interconnected aquifer system. Water level reductions ultimately lead to decreased pressure along coastal areas, which enables the upward movement of the saline waters that underlie the aquifer system. Similarly, when the potentiometric pressure decreases beneath lakes that are hydraulically well-connected to the UFAS, the downward movement of water accelerates, causing lake levels to drop. Monitor well hydrographs throughout the Southern Basin reflect short-term similarities between seasonal rainfall and water use patterns, which are characterized by depression in the spring and recovery in the fall. The amplitude of swings from season to season increases or decreases with the availability of rainfall. Cumulative pumping stresses in the Southern Basin have caused many wells in the basin to show similar hydrograph patterns in terms of annual highs and lows. While all wells in the SWUCA do not reflect identical patterns, there is clear evidence that the entire system is interconnected. For example, the District's flow model study conducted within the ETB WRAP concluded that up to 40 percent of the declines in the potentiometric surface within ETB resulted from pumping in Polk, Hardee and DeSoto Counties. The more persuasive evidence supports the District's decision to regulate the Southern Basin as one unified basin. 5. Boundaries of the SWUCA Defining a boundary for an underground aquifer system such as the Southern Basin, where there are few geological impediments to lateral groundwater flow, is a somewhat amorphous proposition. In defining the SWUCA boundary, the District relied upon available data regarding persistent flow lines reflected by the potentiometric surface. This method is commonly employed by hydrogeologists when establishing a boundary for an underground aquifer system. While persistent flow lines are influenced by physical or geological characteristics, the pattern of groundwater withdrawals can affect the potentiometric surface and the direction of groundwater flow. Thus, it is inevitable that some uncertainty exists in the definition of a hydrologic boundary based upon persistent flow lines, especially when changes in use patterns can influence the location of groundwater divides. Although such unavoidable factors inject some imprecision into any attempt to regulate groundwater, the lack of precision is not a basis for abandoning all attempts at regulation. While the District's delineation of the SWUCA as a separate regulatory area is premised upon its conclusion that the area operates as an identifiable groundwater basin, the District cannot realistically rely upon invisible, fluctuating hydrologic divides for regulatory purposes. Accordingly, in establishing the boundaries of the SWUCA, the District has relied upon natural and man-made surface features that approximate the location of the groundwater divide. In addition, the District continued and/or incorporated within the SWUCA previously identified regulatory boundaries. By using the boundaries established for the ETB and HR, the District hoped to circumscribe the areas of concern while utilizing boundaries that were already familiar to regulated users, District staff and the general public. The SWUCA boundaries are set forth in proposed Rule 40D- 2.801(3)(b)1, F.A.C. Several challenges were brought regarding the accuracy and appropriateness of the boundaries selected by the District for the SWUCA. Some Petitioners complained that the SWUCA boundaries were not sufficiently inclusive, while others claimed that the District's SWUCA delineation was too extensive and encompassed areas that do not contribute to the problems the District seeks to address. Among the SWUCA boundary issues raised 69 are the following: Areas Outside the Delineated SWUCA Boundary The District's failure to include the entire Southern Basin within the SWUCA boundary has not been shown to be arbitrary or capricious or to otherwise render the rules invalid. With the exception of a relatively small area lying north of the SWUCA's northern boundary, the SWUCA boundary delineation includes virtually all of the Southern Basin that lies within the District's jurisdiction. Some portions of the Southern Basin lie outside the jurisdiction of the District. Part of the northeast section of the Southern Basin lies within the regulatory jurisdiction of the St. John River Water Management District. Similarly, the South Florida Water Management District has permitting jurisdiction over portions of the southern and southeastern sections of the Southern Basin. Ideally, the entire Southern Basin should be included in the SWUCA, but the District has no authority to regulate permitting outside its jurisdiction. Groundwater withdrawals in the areas outside the District's jurisdiction can affect the potentiometric surface of the UFAS in the SWUCA. Water management district's boundaries are largely based upon surface water rather than groundwater divides. Chapter 373 does not provide guidance for solving jurisdictional obstacles to the comprehensive regulation of groundwater. No agreement has been reached with regard to water use permitting in the areas of the Southern Basin that lie outside the District's authority. The District has communicated the results of its studies to the South Florida Water Management District. The proposed SWUCA Rules contain no mechanism by which the District could adjust for effects of new or increased withdrawals from areas outside the SWUCA boundaries that are not subject to the same regulatory sanctions or stringent conservation measures as areas within the SWUCA. Considerable development activity has occurred in areas immediately adjacent to certain portions in the SWUCA. Petitioners have expressed concern that the proximity of some of these "external" development projects increases the possibility that water withdrawals from outside the SWUCA could adversely impact the SWUCA's potentiometric levels and thereby preclude the issuance of new SWUCA. permits in the 70 It is not clear from the record in this proceeding whether any external project realistically poses a threat to the water resources of the SWUCA. Because the flow lines of the Southern Basin have persisted over an extended period of time, it is highly unlikely that the effects of withdrawals outside the SWUCA could preclude the issuance of new permits within the designated area. The foregoing issues highlight the need for comprehensive water use regulation that is coordinated among all permitting agencies. However, the limitations of the existing statutory framework do not invalidate the District's attempt to regulate the use of water within the area subject to its jurisdiction. Northern Boundary of the SWUCA For the northern boundary of the SWUCA, the District has chosen State Road 60 in Hillsborough County, eastbound to its intersection with Countyline Road along the divide between Hillsborough and Polk Counties. The boundary then continues north along Countyline Road until it intersects Interstate Highway No. 4 ("I-4"). Because the actual hydrologic boundary of the Southern Basin more closely approximates the I-4 corridor that extends through Hillsborough County in a southwesterly direction, there is a triangular area north of State Road 60 in Hillsborough County - referred to during the hearing as the "Hillsborough Triangle" - that is located within the Southern Basin but not within the SWUCA. The area's exclusion from the SWUCA has been challenged by several parties. WUCA. State Road 60 was also one of the boundaries established for the ETB 71 During the rulemaking process, the District considered using the I-4 corridor as the northern boundary for the SWUCA. After considering objections from user groups in the area, the District decided to use State Road 60 as the northern boundary of the SWUCA. The northern boundary of the Southern Basin is located in a transition area from the well-confined UFAS to the south to a poorly or semi-confined aquifer system to the north. Along the transition area, the Intermediate Aquifer narrows significantly and flow lines shift seasonally. While there are hydrologic justifications to support using I-4 as the northern boundary of the SWUCA, the District's determination to use State Road 60 has not been shown to be arbitrary or capricious. Most of the Hillsborough Triangle is currently regulated under the District's NTB WUCA rules, which the District asserts will provide protections similar to those contained in the proposed SWUCA Rules. There is extensive groundwater use by strawberry growers in the Hillsborough Triangle. By utilizing State Road 60 as the SWUCA's northern boundary (and thereby excluding the Hillsborough Triangle), the District ensures that this principal user group will be regulated consistently under one set of rules. The District claims that it expended considerable effort to educate the strawberry growers during the NTB WUCA rule development process and that the area can be further addressed (if necessary) in conjunction with the District's upcoming review of the NTB WUCA. The District does not believe that the Hillsborough Triangle will be a future growth area in terms of new uses. In sum, regulatory considerations rather than hydrologic factors led the District to select State Road 60 rather than I-4 for the northern boundary of the SWUCA. While it makes sense from a hydrological standpoint to include the Hillsborough Triangle in the SWUCA -- as recommended by some District staff personnel -- the District Governing Board ultimately concluded that it was more important to consistently regulate a major user group under the same rules, especially since it theoretically has additional statutory authority to prohibit or restrict new or existing uses on a case-by-case basis. See e.g., Sections 373.119, .175, .223 and .246, F.S. This decision was not without thought or reason and has not been shown to be arbitrary, capricious or otherwise invalid. Some Petitioners suggested that the District's exclusion of the Hillsborough Triangle from the SWUCA was intended to and/or will result in facilitating the development of a wellfield on the Cone Ranch -- a 12,600-acre tract of land purchased by West Coast for purposes of developing a major regional wellfield. Lying in the northeast corner of Hillsborough County, just west of the Polk-Hillsborough line and north of State Road 60, the Cone Ranch is not a part of the SWUCA, nor is it within any other water use caution area at this time. The Cone Ranch has been considered a potential major new source of water for West Coast. The District's January 1992 Needs and Sources Report recognized Cone Ranch as part of a projected regional wellfield system to meet water demands in that area of the 72 District. No persuasive evidence supports Petitioners' claim that the District's decision to exclude the Hillsborough Triangle from the SWUCA was related to the Cone Ranch. The development of any new major wellfield will have to comply with District rules in existence at the time of application. Inclusion of Areas Outside the Basin Along the eastern boundary of the SWUCA, the District has included some areas that lie outside the Southern Basin. Because withdrawals in the subject areas could affect the stressed lakes nearby, the District's decision to include them within the SWUCA is reasonable. There is an area in northern Polk County, however, that also lies outside the Southern Basin, but is not in the vicinity of any stressed lakes. Referred to during the hearing as the "Polk County Nub," the area is included in the SWUCA because it is not currently subject to the rules of any water use caution area. The District contends that withdrawals in the Polk County Nub could extend beyond the boundaries of the groundwater divide and affect the SWUCA. There is no evidence, however, that withdrawals in the area have contributed to any of the existing SWUCA problems and, absent an extremely large withdrawal or a change in existing conditions, future withdrawals from the area will have a negligible impact on the SWUCA. While the District should monitor future withdrawal requests from the Polk County Nub, there is no reasonable basis for precluding future withdrawals in the area until the minimum aquifer levels in the SWUCA have been achieved. Accordingly, the District's decision to include the Polk County Nub in the SWUCA was arbitrary. Eastern Tampa Bay and Highlands Ridge The SWUCA Rules utilize the boundaries of the ETB and HR WUCAs but only for purposes of implementing and monitoring the SWUCA minimum aquifer level. (The District's methodology that uses the ETB and HR areas for purposes of assessing the status of the minimum aquifer level in the SWUCA is discussed in more detail below.) In all other respects, the areas will be regulated in a manner consistent with the remainder of the SWUCA. The existing ETB Rules -- which preclude any withdrawals that would cause a drawdown of more than two tenths of a foot in an area designated as the "most impacted area" (the "MIA"), where the impacts of saltwater intrusion have been most heavily felt -- will be withdrawn. It has been suggested that the withdrawal of this protection, which extends to withdrawals outside the SWUCA, could actually exacerbate saltwater intrusion. The District claims that any withdrawals outside of the SWUCA which would have a measurable impact upon the MIA can be regulated under the District's existing rules. See, Rule 40-2.301(1)(h). The District's decision in this regard has not been shown to be arbitrary, capricious or otherwise invalid. 6. Minimum Aquifer Level for the SWUCA The SWUCA Rules represent the District's first attempt to establish a minimum level for a groundwater aquifer on a regional basis. The effort is embodied in proposed Rule 40D- 8.628(1) which provides: Within the Southern Water Use Caution Area (SWUCA), the boundary of which is described in 40D-2.801(3)(b), F.A.C., the minimum water level for the upper Floridan aquifer is the 1991 annual average potentiometric surface of the upper Floridan aquifer. Permitted withdrawals from the upper Floridan aquifer will not be considered to be in violation of this level. The minimum aquifer level will not be used by itself to reduce permitted withdrawals existing as of [effective date of this rule]. It is the intent of this rule that the minimum water level of the upper Floridan aquifer with the SWUCA be achieved over a reasonable period of time, by reasonable means, and without undue effect on existing legal uses, through those provisions of Chapter 40D-2, F.A.C., which regulate water use within the SWUCA. In the event that any provision of this subsection (1): (a) is found invalid; or (b) is interpreted such that the District is required to, or does apply, use or implement the minimum level set forth herein in a manner different than set forth in this subsection (1), then the minimum level shall cease to be effective. If the minimum water level is found to be invalid, the District shall immediately commence rulemaking or any other proceedings to adopt a new minimum level and to amend Chapter 40D-2, F.A.C., or adopt other rules as may be appropriate to implement the new minimum level. [As published April 14, 1995, F.A.W Volume 21, No. 15.] Use of Potentiometric Surface as Basis for Regulation Regulation of water use from a highly confined basin upon an aquifer's potentiometric surface, which integrates all resource stresses within the basin, is preferable to simply regulating pumpage alone. Regulation based solely on the amount of water withdrawn does not account for other stresses, such as climate and changes in drainage, on the resource. Moreover, a minimum level based upon an aquifer's potentiometric surface can potentially maximize total aquifer yield, consistent with the District's mandate under Chapter 373 to optimize utilization of the resource. Propriety of Using 1991 Potentiometric Surface as Minimum Level The selection of an appropriate minimum aquifer level necessarily involves difficult policy choices. The District has been entrusted by the legislature with making those choices within the statutory framework of Chapter 373. As discussed in more detail in the Conclusions of Law, the District's choices are subject to review under Chapter 120, F.S. Under the applicable review standards, deference should be accorded to the District's discretionary choices exercised within the statutory framework. The District asserts that its selection of the minimum level is based upon a balancing of projected harm to water resources and the socioeconomic costs of reducing existing withdrawals. The proposed minimum aquifer level of Rule 40D- 8.628, F.A.C., is intended to limit -- on a regional basis -- water resource impacts related to saltwater intrusion and lowering of lake levels. One of the District's goals in establishing the minimum aquifer level is to ensure the achievement and maintenance of a positive hydraulic gradient that would minimize further movement of the freshwater/saltwater interface. The District believes its establishment of a minimum level is constrained by the extensive water use already in place prior to implementation of its permitting program. The minimum level chosen by the District has been challenged on the grounds that it allegedly fails to adequately protect water resources. The proposed minimum level for the SWUCA has also been challenged by certain Petitioners who allege that the District's methodology in calculating the minimum level is flawed, and that the District's minimum level proposal improperly treats permit renewals differently than applications for new withdrawals. Other Petitioners allege that the District has failed to establish a deadline for achieving the minimum level and/or does not mandate immediate reductions of existing withdrawal quantities. Finally, the District's inclusion of a "self-destruct mechanism" in the proposed rule and a provision withdrawing certain standard permit conditions have been challenged. Background When the District began to formulate a regulatory strategy for the SWUCA, it established as an operating premise that its goal was to halt further inland movement of the freshwater/saltwater interface. As District modeling efforts became more refined, the data indicated that continued movement of the saltwater interface could not be halted without drastic reductions in current pumping levels within the SWUCA. Consequently, the District changed its operating premise and chose a minimum level that is projected to allow continued upward and landward movement of the saltwater interface, while theoretically ensuring a seaward gradient of the potentiometric surface on an average annual basis. The District asserts that maintenance of the selected level will minimize adverse impacts that might occur if the gradient is reversed. The District Governing Board was presented with projections of how the saltwater interface would move under various rates of withdrawal from the aquifer over a 50-year planning horizon. Ultimately, the Governing Board chose the 1991 potentiometric surface as the minimum level. Although groundwater pumpage in the SWUCA was less in 1992, 1993 and 1994, and the use of the potentiometric surface from any of those years as the minimum level would further slow the rate of saltwater intrusion, the District Governing Board was concerned about the economic consequences of implementing a lower potentiometric surface as the minimum level since corresponding pumping levels would also have to be lower. Implicit in the District's selection was its determination that the rate of saltwater intrusion associated with the 1991 potentiometric surface approximates an acceptable balance between the needs of humans and the needs of the resource. It is not clear from the record in this case what information was presented to the Governing Board regarding impacts that would result in areas where saltwater intrusion will occur if the 1991 level is achieved and maintained. The Governing Board did not approve a gallonage yield in adopting a minimum level. Estimated groundwater pumping in the SWUCA during 1991 was 680 MGD, which is roughly the amount of groundwater that could be withdrawn from the SWUCA while still meeting the minimum level. The actual amount of water that could be withdrawn without exceeding the minimum level depends upon the spacial and temporal distribution of withdrawals throughout the Southern Basin. Optimal withdrawal distribution could potentially increase total aquifer yield. In a "Statement of Facts and Circumstances", supporting the SWUCA rules submitted to the Joint Administrative Procedures Committee ("JAPC") in September 1994, the District stated: The Governing Board has set as an operating premise that further saltwater intrusion is not acceptable. Further, Section 373.042(2), F.S. directs the District to set the level of groundwater in the aquifer at which further withdrawals would be significantly harmful to the water resources of the area. This necessitates that a minimum level for the potentiometric aquifer be established that will limit the movement of saltwater to approximately a halt. The District has determined that the 1991 annual average potentiometric surface for the Upper Floridan aquifer within the SWUCA should be established as that minimum level. ECOSWF points out that the District's interpretation of Section 373.042, F.S., set forth in the Statement of Facts and Circumstances is not consistent with its selection of the 1991 potentiometric level, because that level will not "limit the movement of saltwater to approximately a halt." Similarly, the "Purpose and Effect" statement published with proposed Rule 40D-8.628 states that the rule is intended "to prevent the further adverse impacts of saltwater intrusion and lowered lake levels, and to satisfy the requirements of Section 373.042." ECOSWF claims that these District statements and representations made as part of the rule development process are misleading because even if the 1991 potentiometric surface levels are achieved and maintained, the District will not accomplish its stated goals. As reflected by the Supplement Investigations Report, saltwater intrusion will continue to occur in the District over the next 50 years and beyond even if the minimum level is achieved and maintained. While the District's statements are somewhat confusing in view of the latest modeling results they do not provide a basis for invalidating the District's selection of a minimum level. Predicting movement of the interface is highly complex and uncertain, and the District's level of knowledge continues to evolve. It cannot be concluded from the evidence presented that the District has deliberately tried to mischaracterize its goals or ignore its expanding data base. Continued Saltwater Intrusion Computer modeling of the rate of saltwater intrusion results in nothing more than an estimate, since it is impossible to determine with certainty where the freshwater/saltwater interface is actually located and/or how much it will move. As discussed in more detail below, the District's initial evaluation after completion of the ETB WRAP indicated that maintenance of the 1991 potentiometric surface level throughout the SWUCA would effectively halt saltwater intrusion. Further modeling conducted included in the Supplemental Investigations Report indicated that the District's original projections may have underestimated the effects of maintaining the 1991 level. The later modeling projects that if the 1991 average annual potentiometric surface is achieved and maintained, the saltwater interface will continue to move landward at the rate of 0.90 mile to 1.75 miles over the next 50 years, or 3" to 6" per day. The movement will essentially occur along the entire coastal portions of the ETB WUCA, an area approximately 60 miles in length from north to south that encompasses portions of Hillsborough, Manatee and Sarasota Counties. In addition, the supplemental modeling shows that the saltwater interface will continue to move upward at the rate of 80-to-180 feet over the next 50 years, or 1.6 feet to 3.6 feet per year. The supplemental modeling is the best information currently available to predict future movement of the saltwater interface in the SWUCA. Thus, even if the goals of the SWUCA Rules are achieved and the 1991 potentiometric surface level is maintained, the best evidence indicates that the saltwater interface will continue to move landward and upward for at least the next 50 years. When presented with the results of the Supplemental Investigations, the District concluded that the profound socioeconomic consequences of reducing pumpage below 1991 levels outweighed the impacts of saltwater interface advancement that would occur if pumping was maintained at 1991 levels. Consequently, the District pursued a regulatory strategy that would maintain the 1991 level with minimal economic disruption. The District considered that the 1991 average annual potentiometric surface was reasonable and achievable since it was premised upon recent pumping distribution. Another important factor in the District's determination was that the 1991 potentiometric levels were, on average, above sea level all the way to the Gulf coast. ECOSWF objects to the District's selection of a minimum aquifer level that allows saltwater intrusion to occur at a rate and to an extent only slightly less than what would result if the highest groundwater use on record was allowed to continue. If the potentiometric surface resulting from the 1989 pumpage levels is maintained, the revised modeling predicts that the saltwater interface would continue to move landward at the rate of 1.02 to 2.5 miles, over the next 50 years, or 3.5" to 9" per day. ECOSWF argues that this predicted movement based on 1989 levels is not significantly different from the 0.90 to 1.75 miles (3" to 6" per day) predicted over the next 50 years if the 1991 average annual potentiometric surface is achieved and maintained. In other words, the District's selection of the 1991 level instead of the 1989 level results in a net improvement of only 0.12 to 0.75 miles in the total extent of saltwater intrusion over the next 50 years (.5 " to 3" per day). Recent estimates indicate that the Upper Floridan Aquifer System has lost approximately 7.5 percent of its freshwater storage capacity in the ETB region. ECOSWF claims an additional 10 percent of the aquifer's storage capacity could be lost during the next 35-50 years even if the proposed minimum level is adopted and achieved. It is not clear how the 7.5 percent loss in ETB corresponds to the capacity of the SWUCA as a whole. If actual pumpage in the SWUCA 1991 levels or the proposed minimum level is not otherwise achieved or maintained, the impacts on water resources in the SWUCA will be necessarily greater. The District is aware of these estimates. The District claims that it has considered the losses in the context of the overall capacity of the UFAS in the SWUCA and the economic consequences of immediately reducing pumping. It is not clear from the record whether the District has attempted to analyze the economic impacts of the projected continued movement of the interface. ECOSWF has not shown that the District failed to consider available scientific information, arbitrarily chose to disregard reliable scientific data, or elected to proceed without adequate information. Moreover, ECOSWF overlooks the benefits of establishing a positive seaward gradient, which maintenance of the 1991 potentiometric surface would engender. Positive Seaward Gradient Pumping in the SWUCA during 1989 resulted in potentiometric levels below sea level during at least a portion of the year in certain inland areas in southern Hillsborough and Manatee Counties. Eventually, if an aquifer's potentiometric surface remains below sea level, saltwater will fill the thickness of the aquifer inland to that point. Application of the Ghyben- 73 Herzberg principle indicates that a continuation of the 1989 potentiometric surface would ultimately result in seawater completely filling the aquifer through the central part of the SWUCA. For 1991 levels, the Ghyben-Herzberg approximation indicates that the saltwater interface would still reach equilibrium several miles from the coast, beneath the coastal counties of the ETB area. However, because 1991 potentiometric levels do not cause the potentiometric surface to be, on average, below sea level in the inland areas, a seaward gradient in the flow of freshwater would be maintained - this is a significant improvement over the conditions that would result from maintenance of 1989 levels. One of the primary reasons for the District's selection of the 1991 level as an acceptable minimum level was to ensure a continuous hydraulic gradient above sea level from inland areas to the coastline. Maintenance of a seaward hydraulic gradient would slow inland movement of the saltwater interface and help to ensure that the aquifer contains freshwater all the way to the coast. If the 1991 average annual potentiometric surface is achieved and maintained, saltwater intrusion will continue until equilibrium is achieved. Current estimates are that equilibrium will not be reached for several hundred years. The seasonal nature of withdrawals in the SWUCA may affect when and where the system reaches equilibrium. Some of the Petitioners have pointed out that the District's modeling was not run for sufficient periods into the future to establish where the saltwater interface would ultimately equilibrate (i.e., cease its inland movement). Accordingly, it has been suggested that maintenance of 1991 levels does not ensure that a positive hydraulic gradient will be maintained. The actual movement of the interface will depend upon the amount and location of pumping that occurs in the future. The District's modeling provides the best estimates of the expected movement for the foreseeable future. The District has instituted monitoring procedures that would enable it to determine if actual pumping is causing, or is leading to, the loss of a positive seaward hydraulic gradient. By selecting the 1991 potentiometric surface as the minimum aquifer level in the SWUCA, the District believed that saltwater intrusion would decelerate and lake levels would stabilize. The evidence supports the conclusion that maintenance of a positive seaward gradient will slow seawater intrusion and help prevent, at least for the immediate future, the catastrophic aquifer damage that would occur if the gradient were reversed. "Safe" or "Sustainable" Yield The "Purpose and Effect" section of the notice for proposed Rule 40D-8.628 as published on April 14, 1995, provides: As a result of a multi-year hydrologic study, the District has determined that groundwater withdrawals from the Floridan aquifer within the Southern Water Use Caution Area (SWUCA) have exceeded the sustainable yield. The resulting effects include saltwater intrusion and lowered lake levels. To prevent further adverse effects resulting from excessive withdrawals, and to satisfy 373.042, F.S., the proposed rule establishes the minimum level to be achieved for the upper Floridan aquifer within the Southern Water Use Caution Area... Vol. 21, No. 15, F.A.W. at p. 2296. Although this preamble indicates that the District has determined that groundwater withdrawals have exceeded "sustainable yield," the SWUCA Rules do not specifically establish a sustainable or safe yield for groundwater because the effects of pumping can vary depending upon climatic conditions, the location and/or timing of the withdrawals and accumulated stresses. Instead, the District chose to regulate withdrawals on the basis of maintaining potentiometric levels, and chose the 1991 potentiometric level in part because the pumping associated with the level closely approximated the safe yields analyzed during the ETB WRAP process. As used by the District, "safe" or "sustainable yield" for an aquifer refers to "the quantity of water available for man's use without causing unacceptable impacts to the water resources, associated natural systems, and existing legal uses of water." ETB WRAP p. 1-1. A proper determination of safe yield necessarily involves extensive scientific information and understanding and can be a costly and time-consuming process. A safe yield determination is not a purely scientific finding, since there is no standard or universally recognized definition for "unacceptable impacts." The determination necessarily involves value judgments, which must then be translated and incorporated into standards or measurements that can be applied by hydrologists, other scientists or technicians. The July 1993 ETB WRAP sought to make a safe yield determination for the SWUCA. As noted earlier, the starting point for the ETB WRAP was the District Governing Board's premise that further saltwater intrusion was not acceptable. The initial groundwater flow modeling for the ETB WRAP attempted to determine safe yield for the entire groundwater basin utilizing a conjunctive modeling approach. A groundwater flow model was designed by calibrating the average 1989 basin pumpage distribution with the 1989 average annual potentiometric surface levels. Based on the 1989 pumpage distribution, the model then systematically reduced water withdrawals, and the resulting potentiometric pressure heads were input into solute transport models. The solute transport models estimated the movement of the saltwater interface. Various model scenarios were run until the interface stabilized at or near its then-current position. The initial modeling projected that a continuation of 1989 groundwater pumping rates and distribution would cause the saltwater interface to continue its landward movement by 1.0 to 2.0 miles over the next 50 years. The ETB WRAP further estimated that 668 existing wells could be affected by the 1-to-2 mile encroachment of saltwater. Presented with this information, the Governing Board concluded that the estimated range of movement was not an acceptable level of saltwater intrusion. To actually halt the projected movement of the saltwater interface over the next 50 years, the initial modeling efforts estimated the SWUCA's safe yield to be 650 MGD to 700 MGD. The pumpage and potentiometric surface levels that resulted from the modeled safe yield scenario were similar to the average estimated pumpage and the average annual potentiometric surface during 1991. The April 1994 SWUCA Management Plan adopted the safe yield determination of the ETB WRAP. The Management Plan addressed the hydrologic elements of the safe yield determination by having as its "operating premise" the goal of no further saltwater intrusion. The Management Plan recognized that the District Governing Board was responsible for making the final safe yield determination based on its consideration of socioeconomic factors and potential for "unacceptable adverse impacts." In May 1994, further refinements and improvements to the modeling techniques demonstrated that continued movement of the saltwater interface would occur under what was previously considered the safe yield scenario (i.e., pumpage of approximately 650 MGD pumpage in the basin). The District's refined modeling conducted during the Supplemental Investigations became the best information available on the anticipated movement of the saltwater interface in the SWUCA over the next 50 years under different pumpage scenarios. Based upon the information it had developed, District staff believed that pumpage within the SWUCA would have to be reduced to approximately 300-400 MGD (based on 1989 distribution) to stop the saltwater interface at its then-current position. The District did not run a scenario using the refined and improved modeling to more accurately estimate the level of pumping that would completely halt movement of the interface, because it concluded that to require the immediate and drastic pumpage reductions necessary to reach the 300-400 MGD range would result in unacceptable economic impacts. Chapter 373 provides minimal guidance to district governing boards for making value judgments necessary for the appropriate protection of the state's water resources. Especially difficult are those policy decisions that involve resource protection based on evolving science and technology and the adverse impact that the decisions will have on the economy of a region that relies heavily on the ability to withdraw groundwater. Section 62-40.405 of the State Water Policy (which has been renumbered by the 1995 amendments as Rule 62-40.473, F.A.C.) sets forth some of the criteria that governing boards must consider in the establishment of minimum flows and levels. ECOSWF claims that the State Water Policy does not specifically incorporate a balancing test, but instead focuses on a scientific determination aimed at preventing "significant harm to the resources." The State Water Policy does not purport to delineate all of the factors to be considered in establishing a minimum level. Nothing in Chapter 373 or in the State Water Policy precludes consideration of socioeconomic factors in the establishment of minimum flows and levels. Indeed, determining what constitutes "significant" or "unacceptable" harm necessarily requires that damage to the resource be viewed in perspective. The District admits that the selection of the SWUCA minimum level was a policy decision by the Governing Board that resulted from balancing the harm to area water resources against the economic and social costs of adopting that particular level. The socioeconomic factors considered by the Governing Board in its determination of the rate and extent of acceptable saltwater intrusion and, consequently, the appropriate minimum aquifer level, were discussed only in general terms during this proceeding. As part of its rulemaking process, the District prepared a lengthy Economic Impact Statement ("EIS") which was introduced and made part of the record in this case. Some of the Petitioners challenged the EIS at the outset of these proceedings, but all such challenges were dismissed prior to or during the final hearing. The District's EIS was premised on the assumption that further saltwater intrusion would not occur if the minimum level was achieved and maintained. It is not clear whether any amendments or modifications were made to the EIS after the District determined that halting saltwater intrusion was not a viable option. Achievement of Minimum Level by a Specific Time The SWUCA Rules do not specifically require that the minimum aquifer level be achieved or maintained. Saltwater intrusion in the UFAS within the SWUCA began with the first groundwater withdrawals from the aquifer, and its extent and significance have increased as groundwater withdrawals have increased over time. The District's determination that saltwater intrusion is a long-term problem that can be addressed over a period of time has not been shown to be arbitrary or capricious. Under proposed Rule 40D-8.628, permitted groundwater withdrawals at the time the rule becomes effective will not be deemed in violation of the minimum level. No persuasive grounds have been provided to invalidate the District's decision in this regard; however, as discussed below, there are problems with the District's proposed application on renewal. Conflict With Existing Rules and Water Quality Standards Existing Section 4.5.1 of the District's Basis of Review provides that "significant saline water intrusion includes the movement of a saline water interface to a greater distance inland or towards a potable withdrawal than has historically occurred as a consequence of seasonal fluctuations, or a sustained increase from background levels in solute concentrations." The proposed SWUCA Rules would not alter this definition. ECOSWF notes that achievement and maintenance of the proposed minimum level for the SWUCA would allow "significant saline water intrusion" as defined by the District. ECOSWF also claims that the continued movement of the saltwater interface in coastal counties may result in violations of UFAS groundwater quality standards for chlorides, total dissolved solids and sulfates. With respect to the apparent conflict with BOR Section 4.5.1, the District contends that its actions with regard to the SWUCA are being taken pursuant to Rule 40D-2.801, F.A.C., which governs the declarations or delineation of Water Use Caution Areas. The District claims that these provisions allow it to override the specific requirements of the Conditions For Issuance -- in particular Rule 40D-2.301(1)(f), F.A.C., which involves prevention of significant saltwater intrusion -- when it needs to be overridden to address a regional problem in a more comprehensive manner. As discussed in the Conclusions of Law, Chapter 373 does not require that the District select a minimum aquifer level that halts saline water intrusion and/or avoids any violation of water quality standards. Instead, the statute directs the District to establish a minimum level that prevents significant harm to the resource. Continued Issuance of Permits in the SWUCA The ETB WRAP and other studies conducted by the District have arguably developed adequate documentation of resource problems and overpermitting to warrant denial of applications for new groundwater withdrawals from the UFAS within the SWUCA based application of Rule 40D-2.301(1)(f), F.A.C. To date, the District has not exercised that authority. Instead, the District has continued to process and approve new applications for groundwater withdrawals while the SWUCA Rules were being developed and during this proceeding. The District claims that a comprehensive approach is necessary to address the regional water use issues, and that it decided not to deny individual permits in the interim based on the region's problems. The District is concerned that the existing rules may not provide a sufficiently clear basis for denying the applications and would present the District with the possibility of numerous individual hearings without a comprehensive, regional rule upon which to rely. The District staff was concerned about the resulting drain on administrative staff and resources. The District was also concerned that a case-by-case approach would not enable it to focus on limiting new quantities while providing existing users an opportunity to reduce their permitted quantities over time. The District claims it is difficult to assess, on an individual permit basis, whether a specific withdrawal significantly induces saltwater intrusion because its current regulatory models are not designed to address regional cumulative impacts. The District believes the rulemaking provisions of Chapter 120 offer the best opportunity for the regulated public and other substantially affected persons to participate in the development of a solution to what it considers a regional problem. The District claims that it continues to monitor new withdrawal quantities being permitted within the SWUCA and will take further regulatory steps if necessary. While the District's existing rules offer a cumbersome method for addressing saltwater intrusion issues through individual permits, the District's determination to continue processing applications for permits during the pendency of these proceedings, thereby increasing total permitted quantities within the SWUCA, is troublesome, especially since new permitted quantities would be entitled to preferential treatment under the proposed SWUCA Rules. However, the District's individual permitting decisions, are beyond the scope of this proceeding. Impacts on Wetlands, Surface Water Levels, Stream Flows Some evidence was presented that groundwater withdrawals have impacted wetlands in the SWUCA. Although withdrawals from the intermediate aquifer can be more easily linked to wetland impacts in the SWUCA, UFAS withdrawals probably are causing impacts in some areas. The impacts may be the result 74 of increased induced recharge from overlying aquifers due to reductions in the potentiometric surface of the UFAS and/or may be the result of changes in the hydroperiods of the wetlands due to the seasonal nature of the groundwater withdrawals, i.e., heavy agricultural pumping during the growing season. Thus, while there is data that suggests the surficial and intermediate aquifers have not declined over time, the seasonal nature of groundwater pumpage may cause significant declines during periods of heavy pumpage with a rebound to natural levels when pumping ceases. The seasonal fluctuation in groundwater levels can be significantly different from the natural hydrological cycles of the wetlands and may be impacting some wetlands and upland vegetation in certain areas of the SWUCA. The District has not studied in any detail the impact of groundwater pumping on wetlands in the SWUCA, and the full extent and cause of impacts to wetlands in the SWUCA is not clear from the evidence presented. The minimum level selected by the District was not intended to address impacts to wetlands or other natural systems that may occur as a result of groundwater pumpage in the SWUCA. ECOSWF suggests that the failure of the proposed minimum level to afford such protection renders it invalid. It is not clear, however, how or whether a minimum aquifer level could be developed for the SWUCA that would provide any significant protection for wetlands. Generally in the SWUCA, there is a confining layer between the Floridan Aquifer and the surficial and/or intermediate aquifers. The confining layer is not homogenous and there are areas with fractures, fault zones and/or discontinuities that can lead to localized water table drawdowns when groundwater pumping occurs. Many impacted wetlands may actually be aligned along areas where the confining layer is thin or discontinuous. ECOSWF points out that the periods of maximum pumpage in the SWUCA coincide with the growing season. Because of the importance of this season to the natural vegetative communities, ECOSWF claims that impacts to natural systems will be determined largely by the maximum drawdowns that occur during periods of high pumping. Impacts to lakes that are connected to the surficial and intermediate aquifer system may similarly be related more to maximum drawdowns rather than average conditions. Thus, the potentiometric rebound that occurs as a result of seasonal pumpage may not prevent the detrimental effects of heavy pumping on natural systems even though it may reduce or slow saltwater intrusion. In view of these factors, it was suggested that the minimum level should be based upon maximum drawdowns rather than average drawdowns over the year. However, the evidence was insufficient to establish that the District's decision to base the minimum level on average drawdown conditions was arbitrary, capricious or otherwise invalid. The minimum aquifer level was primarily intended to address saltwater intrusion. It is not clear whether there is currently an adequate scientific basis to effectively address other impact issues through establishment of a minimum level. The District contends that achievement and maintenance of the proposed minimum aquifer level in the SWUCA will help restore and stabilize lake levels. No modeling has been done and no specific evidence was presented on the precise effect or relationship between the minimum level and the restoration or stabilization of lake levels. The evidence presented was sufficient to establish that adoption of a minimum level for the UFAS in the SWUCA will help stabilize lake levels, particularly for lakes directly connected to the UFAS. ECOSWF also complains that in selecting a minimum aquifer level for the SWUCA, the District did not adequately consider the cumulative regional impacts of groundwater withdrawals on surface waters and stream flows. Yet, ECOSWF did not establish that sufficient scientific knowledge is currently available to address cumulative impacts of groundwater withdrawals on surface waters through the establishment of a minimum aquifer level for the UFAS. The evidence revealed that the District's current water use permitting rules do not provide a good mechanism for considering the impacts of groundwater withdrawals on stream flows or surface water levels. The adoption of a minimum level for the UFAS in the SWUCA would help stabilize potentiometric levels and thereby help prevent groundwater withdrawals from further impacting existing flows and surface water levels. No persuasive evidence was presented that a minimum aquifer level for the SWUCA can provide any other protection, nor was persuasive evidence presented that the level selected by the District will lead to impacts of such magnitude that the selection should be declared arbitrary or capricious. Similarly, some Petitioners have suggested that any regulatory strategy for the UFAS in the SWUCA must include the area's widely varying intermediate aquifer. However, no persuasive evidence was presented to establish that the District's determination to focus a regional regulatory strategy solely on the Floridan Aquifer was arbitrary or capricious. The intermediate aquifer is found throughout the Southern Basin and consists of water-bearing units and confining beds that lie between the surficial and Floridan Aquifer. The confining beds restrict the vertical movement of groundwater. The intermediate aquifer system varies significantly throughout the Basin. In areas south of Polk County, it is used for domestic and public water supply, and in eastern Charlotte and southern DeSoto Counties, it is a major source of irrigation water. Several hundred feet thick in southern Charlotte County, the intermediate system thins out and eventually terminates in the northern part of the Southern Basin resulting in a more direct hydrological connection between the Floridan Aquifer and the overlying surficial and intermediate aquifers in that area. It is not clear what or how a regional strategy for the intermediate aquifer would alleviate Petitioner's concerns. In the meantime, it is important to develop and implement a strategy for saltwater intrusion in the SWUCA. Conclusion In sum, the District has extensively studied the groundwater problems in the SWUCA, considered all useful data, and relied upon the best information available in reaching its conclusions. The evidence indicates that achievement and maintenance of the 1991 potentiometric surface will not halt the upward and landward movement of the saltwater interface, therefore some additional wells will be lost in the coastal areas of the SWUCA. Moreover, the minimum level selected by the District will probably not provide much protection for wetlands in the SWUCA. Nonetheless, there are important benefits that could be realized through achievement and maintenance of the proposed minimum aquifer level. The size of the aquifer, its ability to recover from both seasonal withdrawal fluctuations and long-term changes in potentiometric levels, and a program of constant monitoring to ensure the maintenance of a seaward gradient, diminish the need for immediate, drastic measures. The determination to accept some further movement of the saltwater interface and the resulting manifestation of impacts in certain vulnerable areas is not inherently inconsistent with Chapter 373, as long as it is based upon a deliberate evaluation of the best available information and is accomplished within the existing regulatory framework. Aside from the implementation aspects of the proposed minimum level discussed below, the evidence did not establish that the District's selection of the 1991 potentiometric surface as the appropriate minimum aquifer level was arbitrary, capricious or otherwise invalid. District Methodology for Calculating and Applying the Minimum Level In the proposed SWUCA Rules published on December 2, 1994, the District included a map of the Upper Floridan's 1991 average potentiometric surface and indicated that the map would serve as a delineation of the minimum level for the UFAS within the SWUCA. The rules provide that until the potentiometric surface throughout the area met the indicated levels for a five- year period, no new permits would be issued within the SWUCA. During Phase I of these proceedings, evidence was presented that under the methodology in the December 2 version of the rules, withdrawals or seasonal fluctuations that caused even minor shifts of localized potentiometric contour lines would have effectively precluded the issuance of new permits within the entire SWUCA. Following the completion of Phase I, the District decided to propose a new methodology for calculating and applying the minimum level for the SWUCA. On April 14, 1995, the District published notice that it was withdrawing the methodology published in the December 2 version of the rules. In its place, the April 14 Modifications set forth a proposed new procedure for deriving and applying the minimum level. Although the new method was still based on the 1991 potentiometric surface, the new approach calculated an annual average potentiometric surface for the SWUCA as a whole. In addition, annual average potentiometric surface levels were also calculated for the separate areas previously designated as the ETB WUCA and the HR WUCA. Under the April 14 Modifications, the minimum level on average would have to be achieved in the ETB area, the HR area, and the entire SWUCA over a five-year period before the District would consider issuing permits for any new quantities in the SWUCA. In adopting the new methodology, the District sought to provide more flexibility within the regulatory scheme so that new permits would not necessarily be precluded as a result of seasonal or localized lowering of the potentiometric surface in one small area. As noted in the Preliminary Statement, certain Petitioners sought entry of a summary final order finding that the District's actions in withdrawing the original proposal and publishing a new methodology were improper or invalid. After extensive argument and briefing by the parties, the motions for summary final order were denied for the reasons set forth in the Order Denying SFO entered on September 8, 1995. The parties to this proceeding were afforded a reasonable opportunity to conduct discovery with respect to the new methodology and a reasonable opportunity to present evidence challenging the proposal. The new computer-assisted methodology calculated minimum levels for each of the three identified areas based on an average of the USGS potentiometric surface maps for May and September 1991. The following District calculations of average annual potentiometric surface areas for 1991 were specified in the April 14 Modifications as the minimum levels for the UFAS in the SWUCA: 46.8 feet for the SWUCA as a whole; 17.4 feet for Eastern Tampa Bay; and 78.3 feet for the Highlands Ridge. The more persuasive evidence established that the District's methodology in calculating the minimum levels -- including the use of an annual average, the selection of a 1,000- square-meter cell for the computer gridding, and the determination to calculate the levels to one tenth of one foot (.1') -- was scientifically and statistically sound. 1. USGS Maps The USGS potentiometric surface maps depict the hydraulic head distribution within a geographic region. Since 1975, the USGS has prepared maps for the District for the months of May and September each year. The May map represents the end of the dry season, when heavy pumping reduces the potentiometric surface to what is usually its lowest point for the year, while the September map generally reflects the highest potentiometric surface following recovery of the aquifer from seasonal pumping and rainfall. To prepare the maps, the USGS measures water levels in about 600 wells throughout the District over a two-week period. Trained USGS hydrologists or technicians take all of the measurements used to derive the maps, and data points include both production and monitoring wells. In addition, the USGS continuously operates recorded wells throughout the District. All of the District's regional groundwater monitoring wells are available to the USGS, but the District exercises no control over the measurements or the mapping process. Measurements are logged into a computerized database, which is then evaluated with respect to prior water levels of the wells to see whether anomalies appear in the data. Maps prepared over the past 25-to-30 years provide historical data for determining irregularities, and about two percent of the readings are discarded as aberrations. Because the USGS seeks to ensure that map contour lines accurately depict general groundwater flow conditions without rigorously adhering to any particular measurement, hydrologic judgment is involved in preparing the maps. The data collection procedures and map preparation are subject to review at the local USGS office, its sub-district office, and state office in Tallahassee. The USGS requires review outside of the originating office to guard against local bias in measurement interpretations. The USGS maps contain the standard qualification that they are accurate to plus-or-minus one-half of a contour line, which is a random variation that may occur at any one point depicted on a map when compared with an actual measured value at that point. The data points used in preparing the USGS maps can change from cycle to cycle, i.e., the same information is not used in the maps' preparation each year. The addition or deletion of data points can influence the location of contour lines on the USGS maps. Some parties have argued that the District's proposed regulatory strategy is scientifically flawed because the lack of continuity in data points means that a change in a contour line would not necessarily reflect a change in the underlying resource. The more persuasive evidence, however, was that any differences that may occur would be minor and would be averaged-out over the area(s) in question. The evidence established that the USGS maps represent the best available information on potentiometric surface levels and the condition of the Upper Floridan Aquifer System. Moreover, the evidence established that it is reasonable for the District to use the USGS potentiometric surface maps as a basis for its regulation of groundwater use. 2. Conversion of USGS Maps to District Surface Grid 448. To derive the potentiometric surface averages for the ETB, HR and entire SWUCA contained in the proposed rules, the District began with the 1991 May and September USGS potentiometric surface maps. It then constructed a 1000-square-meter grid that was superimposed over the SWUCA area on both maps, using ARCINFO computer software that calculated an average of May and September values for each grid cell. Rather than using actual well measurements, the contour lines are established by estimating a 75 value for each cell through a linear interpolation process. The District verified the results by comparing actual data point values depicted on the USGS maps for May and September 1991 with the model-predicted values at the same location. The evidence established that the District's methodology was scientifically sound. 3. Use of Annual Averages 449. The District's computerized averaging of the May and September potentiometric surfaces is intended to approximate the average annual levels for the area. The District makes no independent inquiry into the accuracy of the contour lines depicted on the May and September USGS maps. The USGS does not prepare average annual potentiometric surface contour maps, and several parties challenged the District's reasoning and methodology in proposing to regulate groundwater withdrawals on the basis of averages. 450. The more persuasive evidence established that the averaging of May and September potentiometric surface maps to indicate overall aquifer conditions is a reasonable method generally accepted in the scientific community. The averaged data can be used to determine changes in the resource over time. The suggestion by some Petitioners that the average maps are "manufactured data" inappropriate for regulatory purposes is rejected. 451. A District study comparing the accuracy of the annual figures obtained by averaging the May and September USGS maps with a mathematical average derived from continuously monitored well data confirmed that the averages reasonably approximate a rigorously derived mathematical average based upon continuous well data. There was no bias in the uncertainty towards over or under estimation of the condition of potentiometric surface conditions. Any inaccuracies introduced by averaging May and September levels are random and reduced or minimized by averaging the data from a large number of wells. Because digitalization of the contour lines would be consistently applied using the same approach, it is not critical whether the calculated average surface corresponds to actual data for a specific point at any time. 452. There is no question that for monitoring saltwater intrusion and guarding against serious damage to the resource, it is useful to consider the worst aquifer condition or lowest potentiometric levels which generally occur during heavy groundwater pumping in May. However, the District's decision to regulate withdrawals on the basis of averaged conditions, as opposed to best or worst condition, has not been proven arbitrary, capricious or otherwise invalid. The annual average condition is trends. useful for purposes of detecting long-term 76 4. Five-Year Rolling Average 453. Proposed Rule 40D-8.628, F.A.C., would regulate new groundwater withdrawals on the basis of a five-year rolling average. Average potentiometric levels for each of the designated regions for five consecutive years would be averaged to determine the value that would then be compared with the minimum levels, i.e., 1991 average annual surface levels set forth in the rule. A potentiometric surface level falling below the 1991 baseline in any one year would not necessarily trigger the rule's restrictions if the five-year rolling average remains above the baseline. 454. By averaging several years together, a better indication of the aquifer's long-term health can be obtained, because drought events and other short-term or extreme fluctuations can be averaged-out. In addition, the methodology can potentially mediate the effects caused by anomalous sub- regional conditions. 5. Use of One-Foot Increments The USGS maps which form the basis for the District's calculations show only contour elevations rounded to the nearest foot. Some parties have objected to the District's rounding of averages in Rule 40D-8.628 to one tenth of one foot (.1'). The more persuasive evidence established that it is scientifically and statistically acceptable and not "overly sensitive" to calculate the averages to 0.1 foot. Contrary to the suggestion of some Petitioners, the interpolations inherent in the methodology for deriving the numeric levels do not vitiate the District's decision to calculate and apply the minimum levels to an accuracy of 0.1-foot. Imprecision intrinsic to the process of preparing the USGS maps and calculating the annual average potentiometric surfaces is irrelevant when considered over a large area, as long as the methodology contains no inherent bias and is consistently applied over time. The procedure proposed by the District would produce a reasonable and consistent method of calculating and applying the minimum levels. Using anything larger than 0.1-foot could allow the condition of the resource to fluctuate too widely. Achievement of Minimum Levels in the SWUCA, ETB and HR WUCAs Before New Withdrawals Considered The SWUCA Rules would require the five-year average potentiometric level to be above the 1991 average potentiometric level in each of three areas -- the ETB WUCA, the HR WUCA and the entire SWUCA -- before the District would consider applications for the withdrawal of new or additional quantities of SWUCA. groundwater within the 77 The levels set forth in proposed Rule 40D-8.628 were derived by calculating averages of the potentiometric surface for each of the areas involved utilizing the methodology described above and applying it to the appropriate segments of the District's 1,000-square-meter surface grid. The same grid segments could be used each year. Although separate measurements and comparisons would be made for each of the three areas, they would still be regulated as a unit. Rule 40D-8.628 would not be considered met and no permits for new quantities would be issued if the aquifer level of any one of the three areas remained below the established minimum level. Calculating the minimum aquifer level over a broad area may not provide sufficient detailed information regarding the condition of the resource, thereby potentially masking water resource problems. In other words, if a basin-wide average is used, the regulatory program may fail to detect serious problems in ETB or the HR. Moreover, using an average for the entire area would not necessarily protect the positive seaward gradient within the aquifer, thereby preserving discharge of freshwater through the system. Using sub-areas in different positions along the groundwater flow path is desirable because what happens in one zone can affect the available water within the other. The precise boundaries of the sub-areas are not necessarily important, but zones that are perpendicular to groundwater flow lines are useful in monitoring and maintaining the seaward gradient. It is essential that the use of monitoring areas remain constant over time. The District's selection of Eastern Tampa Bay and the Highlands Ridge as separate areas for calculating minimum levels was premised upon its determination that the detrimental effects of historical over-pumping had been previously manifest in the two areas. In addition, the areas' boundaries were well-known to the regulated public. Under the proposed rules, the ETB and HR sub-areas will essentially serve as monitoring areas for purposes of determining whether the appropriate gradient is being maintained throughout the aquifer system. In sum, the more persuasive evidence establishes that the District's determination to use an area-wide average, together with separate averages for the ETB and HR areas, is a reasonable and logical decision that represents a significant improvement over the proposed methodology published in December, 1994. Several Petitioners have objected to the District's selection and methodology for applying the minimum aquifer level in the SWUCA on the grounds that it unduly penalizes counties. inland 78 In this regard, Petitioners point out that if the ETB WRAPs estimated "safe yield" quantities -- 150 MGD for ETB and 550 MGD for the remainder of the SWUCA -- are compared with actual pumping figures for the years subsequent to 1991, it appears that the ETB has exceeded its safe yield pumping levels by a significant amount, while the remainder of the SWUCA has been yield. pumping at levels below or very near its safe 79 As expected, the five-year average potentiometric levels confirm that the ETB is below the minimum level proposed in Rule 40D-8.628, while the SWUCA as a whole and the Highlands Ridge are at or close to the proposed minimum levels for those areas. Petitioners contend the proposed rules would unfairly preclude the issuance of new permits in Polk, Highlands, DeSoto and Hardee Counties when only ETB has failed to meet its "safe yield" pumping limits. This argument ignores the interrelationship of withdrawals throughout the Southern Basin and misapprehends the purpose of the "safe yield" determinations in the ETB WRAP. The safe yield determinations were not intended to be allocations to the respective areas. The District's scientists do not believe that over the five-year rolling-average period, aquifer levels will rise in the HR or the overall SWUCA while falling in the ETB sub-area, because of the high degree of interconnectivity within the system. Since 1981, there has been only one year (1989-1990) when the average potentiometric surface in both the HR sub-area and the entire SWUCA increased, while the ETB sub-area average decreased. In all other years since 1981, the three averages have moved in concert, except 1991-1992 when the SWUCA and ETB averages decreased and the HR average did not change. While an anomalous climatic event or short-term change in pumping patterns in one portion of the Southern Basin could cause a divergent fluctuation to occur in the short-term, it is unlikely that the deviation would be sustained over a five-year period. Using five-year averages allows the District to factor- out short-term pumping changes and base its permitting decisions on the comprehensive health of the SWUCA's water resources. Even if the ETB were the only area that did not meet its minimum level, it would not be advisable to allow new withdrawals along the Highlands Ridge because under the regional flow pattern, withdrawals from the HR would deplete the availability of the resource along the coast. The HR is a primary source of groundwater flow for the ETB and intervening areas, and increasing pumping along the HR could reduce the amount of groundwater available for the rest of the SWUCA. Thus, even though the ETB area currently shoulders the brunt of saltwater intrusion, the concentration of regulatory restrictions only within the ETB is not an acceptable approach to the control of saltwater intrusion since the potentiometric surface in the ETB is influenced by withdrawals from the entire groundwater flow path from the HR to the coast. In other words, if upstream users are allowed to continue to withdraw additional amounts of water, more problems may be created for downstream users. Because of the interconnectedness of the UFAS in the Southern Basin, changes in groundwater pumping propagate and impact the potentiometric surface of the entire Basin, even though the impact of a particular withdrawal may be noticeable only on a localized level. While inland counties in the SWUCA may show little direct evidence of saltwater intrusion and lake levels have been relatively stable -- some even showing recent improvement from historical lows -- the permitting of groundwater withdrawals from inland counties must be considered in light of overall permitting in the SWUCA and the impact of all areas' pumping on saltwater intrusion. While Petitioners complain that saltwater intrusion and declining lake levels are local problems that should be controlled by regulating uses within the affected local areas, the greater weight of the evidence supports the District's conclusion that there is a regional component to saltwater intrusion and declining lake levels. The District has not directly factored -- in recharge characteristics and aquifer transmissivities as parts of its regional analysis. The District concluded that trying to factor those issues into the analysis would further complicate an already complex matter. This decision has not been shown to be arbitrary or capricious. The evidence established that the District has considered the historical trends of water use throughout the District, as well as the limitations on some of the data, in reaching its conclusion that as a general rule, the potentiometric surfaces in each of the three identified areas are interrelated and tend to move in concert. No persuasive evidence has been presented to refute the District's conclusion. It should be noted that the minimum levels set forth in proposed Rule 40D-8.628 are based upon an assessment of the current condition of the UFAS, the hydrogeology of the SWUCA, and the projected impacts of future pumping under the current permitted withdrawal distribution. The minimum levels established for the three areas were not intended to create allocations of groundwater to the respective areas. Some Petitioners contend that, rather than (or in addition to) maintenance of an average potentiometric surface, an appropriate regulatory program should require adherence to "safe yield" by county or some other geographic sub-area. Such "safe yield" determinations based on political boundaries are not mandated by Chapter 373, and there is no hydrologic basis for such determinations. While it is sometimes necessary to utilize surface features or political boundaries to implement a regulatory program (particularly for groundwater,) any such use should be rationally related to the hydrogeology and not totally random. DeSoto and Hardee Counties have objected to their inclusion in the SWUCA. They note that the point in DeSoto County closest to the Gulf of Mexico is approximately 15-20 miles from the coast, while that distance for Hardee County is about 40-45 miles. Moreover, there are no natural lakes in Hardee County and only one natural lake in DeSoto County. Thus, the counties contend that the major concerns addressed in the SWUCA Management Plan and Rules are largely irrelevant to them. DeSoto and Hardee Counties rely principally on groundwater for public supply, agricultural and industrial uses. They are concerned that the SWUCA Rules will preclude the issuance of new water use permits in their counties, thereby negatively affecting growth and economic development. They point out that general groundwater use in DeSoto and Hardee County has declined since 1975, particularly from 1989 through 1994. While the counties' concerns are relevant issues to consider in developing an equitable allocation of water supplies, they do not provide a basis for ignoring the need to regulate the groundwater resources of the Southern Basin under a regional approach. In sum, the District's methodology for calculating and applying the minimum aquifer level in each of the three areas based on five-year averages is a reasonable approach in view of the persuasive evidence that the SWUCA is a well-confined, highly transmissive basin in which all groundwater users share an interdependent responsibility for the condition of the aquifer system. Issuance of New Permits Upon Achievement of Minimum Level Some Petitioners claim the SWUCA Rules are vague because they do not delineate how permit applicants will be alerted when the five year averages have been met for each of the three designated areas so that permit applications for new withdrawals will be considered. Although the Rules do not specifically address how or when the District would notify potential permittees that new applications would be processed, District regulatory personnel testified during the hearing that upon final adoption of the SWUCA Rules, aquifer levels of each designated area would be evaluated for the five immediately preceding years to determine whether the minimal levels had been met. Thereafter, the District would make the determinations on an annual basis after receiving the September USGS potentiometric surface maps. The procedure thus described is reasonable and consistent with the language of the rules. A superficial review of the minimum level provisions in the SWUCA Rules indicates that the issuance of new permits would be a relatively simple matter after the five-year averages in each of the designated areas have achieved the specified levels. A closer examination, however, reveals certain problems. The proposed addition to Section 4.3 of the BOR provides that new amounts of groundwater will ...be permitted to be withdrawn from the Floridan Aquifer when the potentiometric surface has, for five consecutive years, been above the minimum level...and the potentiometric surface resulting from the proposed withdrawals together with the annual average withdrawal for the previous five years as determined by the District will remain above the minimum level established in 40D- 8.628... The District intends to follow its current practice of applying computer modeling to assess the impact of a proposed new withdrawal. In the SWUCA, the District would use its regional model to assess cumulative impacts. The District's witnesses explained that to project whether the minimum levels would be violated, a proposed new withdrawal would be modeled cumulatively with existing permitted quantities rather than actual use quantities. Thus, even when the minimum levels have been achieved according to the five-year averages, new permits will not automatically be granted. Current permitted quantities in the SWUCA total approximately 1.35 to 1.5 billion gallons per day. The permitted quantities are not expected to be reduced to less than 1 billion gallons per day, even if the rules' proposed efficiency and conservation measures are implemented fully over the next 10 years. Accordingly, it does not appear there is any feasible or practicable way that additional groundwater withdrawals in the SWUCA will be permitted in the foreseeable 80 future. Furthermore, if no new permits are granted for several years, it is reasonable to expect there will be pent-up demand resulting in multiple applications being filed as soon as the District announces that new withdrawal applications will be considered. The proposed rules do not describe a process for reviewing, prioritizing, and/or permitting multiple applications for new quantities of UFAS groundwater within the SWUCA. In this regard, the rules are vague and vest unbridled discretion in the District. Implementation of Minimum Level Provisions Recent projections indicate that competition for groundwater in the SWUCA will rise significantly over the next fifty years. The SWUCA Management Plan projects that, if left unchecked, total groundwater use in the SWUCA would increase to approximately 1.3 billion gallons per day by the year 2020.81 As noted above, the highest water use on record in the SWUCA to date was during 1989 when estimated groundwater pumpage was 832 MGD. The consequences of 1989 pumping highlighted the need for regulation to limit withdrawals to protect the resource. While strong arguments can be made that the public interest requires the District to balance conflicting demands in a manner that affords greater protection to the resource than provided by the selected minimum level, the District has chosen a strategy that seeks to minimize economic impacts. As discussed above, the minimum level would reduce, but not halt, saltwater intrusion and would help stabilize lake levels. The District has been granted broad authority to balance various interests and make the difficult choices. However, the District's mechanism for achieving its selected goals must conform to the statutory framework. In certain key respects, the District's proposals conflict with that framework. Significantly, the District's proposed implementation of the SWUCA Rules would not require existing permitted uses (or their renewals) and certain other classes of permits to meet or comply with the minimum aquifer level. Proposed Rule 40D-8.628(1) provides in part that "[p]ermitted withdrawals from the upper Floridan aquifer will not be considered to be in violation of [the minimum] level." In other words, any permit in existence at the time the SWUCA Rules are formally adopted will not have to meet the minimum aquifer level set forth in the rules. Furthermore, even when a permit is up for renewal, the minimum level would not be applied. Originally published in the rule amendments of February 10, 1995, the language (regarding permitted withdrawals) in proposed rule 40D-8.628(1) resulted from a settlement agreement with several parties that had initially challenged the proposed SWUCA Rules. According to the District, the statutory directive to establish minimum flows and levels did not anticipate a regulatory scenario where existing use exceeded an aquifer's safe 82 yield. Thus, the District asserts that the statute provides no guidance for implementing a minimum level in a situation where existing permitted quantities exceed what is determined to be the appropriate minimum level of the resource. The District contends that it must be accorded the discretion to determine an appropriate minimum implementation strategy based upon the condition of the resource, the hydrogeology of the affected area, the amount of withdrawals from the resource, and the nature of the uses involved. For example, in the SWUCA, the District claims that only recently has it developed a sufficient understanding of the resource to attempt to establish an appropriate minimum level. In the meantime, however, an economy developed that is dependent upon the ready availability of groundwater. Even though the District is now aware that permitted quantities in the SWUCA greatly exceed safe yield, the District has chosen not to impose any reductions on existing permitted quantities. Moreover, the District has also decided that it will not apply the minimum level in determining whether to renew the existing quantities when current permits expire. The District notes that saltwater intrusion and lake level declines developed in the SWUCA over a long period of time and that drastic steps to effectuate an immediate cure could have catastrophic economic consequences. The District believes the long-term health of the resources can be protected without a major disruption of the local economy. While the scope of the District's delegated authority is broad, the existing statutory structure does not allow it to make a blanket determination that the renewal of an existing permit is automatically entitled to priority consideration over other applications for new uses. That policy choice impermissibly modifies and/or contravenes the existing statutory scheme. Obtaining a permit does not grant a water user a perpetual right of access to a limited public resource. While the District contends that the proposed SWUCA Rules' treatment of existing permitted uses is acceptable because the District retains the ability to determine whether the use is reasonable and beneficial, the proposed rules restrict the opportunity to shift water allocations to those that are more in the public interest. Moreover, the favored treatment of renewals combined with the rules' reallocation provisions (discussed in Section V below) enable private uses to sell for profit the right to use a public resource even though the original right to use the resource was obtained without cost and other potential users are being denied the right to access the resource. Implementation of the SWUCA Rules' proposed minimum level provisions would effectively allow the allocation of limited groundwater resources without specific deliberation on the uses of the resource that are most in the public interest as required in Chapter 373. 1. Allocating Water in Accordance with the Public Interest According to the District, the proposed SWUCA regulatory program reflects its conclusions that the existing mix of permitted uses in the SWUCA best meets the public interest, and that the public interest further directs that existing uses should not be restricted upon renewal any further than required by the increased efficiency standards. According to the District, a restructuring of the current mix of uses would occur through the private market via application of the proposed reallocation provisions discussed below. The District also claims that potential new users in the SWUCA could obtain access to the UFAS through the reallocation provisions or could obtain water from sources other than the UFAS. Noting that the SWUCA minimum level provisions would apply to new quantities sought by existing permittees, the District asserts that the goal of the SWUCA Rules is to avoid the issuance of permits for new quantities, not necessarily to preclude new uses. Again, the District believes that the rules' adverse economic impacts could be minimized by allowing the existing uses to continue while limiting additional withdrawals. Concerned about establishing a minimum level that was already exceeded at the time of adoption, the District was also aware that it would be confronted with numerous applications for permit renewals. The District says that its proposals avoid a situation where the renewal of a permit depends on the random timing of when the permit is up for renewal vis-a-vis other permits. However, alternate solutions could be developed by adjusting permit durations and combining applicants by user groups and/or areas to address such issues without exceeding current statutory authority. Chapter 373 does not provide direction on the extent to which economic factors are to be considered in the permitting process. In many instances, existing users have made significant investments premised on the availability of water from the UFAS. For example, agricultural permittees often have substantially invested in land, machinery, irrigation systems, and crops specifically designed to accommodate and rely upon utilization of groundwater from the UFAS. Similarly, public water supply utilities have made significant capital investments in wellfields and water distribution systems. The District says substantial investments often cannot be recovered during the term of a six-to-ten-year permit. Many short-term permits have been issued by the District with the expectation that they would be renewed provided the user has complied with District rules and 83 permit conditions. The District is also concerned because some existing users will be required to make additional capital investments to meet the increased efficiency standards contained in the proposed rules. The District is hesitant to impose such a burden on permittees unless they are afforded an opportunity to recapture their investments. While the District claims that the economic impact of the proposed rules on potential new uses will not be as great as impacts on existing users if their permits are not renewed, there is no reasonable basis to make that assumption in all cases. Moreover, Chapter 373 does not provide that economic impact is the sole factor to consider when deciding the right to access and use a public resource. In its permitting process, the District has not attempted to apply the public interest portion of the three-prong test by classifying or prioritizing one type of water use higher than another, nor does it appear that any other water management district has addressed this difficult issue. The District claims that any use of water that meets the appropriate level of efficiency is deemed to be equally "in the public interest" as any other use. In effect, however, the proposed SWUCA rules conclusively establish that it is in the public interest to continue the allocation of quantities associated with existing uses -- including renewals -- over any proposed new use, subject only to increased efficiency standards and the rules' reallocation process. As a result, the District has effectively limited its statutory responsibility to allocate water to higher uses. After considering all of the evidence, it is concluded that for the foreseeable future, the proposed SWUCA rules would effectively preclude most new uses within the area, except those obtained through the purchase of water rights under the proposed rules' reallocation program. While the District claims that potential alternative water sources within and/or without the SWUCA are available for new users, the quantity limitations and costs associated with their development and use will, in many cases, render alternatives sources largely unavailable. 2. Applications For Competing Uses The District is understandably concerned about how to apply the public interest test to distinguish among different types of uses. Although the current statutory framework includes a mechanism for allocating limited water resources among several applicants, i.e., the competing applications provision of Section 373.233, F.S., the District has never applied the mechanism. In fact, it appears that none of the water management districts in the state have ever implemented this provision in their water use permitting programs. There are numerous practical difficulties in administering Section 373.233, F.S., and neither the statute nor the District's rules delineate a structure or provide any guidance for its application. (The competing applications provision contained in the District's existing rules is merely a reiteration of the statutory language). For the competing applications process to work, the quantity of water available for allocation would first have to be determined. Then geographic and timing parameters would have to be established to delineate the uses that would be considered "competing" for an identified quantity. Finally, standards would have to be developed for determining the "equivalent" nature of two or more applications before the statutory preference for renewal applicants could be applied. All of the issues must be resolved within the context of Section 120.60, F.S., which limits the time within which the District must act on permit applications. A competing applications process necessarily involves many case-specific issues that are difficult to address and/or define by rule. Without question, it would be extremely difficult to adopt a rule that would cover every conceivable mix of water uses and sources. The District can certainly utilize the process while it is developing the information and experience to make it work more effectively and in more situations. See, Section 120.535(a) and (b), F.S. However, some type of structure and general parameters for implementing a competing applications process could, however, be developed by rule. Indeed, some guidance regarding the application of a competing applications process is essential at the outset. Without a preliminary framework setting forth the scope and procedures, the applications process cannot be considered a viable tool for determining water uses that are most "in the public interest." Arguments can be made that a competing applications process is time consuming, expensive and cumbersome. The difficulties in determining how a competing applications process should work are increased by the lack of any prioritization or hierarchy of uses in statute, the State Water Policy and the District's rules. Nonetheless, the process is the only specific mechanism provided in Chapter 373 to resolve allocation disputes, and it manifests a specific legislative directive that the renewal of an existing permit is only entitled to priority over a proposed new use if the competing applications are otherwise equally qualified. See, Section 373.233(2), F.S. Existing users have expressed great concern regarding the competing application process, and the District also questions the uncertainty, expense and controversy that could arise upon implementation of such a process. Some testimony suggested that one purpose of the SWUCA Rules was to minimize the likelihood that the competing applications process would ever be invoked. While the District can pursue a regulatory approach that seeks to equitably allocate a limited public resource between multiple potential users without the use of the competing applications process, any such strategy must be consistent with the statutory framework of Chapter 373, which is premised upon the issuance of specific duration permits. The SWUCA Rules deviate from the statutory scheme by granting favored treatment to certain classes of permits, including the renewal of existing uses. 3. Comprehensive SWUCA Strategy The District argues that the treatment of renewal and similar classes of permits should not be viewed in isolation and must be considered within the context of the entire SWUCA strategy. The District reiterates that the intent of the SWUCA Rules is to allow existing uses to decrease permitted quantities over time and to impose limitations on new withdrawals from the groundwater basin. To support its position, the District points out that several provisions in the proposed rules would impact existing permit holders by imposing various conservation measures, such as lower per-capita usage requirements for public supply users and new conservation and efficiency standards for agriculture and recreational users, which would be phased in over a ten-year period. The renewal process would include a mandatory permit-by-permit review of individual conservation plans, and the District would apply the increased efficiency standards to reduce group. renewed permitted quantities for every user 84 The District denies that the SWUCA Rules would give existing permittees a perpetual permit for their uses and quantities. Instead, the District asserts that renewal applicants would still have to meet the BOR provisions, but that a renewal application would not be denied simply because the minimum level had not been met. The District claims that even if the SWUCA Rules are adopted, it could, if necessary, reduce the permitted quantity for any permit in the SWUCA that comes up for renewal. The District also says the SWUCA Rules would not prevent it from applying the minimum level requirements in conjunction with other applicable considerations in its permit review criteria. It is not clear, however, what alternate methods of applying the minimum level, if any, could be reconciled with the proposed rule language. Some District witnesses claimed that the availability of the statutory competing applications process alleviates any concern that renewal applicants will be allowed to continue using a public resource while potential new users are denied access to the same source. The SWUCA Rules do not reference the competing applications process, but the District contends that a new use applicant can always compete with a renewal applicant for any renewal quantity. In view of the problems noted above, however, the District's contention that new use applicants are not necessarily precluded from obtaining a permit, because the "competing applications process is always available to potential new applicants for water withdrawals in the SWUCA," is not persuasive. Absent some clarification and explanation regarding how the competing applications process would work, it cannot reasonably be considered an alternative method by which proposed new users could access the UFAS in the SWUCA. Until the District establishes a specific procedure for implementing the competing applications process, a potential new user would never know when or if its proposed withdrawal would be considered in competition with the renewal of an existing permit. The District also claims that a potential new water user in the SWUCA could obtain a "reallocation permit" after negotiating a sale of user with an existing user and/or could obtain water from alternative sources such as the intermediate aquifer. As discussed below, there are serious problems with the District's reallocation proposal, and the intermediate aquifer is -- at best -- a sporadic and limited option in the SWUCA. The rules' reallocation provisions are of marginal value to potential new users and, in fact, give existing permit holders a favored status that is not recognized in Chapter 373. In sum, the District has concluded that the problems in the SWUCA developed over a long period and do not need an "immediate fix." The District claims that the SWUCA Rules, taken together, represent a reasoned approach and a reasonable amount of time to rehabilitate the area's water resources. The more persuasive evidence supports the District's conclusions that the problems facing the SWUCA are regional in scope and need to be addressed through a long-term regional strategy. In fact, a piecemeal approach that simply addresses permit applications as they are presented for approval or renewal is unlikely to be effective and is, arguably, one of the reasons for the area's current problems. Yet, the District's long-term rehabilitative design must comply and be consistent with the regulatory framework of Chapter 373. 4. Ambiguities in Proposed Rules The District's strategy to treat renewals and certain other classes of permits differently for purposes of complying with the SWUCA minimum aquifer level has necessitated some strained and confusing attempts to craft effective rule language. One of the Conditions for Issuance in the existing rules, Rule 40D-2.301(1)(d), F.A.C., provides that a water use should not cause water levels or rates of flow to deviate from the ranges established in Chapter 40D-8. The SWUCA Rules attempt to fashion an exception to this condition for existing or renewal permits. Prior to the amendments published on November 3, 1995, proposed Rule 40D-2.301(2) utilized "presumptions" to explain how the District would apply the Conditions For Issuance in Rule 40D-2.301(1), to renewal or reallocation permits in the SWUCA. This provision caused considerable confusion in part because the "presumptions" in the proposal were intended to be applied in a different manner than other "presumptions" in the District's rules. The November 3 Modifications sought to clarify the confusion by providing that the District had "determined" that renewed or reallocated withdrawals would meet the Conditions For of Issuance if they satisfied the BOR criteria. The District argues that without the "determination," it would have to deny the renewal of any existing use in the SWUCA solely because it was located in a basin where water use contributes to nonattainment of an established minimum aquifer level. Under proposed Rule 40D-2.301(2), as revised, renewal permits for existing quantities in the SWUCA, permit modifications, Reallocation Permits, and Groundwater Withdrawal Credit Permits would have to meet all BOR criteria with the exception of the minimum level requirements. The District states that it would continue to follow its existing permit evaluation procedures, including its "limited cumulative analysis," but would not apply the regional cumulative analysis to these four permit categories. Proposed Rule 40D-2.381(3)(q) would authorize the District to modify a permit in the SWUCA if the District determines that "significant water quantity or quality changes, impacts to existing legal uses, or adverse environmental impacts are occurring . . . ." However, the special treatment accorded renewal and reallocation permits could inadvertently limit the District's ability to apply the application because proposed Rule 40D-2.301(2) provides that those types of permits are "determined" to meet the Conditions for Issuance, provided they satisfy the BOR criteria. Because no BOR criterion specifically addresses the Condition for Issuance relating to changes in water quality or quantity (i.e., Rule 40D-2.301(1)(b)), the District has arguably handcuffed its ability to modify a permit adversely affecting water quantity or quality. Similar problems arise with respect to the District's proposal to repeal existing standard permit conditions regarding compliance with minimum groundwater levels, Rule 40D- 2.381(3)(i) and BOR Section 6.1.9. Existing permits in the SWUCA contain a standard permit condition that states: "the permittee shall cease or reduce withdrawal as directed by the District if water levels in aquifers fall below the minimum levels established by the Governing Board." The repeal of the standard conditions would not be limited to the SWUCA and would apply to all permits in the District. The District claims that the repeal is necessary so that renewal and reallocation permits in the SWUCA would not automatically violate standard permit conditions when the minimum level is exceeded. By repealing the existing standard permit condition throughout its entire jurisdiction, the District will be limiting its ability to enforce minimum levels district- wide. The District argues that the repeal is not particularly significant at this time because there are no other minimum levels adopted by rule. As discussed in the Conclusions of Law, the District's decision to repeal these provisions is not necessarily contrary to Chapter 373. However, it does remove a potentially important tool for implementing and enforcing minimum flows and levels and is indicative, of the problems injected into the District's rules by the special treatment accorded to renewal and reallocation permits. The SWUCA Rules include the following proposed amendment to BOR Section 4.3: "Permitted withdrawals from the Floridan Aquifer will not be considered to be in violation of [the minimum level] because of seasonal or localized lowering of the Floridan aquifer potentiometric surface." The reference to "localized lowering" was intended to address concerns that under the original methodology for calculating the minimum level (published December 2, 1994), the renewal of an existing quantity might be subject to denial because a seasonal or local fluctuation lowered the potentiometric surface below the adopted level. With the amended methodology for calculating the minimum level published on April 14, 1995, this provision became obsolete, but it has not been withdrawn. Its continued presence in the rules is a source of ambiguity and possible confusion. 5. Effect of Minimum Level on Actual Water Use There is evidence suggesting that some permits in the SWUCA include "water-banked" quantities. Water banking occurs when a water use permit is issued for quantities beyond the amount needed. For example, some permits have been issued for the irrigation of unimproved pastureland, with the idea that the permitted quantities would be available for agricultural needs in time of drought. The amount of water banked and/or never used by permittees in the SWUCA is not clear. To the extent that water banking has resulted in the issuance of permits for quantities that do not represent a reasonable-beneficial use, it is inconsistent with Chapter 373. Nonetheless, it does not appear the SWUCA Rules would totally eliminate water-banked quantities. Even upon renewal, such quantities, may not be completely eliminated. At the same time, potential new users would be denied access to the resource. This result conflicts with the requirements of Chapter 373. Prior to 1989, the District applied efficiency standards when determining the quantity that would be permitted, but the standards were not expressly set forth in a rule. When the ETB, NTB and HR WUCA Rules went into effect in 1990, existing permits in the designated areas were modified to require higher efficiency standards. The only portion of the SWUCA not affected by the increased efficiency standards in the rules is the "non-WUCA SWUCA" area of DeSoto and Hardee Counties. The proposed SWUCA Rules would impose new efficiency standards upon the two remaining counties. Separate efficiency standards have been proposed in the SWUCA rules to address the specific features, conditions and variation of the different types of use. For example, agricultural efficiency standards are based upon the percentage of the total quantity of water used that actually benefits the crop, after accounting for losses due to evaporation, irrigation system etc. runoff, deep well infiltration, 85 The District estimates that the increased efficiency requirements of the SWUCA rules would result in significant reductions in permitted quantities over a ten-year period. Based on 1993 permitted quantities of 1.333 billion gallons per day, the District estimates that the proposed efficiency requirements would reduce total permitted quantities in the SWUCA to 1.054 billion gallons per day over ten years -- a decrease of nearly twenty-one percent. In 1995, however, permitted quantities in the SWUCA increased to approximately 1.5 billion gallons. It is unlikely that the new efficiencies would reduce total permitted groundwater quantities below 1.1 billion gallons per day. The new efficiencies together with other strategies embodied in the SWUCA Rules -- including the reallocation provisions in combination with restrictions on the permitting of new uses -- may actually create incentives for existing permittees to use more of their permitted amounts. In effect, the ratio between actual and permitted use could go up. Based upon historic patterns the District still expects that actual use quantities will be significantly less than estimated permitted quantities after the efficiencies are in place. The evidence was insufficient to demonstrate that the District's conclusion was arbitrary or unreasonable. 6. Impact of Rules on Small Businesses The District contends that the treatment of renewal permits in the proposed SWUCA Rules reflects a concern to minimize the impacts on small business in accordance with these provisions of Chapter 120 while also implementing and furthering the policies of Chapter 373. As part of the rule development process, the District prepared an Economic Impact Statement ("EIS") to assess the costs and benefits of implementing the SWUCA Rules on persons who would be affected by them. See also, Section 120.54(2)(b), 86 F.S. During preparation of the EIS, the District analyzed the impact that the proposed rules would have on small businesses. See also, Section 120.54(2)(a), (c)4, F.S. Of the 5,800 permits issued in the SWUCA, the District points out, 88 percent were issued to agricultural entities whose permits account for 60 percent of the total permitted quantities. The District further estimates that at least 75 percent of the agricultural permittees qualify as small businesses under Chapter 120. The District contends that the SWUCA Rules' treatment of renewal permits would minimize the rules' impact on small businesses in accordance with the provisions of Section 120.54(2)(a), F.S., while implementing and furthering the policies of Chapter 373. Under Chapter 373, the "right" to the use of water exists only for the duration of a permit. Accordingly, that period is an important focus for the District's analysis under Chapter 120. While a matter of legitimate concern, impacts that may occur to small businesses after expiration of a permit cannot serve as a basis for expanding statutory water rights under Chapter 373. Measures to Ensure Achievement Minimum Level ECOSWF has challenged several other aspects of the proposed rule provisions in this proceeding. In view of the conclusions reached below, ECOSWF's challenges are largely moot, but brief mention is warranted. ECOSWF objects to the SWUCA Rules' lack of a provision requiring the minimum aquifer level to be achieved within a specific period of time. In response, the District points to several provisions in the proposed rules that it contends will help prevent further increases in water use. While the noted provisions will provide useful information regarding the condition of the resource, they do not directly inhibit further increases in groundwater use. Thus, if actual water use in the basin continues to increase, additional rulemaking will be necessary to achieve the established minimum aquifer level. Proposed Rule 40D-2.801(3)(b)6 provides that the District will prepare a study "whenever the water used by any category of user, except public supply, during the preceding three years exceeds water used by that category from January 1, 1989, through December 31, 1991." After completion, the study would be presented to the Governing Board to determine what, if any, action must be taken. ECOSWF's contention that the study provision is vague and leaves unbridled discretion in the Governing Board is rejected. It is impossible to not only predict future conditions that may arise, but also to determine in advance the appropriate District response. Chapter 120, F.S., provides an oversight framework for future regulatory decisions by the Governing Board. ECOSWF's objection to the exemption of public supply from the foregoing rule is not persuasive. Public supply water use in the SWUCA is expected to grow in the future and the anticipated increases were taken into account when the permits were issued. Significant changes in public supply usage above the amounts anticipated will be obvious without the need for a study; accordingly, the rule's exemption of public supply is reasonable. ECOSWF has also objected to the provision because it is based on water use data rather than potentiometric surface levels. By looking at water use data, the District can isolate the types of use that are increasing and tailor regulatory strategies to specifically focus on particular types of use. Thus, even though water use data in the District is estimated and not entirely accurate, it will provide the District with useful information in formulating a flexible regulatory strategy. ECOSWF also points out that the baseline for the study -- the average water use in 1989, 1990 and 1991 -- exceeds the 1991 pumpage levels that correspond to the selected minimum aquifer level. Thus, the study requirement would probably not be triggered until after the minimum level had been exceeded. The overall water use differences in the baseline years are relatively minimal. Using a three-year average can minimize the effect of aberrations for a particular use category in any one year. The District's approach is reasonable, and no basis for invalidation has been established. Proposed Rule 40D-2.801(3)(b)5 provides that the District will continue to monitor groundwater levels and quality over the next five years to determine whether there is a need to adjust the minimum aquifer level and/or impose new permitting restrictions. ECOSWF contends that this proposal is vague and gives unbridled discretion to the Governing Board. ECOSWF also argues that continued monitoring is an inadequate substitute for immediate actions to reduce pumping. The District specifically rejected immediate cutbacks of existing water use in the SWUCA, because it was concerned about the economic impacts that would be associated with sudden reduction requirements. The District concluded that existing quantities could be reduced over a period of time through the application of increased efficiency standards. While the new efficiencies were being imposed, the District believed that there were adequate safeguards available to protect the resource, including water shortage rules and the SWUCA Rules' provisions that provide for continued monitoring of various use categories. Nothing in proposed Rule 40D-2.801(3)(b)5 prohibits the District Governing Board from taking additional action as soon as the need is perceived. The District is not dependent upon this provision to prevent groundwater use from increasing in the SWUCA. Instead, the rule is intended to give the District background information necessary for formulation of future decisions. The provision has not been shown to be arbitrary or an otherwise invalid exercise of the District's delegated legislative authority. As set forth in proposed Rule 40D-8.628(4), the District would continue to expand and refine its research activities, and would automatically review the minimum level after five years to see if it should be adjusted. The District claims that Rule 40D-8.628(4) provides additional resource protection in the event the potentiometric surface within one sub-area of the SWUCA should respond differently than another sub-area on a long- term basis. The District believes the continued monitoring will facilitate its detection of and reaction to any unacceptable trend when actual use begins to reach permitted quantities. Use of Minimum Level to Reserve Water During the course of the hearing, some District witnesses suggested that the treatment accorded to existing permit holders in the SWUCA Rules could be viewed as a reservation of water by the Governing Board. This justification is not readily apparent from the face of the rules. Section 373.223(3), F.S., provides the only clear statutory authority for the District to reserve water for any particular use. It provides that "the governing board or the department, by regulation, may reserve for use by permit applicants, water in such locations and quantities, and for such seasons of the year, as in its judgment may be required for the protection of fish and wildlife or the public health and safety." A reservation of water for existing legal users would not fall within the scope of the statutory provision. Moreover, the proposed rules do not delineate a specific reservation of water as required by the statute. Continued Issuance of Permits The District has not declared a water shortage in the SWUCA during the development of the proposed SWUCA Rules or the pendency of these proceedings. In fact, the District has continued to issue permits for new uses of groundwater from the Floridan Aquifer in the SWUCA while defending the District rule challenges, even though District staff admitted that there are existing permits in the SWUCA that do not meet permit criteria. As discussed in Section IV B 6 b (vii) above, the District states that it decided not to regulate the regional impacts in the SWUCA through its existing rules. Instead, the District decided to focus its efforts on adopting the proposed SWUCA Rules, which it believes are better designed to deal with regional issues. The permits that have been granted during the interim have increased the total permitted quantities in the SWUCA and have potentially exacerbated the groundwater problems in the region. While its existing rules arguably provide the District with sufficient legal authority to deny applications for new or renewed withdrawals from the Floridan Aquifer in the SWUCA, the District believed such an approach would not be cost- effective. However, the District's decision to continue issuing new or renewal permits in the SWUCA is more appropriately addressed in proceedings on individual permits and is not within the scope of this proceeding. Self-Destruct Clause Proposed Rule 40D-8.628 includes a "self-destruct" clause, that reflects the District's intention that its designation of the 1991 potentiometric surface as the minimum level is contingent upon its ability to apply the selected level in the manner established in the SWUCA Rules. In other words, the District has reserved the right to revisit the selection of an appropriate minimum level if it is determined that renewals and other designated classes of permits are not entitled to the favorable treatment set forth in the proposed rules. The "self- destruct" clause provides that if the District's proposed implementation of the minimum level is found invalid, it will immediately commence rulemaking or other proceedings to adopt a new minimum level and amend Chapter 40D-2, F.A.C. ECOSWF's challenge to the self-destruct clause is discussed in the Conclusions of Law below. Proposed Repeal of Existing Provisions Regarding Withdrawals From Intermediate Aquifer - BOR Sections 4.5.2 and 7.2.8 Intermediate aquifer withdrawals are currently capped in the MIA area of the SWUCA pursuant to BOR Sections 4.5.2 and 7.2.8, which were adopted as part of the ETB WUCA rules. The SWUCA Rules would repeal the limit from any confined aquifer that has a drawdown of more than .2 foot in the MIA. ECOSWF objects to the repeal of these provisions at a time when the condition of the resource in some areas is deteriorating. In addition, as discussed in Section IV B 6b (viii) above, ECOSWF also complains about the failure of the proposed SWUCA rules to prohibit the withdrawal of new quantities of groundwater from the intermediate aquifer within the SWUCA. The preamble to the SWUCA Rules suggests that new quantities of groundwater from the intermediate aquifer may be available to new users as an alternative to withdrawals from the Floridan Aquifer. ECOSWF claims that the withdrawal of groundwater from the intermediate aquifer in the SWUCA can affect the recharge of the Floridan Aquifer and/or lower the potentiometric level of the UFAS. ECOSWF notes that the SWUCA Rules do not specifically require that applications for new intermediate-aquifer withdrawals in the SWUCA identify or address the proposed withdrawal's impact on the UFAS potentiometric level. The evidence confirmed that in some areas of the SWUCA, there has been a decline in the levels and water quality within the intermediate aquifer. It is not clear, however, that a blanket prohibition on further withdrawals from the intermediate aquifer is necessary. The intermediate aquifer and its sediments are a mixture of clays, sands and thin limestone beds, the combination of which varies widely throughout the SWUCA. Natural clay confinement between aquifers acts to restrict the amount of influence one has on others, and the degree of interaction depends upon the extent of that confinement. There are areas in the SWUCA where the intermediate aquifer is sufficiently interconnected with the UFAS so that a withdrawal from the intermediate aquifer would affect the potentiometric level of the Floridan aquifer, and vice versa. The intermediate aquifer, however, is very complex and consists of hundreds -- if not thousands -- of aquifers, some of which are interconnected with the Floridan and many of which are not. At a single location, there may be several withdrawal elevations within the intermediate system that are not interconnected with the Floridan, while another portion of the aquifer may be immediately adjacent to and connected with the Floridan. Accordingly, it is very difficult to establish minimum levels for the intermediate aquifer system. The District has an ongoing program for drilling intermediate- aquifer wells to obtain a better understanding of the system. The District states it will review proposed withdrawals from the intermediate aquifer on a site-specific basis. If it determines a proposed withdrawal will adversely impact the Floridan Aquifer, it will impose appropriate permit conditions on the withdrawal. The District believes its approach will allow the optimal use of the resource by permitting withdrawals from those portions of the aquifer that are not interconnected with the Floridan Aquifer and can tolerate additional withdrawals. The evidence did not establish that the District's decision in this regard was arbitrary, capricious or otherwise invalid. Reallocation within the SWUCA - Proposed Rules 40D-2.331(3) and 40D-2.801(3)(b)7. Background Under the District's existing WUP rules, permitted groundwater quantities can only be transferred to a new location in very limited circumstances. See, Rule 40D- 2.351, F.A.C. If the request for a transfer includes a proposal for a change in the terms or conditions of the permit (other than a name change,) then an application for modification rather than a request for a transfer must be submitted. Moreover, a transfer request that includes a proposal for a change in water use classification must be submitted in an application for a new transfer. permit rather than in a request for a 87 The SWUCA Rules represent a significant change in approach and philosophy. Because some concentrated areas of withdrawals have developed which are a source of concern -- particularly where the withdrawals are occurring near the coast and other sensitive areas -- the District has concluded that some regulatory strategies are necessary to relieve that stress. The reallocation provisions would allow the transfer of existing permitted quantities in the SWUCA to different locations and different uses. A potential new user would be able to obtain a permit for groundwater in the SWUCA by negotiating a reallocation with an existing permit holder provided the new withdrawal complies with the District's existing permitting rules. The District claims that its proposal will facilitate the redistribution of existing withdrawals away from the coastal zone and away from the Highlands Ridge so that the localized effect of the individual withdrawals would be shifted to areas that can more readily handle the impact without adverse consequences. In developing a strategy to deal with the stressed conditions of the groundwater resources in the SWUCA, the District considered several different approaches including an across the board reduction in quantities for all permittees and/or a drastic reduction in pumping in certain areas. The District was concerned about the socio-economic impacts of those options and concluded that its goals could be accomplished by capping new withdrawals and incentives for the redistribution of existing withdrawals. The SWUCA Management Plan analyzed several possible redistribution mechanisms and indicated that they should be encouraged to move water among water users. See, SWUCA Management Plan pp. 65-72. However, reallocation was the only specific redistribution strategy included in the SWUCA Rules. The District has cited three goals for the reallocation rules: (1) to provide an opportunity for new uses and thus economic growth within the SWUCA which would otherwise be limited due to the restrictions on permitting new quantities from the Floridan aquifer; (2) to provide a mechanism to facilitate the redistribution of withdrawals away from the coast thus promoting increases in the potentiometric surface in the areas most vulnerable to impacts from saltwater intrusion; and (3) to The Proposed Reallocation Process Under the SWUCA Rules, a reallocation would be authorized when: a) the reallocated quantities are eliminated from the source permit; b) historically unused quantities in the original or source permit are eliminated; c) the remaining permitted quantities in the original or source permit are modified to reflected highest efficiency designated for the type of use as set forth in the rules; d) the quantity to be reallocated has been used prior to January 1, 1993 and after December 31, 1987; e) the withdrawals at the new site which is to receive the reallocated water meets the Conditions for Issuance for a new permit; f) the new permit, if any, resulting from the reallocation reflects the highest efficiency designated for the use; and g) the quantity to be reallocated is equal to or less than the quantity being reduced in the original or source permit. A reallocation permit would not be subject to the minimum level or any other SWUCA regional cumulative impact analysis. According to the District, this policy is reflected in proposed BOR Section 4.3, which provides that the minimum level restrictions are applicable to "new groundwater quantities." Similarly, proposed Rule 40D-8.628(1) provides that "permitted withdrawals from the upper Floridan aquifer will not be considered to be in violation of this level." Reallocation quantities would be considered quantities that have already been permitted and are simply being moved from one location to another. Thus, they would not be considered new quantities for purposes of the SWUCA minimum level. This approach is reflected in proposed Rule 40D-2.301(2), which includes reallocation permits among the categories of permits that are "determined" to meet the conditions for issuance on a regional cumulative basis so long as they "meet or do not exceed the criteria set forth in the Basis of Review." The practical result of these somewhat obtuse provisions is that, while the minimum level and regional saltwater intrusion criteria would not be applied to a new permittee receiving a reallocated quantity, such a permittee would be required to demonstrate compliance with the Conditions for Issuance as applied through the Basis of Review. The source permit would continue as modified for the original permit duration. The new permit for the reallocated quantity would be issued for a duration in accordance with the proposed SWUCA Rules for new permits. The District states that any new reallocated permit would be subject to third party challenges the same as any new permit, with the exception that the reallocated quantity would not be considered to be a new quantity that is subject to the minimum level provisions of the proposed rules. The District views reallocation as a modification of the source permit, so the reallocated quantity would not be subject to the competing applications procedure. 1. Reallocation Zones 555. Proposed Rule 40D-2.801(3)(b)7 would create three reallocation zones within the SWUCA which are depicted in Figure 1-1 to be included in the Basis of Review. By splitting the SWUCA into three reallocation zones, the District seeks to manage water use permit transfers so as to minimize their effect on natural resources. 556. The zones are: (1) the Most Impacted Area (MIA); (2) the Stressed Area-Moderate (SAM); and (3) the Stressed Area-Least (SAL). The reallocation zone designations are intended to reflect the degree to which groundwater and surface water resources are stressed as a result of groundwater pumping. The MIA corresponds to the MIA designated in 1992 as part of the ETB WUCA. See, BOR Section 7.2.8.A. The SAM represents the area where the composite of the annual average potentiometric surface for 1988 through 1992 reflected a drawdown of 30 feet or more in comparison with pre-development conditions. In addition, the HR WUCA was included in the SAM due to concern about declining lake levels. Along the coast, the SAM encompasses the area where total dissolved solids in the UFAS exceed 1,000 mg/liter. 557. Under Proposed Rule 40D-2.331(3)(a), reallocation of permitted withdrawals from the Floridan Aquifer within the SWUCA would be allowed from a withdrawal point in the MIA to any other reallocation zone. Reallocations would not be allowed from any point outside the MIA to a point within the MIA. 558. Rule 40D-2.331(3)(b) provides that when a reallocation is from a withdrawal point (1) in the MIA to a withdra the SAM, historically unused quantities in the source permit are eliminated from the permit prior to reallocation. Subsection (c) of this proposal provides that when a reallocation is from a withdrawal point in the SAL to a withdrawal point in the SAL, unused quantities are not eliminated from the permit prior to reallocation. 2. Historically Unused Quantities 559. Historically unused quantities are calculated based on the highest quantities used during the period from January 1, 1988, to September 30, 1994. Thus, while Rule 40D- 2.331(3)(b) would not allow reallocations of the full permitted amount from the MIA and the SAM, it does allow reallocation of the highest historic use during the window period. The District asserts it would not allow a quantity that exceeds efficiency standards to be reallocated. 560. Some parties have objected because historically unused quantities is not defined in the proposed rules. The District responds that the term simply means those permitted quantities that were not used. 561. Determining historically unused quantities can be an elusive task, particularly since not all water use is metered. At the hearing, District witnesses testified that metered data would be used if available. If not, the best alternate means available such as crop reports, aerial photographs, county tax records and Florida Agricultural Statistical Service data for agricultural permittees would be used. Similar approaches would be used for other types of use. While the proposed rules do not specify exactly how historically unused quantities will be calculated, this term is not unacceptably vague. The determination can and should be made on a case-by-case basis. 3. Reallocation Quantity Proposed Rule 40D-2.331(3)(b)2, F.A.C., provides that the quantity that could be reallocated would be based upon the annual average and peak month quantity for any year selected by the applicant between the reallocation window period of January 1, 1988, through September 30, 1994, but the permittee could not select the highest peak month from one year and the highest annual average from a different year. A cut-off date prior to rule adoption was included to prevent permittees from increasing their use after the rules go into effect in order to have a higher quantity available for reallocation. The District chose not to measure quantities based on a calendar year because of concerns that it may not be appropriate for some uses, such as agricultural users who sometimes grow crops that extend from one calendar year to the next. Effects of Redistribution Decline in head pressure at the coast is the primary cause of saltwater intrusion in the UFAS. The decline at any particular location in the SWUCA is a function of both the local and regional influences. The distribution of withdrawals within the SWUCA can effect the impact to the resource. Thus, a redistribution of withdrawals in a manner that raises the potentiometric level at the coast will help inhibit the movement of the saltwater interface even though overall regional conditions will be an interrelated factor. While the District's studies in particular the ETB WRAP, confirm that safe yield for the groundwater basin is a function of both the amount pumped and the distribution of the pumpage, it does not appear that redistribution will significantly increase the amount that can be safely pumped from the SWUCA. The District has run hypothetical scenarios with the ETB WRAP Model to assess how a redistribution of pumpage would affect the potentiometric surface. These modeling efforts confirm in a qualitative sense that reallocation would provide a net benefit to the environment by increasing water levels within the most vulnerable areas, but they do not provide a basis for concluding that any new quantities would be available. The District has not run any redistribution scenarios with its regional groundwater flow model that seek to maximize groundwater pumpage in the SWUCA while at the same time increasing the potentiometric level at the coast. The redistribution scenarios that have been run project the minimum level being exceeded at the coast when pumpage was increased in the inland counties by more than 15 million gallons per day above the 1991 estimated levels (650 MGD). As a result, the only real opportunity provided by the reallocation provisions for new users in the inland counties to access the UFAS will come through a private market purchase of a reallocation right. Rather than try to implement an optimal distribution scheme, the District has chosen to protect the existing pumpage distribution in its method of applying the minimum level while attempting to create incentives for redistribution through its reallocation rule. The District points out that its EIS concluded that reallocation could be helpful in reducing the economic impacts of pumping reductions on inland counties which have not grown as rapidly as communities along the coast. The proposed reallocation program represents an unprecedented approach to water regulation that could minimize economic disruption to some existing users. However, the proposed reallocation program involves novel concepts that cannot be reconciled with the existing statutory framework. Opportunity for New Users As discussed in Section IV B above, upon adoption of the SWUCA Rules, no new water withdrawals would be approved in the SWUCA until the minimum levels are met in each of the three designated areas based on a running five-year average. There was testimony that if the entire proposed SWUCA regulatory program is adopted, including the efficiency requirements and incentives for alternate sources, the minimum level in all three of the areas could be achieved within 10 years. However, even if this estimate is accepted, it appears that it will be substantially longer before any new uses will be permitted because of the manner in which the District would model proposed new uses. See, Section IV B above. In any event, the SWUCA Rules do not set a deadline by which the minimum level must be met. In the meantime, potential new users will be essentially denied access to the resource while existing permits are renewed. The District contends that potential new users of water in the SWUCA are afforded an adequate opportunity to utilize the resource via the reallocation process and that reallocation, as well as the separate provisions providing for groundwater withdrawal credits, mitigate against the effects of limiting new quantities. The District acknowledges that the limitation on new permits could cause significant economic hardship for the inland communities, many of which do not have access to central sewer systems and the opportunity for reclaimed water supplies or surface supplies from stream flow and where the surficial aquifer is not very productive. In an attempt to alleviate this hardship, proposed Rule 40D-2.331(3) would allow the entire permitted quantity to be reallocated within the SAL. The District claims this provision will address the economic concerns and enhance the opportunity for future growth within the inland counties or inland communities which have limited options available to gain new water sources. While this provision may to some extent increase the quantities available for reallocation in the inland counties, it is impossible to predict how much water will be available and at what price. In effect, this approach presumes an existing user has a priority right to renew a permit to utilize a public resource and sell it to the highest bidder. As discussed in the Conclusions of Law, this co resource as opposed to a private resource. In developing the proposed reallocation rules, the District sought input from experts across the country regarding water allocation strategies and the marketing and pricing of water. Reallocation was also discussed extensively during the Work Group process. The District's claim that reallocation is popular among members of the regulated public who do not presently have a permit because it provides them with another opportunity to obtain additional water when alternative sources are not available, does not overcome the current lack of legislative authority for this process. In response to the contention that reallocation creates a private property right in a public resource, the District claims that a private market already exists in permitted water rights, as reflected in the higher land values associated with properties that have a water use permit. The District denies that reallocation creates the type of private water right that exists under western water law. As discussed in the Conclusions of Law, while the rights granted under the proposed reallocation program are not as broad as the rights recognized in some other states, they are broader than previously recognized in Florida law and cannot be created without specific legislative authority. The District contends that, since reallocation quantities will still be regulated, subject to competing applications upon renewal, and subject to reductions in permitted quantities upon renewal, there are adequate protections to insure that all uses meet the statutory three- prong test. However, Chapter 373 requires the establishment of a regulatory scheme that provides flexibility to allocate water in places and times of limited supply to those uses that are most "in the public interest." Potential new uses cannot unilaterally be precluded from accessing a limited public resource without a reasonable and fair opportunity to demonstrate that the public interest would be better served if the new use was permitted. While the District believes the proposed reallocation rules, in conjunction with other District rules, provide the appropriate mix between the extremes of western water law and a heavily regulated marketplace, this policy choice can not be reconciled with the current statutory framework, especially when considered in the context of the preferential treatment accorded in the SWUCA Rules to the renewal of existing permits. Effect on Actual Use and Permitted Quantities By allowing the reallocation of quantities equal to the highest historical use, even though that quantity may not have been used on a regular basis, the District has created a regulatory scheme that could potentially provide incentives for the utilization of a higher percentage of permitted use in the SWUCA. For example, the District could allow the reallocation of a quantity from the MIA equal to the highest historical use over the proceeding 5 years even though that quantity may not have be full-time basis. Thus, theoretically, reallocation of individual highest historic uses from the specified period could increase use beyond the highest annual average use of any single year in the window period. The District believes it is unlikely that there will be a combination of actual use during the reallocation window period that will exceed 1989 usage, which was the highest usage of record. According to the District, in 1989 a large number of permittees pumped their highest use quantities ever. The District believes the market forces which drove 1989 usage are unlikely to reoccur and points out that overall usage has declined since 1989. The District minimizes the possibility that the reallocation program, could lead to increased overall withdrawals. The District believes that, because of the costs of reallocating water for various user groups, reallocation would be used very sparingly throughout the SWUCA for the foreseeable future and that the potential for increased overall usage is minimal. The District feels that it has adequate monitoring provisions built into the SWUCA Rules to detect any such development before it becomes a problem. Once limitations are placed on acquiring new groundwater permits in the SWUCA, there will be added pressure for actual groundwater use to approach permitted quantities. In an attempt to guard against this occurring, the District notes that th proposed Rule 40D-2.801(3)(B)6. The specifics of this provision and the challenges to it are discussed in Section IV G above. It is expected that the monitoring provisions will provide an early alert to the District if the reallocation program results in actual use more closely approximating permitted quantities. The District has not conducted a formal study to determine the amount of water that would be available through reallocation. The District says it has studied the macroeconomics of the area, including the growth patterns of all user groups to assess which ones were likely to reallocate water. According to the District, the groups unlikely to reallocate (public supply, recreational golf courses, citrus and mining) represent about 70 percent of the permitted quantities within the SWUCA. Public supply was considered least likely to reallocate due to the extremely high opportunity costs associated with reducing population growth. Recreational golf courses were considered next least likely because they do not have the ability to reduce usage and still have an operational facility. Citrus, which represents about 80 percent of the permits in the SWUCA, was considered next least likely because citrus is a long-term crop that cannot be adjusted as to acreage on a seasonal basis and generally grows into the full permitted quantity very quickly. The District anticipates the mining industry may be a potential user of reallocation because its need for water fluctua District believes that, because the mining companies have invested in land and mineral rights in advance and cannot recoup this investment without water supply, there will not be extensive reallocation. In addition, mining land is often reclaimed to agricultural use, which requires water. Reallocation is also considered a possibility for row crop users which have historically used quantities, as defined in the proposed rules, that are higher than what is utilized on an average basis. However, because these operations typically depend upon the years in which they plant high acreages to finance capital improvements, the District does not anticipate extensive reallocation. The District expects the most likely type of permit to be reallocated is pasture land. At the hearing, the District estimated the portion of the water allocated within the SWUCA to pasture land was no more than five percent. The District believes the most likely candidates to pay the cost for reallocated water would be public suppliers within the inland communities, power plants that are facing permitting obstacles along the coast, and high end industrial or developmental activities. Obviously, an increase in actual water use would occur if reallocation is utilized to a greater extent than anticipated. The District states that it does not anticipate reallocation leading to increased use in the absence of a specific need. The District's 1992 Needs and Sources Report would seem to indicate that there will be significant pent-up demand for water in the SWUCA if groundwater withdrawals are capped. However, the District's witnesses suggested the Needs and Sources Study is "conservative" in the sense that it tends to overestimate demand in order to ensure available supplies.88 Thus, they do not believe any conclusions should be drawn as to how much the reallocation program would be used. According to the District, there has actually been a recent downturn in the growth of water use, particularly in citrus and row crops, that is not reflected in the Needs and Sources Study. No specific evidence was presented as to any new and/or reduced overall demand projections for the SWUCA. In view of the conclusions reached herein regarding the lack of statutory authority to implement a reallocation program as currently proposed, this discussion as to whether reallocation will lead to an increase in actual use is moot. Because of the uncertainty in this area and the potential implications of the proposed program, this discussion has been included to highlight certain important policy issues that were addressed extensively by the parties. In sum, there are certain important policy aspects to the proposed reallocation program that potentially create incentives and opportunity to increase actual water use in the SWUCA contrary to the stated goals of the proposed rules. Ultimately, the extent to which reallocation occurs will depend upon the law of supply and demand. The District acknowledges that it is difficult to predict the extent to which the reallocation provisions will be utilized and that it is theoretically possible that actual usage could increase under the program. Nonetheless, the District argues that deference should be accorded to its experience and judgment regarding the forces which drive water use within the SWUCA in assessing whether there will be an increase in actual usage. The potential for increased uses is not itself a basis to invalidate the proposed program. The evidence did not establish that the District's conclusions regarding the effect of the reallocation program on actual water use were arbitrary and/or capricious. Reallocation of Water-Banked Quantities ECOSWF argues that the proposed reallocation program should be invalidated because it allows for the transfer of quantities currently permitted for pastureland even though those quantities may not represent a reasonable-beneficial use. The District acknowledges that, while its rules were not intended to permit irrigated pasture to be used to "bank water", some used. currently permitted pasture land has been so 89 The District notes that the SWUCA Rules would eliminate allocations for unimproved pasture and would immediately reduce improved pasture permits to those quantities necessary for drought protection. More specifically, proposed Rule 40D-2.801(3)(b)(4) would standardize pasture irrigation in the non-WUCA SWUCA. The net effect would be to reduce permitted pasture quantities in this area. The District claims this reduction would be about 60 percent, however, the evidence was confusi these areas have been permitted since the early 1990s based upon rainfall amounts and monthly quantities that are close to the proposed SWUCA standards. Even with the reductions, there would still be significant quantities of pastureland available for reallocation. Within Hardee and DeSoto counties, which comprise the majority of the SAL, there are approximately 40 MGD of permitted pastureland quantities available for reallocation. Rule 40D- 2.331(3)(c) would allow reallocation within the SAL of all or 91 most of this permitted pasture irrigation quantity , including water banked quantities, at a time when new applicants are not being considered and do not have an opportunity to demonstrate that their proposed use is more in the public interest. Challenges to Conditions of Issuance and Basis of Review Existing Rules and Basis of Review - General Issues As discussed in more detail in Section III above and in the Conclusions of Law below, the Florida Water Resources Act of 1972 directs the water management districts to issue permits for the consumptive use of water based on the three-prong test set forth in Section 373.223, F.S. The District's rules regarding water use permitting are set forth in Chapter 40D-2, F.A.C. Rule 40D- 2.301(1), F.A.C., sets forth the "Conditions For Issuance Of Permits." Fourteen such conditions are listed in subsections a- n. While individual conditions are not specifically correlated to the criteria of the three-prong test, the Conditions for Issuance are intended to be the implementation of that three- prong test. Rule 40D-2.301(1) provides that an applicant for a water use permit "must demonstrate that the water use is reasonable and beneficial, is in the public interest, and will not interfere with any existing legal use of water, by providing reasonable assurances, on both an individual and a cumulative basis," that the water use complies with each of the fourteen subsections. The District's Basis of Review, which is incorporated by reference in Rule 40D-2.091, F.A.C., "provides guidelines for determining whether a water use meets the conditions for issuance set forth in Rule 40D-2.301." See, Section 4.0 of the BOR, p. B-4. The District generally categorizes the Conditions for Issuance in Rule 40D-2.301(1) as either "demand-related" or "impact-related". The impact-related conditions have corresponding sections in the BOR. Those BOR sections generally provide performance standards and presumptions that are used by the District to evaluate WUP applications and determine if the Conditions for Issuance have been met. If a WUP applicant satisfies the presumptions for a particular impact-related criteria, such as those relating to adverse environmental impacts to wetlands, lakes, and streams, then the applicant is considered to have met the related performance standards and the corresponding condition in Rule 40D-2.301(1), unless there is site specific information that dictates a contrary result. Several of the Conditions for Issuance and presumptions have been challenged in these proceedings and are discussed in detail below. There have also been several general challenges raised to the District's existing permitting program. Many of these general challenges involve legal issues which are addressed in the Conclusions of Law. The following Findings of Fact are pertinent to the general challenges. 1. Consistency with State Water Policy and Requirement to Meet Each Condition Individually 597. Some Petitioners have alleged that Rule 40D- 2.301(1) and Chapter 4 of the Basis of Review are inconsistent with the State Water Policy. See, Rule 62-40.110, F.A.C. (which requires that district rules be consistent with State Water Policy). As discussed in the Conclusions of Law, this proceeding is not the proper forum to resolve disputes over the consistency of the rules with State Water Policy. See, Section 373.114(1)(a), F.S. However, the manner in which the District applies the Conditions for Issuance is an appropriate matter to be considered in this case. In this regard, some portions of the State Water Policy are pertinent. 598. Rule 62-40.401 of the State Water Policy sets forth seventeen criteria to be considered in determining whether a proposed water use is reasonable-beneficial. Rule 40D-2.301(1) closely tracks the criteria from the State Water Policy and there are no apparent conflicts in the factors listed. However, unlike the State Water Policy, which simply indicates that each of the factors is to be taken into account in determining whether a use is reasonable-beneficial, the District's rule purports to require each of the criteria to be met on an individual and cumulative basis. Many of the criteria are defined only in broad terms that necessarily require the exercise of professional and/or scientific judgment and, in some cases, a balancing of competing policy choices. There is no provision that specifically allows the nature and/or history of the use to be considered in determining the degree of impact that would be acceptable. The rules allow certain of the conditions to be mitigated "to the satisfaction of the District," but there is no delineation of the factors that would be considered. As discussed in the Conclusions of Law, this regulatory scheme grants unbridled discretion to the District without any meaningful basis for review of the exercise of that discretion. 2. Cumulative Impact 599. Pinellas argues Rule 40D-2.301(1) unlawfully enlarges, modifies and contravenes Sections 373.223, 373.226 and 373.233, F.S., by requiring applicants to demonstrate compliance with the permitting criteria on a "cumulative" basis. The legal issues related to this challenge are discussed in the Conclusions of Law. It should be noted that, while the introductory language to Rule 40D-2.301 indicates that an applicant must demonstrate compliance with all the listed criteria on both an individual and cumulative basis, as a practical matter only subsections (b), (c), (d), (f), (g), (h), (i), and (n) of Rule 40D-2.301(1) can be applied cumulatively. 3. Two-Prong vs. Three-Prong Test 600. Pinellas contends that Chapter 373 provides a different test for determining whether to renew a permit for a use tha 601. While the District does not recognize the present viability of the "two-prong" test advocated by Pinellas, the District does apply the three-prong test differently to WUP applications seeking to renew "existing" water uses. Upon renewal, an applicant is deemed to automatically satisfy the third-prong relating to interference with existing uses of water with respect to any uses that commenced subsequent to the use under review. This assumption is not clear from the face of the permitting rules or the BOR. For most of the Conditions for Issuance, a withdrawal is evaluated based upon its impact irrespective of the date of origination of the withdrawal. Thus, if a wetland is impacted by a number of withdrawals from the surrounding area, the contribution of each withdrawal is considered separately based on its magnitude rather than the date or origination of the withdrawal. This issue is discussed in Section VI F below and in the Conclusions of Law. 602. Pinellas also claims that many of the District's rules impermissibly add permitting criteria that are not specified in either the Section 373.223 three-prong test and/or the Section 373.233 two-prong test. This issue is also discussed in the Conclusions of Law. 4. Incorporation by Reference 603. The Basis of Review is incorporated by reference into the Florida Administrative Code by Rule 40D-2.091, which states: 40D-2.091 Publications Incorporated by Reference. The "Basis of Review for Water Use Permit Applications," [is]...incorporated by reference into this chapter and [is] available from the District upon request. Specific Authority: 373.044, 373.113, F.S. Law Implemented: 373.219, 373.239, 373.243, F.S. History: New 10-1-89, Amended 11-15-90, 2-10-93, 3-30-93, 7-29-93, 4-11-94. Some of the Petitioners have alleged that the District's incorporation by reference of the Basis of Review conflicts with and contravenes Section 120.54(7), F.S. Section 120.54(7), F.S., provides: Each rule adopted shall be accompanied by a reference to the specific rulemaking authority pursuant to which the rule was adopted and a reference to the section or subsection of the Florida Statutes or to the Laws of Florida being implemented, interpreted, or made specific. None of the chapters, sections or subsections of the BOR contains any references or citations to particular sections of the Florida Statutes or to the Laws of Florida being implemented or interpreted, nor are there any additional citations to rulemaking authority other than in Rule 40D-2.091. The statutory authority cited in Rule 40D-2.091 does not contain all of the relevant statutory authority for the requirements imposed by the BOR. However, as discussed in more detail in the Conclusions of Law, the statutory authorities that are cited in Rule 40D-2.091 (Sections 373.044 and 373.113) grant the District broad authority to implement a comprehensive permitting program. Considering the scope of the cited provisions, the contention that the Basis of Review should be invalidated solely on the technical ground that individual citations are not included for each separate provision is rejected. Section 120.54(8), F.S., provides: ...Pursuant to rule of the Department of State, a rule may incorporate material by reference but only as such material exists on the date the rule is adopted. For purposes of such rule, changes in such material shall have no effect with respect to the rule unless the rule is amended to incorporate such material as changed.... The District acknowledges that it cannot change the Basis of Review without amending Rule 40D-2.091 so that it correctly references an existing document. With respect to the proposed changes to the Basis of Review included in the SWUCA Rules, the District has proposed an amendment to Rule 40D-2.091 to incorporate by reference a revised Basis of Review. This procedure comports with the applicable rulemaking procedures and provides adequate notice to interested parties. Contrary to the contention of some Petitioners, there is no prohibition on an agency incorporating by reference a document or publication prepared by that agency. 5. Use of General Terms Many of the District's regulatory provisions utilize general terms such as "significant adverse impact," "adversely impact the water resources," "adverse environmental impact," and "unacceptable environmental impact" in delineating the types of impacts to environmental features, other existing legal users, and the water resources of the state, which the permitting program seeks to guard against. See e.g., Rules 40D- 2.301(1)(b), (c), (h), and (i); 40D-2.341(2)(e); and 40D- 2.381(3)(1) and (m), F.A.C.; and BOR Sections 4.0, 4.2 and 4.8. Some Petitioners contend that the use of such terms is unacceptably vague and vests the District with unbridled discretion because there are no objective criteria or standards for interpreting and/or applying the terms which are used as standards for evaluating a WUP application. Whether or not an adverse impact will occur is essentially a scientific determination. Adverse impacts include both de minimis impacts and unacceptable impacts. De minimis insignificant. impacts are so minimal as to be 92 What is "significant" or "acceptable or unacceptable" are value judgments. For example, an "unacceptable environmental impact" could range from any impact that can be perceived or measured to a large scale impact. Some significant impacts may be acceptable because of the needs of the applicant and/or the public interest. Thus, the value judgments in water use regulation include application of scientific principles and techniques, but ultimately the judgments require a balancing of societal needs with the extent of the impact and the feature(s) involved. The District's rules leave it to the discretion of individual permit reviewers and/or scientists at the District to interpret what constitutes an adverse, significant, or unacceptable impact. The District emphasizes that the staff's scientific decision about adverse impacts can be overruled by the District Governing Board's evaluation. Pinellas notes that this approach raises potential problems with consistency in the interpretation of the terms. While a rule can allow for the exercise of professional discretion and still pass muster under Chapter 120, the rules must provide adequate principles or guidance for the exercise of the discretion. It is impractical to adopt by rule a quantitative approach to delineate what constitutes an "unacceptable adverse impact" for every particular feature because of the numerous site- specific factors involved. For example, a multitude of species inhabits lakes and wetlands within the District, each with its own environmental requirements. It would be impossible to develop a level of de minimis impact for each species that could be applied to the varying hydroperiods of every lake and wetland. Moreover, it is often difficult, if not impossible, to differentiate between the impacts caused by groundwater withdrawals and the impacts that are due to other causes such as land development, ditching and drainage alterations. Thus, the rules must be flexible enough to be applied on a site-specific basis. However, the rules should set forth, at least generally, the factors that will be considered and they cannot serve to insulate the District's decisions from meaningful review. In some instances, the performance standards in the Basis of Review provide objective standards for applying the general terms of the rule. These performance standards provide a useful delineation of the factors that should be considered in determining whether an impact is significant. However, in many instances the application of the performance standards is complicated by corresponding provisions in the BOR that set forth presumptions which are utilized in applying the performance standards. The District claims that the performance standards are the ultimate determining factor in deciding if there is unacceptable adverse impact, but the evidence indicates that in many instances the presumptions are in fact conclusive. The performance standards seek to delineate what changes will be considered unacceptable adverse impacts for certain specified criteria. The District claims that an impact that would exceed a performance standard in a quantifiable sense is considered an unacceptable impact. It appears, however, that in some instances such an impact will be allowed and/or can be mitigated at the District's discretion, but there are no standards against which the exercise of the discretion can be measured. 6. Use of Presumptions 618. As part of the 1989 Rule Revisions, the District included in the Basis of Review hydrologic presumptions relating to wetlands, lakes, streams, and affected wells, which serve as a threshold between acceptable and unacceptable impacts. The District's inclusion of presumptions in the Basis of Review for certain impact-related criteria has been challenged both generally and specifically. The legal issues surrounding the use of presumptions are discussed in the Conclusions of Law. The scientific underpinnings for certain of the challenged presumptions in the Basis of Review are explored below in the context of the corresponding Condition for Issuance. The following general findings (Nos. 619-620) are made. 619. The manner of application, the effect and the meaning of the presumptions are not clearly set forth in the District's rules. Indeed, the testimony indicates that there are different categories of presumptions within the District's rules and that some of the presumptions do not work in the same manner as others. For example, while some are "screening" or "guideline" presumptions, other presumptions are apparently used more in the nature of a "pass/fail" mechanism. However, there is no specific distinction within the District's rules as to which are "screening" or "guideline" presumptions, "pass/fail" presumptions, "evidentiary" or "non-evidentiary" presumptions, or "rebuttable" or "non-rebuttable" presumptions. 620. The burden of proof placed upon a permit applicant, a third-party challenger or the District can be greatly affected depending on how the presumptions are applied. The evidence indicates some confusion and uncertainty amongst staff as to the role of the presumptions, especially when a withdrawal falls below a presumptive threshold. It is not clear whether the burden of proof, which normally and properly rests with a permit applicant, shifts to the District to produce evidence that a presumption is not applicable if a withdrawal is under the threshold. Moreover, there is no guidance as to how the presumptions may be rebutted. 7. Regulation Without Minimum Flows and Levels 621. Pinellas claims that much of the District's existing permitting program is invalid because the District is improperly attempting to regulate the effect of water withdrawals on "wetlands, lakes, streams, estuaries, fish and wildlife or other natural resources" without first establishing minimum flows and levels pursuant to Section 373.042 and/or without reserving quantities of water for environmental and resource protection pursuant to Section 373.223(3). As discussed in more detail in the Conclusions of Law, while the establishment of minimum flows and levels is very important, the District is authorized and, indeed, obligated to regulate water use in the public interest even when such levels have not been adopted. 8. Modification of Existing Uses 622. Pinellas also contends that the District is improperly applying some of its existing rules, including Rule 40D-2.301(1)(e) and BOR Section 4.4, to require existing users to abandon long-standing uses without proof that the uses are detrimental to other users or the water resources of the state as required by Section 373.171(3), F.S. Petitioners have not met their burden of proof on this issue. No clear evidence was presented that the provisions are applied in this manner. In any event, as discussed in the Conclusions of Law, Pinellas' interpretation of Section 373.171(3) is overly broad. 9. Mitigation 623. The Conditions for Issuance in Rule 40D-2.301 do not specifically provide that an applicant can obtain a WUP by mitigating the adverse impacts resulting from a withdrawal. Only by reading Rule 40D-2.381 in conjunction with the introductory language in BOR Section 4.0, BOR Section 4.7 and/or the presumptions in BOR Section 4.8 is this possibility revealed. While this somewhat cumbersome approach might be acceptable if the rules provided an applicant with reasonable notice of the standards or criteria that would be used in assessing a mitigation scheme, the existing rules do not. These issues are discussed in more detail in Sections VI B-G below regarding the specific conditions and in the Conclusions of Law. 10. Property Boundaries 624. Pinellas claims that some aspects of the District's existing rules are invalid because they require information about the applicant's property boundary to be used as the demarcation between off-site and on-site impacts. Essentially, Pinellas contends that these provisions elevate property boundaries and land ownership to a level prohibited by Chapter 373. In this regard, Pinellas points out that the more property owned by an applicant, the more likely it is that an applicant can demonstrate compliance with certain of the standards. According to Pinellas, such a result is contrary to the holding in the 5-3-1 Case. Pinellas also cites to Section 373.2235, F. S., to support its argument. That statute provides as follows: The fact that any applicant has acquired...any land for the specific purpose of serving as a site for a well field or right-of-way prior to obtaining a consumptive use permit from a water management district does not create any presumption of entitlement to a consumptive use permit. Evidence relating to such prior acquisition of land or right-of-way by any applicant is not admissible in any proceeding related to consumptive use permitting and has no bearing upon any water management district's determination of reasonable beneficial use in the permitting process. In the event that any applicant elects to acquire land prior to obtaining a consumptive use permit from a water manage admissible in any administrative or judicial proceeding relating to consumptive use permitting under this chapter, including any appeal taken from a water management district decision. 625. Pinellas' attempt to read this statute as a blanket prohibition against any regulation whose impact may vary depending on the amount of property owned is fallacious. While the application of some provisions may vary somewhat depending on the amount of property owned by an applicant, and it might be easier for an applicant with more property to demonstrate compliance with some rules, such a result is not automatically contrary to Chapter 373 and/or the holding in the 5-3-1 case. Environmental Impacts - Rules 40D- 2.301(1)(b)and (c) 1. Overview Rule 40D-2.301(1)(b) requires WUP applicants to provide reasonable assurances on an "individual and cumulative basis" that the proposed water use "will not cause quantity or quality changes which adversely impact the water resources, including both surface and ground waters." This Rule does not have a corresponding section in the BOR explaining how the District will interpret and apply this criteria. Rule 40D-2.301(1)(c) requires a permit applicant to provide reasonable assurances that its proposed water use "will not cause adverse environmental impacts to wetlands, lakes, streams, estuaries, fish and wildlife, or other natural resources." BOR Section 4.2 corresponds to Rule 40D- 2.301(1)(c). The introductory language of Section 4.2 of the Basis of Review states: The withdrawal of water must not cause unacceptable adverse impacts to environmental features. Where appropriate, District staff will review the Applicant's submittal and identify the environmental features that are directly related to the water resources of the District and evaluate the impact of the Applicant's withdrawal, combined with other withdrawals, on those environmental features. District staff may inspect the site to delineate environmental features and evaluate the effects of withdrawals. For certain permits, the applicant may be required to supply additional information regarding the existing status and condition of associated environmental features. This information may consist of aerial photographs, topographic maps, hydrologic data, environmental assessments or other relevant information. Base-line hydrologic and/or environmental data collected prior to permit application shall be provided if available and requested by the District. The need for additional information may be established through pre-application meetings with the District. Environmental features that will be evaluated by District staff when determining withdrawal impacts include: Surface water bodies such as lakes, ponds, impoundments, sinks, springs, streams, canals, estuaries, or other watercourses; Wetland habitats; On-site environmental features and their relationship to local and regional landscape patterns; Habitat for threatened or endangered species; and Other environmental features which are dependent upon the water resources of the District. Potential environmental impacts will be evaluated by comparing the existing natural system to the predicted post-withdrawal conditions. Previous physical alterations to environmental features, such as drainage systems or water control structures will be considered. The District's objective is to achieve a reasonable degree of protection for environmental features consistent with the overall protection of the water resources of the District. Listed below are the performance standards District staff will use to ensure that unacceptable adverse impacts to environmental features do not occur. Additionally, presumptions are described that the District will use as guidelines to predict whether withdrawals will cause unacceptable impacts. Impacts to canals, springs, and estuaries are considered under the streams criteria. Impacts to ponds, sinks, and impoundments are considered under the lakes criteria. The District's regulatory staff interprets and applies the terms "adverse environmental impact" in Rule 40D- 2.301(c) as synonymous with "unacceptable environmental impact" in BOR Section 4.2. In assessing whether an impact to an environmental feature is unacceptable, the District says it will look at the normal biotic component of a natural system and attempt to preserve the status quo for that component. Adverse impacts that would be solely restricted to non-native species would not be considered unacceptable. It is not clear whether the District will compare the projected impact with the condition of the natural system as it exists at the time of the application or as it existed at the time the use first began. There are no commonly accepted definitions in the fields of biology, ecology or hydrology for the terms "adverse environmental impact" or "significant adverse impact". Equally competent biologists and/or ecologists can differ as to the interpretation of what is an unacceptable environmental impact. The environmental managers at the four District field offices are trained in the application of these terms. While the District claims the terms are consistently applied, there is constant discussion and even disagreement among District environmental scientists as to what changes in natural systems constitute unacceptable adverse impacts. Without a consistent definition of an adverse, significant, or unacceptable environmental impact to a natural system, it can be very difficult to require WUP modifications and/or mitigation. In addition, the lack of a clearly articulated definition of acceptable or unacceptable environmental impacts limits the effectiveness of the District's environmental data- gathering process. Representatives from DEP and five of the water management districts formed a Groundwater Availability Conventions Committee to develop and define methods and criteria for assessing the ability of groundwater supply sources to meet demands. The final report of this Committee was a consensus report and proposed methods and criteria for assessing groundwater availability for planning and regulatory purposes including water use permitting. The Committee proposed interim guidelines (but not final conclusions) for developing thresholds for various criteria above which unacceptable impacts are likely to occur to natural systems, such as lakes and wetlands. The committee considered the use of hydrologic presumptions as guidelines, but did not adopt this approach. The District has not adopted the recommendations of the Groundwater Availability Conventions Committee regarding impacts to natural systems and has continued to rely upon the presumptions in its Basis of Review. The Impacts to Natural Systems Subcommittee of the Groundwater Availability Conventions Committee consisted of agency environmental scientists who attempted to establish a biologically sound definition of an unacceptable environmental impact to natural systems, such as wetlands, lakes and streams. This subcommittee was chaired by Dr. Ed Lowe, of the St. Johns River Water Management District, who prepared a report (the "Lowe Report") in 1994 after the subcommittee's deliberations. The Lowe Report, which was not a consensus report, includes a proposed definition of "unacceptable harm to natural systems" that is more specific and covers more areas than the District's performance standards. So far, the District has not adopted the approach set forth in the Lowe Report. The subcommittee could not come to a consensus regarding the use of presumptive hydrologic criteria for purposes of evaluating water use permit applications. The Lowe Report expressed concern as to whether such an approach would succeed in the long run in protecting natural systems. 2. Environmental Presumptions - Generally BOR Section 4.2 has three major categories: section A relating to wetlands; section B relating to lakes; and section C relating to streams. Under each of these sections, the District has created performance standards and presumptions. Absent site specific information to the contrary, if a water use permit applicant demonstrates compliance with the applicable presumptions, the use is deemed to meet the performance standards and comply with Rule 40D-2.301(1)(c). The numerical presumptions in BOR Section 4.2 are used as a screening tool to distinguish between acceptable and unacceptable environmental impacts. The District claims that the qualitative terms in the rules such as "significantly" and "adverse" and "unacceptable" should not preclude the use of quantitative tools such as the presumptions to evaluate environmental impacts. The District staff has discretion when to apply the presumptions. As explained in Section III above, as part of the permit review process, a computer model simulation or some other technique that allows for simulations and calculations would be utilized to apply the presumptions. Based upon the evidence presented, it is clear that hydrologic presumptions should not be used as conclusive pass/fail tests District-wide for diverse natural systems with different ecological requirements. The nature and extent of impacts resulting from groundwater withdrawals vary for areas with differing hydrogeologic characteristics. Thus, it is virtually impossible to develop hydrologic criteria that can be expected to consistently provide the desired protection of natural systems. The manner in which the presumptions are utilized by the District has been the source of great controversy in these proceedings. The District denies that the presumptions are used as a pass/fail mechanism. In this regard, it is necessary to look at the specific language of each of the presumptions. In addition, because the scientific underpinnings for certain presumptions have been challenged, it is necessary to review the analysis relied upon by the District in developing the presumptions. Wetlands Presumption - BOR Section 4.2.A.5 Background 641. There is a undeniable relationship between groundwater withdrawals and adverse impacts to wetlands. Generally, the closer a wetland is to the withdrawal point and the larger the drawdown of the water table, the larger the adverse impact. This relationship can be observed despite the heterogeneous nature of the aquifer and it is both spatial and 93 temporal. Other factors such as drought and surface drainage can also impact wetlands and can interact with and/or exacerbate the effects of groundwater withdrawals. 642. The adverse impacts that can occur to wetlands because of a change or loss of hydroperiod as a result of groundwater withdrawals include: (1) rapid succession, which is a shift in the vegetative composition from wetland to upland species; (2) soil subsidence and resulting loss of overstory, which occurs when trees fall because the soils no longer provide structural support for the roots; (3) more frequent and severe burning of the organic soil during naturally occurring fires, including severe peat fires that would not occur if the soil were inundated; and (4) wildlife changes when wetland species and upland species that are dependent upon the wetland are unable to find food and habitat.643. Pond cypress depressional wetlands in the vicinity of extensive groundwater withdrawals have shown evidence of surface and subsurface subsidence and observable ecological responses which start with a proliferation of pollen and seed cones and progress to the point where there can be attacks by fungal pathogens and opportunistic insects attracted to vegetation under stress. Subsidence can also lead to rotting of the base of the trees resulting in severe leaning or even toppling of the trees. The wetlands presumption found in BOR Section 4.2 subsection A.5 was developed by the District's Rule Revision Committee and adopted by the District in 1989. Under BOR Section 4.2.A.5, the District presumes that no adverse environmental impact will occur to a wetland if the water table drawdown at the wetland is less than one foot. In other words, if a WUP applicant demonstrates that its proposed withdrawal of water, in combination with other withdrawals, will not lower the water table by more than one foot at a wetland, then the applicant is presumed to have complied with the performance standards for wetlands and the criteria in Rule 40D-2.301(1)(c). Although BOR Section 4.2.A.5 refers to "actual" water table drawdowns, the District has always intended and applied this provision using a simulated drawdown, usually through the use of a groundwater flow model, rather than applying the presumption to actual measured water table reductions. The District applies the wetlands presumption to all WUP applications irrespective of whether the application is for a new use or renewal of a long-standing use. The District says it utilizes the one foot water table drawdown presumption as a threshold mechanism to screen out those water use applications that are not likely to cause unacceptable environmental impacts to wetlands. Neither the District nor any third party has ever successfully rebutted the presumption that unacceptable impacts do not occur when the water table drawdown at a wetland is less than one foot. The District suggested at the hearing that if a proposed WUP is challenged by a third party, the presumption no longer applies. This interpretation is not evident from the language of the District's presumption. Moreover, the evidence indicates there is some confusion or uncertainty as to how the presumptions should apply in such a case. As written, the District's wetland presumption applies to all wetlands throughout the District's jurisdiction regardless of type or location. The District applies the inverse of this presumption, i.e., if the modeled water table drawdown at a wetland is more than one-foot, the District presumes there is an unacceptable impact. If the water table drawdown at a wetland is projected to be more than one foot, the applicant can still obtain a permit if it proposes a mitigation or monitoring program satisfactory to the District. There are no guidelines or standards set forth in the rules for determining an appropriate mitigation program nor is there any delineation of the factors that will be balanced in determining whether to issue the permit. District Monitoring of Wetlands Impacts 651. The District's field staff has been involved in continuous efforts to evaluate the ecological conditions of wetlands. The District has been monitoring wetlands surrounding public supply wellfields in the Northern Tampa Bay area since the 1970s. Although these sites were not optimally designed for the purpose of establishing a point of demarcation between acceptable and unacceptable environmental impacts, the information developed from these sites was the best data available in 1989 as to the impacts of groundwater withdrawals on wetlands. At the time of the 1989 rule revisions, the District was convinced that there was a relationship between groundwater withdrawals and adverse wetland impacts. This conclusion was based upon the District's observations and experience, including field information supplied by permittees. The District has relied upon sites in the Green Swamp, Hillsborough River Park, upper Hillsborough area and Starkey Wellfield as a control network for environmental monitoring sites. Aerial photography has also been used to establish baseline conditions. Most of the District's monitoring experience has been with moderate to deep water cypress dome depressional wetlands and marshes, which are very common in the District. There are other types of wetlands in the District that are affected by drawdowns. For example, wet prairies and meadows can be particularly vulnerable because they are typically shallower than cypress dome systems and more sensitive to a lowering of the water table. Because many of the studied wetlands are surrounded by wet prairies, monitoring transects often run through some of the wet meadows and prairies. Thus, the District has developed some information and data regarding these systems. In addition, riverine systems have been monitored in the Cypress Creek area since the 1980s. Saltwater or marine wetlands, which are subject to tidal action, have not been extensively monitored by the District. Those wetlands are usually more under the influence of riverine flow and tidal influences than water table drawdowns. While different wetlands types respond differently to water table drawdowns, information gained by the District from the study of the wetland impacts of wellfield withdrawals in the Northern Tampa Bay region is useful for formulating some general principles. The District says it is actively expanding its data base to include other wetland types. In the meantime, the District says it is obligated to process permit applications with currently available information. To accurately ascertain impacts associated with groundwater withdrawals requires long-term environmental monitoring of wetland conditions. Many practical difficulties are involved. For example, gaining access to wetland sites beyond the property boundary of a permittee for monitoring purposes can present a problem. It may take one or two decades for the full effect of withdrawals to be realized. The District utilizes both "quantitative" and 94 "qualitative" environmental monitoring sites. Quantitative methodologies are complex to design, costly to implement and require accurate baseline data and/or long study periods. Even then, the results can be imprecise and difficult to interpret. A rigorous quantitative monitoring program, while desirable from an academic standpoint, is not always practical. In some instances, the District has imposed the significant burdens associated with such a program on permittees. Qualitative evaluations refer to assessments of condition based on subjective judgments. Qualitative evaluations by a competent environmental scientist can be useful in evaluating wetland impacts, but the inherent subjective nature of this approach must be kept in mind. The District has assisted West Coast in the development of an "Environmental Monitoring Plan" which is designed to integrate various wellfield monitoring programs into a single regional approach that incorporates a greater number of wetland sites and types, and would key in with more emphasis on hydroperiods and reduction in hydroperiods as the parameter of greatest concern. The results of these efforts when they become available should increase the reliability of the data and conclusions about the relationship between groundwater withdrawals and wetlands impacts. Development of the Wetlands Presumption 663. Theodore Rochow has been employed by the District as an environmental scientist in the Environmental Section of the Resource Projects Department since 1974. Dr. Rochow has monitored the impact of wellfield withdrawals on wetlands in the Northern Tampa Bay area for 20 years. His qualitative methodology involves the assessment of six parameters: water levels, soil conditions, canopy conditions, fire effect, plant and animal life, and human effects. The first five parameters can reflect adverse effects associated with loss of hydroperiod. Ratings on a five-point scale are utilized, comparing the rated wetland with the rater's experience as to what a healthy wetland should look like. As part of the rule development process in 1989, the District's Rule Revision Committee asked Dr. Rochow to develop a water table drawdown threshold for unacceptable environmental impacts to wetlands. The one-foot water table drawdown presumption appearing in BOR Section 4.2.A.5. was developed based principally upon Dr. Rochow's recommendation. Dr. Rochow prepared a Technical Report dated February 9, 1989, to the Rule Revision Committee setting forth his rationale for the wetlands presumption found in BOR Section 4.2.A.5. In developing the one-foot water table drawdown presumption for wetlands, Dr. Rochow compared his environmental monitoring data with computer modeled water table drawdowns from five separate public supply wellfields located within the Northern Tampa Bay area. The modeled water table drawdowns were produced by site-specific computer models utilized by the District in evaluating the WUP applications for the wellfields. From the various permit application reports, Dr. Rochow took the maps showing the simulated drawdowns from various pumping scenarios and correlated the drawdown information for specific wellfields with his environmental assessments in order to draw conclusions about whether or not impact occurred to wetlands at certain drawdown contours. Generally, the more impacted areas were within the higher drawdown contours. Because there is no universally accepted definition of what constitutes an unacceptable environmental impact, Dr. Rochow relied upon his own personal definition of the term in developing the one-foot water table drawdown presumption for wetlands. There was some variation in the ratings of the wetland sites within the modeled drawdown contour lines irrespective of the modeling used to generate the drawdown contours. Dr. Rochow did not perform any statistical analysis in correlating the one foot modeled water table drawdown to adverse impacts to wetland monitoring sites, and Dr. Rochow did not attempt to correlate actual water table drawdowns 95 with wetland impacts. There are limitations on the ability of any model to accurately and comprehensively predict water table drawdowns. The site-specific models relied upon by Dr. Rochow to develop the one-foot water table drawdown presumption utilized simplistic aquifer parameters and the computer modeling runs were usually for short-term periods of from 90 to 120 days. Different time scenarios and different pumpage levels were used in the models for the various wellfields. Those differences limit the comparability of the water table drawdowns. None of the District's environmental monitoring programs were optimally designed or established to correlate water table drawdowns with impacts to wetlands. When the District's environmental monitoring sites and programs were established, the modeled water table drawdown contours for the northern Tampa Bay area wellfields were not available to provide assistance in locating the sites. An optimal design would have a series of monitoring sites radiating out from the center of a wellfield or withdrawal source travelling outward so there is sufficient coverage in each of the drawdown contours generated by the model. There are, of course, practical and fiscal limitations on implementing such an optimal monitoring program. In sum, the studies relied upon by Dr. Rochow were not located or distributed in the environment so as to provide a scientific basis to reasonably derive a relationship between unacceptable impacts to wetlands and modeled water table drawdowns. Moreover, the inherent limitations of the models that produced the drawdown contours used in the analysis preclude specific correlations with the environmental monitoring 96 data. Wetlands react to the cumulative impact of all groundwater withdrawals and not just the impact of a single withdrawal. The site-specific stress models relied upon by Dr. Rochow did not simulate cumulative withdrawals. 97 From a geological and biological perspective, the District's monitoring data in the northern Tampa Bay area has been relatively short term. Longer term monitoring could reveal wetland impacts in areas where the water table is currently drawn down to a relatively small extent. In fact, there is some evidence that significant adverse impacts to wetlands can occur within the 0.5 foot modeled water table drawdown contour. In developing the one-foot water table drawdown presumption, Dr. Rochow looked only at wetland systems located in the NTB area. The District has not studied the applicability of a modeled one-foot water table drawdown threshold for protection of the health of wetlands located north of Pasco County or south of Hillsborough County. Wetlands in other parts of the District may have different water table requirements. For example, there are significant differences from a hydrogeologic standpoint between the Northern Tampa Bay area and the southern part of the District. Dr. Rochow's work should not automatically be extrapolated to other areas. In February 1994, Dr. Rochow updated his February 1989 report. He looked at the five wellfields previously considered in 1989 as well as an additional wellfield in the NTB area. In his February 1994 memorandum, Dr. Rochow again utilized drawdown contours generated by site-specific stress drawdown models. Dr. Rochow's 1994 update memorandum contains several qualifications regarding the use of a one-foot modeled water table drawdown as a threshold between acceptable and unacceptable environmental impacts to wetlands. One qualification was that the one-foot water table drawdown presumption should be applied only to freshwater cypress and marsh wetlands in the Northern Tampa Bay area. As noted above, the District's monitoring experience has been focused on cypress dome and marsh wetlands. At the hearing, Dr. Rochow testified that, while he believes the one-foot water table drawdown presumption offers some protection for wet prairies and meadows, it is probably not as protective as he would like. Dr. Rochow's 1989 and 1994 reports do not include any discussion of brackish water or saltwater, tidal wetland systems. The District performed no studies to determine the appropriateness of applying a modeled one-foot water table drawdown presumption to these saltwater and marine wetlands. Drawdowns of equal amounts can have different impacts depending on timing. Dr. Rochow's 1989 and 1994 studies focused basically on public supply or municipal water withdrawals. Some other types of groundwater withdrawals, such as agricultural use, are more seasonal in nature and can have a very different impact on wetlands, even when the withdrawal is the same quantity as from a public supply wellfield. Dr. Rochow's 1989 and 1994 studies do not address this factor. Other limitations of the environmental monitoring programs and analyses relied upon by Dr. Rochow in developing the one-foot water table drawdown presumption for wetlands include: changes in the location of groundwater pumpage during the time of Dr. Rochow's observation without adjustment in his studies; variations in the number and duration of visits to wetland sites; the lack of baseline information and data about the wetland sites for the period before pumping from the wellfields began; variations in monitoring at different sites; and a lack of intermediate sites between the alleged impacted sites and control sites. All of these issues should not obscure the important conclusion that the District has developed sufficient evidence to establish that there is a correlation between impacts to wetlands and drawdowns from a withdrawal. There are practical reasons, including fiscal and time constraints, that preclude a perfect scientific study of the precise relationship. Moreover, site-specific factors make universal conclusions difficult if not impossible. While it may be possible to develop a screening guideline to assist in the WUP process, the presumption in BOR Section 4.2.A.5 as currently written does not fit the bill. The information developed by the District fails to support the general conclusion set forth in the presumption that no unacceptable impacts will occur if the modeled water table drawdown is less than one-foot. Use of Models in Applying the Presumption In the WUP review process, the District utilizes different models and/or different modeling assumptions depending upon the circumstances and the use involved. The District's use of the "limited cumulative" analysis (Level 2 of the Design Aids) provides for the consideration of some cumulative impacts, but applications under the Level 2 threshold do not receive any cumulative scrutiny. The modeling for the Level 2 Analysis is more sophisticated than the modeling utilized by Dr. Rochow. Dr. Rochow's correlation between unacceptable impacts to wetlands and modeled water table drawdowns should not be automatically extended to drawdowns generated by these more sophisticated models. In connection with the NTB WRAP study, the District has developed the NTB Regional Groundwater Flow Model to simulate cumulative impacts of groundwater withdrawals from all users in the Northern Tampa Bay area. This regional model is much more complex than the site-specific stress models relied upon by Dr. Rochow. The regional model includes recharge and is 98 calibrated. In most instances, the site-specific stress models relied upon by Dr. Rochow utilized flat starting surfaces in order to produce drawdown contours, while the regional model uses historical water levels as the basis for the model runs. Depending on the assumptions utilized, there can be a significant difference between drawdown contours generated with a cumulative simulation run on the regional model and drawdown contours from a non-cumulative simulation using the site- 99 specific models relied upon by Dr. Rochow. Because of the inherent differences between the models, including how the models are run, the amount of pumpage inputted (permitted versus actual pumpage), and the period of time of the model run, it is not surprising that the modeling results are not identical. Generally, the District says it has found that the one-foot drawdown contour of the regional model incorporates within its boundary the 0.5 foot individually modeled drawdown contours for most withdrawals and circumscribes many of the areas where significant environmental impacts occur in the NTB. The District contends that the variations from the different models do not diminish the usefulness of the site- specific models and do not invalidate Dr. Rochow's conclusions. At the time of the development of the presumptions in 1989, the District did not have regional calibrated models available. Ultimately, calibrated regional models may provide a basis for regulating all water use, but these models are still being refined, and they cannot currently be implemented on a localized basis. Most calibrated models have an error range of two feet or greater for simulated water drawdowns and it is usually not possible to utilize such a model to predict drawdown contours of one-foot or less. Thus, site-specific stress model predictions of drawdowns are still the best information available in most cases. However, these models are not accurate enough to reach anything other than general conclusions about the correlation between water table drawdowns and wetlands impacts. In sum, it is clear there are more sophisticated modeling tools and better evidence available today than in 1989 when the presumption was developed. Dr. Rochow acknowledges that, in light of more recent studies by the District including the NTB WRAP, the one-foot water table drawdown contour generated by a site-specific stress model may not be an appropriate threshold for acceptable and unacceptable environmental impacts to wetlands. In many instances, wetlands respond to less than an individual stress modeled one-foot drawdown contour. If actual water table drawdowns are analyzed, wetlands may be impacted by drawdowns of even a few tenths of a foot. Thus, the presumption as it is currently written is not supported by the current scientific data. Conclusion There is no hydrological basis for concluding that a one-foot water table drawdown at a wetland is the appropriate threshold or demarcation between acceptable or unacceptable environmental impacts for all wetlands in the District. The need for additional study of issues such as the impact of seasonal withdrawals on wetlands and the limited ability to accurately analyze cumulative impact preclude such a conclusion. Moreover, it is doubtful that any single water table drawdown presumption could be applied on a District-wide basis because of the variability within the District and the limitations on the ability of the current models to evaluate site-specific conditions that are not in the immediate vicinity of a given withdrawal. The District concedes that the one-foot water table drawdown presumption is not an absolute dividing line between acceptable and unacceptable impacts for all wetland systems. The District claims, however, that these issues can be handled through site-specific information. The District says further study is not necessary to provide scientific support for the wetlands presumption because the presumption is not used as a pass/fail test. According to the District, the wetlands presumption is used only to identify projected drawdowns that deserve more scrutiny. However, the one-foot wetlands presumption is not written in such terms. Instead, the presumption is written so that applications that could potentially cause unacceptable adverse impacts can be approved without further scrutiny. The regulation of the environmental impact associated with groundwater withdrawals is an extremely important yet complex and uncertain task. The District contends that vital resources could be irretrievably lost if scientific certainty were a prerequisite to regulation. Those concerns are not an adequate basis for the wetlands presumption as currently written. The District can and should regulate impacts to wetlands without the presumption in BOR Section 4.2.A.5. While there is a relationship between the distance from a withdrawal point and the severity of hydroperiod reduction and associated adverse impacts to wetlands, the studies relied upon by the District do not support application of the one-foot water table drawdown presumption as written. Moreover, an application with a modeled water table drawdown that exceeds the presumption is held to account for the impacts from all withdrawals in the area while applications below the threshold are not subject to any cumulative scrutiny. Lakes Presumptions Background There are roughly 1800 lakes over 10 acres in size within the District. Like wetlands, a large percentage of the lakes in the District are depressional. In general, Florida lakes are defined as shallow. The level of a lake is often closely associated with the level of the surficial aquifer. Lake levels fluctuate natural fluctuations due to seasonal rainfall, the fluctuations generally occur around a prevailing water level, which responds slower to long-term changes in hydrologic conditions. Maintaining water level fluctuations within the normal range is an important factor in preserving the ecological characteristics of lakes. Important physical features, such as natural beaches, littoral shelves, bars, and contiguous wetlands, are influenced by prevailing water levels and the fluctuating range. Much of the biological productivity for lakes occurs in the shallow littoral areas, which are habitat to a wide variety of attached algae, zooplankton, macroinvertebrates, and fish, including fish bedding areas where eggs are deposited. Significant reductions in lake levels can have deleterious effects upon submerged vegetation, which is generally found in the shallow waters along the littoral shelf, and neighboring wetlands which are dependent upon periodic or continued inundation. Lowering of a lake level for long periods can cause desiccation of the valuable littoral shelf vegetation and a corresponding loss of habitat and productivity which adversely affects fish and wildlife. The District began efforts to establish management levels for lakes in the late 1970s and early 1980s. In 1989, the District began a formal effort to assess the lakes in the Highlands Ridge area. In 1991, the District extended this effort to begin establishing management levels district- wide. The District's methodology for establishing lake levels involves the establishment of four management levels for each lake: a ten-year flood warning level, which is a level that a lake can be expected to rise every ten years or statistically having a 10 percent chance of reaching in any given year; a minimum flood level, which is roughly equivalent to the normal seasonal high; a low management level, which is roughly equivalent to the normal seasonal low; and an extreme low management level, which is the low to be expected every four to six years during drought conditions. Under these definitions, the District deems it desirable for a lake to reach its minimum flood level at least twice during a five-year period. In determining whether a lake is "stressed", the District reviews records regarding the lake's level during the proceeding five years and, if the lake is below the low management level two-thirds of the time, it is deemed "stressed". In establishing management levels, the District utilizes an integrated methodology that takes into account historical maps, ecological indicators, site assessments and personal observations of neighboring residents. See, Rule 40D- 8.603, F.A.C. The District looks as far back historically as the data permits. There is a wide range in the quality of the historical records regarding lake levels. Once management levels are established, a standard monitoring program is implemented to record the lakes levels. At the time of the hearing, the District had adopted management levels for more than 370 lakes District-wide. See, Rule 40D-8.624, F.A.C. This represents a significant percentage of the lakes in the District that are greater than 20 acres in size. There are still a number lakes, many of them small and unnamed, for which the District has not adopted management levels. In establishing management levels, the District has prioritized lakes based upon size, the number of water use permits for withdrawals from the lake, whether there were artificial structures under the control of someone other than the District that could influence the lake level and the degree to which the surrounding area was populated. The District began publishing an annual list of "stressed" lakes in 1991. All of the District's annual reports on stressed lakes indicate a significant number of lakes along the Highlands Ridge in southern Polk County and northern Hillsborough County are stressed. Regulating Lake Withdrawals Lakes vary widely in the degree to which they are interconnected with other surface water bodies and/or groundwater aquifers. Because of the various hydrologic factors which can influence lake levels, it is difficult to establish a proportionate relationship between direct surface water withdrawals from lakes and a lowering of lake levels. Nonetheless, because surface water withdrawals from lakes have a direct effect on lake levels, the District concluded it was essential to develop guidelines to manage such withdrawals. The District sought to provide both the regulatory staff and the regulated public with guidance as to whether or not a particular activity or magnitude of an activity could be permitted. Prior to the 1989 rule revisions, the withdrawal of surface water from lakes and impoundments was not regulated by the District on a cumulative basis. The rules were applied so that each permittee was entitled to withdraw from a lake a volume of water equal to one-foot of the total surface area of the lake. The District was concerned that too much water was being permitted on a cumulative basis thereby raising the prospects of serious ecological harm to some lakes. In preparation for the 1989 rule revisions, District Environmental Scientist Sid Flannery analyzed existing information to determine whether a relationship existed between permitted quantities and low water level conditions within lakes. He particularly focused on those lakes where permitted quantities exceeded more than one-foot of the entire lake area. Mr. Flannery concluded that there were a number of lakes that appeared to have excessive quantities permitted for withdrawal on a cumulative basis. As part of Mr. Flannery's analysis, actual conditions were reviewed for many of the lakes and lake stage data and adopted management levels were considered when available. A large proportion of the studied lakes were found to be fluctuating below their normal range with varying degrees of severity of water level reduction. Based on these studies, the District decided to modify its then existing rules. One of the primary goals was to insure that the one-foot lake volume presumptive guideline would be applied cumulatively. Development of the Lakes Presumptions 704. Adopted lake management levels can be a useful tool in managing lake withdrawals. However, the District states that adopted lake levels cannot be used alone to manage lake withdrawals because of the variability in lake hydrologic budgets. The District does not have sufficient data to calculate accurate hydrologic budgets for most lakes. In many cases, extensive further data collection would be necessary and, even then, hydrologic budgets cannot always be calculated accurately. From a scientific standpoint, a bad budget can be worse than no budget. It is simply impracticable and cost prohibitive to do a water budget for all lakes within the District to determine how much water can be permitted. To implement a cumulative approach for regulating surface water withdrawals from lakes and to address certain other issues, the 1989 Rules Revision Committee developed and the District adopted Section of the Basis of Review which sets forth presumptions relating to potential lake impacts caused by surface and groundwater withdrawals. This section provides as follows: The District presumes that a surface water withdrawal will not cause unacceptable environmental impacts if the total annual withdrawal, combined with other surface withdrawals, does not exceed the volume contained within the top foot of water at average lake area. For lakes with adopted levels, average lake area is the average of the area at maximum desirable st District staff. The District presumes that a surface water withdrawal will not cause unacceptable environmental impacts if the withdrawal of water, combined with other surface withdrawals, does not exceed a rate of one- quarter inch per day over a 30-day period. A quarter inch lowering shall be equivalent to the volume contained in the top quarter inch of water at average lake area. The District presumes that a groundwater withdrawal will not cause unacceptable environmental impacts if the withdrawal of water, combined with other groundwater withdrawals, does not lower the water table at the lake by more than 1 foot. According to the District, the three presumptions are aimed at addressing the total impact of surrounding surface and groundwater withdrawals on the health of a lake. While there was some testimony that an applicant must meet all three lake presumptions conjunctively, subsections a. and b. on their face only apply to direct surface water withdrawals from lakes and subsection c. applies only to groundwater withdrawals that impact a lake. The language of BOR Section 4.2 does not delineate or explain how the presumptions are applied conjunctively. Currently, there is limited understanding of the impacts of groundwater withdrawals on lakes. It is not clear when or how the District could apply the three presumptions in conjunction. More particularly, it is not clear how or what information the District will use to assess the impacts to lakes from groundwater withdrawals. As written, the presumptions provide that surface water users need only be concerned with the cumulative affect of other surface water users and, likewise, groundwater users need only be concerned with the cumulative affect of other groundwater users. Thus, the lakes presumptions currently do not provide a basis for analyzing the cumulative impacts on a lake of all water uses. The presumptions in BOR Section 4.2.B.2 were based on the analysis conducted by Mr. Flannery, with the assistance of other District staff. Mr. Flannery prepared a technical memoranda dated February 28, 1989 to the District's Rules Revision Committee setting forth his rationale for the surface water presumptions in BOR Section 4.2.B.2.a and BOR Section 4.2.B.2.b. He prepared a subsequent memorandum dated March 7, 1989, which updated his February 28, 1989 memorandum. The District claims that the three presumptions in BOR Section 4.2.B.2 are used as thresholds or guidelines to screen out those water use applications which are not likely to cause unacceptable environmental impacts to lakes from those impacts that are likely to cause unacceptable impacts. The District believes that, because of the time frames required for regulatory review and the data needed to calculate accurate hydrologic budgets, some initial screening guidelines are necessary for regulatory purposes. The District views the presumptions as safety checks, providing some measure as to the impact of cumulative water use in the absence of a detailed hydrologic budget for each lake. The District applies the three lakes presumptions to all lakes regardless of type or location. Unless the District has information available to the contrary, a water use applicant who satisfies the presumptions does not have to present any further evidence to the District in order to show compliance with BOR Section 4.2.B. and is deemed to meet the condition in Rule 40D-2.301(1)(c) insofar as lakes are concerned. Although the District claims the presumptions can be rebutted by site specific information, neither the District nor any third party has ever successfully rebutted any of the lakes presumptions in BOR Section 4.2.B.2. Application of the lake presumptions can lead to some anomalous results. For example, an applicant who proposes a surface water withdrawal that is projected to result in a one and half foot drawdown of the lake level would be deemed to cause unacceptable environmental impacts. However, if an applicant proposed a surface water withdrawal and a separate groundwater withdrawal each of which was projected to cause a drawdown of three quarters of one foot, the language of the surface water and the groundwater lake presumptions dictate that they be applied separately so the applicant would be deemed to not cause unacceptable environmental impacts. The District suggests that this hypothetical result is unlikely because the site-specific information would make it clear that the presumptions should not be applied. Thus, the District claims that if a lake was lowered by one foot due to surface water withdrawals, then a groundwater applicant would not be able to meet the performance standard for the lake and the presumption would not apply because there would be site-specific information which indicated to the contrary of the presumption. However, the performance standards address fluctuations outside normal ranges which lead to impacts to water quality, wildlife, and other biota. The presumptions as written would effectively shift the burden of proof from the applicant to the District and/or a third party challenger to prove such adverse impacts. BOR Section 4.2.B.2.a. - One Foot Maximum Cumulative Drawdown In the 1989 rules revision process, the District decided that, because the fluctuation of lake stages within normal historic ranges was so important to lake ecology, water withdrawals should be regulated so as to not greatly reduce this range of fluctuations. As noted above, the District did not believe that an accurate hydrologic budget could be adopted for every lake. The District believed its prior regulatory methodology for issuing permits based on area was worth using on a cumulative basis because it was relatively simple and used consistently available information to relate the amount of the withdrawal to the size of the lake. Unlike information on bathymetry and volume which are generally unavailable, lake area can be easily determined. Mr. Flannery's March 7, 1989 memorandum reviewed water level variations in a number of lakes in the District for two separate years. Mr. Flannery calculated the average water level for each of these years and then calculated the average of these two averages. He found an average fluctuation of 2.5 feet in the water levels in those lakes. Mr. Flannery's analysis noted that the presumptive threshold of one-foot for the total annual surface withdrawals from a lake was approximately equivalent to 40 percent of this 2.5 feet of natural fluctuation. In other words, a cumulative one-foot lowering represented about 40 percent of the typical yearly range of stage fluctuation based upon Mr. Flannery's analysis of the hydrologic records of twenty-one lakes in the District for the years 1983 (a normal to wet year) and 1985, (which incorporated a severe drought followed by heavy summer 100 rains.) Mr. Flannery's 1989 report delineates four reasons in support of the presumptive threshold in BOR Section 4.2.B.2a which would limit total annual surface water withdrawals from a lake to an amount equal to the volume of the top one foot of water of the lake: (a) one foot of water per year represents a high proportion of the normal variability of lake levels in the District and withdrawals larger than the threshold could significantly alter the normal fluctuations of lake stages; (b) lakes are shallow in Florida and more than a one foot withdrawal could be a fairly large fraction of the volume of a given lake; (c) more than one foot of decrease in the water elevation in a lake could expose a fair amount of littoral zone area; and (d) because of the surface water and groundwater interactions in lakes, some of the one foot presumed withdrawal from a lake could be dampened or ameliorated by movement of water into the lake. The choice of 40 percent of the average annual seasonal variance was not based on any specific principal in the field of limnology. The District relied upon the professional judgment of Mr. Flannery and Donald Richters, who had managed the District's lake levels management levels program since its inception. Pinellas contends that the District's justification for the one-foot cumulative drawdown threshold is not scientifically valid. Pinellas points out that the District used data from only twenty-one lakes over two years to support its choice. Pinellas also contends that Mr. Flannery's analysis is flawed because he did not evaluate the long term and/or year to year fluctuations that occur in lake levels, including those due to the annual variability in rainfall. Pinellas' contentions are not persuasive. There is no overriding hydrological standard for regulating withdrawals from a lake. The District looked at typical conditions and selected a standard that would be conservative in favor of the resource. No persuasive evidence was presented that the District's decisions in this regard were unreasonable. Similarly, the District's decision not to utilize long-term variations in lake levels because of the flood-drought cycle was sound. The District did not consider year to year variations in lake levels to be relevant to its analysis. The District was concerned with comparing its presumptive threshold with natural fluctuations within a lake. Looking at the seasonal fluctuations of a typical lake was appropriate. The presumptions in BOR Section 4.2.B.2.a are applied using an analytical procedure known as the "closed basin analysis." This closed basin analysis is not described in the rules but is set forth in the Water Use Design Aids, Part C of the Water Use Permit Information Manual. Pinellas claims that the District's analysis is flawed because the one-foot presumption is calculated under the assumption that all lakes are closed-basin lakes even though a large number of lakes in the District are actually flow-through. Flow-through lakes behave differently than seepage or closed basin lakes when water is removed. The amount of flow into and out of a flow-through lake can be two to three times the amount of annual rainfall in the area of the lake. Closed basin or seepage lakes do not have this type of additional inflow and outflow. The extraction of the equivalent of one foot of water from a flow-through lake may be a small portion of the quantity of water flowing into or through the lake in a year. Indeed, a flow-through lake might not experience any physical decline at all given the inflow of water. Because the actual drawdown for flow-through lakes would be less than the predicted drawdown based upon the closed basin analysis, the one-foot guideline is actually conservative in favor of protecting the flow-through lakes. The District's choice of a regulatory strategy that maximizes protection of lakes with long residence times is reasonable since these lakes are particularly sensitive to withdrawals. The District has not established a separate guideline for flow-through lakes because of the variability in the characteristics of these lakes. The District felt these variations could be considered in the permitting process as additional site-specific information. The rules do not preclude the use of surface water inflow and outflow as part of the analysis. Pinellas contends that Mr. Flannery's analysis does not adequately consider the variability in lake dimensions and lake shapes. The withdrawal of an amount of water equal to the volume of the top one foot of the lake at average lake area morphometry. will have varying impacts depending on the lake 101 The District recognizes the uniqueness of each lake mandates that flexibility be built into the rules for site- specific information. The desirability of utilizing site- specific information in the review process was acknowledged in Mr. Flannery's technical analysis. A fundamental goal of [the] rules should be to keep total withdrawals in proportion to the size or water yield of the lake.... The presumptions...for the evaluation of lake withdrawals are to be used as guidelines which can be superseded if adequate site specific information if [sic] available. The evaluation of site-specific information may indicate that the allowable water yield of a standing water body is higher or lower than the quantity indicated by the presumption.... Lake stage data is the most important site specific information for evaluating withdrawals from lakes. Stage data are absolutely necessary to determine if a lake is fluctuating within normal management levels which represent healthy ecological conditions. It should be standard practice that each lake that supports direct lake withdrawals also have stage data collected at least as frequently as every two weeks. The amount of surface water withdrawals from a lake that will cause unacceptable impacts to the lake will vary depending on numerous site-specific factors such as precipitation, evapotranspiration, runoff, hydrogeology, the nature of the water withdrawals and the type of vegetation. Nonetheless, a rebuttable, upper threshold screening guideline may be a useful regulatory tool if it is adequately described and properly applied. The more persuasive evidence established that the District's approach is reasonable and, if properly applied, can effectively serve as a cap on withdrawals from any lake. In the August 19, 1994 report by the Surface Water Availability Conventions Committee the usefulness of a stage-volume threshold, like the District's one-foot presumption, as an initial screening guideline for assessing surface water availability from lakes was recognized. The Surface Water Availability Conventions Report recommended that the districts develop separate thresholds for different types of lakes based on physical or ecological characteristics, such as average depth, shore line morphometry or the abundance of surrounding wetland community. It does not appear that any district has yet adopted separate thresholds for different types of lakes. As noted above, the District's use of a closed-basin analysis insures that its threshold will be conservative in favor of the resource. In sum, the evidence in this case established that a properly worded and applied stage-volume threshold can serve as a useful cap and/or screening tool for regulating withdrawals that impact lakes. The analysis performed by the District does not, however, support the presumption as currently written. There is no scientific basis for concluding that total surface water withdrawals of less than one-foot of the total area of a lake will not have an adverse impact, especially since groundwater withdrawals can be affecting the lake in ways that are difficult to determine. The District's rules also lack an adequate explanation of how the presumption applies to lakes that do not have adopted management levels. The stage-volume threshold in BOR Section 4.2.B.2a is based on "average lake area." Under the pre-1989 rule, there were some problems in calculating area because most lakes have sloped sides, which reduces the actual quantity within the top one foot, and some estimates of lake surface area were derived when the lakes were at higher stages. As part of the 1989 rules revisions, a new criterion was included in BOR Section 4.2.B.2a to clarify and standardize lake area measurements. For lakes with adopted management levels, an average of the lake area derived from the maximum desirable stage and the low management level is to be used. However, there is still a great deal of uncertainty as to how to determine the area for lakes without adopted levels. The presumption as currently written leaves the determination of average lake area in such cases completely to the District with no delineation of the factors that will be considered. Unless some standards or criteria are provided for making this determination, the rule vests unbridled discretion in the District. Finally, it is not clear how the District applies this presumption to lakes with permitted withdrawals that already exceed the presumption. This issue was not fully developed at the hearing, but it appears the presumption (and perhaps the performance standards) are not applied in many instances. The conditions and factors that will be considered in this regard are not set forth in the rules. BOR Section 4.2.B.2b - 30 day maximum withdrawal As part of its analysis for the 1989 rule revisions, the District looked at total permitted quantities from a maximum daily perspective. The District was concerned that a rapid lowering of a lake could expose littoral shelf areas without allowing time for biological communities to adjust and relocate. Such impacts can be exacerbated when the maximum withdrawals occur during the dry season when lakes are at their lowest level. Prior to the 1989 rule revisions, there was no limit in the District's rules on the amount of water that could be taken from a lake on a short-term basis. Some permits had maximum daily withdrawal limits which allowed lakes to be drawn down from five to ten inches a day. The District felt it needed to have some measure to try to keep cumulative water withdrawals within scale within a lake. The 1989 rule revisions added a one-quarter inch per day cumulative maximum daily withdrawal averaged over a thirty- day period (which is equal to 7.5 inches per month) to address these concerns about rapid short-term withdrawals. The District wanted its regulatory scheme to be consistent with the naturally occurring hydrologic processes for a lake. Mr. Flannery's March 7, 1989 memorandum sets forth his analysis in support of the maximum 7.5 inches per month presumption in BOR Section 4.2.B.2b. In his memorandum, Mr. Flannery sought to compare the presumption to natural lake evaporation. 102 He noted that the maximum pan evaporation rate calculated at the Lake Alfred Experimental Station over a 24 year period for the month of May (when evaporation losses are 103 highest) was 8.5 inches. The 7.5 inch presumptive limit was felt to roughly correspond with the worst case scenario for water level declines due to natural influences. Since lake level declines from withdrawals typically stabilize to some degree because of rainfall and groundwater inflows, the District believed that a limitation of 7.5 inches over a thirty day period would provide a safe upper limit for lakes. Pinellas claims that the District's analysis in developing this presumption was flawed because the District did not use a pan coefficient in comparing the presumption with the data. Lake Alfred 104 The District's decision to not apply a specific pan evaporation coefficient to the Lake Alfred data was not unreasonable since the District was not seeking a precise scientific measurement, but rather was looking for a general idea of the high range of natural water loss. Pinellas notes that the District has not conducted any specific scientific studies that examine the environmental characteristics of lakes to confirm that an increase to the maximum monthly evaporation rate would not cause unacceptable environmental impacts to a lake. Pinellas contends that, absent a specific study which directly links the reduction of water in a lake with adverse environmental impacts to the lake, the presumption is not scientifically valid. The more persuasive evidence established that the District has an adequate basis for concluding that rapid drawdowns in a lake can increase the severity of the impacts. Thus, there is a basis for regulatory steps to minimize the possibility of rapid drawdowns. To the extent the District's chosen threshold is used only as a preliminary screening guideline or upper limit on withdrawals, there is support in the District's studies. The presumption should not be used or viewed as a demarcation between acceptable and unacceptable impacts for all lakes. Moreover, as currently written, the District's presumption assumes no adverse impact if a withdrawal, combined with other withdrawals, is below the threshold. There is no persuasive evidence that withdrawals under the presumptive level will not cause adverse impacts. It should be noted that, under this presumption, an applicant could, within a 30 day period, remove over 60 percent of the one foot volume of the lake which is allowed for the entire year under the BOR Section 4.2.B.2a presumption. BOR Section 4.2.B.2.c. - Lake-fringing Wetlands - Water Table Presumption No specific technical report or memoranda was prepared to support the one foot water table drawdown presumption for lakes found in BOR Section 4.2.B.2c. This presumption was based, in part, on the technical work conducted by Dr. Rochow for the wetlands presumption in BOR Section Dr. Rochow was not directly involved in developing the lakes presumptions nor has he performed any studies attempting to determine a relationship between water table drawdowns and unacceptable environmental impacts to lakes. Mr. Flannery concluded that, since many Florida lakes are surrounded by fringing wetlands and Dr. Rochow had purportedly found that wetland impacts were associated with a modeled one foot water table drawdown, a similar one foot water table drawdown standard could be used as a threshold for unacceptable impacts on lakes from groundwater withdrawals. The District's 1989 Rules Revision Committee accepted this analysis. The Rules Revision Committee was not aware of any research which specifically addressed the impacts of groundwater withdrawals upon wetlands around lakes and considered Dr. Rochow's research to be the best available information. There is no clear scientific demarcation between wetlands and lakes. Limnologists have not developed a uniform definition of what constitutes a lake. Similarly, ecologists cannot generally agree upon the boundary between a wetland and a lake or an upland. Whether a wetland that fringes a lake should be classified as part of the littoral zone of the lake or a separate wetland system that is contiguous with the lake is a decision that is most accurately made on a site-specific or system-specific basis, but such information is often unavailable. The predominant ecological differences between lakes and wetlands include the following: (a) water depth - lakes are typically deeper than wetlands; (b) permanence of inundation - lakes are typically inundated or contain water throughout the year and from year to year, while wetlands will commonly experience a dry period with very little water or dry conditions; (c) thermal structure - lakes will often have a thermal structure with layers of temperature zones with some zones higher in certain chemical constituents, nutrients, and salts, wetlands are typically not deep enough to experience a thermal structure; (d) hydrodynamics - the hydrodynamics of lakes can include currents that behave and form in different ways, while wetlands are not typically able to form currents because of their shallow nature and their emergent vegetation; and (e) primary production/vegetation -- the primary production or growth of plant material occurs mostly underneath the water in lakes in the form of either submerged vegetation or phytoplankton or attached algae that may be on the bottom or growing on surfaces of things underwater, while in wetlands the majority of vegetation is emergent and most of the growth and green area of plants is above the surface of the water. Despite these differences, wetlands and lakes have many common physical features and they both have ponded water which communicates with the surficial aquifer system. The District felt that the hydrologic similarities warranted a consistent regulatory approach. Most lakes in Florida have a surrounding ring of marshes or hardwood wetlands. The District says the purpose of BOR Section 4.2.B.2c was to capture those withdrawals which might affect lake-infringing wetlands in cases where there might be doubt or confusion as to whether a particular area should be considered wetlands or part of a lake. The District wanted to cover these areas with the same level of protection, regardless of whether they are considered as wetlands or a portion of a lake. A water table drawdown in a marsh can lead to changes that impact the health of various types of emergent and submergent vegetation and the habitat space available for fish and invertebrates. It can also lead to foraging changes in wading birds and can cause substantial impacts on vegetation in the vicinity. The District concluded that a similar groundwater withdrawal impact analysis could be used for wetlands whether they were isolated or fringing lakes. No persuasive evidence was presented to refute this conclusion. Lakes often have different hydroperiod conditions and sources of water than isolated wetlands. Pinellas contends that Dr. Rochow's work relating to wetlands reflected in his 1989 and 1994 reports does not extrapolate scientifically to lakes and, consequently, is not a scientifically valid basis for adopting a one foot water table drawdown presumption for lakes. While Dr. Rochow's work relating to wetlands primarily focused on isolated cypress wetlands, it did include some marshes as well as hardwood wetlands. The District's conclusion that Dr. Rochow's analysis of the impact of water table drawdowns on wetlands is useful in looking at fringe wetlands along lakes is reasonable so long as the limitations of that study are recognized. Like the District's wetlands presumption, the lakes presumption provides that no unacceptable impacts will result from withdrawals that fall below the threshold. Thus, as written, the presumption is not just a cap or screening guideline. The scientific evidence is insufficient to conclude that a modeled water table drawdown of less than one foot will not cause an unacceptable impact at any lake. To determine compliance with the presumption in BOR Section 4.2.B.2c, the District does not use actual water table drawdowns. Instead, drawdowns simulated by a groundwater flow model are utilized. As noted in the discussion above regarding the wetlands presumption, site-specific models have inherent limitations, including the lack of cumulative impact analysis, that hinder the ability of such models to accurately predict actual drawdowns. It should also be noted that the District's rules do not provide any guidelines or criteria that will be considered in determining whether and how an applicant can mitigate the presumed adverse environmental impacts if the modeled water table drawdown contour is greater than one foot at a lake. Conclusion Because of the large variability within the surficial aquifer and how it communicates with lakes, it is not possible to develop a single annual withdrawal threshold or a single daily withdrawal threshold that can account for all the various factors that affect water levels in lakes, such as recharge, runoff, and the inflow and outflow of the lakes. Moreover, Mr. Flannery's 1989 studies do not establish a link between specific water level reductions in a lake and impacts to any particular biota. He assumes a linkage between changes in lake level fluctuations and adverse impacts to the various biotic components of lakes. The actual impacts to a lake will depend on many factors including the health of the lake and the unique ecosystem. The inverse of the presumptions within BOR Section 4.2.B.2 may be appropriate initial screening guidelines to determine where there is a greater likelihood of impact. However, there are no specific studies to determine conclusively at what level withdrawals will not have an impact. Thus, the scientific evidence does not support the presumptions as written. Because the presumptions conclude that an applicant will not have an unacceptable impact if the withdrawal is under the threshold, they effectively shift the burden of proof from the applicant for permits below the presumptive thresholds. Furthermore, it is not clear how the presumptions are applied to the renewal of existing permits and/or what factors would be considered in determining whether to allow a proposed withdrawal to exceed the presumptive threshold and/or what factors would be considered in the development of a mitigation plan. 5. Stressed Lakes - BOR Sections 7.3.5.1 and 7.5.3. (NTB WUCA) and proposed BOR Section 4.2.B.3 (SWUCA) NTB Pinellas has challenged existing Sections 7.3.5.1 and 7.3.5.3 of the Basis of Review. These provisions are only applicable in the Northern Tampa Bay WUCA. Section 7.3.5.1 creates a presumption relating to requested new withdrawals from stressed lakes in the NTB WUCA and provides as follows: Stressed lakes - New Withdrawals Due to cumulative groundwater and surface water withdrawal impacts, new withdrawals from stressed lakes shall not be permitted. Under BOR Section 7.3.5.1, the District has conclusively determined that any new withdrawals from a stressed lake will cause unacceptable environmental impacts to the lake and, therefore, such new withdrawals will be denied. It is not clear how renewal permits from a stressed lake are handled. BOR Section 7.3.5.3 authorizes the District to deny a WUP for any new groundwater withdrawal within the NTB WUCA which adversely impacts a stressed lake or causes a lake to become stressed. This provision is potentially very broad. On its face, it applies to any "new" WUP that has a measurable impact on a stressed lake or would cause a lake to become stressed irrespective of the other factors and/or withdrawals that may be impacting that lake. Only minimal evidence was presented as to how this provision is applied. It is not clear how or if this provision applies to renewal permits. Apparently, the District will allow impacts to be mitigated and/or will analyze renewal permits differently than applications for new uses in applying both of these stressed lake provisions. The conditions and factors that will be considered in making these determinations are not set forth in the rules. The District's rules do not provide any methodology or standards for an applicant to rebut the District's conclusion. SWUCA Under proposed BOR Section 4.2.B.3 of the SWUCA Rules, the presumptive guidelines for lakes would not be applied by the District in the SWUCA when adopted lake levels indicate that a lake is in a stressed condition. The proposal includes provisions, similar to the NTB WUCA provisions for stressed lakes, that would limit new withdrawals and reduce existing withdrawals. Impacts to a stressed lake can be reduced by replacing surface water withdrawals from the lake with groundwater withdrawals that are located as remotely as practicable from the lake. Proposed BOR Section 4.2.B.3.d(2), authorizes replacement of a surface water withdrawal from a stressed lake with a groundwater withdrawal even when the groundwater withdrawal may have an unacceptable adverse impact as defined by the performance standards and even when the minimum groundwater levels in the area have not been met. The District claims that this provision is necessary so that it can substitute groundwater withdrawals for surface water withdrawals when it appears that the groundwater withdrawals will be less harmful. This provision is applicable only when a lake is "stressed due to regional causes." ECOSWF has challenged this provision on the grounds that it allows for the continuation of a use that fails to meet the Conditions For Issuance and consequently does not satisfy the three-prong test. This issue is discussed in the Conclusions of Law. 6. Impacts on Streams - BOR Section 4.2.C.2. Background Section 4.2.C.1 of the Basis of Review sets forth the performance standards for streams. These standards relate to flow rates and provide that the flow rate of a stream should not deviate or be reduced from the normal rate and range of fluctuation to the extent that water quality, vegetation or animal populations in streams and estuaries are adversely impacted or to the extent that recreational use or aesthetic qualities of the water resource are adversely impacted. The performance standards further require that flow rates should not be reduced from the existing level of flow to the extent that salinity distributions in tidal streams and estuaries are significantly altered as a result of withdrawals. In Section 4.2.C.2 of the BOR, the District has created a presumptive threshold between acceptable and unacceptable impacts to streams and other water courses within the District for purposes of evaluating WUP applications. This provision provides as follows: The District presumes that the withdrawal of water will not cause unacceptable environmental impacts if the withdrawal, combined with other withdrawals, does not reduce the rate of daily flow by more than 10 percent at any point in the drainage system at the time of withdrawal. The effects of water retention in instream impoundments will be included in the determination of flow reductions. Estimated available yield will be determined on historical flow records or best available data and existing permitted use. Under this stream flow reduction presumption, if an applicant demonstrates that stream flow will not be cumulatively reduced by more than 10 percent, it is presumed that there will be no unacceptable environmental impacts from the withdrawal, the performance standards are deemed to be met and no further scientific information need be provided to the District by the applicant. As a matter of policy and practice, the District interprets and applies the presumption set forth in BOR Section 4.2.C.2 in the inverse. In other words, if a withdrawal, combined with other withdrawals, does reduce the rate of daily flow by more than ten percent, it is presumed that the withdrawal will cause unacceptable environmental impacts. The inverse presumption is not specifically set forth in a rule. If a proposed withdrawal, combined with other withdrawals, is projected to exceed the 10 percent threshold, the District staff recommends denial of a permit unless the applicant can demonstrate, to the satisfaction of the District, that the proposed diversion of the stream flow will not have an adverse impact. The ten percent flow reduction presumption in BOR Section 4.2.C.2 was adopted as part of the 1989 rule revisions and sought to provide a basis for cumulative analysis of withdrawals. Prior to October 1, 1989, the District's water use permitting rules used a five percent or less presumption for stream flows. Under this approach, each withdrawal was evaluated individually to determine if that withdrawal would reduce the stream flow by more than five percent. This approach proved to be inadequate, mainly because of the inability to consider the cumulative impact of multiple withdrawals. The District applies the stream flow presumption found in BOR Section 4.2.C.2 to all streams throughout the District regardless of type or location. Although the District contends the stream flow presumption can be rebutted by site specific information, neither the District nor any third party or applicant has ever successfully rebutted the presumption. Purpose of the Ten Percent Stream Flow Presumption The intent of the 10 percent stream flow presumption is to provide a mechanism to tie cumulative water use to the "natural" flow of a stream and to protect the "natural" variability of flows within the stream. According to the District, the presumption is intended to provide both a method for calculating withdrawals (a percentage of daily flow at the time of withdrawal) and a numerical value for withdrawals of a stream. District Environmental Scientist Sid Flannery provided the analysis for the 10 percent stream flow reduction presumption. His rationale is set forth in a 1989 memorandum he prepared for the Rules Revision Committee entitled: "Evaluation of Potential Impacts to Streams and Estuaries." That report recognized that: [R]ivers in the District differ tremendously in their water supply potential due to large differences in drainage basin sizes and base flow levels... Withdrawals should be in scale with the size and ecological sensitivity of the particular river-estuarine system and...that many systems are of limited yield for much of the year if ecological requirements are to be considered. There has not been a written update to Mr. Flannery's 1989 stream flow memorandum. From a biological perspective, it is important to maintain the natural variations in flow when withdrawing freshwater from streams. The inundation of the floodplain, the maintenance of the morphometry of the stream channel, the ability of fish to swim through the river and the maintenance of aquatic biota are all dependent upon the naturally occurring flow regime. Streams are highly variable and there are interactions of abiotic parameters which are effected by the flow regime. The best way to protect those interactions is to protect the flow regime. The evidence supports the District's view that tying withdrawals to a percent of flow can help ensure the natural cycles are maintained by automatically adjusting for wet and dry periods. This approach allows water use to increase as flow goes up and decrease when flow goes down. The stream flow presumption in BOR Section 4.2.C.2a. represents an effort to tie cumulative water use to stream flow. This concept of linking withdrawals to a percentage of stream flow at the time of withdrawal emanated during negotiations in 1988 between the District and Dr. Thomas Fraser in connection with the renewal of a water use permit for withdrawals from the Peace River by General Development Utilities ("GDU") to provide public drinking water to residents located within existing and proposed developments. GDU was concerned with possible water quality problems at flows below a certain level and the ability of the existing water treatment plant to adequately treat such water. Dr. Fraser, former director of the Environmental Quality Laboratory, recommended that the District employ a percent flow at the time of withdrawal approach to stream flow management. The District implemented this approach when the GDU permit came up for renewal in 1988. Data collected since 1988 in connection with that permit has confirmed the usefulness of the approach. Despite the desirability of tying stream withdrawals to a percentage of flow, problems arise in trying to develop and/or apply a single presumptive threshold for use with all streams in the District. Before discussing these problems, it is helpful to review the scientific analysis that the District relied upon in developing the 10 percent stream flow presumption. Development of the Ten Percent Flow Guideline After the adoption of the Florida Water Resources Act in 1972, the District began to examine the ecological requirements of natural systems, including rivers and estuaries. More particularly, the District has been accumulating information about estuaries since 1977, when the District contracted with the University of Miami to conduct a literature review of articles concerning the role of freshwater in estuaries. The District also sponsored a seminar in 1977 at which nationally recognized scientists presented papers regarding the management of freshwater flow into Florida's estuaries. In 1981, the District began studies on the estuaries within its jurisdiction, looking specifically at their freshwater flow requirements. The studies included evaluations of the hydrology and salinity relationships of estuaries. Similar studies have been undertaken by the USGS and other entities. These studies all confirm that freshwater flows from streams correspond to salinity values in estuaries and that the timing and volume of freshwater flows are two of the most important factors controlling the physical, chemical and biological characteristics of estuaries. In developing the presumption during the 1989 rule revisions process, the District reviewed the available data and conducted several studies from which it concluded that flow reductions on the order of ten percent corresponded to relatively small changes in the salinity structure of the tidal portion of an estuary. In some instances, the District says the impact of a ten percent reduction in streamflow upon the salinity structure was close to being undetectable. Some of the studies relied upon by the District included biological assessments of the region's estuaries. These studies confirmed that the natural processes occurring in the estuaries should be managed so as to maintain the natural pattern of freshwater flows. The studies mapped shoreline vegetation communities and, by calculating the salinity movement with the ten percent flow reduction, determined that anticipated movement would be very small compared to the transitional areas of vegetation. Based upon its review of the available data, the District concluded that, if withdrawals were limited to a maximum of ten percent of flow at all points in the drainage basin, the effects should be minimal in comparison with the natural variability within the rivers. The District says that studies it has conducted or reviewed subsequent to 1989, support the conclusions reached in the 1989 rule development process, i.e., that withdrawals would generally be within the safe range if limited to ten percent of flow while a withdrawal or diversion of 20 to 30 percent would likely cause observable ecological changes. Challenges to District's Scientific Analysis Various parties have challenged the District's scientific analysis in developing the streamflow presumption. The issues raised include the following: Use of Salinity Gradient As the prime scientific and technical basis for the 10 percent stream flow reduction presumption, the District focused upon the relationship between salinity distribution 105 (i.e., location and movement of isohalines) and freshwater flow. Movement of isohalines back and forth under natural cycles can greatly influence the distribution of biological organisms in an estuary. Thus, tracking the location and movement of horizontal salinity gradients, as reflected by isohalines, is an important parameter for analyzing the effects of withdrawals from streams that furnish freshwater inflow to estuaries. Most of the studies conducted and relied upon by the District to support its 10 percent presumption utilized specific conductance to measure salinity values at various locations in estuaries. Specific conductance measures the total electrical conductivity of the water and salinity is a major factor influencing conductivity. While conductivity is generally a useful method of tracking salinity levels, its value is limited at low salinities. Moreover, the salinity level by itself will not determine the impact upon flora and fauna. The ionic composition of low salinity waters can be significant in determining which species are living and moving throughout a tidal river.106 Several parties contend that the District's focus on salinity and the movement of isohalines does not provide adequate information regarding the environmental impacts resulting from changes in stream flow. Many species differ in the degree to which they can tolerate abiotic factors, such as salinity and temperature. Because of possible variations in other abiotic factors, automatic conclusions should not be drawn as to the effect upon biota solely from salinity changes. Nonetheless, the more persuasive evidence established that salinity is a dominant factor affecting the ecology and biology of estuarine resources. Accordingly, while the limitations of the studies must be kept in mind in the development of a regulatory strategy, it is reasonable and scientifically sound to use salinity gradients as a key measurement for studying the effects of freshwater withdrawals on an estuarine system. The evidence revealed that isohaline positions have been utilized as an indicator by which to manage estuarine resources by regulators in other areas. Charlotte claims that the studies relied upon by the District to support the 10 percent stream flow presumption utilized a variety of salinity levels to specify the distinction between fresh and saline waters. As a result, Charlotte argues ...lack of consistency among the studies produces no reliable result in determining the relationship between salinity distribution and freshwater flows. Moreover, in order to determine the environmental impact associated with the movement of isohalines, the delineation between brackish water and freshwater should be based upon the ionic composition of the water. Charlotte's proposed finding of fact No. 25, p. 20. The District's general goal in its studies has been to map the salinity distribution and measure the network and movement of various isohalines simultaneously in the river channels. In utilizing this approach, the District is not concerned with the exact location of a particular isohaline. Instead, the District uses the location of the different isohalines to track the movement of the salinity distribution. The movement of isohalines varies considerably from season to season. Since any particular location on a river may encounter different isohalines at different times of the year, choosing an isohaline that represents the precise transition to freshwater is irrelevant. Use of Regression Analysis Multiple linear regression analysis is an analytical technique utilized in many of the studies relied upon by the District to examine and predict the location of various salinity concentrations as a function of stream flow. This analysis studies the relationship of one key parameter with other specified variables. The District has applied regression equations to the flow records for numerous rivers in the District to predict the change in position of various isohalines following a ten percent reduction to stream flow. When the analysis was based upon the median flow or typical flow for the period of record calculated using daily flow records, relatively small movements of the isohalines were predicted. The analysis was also run on low flow conditions (i.e., flow rates that were exceeded 85 percent of the time). While there were some variations, the movement of the isohalines was generally not significantly different than at median flows. Charlotte claims it is not technically or scientifically sound to use a multiple linear regression analysis based upon stream flow and tidal information obtained from selected gauges in a stream to determine the impact of a variation in stream flow upon isohalines in the estuary. Charlotte correctly points out that a one-dimensional study does not address the horizontal and vertical variations of salinity in the estuary and that there are other factors which impact salinity distribution in an estuarine system including wind, temperature, precipitation, topography and size of the system as well as other hydrographic features. Nonetheless, the evidence establishes that, while utilizing only stream flow and tides to forecast movement of isohalines in an estuary will not give a completely accurate depiction of the distribution of salinity in an estuarine environment, it is a useful starting point. Charlotte argues that the only scientifically appropriate manner of evaluating the impact of a stream withdrawal, no matter what the magnitude of that withdrawal may be, is to utilize a modeling technique. Hydrodynamic models exist which can include the effects of other factors affecting movement of isohalines in addition to flow. However, such modeling is very expensive. For example, the USGS has done modeling work on Charlotte Harbor, which involved collecting data over a four-year period in order to calibrate a two-dimensional hydrodynamic model of the harbor to assess its characteristics and in-flow area. This modeling effort cost approximately $900,000. Similarly, the original budget to collect data and design and run a model for Sarasota Bay was $780,000. The immense complexity makes it difficult to develop a model that can reasonably represent the dynamics of a river/estuarine system. For example, the USGS has been unsuccessful in its attempts to model the mouth of the Peace River and match the model to the field results. Because of the cost and complexity of multiple variable modeling, the USGS, like the District, has found regression analysis to be a cost effective way to reasonably estimate isohaline movement in response to withdrawals. In sum, a large percent of the variation of salinity at a fixed station in an estuary can be explained by measuring flow without including other independent factors. Thus, the more persuasive evidence establishes that using regression analysis to locate the position of isohalines can be extremely useful in assessing potential impacts to Southwest Florida estuaries from stream withdrawals. However, an appropriate regulatory strategy should recognize that the impacts resulting from the withdrawal of water from a stream are not just a function of the percentage reduction in flow and/or movement of certain isohalines. Even if changes in the isohaline structure in an estuary as a result of a withdrawal are small, there is no scientific basis for conclusively determining that there will be no environmental impacts from a withdrawal in the estuary and/or the river. Each river has site-specific characteristics that determine which variables are of greatest importance to that particular riverine and estuarine system. Requirements of Up-River Freshwater Portions of a Stream A river typically includes more than one major ecological system. For example, a typical river could have an estuarine system, a main river channel system and a head water system. Each system plays a different role and has different needs. The variability of each should be considered in evaluating the health of the entire system. The challenged presumption makes no distinction between the various ecological systems. The District's research in support of the presumption emphasized the downstream reaches of the rivers through studies of the estuaries. The District has conducted or evaluated only limited studies of the uppermost, non-tidal portions of rivers, yet the 10 percent stream flow presumption rule applies "to any point in a drainage system" from the mouth of the river up to its headwaters. Most of the rivers in Southwest Florida are relatively short. Consequently, most water users and withdrawals tend to be in the downstream reaches. The District felt it could better evaluate the total basin yield by focusing on the downstream areas where most of the impacts are expected to occur. In this regard, the District notes the importance of estuaries from an ecological and economic perspective. Most of the species comprising the sport and commercial saltwater fisheries in southwest Florida rely upon survival. estuaries for 107 However, there are also valuable nursery areas for fish located upriver. The District has reviewed and considered certain studies which analyzed the variability of salinity at a given river. point upstream in a 108 These studies concluded that limiting withdrawals to no more than a ten percent reduction helped to ensure that natural variations remained the dominant factor in water level fluctuations in the river. The studies confirm the value of a regulatory scheme that focuses on preserving the natural flow regime. However, they do not establish that there is a specific numerical cutoff that is appropriate for all portions of every river and stream in the District. Because the upper reaches of a river are generally narrower, salinity gradients can move greater distances. In many instances, the upstream biota are subject to only minimal tidal fluctuations and may not be accustomed to frequent and significant changes in salinity gradients. There are different interactions upstream between chemical constituents, the temperature of the water may be different, there are different biota and habitat, and the geometry and gradients are usually quite different. A withdrawal of water at an upstream location may have an impact upon the river system which is not detectable in the estuary through a change in isohaline location. Freshwater tributaries can be particularly sensitive to stream flow reductions. Protection of the natural system is not automatically accomplished by application of the 10 percent presumption in these areas. The District emphasizes that its presumption protects the variability of the natural flow regime, which is a key factor in protecting freshwater stream ecology. However, there is no scientific basis for concluding that the 10 percent threshold is an appropriate indicator of the health of all components of a river system. Site-Specific Differences The dynamics of each river (i.e., the relationship between its volume and the velocity of flow) is unique and is dependent upon the gradient and peculiar configuration of each particular stream. The volume of water moving through a river system affects the habitat for fish, phytoplankton and vegetation on stream banks. The amount of energy moving down the river has erosional and depositional effects, thus impacting the water quality and ecological characteristics of the river. Vegetation is different in the various basins in the District because of climatological differences. Thus, each river has unique ecological concerns. In fact, various segments of the same river can have different concerns. Not only is there a wide range of variation in the volume of flows among the various rivers, there is a difference in volume of flows within the same river during different months of the year, and those variations are not constant among the various rivers. The consistency of flows within a particular river affects the temperature of the river, and the temperature of the river affects the growth of organisms. These site-specific factors are not addressed by applying a numerical percentage of withdrawal rate to all streams. A 10 percent reduction in stream flow during periods of low flow can have a very different impact than a 10 percent reduction during periods of high flow. During the dry season, low salinity isohalines in southwest Florida are not typically found in the open-water bay regions of estuaries. Instead, they are located within the channels of the tidal areas up river. During low flow times, relatively small changes in flow can lead to significant movement up-river of the isohalines. The location and management of these low salinity transition zones is important because many transitional species and important fishery production areas in the low salinity zone, can be impacted by even slight increases in salinity conditions. A numerical threshold, such as 10 percent, should not be utilized as an end-point to determining the environmental impacts of a withdrawal. There is some level of flow in every stream below which no withdrawals of water should occur. A numerical threshold could be very destructive to the natural system absent the establishment of some floor or cap on the flow of the river beyond which no further withdrawals should occur. The level of flow beyond which further withdrawals should not occur is different for every stream and is dependent upon the characteristics of that stream and its estuary. Permit conditions are sometimes used by the District to tie the 10 percent withdrawal rate to certain flow conditions and to prohibit any diversion from the stream or river when the flow rates are less than a specified amount at various times during the year. However, the rules do not delineate the factors that will be considered in determining when and how such conditions will be imposed. Since the factors that are considered in reaching such a determination are not addressed in the rules, the imposition of such a limitation is totally discretionary on the part of the District. In sum, determining the appropriate amount of water which can safely be withdrawn from a stream, necessarily requires site-specific information including the actual flows of the river (both historically and at the time of withdrawal), the location of the site of withdrawal, the distribution of salt tides over a wide range of 109 and flows, the geometry and morphology of the stream, the distribution and abundance of habitats, the vegetation and biotic communities in the area, the water quality and water chemistry of the stream, and how the particular stream is affected by groundwater and groundwater withdrawals. v. Conclusion On its face, the stream flow reduction presumption applies to all streams located within the sixteen- county jurisdictional area of the District. The actual impacts of the withdrawal of water from a stream will depend upon the physical, chemical and ecological characteristics of the particular stream, the amount of base flow of the particular stream and the water body which receives the flow. While the evidence in this case clearly demonstrates the importance of regulating stream withdrawals in a manner that minimizes the alterations of salinity distributions in the receiving water body, there is no scientific basis for a uniform diversion of flow percentage that can be tolerated by every river and stream in the District. There are no pristine rivers remaining in the District. The District rules currently provides no standards or basis for distinguishing between streams with different hydrologic and ecological conditions. The evidence established that a 10 percent stream flow presumption is probably not adequately protective for a number of sensitive rivers in the District including the Homosassa, Crystal, and Chassahowitzka. The District claims flexibility is built into the rules through BOR Sections 4.0 and 4.2 which provide for the use of site-specific information in conjunction with applying the 10 percent presumption to a stream withdrawal. Certainly, the unique circumstances of each case cannot be anticipated and written into the rules. Moreover, it is a practical impossibility to test in an experimentally controlled setting the effect of a ten percent reduction in daily flow on a river and/or estuary that has a high natural variability. However, the factors that will be considered in evaluating a permit application can and should be delineated. A guideline for managing withdrawals based on protecting the natural flow regime is desirable, but the limitations of such a guideline should be explicitly recognized and the manner in which it will be applied should be delineated as clearly as possible. The District's presumption as written is vague and grants unbridled discretion to the District in determining when it will be applied. The District's presumption does not simply provide that withdrawals above a certain level will be given greater scrutiny. Instead, the District presumes no "unacceptable environmental impact" if a stream flow is not reduced by more than 10 percent and inversely presumes there is an "unacceptable environmental impact" if the reduction is more than 10 percent. The simple knowledge that 10 percent of a stream flow is being reduced does not reveal whether water quality, vegetation or animal populations are going to be adversely impacted. The studies relied upon by the District do not establish a definitive cause and effect relationship between a change in flow and any specific effect upon the biota of an estuary or a river. The physical and ecological diversity of streams precludes the effective use of a single numerical threshold as a demarcation between acceptable or unacceptable environmental impacts for all stream withdrawals. The presumption as currently written can be used to impermissibly shift the burden of proof in a permitting proceeding. The District argues that, even if the ten percent guideline results in issuance of a permit because no site-specific information is available to indicate that the guideline should not be applied, the District can always require ecological monitoring or other specific permit conditions to ensure the integrity of the stream system. Such monitoring is certainly important and an appropriate permit condition in many cases. However, monitoring can not be a basis for shifting the burden of proof in a permit proceeding. Method of calculating the 10 percent Presumptive Threshold The manner in which the presumptive threshold of 10 percent is calculated is critical to its implementation, yet the rules provide little guidance or structure for making the calculation. Most problematic is the lack of any standards for determining the baseline from which the 10 percent is to be calculated. Generally, the District imposes a condition on a WUP that requires the permittee to measure or gauge whether the ten percent presumption is exceeded by comparing post-withdrawal flow measurements with measured pre-withdrawal flow as close to the time of withdrawal as possible. The cumulative impacts are measured by adding up all the withdrawals from a particular river to insure the combined withdrawals do not reduce the rate percent. of flow at any point in the river by more than 10 110 The 10 percent reduction in the rate of daily 111 flow is supposed to be measured "at the time of withdrawal." 823. This approach is qualified by the final sentence of the presumption which provides: "Estimated available yield will be determined based on historical flow records or best available data and existing permitted use." The role of permitted uses in conjunction with "historical flow records" for purposes of applying the 10 percent stream flow reduction presumption is vague and ambiguous. 824. In effect, there are no firm criteria for determining what the starting point is for measuring the 10 percent. It is not clear when or how historical flow records will be used, how the District will select the period of record to be analyzed or how previous physical alterations to a river will be considered. It also is not clear how the last sentence of the presumption can be reconciled with a calculation of 10 percent "at the time of withdrawal", which would seem to suggest that the District will measure the 10 percent reduction against a recent or simultaneously measured flow, not an historical 112 flow. The District has historic flow records for most major streams and rivers within its jurisdictional area. However, the quality and quantity of those records varies greatly and they do not always predate withdrawals or groundwater impacts. Some rivers have had long-standing withdrawals and/or have been altered by man-made changes including impoundments and development. Nonetheless, the 10 percent stream flow reduction presumption is applicable uniformly to rivers with data of varying quality and extent. There is no delineation of the factors that will be considered in determining how or even if the presumption would apply to rivers, such as the Anclote and Peace Rivers, which have been impacted by previous groundwater and/or surface water withdrawals. The District claims that the intent of the presumption is to tie cumulative water use to the "natural" flow of a stream so that the "natural" flow characteristics of the stream are preserved after the withdrawal. The presumption does not refer to "natural flow" let alone provide a definition of the term. The District has no consistent or reliable method of determining the "natural" conditions of a river. This determination will effectively determine how the presumption is applied, particularly when flow rates have been altered over time. The presumption provides that the rate of daily flow should not be reduced by more than 10 percent "at any point in the drainage system." What is included within a "drainage system" will affect how and where flow should be measured. The rules provide little guidance in this regard. A "drainage system" is not a term with a commonly accepted or understood meaning in the fields of aquatic or stream ecology and it is not defined by the District. Theoretically, it could include wetlands along the sides of the stream or at the headwaters and/or lakes within the drainage area. The concept of a "drainage system" could also include groundwater. It is not clear from the rules whether withdrawals from groundwater or lakes within the stream basin can and/or should be included in the analysis. Evaluating the impacts of groundwater withdrawals on a river or stream is extremely complex. For example, groundwater withdrawals near a river or stream can sometimes actually supplement the stream or river flow. For example, if the withdrawn water is used nearby for irrigation, the run-off can increase the stream flow. To date, the 10 percent stream presumption in BOR 4.2.C.2 has generally been applied only to a withdrawal or combination of withdrawals directly from a river or stream and application of the presumption has not included an evaluation of the effect of any groundwater withdrawals. The evidence indicates that groundwater withdrawals have reduced the rate of flow in some streams and rivers. The District claims any measurable effects of groundwater withdrawals on stream flow can be considered as site specific information. However, if the baseline for applying the presumption is at the time of withdrawal, it is not clear how historic reductions from groundwater withdrawals can be included. The current presumption does not provide any standards or principals for how long-standing uses should be considered and/or how to measure flow when multiple withdrawals exist on a stream. There were a number of stream or river withdrawals in existence before the District adopted the stream presumption in 1989, including municipal supply withdrawals from the Shell Creek, the Myakkahatchee Creek, the Hillsborough River, the Braden River, and the Little Manatee River. All of these withdrawals exceeded the ten percent presumption on at least some days. The District has allowed the renewal of a number of these existing surface water withdrawals without requiring compliance with the ten percent stream 113 presumption. The District has no written guidelines, standards or criteria as to when a long- standing existing withdrawal from a river has to comply with the ten percent stream presumption. It is not clear what factors will be considered in reaching this determination. At least one District witness testified that if alternate sources of water were available, the District would be more likely to strictly apply the ten percent presumption. However, this policy is not set forth in the rules and there are no standards or guidelines for determining the availability of other sources of water. 833. There are two other aspects of the stream flow presumption that merit comment. The evidence indicates that the 10 percent presumption may not be sufficient or appropriate for streams which contain impoundments or other structures. The second sentence of the stream flow presumption apparently tries to account for this limitation by providing that "the effects of water retention in instream impoundments will be included in the determination of flow reductions." It is not clear what this provision means or how this provision is applied. The rules provide no guidance as to how to calculate the "effects" of water retention in instream impoundments. The evidence also indicates that, in applying the stream presumption, the District considers the diversion capacity of a withdrawal facility even though this consideration is not clear from the face of the rules. Conclusion 834. Without question, the regulation of withdrawals from a stream involves many site-specific issues and the District's rules must be general enough to provide flexibility to address these matters. The District argues its staff should be allowed to exercise its discretion and judgment on a case-by-case basis with regard to the application of the presumption. However, there are no guidelines or criteria which guide staff as to when a withdrawal from a river must comply with the presumption or the inverse presumption. As currently written, the District's stream flow presumption is unacceptable. The ambiguity and vagueness of the terms "combined with other withdrawals," "rate of daily flow," "drainage system," and "at the time of withdrawal," coupled with the undefined measuring stick of "unacceptable environmental impact," render it virtually impossible to determine how the 10 percent figure is to be measured and provide no meaningful basis for the review of permitting decisions. 835. The District says it utilizes the 10 percent stream flow presumption simply as a means of facilitating the evaluation of permit applications and it is not used as a pass/fail cutoff. If site-specific information demonstrates that the 10 percent presumption is not appropriate, the District says such information will be used to evaluate compliance with the performance standards. The presumption shifts the burden of proof, which normally and properly rests with a permit applicant, to the District and/or a third-party challenger to produce evidence that the 10 percent threshold is not applicable if a withdrawal is under the threshold. 836. The desired goal of tying withdrawals to stream flow can be accomplished without the imposition of a uniform numerical value which purports to be determinative of the existence of unacceptable or acceptable environmental impacts upon all streams. By using the performance standards, the District can require an applicant's withdrawals, combined with other withdrawals, to mimic the natural flow of the river or stream from which the withdrawals are to be taken. Miscellaneous Provisions 1. Inducement of Pollution - Rule 40D- 2.301(1)(g) and BOR Section 4.6 837. Under Rule 40D-2.301(1)(g), F.A.C., an applicant must provide reasonable assurances that its proposed use of water, on an individual and cumulative basis, will not cause pollution of the aquifer. 838. BOR Section 4.6 corresponds to Rule 40D- 2.301(1)(g) and provides: A permit application shall be denied if a water withdrawal would significantly degrade the water quality of the aquifer by causing pollutants to spread. Generally, movement of a contamination plume is considered significant if the withdrawal would cause violations to groundwater quality standards in areas which previously would have been unaffected. In evaluating this criterion, the District will consider: whether the withdrawal would alter the rate or direction of movement of a plume (horizontally or vertically) that has been defined by the DER or the EPA; and whether the withdrawal would increase the potential for harm to the public health and safety. 839. These provisions are intended to help prevent a water withdrawal in the vicinity of a contaminant plume from spreading the contamination. Pinellas has alleged that BOR Section 4.6 arbitrarily and capriciously prohibits the beneficial use of an aquifer rather than punishing the upgradient polluter for contaminating the aquifer. This contention ignores the District's responsibility to protect the water resources. Irrespective of any remedies that could or should be sought against a polluter, there is a need to ensure that the issuance of a WUP in the area of contamination does not exacerbate the spreading of the contaminant plume through the aquifer. Contrary to Pinellas' contention, these provisions are a reasonable implementation of the three-prong test and there is adequate delineation of the factors the District will consider in applying the provisions 2. Catch-all Provisions - Rule 40D- 2.301(1)(n) and BOR Section 4.13 840. Under Rule 40D-2.301(1)(n), F.A.C., an applicant must provide reasonable assurances on an individual and cumulative basis that its proposed use of water "will not be otherwise harmful to the water resources within the District." 841. BOR Section 4.13 is the corresponding section to Rule 40D-2.301(1)(n) and provides as follows: OTHERWISE HARMFUL The issuance of a permit may be denied if the withdrawal or use of water would otherwise be harmful to the water resources. 842. These provisions are intended to provide the District with some flexibility to deal with unforeseen and/or new or changed conditions. Pinellas challenges these provisions because they do not include any standards for determining what constitutes a withdrawal which is otherwise harmful to the water resources. Pinellas claims the provisions are vague and vest the District with unbridled discretion. However, these provisions simply allow the District to exercise discretion to protect the water resources in circumstances that were not specifically contemplated or addressed in the rules. The District is not precluded from adopting such a catch-all provision that allows for the exercise of professional discretion. The District's exercise of this discretion would have to comport with the applicable statutory and case authorities on the development of incipient policy. 843. As noted by the District, under the rule ejusdem genres this type of a "catch-all provision is limited in scope to items of a like kind to those that were previously enumerated." See e.g., Mayo v. City of Sarasota, 503 So.2d 347, 348 (Fla. 2d DCA 1987). 3. Monitoring Requirements - BOR Section 5.0 844. Section 5.0 of the Basis of Review provides: Issuance of a Water Use Permit requires that (1) the withdrawals will not cause any unmitigated adverse impacts on the water resources and existing legal users, and (2) the use continues to be in the public interest. To ensure that these criteria continue to be met after a permit is issued, monitoring and reporting activities may be required as conditions of the permit. Where appropriate, the District's monitoring requirements may be satisfied using facilities required by other agencies. 845. Pinellas has challenged this provision alleging the District's rules do not contain any specific standards or criteria for determining what will or will not be considered to be "unmitigated adverse impacts on the water resources and existing legal users." Pinellas also complains that there is no specification as to when or what types of mitigation will be required. Finally, Pinellas objects because the District's rules do not specify how and/or which existing legal uses of water are protected. These claims are not persuasive. Section 373.219, F.S., provides that the District "may impose such reasonable conditions as are necessary to assume that such use is consistent with the overall objectives of the district. " 4. Environmental Monitoring Criteria - BOR Section 5.8 846. Section 5.8 of the BOR provides, in pertinent part, as follows: Environmental monitoring shall be required for permits with potential for significant adverse impacts to environmental features associated with the water resources of the District. Monitoring to document environmental impacts may consist of various types of data collection, including but not limited to, groundwater and surface levels, surface water quality, biological parameters, ground and aerial photography, and land cover assessments. 847. Pinellas argues that this provision should be invalidated because the District's rules do not include any standards for determining when "significant adverse impacts" occur. Pinellas contends that BOR Section 5.8 provides the District with unbridled discretion to determine what type(s) of environmental monitoring will be required without any specific standards or criteria. These contentions are not persuasive. See, Section 373.219, F.S. 5. MIA Saltwater Intrusion - Rule 40D- 2.301(1)(f) and BOR Section 4.5 848. Rule 40D-2.301(1)(f) provides that an applicant must provide reasonable assurances on an individual and cumulative basis that its proposed water use will not significantly induce saline water intrusion. 849. BOR Section 4.5 is the corresponding section of the Basis of Review and provides: Performance Standards A permit application shall be denied if the application requests withdrawals that would cause significant saline water intrusion. Significant saline water intrusion includes: Movement of a saline water interface to a greater distance inland or toward a potable withdrawal than has historically occurred as a consequence of seasonal fluctuations, or A sustained increase from background levels in solute concentrations. Permitted withdrawals of saline water for desalination may cause limited saline water intrusion, but not to the extent of adversely affecting other existing legal uses of water; the Applicant; or the public health, safety and general welfare. Presumption In addition to the significant saline water intrusion defined in the Performance Standards, above, the District presumes that proposed new quantities of ground water applied for after March 30, 1993, from confined aquifers from areas outside the Most Impacted Area (MIA) of the Eastern Tampa Bay Water Use Caution Area as identified in Figure 7.2-2 and as delineated in Section 7.2,8.F., that cause a potentiometric surface drawdown of 0.2 feet or greater within the MIA will significantly induce saline water intrusion. Applicants may demonstrate compliance with regard to the significant saline water intrusion standard by affirmatively showing that the potentiometric surface drawdown at the MIA boundary would be less than 0.2 feet, based on site-specific information, using scientifically acceptable flow modeling, or that significant saline water intrusion, as defined in the Performance Standards, Section 4.5, subsection 1, will not be caused within the MIA, using scientifically acceptable solute transport modeling. The drawdown impacts of successive withdrawal requests will be aggregated in applying this presumption to any permit issued pursuant to this rule. This presumption does not apply to surface water, surficial aquifer, and desalination sources. This presumption also does not apply to the renewal of previously permitted quantities. This provision will remain in effect for a period of two years from March 30, 1993, except that if a rule incorporating permanent standards for the Southern Groundwater Basin Water Use Caution Area is noticed for adoption during the two year period, this provision will remain in effect during the pendency of any Section 120.54(4), F.S., rule challenge and final disposition of the proposed rule by the Governing Board. Section 4.5.1 of the BOR sets forth performance standards relating to whether or not a proposed use of water will cause saline water intrusion. This provision generally describes the process for evaluating the impact of water withdrawals on salt water intrusion. It also establishes a performance standard prohibiting withdrawals which cause "significant salt water intrusion". Significant salt water intrusion is defined to include, any amount of movement of the saline water interface to a greater distance inland or toward a potable withdrawal than has historically occurred as a consequence of seasonal fluctuations. Section BOR 4.5.2 contains a presumption relating to the impact of proposed withdrawals of new quantities of water in the Most Impacted Area ("MIA") of the ETB WUCA. This provision establishes a presumption that withdrawals of new quantities of groundwater from confined aquifers outside the MIA of the ETB WUCA that cause a potentionmetric surface drawdown of 0.2 feet or greater within the MIA will significantly induce saline water intrusion. The MIA boundary encompasses the coastal area where the greatest drawdown in the potentiometric surface has been observed with a corresponding trend of increasingly deteriorating water quality. Furthermore, the MIA is projected to be the area of greatest potential for movement of the salt water interface. The issuance of new permits within the MIA has been limited since the ETB WUCA rules went into effect in 1989. The presumption in BOR Section 4.5.2 was added in 1993 to limit the impact of withdrawals outside the MIA from extending into the MIA. The District felt that such withdrawals might exacerbate the saltwater intrusion problems in this area. The District sought to provide some protection against further reductions in the potentiometric surface in this area while a regulatory scheme addressing cumulative impacts (the SWUCA Rules) was being developed. This presumption was viewed as an interim step until the long-term regulatory strategy was in place. The District wanted an impact threshold for the boundary of the MIA that could be applied through the use of a site-specific model. While the District did not specifically rely on the ETB WRAP in developing the 0.2 foot presumption in BOR Section 4.5.2, the District's on-going work confirmed its perceptions as to the nature and cause of the problems. The District says it did not have an appropriate modeling program to consider on a cumulative basis the effect of permitting applicants whose withdrawals individually were less than two tenths of a foot. The District's decision to utilize an interim regulatory strategy premised upon the use of modeled water table drawdowns for individual withdrawals was not unreasonable in view of the information available to the District regarding the nature and extent of the problems in the 114 MIA and the limits of the various modeling tools available at the time. As discussed in Section IV K, the SWUCA Rules would delete this presumption. Pinellas has challenged the presumption as part of its case against the existing rules. ECOSWF has challenged the SWUCA Rules proposed repeal of the presumption. By its own terms, the presumption remains in effect during the pendency of the challenges to the SWUCA Rules challenges and until "final disposition of the proposed rule by the Governing Board." Since it is unclear when final disposition will occur, the suggestion that the challenges to this provision are moot is rejected. The District applies the saline water intrusion presumption by modeling the potentiometric surface drawdown from the proposed withdrawal. If the modeling projects the drawdown to be less than two-tenths of one foot in the MIA, the presumption is deemed to be met. Unless an applicant meets the presumption, the District staff recommends denial of the WUP application. No applicant has ever successfully rebutted the presumption in BOR Section 4.5.2. If the District's modeling indicates the presumption will be exceeded, the District says an applicant could rebut the presumption by developing site- specific information for input into an acceptable model to show that the potentiometric surface would not be lowered by 0.2 feet at the MIA boundary or by use of a solute transport model to show that significant salt water intrusion will not occur. The presumption cannot be satisfied through monitoring or mitigation. Pinellas objects because the District does not have any guidelines, rules, or standards either in the Basis of Review or the Water Use Design Aids regarding the types of groundwater flow or solute transport modeling that would be appropriate to use in demonstrating compliance with the saline water intrusion presumption found in BOR Section 4.5.2. This objection is not well taken. The District deliberately did not specify how the modeling was to be done because it wanted some flexibility to accommodate and utilize rapidly changing technology. The District selected the 0.2 foot potentiometric surface drawdown threshold in BOR Section 4.5.2 in part because of its experience with modeling done in Wellfield connection with the Verna 115 permit proceeding. As part of the modeling work done in that case, the District determined that, due to the limitations of computer modeling, any smaller number would be unworkable. Pinellas claims that, because saltwater intrusion was not an issue in the Verna Wellfield proceeding, the District's reliance upon the modeling work in that case to develop a saltwater intrusion presumption for the MIA was inappropriate. Pinellas' contention that this presumption should be invalidated because it was developed from the work on the Verna Wellfield case misperceives how that work was used and is rejected. The results of the Verna Wellfield modeling were only utilized for the general concept of establishing a boundary around an area of regulatory concern and then applying a computer modeled drawdown criterion at the boundary. The 0.2 foot threshold was selected because of the limitations from a computer modeling standpoint. The District says that because its computer model is set up to produce output in one-tenth foot increments, the criterion was stated as 0.2 foot or greater rather than more than 0.1 foot. Anything below this level was considered to have insignificant impact. Pinellas suggested that the District's process for rounding off numbers to the nearest tenth was inconsistent with the MOD FLOW Code and/or was arbitrary. The greater weight of the evidence does not support this claim. BOR Section 4.5.2 does not include a cumulative analysis of a proposed withdrawal with other withdrawals in the area. An individual permittee's requests over time can be aggregated to determine whether that permittee's requested quantities have exceeded the threshold impact on the MIA, but there is no protection from a cumulative perspective that the District's Condition of Issuance regarding saltwater intrusion will be met. Even after the results of the ETB WRAP and Supplemental Investigations were available, the District continued to approve permit applications falling below the threshold of this presumption. Use of the Lowest Quality Water - Rule 40D-2.301(1)(e) and BOR Section 4.4 Rule 40D-2.301(1)(e) requires a permit applicant to provide reasonable assurances that its proposed water use "will utilize the lowest water quality the applicant has the ability to use." The 1989 Rules Revision Committee developed BOR Section 4.4 to correspond to Rule 40D-2.301(1)(e). Section 4.4 of the Basis of Review provides, in pertinent part: Consideration must be given to the lowest quality water available, which is acceptable for the proposed use. If a lower quality of water is available and is technically and economically feasible for all or a portion of an Applicant's use, this lower quality water must be used. These provisions address the quality of the raw water that is being pumped. The nature of the intended use of the water determines the need for treatment and the degree of treatment. Finished or treated water is regulated by DEP and under the purview of federal standards for water quality. Pinellas claims that these provisions exceed the District's grant of rulemaking authority by authorizing the District to dictate the source of water that a water use permit applicant must utilize. Pinellas also claims these provisions conflict with and contravene Section 403.851, F.S., by requiring public water suppliers to use the lowest quality of water they have the ability to treat instead of the highest quality of water available for potable supply. Whether a water user is using the lowest quality of water available is an appropriate consideration in applying the reasonable-beneficial use concept and/or determining the public interest, especially when water resources are limited. In determining the lowest quality water available, the District says, many site-specific considerations come into play, including the potential sources, the types of uses for the water, how the water could be treated, and the related economics. As a result, the District claims it would be unworkable to fashion a rule listing every possible circumstance in advance. According to the District these considerations are "dynamic and subject to change, such that rigid criteria would be unworkable and unrealistic from a regulatory permitting perspective." The District's rules do not contain any criteria or standards to use in determining whether lower quality of water is available. This term can and should be accorded its common meaning. BOR Section 4.4 provides that the District can consider the technical and economic feasibility for the applicant to use a lower water quality source. The testimony at the hearing indicated that the District views this provision as authority to decide which applicant has the ability to treat and use a lower quality of water than proposed. If applied in this manner, Rule 40D-2.301(1)(e) and BOR Section 4.4 could have the effect of reserving higher quality sources of water for those users with limited financial ability to treat lower quality sources. This interpretation is not clear from the face of the provision. As written, the rule and BOR Section 4.4 only apply to lower quality water sources that are available. The District has no written or unwritten rules, guidelines, or standards that establish the criteria the District would use to determine whether or not it is technically or financially feasible for an applicant to treat and use a lower quality of water. Problems arise if the provisions are applied so that the District unilaterally determines who must develop alternative sources. Whether an applicant has the financial or technical ability to utilize a lower quality source of water is potentially a matter of great controversy. For example, the Gulf of Mexico, which is not usable for potable water without construction of a extremely expensive desalination plant, could be considered within a utility applicant's ability to treat. While some large users such as public supply providers have more financial resources that could be tapped to treat water than most small users, Chapter 373 does not recognize this factor as important, much less conclusive, in allocating scarce freshwater supplies which are by law considered a public resource. Rule 40D-2.301(1)(e) and BOR Section 4.4 can and should be applied only to readily available sources of lower quality water. If the provisions are applied as suggested by some of the testimony, the District has unbridled discretion to determine whether an applicant has the ability to use a lower quality of water. The District could make its own assessment of an applicant's financial and technical capabilities, without any limitations on the factors that would be considered and without any standards or basis to review the District's decision. As discussed in the Conclusions of Law, Chapter 373 does not authorize the District to use the WUP process to shift the burden of developing alternative sources onto any particular class of water users. Even if it is assumed that the District can consider the financial and technical feasibility of developing alternative sources, the District must at least delineate the factors that would be considered and/or balanced in reaching its determination, or else the rules would be unacceptably vague. However, the existing provisions can be applied in a manner consistent with Chapter 373, thus, they need not be invalidated. Impacts to Off-site Land Uses Rule 40D-2.301(1)(h) and BOR Section 4.7 874. Rule 40D-2.301(1)(h) requires a permit applicant to provide reasonable assurances that the proposed water use "will not adversely impact offsite land uses existing at the time of the application." 875. The 1989 Rules Revision Committee developed BOR Section 4.7 to correspond to Rule 40D-2.301(1)(h). Section 4.7 of the Basis of Review provides: A permit application shall be denied if the withdrawal of water would cause an unmitigated adverse impact on an adjacent land use that existed at the time the initial permit was approved or that exists at the time a modification is requested. If the withdrawal locations remain the same but quantities are increased, only the increased amount would be considered in addressing impacts to existing legal off-site land uses. Adverse impacts on land uses include: Significant reduction in water levels in an adjacent surface water body, including impoundments, to the extent that utilization of the water body is impaired; Significant damage to crops or other types of vegetation. 876. Rule 40D-2.301(1)(h), and BOR Section 4.7 are intended to protect land uses that are not necessarily dependent upon the withdrawal of water, but might be adversely affected by excessive withdrawals from adjoining lands. Contrary to Pinellas' suggestion, these provisions were not intended to nor can they reasonably be interpreted to address adverse impacts upon adjoining land uses which are not causally related to the water withdrawal.116 877. Similarity, Pinellas' contention that these provisions impermissibly involve the District in land use decisions which may be totally unrelated to protection of the water resource is rejected. Contrary to Pinellas' contention, these provisions do not allow the District to regulate land 117 uses. 878. Pinellas complains because the District does not have any written definitions or standards in its rules or the BOR to define the terms "adverse impact" or "off-site land uses". The District interprets the term "off-site" to mean property that is not owned or controlled by the water use applicant and not included within the property subject to the permit. For example, this provision would be used to address a groundwater withdrawal that is expected to cause sinkholes capable of damaging a domestic residence located off-site of the groundwater withdrawal. This is a reasonable interpretation of a common term that is not unduly vague. BOR Section 4.7 does not attempt to identify all the types of land uses that might fall within its purview because there are too many possibilities and there will necessarily be site-specific considerations that must be taken into account. 879. There are some uncertainties and ambiguities in determining when a land use comes into existence for purposes of these provisions. Pinellas claims, for example, that it is not clear whether a land use will be protected under these provision if only permit or zoning approval has been obtained from a local government or whether actual activity on the land must have begun. This issue is unlikely to arise except in very limited and unique circumstances and is not, by itself, a basis for invalidating the provision. A rule of general applicability cannot be specific enough to address all such circumstances. Some issues can appropriately be addressed on a case-by-case basis. A more fundamental problem, however, is the lack of clarity as to how this rule is to be applied upon renewal of a permit. 880. Rule 40D-2.301(1)(h) states that the proposed use of water must not adversely impact offsite land uses "existing at the time of the application." Section 4.7 of the Basis of Review indicates that the proposed use of water must not adversely impact off-site land uses that were in existence at the time the initial WUP was approved or at the time of modification of a WUP. Thus, there is arguably an ambiguity between Rule 40D-2.301(1)(h) and Section 4.7 as to whether offsite land uses are protected from the time of the pending application or from the time of the initial issuance of a WUP to permittee (or modification of that permit). 881. At the hearing and in its posthearing submittals, the District took the position that an offsite land use must come into existence prior to the approval of the "initial application" in order to be protected under these provisions. The District says impacts that surface after permit issuance would be addressed through Standard Permit Condition No. 13 in BOR Section 6.1, which could be used to require mitigation, minimization, or avoidance. In other words, a land use that comes into existence subsequent to the initial water withdrawal may be protected during the course of a permit under the mitigation rules, but would not be protected when a use is renewed. This rather confusing scenario highlights some of the ambiguities and confusion surrounding these provisions. 2. Rule 40D-2.381(3)(m) (mitigate environmental impacts and off-site land uses) 882. Rule 40D-2.381, F.A.C., lists the District's standard permit conditions. Rule 40D-2.381(3)(m) provides: The Permittee shall mitigate to the satisfaction of the District any adverse impact to environmental features or offsite land uses as a result of withdrawals. When adverse impacts occur or are imminent, the District shall require the Permittee to mitigate the impacts. Adverse impacts include the following: Significant reduction in levels or flows in water bodies such as lakes, impoundments, wetlands, springs, streams, or other watercourses; Sinkholes or subsidence caused by reduction in water levels; Damage to crops and other vegetation causing financial harm to the owner; and Damage to the habitat of endangered or threatened species. 883. Pursuant to Rule 40D-2.381(3)(m) and BOR Section 6.1(13), the District places a standard condition on all WUPs requiring that the permittee mitigate "to the satisfaction of the District" any adverse impact to environmental features or offsite land uses as a result of the withdrawals. This is an unacceptably vague standard for determining what impacts must be mitigated and/or for determining what mitigation is satisfactory. Under Rule 40D-2.381(3)(m) as currently written the District has unbridled discretion without any meaningful basis for review. 884. The District's conditions for issuance of a WUP set forth in Rule 40D-2.301 do not specifically provide that an applicant can obtain a WUP by mitigating the adverse impacts resulting from the withdrawal. Only by reading Rule 40D-2.301 in conjunction with Rule 40D-2.381 and certain portions of the BOR including the introductory language of Section 4.0 and the language of the presumptions for Section 4.8 is this possibility revealed. While this somewhat cumbersome approach might be acceptable if the rules provided an applicant with reasonable notice of the standards or criteria that would be used in assessing a mitigation scheme, the existing rules do not. 885. Pinellas claims that Rule 40D-2.381(3)(m) improperly allows the District to require mitigation during the term of a WUP without regard to when the land use came into existence in contravention of Rule 40D-2.301(1)(h), which requires avoidance of impacts only to offsite land uses existing at the time of the WUP application. These provisions are somewhat confusing, and potentially inconsistent. If the District intends to protect all offsite land uses during the term of a permit, it is not clear why such impacts are not considered before a permit is issued and/or upon renewal. 886. Chapter 373 does not prohibit the District from imposing reasonable conditions upon issuance of a permit and/or requiring mitigation during the course of a permit. See, Section VIII A below regarding modification of a permit. While flexibility is necessary to deal with site-specific considerations, the District must provide reasonable notice as to the factors that will be considered in determining the need for and sufficiency of mitigation. These legal issues are discussed in more detail in the Conclusions of Law. Interference With Existing Legal Withdrawals - Rule 40D-2.301(1)(i) and BOR Section 4.8 1. Generally 887. Rule 40D-2.301(1)(i) requires permit applicants to provide reasonable assurances that the proposed water use "will not adversely impact an existing legal withdrawal." This rule reiterates the "no interference" standard set forth in the statute. Specifically, Section 373.223(1)(b) of the three-prong test requires that an applicant demonstrate that its proposed water use "will not interfere with any presently existing legal use of water." While there are some minor wording differences between the Rule and the statute -- e.g., Rule 40D-2.301(1)(i) omits the word "presently" which appears in the statute -- no persuasive evidence or argument was presented that these variations have any significance. The District interprets and applies the rule and the statute the same way. 888. The rule was adopted as part of the 1989 Rule Revisions which included corresponding Section 4.8 of the Basis of Review. 889. Section 4.8 of the Basis of Review describes the process for evaluating the impact of water withdrawals on existing legal withdrawals of water. This provision includes a performance standard prohibiting withdrawals that, "together with other withdrawals would cause an unmitigated adverse impact to a legal water withdrawal existing at the time of the permit application." This section also includes the following presumptions: The District presumes that an adverse impact does not occur if: The Applicant's withdrawals do not lower the potentiometric surface more than 5 feet at an affected well, or The Applicant's withdrawal does not lower the water table more than 2 feet at an affected well. An "affected well" in the first presumption is a well completed into the Floridan Aquifer or some other confined aquifer. An "affected well" in the second presumption is a well completed into the water table. In both instances, the District presumes that an adverse impact will not occur if the proposed water withdrawal does not lower the relevant surface by more than the presumptive threshold at an affected well. The District applies the "affected well" presumptions found in BOR 4.8 to all production wells completed into the confined aquifer and the surficial aquifer regardless of type, construction, or location of the well. An "affected well" for purposes of BOR Section 4.8 includes both permitted wells under the District's water use permitting rules and domestic wells which are exempt from the District's water use permitting rules. The District says the BOR Section 4.8 presumptions are intended to protect the ability of existing legal users to continue to withdraw groundwater in the presence of a new or modified water withdrawal. The goal of the presumptions was to provide some guideline measure of the water level that must be maintained in the affected well so that it can operate efficiently. Although it is not specifically stated in the rules or the BOR, the District applies the BOR Section presumptions only on an individual basis, not a cumulative basis. The actual impact to an existing legal use of water will be a function of the cumulative effects of groundwater withdrawals. As discussed below, the presumptions in BOR Section 4.8 attempt to indirectly address cumulative impact. ECOSWF complains that the rules do not recognize interference when an existing legal user's pump will not work properly because of water quality degradation. The District admits that the challenged provisions were not intended and have not been applied to address adverse water quality impacts. Water quality degradation can cause interference with an existing legal use. As written, the District's presumptions could lead to a conclusion that there is no interference even when there is water quality degradation. uses. There is no standard approach for measuring the impact that a proposed use has on existing legal 118 It is not clear from the language of the rule whether, upon renewal of a permit, a permittee has to satisfy the BOR Section 4.8 presumptions with respect to wells that came into existence subsequent to the initial WUP. In practice, the District does not apply the rule and/or provisions to protect any uses that began subsequent to the date the initial permit was issued to an applicant. Thus, for permit renewals, the date of the original permit is utilized in applying the non- interference prong of the three-prong test and the presumptions 119 in BOR Section 4.8. If renewal was not requested before the expiration date of the permit, the original permit lapses for all purposes. If the quantity has increased or the location of withdrawal has been modified, those changes are evaluated with respect to interference with legal uses that came into existence before the changes. 895. Under the District's interpretation, the original permitted quantity for uses that pre-dated the permitting program are considered existing legal uses with permits. respect to all subsequently issued 120 In other words, because converted common law uses pre-date uses that were subsequently permitted, the District does not believe it is necessary to evaluate the impact of the converted common-law uses on subsequent permittees with respect to the original permitted quantity. Because the rules do not clearly delineate or explain these applications, they are confusing, ambiguous and unacceptably vague. The legal issues related to the District's interpretation and application of these provisions are addressed in the Conclusions of Law. 2. Development of the Presumptions The 1989 Rules Revision Committee created the performance standards and the presumptions found in BOR Section 4.8. The technical basis for the presumptions is set forth in a March 7, 1989, memorandum by Mr. Andy Smith. His analysis focused on the level of drawdowns that would impact the functioning of a well. The guidelines were designed with the goal of keeping the water level in the well at a sufficient distance above the pump so that it could operate efficiently. The five-foot presumption applies to wells that withdraw from a confined aquifer which require a submersible pump. The two-foot drawdown presumption is applied to wells that withdraw from the water table aquifer where centrifugal pumps are typically used. Submersible pumps push the water up and are more efficient than centrifugal pumps, which pull the water up and are limited to a maximum depth of from 20 to 25 feet. Submersible pumps can operate until the water level drops to the level of the pump, but the efficiency decreases as the head over the pump decreases. Manufacturers generally recommended 20 feet of head above a submersible pump in order for it to operate at maximum efficiency. Centrifugal pump manufacturers generally recommend a minimum of five feet of submergence below the pumping level. In developing the presumptions, Mr. Smith recognized that a pump in the Floridan Aquifer should be set at a depth that takes into account the historic seasonal fluctuation of the potentiometric surface, the drawdown that will be caused by the well withdrawals itself, the necessary submergence of the pump to properly operate within the well, and an appropriate reserve to account for unexpected fluctuations or the drawdown caused by other users in the well's surrounding area. A properly installed well accounts for these factors by allowing for twenty feet of head above the well. Similarly, Mr. Smith assumed that water table or surficial aquifer wells typically have eight feet of allowable drawdown. In his analysis, Mr. Smith assumed as a worst case scenario four (4) permits surrounding the affected well. So long as the permits were roughly equidistant from each other and from the affected well and none of the four permits had more than five feet of drawdown impact on a well in the confined aquifers or two feet of drawdown impact on a well in the surficial aquifer, Mr. Smith concluded that the wells would not be adversely impacted. This conclusion does not take into account regional cumulative impacts. Moreover, in the real world it is unlikely that surrounding wells would actually be configured as precisely as assumed by Mr. Smith. The actual drawdown impact to an affected well is a function of the sum of all the drawdowns from surrounding wells, as well as the affected well's drawdown. The inherent variability of pumpage distributions, hydrology, and hydrogeology within the District makes the selection of a single conclusive threshold for interference with or adverse impact to an affected well impossible. Generally, only a very large withdrawal would have more than five feet of potentiometric surface drawdown outside the property boundary. A five foot potentiometric surface drawdown without any other influences would not be expected to cause damage to a properly constructed well necessitating modification or remedial work. However, there is no hydrological or scientific basis for concluding that less than a 5 foot potentiometric surface drawdown from a withdrawal will never adversely impact a neighboring well especially in an area where there are many demands on the resource. Similarly, a two foot water table drawdown at an affected well without any other influence would not be expected to adversely impact a well, especially if it is properly designed and constructed. However, there is no scientific or hydrologic basis for concluding that such a drawdown will never affect a nearby well. The District's contention that the presumptions are used only as screening mechanisms is not consistent with the language of the presumptions. As written, the presumptions conclude that there is no impact if the modeled drawdowns do not exceed the thresholds. While the District says the presumptions can be overcome by site-specific information, they effectively shift the burden of proof from the applicant. When an applicant is unable to demonstrate that its proposed withdrawal will not lower the potentiometric surface at an affected well by more than five feet and/or will not lower the water table at an affected well by more than two feet, the District will still approve a WUP if the applicant can obtain approval from the owner of the "affected well." In other words, if the owner of an "affected well" agrees in writing to the applicant's withdrawal, the District will not apply the Section 4.8 presumptions to protect the owner's affected well. Essentially, the District considers the adverse impact in such a case to have been mitigated. This policy is not specifically set forth in the District's rules. It is not clear what happens if the current owner sells his property since there is no requirement for a covenant that runs with the land. It is also not clear how this policy will be applied upon renewal. For example, if an applicant gets approval from the affected well owner and obtains a WUP, it is not clear whether or not the applicant would have to again satisfy the BOR Section 4.8 presumptions with respect to the affected well on renewal. 3. Mitigation of Impacts to Existing Legal Uses - Rule 40D-2.381(3)(I) 904. The District has adopted provisions in Rule 40D- 2.381, F.A.C., regarding the mitigation of impacts to existing users. 905. Subsection (1) of Rule 40D-2.381(3) provides: The Permittee shall mitigate, to the satisfaction of the District, any adverse impact to existing legal uses caused by withdrawals. When adverse impacts occur or are imminent, the District may require the Permittee to mitigate the impacts. Adverse impacts include: A reduction in water levels which impairs the ability of a well to produce water; Significant reduction in levels or flows in water bodies such as lakes, impoundments, wetlands, springs, streams, or other watercourses; or Significant inducement of natural or manmade contaminants into a water supply or into a usable portion of an aquifer or water body. 906. Rule 40D-2.381(3)(l) sets forth a standard permit condition requiring a permittee to mitigate to the "satisfaction of the District" any adverse impacts to existing legal users caused by water withdrawals. This is an unacceptably vague standard for assessing mitigation because it grants the District unbridled discretion without any meaningful basis of review. 907. This standard permit condition is placed in every WUP without any clarification as to how the District will determine when a legal use is protected or how this provision will be applied upon the renewal of existing uses. As noted above, the District interprets Rule 40D-2.301(l)(i) so that existing uses that predate the advent of water use permitting do not have to demonstrate upon renewal of their WUP that the use will not interfere with other existing uses. Nonetheless, the District places the standard permit condition in Rule 40D- 2.381(3)(1) on the WUP issued to those existing users which ostensibly would require them to mitigate adverse impacts to other existing users. Even if it is assumed that the District's interpretation of how this requirement should be applied upon renewal is legally sound, the rules do not adequately describe this application. Thus, the standard permit condition is potentially very confusing. Utilization of Local Resources - Rule 40D-2.301(1)(j), F.A.C. 908. Rule 40D-2.301(l)(j) requires permit applicants to provide reasonable assurances that the proposed water use "will utilize local water resources to the greatest extent practicable." 909. The 1989 Rules Revision Committee developed this provision and the corresponding provision of the Basis of Review, Section 4.9, which provides, in pertinent part, as follows: Development of the Local Resource The local water resource shall be utilized to the maximum extent possible prior to the consideration of remote alternate sources. Applicants for water sources remote from the local area of use shall demonstrate that water sources near the demand source are not feasible. Items to be addressed in assessing this feasibility include but are not limited to: Impacts to the water resources and associated environmental resources of the local versus remote area of withdrawal; Economic factors, such as distribution and maintenance costs, land purchasing, condemnation, and development costs, and other costs; and Use of the lowest quality of water available to fulfill all or a portion of the demand. Essentially, these provisions authorize the District to deny a WUP application from a "non-local source" unless the applicant demonstrates that development of local water resources is not feasible. The rules do not contain a definition of what constitutes a "local water resource." There is no commonly accepted definition or set of standards for judging or determining what constitutes a local as opposed to a non-local water resource. Under these provisions, the District makes the final determination of what constitutes a local water source and whether an applicant has the technical and financial ability to develop a more local source and/or to transport water for the intended use. The District interprets the term "local water resource" for individual or non-utility applicants to mean the water resources overlying or underlying the applicant's property. For a utility or public supply applicant, the District considers a "local water resource" to include those sources of water located within the entity's service area or political boundary, whichever is greater. For a regional water supply authority, it would include the combined geographic or jurisdictional boundaries of the members. Property that is owned by a governmental entity or authority outside those boundaries would not be included. The District also contemplates that agricultural uses could form cooperatives and be treated similarly to water supply authorities and public supply utilities. A critical issue in applying these provisions is determining when a local water resource has been utilized "to the greatest extent practicable." According to the District, "to the greatest extent practicable" within Rule 40D- 2.301(1)(j), F.A.C., is explicated by BOR Section 4.9, which sets forth some considerations of "feasibility." The District says that in this context "feasible" and "practicable" should be viewed as synonymous terms. The District argues that the "local resources" provision of Rule 40D-2.301(1)(j), F.A.C., does not prohibit the utilization of a public supply source that is outside the service area or political boundary of a public supply authority, provided all resources between the point of supply and the point of demand have been utilized. The District says it will consider and evaluate the cost and environmental impacts associated with the development of a proposed remote water use. The District claims that these and similar factors can be determined only on a site-specific basis and, consequently, cannot be spelled out in a rule. Pinellas claims that these provisions improperly elevate the use of local resources over the use of regional resources. Pinellas also contends that they deny public water supply users access to the highest quality water available in contravention of Section 403.851, F.S., and improperly allow the District to dictate the sources of water that an applicant must utilize. These issues are discussed in the Conclusions of Law. The District claims its criteria are consistent with the State Water Policy and argues that the reference to the use of "local and regional surface and groundwater supplies" in Rule 62-40.301(1)(f), F.A.C., indicates that the District should look at different scales of proximity within the District before going outside the District. These local source provisions are intended to help prevent one political entity from usurping or depleting the water resources located in another political entity's boundaries which might be needed for future growth. The District says the goal is not just to protect the growth potential of more distant counties, but also to have the local source developed by the local users. The District asserts that "demand management is facilitated by requiring that local resources be fully utilized and itemized before resources that are at a greater distance can be utilized. It is necessary to consider the sources that are available to the applicant in determining whether a proposed use is reasonable and beneficial...One of the purposes of this provision is to avoid a situation where public utilities were going long distances for water in a haphazard fashion when closer supplies are available." District's Proposed Findings of Fact No. 647, pp. 244-245. As discussed in the Conclusions of Law, Chapter 373 provides for consideration of local concerns in water supply determinations; however, the statute does not make local concerns an overriding factor. While local availability may be a consideration for issuing a WUP under Chapter 373, and the District can appropriately request reasonable information from an applicant in this regard, this statute recognizes that the public interest may transcend local concerns. The District's rules impermissibly raise local concerns to a determinative factor in the WUP process. Moreover, the rules as written vest the District with unbridled discretion to make a final determination of whether water exists or can be developed at the local level without any meaningful standards to review that determination. Pinellas has also alleged that these provisions could be applied so as to require more concentrated development in certain areas and cause degradation of a resource. In view of the conclusions reached herein, that issue is moot. It is noted, however, that Subsection 1 of BOR Section 4.9 provides that in determining the feasibility of using local resources "impacts to the water resources and associated environmental resources of the local versus remote area of withdrawal" should be considered. The District says this provision obviates Pinellas' concern that the local resources criterion would be applied so as to require more concentrated development in certain areas and cause degradation of a water resource. In the event that unanticipated adverse impacts were to occur, the District says it would rely upon the standard permit conditions which authorize mitigation, modification or revocation of the permit. Augmentation - BOR Section 4.12.2 and BOR Section 7.3.4 Augmentation is the use of one source of water to supplement another source. Pinellas has challenged certain portions of the Basis of Review that apply to augmentation, including BOR Section 4.12.2 which provides, in pertinent part: Augmentation - Augmentation for aesthetic purposes is a non-essential use and has a lower value compared to other reasonable/beneficial uses. The following criteria apply to augmentation applications: Augmentation for aesthetic purposes is limited to less than 100,000 GPD... f. Allowing water withdrawn from an aquifer to routinely exit the augmented impoundment as discharge is prohibited... 922. Pinellas has also challenged existing Section 7.3.4 of the Basis of Review, which is applicable in the NTB WUCA. Section 7.3.4 of the Basis of Review generally describes the process for evaluating a consumptive use of water that augments one source of water with another source within the NTB WUCA, (e.g., using groundwater to supplement surface water levels of lakes, ponds and wetlands). This rule sets forth criteria for permitting augmentation uses and establishes a category of unpermittable augmentation uses. 923. BOR 7.3.4 provides in pertinent part: ...Augmentation for maintenance of lake and wetland natural habitat can be permitted as long as no significant adverse impacts result from the withdrawal. Augmentation may be allowed provided that (1) alternative solutions have been addressed, (2) the need for such augmentation has been established, (3) withdrawals for augmentation do not cause significant adverse impacts, and (4) measures are taken to allow the surface water level to fluctuate seasonally as described in Section 4.12.2.d. of the Basis of Review. Augmentation above District-established applicable minimum water levels is prohibited. Maximum ground-water augmentation levels for lakes currently below established minimum water levels will be based on recent historical levels. 924. No persuasive evidence or arguments were presented to establish that BOR Section 4.12.2 and/or the NTB WUCA provision BOR Section 7.3.4 are an invalid exercise of delegated authority. To the contrary, they are reasonable interpretations of the reasonable-beneficial use and/or public interest prongs of the statutory three prong test. 925. Pinellas' contention that these provisions improperly modify existing uses in contravention of Section 373.239, F.S., is addressed in Section VIII A and the Conclusions of Law below. Miscellaneous Provisions BOR Section 1.6 - Application Review Process 926. Under BOR Section 1.6, once a WUP application is deemed complete by the District, the District must issue or deny the permit within 90 days. This provision provides that "[t]ypically, permits authorizing withdrawals [of less than] 500,000 GPD will be issued or denied within 60 days." 927. Pinellas' contention that this provision is invalid because the rules do not include any standards for determining what constitutes an "atypical" situation is rejected. 2. BOR Section 6.2 Special Permit Conditions In BOR Section 6.2, the District sets forth special permit conditions that may be added to the standard permit conditions imposed on WUPs if the District deems them necessary. Pinellas has objected to Special Condition No. 9 in BOR Section 6.2 which provides: Total withdrawal from each monitored source shall be recorded on a (period) basis and reported to the District (using District forms) on or before the tenth day of the following month. provides: The discussion of this condition in Section 6.2 Total monthly withdrawal from each withdrawal point is generally required unless greater frequency is needed. For augmentation use, weekly records are needed to ensure that the augmentation schedule is being implemented. For withdrawals from streams, daily measurements will generally be required. A 12-month running average will be used to determine compliance with permitted average annual quantities. Pinellas has objected to the use of a twelve month running average for reporting purposes. No persuasive evidence or arguments were presented to establish that this provision is an invalid exercise of delegated authority. The use of a twelve month running average for monitoring compliance with annual average quantities can provide an early warning that permitted quantities are being exceeded rather than having to wait until completion of an annual reporting period in order to make this determination. Use of a running average takes into account the transient nature of the water resource and fluctuations in both hydrologic systems and withdrawals over time. VII. Challenges to Existing Rules, Proposed Rules, and Agency Statements Which Uniquely Affect Public Water Supply Providers Introduction and Background According to the District's 1992 Needs and Sources Study, more than 90 percent of the water used within the District is currently supplied from groundwater. Total average daily water demand for water for all uses is expected to increase District-wide from 1625.5 MGD in 1990 to 2369.5 MGD by 2020. Total average daily water demand in excess of current available sources for all users within the District is projected to be 625.4 MGD by 2020. The largest increase in demand is projected to occur in counties located in the southern portion of the District. During the last two decades, public supply has been the fastest growing water use category within the District, increasing from about 15 percent of total withdrawals in the early 1970s to more than 30 percent in the 1980s. This trend is expected to continue as west-central Florida becomes more populated. Agricultural water needs are also projected to increase. Based on current efficiency standards, average daily agriculture water use is expected to increase from 759.3 MGD in 1990 to 1049.4 MGD in 2020. Faced with these prospects, the District has recognized the need to encourage conservation and develop alternate sources of water. 936. Sections 373.016, 403.021 and 187.201, F.S., provide general statutory guidance and authority to the District with regard to implementing and enforcing water conservation. In Sections 373.016(2)(b)and (3) and 403.021 [referenced in 373.016(2)(g)], the legislature has expressly recognized the need for water conservation. In addition, the definition of reasonable-beneficial use contained in Section 373.019(4) implicitly incorporates water conservation by providing that such use should be in a quantity that is "necessary for economic and efficient utilization." 937. With regard to alternate sources, Section 373.250, F.S. (1994 Supp.) directs the District to adopt rules to implement, encourage and promote reuse of reclaimed water, and details when reclaimed water is presumed to be available to WUP applicants. This statutory section also requires the District to prepare an annual report for the Legislature regarding the reuse program. 938. The State Water Policy, including Rules 62- 40.110, 62-40.310(3) and (8), and 62-40.401(4) and (5), F.A.C., advocates and encourages the use of reclaimed water and conservation as part of the permitting process. Rule 62- 40.401(4) provides that: "Conservation of water shall be required unless not economically or environmentally feasible." Rules 62-40.401(i) and (j) provide that water conservation measures and the availability and practicability of reclaimed water should be considered as part of the "reasonable-beneficial 121 use" test. 939. Conservation programs can be an effective tool to reduce water use. The District relies on a number of non- regulatory and regulatory programs to encourage water conservation including an extensive cooperative funding program and various other programs such as reuse projects, plumbing retrofits, public information, and education. Since 1990, the District Governing Board and Basin Boards have allocated about $38,000,000 for such conservation projects. 940. The SWUCA Rules include proposed subsections to be added to Sections 3.1 and 3.6 of the Basis of Review. These new subsections include a number of provisions regarding public supply utilities in the SWUCA. Many of these provisions seek to require or encourage water conservation and/or the development of alternative supplies. In the current Basis of Review, the District has already implemented some of the same or similar policies regarding conservation and alternative sources for the NTB WUCA. See e.g., BOR Sections 7.3.1.1, 7.3.1.2 and 7.3.1.3. 941. Pinellas has challenged several of the proposed additions to BOR Sections 3.1 and 3.6 and has also challenged corresponding provisions applicable to the NTB in the existing Basis of Review. The specific challenged provisions are discussed in the subsections below; however, there are some common contentions or arguments that have been raised with respect to several of the provisions. Those general themes are discussed in this section. 1. Standing 942. The District has objected to Pinellas' standing to challenge any of the SWUCA Rules. At the hearing and in its proposed final order, the District also suggested that Pinellas' challenge to several of the NTB rules should be denied because Pinellas had already met or exceeded many of the challenged conservation provisions. The legal issues related to this argument are discussed in the Conclusions of Law. The following pertinent Findings of Fact are made. 943. Pinellas is a permittee for certain wellfields in NTB and has been subject to the conservation and alternative source provisions in the NTB WUCA Rules. 944. The District claims that Pinellas has no standing to challenge the SWUCA provisions because it is not a permittee in the area; however, Pinellas is a member of West Coast, which is a permittee in the SWUCA. Moreover, many of the NTB and SWUCA provisions are the same or similar, so the analysis as to their validity is often essentially the same. Through conservation and other measures, Pinellas has been able to reduce its per-capita use from 156 GPD in 1989 to 109 GPD in 122 1994. St. Petersburg, which has a well-developed reuse system that has helped reduce water use, has a per-capita use of GPD. 102 123 These reductions have contributed to a decline in Pinellas' total water use from 76 MGD in 1989 to 69 MGD in 1994 even though there has been a drought and an approximate 6 percent population growth rate. 2. Additional Conditions and/or Modification of Permits 945. Pinellas argues that many of the existing and proposed provisions contravene Section 373.171, F.S., by purporting to authorize the District to dictate the source of water that a water use permit applicant must utilize. In particular, Pinellas claims that several of the provisions contravene Section 373.171(3), F.S., because they authorize the District to dictate that a water use permit applicant must replace an existing water use with another source, such as reclaimed water, without demonstrating that the use or disposition is detrimental to other users or to the water resources of the state. As discussed in Section VIII A and the Conclusions of Law, Section 373.171(3) only limits modifications during the term of a permit. Contrary to Pinellas' contention, these provisions can properly be applied to renewal applications without contravening Section 373.171(3). See e.g., Section 373.250(4), F.S. 946. Similarly, Pinellas contends that several of the provisions contravene Sections 373.171(2) and 373.239, F.S. As set forth in the Conclusions of Law, Pinellas' interpretation of these statutes is overly restrictive. See also, Sections VII G above and VIII A below. Per Capita Use Restrictions Background A per capita use rate is a calculated value of the amount of water that an individual uses based generally upon the total amount of water that a system or permittee produces divided by the number of people who are served within that system. There are no generally accepted standards or guidelines within the water industry for establishing a particular per capita water use limit in a given region. Pinellas has challenged the per capita use restrictions for public supply utilities in the NTB which are set forth in BOR Section 7.3.1.1. In addition, Pinellas has challenged the proposed per capita use restrictions for the SWUCA which are set forth in a proposed subsection to BOR Section 3.6 (PERMIT QUANTITIES AND COMPLIANCE WITHIN [sic] PER CAPITA DAILY WATER USE WITHIN THE SWUCA, Permitted Quantities Within the SWUCA - Existing Permits) Gross per-capita involves dividing the total quantity of water used by the population served. Adjusted gross per-capita involves the same calculation but, because large and/or speciality users can skew the PCURs, adjustments are allowed for certain uses which are subtracted from the total amount used. The per capita use restrictions ("PCUR") in the SWUCA Rules and in the NTB Rules are based upon "adjusted gross per capita" amounts. The SWUCA Rules and the NTB Rules vary somewhat as to how and what adjustments can be made. Compliance with PCURs is determined based upon the population served by the facility receiving the WUP. Pinellas complains that the District's existing and proposed per capita water use rules apply to both private and public utilities, but do not apply to other categories of users such as agricultural, commercial, or industrial water uses. The evidence established that per capita requirements are not an appropriate way to regulate these other uses. The District seeks to enforce conservation on these other large users through specific permitting measures and methods such as efficiency standards. Pinellas also complains because the per capita use limits for the NTB WUCA are different from those for the SWUCA. Pinellas did not carry its burden of establishing that the difference between the per capita use requirements in NTB and the SWUCA renders either or both standards arbitrary or otherwise invalid. Different hydrogeologic conditions as well as the types and intensity of use in a particular area can necessitate different regulatory measures. Moreover, the amount of information available and the assessment of future needs could also lead to different per capita requirements in different areas. 2. Development and Application of NTB PCURs 952. BOR Section 7.3.1.1 limits public water uses within the NTB WUCA to a per capita water use limit of 150 GPD starting January 1, 1993. This rule also establishes per capita water use "goals" of 140 GPD starting January 1, 1997, and 130 GPD starting January 1, 2001. BOR Section 7.3.1.1, went into 124 effect on or about March 1, 1991, and modified unexpired public supply WUPs in the WUCA to include a new permit condition requiring the permittee to achieve a per capita rate of 150 GPD per capita by January 1, 1993. 953. The NTB WUCA 150 GPD per capita limit was based on the District's analysis of actual water use data and the amount of reduction the District believed could reasonably be attained. The District's main concern was that the extant per capita usage rates not rise for fear that existing resource problems would be exacerbated. 954. At the time the NTB WUCA 150 GPD per capita limit was selected by the District in 1990, the latest data from 1987 indicated that Pinellas' gross per capita water use was 147 GPD, Pasco's gross per capita water use was 108 GPD, and Hillsborough's gross per capita water use was 148 GPD. Thus, the standard was already being met in all three counties. 955. The NTB WUCA Work Group, comprised of permittees and other interested persons, reached a consensus opinion that a per capita limit of between 110 and 140 GPD was achievable and reasonable. The District's selection of 150 GPD as the initial standard was intended to provide leeway and flexibility for utilities to adjust. 956. In calculating per capita water use, BOR 7.3.1.1 allows a permittee to deduct individual non-residential customers who use more than 25,000 GPD or more than 5 percent of the permittee's annual flow. This allowance provides some protection from having per capita figures skewed by a regional industrial user. Pinellas' contention that this provision is arbitrary because the determination of which users qualify under the 5 percent exemption will vary depending on the size of the utility is rejected. 3. Development and Application of SWUCA PCURS 957. The proposed SWUCA rules would limit public water uses within the SWUCA to a quantity of water calculated by multiplying the "functional population" by the per capita water use limit specified in this proposed rule. The functional population is to be determined pursuant to proposed BOR Section (SERVICE AREA POPULATION ESTIMATES AND PROJECTIONS WITHIN THE SWUCA). From the proposed rules' effective date through September 30, 1999, permitted uses would continue to be allowed to use their existing permitted quantity. For the period from October 1, 1999, through September 30, 2004, the specified per capita water use limit would be 130 GPD. Starting October 1, 2004, the specified per capita water use limit would be 110 GPD. 958. The requirements of the proposed SWUCA rule would be implemented by applying permit conditions to all existing and new public supply permits with withdrawal points located in the SWUCA. 959. The SWUCA Rules seek to impose the per capita levels as "requirements" rather than just goals. The PCURs contained in proposed BOR Section 3.6 were developed through a "Focus Group" process and discussions with public supply utility directors. The 130 and 110 per capita figures represent a work group consensus as to what was achievable over time. 960. The District staff believes that ultimately a PCUR of between 80 and 110 GPD is appropriate for the SWUCA 125 area. The selection of the higher figure as the initial requirement allows time for users to adjust, and the staggered deadlines provide permittees with adequate planning horizons. 961. Like the NTB provision, the SWUCA proposal is based on an adjusted per capita usage rate which would allow utilities to factor out certain enumerated water uses from the per capita calculation (such as water used for environmental mitigation, treatment losses, and large industrial customers). Contrary to Pinellas' claims, the greater weight of the evidence established that these provisions are reasonable. 4. PCURs and Planning 962. In planning for future water needs, a utility normally utilizes historic per capita water use with reliable population projections to derive a projected demand curve. Adjustments are made to the projections for factors that are reasonably expected to increase or decrease historic demands. A safety margin is often built in to minimize the risk of under- predicting future water demands and not having sufficient supplies on hand to meet those demands. 963. The Florida Comprehensive Planning Act, Chapter 163, F.S., requires local governments to establish levels of service for such elements as water, transportation, flood control, sewer, and solid waste disposal based on historic and projected uses . In implementing comprehensive planning, a local government must assess whether sufficient infrastructure is in place and/or available to meet the community's projected growth. The construction of facilities to meet the projected needs can be very involved and expensive. 964. While BOR Section 7.3.1.1 refers to the 140 GPD and 130 GPD per capita use rates as "goals," the District has been urging utilities and local governments to utilize these figures and the SWUCA PCURs for planning purposes, including the development of projected levels of service as part of the comprehensive planning process. In addition, the District has recommended to West Coast that it base its long-term per-capita 126 water demand projections on a figure of 110 GPD. 965. Pinellas contends that the District's per capita rules could require a local government to plan water supplies at a level below the standard level of service adopted as part of an approved comprehensive plan. No persuasive evidence was presented to support this contention. In any event, planning by a local government at a higher level of service does not mean the level of service is a reasonable-beneficial use. Moreover, such planning is irrelevant if adequate resources are not available. This issue highlights the importance of coordinating 127 the planning process with resource availability. Many of the water problems currently being experienced in this region can be traced to the failure to achieve such coordination. Per capita usage rates can be helpful in assuring the long-term availability of the resource while also facilitating more effective and accurate planning. 5. Differences Among Utilities 966. The amount of water used on a per capita basis varies from utility to utility. Because utilities have different customer and rate bases, as well as different infrastructure and facilities, their respective per capita daily use figures can be substantially different. Factors that influence or affect a utility's per capita water use include the conservation programs in place, the groundwater quality of the 128 shallow aquifer and the availability of alternate water supplies. Utilities that primarily serve residential customers will generally use water at a different per capita rate than utilities with a large percentage of non-residential customers. 967. Despite these differences, it is not unreasonable for the District to allocate water to public supply based upon a reasonable and appropriate per capita usage rate, especially during times and in areas of limited availability. The more persuasive evidence in this case established that the usage goals by the District for NTB and the SWUCA are reasonable and achievable. While there are differences among utilities in terms of the makeup and types of use, adjusted per capita figures provide a reasonable basis for comparison among utilities. Differences between utilities can be considered in developing a remedial plan. 6. Enforcement 968. When the NTB WUCA Rules were adopted, existing water use permits in the NTB WUCA were modified to incorporate the new requirements. The District proposes to follow a similar approach in the SWUCA. Pinellas objects to the imposition of new conditions on existing WUPs, arguing that the District has already determined that the use of water meets the statutory three prong test. Contrary to Pinellas' suggestion, however, the District is not precluded from taking steps to modify and/or reduce a permit after its issuance. As discussed in Section VIII and the Conclusions of Law below, such modifications and/or reductions can be part of a water use caution area strategy. No persuasive evidence was presented to show that the use of such a strategy for the NTB or the SWUCA was not justified. 969. Pinellas argues that there are practical problems associated with enforcing per capita water use limits. Pinellas objects because permitting based on per capita water use limits could result in a utility having insufficient water to meet its customers' actual demands and complains that the rules do not provide any guidance as to how such a situation would be handled. In this regard, Pinellas notes that water supply utilities are required by DEP to maintain a sufficient amount of pressure in the water transmission lines to avoid contamination and protect the public's health, safety, and welfare. Therefore, if the customers demand more water, the transmission lines' pressure must be maintained, irrespective of the per capita daily water use limitation. There is also no practical mechanical means currently available to determine when an individual user has exceeded his allocation. Private investor-owned water utilities in particular have limited options to ensure that their customers comply with per capita daily water use limitations because they cannot pass ordinances to restrict water use. Even for public suppliers, ordinances or laws can be difficult to enforce. These issues are enforcement considerations that do not provide a basis for invalidating the District's efforts to apply the reasonable-beneficial use test and allocate water based on PCURs. The District has not proposed to simply cutoff the water when per capita limitations are exceeded. 7. Annual Reports The SWUCA Rules include a proposed subsection ("Annual Reports") to be added to BOR Section 3.6 which would require public supply permittees to provide the District an annual water use report composed of 15 different items. Pinellas complains because this rule does not apply to non- public supply permittees and some of the information required duplicates information that must be submitted in other reports which the District already requires. Pinellas has not carried its burden of showing that this requirement is arbitrary or otherwise invalid. Water Conserving Rate Structure As part of the NTB WUCA Rules, the District adopted BOR Section 7.3.1.2, which requires all water supply utilities within the NTB WUCA to adopt a "water conserving rate structure". 129 If an existing permittee does not adopt a water conserving rate structure by the applicable deadline, the District considers that permittee to be in violation of the WUP and may bring an enforcement action against the permittee. The SWUCA Rules propose to add a subsection to BOR Section 3.6 (WATER CONSERVING RATE STRUCTURE) which is similar to the water conserving rate structure requirement set forth in NTB WUCA Rule BOR Section 7.3.1.2. The SWUCA provision would require public water supply utilities within the SWUCA to adopt a water conserving rate structure by July 1, 1997. The SWUCA Rules do not include similar permit conditions. They simply mandate that public supply utilities adopt a water dates. conserving rate structure by the specified 130 Pinellas has challenged both the NTB and SWUCA provisions on several grounds. Pinellas has been subject to the NTB requirement since adoption. Pinellas considers its current rate structure to be water conserving. It calculates each customer's average annual use and bills an additional $1.00/1000 gallons when use exceeds the rolling average by more than 20 percent. This rate structure has been in place since 1973-74. The District has expressed concern regarding Pinellas' rate structure because customers with a continuous history of excessive use could continue to use such amounts and because use that was not greater than 20 percent of the rolling average could gradually increase with no increased cost. At the close of the hearing, Pinellas' rate structure had not been accepted by the District, but discussions were continuing. 1. Enforcement and Reporting 975. Neither the NTB nor the SWUCA provisions specify the consequences for failing to adopt a water conserving rate structure that is acceptable to the District, but a permittee that does not adopt such a rate structure apparently faces the prospect of having its permitted use reduced or terminated. 976. Under both the NTB and SWUCA provisions, a utility's rate structure is submitted for approval to the District. The District Governing Board ultimately determines whether the requirement has been satisfied. The District reviews both the rate structure and the rates themselves in order to determine whether the permittee has complied with the requirement. 977. There is no definition of the term "water conserving rate structure" in the District's rules or Basis of Review. While Pinellas has objected to the lack of specificity as to what rate structures will be considered water conserving, the evidence established that the general concepts as to what constitutes a water conserving rate structure are well recognized in the industry. The basic concept of a water conserving rate structure is that the charges for water go up as the customer uses more. 978. The evidence established that there are several different ways in which a water conserving rate structure can be structured. The District has sought to provide public utilities with some flexibility to choose the water conserving rate structure that best suits them. 2. Types of Rate Structures The District has published a December 1, 1991, document entitled, "Interim Minimum Requirements for Water- Conserving Rate Structures," which explains the District's policy for analyzing and accepting proposed water conserving rate structures. This document has been widely distributed to utilities and local officials. It sets forth examples of rate structures that would and would not be considered water conserving. Pinellas has objected because this document is not adopted in the existing rules or Basis of Review, nor is it proposed for adoption in the SWUCA Rules. However, the evidence was not sufficient to establish that this document has been given the force and effect of a rule. A "flat structure" implements a non-quantity based charge where no incremental or marginal price is charged for each additional unit consumed. A flat rate structure is not a water conserving rate structure. With "declining block rate structure," a lower price is charged for each additional unit consumed above a certain threshold. The average cost per unit decreases as more units are purchased, but the total water bill per billing period actually increases with the greater amount of water consumed. Declining block rate structures are non-water conserving. A "uniform rate structure" imposes a constant or uniform per unit charge. As discussed below, in some circumstances, the District will accept a uniform rate structure. An "inclining block rate structure" contemplates a higher price for each additional unit consumed above a certain threshold. The District usually considers an inclining block rate structure to be water conserving. However, an inclining block rate structure can result in inequitable treatment to water customers if it does not take into account the number of persons in a household. The delineation of what will be considered a "water conserving rate structure" and how a utility can comply with the District's rules requiring water conserving rate structures would be useful if included in the rules; however, the failure to do so does not render the rules impermissibly vague. Some evidence was presented that the District considers whether a utility is complying with the District's per capita use requirements when evaluating a proposed water rate structure. If a permittee does not meet the District's per capita requirements, the District apparently takes a more stringent look at the permittee's rate structure. For example, the District may be more lenient with a permittee proposing a uniform rate structure so long as the permittee has met per capita requirements. (The District will reject a flat rate or declining block rate structure even if the per capita requirements are met). The existing and proposed rules do not specifically link water conserving rate structures and per capita use requirements. If such a policy exists, it should arguably be adopted as a rule. However, this issue has not been raised in the context of a challenge under Section 120.535, F.S. and is beyond the scope of this proceeding. Both the current NTB provision and the proposed SWUCA provision concerning water-conserving rate structures requires permittees to submit a report on the effectiveness of the rate structure. It is not clear what is required in this report. Pinellas claims a quantitative determination of the effectiveness of a rate structure's influence on demand is a difficult undertaking because many variables besides price affect water demands. The evidence did not establish that such a quantification is required. The District's consideration of whether a utility has a water conserving rate structure is consistent with its authority to determine whether a proposed water use is reasonable-beneficial and/or within the public interest. In this regard, the District can require an applicant to submit reasonable relevant information. The evidence was insufficient to establish that the challenged provisions are necessarily excessive with respect to the information that must be submitted. Whether or how the water conserving rate structure requirement can be enforced is potentially problematic under the both current and proposed provisions. However, these potential problems do not render the provisions unduly vague or otherwise invalid. 3. Impingement on Public Service Commission and County Commission Rate-Making Authority. On or about September 1, 1994, Mr. Charles Hill, the Director of the Water and Wastewater Division for the Florida Public Service Commission ("PSC") wrote to District Executive Director Pete Hubbell indicating that the PSC Staff thought the District's rules relating to rate structures was "a direct infringement on the [Florida Public Service] Commission's exclusive jurisdiction." In this proceeding, Pinellas raised a similar contention that both the NTB and SWUCA provisions conflict with or contravene the PSC's exclusive jurisdiction over the operation of nongovernmental utilities under Section 367.011(4). One of the original Petitioners in these proceedings, Southern States Utilities ("SSU") also objected to the District's involvement in rate issues. After Phase I of this proceeding, the District and SSU entered into a settlement agreement which was approved by the District's Governing Board in April, 1995. As part of its settlement agreement with SSU, the District clarified that it will defer to the exclusive jurisdiction of the PSC to regulate the service and rates of public water supply utilities. In the settlement agreement, the District agreed to certain examples of water-conserving rate structures which would satisfy the District's rules. Paragraph 2.a of the Settlement Agreement provides: For the purposes of the requirements set forth in Chapter 40D-2. F.A.C., a "water-conserving rate structure" means one that provides a price signal that the more water a customer has used, the higher the customer's bill will be. The following structures are considered examples of water-conserving rate structures: base facility charge plus gallonage charge and (2) inclining block rates. Flat rates, declining block rates, and minimum charge rates are not considered water- conserving rate structures In addition, Paragraph 2.b of the Settlement Agreement provides: Investor-owned utility permittees will be deemed to have complied with the District's requirements if the investor-owned utility, in good faith, submits and defends a rate to the Rate-Making Authority that complies with the definition of a water-conserving rate structure provided in Paragraph [2.a] above, regardless of whether such rate is approved or denied by the rate-making authority. Paragraph 3.b of the settlement agreement allows the District and SSU to amend the Settlement Agreement by mutual agreement. The District says its decision to give deference to the rate-making authority simply confirmed that the District's rules should be read in pari materia with the PSC's jurisdiction and that the rules were not intended to usurp the PSC's authority. Pinellas argues that these provisions of the settlement agreement are statements of general applicability which were adopted in circumvention of the rulemaking procedures set forth in Section 120.54. No challenge to the settlement agreement has been raised under Section 120.535, F.S. The interpretations and conclusions in the settlement agreement are not conclusive or binding on any other parties. Water systems owned, operated, managed or controlled by governmental authorities are exempt from regulation by the PSC pursuant to Section 367.022(2), F.S. Pinellas contends that the water conserving rate structure provisions infringe on a governmental authority's autonomy over utility rates, which is allegedly contemplated by Section 153.03(3), F.S. (authorizing counties to fix and collect water rates), and Section 180.13(2), F.S. (authorizing municipal water rates). This issue is addressed in the Conclusions of Law. Proposed BOR Section 3.6 ("CUSTOMER BILLING AND METER READING CRITERIA WITHIN THE SWUCA") Proposed Section 3.6 of the Basis of Review includes a new sub-subsection titled "Customer Billing And Meter Reading Criteria Within The SWUCA". This subsection would require meter reading and billing by public supply utilities at least bimonthly. This proposal also requires billing period water usage information to be provided to customers with their bill. In addition, at least once per calendar year, customers must be provided with historic billing period usage and rate structure information describing applicable fixed and variable charge rates, minimum quantity charges, block size and pricing and seasonal rates. If the billing units are not in gallons, a means to convert the billing units to gallons must be provided. There are no similar requirements in the NTB WUCA Rules. The proposal does not describe how the District would enforce the requirements and/or what penalties would be imposed for failure to comply with them. Pinellas has objected to these requirements, arguing that they unjustifiably impinge upon and/or contravene the authority of counties and municipalities over their water utilities pursuant to Chapters 153 and 180, F.S. This issue is addressed in the Conclusions of Law. Pinellas objects to the requirement that a public supply permittee use gallons as its billing units, or provide a means to convert its billing units to gallons. Pinellas claims that many utilities meter their water by cubic feet since this has been a traditional unit of measure in the industry for many years. Using cubic feet instead of gallons as a billing unit does not affect the accuracy of the metered quantity of water. However, gallons are more readily understood by the general public. The evidence established that providing information regarding the rate structure and requiring billing units to be in gallons or convertible to gallons can further the effectiveness of conservation programs. 1000. Pinellas also contends that the District is arbitrarily requiring a utility to provide its customers with their historic water use information from the prior three years and is arbitrarily requiring a utility to read meters and send out bills at least bi-monthly. Pinellas claims that changing billing formats and increasing the frequency of meter reading is an expensive proposition and many utilities would have difficulty complying with these requirements without increasing their work force and water rates. Pinellas argues that the District has no expertise in utility management or operations, yet the District is attempting to micromanage matters that should be within the utility's exclusive prerogative and control. 1001. The District is seeking to insure that public utilities provide customers with information sufficient to determine whether their household use is excessive in relation to normal use. Billing and meter reading procedures can be an important means of communicating pricing signals built into a rate structure to utility customers, thereby contributing to the overall effectiveness of a water conserving rate structure. 1002. In implementing the reasonable-beneficial use test and determining that water uses are in the public interest, the District can reasonably impose conditions that further conservation without unnecessarily burdening utilities with requirements that do not have any direct correlation to the statutory goals. The proposed provisions in the challenged section have not been shown to be unreasonable or unduly burdensome. Water Audits - BOR Section 7.3.1.3 and proposed BOR Section 3.6 (Conservation Requirements Within the SWUCA-Water Audit) unaccounted-for-water 1003. A water audit is a study performed to determine the level of 131 within a distribution system. It is essentially an accounting procedure that compares the amount of water coming into the system with the amount of water that is being metered through sales to customers and other known uses such as line and hydrant flushing. 1004. All water supply utilities have some percentage of unaccounted-for-water. Unaccounted-for-water may be caused by many factors including, among other things, leakage, faulty metering, theft, careless accounting, and failure to account or estimate un-metered quantities of use within the system. Most of these causes can develop at any time. 1005. The NTB WUCA Rules include BOR Section 7.3.1.3 which requires all water supply utilities within the NTB WUCA to conduct water audits of their systems by January 1, 1993, January 1, 1997, January 1, 2001 and January 1, 2011. Among other things, this rule provides that if a water audit identifies a greater than 12 percent level of "unaccounted-for- water," the permittee shall prepare and implement a schedule for remedial action. This requirement is implemented through a permit condition contained in the rule which is applied to all unexpired public supply WUPs. 1006. The SWUCA Rules include a subsection in proposed BOR Section 3.6 ("CONSERVATION REQUIREMENTS WITHIN THE SWUCA, Water Audit") which is similar, but not identical to the NTB WUCA provision in BOR Section 7.3.1.3. This proposed subsection would require water supply permittees within the SWUCA to implement a water audit program within two years of permit issuance. It also requires a report with an implementation schedule for remedial action if unaccounted for water exceeds 12 percent of total distribution quantities. 1007. Under the proposed SWUCA provision, water audits would be required every year, whereas the NTB WUCA requirement in BOR Section 7.3.1.3 contemplates reporting periods every four years. In addition, the proposed SWUCA provision states that permittees whose permitted annual average quantity is less than 100,000 GPD are not required to provide water audits. The NTB WUCA provision does not include this exemption. Pinellas claims that there is no justification for these differences. However, Pinellas has not carried its burden of demonstrating that the District's decisions in this regard are arbitrary, capricious or otherwise invalid. Neither Chapter 373 nor Chapter 120 require all areas of the District to be regulated alike. 1008. Although the rules do not specify the consequences of failing to comply with this water audit provision, it appears that the application of the water audit requirement could result in the reduction of a permittee's allocation of permitted water. 1009. The American Water Works Association (AWWA), a nationwide association of professionals in the water industry, is a highly regarded authority on water supply operations involving public supply distribution. The District's 12- percent standard for unaccounted-for-water is derived from a 1957 AWWA report, Number 4450D, in which a range of from 10 to 15 percent was considered reasonable. The District selected the mid-point of this range and rounded down to 12 percent. Before choosing 12-percent, the District also considered data from across the District as to the typical amount of unaccounted for water for different utilities. The District has assisted public utilities with the performance of water audits and has never experienced a situation where it was impossible for a utility to bring its unaccounted for water to below 12-percent. 1010. Pinellas' contention that the District's water audit provisions do not provide enough flexibility to address the unique circumstances of each utility is rejected. The evidence established that 12-percent is a reasonable standard for most utilities. Any special circumstances can be addressed in determining appropriate remedial measures. 1011. The District rules do not define a specific procedure for calculating the percentage of unaccounted-for- water. In response to several utilities' inquiries concerning how to perform a water audit, the District prepared a pamphlet titled, "Water Audit Guidelines," which discusses how to record the results of water audits. This pamphlet has not been adopted as a rule. 1012. AWWA Manual 36, titled "Water Audits and Leak Detection," provides work sheets that can be used in performing a water audit. The evidence indicated that work sheets from the District's pamphlet, from the AWWA Manual or any similar form may be used to comply with the District's water audit requirements. 1013. Pinellas complains because the District's water audit work sheet indicates a permittee should determine the level of accuracy of its customer's meters by taking a sample of between 1 percent to 5 percent of these meters. After performing a random test on 1 percent to 5 percent of its customer meters, the work sheet indicates a utility can take the average percentage of inaccuracy from that sampling and extrapolate over its entire spectrum of sales meters. Pinellas points out that this sampling method would require Pinellas to check between 1,000 to 5,000 meters per water audit. Pinellas' complaints are not ripe for resolution in this proceeding since the District has not specifically mandated such sampling. Proposed BOR Section 3.6 ("WHOLESALE CUSTOMERS WITHIN THE SWUCA") 1014. The SWUCA Rules include a subsection in proposed BOR Section 3.6 ("WHOLESALE CUSTOMERS WITHIN THE SWUCA") which provides that "A wholesale customer within the SWUCA shall be required to obtain a separate permit to effect the conservation requirements set forth in this section, unless the quantity obtained by the wholesale customer is less than 100,000 gallons per day on an annual average basis and per capita daily water use requirement of the wholesale customer is less than the applicable per capita daily water use requirement outlined in BOR 3.6 in the subsection titled 'PERMIT QUANTITIES AND COMPLIANCE-PER CAPITA WATER USE WITHIN THE SWUCA.'" 1015. This proposal would require certain wholesale public supply customers (i.e., those that purchase water from permittees and use more than 100,000 gallons a day on an annual average basis) to obtain their own water use permit from the District even though they are not withdrawing water from an aquifer or from surface water. This wholesale customer provision was included in the SWUCA Rules at the urging of a number of public utility directors who produced water for resale to smaller utilities. They were concerned that they did not have a mechanism for requiring their customers to meet the conservation requirements of the SWUCA Rules. 1016. The District contends that, unless wholesale customers are also required to obtain a permit, many large users would be beyond the reach of the rules and, consequently, would not have to comply with the water conservation requirements of the SWUCA Rules including the per capita use requirements, the conservation rate requirement, and the like. If the wholesale customers are not required to comply, the ability of a supplier/permittee to meet the requirements could be impaired. The District claims that prior efforts to require wholesale suppliers to obtain a commitment from wholesale customers that the customers would comply with the conditions of the suppliers' permit proved to be untenable. 1017. If this proposal is adopted, and wholesale customers are required to obtain a WUP, it is not clear what enforcement steps could be taken by the District against a customer who did not comply with the conservation provisions of the SWUCA Rules. 1018. The District believes that its authority to regulate the consumptive use of water encompasses the point of use as well as the point of withdrawal. However, Section 373.219(1), F.S., only authorizes the District to require water use permits for the "consumptive use of water." This authority does not extend to a purchaser receiving water from a 132 permittee. While its intentions may be laudatory, the District currently has no statutory authority to require wholesale customers to obtain water use permits. 1019. The testimony at the hearing indicated some confusion or uncertainty as to whether a wholesale customer of a utility located in the SWUCA would be required to obtain a separate WUP if that customer is located outside the SWUCA. In view of the conclusions reached herein, this issue is moot. It is noted, however, that proposed SWUCA Rule 40D-2.801(3)(b)(3) states, "Any permit with a withdrawal point within the boundaries of the SWUCA is deemed to be within the SWUCA." In allocating quantities to public suppliers withdrawing water in the SWUCA, the District would consider the entire demand area and allocate a quantity based upon the applicable SWUCA per- capita rate. In other words, a supplier withdrawing water from a point within the SWUCA would receive an allocation for wholesale customers outside the SWUCA based upon the SWUCA per- capita rate even. G. Reuse - BOR Section 4.11, BOR Section and proposed BOR Sections 3.1 (Alternative Sources within the SWUCA - Reuse Goal) and 3.6 Background 1020. The reuse of reclaimed water is regulated as a disposal option for effluent from a wastewater treatment plant ("WWTP") by DEP, which issues the permits for wastewater treatment and disposal. DEP does not have the authority to require reuse of wastewater. DEP Rules 62-40 and 62-610, F.A.C., identify which uses of reclaimed water qualify as "beneficial reuse" and provide specific criteria and quality standards for reused water. 1021. There is considerable uncertainty and controversy as to how and when reused water can be considered in the WUP process. The District notes that the Legislature and State Water Policy mandate the implementation of wastewater reuse. See, Sections 373.250 and 403.064, F.S. (1994 Supp.) and Rules 62-40.310(4) and 62-40.401(5), F.A.C. 1022. Section 373.250, F.S., provides in pertinent part as follows: The encouragement and promotion of water conservation and reuse of reclaimed water, as defined by the department, are state objectives and considered to be in the public interest. The Legislature finds that the use of reclaimed water provided by domestic wastewater treatment plants permitted and operated under a reuse program approved by the department is environmentally acceptable and not a threat to public health and safety. (3) The water management district shall, in consultation with the [Department of Environmental Protection], adopt rules to implement this section.... 1023. Section 403.064(1), F.S., incorporates almost verbatim the policy statements in Section 373.250(1). Section 403.064 provides in addition: All applicants for permits to construct or operate a domestic wastewater treatment facility located within, serving a population located within, or discharging within a water resource caution area shall prepare a reuse feasibility study as part of their application for the permit. The study required under subsection (2) shall be performed by the applicant, and the applicant's determination of feasibility is final if the study complies with the requirements of subsection (2). * (5) A reuse feasibility study prepared under subsection (2) satisfies a water management district requirement to conduct a reuse feasibility study imposed on a local government o 1024. The State Water Policy, which provides policy guidance to the water management districts, contains several provisions relating to reuse. Rule 62-40.401(2)(j) includes reuse among the items that the water management districts should consider in the WUP issuance process. See also, Rules 62- 40.310(4) and 62-40.401(5), F.A.C. The State Water Policy 1988. language pertaining to reuse has been in place since 133 1025. Reuse systems have been experiencing rapid growth in Florida. From 1986 to 1992 the number of reuse systems in the state grew from about 110 to more than 290, and reuse flow grew from about 200 MGD to about 290 MGD. Reuse capacity statewide grew during this period from about 370 MGD to 134 about 600 MGD. 1026. Within the District, there were about 100 wastewater treatment plants at the time of this hearing generating a total wastewater flow of approximately 300 MGD. About 40 percent of these plants were at or above 50 percent reuse. This figure is expected to climb to almost 60 percent within five to ten years as a result of projects that are in the pipeline under the District's cooperative funding program. Additional projects underway apart from the District's program could bring the figure even higher. On a percentage of flow basis, an estimated one-third of the total flow is currently being reused, and DEP has already issued permits that could 135 increase this capacity to about two-thirds. 1027. Section 403.064(2), F.S., (1994 Supp.) directs DEP to require that reuse feasibility studies be conducted by WWTP permit applicants located in water resource caution areas. The goal of this statute was to require WWTP operators who dispose of large quantities of treated effluent in areas with scarce water resources to consider whether that effluent could be reused instead of discharged. 1028. The requirement that a WWTP permit applicant perform a reuse feasibility evaluation was enacted in 1989. See, Section 7 of the 89-324, Laws of Fla. Prior to this legislation, there was no statutory requirement for WWTP permit applicants to perform reuse feasibility investigations. Subsection 2 of Section 403.064, as originally enacted provided that "the applicant's evaluation shall be final." In other words, DEP could not refuse a WWTP permit based upon its disagreement with an applicant's determination that reuse was not feasible. This statute reflected a legislative policy that, while the encouragement of reuse is an important state goal, the ultimate decision as to whether a utility should make the capital investment necessary to build a reuse system should be left to the utility. 1029. Allowing a WWTP the final say in determining whether it was feasible to build a reuse system has been controversial. The legislative goal of encouraging reuse and the legislative directive that gives a WWTP the final say as to whether it is feasible to develop a reuse system can conflict. However, when Section 403.064 was amended by the Florida Legislature in 1994, the amendment re-emphasized that the applicant's determination of feasibility is final by moving the following language into subsection (3): "The [reuse feasibility] study...shall be performed by the applicant, and the applicant's determination of feasibility is final if the study complies with the requirements of subsection (2)." 1030. A WWTP or utility does not have authority to require customers to hook up to a reclaimed water system even if the utility builds a pipe to the customer's area. Thus, there is considerable uncertainty involved in determining whether an investment in reuse facilities can be recaptured. This uncertainty is compounded by the ambiguity as to when reuse can be required in the WUP process. Some local utilities, municipalities and county governmental entities have implemented "local reuse programs" without the involvement of a water 136 management district. Section 403.064(7) provides that in issuing a WUP, the permitting agency shall take into consideration the local reuse program. This provision recognizes that water management districts can consider existing reuse distribution systems in issuing WUPs. Sections 373.250(5) and (6) also recognize that a water management district can consider an applicant's ability to utilize reused water as part of the WUP process. 1031. Section 373.250(2)(b), F.S. (1994 Supp.), provides that reuse can be presumed available to a WUP applicant when a utility exists that provides reclaimed water has uncommitted capacity available and has a distribution facility to the site of the proposed use. This statute implicitly limits a water management district's ability to require the use of reclaimed water as part of a WUP to situations where it can be shown that reused water is available. Even if reuse of reclaimed water is determined to be feasible, an applicant can be required to reuse only the amount of reclaimed water that is "uncommitted" as defined in Section 373.250(2)(a), F.S. Existing and Proposed Rule Provisions 1032. The District says its experience has demonstrated that once reuse is started, demand for reclaimed water rapidly rises. Accordingly, the District wants its rules to create an environment that encourages reuse. 1033. Rule 40D-2.301(1)(1), F.A.C., requires a WUP applicant to provide reasonable assurances that its proposed water use will "incorporate reuse measures to the greatest extent practicable." 1034. Section 4.11 of the Basis of Review corresponds to this rule. Under BOR Section 4.11 applicants "shall demonstrate whether reclaimed water is available and appropriate for reuse and shall incorporate reuse of reclaimed water to the greatest extent practicable." In addition, BOR Section 4.11 states that "in determining whether an Applicant meets this criterion, the District shall consider whether the use is economically, environmentally and technically feasible." BOR Section 4.11 applies to all WUP applicants including public supply permittees. 1035. Under these provisions, the District Governing Board makes the final determination of the feasibility of a WUP applicant incorporating reuse. An applicant's proposed use request can be reduced by the amount of water that the District believes can be supplied through a reuse system. 1036. The District has not adopted any standards or guidelines for determining whether reuse is being incorporated to the "greatest extent practicable" or whether reuse is "economically, environmentally and technically feasible." 1037. Because the District decides whether or not a WUP applicant has incorporated reuse measures to the greatest extent practicable, theoretically the District could conclude that it was feasible for a WUP applicant that generated domestic wastewater to reuse reclaimed water even when the applicant had decided pursuant to Section 403.064, F.S., that reuse was not feasible. It is not clear whether the District has ever utilized the provisions in this manner. The evidence suggests the provisions have generally been applied to potential users of an available supply. Some District witnesses contended the provisions could also be applied to utilities that generate wastewater and hold a WUP. 1038. The NTB WUCA Rules include BOR Section 7.3.6 which is entitled Alternative Sources. The District says this reuse requirement for permittees in the NTB WUCA was intended to be more strict than the general reuse requirement found in Rule 40D-2.301(1)(1). 1039. Subsection 2 of the NTB provision provides: "Investigation of the feasibility of reuse may be required for all appropriate uses, and reuse shall be required where feasible." This provision is implemented by applying a permit condition set forth in BOR Section 7.3.6.2 to all "applicable" permits. Applicable permits for purposes of this provision does not specifically include public supply permits. Instead, the provision is aimed at those permits for which treated wastewater could serve as an alternate replacement or supplemental water source such as irrigation, industrial processing, cleaning and other non-potable uses. 1040. The permit condition in BOR Section 7.3.6.2 requires a WUP applicant in the NTB WUCA to investigate the availability of reuse and its feasibility as a source. These factors are to be included in a report submitted to the District. The intent of BOR Section 7.3.6.2 was to place an obligation on potential end users to consider the possibility of using reclaimed water and to match up WUP applicants who could use reclaimed water with reused water where it is available. 1041. The NTB provision does not directly impose requirements on public supply permittees who are potential providers of reclaimed water except as set forth on page B7.3-19 of the Basis of Review, which provides "if reclaimed water is available or is planned to be available within the next six years, the local wastewater entity shall provide a cost estimate for connection to the permit applicant." This provision seeks to provide a linkage between those who could use the reclaimed water and a wastewater utility that has reclaimed water available. While some witnesses suggested Section 7.3.6.2 could be applied to require public supply permittees to investigate the feasibility of developing a reuse system, it is not clear that the provision has ever been so applied. As discussed in the Conclusions of Law, such an application is beyond the current authority delegated to the District by the Legislature. Moreover, the rules do not adequately delineate the factors that would be considered in such an application. 1042. Pinellas claims that there are no rules that provide objective standards or criteria for determining if reuse is feasible. The criticism is well-taken if the rule is applied to require an investigation of the feasibility of developing a reuse system. To the extent that the provisions are applied to potential end-users of reclaimed water rather than suppliers, the requirements are not unacceptably vague. The permit condition set forth in BOR Section 7.3.6.2 delineates a number of factors that should be considered in submitting a report. So long as the requirement is read and applied consistent with the statutory requirements in Sections 373.250(2) and 403.064(3), F.S. (1994 Supp.), it does not vest the District with unbridled discretion. In sum, Petitioners have not presented any persuasive evidence or arguments for invalidating the existing provisions in Rule 40D-2.301(1)(1) and BOR Sections 4.11 and 7.3.6.2. The concerns that the provisions could be interpreted to require an investigation of the feasibility of constructing a reuse system do not provide a basis for invalidating the provisions since this result is not compelled by the language of the provisions. More problematic is the provision in the proposed SWUCA Rules. 1043. The SWUCA Rules include a subsection in proposed BOR Section 3.1 ("Reuse Feasibility Investigation within SWUCA") which would (1) establish a 50 percent reuse "goal" for permittees who generate treated domestic wastewater; identify various uses of reclaimed water that will "be considered beneficial reuse" within the SWUCA; and (3) require all WUP permittees within the SWUCA to investigate the "feasibility" of using reclaimed water, and to implement reuse where "economically, environmentally and technically feasible." 1044. The NTB WUCA provisions do not include a 50 percent reuse goal nor is there a delineation of what constitute beneficial reuse. The issues raised with respect to these two factors, which are unique to the proposed SWUCA Rules, will be discussed below. The third aspect of the proposal has some similarities to the NTB WUCA provision in BOR Section 7.3.6.2. However, the SWUCA provision would specifically apply to potential suppliers as well as potential users. The only permittees excused from conducting the investigation are reclaimed water suppliers whose reclaimed water is 100 percent reused, reclaimed water users whose water use is 100 percent reclaimed water, and permittees with a reuse plan already accepted by the District. 1045. The SWUCA provision seeks to authorize the District to require the implementation of reuse whenever the District deems it to be economically, environmentally and technically feasible without regard to the applicant's determination and irrespective of the percentage of reuse that may have been achieved by the applicant. State Water Policy and Reuse Coordinating Committee 1046. A state-wide Reuse Coordinating Committee, consisting of representatives from DEP, the five water management districts, and the PSC, has been established to coordinate agency activities to strengthen the state's reuse program and to develop consistent policies and approaches to promote, encourage and require reuse within the state. 1047. In October 1993, the committee published the Reuse Conventions Report, which made recommendations agreed upon by all of the agencies involved for improving, strengthening, and streamlining the reuse program. One objective of the Reuse Conventions Report was to create standardized terminology concerning reuse in order to promote consistency among the various regulatory agencies and to assist in the implementation of the water management plans contemplated by the 1988 revisions to the State Water Policy. Some of the policies and programs recommended by the Committee have already been incorporated into the State Water Policy and the DEP portion of the State Water Management Plan. 1048. The Reuse Conventions Committee recommended that water management districts be aggressive in requiring reuse as part of their WUP programs. The committee was concerned that some WWTPs have concluded that the development of a reuse system was not feasible after only a cursory analysis. The Committee expressed the view that allowing a WWTP to determine whether to implement a reuse program creates a loophole that negates the legislative goal of encouraging reuse. The Committee concluded that the legislative encouragement of reuse and the State Water Policy's requirement that reuse be implemented in designated water resource caution areas authorized the water management districts to implement mandatory reuse through their WUP programs. The SWUCA Rules have incorporated this view. 1049. The SWUCA provisions provide that reuse feasibility studies prepared by WWTP permit applicants pursuant to Section 403.064 can be submitted to satisfy the requirement of reuse feasibility as part of the WUP application process. However, the District says it will determine whether to accept the conclusions. In other words, the District could require domestic wastewater treatment facilities to develop a reuse system in order to obtain a WUP. In effect, this approach would allow the District to circumvent the legislative intent that a WWTP be allowed to make the determination of the feasibility of reuse by overriding that determination as part of the WUP process. As discussed in the Conclusions of Law, the District can properly consider readily available alternative sources as part of the WUP process. However, the WUP process is not the proper vehicle for allocating the costs of development of alternative sources. 1050. A comprehensive reuse program can include upgrades of the effluent treatment methods and construction of extensive transmission facilities. The cost of such a program for a major wastewater treatment plant could be tens of millions of dollars or more. Even the cost of preparing a reuse feasibility study for a comprehensive reuse system can range from tens of thousands to hundreds of thousands of dollars. The District's authority to implement a WUP program does not allow it to dictate to a local government how to allocate its resources between various important municipal functions. 1051. The District has not set forth any objective standards or criteria that would be used in determining when the development of a reclaimed water system is "economically, environmentally and technically feasible." The treatment requirements and public health considerations involved in a reuse system can be highly technical and complex. There are many uncertainties involved that are best addressed in the DEP permitting process under Chapter 403, F.S. 1052. While the District says that a project would not be considered feasible unless it was permitted by DEP, it is very difficult and costly to determine in advance whether a project is permittable. The DEP State Reuse Coordinator David W. York, who has primary responsibility for review of water management district reuse rules for consistency with the State Water Policy, testified that the State Water Policy should be read to mandate that reuse be implemented through the WUP 137 process in designated water supply problem areas. 1053. While the State Water Policy contains broad encouragement for reuse, it cannot create authority for the District beyond that granted by the legislature. The statutory authority for requiring reuse is explored in the Conclusions of Law. Reuse Goals 1054. In view of the conclusions reached herein regarding the limitations on the authority of the District to require reuse as part of the WUP process, many of the other issues raised by the parties are moot. Nonetheless, findings are made on some of the matters because of the uncertainty in this area and the importance of the issues. 1055. The proposed reuse goal in the SWUCA Rules provides as follows: Water Use Permittees within the SWUCA who generate treated domestic wastewater are encouraged to demonstrate that by September 30, 2004, 50 percent of the total annual effluent flow is beneficially reused.... Progress toward this goal shall be described in the Alternative Source Suppliers report described in section 3.1.... 1056. There is no industry standard or generally accepted level of reuse for a WWTP. A survey of all WWTPs in the District with treatment capacities of 500,000 GPD or greater indicates that only about 40 percent of these facilities are currently at or above 50 percent reuse. The District has not performed an analysis to determine whether those permittees within the SWUCA who are currently below the 50 percent reuse goal can realistically achieve compliance with this level. 1057. The District claims that the "reuse goal" in the SWUCA Rules "simply encourages permittees who generate wastewater to demonstrate that they have achieved 50 percent beneficial reuse by the year 2004. The only mandate associated with this rule is that reuse be reported to the District. There is no penalty involved if this goal is not achieved." See, District's proposed findings of fact, No. 713, p. 268. 1058. In its review of the SWUCA Rules, DEP indicated that the 50 percent reuse goal should be mandatory. This view is arguably consistent with the State Water Policy. However, as discussed in the Conclusions of Law, mandatory reuse cannot be imposed on a WWTP through the WUP process. 1059. The District can require WUP applicants to provide general information regarding their ability to use available reclaimed water and/or to supply it. Establishing a goal of 50 percent reuse and requiring proof of progress toward this goal is consistent with legislative intent. 1060. The District's proposed 50 percent reuse goal exempts WWTPs with a capacity of less than 500,000 GPD. The District was concerned that these smaller WWTPs would have problems meeting the Class I reliability standards required by DEP's reuse rules. It can be difficult and/or cost prohibitive for smaller plants to incorporate reuse. These small plants only represent about 5 percent of the total wastewater flow and some are being phased out with flows directed to the larger regional plants. While, the State Water Policy does not recognize any minimum size thresholds or exemptions for WWTPs, the District's decision to not include such plants in the rule was not arbitrary. Beneficial Reuse. 1061. The proposed subsection entitled "Alternative Sources Within the SWUCA, Beneficial Reuse" to be added to BOR Section 3.1 provides a list of activities that the District considers to be "beneficial reuse." The District proposed to use this list to assess the attainment of the 50 percent reuse goal. Pinellas argues that DEP is the only state agency authorized to regulate and permit reuse and that the District's efforts to separately define reuse could result in conflict and confusion. Over the last few years as more attention has been focused on reuse as an alternate supply source and policies to further reuse have been developing at the state and local level, there have been confusing and sometimes inconsistent changes in the manner in which beneficial reuse has been defined. Nonetheless, Pinellas' contention that the "beneficial reuse" provisions in the SWUCA Rules are invalid because they enlarge, modify or contravene State Water Policy and/or conflict with DEP rules regulating WWTPs is rejected. 1062. The State Water Policy includes a list of beneficial reuse options. Rule 62-40.210(15) sets forth examples as to what constitutes beneficial reuse, but this list was not intended to be exclusive or limiting. For example, indirect potable reuse involves the deliberate application of high quality reclaimed water as a means of augmenting either a ground or surface water supply for a subsequent withdrawal either downstream or down gradient as a potable water source. Although not specifically listed as a beneficial use in the State Water Policy, the evidence established that, under proper circumstances, DEP will consider it under the "other useful purposes" provision of the State Water Policy list. 1063. DEP has adopted detailed rules governing WWTPs and the reuse of reclaimed water. See, Ch. 62-610, F.A.C. reuse. These rules also include a list of beneficial 138 1064. DEP's November 8, 1994 official comment letter to the District indicated that the District's proposed beneficial reuse list was not consistent with the definition of reuse in the State Water Policy [Rule 62-40210(15)], Chapter 62-610, the pending revisions to Chapter 62-610, or the Reuse Conventions Report. A comparison of the list of activities contained in the SWUCA proposal confirms that it is not 139 identical. 1065. There are certain activities described on the state-wide lists of acceptable forms of beneficial reuse which may not be considered beneficial reuse by the District. For example, applying reclaimed water to percolation ponds (or "rapid rate infiltration basins") may be an acceptable form of 140 beneficial reuse under the DEP rules. (See Ch. 62-610, Part IV, F.A.C.). However, the District would probably not consider this activity beneficial reuse under the proposed SWUCA provisions. 1066. Whether a particular method of reuse is beneficial can vary throughout the state depending upon the nature of the aquifer system. For example, a percolation pond may be beneficial in recharging the aquifer in one part of the state but not in another. The District says the differences between the SWUCA provisions and the lists contained in Rule 62- 40.210(15) and Ch. 62-610, F.A.C., are the result of its effort to focus upon the particular types of reuse that would offset groundwater use within the SWUCA. The District's attempt to specify the types of reuse that are beneficial within the SWUCA is consistent with the legislative directive that it encourage reuse in water resource caution areas and has not been shown to be arbitrary, capricious or otherwise invalid. 1067. The District's definition of wastewater reuse in the glossary to the existing Basis of Review closely tracks the State Water Policy definition. The District has sought to provide itself with flexibility by including "other useful purposes" in subsection 8 which could encompass any uses considered beneficial by the DEP but not included within the District list. 6. Statutory Authority for BOR Section 4.11 1068. Pinellas claims that the District cannot rely upon Section 373.250 as support for BOR Section 4.11 because this statute was not enacted until after BOR 4.11 was adopted. The importance of conservation and reuse are implicit in the reasonable-beneficial use test and the regulation of water use in the public interest and have been recognized in the State Water Policy for some time. The District has proposed amendments to Rule 40D-2.091 to include additional citations of statutes under the "Specific Authority" and "Law Implemented" sections for the Basis of Review. Pinellas points out that, even as amended, the rule does not include any citation to Section 373.250, F.S. While it would be helpful to include this statute among the cited authorities, it is concluded that such citation is not essential. Standing 1069. The District argues that Pinellas does not have standing to challenge the proposed reuse provision in the SWUCA Rules because Pinellas currently has no facilities that would fall under these provisions and because Pinellas has already begun implementing an aggressive reuse program which, when completed, is expected to result in a reuse rate of more than 90 percent. For the reasons set forth in Section VI. A. above, this contention is rejected. Conclusion 1070. The District can require a WUP applicant to investigate the feasibility of utilizing reclaimed water from an available source. Such a requirement is a proper implementation of the reasonable-beneficial use test and the public interest test. While the State Water Policy -- with which District rules must be consistent, See Rule 62-40.110(3) -- mandates reuse measures within a critical water supply problem area such as the SWUCA, Chapter 373 does not authorize the District to override a determination as to feasiability by a utility regarding the development of a reuse system. A WUP applicant can only be required to reuse reclaimed water when it is available and "uncommitted" as defined in Section 373.250(2)(a), F.S. 1071. Moreover, because there are no standards or objective criteria to review the exercise of the District's discretion in determining whether a reuse system is "economically, environmentally and technically feasible," proposed BOR Section 3.1 is vague and grants unbridled discretion to the District.141 1072. The District says that it would utilize a pre- application conference with an applicant to discuss the parameters that would be applicable to a specific feasibility investigation. The evidence indicates that such conferences have been useful in the past. However, the rules must be evaluated on their face and the District's willingness to provide such conferences does not alter the unbridled discretion inherent in the rules. 1073. The District contends that its reuse provisions should be upheld because they are an attempt to regulate water use consistent with the public interest. The District argues that the provisions are consistent with State Water Policy, the Reuse Conventions Report and have the approval of the State Reuse Coordinator. The District points out that Section 373.250(3) requires the District to adopt rules in consultation with DEP to promote water conservation and reuse. In addition, subsection 4 provides that the statute was not intended to impair a district's authority to plan for and regulate consumptive uses. Admittedly, there is a great deal of ambiguity and confusion in trying to reconcile the various statutory directives. Requiring a WWTP to develop systems to make reclaimed water available is arguably consistent with the legislative policies set forth in Sections 373.250 and 403.064. However, absent legislative clarification, the development of such a system cannot be imposed through the WUP process. H. Desalination - BOR Section 7.3.6.4 and proposed BOR Section 3.1 Background 1074. Desalination is a process by which water with an unacceptable chloride level is rendered fit for public consumption. This term can refer to treating brackish water as well as ocean or gulf water. Brackish water has lower levels of chlorides and solids than ocean or gulf water and can be found in groundwater at coastal areas or in surface water bodies where there is a mixing of freshwater and saltwater. 1075. There are hundreds of brackish water desalination plants existing throughout the United States, including more than 170 facilities in Florida. However, no seawater desalination facilities are currently operating in Florida. In fact, no major municipal seawater desalination States. plants are currently operating in the United 142 There are only a few small "pilot" plants in California. 1076. The District's existing rules do not specifically mention desalination as a potential water source to be investigated except in the rules pertaining to WUCAs. The declaration of an area as a WUCA necessarily implies that problems exist with surface and/or groundwater. The District wants applicants in these areas to view desalination as an alternative source. 1077. Chapter 373 mentions desalination only in the context of "cooperative efforts" with local governments to promote desalination. The District contends the general conservation provisions of Chapter 373 and the State Water Policy authorize the District to require a permittee to implement desalination over another source of water. Current and Proposed Provisions 1078. Section 7.3.6.4 of the Basis of Review requires all industrial and public supply WUP applicants seeking new quantities in the NTB WUCA to investigate the feasibility of desalination, and to implement desalination if feasible. Under BOR Section 7.3.6.4 these applicants must provide "a detailed economic analysis of desalination, including disposal costs, versus development of freshwater supplies, including land acquisition and transmission costs." 1079. BOR Section 7.3.6.4 went into effect on March 1, 1991, and requires a feasibility investigation of brackish water as well as seawater desalination. 1080. As part of the SWUCA Rules, the District has proposed a new Section 3.1 of the Basis of Review which includes a subsection titled "Investigate Desalination Within The SWUCA." This provision would require all industrial and public supply applicants located in a coastal county within the SWUCA seeking new or replacement quantities of groundwater of 500,000 GPD or greater to investigate the feasibility of desalination and to implement desalination if feasible. 1081. The proposed SWUCA provision is similar to the NTB WUCA requirement in BOR Section 7.3.6.4 except that the SWUCA provision applies to "replacement" quantities as well as new quantities. "Replacement" is not defined, but the provision could require desalination feasibility studies from existing uses upon renewal, while the NTB rule applies only if an increased quantity is sought. Another difference is that the proposed SWUCA provision only applies in coastal areas to industrial and public supply applicants seeking "new or replacement quantities of groundwater of 500,000 gpd...or greater where salt water exists," while the NTB WUCA provision requires a desalination investigation for all industrial and public supply applicants seeking new quantities of any amount. 1082. A desalination investigation in the SWUCA would only have to address seawater. The District is concerned that the removal of brackish water in the coastal zones could exacerbate the SWUCA's saltwater intrusion problem. Feasibility 1083. The evidence established that there are virtually no available quantities of desalinated seawater from existing plants within the District. Accordingly, the investigation required under these provisions would necessarily involve an evaluation of the feasibility of construction of a new desalination plant. 1084. Seawater desalination requires a massive capital investment with a number of environmental permitting 143 issues involved. 1085. A feasibility study for a desalination plant can be an immensely complex and expensive undertaking. Simply evaluating financing possibilities for a capital investment of this magnitude is a major task. Depending on the size of the project and the detail of the study, the cost for a feasibility study could be several hundred thousand dollars. For example, Pinellas is in the process of preparing a desalination 144 feasibility study at a cost of about $300,000.00. 1086. If the District staff and a public supply utility applicant disagree as to the appropriate contents of a desalination feasibility study under either the NTB or SWUCA provisions, the District says it could determine that the application was incomplete and deny the WUP application if satisfactory information was not submitted in a timely manner. 1087. If, after completion of a desalination feasibility investigation, an applicant concludes that it is financially unable to construct such a facility, the District has discretion under these provisions to reject the applicant's economic feasibility determination and consequently refuse to issue a WUP. It is not clear what standards the District would utilize in evaluating an applicant's determination of financial feasibility. 1088. Neither rule delineates specific areas an applicant must include in its feasibility study other than generally requiring that "the investigation shall include a detailed economic analysis of desalination including disposal costs, versus development of fresh water supplies, including land acquisition and transmission costs." 1089. The testimony at the hearing indicated that the District expects a WUP applicant to investigate, among other things, concentrate disposal costs, coastal zone management requirements, and environmental issues such as the toxicity of brine discharge. The District has not developed any form or guidelines for the feasibility studies nor has it adopted any criteria or standards for evaluating such studies. 1090. The requirement to prepare a desalination feasibility study is unacceptably vague because it provides little guidance as to what should be included in such a study and it grants unbridled discretion to the District in determining whether the study is acceptable and/or the project is feasible without any meaningful basis to review that decision. Cost 1091. The District has performed desalination cost analysis for the Electric Power Research Institute and has also gathered information from the desalination industry regarding cost elements and the different types of processes associated with costing a desalination project. However, the District has not undertaken any in-depth studies to evaluate the financing and capitalization costs for construction of a desalination facility in the District. 1092. The July 1994 draft RDP by West Coast estimates the total cost of producing potable water from a one million gallon per day seawater desalination facility was more than seven times the cost estimates of other alternative source projects such as the Hillsborough Recovery and Tampa Bypass Canal Project. This was the only evidence presented as to the cost of desalination. 1093. "Reverse osmosis" is a membrane filtration desalination technique currently used by many brackish water desalination plants within the District. There are about 40 reverse osmosis plants in operation in the District. With this process, water is forced through a membrane with very small openings which filter out the chloride compounds. Brackish water desalination is less expensive than seawater desalination because the lower salt concentrations reduce the energy requirements for membrane filtration and chemicals. A plant can generally use a "low-pressure" filtration process for water that has less than 4,000 parts per million. In contrast, desalination of water with more than 4,000 parts per million (seawater) is significantly above this level and must generally use a "high-pressure" system, which requires much more energy to accomplish the same objective. As noted above, the SWUCA provision is limited to the much more expensive seawater desalination process. Brine Disposal and Other Permitting Issues 1094. Desalination necessarily involves the disposal of a brine by-product. A primary factor affecting the implementation of any desalination project is the utility's ability to lawfully dispose of the brine by-product. DEP is the disposal. state agency responsible for permitting such 145 1095. It is not clear whether the District would require a WUP applicant's feasibility study to include an investigation of the applicant's ability to obtain permits from DEP for a desalination facility and reject disposal system. 1096. Current methods of disposing of brine concentrate include deep well injection, surface water discharge, and land application. Each of these methods has shortcomings. Surface water discharge is often unacceptable because of environmental concerns. Deep well injection involves many unknowns and is very controversial. Land application has never been considered a viable alternative in Florida because of the amount of salt and water that must be disposed. 1097. Some existing brackish water desalination facilities within the District have encountered permit compliance problems relating to the toxicity and/or level of radioactivity in their discharge. District staff, in particular Deputy Director Mark Farrell, have been working with DEP and the Federal EPA to address issues surrounding the possible disposal of brine by-product into the Gulf of Mexico. In cooperation with the Electric Power Research Institute and others, Mr. Farrell co-chaired a "Desalination and Reuse Committee," which prepared reports on disposal methods. The committee funded a project that reconfigured the EPA plume discharge model so it was capable of modeling a brine discharge and then submitted the model to EPA and DEP for consideration. In addition, a study was undertaken relating to toxicity issues which demonstrated that the source of toxicity was salinity. The study concluded that through dilution with existing seawater or other sources, or establishment of a mixing zone, toxicity issues could be resolved. Prior to this study DEP did not have specific data to show how much pre-dilution would be necessary. 1098. In a letter to Mr. Farrell dated April 12, 1995, DEP acknowledged that ocean disposal may be a viable way to dispose of brine through existing DEP rule criteria involving pre-dilution mixing and mixing zones, or a combination of both. In this letter, DEP commented on the pilot study concerning brine disposal and indicated that, in concept, "seawater brine discharge can be managed to meet [DEP's] water quality standards and is manageable and permittable with appropriate conditions under current [DEP] point source discharge criteria. It should be understood that any permit approvals are site specific and other conditions may apply." 1099. This April 12, 1995 letter only addresses toxicity issues associated with reject brine disposal and does not address other environmental problems potentially associated with desalination. 1100. Thus, while it now appears it may be possible to obtain a permit for brine disposal, other uncertainties are involved. For example, a seawater desalination plant would almost certainly have to be located on coastal property, which could be very expensive and raises complex environmental permitting issues that could include the possibility of a third- party challenge making it virtually impossible to accurately determine the feasibility of a project. Site-specific Issues 1101. The construction of a desalination plant necessarily involves site-specific issues including the selection of plant location and size, and the techniques to be employed. Permitting issues related to brine disposal, pipelines, dredge and fill, and wetlands, as well as other possible environmental concerns such as mangroves and "Outstanding Florida Waters" are often dependent on the site. 1102. Notwithstanding the site-specific matters, there are many major factors affecting the feasibility of desalination that are common for any such facility. Ultimately, the determination of whether to proceed with such a facility should be made on a regional (or larger) basis as part of an overall management and resource development plan and should not 146 be imposed upon individual permit applicants. 1103. A thorough investigation of the potential for desalination to help alleviate the stress on groundwater supplies is certainly a laudatory goal that the District should encourage and pursue. However, the District's determination of whether to grant an application for the consumptive use of water from an existing resource must be based upon the statutory three-prong test. As discussed in the Conclusions of Law, this test in its current form does not authorize the imposition of a requirement on certain classes of applicants to incur significant and undefined expenses to evaluate the potential of desalination when there is no facility currently producing excess desalinated water and no such facility is even in the planning process. 1104. The District contends that "if all alternative conservation measures for reducing demand and/or obtaining alternative supplies, such as reuse, have been exhausted, the District believes that the public supply applicant must make a growth management decision. It is not the District's intent to compel applicants to utilize an alternative source, such as reuse or desalination, but the District believes that it cannot allocate additional water supplies from sources where the water is no longer available." See, District's proposed findings of fact No. 778, p. 291. 1105. When the demand for water from a particular resource, exceeds the safe yield of that resource, Chapter 373, F.S., provides some alternatives to a district. See e.g., Section 373.242, F.S. As discussed in the Conclusions of Law, the current regulatory framework established in Chapter 373 does not authorize classes of users or potential users to be singled out to bear the total cost of developing alternative sources. Proposed BOR Section 3.1 ("REPORTING ALTERNATIVE SOURCE QUANTITIES WITHIN THE SWUCA") 1106. The SWUCA Rules include a proposed new sub- subsection which would be part of Section 3.1 of the Basis of Review and would require all permittees in the SWUCA that generate treated wastewater to submit an annual "Alternative Source Supplier Report." In addition, permittees who receive reclaimed water would be required to submit detailed reports to the District. The proposed provision states the requirements will be implemented by "attaching a permit condition to all applicable permits." 1107. This proposal is intended to provide the information necessary for the District to match suppliers of reclaimed water with demand. The District has actively tried to facilitate such coordination. It has developed maps which outline where wastewater treatment plants are located, how much wastewater is being generated and how much is available for reuse. 1108. This proposal is also intended to enable the District to obtain the information necessary to meet the reporting requirements of Section 373.250(6), F.S. This statute places responsibility on the water management districts to report and inventory the use of reclaimed water. In addition, the State Water Policy directs that reuse programs be established in water resource caution areas. See, Rule 62- 40.401(5), F.A.C. 1109. Pinellas argues that Section 373.250, F.S., does not require the District to provide DEP with all of the specific details that would be required by the proposed SWUCA Rule. Pinellas claims some of the information required by the proposal is arcane and is expensive and burdensome to provide. Similar provisions have been in place since the inception of the ETB WUCA, NTB WUCA and HR WUCA with no apparent problems. The District can require from permittees the information necessary to prepare the legislatively mandated reports. Pinellas has not met its burden of showing how the proposed rule unreasonably or arbitrarily requires permittees to provide information that is not related to these reports. Under a WWTP operation permit, a utility is required to provide quarterly reports to DEP concerning its reuse system. While there may be some duplication in the information the District is requiring Pinellas has not established that the District's requirements are arbitrary or otherwise invalid. 1110. Pinellas also complains that the provisions are vague and/or overbroad because they refer to "stormwater" without defining this term. Pinellas speculates that the term could be broadly interpreted so that any WUP permittee who receives stormwater discharge onto its property from some upstream piece of property would have to monitor and report all amounts of stormwater received. However, if the rules are read in context, it is apparent that Pinellas' concerns are not warranted and they do not provide a basis for invalidating the proposal. 1111. Pinellas' remaining challenges to this provision are rejected. In particular, the contention that this provision conflicts with or contravenes Sections 373.250 and 403.064 is without merit. The nature and limitations of the District's duties under those statutes are discussed in Section VII G above. Challenges to Other Existing Rules Rules Concerning Modification and/or Revocation of Permits - Rules 40D-2.331(3) and 40D-2.341 Modification 1112. Rule 40D-2.331(3), F.A.C. provides as follows: The Governing Board shall order the modification of any permit if it is shown that the use Rule 40D-2.301. 1113. Under this rule, the District contends it can reduce or even completely eliminate the permitted water allocation of an unexpired water use permit. As of the date of the hearing, the District had never actually recalled a WUP for modification of the permitted quantity. 1114. Pinellas claims that this rule runs afoul of Section 373.239(1), F.S., which allows "a permittee" to seek modification of an existing permit. 1115. Section 373.239, F.S., provides as follows: A permittee may seek modification of any terms of an unexpired permit. If the proposed modification involves water use of 100,000 gallons or more per day, the application shall be treated under the provisions of Section 373.229 in the same manner as the initial permit application. Otherwise, the governing board or the department may at its discretion approve the proposed modification without a hearing, provided the permittee establishes that: A change in conditions has resulted in the water allowed under the permit becoming inadequate for the permittee's need, or The proposed modification would result in a more efficient utilization of water than is possible under the existing permit. 1116. As discussed in the Conclusions of Law, Pinellas incorrectly reads this statute as a total prohibition on the District modifying a water use permit on its own initiative. Revocation 1117. Rule 40D-2.341(1) provides as follows: The Governing Board shall permanently or temporarily revoke a permit, in whole or in part, at any time after notice and a hearing, if it finds that the use is no longer reasonable beneficial or is no longer in the public interest. 1118. Subsection 2 of the rule lists five factors for determining whether a use is no longer reasonable beneficial or in the public interest. This subsection provides that the District Governing Board "shall consider": (1) any material false statement in an application or in a statement required of the user; (2) any willful violation of the terms or conditions of the permit; (3) any violation of Chapter 40D-2 which is not resolved; (4) non-use of the water for 2 years or more unless due to extreme hardship; and (5) whether the withdrawal causes "significant adverse impacts" to the water resources, environmental systems, or existing legal users, and the Permittee does not modify the activities or satisfactorily mitigate the impacts. 1119. Section 1.13 of the Basis of Review corresponds to Rule 40D-2.341 and includes similar grounds for revoking a permit. It states that a WUP may be revoked, following notice and hearing, for the following reasons: (1) non-use of the water granted in the WUP for a period of at least 2 years, unless the permittee can demonstrate extreme hardship; (2) false statements by the permittee in the WUP application or supporting materials; (3) if the withdrawal of water causes significant adverse impacts to the water resources, environmental systems, or existing legal users, and the permittee does not modify the activities or satisfactorily mitigate the impacts; and (4) if the permittee willfully violates any of the terms or conditions of the WUP or any provision of Ch. 40D-2, F.A.C. 1120. Pinellas contends that Rule 40D-2.341 and BOR Section 1.13 "exceed the District's rulemaking authority, and/or enlarge, modify, or contravene the specific provisions of law implemented." In this regard, Pinellas argues that Section 373.243, F.S., is the only specific provision in Chapter 373 that authorizes the reduction or termination of permitted water allocations before the permit expires. 1121. Section 373.243, F.S., provides as follows: The governing board or the department may revoke a permit as follows: For any material false statement in an application to continue, initiate, or modify a use, or for any material false statement in any report or statement of fact required of the user pursuant to the provisions of this chapter, the governing board or the department may revoke the user's permit, in whole or in part, permanently. For willful violation of the conditions of the permit, the governing board or the department may permanently or temporarily revoke the permit, in whole or in part. For violation of any provision of this chapter, the governing board or the department may revoke the permit, in whole or in part, for a period not to exceed 1 year. For nonuse of the water supply allowed by the permit for a period of 2 years or more, the governing board or the department may revoke the permit permanently and in whole unless the user can prove that his nonuse was due to extreme hardship caused by factors beyond his control. The governing board or the department may revoke a permit, permanently and in whole, with the written consent of the permittee. 1122. Pinellas claims that the District's rules include reasons for revocation of WUPs which are not included in Section 373.243, F.S., and the statute includes reasons for revocation of WUPs which are not included in the rules. These issues are discussed in the Conclusions of Law. 1123. In evaluating the District's rules regarding modification and revocation of permits, it must be kept in mind that the District has broad authority to adopt a permitting program consistent with the public interest. Section 373.219, F.S., allows imposition of permit conditions to assure that a use is consistent with the overall objectives of the District and is not harmful to the water resources of the area. This authority must be exercised within the statutory framework, which was intended to provide users with a reasonable degree of certainty as to their rights for the specified permit term. 1124. Pinellas complains that the District's rules do not define what is meant by a "significant adverse impact" to water resources as used in Rule 40D-2.341(2)(e) and BOR Section 1.13. Pinellas points out that these provisions refer to "significant adverse impacts," whereas Rules 40D-2.301(1)(b), (c), (h), and (i) use the terms "adversely impact" or "adverse environmental impacts." These contentions are not persuasive. While reasonable hydrologists could differ as to whether a particular impact constitutes a "significant adverse impact" to water resources, the rule is not invalid simply because it provides some latitude for the exercise of professional judgment. Standard permit conditions - Rule 40D- 2.381(3) 1125. To implement Section 373.243, F.S., the District has adopted by rule a number of standard permit conditions. These standard permit conditions are found in Rule 40D-2.381, F.A.C. The District places these standard permit conditions on every WUP it issues. The District also has special permit conditions that it will place on a WUP depending on the particular circumstances. 1126. Rule 40D-2.381(3)(a) provides in pertinent part as follows: Every permit acquired under this Chapter shall include the following standard conditions which impose certain limitations on the permitted water withdrawal: If any of the statements in the application or supporting data are found to be untrue and inaccurate, or if the permittee fails to comply with all of the provisions of Chapter 373, F.S., Chapter 40D or the conditions set forth herein, the Governing Board shall revoke this permit in accordance with Rule 40D-2.341, following notice and hearing. This permit is issued based on information provided by the permittee demonstrating that the use of water is reasonable and beneficial, consistent with the public interest and will not interfere with any existing legal use of water. If, during the term of the permit, it is determined by the District that the use is not reasonable and beneficial, in the public interest, or does impact an existing legal use of water, the Governing Board shall modify this permit or shall revoke this permit following notice and hearing. * The permittee shall mitigate, to the satisfaction of the District, any adverse impact to existing legal uses caused by withdrawals. When adverse impacts occur or are imminent, the District may require the permittee to mitigate the impacts. Adverse impacts include: A reduction in water levels which impairs the ability of a well to produce water; Significant reduction in levels or flows in water bodies such as lakes, impoundments, wetlands, springs, streams, or other watercourses; or Significant inducement of natural or man-made contaminants into a water supply or into a usable portion of an aquifer or water body. The permittee shall mitigate to the satisfaction of the District any adverse impact to environmental features or offsite land uses as a result of withdrawals. When adverse impacts occur or are imminent, the District shall require the permittee to mitigate the impacts. Adverse impacts include the following: Significant reduction in levels or flows in water bodies such as lakes, impoundments, wetlands, springs, streams or other watercourses; Sinkholes or subsidence caused by reduction in water levels; Damage to crops and other vegetation causing financial harm to the owner; and Damage to the habitat of endangered or threatened species. 1127. Pinellas contends that the standard permit conditions set forth in Rule 40D-2.381(3)(a), (b), (l) and (m) exceed the District's rulemaking authority, and/or enlarge, modify, or contravene the specific provisions of law implemented. 1128. The standard permit conditions challenged by Pinellas can be divided into two categories. First, subsections and (b) are challenged on the grounds that they impermissibly add new grounds to those listed in the statute for revoking a water use permit and improperly authorize the District to modify a water use permit on its own initiative. 1129. Rule 40D-2.381(3)(a) purports to authorize the District to impose a standard permit condition authorizing the District to revoke a WUP if it later finds that a statement in the application or supporting data is untrue and inaccurate or if the permittee fails to comply with Chapter 373, Chapter 40D, or a permit condition. This subsection is essentially just a reiteration of the authority granted in Section 373.243(1), F.S. While the rule does not specifically require a demonstration that a violation of permit conditions was willful, as does the statute, the rule can and should be read in pari materia with the statute. Similarly, the rule does not include the one-year revocation time limit in Section 373.243(3) for violating a provision in Chapter 373. The rule can and should be applied consistent with that limitation. 1130. Subsection (b) of the Rule purports to authorize the District to impose a standard permit condition that the District can modify or revoke a permit if it can demonstrate that the use is no longer a reasonable beneficial use, is no longer in the public interest or impacts an existing legal use of water. While this authority is not directly spelled out in the statute, the District claims it is consistent with the broad authority granted to it to regulate the resource in the "public interest" and to ensure the viability of the resource. Authority for this condition can also be found in Section 373.171, F.S., which authorizes the District to prevent uses which have ceased to be reasonable-beneficial. However, this authority is limited by subsection (3) of the statute which provides that no modification of an existing use can be required unless it is shown that the use to be modified is detrimental to other water uses or to the water resources of the state. 1131. Section 373.175(2), F.S., authorizes the District to declare water shortage areas and impose restrictions on "one or more uses of the water resource as may be necessary to protect the water resources of the area from serious harm." When the District utilizes this statute and declares a water shortage area, the District's decision to revoke or modify a permit must be reviewed in the context of the regional regulatory decisions. As discussed in more detail in the Conclusions of Law, it is sometimes difficult to reconcile the various statutory provisions while also recognizing the broad grant of rulemaking authority to the District. To the extent possible, the statutory provisions should be construed in a manner that gives meaning to each provision. 1132. Second, with respect to subsections (l) and (m) of Rule 40D-2.381(3), as set forth in Sections VI H and I and in the Conclusion of Law, these provisions grant unbridled discretion to the District because they purport to require a permittee to mitigate certain impacts "to the satisfaction of the District" without any basis for meaningful review. The District contends that, because the exercise of its discretion is subject to the Administrative Procedures Act, Chapter 120, F.S., it is acceptable. However, without a delineation of the factors that will be considered and the standards that will be utilized, there is no basis to evaluate the exercise of that discretion. In view of this conclusion, the other challenges to these provisions are moot and merit only brief discussion. 1133. Pinellas contends that the permit conditions contained in subsections (l) and (m) are invalid because they require a permittee to mitigate withdrawal impacts that are not directly the result of interference with existing legal uses of water, and/or are not based upon a minimum level or flow established pursuant to Section 373.042 or the reservation of a quantity of water pursuant to Section 373.223(3). Pinellas also contends that these conditions elevate property boundaries and land ownership to a level not permitted by Chapter 373. These contentions are not persuasive for the reasons set forth in Sections VI-B, VI-E and in the Conclusions of Law of this Final Order. 1134. Rule 40D-2.381(3)(b) appears to give the District the authority to revoke any permit for impacting a legal use of water. However, the testimony indicated that, under the District's interpretation of the three prong test, permits for existing uses of water that predated the advent of the water use permitting program are deemed to automatically meet the provision regarding interference with legal uses. Assuming that this interpretation is valid, Rule 40D-2.381(3)(b) creates an ambiguous situation where the permit condition could require mitigation even when the permittee, under the District's statutory interpretation, would not have to be concerned about its impacts on other uses. Such a scenario is unacceptably vague and ambiguous. Modification of Existing Permits in the NTB - Rule 40D-2.801(3)(c)3 1135. Rule 40D-2.801(3)(c)3 provides as follows: 3. All water use permits within the [Northern Tampa Bay] water-use caution area are hereby modified to conform with this Rule, and applicable permit conditions specified in "Section 7.3, Basis of Review for Water Use Permit Applications" are incorporated into all Water Use Permits within the Water-Use Caution Area. 1136. In BOR Section 7.3, the District set forth special water use permitting rules for the NTB WUCA. This section provides, in part, as follows: ...As of the effective date of this rule, all existing water use permits within the Water Use Caution Area are modified to incorporate the applicable measures and conditions described below. Valid permits, legally in effect as of the effective date of this rule, are hereafter referred to as existing permits. Applicable permit conditions, as specified below, are incorporated into all existing water use permits in the Water Use Caution Area and shall be placed on new permits issued within the area. However, both the language and the application of any permit conditions listed may be modified when appropriate.... 1137. These provisions were implemented by written notice to all permittees within the NTB WUCA that their permits were being modified and that they would be subject to the NTB WUCA rules. The notice included a Notice of Rights advising the permittee of the right to request an individual hearing to contest these modifications. No such requests were filed. 1138. As part of its challenges in this proceeding, Pinellas has alleged that the District lacks authority to adopt a rule modifying permits in this manner. Pinellas argues that such modifications cannot be made absent a request from the permittee or a demonstration that the water use is detrimental to other water users or to water resources. The District argues it must have the ability to modify permits without the permittee's consent in order to correct unanticipated problems. Without such authority, the District says it would be unable to address potentially serious impacts that may arise when, for example, the computer modeling done during the permit review process proves to have been inadequate to predict actual impacts. As discussed above and in the Conclusions of Law below, Pinellas' interpretation of the statutes is overly restrictive. The District clearly has authority as part of a declaration of a water resource caution area to modify classes 147 and/or individual permits. D. Water Shortage Declarations - Rule 40D- 2.511 In general 1139. Pinellas has challenged the District's rules regarding the establishment of water use caution areas. 1140. Rule 40D-2.511, F.A.C., provides as follows: The Board in accordance with Chapter 40D-21, may declare a water shortage exists within all or part of the District when insufficient water is available to meet the needs of the users or when conditions are such as to require temporary reduction in total use within the area to protect water resources from serious harm. The Board may impose such restrictions on one or more users of the water resources as may be necessary to protect the water resources of the area from serious harm as set forth in Part VI of Chapter 40D-21. 1141. The District has adopted additional water shortage regulations in Chapter 40D-21, F.A.C. Rules 40D- 21.531, 40D-21.541 and 40D-21.571 designate classes or classifications of water sources and water use that can be used to implement water shortage restrictions under Rule 40D-2.511. Chapter 40D-21 does not provide for regulation or restriction of individual permits or permittees. However, the District interprets Rule 40D-2.511 as including such authority. 1142. There are different sections in Chapter 373 that provide authority to the districts to declare water shortages and/or issue emergency orders. Rule 40D-2.511 cites only Section 373.246, F.S., as the law being implemented. In challenging this rule, Pinellas argues that the cited statute only authorizes the District to impose restrictions on one or more "classes of water uses". See, Section 373.246(3), F.S. Pinellas argues that the District must adopt and utilize a classification of water uses in order to impose any restrictions under this statute. 1143. In support of its rule, the District points to, among other things, its authority under Section 373.175(2), F.S., which authorizes the governing board to impose restrictions "on one or more users of the water resource as may be necessary to protect the water resources of the area from serious harm." The District argues that this statutory provision should also be considered in evaluating the challenged 148 rule. 1144. It is not clear why two separate statutory sections exist regarding the authority of the District to declare water shortages and/or emergency orders. To the extent possible, the statutes should be interpreted consistently. While Section 373.246(3) references "classes" of water use and Section 373.175(2) authorizes the imposition of restrictions on one or more individual uses, there appear to be no other pertinent substantive differences between the two statutory provisions. Pinellas' interpretation that the District cannot impose restrictions on individual users would create an inconsistency. 1145. Pinellas' also contends that Rule 40D-2.511 contravenes Section 373.171(2), which Pinellas argues creates a prioritization that requires the District to impose restrictions on more recent uses of water before any restrictions can be imposed on long-standing uses. Section 373.171(2) requires the District's rules to "act with a view to full protection of the existing rights of water in this state insofar as is consistent with the purpose of this law." [emphasis supplied]. The purpose of the law clearly includes the protection of the water resources. (See e.g., Section 373.171(3) which prohibits "any modification of existing use or disposition of water in the district unless it is shown that the use or disposition proposed to be modified is detrimental to other water users or to the water resources of the state.") 1146. Moreover, as discussed in more detail in the Conclusions of Law below, the Legislature in adopting the Water Resources Act in 1972, mandated that all uses of water be regulated through a permitting scheme. While Section 373.171 predates the adoption of the Water Resources Act, it must be interpreted consistently with that statute. A prioritization of users based upon the date a use began is not clearly evident in the statute and, in fact, would be contrary to the legislative scheme to regulate uses based upon permits of specific duration with a goal towards allocating water to those uses most in the public interest. 2. Rules 40D-2.801(2)(e) and (f) 1147. Pinellas has also challenged some of the factors that the existing rules direct the Governing Board to consider in declaring a water shortage and/or establishing a water use caution area. 1148. Rule 40D-2.801(2)(e) provides as follows: In determining whether an area should be declared a water use caution area, the Governing Board shall consider the following factors: * Offsite land uses; and Other resources as deemed appropriate by the Governing Board 1149. Pinellas contends that subsection (e) of the rule exceeds the District's grant of rulemaking authority in Section 373.171 by authorizing the District to consider offsite land uses in deciding whether to establish a water use caution area. Pinellas has not proven that this rule elevates property boundaries and land ownership to a level not permitted by Chapter 373. In order to fully assess the nature and extent of a water crisis, its likely impact and duration, and possible ways to resolve it, the District must have the authority to consider land uses in the area. 1150. Pinellas contends that subsection (f) of this rule is unduly vague and would authorize the Board to consider non-water related resources. This provision was intended to provide the Board with flexibility since it is impossible to fully anticipate all of the factors that may be involved in a water shortage. This provision ensures that the Board's consideration of a factor that is not specifically delineated in the rule will not serve as a basis for invalidating the Board's action. The Board's action is subject to review pursuant to Section 373.175(4) and 373.246(8). Pinellas has not carried its burden of showing that this provision is vague, arbitrary or otherwise invalid. Challenges of Non-Rule Agency Statements Inverse Presumptions 1151. Some Petitioners have alleged that the District's application of the inverse of the presumptions contained in the Basis of Review constitutes non-rule policy F.S. which contravenes Section 120.535, 149 The District contends that each individual presumption is only part of its overall analysis and that the presumptions in the Basis of Review provide applicants with some guidance as to the quantum of proof necessary to obtain a permit. According to the District, the presumptions and their inverse lay out an acceptable method for evaluating water use permit applications for compliance with Rule 40D-2.301 and the Basis of Review while enabling it to efficiently process water use permit applications without undue expense or technical burden on either the applicant or the District staff. 1152. The findings in Sections III a 3 c and VI A 6 above regarding the District's general use of presumptions are applicable to the application of the inverse presumptions and effectively render moot the Section 120.535 challenges to the inverse presumptions. However, because of the importance of the issues and the uncertainty surrounding them, the following additional findings of fact are made. 1153. The presumptions in the BOR regarding wetlands, lakes, streams and existing users are applied in the inverse. Thus, for example, while the wetlands presumptions as written states that the District presumes there is no unacceptable environmental impact if the withdrawal combined with other withdrawals will not lower the water table under a wetland by more than one foot, the District will also presume that a withdrawal of water will cause unacceptable environmental impacts if the modeled water table drawdown from the withdrawal projects that the water table will be lowered at a wetland by more than 1 foot. The District has applied the inverse of these presumptions since the revised water use permitting rules went into effect on October 1, 1989. 1154. While the District contends the inverse of the presumptions are simply the logical corollary of the promulgated statements, the scientific basis necessary to support a presumption can vary greatly depending upon which way it is applied. For example, a study of the impacts of water withdrawals from seepage lakes may support the application of a presumption that withdrawals that cause a drawdown above a certain level will result in unacceptable impacts to virtually any lake. However, the converse -- that withdrawals below that level will not have unacceptable impacts -- would almost certainly not be true. 1155. No applicant has ever successfully rebutted the District's application of the inverse of the presumptions. The Water Use Design Aids - Section C- 1 of the District's Water Use Permit Information Manual 1156. The District's use of the Water Use Design Aids in Part C of the Basis of Review has been challenged as an "agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency...." In other words, some Petitioners have alleged that the Design Aids constitute a "rule" as defined in Section 120.52(16), F.S., which has not been promulgated as required by Section 120.535, F.S. The District claims the Water Use Design Aids are merely a screening tool to facilitate the review of water use permit applications and do not constitute a "rule" for purposes of the APA. 1157. Part C-1 of the Design Aids contains a "Withdrawal Impact Analysis" which provides in pertinent part: WITHDRAWAL IMPACT ANALYSIS The District considers the following procedures acceptable methods for analyzing impacts which may result from water withdrawals. The District will perform the analysis for all applications to determine compliance with Chapter 40D-2, Florida Administrative Code, (F.A.C.). However, an applicant may use these procedures in designing a water withdrawal system so that it meets Dis cumulative analysis should be performed for all applications.... Ground-Water Withdrawals Impacts caused by ground-water withdrawals are commonly evaluated through the use of analytical and numerical models. The modeling concept is to start with a simple conservative model and to move forward in model complexity as needed. Level 1 - Basic Analysis Artesian aquifer withdrawals - Analysis is performed using the proposed peak- month quantities from a single permit application in a leaky-aquifer steady-state model that simulates only the impacts on the potentiometric surface. All performance standards are considered met and the analysis is complete if the simulation shows that: the drawdown is minimal in the potentiometric surface underneath wetlands and water bodies (generally < 1.0 feet in the northern portion of the District and < 4.0 feet in the southern portion of the District, as identified in Figure C-1, and where the 3 leakance is >0.001 gpd/ft ), and the drawdown is minimal in the potentiometric surface at the property boundary (generally < 1.0 feet in the northern portion of the District, and < 4.0 feet in the southern portion of the District, as identified in Figure C-1). The property boundary is used here as a screen against impacts to off-site water or land uses. Water Table aquifer withdrawals - Analysis is performed using proposed quantities from a single application in a model that simulates only the impacts on the water table. If the drawdown in the water table from this simulation is minimal (generally < 0.5 foot) underneath wetlands and water bodies, and at the property boundary, all Performance Standards are presumed met. Areas of Water-Quality Concern - In areas of concern for salt water intrusion, mineralized-water upconing (Figures 5-1, 5-2, and 5-3, Basis of Review), pollution inducement, or other water-quality related problems, Level 1 analysis may be omitted, and the analysis may begin at Level 2. If Level 1 screening thresholds are exceeded, Level 2 analysis is undertaken. Level 2 - Comprehensive Analysis If the impacts predicted exceed the Level 1 screening thresholds, the analysis is further developed to simulate the hydrogeology of the area. Generally, model simulations are developed with one layer per aquifer, a 90-day peak withdrawal period and no rainfall. However, other factors will be considered such as on-site application of water (e.g. irrigation infiltration, percolation ponds, etc.). The results of these simulations are then used in the determination of cumulative impacts. First, the model is run using only the quantities proposed in the application being reviewed. Drawdown contours are then determined from this simulation. Artesian aquifer withdrawals - all water withdrawals located within the drawdown contours corresponding to 1.0 foot in the potentiometric surface in the northern portion of the District, or 4.0 feet in the southern portion of the District (See Figure C-1), and >0.001gpd/ft ), where the Leakance is 3 are input to the model, using quantities that correspond to the time-frame used in the first simulation. Water table aquifer withdrawals - all withdrawals within the 0.5 foot water table drawdown contour are input to the model, using quantities that correspond to the time- frame used in the individual model. The drawdowns are then evaluated to determine whether the application meets the Presumptions Renewal applications - If impacts are predicted in excess of the Presumptions a more comprehensive evaluation of the area is undertaken. This evaluation may include analysis of head differentials, site investigation of potentially impacted areas, and other relevant information. If the investigation indicates the Performance Standards are met, the analysis is complete. If Performance Standards are not met, a further investigation into the scope of the problem and the contributing factors is undertaken and appropriate measures to address these impacts may be implemented equitably among all contributing withdrawals. New withdrawals - If impacts are predicted in excess of the Presumptions, a similar comprehensive evaluation is undertaken. If the evaluation indicates that the Performance Standards are met, the analysis is complete. If the Performance Standards are not met, the applicant may address the impacts by reducing the withdrawals, relocating the proposed withdrawal points, or providing a plan for monitoring and mitigating the impacts. [Emphasis added] 1158. The Part C-1 Withdrawal Impact Analysis contemplates that a WUP applicant will use a groundwater flow model, the results of which are used to determine compliance with the presumptions and performance standards in the Basis of Review. The regulatory models typically used by the District are discussed in Section III(A)(3)(d) above. The regulatory models are generally set up to simulate a worst-case scenario such as no rainfall for a 90-day period during which maximum pumping occurs. The Design Aids provide some general guidance, but there is nothing in the rules or BOR that provide standards or guidelines for this analysis. 1159. When a WUP application is filed with the District, the District staff performs a Level 1 - Basic Analysis. Unless there is site specific information to the contrary, if the applicant passes the analysis, then the applicant is presumed to have met the Conditions for Issuance and the District generally will not do any further analysis. 1160. Under the Level 1 analysis, the District models only the applicant's proposed requested quantity of water to determine the predicted water level impacts. As suggested in the preamble to Section C-1, the District's Level 1 Analysis models the peak proposed monthly withdrawal to simulate the maximum potential impact that the proposed withdrawal would have. For artesian aquifer withdrawals, the District's Level 1 model Analysis uses a "leaky-aquifer steady-state 150 that simulates only the impacts [of the individual proposed use] on the potentiometric surface" of the aquifer. A proposed withdrawal passes the Level 1 analysis in the northern portion of the District if the modeled potentiometric surface drawdown is less than 1.0 foot under wetlands or other water bodies and at the property boundary. In the southern part of the District, the modeled drawdown must be less than 4.0 feet at the same 151 locations. 1161. The District says either the J-H Model or MODFLOW can be used for a Level 1 Analysis depending on the circumstances. A 1995 internal District Memorandum cautioned staff permit reviewers to exercise a high degree of professional judgment when considering the utilization of the J-H Model. The simplifying assumptions of the J-H Model limit its value in projecting drawdowns in areas where groundwater withdrawals affect the water table aquifer. Consequently, the J-H Model has not been used by the District since August 1992 to project drawdowns in the poorly confined portions of the northern Tampa Bay region. Neither the BOR nor the Design Aids provide any guidance or standards regarding the use of a particular model. 1162. If an applicant does not exceed the thresholds in the Level 1 Analysis, Part-C analysis, it is not clear whether or how a third party could rebut the resulting conclusions. 1163. The Level 1 Analysis can provide a basis for the District to conclude that the impact-related Conditions for Issuance have been met and can result in the issuance of permits which have not been subject to any cumulative impact analysis. The District downplays the significance of these smaller water users, but continued permitting without effective cumulative analysis has contributed to many of the resource problems in the District. In effect, the Level 1 non-rule policy effectively insulates withdrawals that fall below the threshold from cumulative accountability. Cf., Section 373.118, F.S (which requires the adoption of rules for general permits that are deemed not to have an impact. For example, in the SWUCA, where a number of relatively smaller uses have been permitted, there are now serious saltwater intrusion problems. In effect, the Level 1 non-rule policy can effectively insulate withdrawals that fall below the threshold from cumulative accountability. 1164. When the modeled potentiometric surface drawdowns exceed the applicable Level 1 threshold, then the District will apply the Level 2 - Comprehensive Analysis, which is sometimes referred to as a "limited cumulative analysis." 1165. Under the Level 2 - Comprehensive Analysis, the District utilizes a more sophisticated model simulation of the proposed withdrawal and determines the proposed withdrawals' projected one foot potentiometric surface drawdown contour. (If the applicant's withdrawal is located in the southern portion of the District, the four foot contour is used.) Then the District will include all the other permitted withdrawals located within that drawdown contour as well as all water-table aquifer withdrawals within the .5 foot water table drawdown contour and rerun the simulation with all permittees within those contours 152 included with the proposed withdrawal. The resulting modeled drawdown contours are then used in applying the BOR presumptive thresholds. 1166. The Design Aids indicate that a Level 2 Analysis should generally be run with a transient-state model simulation for a 90-day period. The simulation is sometimes run for longer periods if, in the professional judgment of the permit reviewer, it will take the system longer to respond and 153 equilibrate. 1167. The Design Aids also provide that the model should assume that no recharge is made to the source of the proposed withdrawal during the simulation period. 1168. If the limited cumulative modeling simulation (Level 2) demonstrates the presumptions are not exceeded, then the impact-related Performance Standards in BOR Section 4.0 are considered met. If the Level 2 analysis demonstrates the presumptive thresholds will be exceeded, then a more complex analysis of the permit application is undertaken by District staff. Smaller uses of water that only have to satisfy the Level 1 noncumulative analysis could theoretically impact the ability of larger uses of water to pass the Level 2 analysis because the smaller uses would be included in evaluating the larger user's impact under the Level 2 cumulative analysis. 1169. This regulatory structure can cause some anomalous results. For example, if the District examined four separate users with wells in a general area in the southern portion of the District and each of those four users did not exceed the 4 foot potentiometric surface drawdown threshold, then each of those four users would be deemed to satisfy the District's standards and would be issued a WUP. However, if the four wells were owned by one user, the model could show that the four wells produced impacts that lowered the potentiometric surface by more than four feet at the owner's property boundary, and thus this user would be deemed to have failed the Level 1 analysis and would have be subject to the Level 2 limited cumulative analysis. 1170. Under the limited comulative analysis, if there is another large user just outside the one foot potentiometric surface drawdown contour that other large user would not be included in the cumulative analysis, as it is described in Part C. The District suggests that it would be aware of such a neighboring large use and could require that the other large user be included in the level 2 Analysis. The District has no written guidelines or policies which explain the factors that will be considered in deciding whether to disregard the plain language in Part C and require the neighboring larger use to be included in the Model. 1171. The Design Aids set forth analysis techniques used by the District on virtually all water use permit applications to assist in the determination of whether the Conditions for Issuance have been met. Theoretically, an applicant is free to use methods other than the Design Aids to demonstrate compliance with the rule criteria. However, even if an applicant does not utilize the Design Aids, the District will apply the analysis to any application it receives. This is clear from the introductory language in Part C-1. 1172. Part C-1 also provides that all "Performance Standards in the BOR are met if the applicant satisfies the Part C-1 analysis." This statement and the evidence as to how the Design Aids are used compel the conclusion that the Design Aids have the effect of a rule as defined in Section 120.52(16), and therefore must be adopted through rulemaking proceedings under Section 120.54, F.S. 1173. The District asserts a number of reasons why it should not be required to adopt the Design Aids as a rule. First, the District claims it is continually developing better tools and refining its computer modeling techniques based upon post-audit data and technological advances. However, the possibility or even probability of improvements in technology and computer modeling do not render infeasible or impracticable the District's adoption of its impact analysis as a rule. 1174. The District also contends that the Design Aids only provide examples of acceptable analysis techniques and are not intended to be all-inclusive with respect to the methodologies that may be applied. The District says it must have the discretion to apply an alternative computer model when necessary to adequately determine whether a WUP applicant satisfies the impact criteria of the Conditions for Issuance. The evidence indicates the District's analysis practices have been fairly consistent over time. Moreover, the District could specify criteria or standards from which WUP applicants could anticipate how or when the Design Aids would apply. 1175. Finally, the District says proper application of the Design Aids requires the exercise of professional judgment to determine, for example, the period of time for which the computer model should be run. Although it may not be feasible for the District to detail in a rule all of the specifics regarding the manner in which Level 1 and Level 2 analyses should be conducted, the general parameters and framework regarding the application of the Design Aids can and should be adopted in accordance with the procedures set forth in Chapter 120, F.S. The rules could be drafted in a manner that would allow the District and applicants adequate flexibility to address site-specific conditions.
The Issue The issues to be determined in this case are whether proposed Florida Administrative Code Rules 62-42.100, 62-42.200, 62-42.300, and a document incorporated by reference (“the Proposed Rules”) are invalid exercises of delegated legislative authority; whether the Department of Environmental Protection (“DEP”) complied with statutory requirements regarding preparation of a statement of estimated regulatory costs (“SERC”) for the Proposed Rules; and whether the approval by the Governing Board of the Suwannee River Water Management District (“SRWMD”) of a document entitled “Recovery Strategy: Lower Santa Fe River Basin” (“Recovery Strategy”) is invalid because it required rulemaking.
Findings Of Fact The Parties The Alliance is a Florida not-for-profit corporation with its principal place of business at 203 Northeast First Street, Gainesville, Florida. Its mission is to ensure the restoration, preservation, and protection for future generations of the ecosystems along the Ichetucknee River, including its associated springs. The Alliance has approximately 40 members. Seventeen members appeared at the final hearing and testified that they regularly use the Ichetucknee River and its associated priority springs for recreation, wildlife observation, and other purposes. Seventeen members is a substantial number of the total membership of the Alliance. Petitioner Still is a natural person who owns 117 acres of land in Bradford County. He uses the land primarily for timber production. He does not have a consumptive (water) use permit. He has used the Lower Santa Fe River and associated springs for recreation since 1979 and continues to visit the river and springs for this purpose. Petitioner FWF is a Florida not-for-profit corporation with its principal place of business at 2545 Blairstone Drive, Tallahassee, Florida. The mission of FWF includes the preservation, management, and improvement of Florida’s water resources and wildlife habitat. In the parties’ Pre-Hearing Stipulation, FWF identified Manley Fuller, its President, as its witness for organizational standing. It also listed “standing witnesses as needed,” but did not name them. At his deposition, Mr. Fuller stated that he did not know how many FWF members use the MFL water bodies. At the beginning of the final hearing, FWF made an oral proffer that it was prepared to call “10 members who are using the water bodies.” Later, FWF stated that some members were unwilling or unable to come to Tallahassee, but suggested that 10 or 15 might (now) be talked into coming to the final hearing or testifying by video. FWF also proffered a membership list, showing the number of members by county. It shows that FWF has a total of 11,788 members. In the six counties in the vicinity of the MFL water bodies (Alachua, Bradford, Columbia, Gilchrist, Suwannee, and Union) there are 457 FWF members. Ten, 15, or 20 members is not a substantial number of FWF’s 11,788 total members, nor is it a substantial number of its 457 members who live in the vicinity of the MFL waterbodies. Respondent DEP is a state agency with powers and duties under chapter 373, Florida Statutes, including the power and duty under section 373.042(1), which it shares with the water management districts, to establish minimum flows for surface watercourses and minimum levels for groundwater (“MFLs”) and recovery strategies when MFLs will not be achieved. Respondent/Intervenor SRWMD is a regional water management district with powers and duties under chapter 373, including powers and duties related to MFLs. The MFL waterbodies are located within SRWMD. Intervenor SJRWMD is the water management district adjacent to SRWMD. A portion of SJRWMD is included within the planning area created for the MFL waterbodies. Intervenor NFUCG is a regional trade organization representing interests of public water supply utilities in North Florida that hold consumptive use permits and are subject to the Proposed Rules. Intervenors CCUA and JEA are two members of NFUCG. Intervenors Alachua County, Gilchrist County, Suwannee County, Bradford County, and Columbia County are political subdivisions of the State in geographic proximity to the MFL water bodies. These Counties have the duty to plan for and protect the MFL water bodies as part of their local government comprehensive planning responsibilities under chapter 163, Florida Statutes. Minimum Flows and Recovery Strategies The water management districts and the DEP are required to establish minimum flows for surface water courses. § 373.042(1), Fla. Stat. Minimum flows are “the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area.” § 373.042(1)(a), Fla. Stat. If the existing flow in a water body is below its established minimum flow, DEP or the district is required to develop a “recovery strategy” designed to “[a]chieve recovery to the established minimum flow or level as soon as practicable.” § 373.0421(2), Fla. Stat. MFLs and recovery strategies are required to be included in a water management district’s regional water supply plan. § 373.709(2)(c) and (g), Fla. Stat. Water management districts must develop regional water supply plans in regions where they determine existing sources of water are not adequate to supply water for all existing and future users and to sustain water resources and related natural systems. § 373.709(1), Fla. Stat. SRWMD does not have a regional water supply plan. It is working on a draft plan that is expected to be completed in late 2015. The MFL Water Bodies The Lower Santa Fe River runs for approximately 30 miles from Santa Fe River Rise Spring to its confluence with the Suwannee River. The Lower Santa Fe is fed primarily by groundwater discharge from the Upper Floridan aquifer including the baseflow provided by several major springs. The Lower Santa Fe River system, including its tributary, the Ichetucknee River (below State Road 27), is classified as an Outstanding Florida Water, a designation conferred on waters “with exceptional recreational or ecological significance.” See Fla. Admin. Code R. 62-302.700(3). The Ichetucknee River runs for six miles from the Head Spring to its confluence with the Lower Santa Fe. Its flow is derived almost entirely from springflow. The ecological, recreational, and economic values of the Santa Fe and Ichetucknee Rivers are widely recognized. Both rivers flow through lands preserved for public use as part of the State Park System. SRWMD published a Water Supply Assessment in 2010 to determine whether water demands could be met for the 2010-2030 planning period without adversely affecting natural resources. The North Florida Groundwater Flow Model was used to evaluate groundwater withdrawals and their effect on aquifer levels and the flows in springs and rivers. The 2010 assessment concluded that groundwater levels of the Upper Floridan Aquifer in the eastern and northeastern portions of the District were in decline. The District’s analysis of river and streamflows also found declining trends. It was concluded that existing water sources would not be able to meet projected water demands over the planning period. As a result, the Lower Santa Fe River Basin (including the Ichetucknee River) was designated as a water supply planning region and SRWMD began to develop minimum flows for these water bodies. Because groundwater withdrawals within the adjacent SJRWMD were also affecting the MFL waterbodies1/, DEP, SRWMD, and SJRWMD entered into an interagency agreement in 2011 to work together on water supply issues and the development of a joint regional groundwater model. Development of the Minimum Flows The procedural difficulties faced in establishing minimum flows affected by water uses in two water management districts eventually lead to the Legislature’s creation of section 373.042(4) in 2013, which authorizes DEP to adopt relevant rules which can be applied by the water management districts without the need for their own rulemaking. In June 2013, SRWMD requested that DEP adopt minimum flows for the MFL waterbodies pursuant to the new law. A gage2/ for the Lower Santa Fe River near Fort White, and a gage for the Ichetucknee River on US 27 were selected for establishment of the respective minimum flows. The minimum flows were determined by first establishing a hydrologic baseline condition at the two gages. Then, SRWMD determined a departure from the baseline that would cause significant harm to the water resources and ecology of the area. The minimum flows are expressed as stage duration curves rather than a single number, in order to account for the changes in flow that occur naturally due to seasonal, climatic, and other factors affecting rainfall. Once the minimum flows were determined, SRWMD evaluated whether they are being met. It concluded that the minimum flows are not being met. Therefore, in accordance with section 373.0421(2), a recovery strategy had to be prepared and implemented. The Recovery Strategy A recovery strategy is a plan for achieving a return to adopted MFLs and will generally include plans for developing new water supplies and implementing conservation and efficiency measures. See § 373.0421(2), Fla. Stat. The practice of the water management districts has been to also adopt regulatory measures that are used in the review of consumptive use permits as part of a recovery strategy. See, e.g., Fla. Admin. Code R. 40D-80.074. That practice was followed for the MFL water bodies. The Recovery Strategy includes planning, water conservation, water supply development, and water resource development components. These components comprise the non-regulatory portion of the Recovery Strategy. Section 6.0 of the Recovery Strategy, entitled “Supplemental Regulatory Measures,” is the regulatory portion and is incorporated by reference in proposed rule 62-42.300(1)(d). The Recovery Strategy is to be implemented in two phases and the objectives of each phase are described in Table 4-1 of the Recovery Strategy. Phase I includes adoption of supplemental regulatory measures, work with user groups to implement water conservation measures, completion of an improved regional groundwater model, and identification and investigation of water supply projects. In Phase II of the Recovery Strategy, DEP plans to use the new regional model to develop long-term regulatory measures to address regional impacts to the MFLs water bodies. In addition, SRWMD and SJRWMD would develop and implement additional water resource and supply projects. The Proposed Rules The Proposed Rules would create three sections in a new chapter 62-42 of the Florida Administrative Code. Rules 62- and 62-42.200 set forth the scope and definitions: 62-42.100 Scope The purpose of this chapter is to set forth Department-adopted minimum flows and levels (MFLS) and the regulatory provisions of any required recovery or prevention strategy as provided in Section 373.042(4), F.S. The Department recognizes that recovery and prevention strategies may contain both regulatory and non-regulatory provisions. The non-regulatory provisions are not included in this rule, and will be included in the applicable regional water supply plans approved by the appropriate districts pursuant to Section 373.0421(2) and Section 373.709, F.S. [Rulemaking authority and law implemented omitted.] 62-42.200 Definitions When used in this chapter, the following words shall have the indicated meanings unless the rule indicates otherwise: Flow Duration Curve means a plot of magnitude of flow versus percent of time the magnitude of flow is equaled or exceeded. Flow Duration Frequency means the percentage of time that a given flow is equaled or exceeded. [Rulemaking authority and law implemented omitted.] Rule 62-42.300 is where the proposed minimum flows are set forth. The minimum flows for the Lower Santa Fe River are established in rule 62-42.300(1)(a); the minimum flows for the Ichetucknee River are established in rule 62-42.300(1)(b); and the minimum flows for 16 priority springs are established in rule 62-42.300(1)(c). The minimum flows for the Santa Fe and Ichetucknee Rivers are expressed as water flow in cubic feet per second (“cfs”) at various points on a flow duration curve. The minimum flows for ten named springs associated with the Santa Fe River and six named springs associated with the Ichetucknee River are set forth as a “percent reduction from the median baseline flow contribution of the spring to the flow” at a particular river gage. This approach, which ties spring flow to river flow, was used by DEP because there is minimal flow data for the springs. Rule 62-42.300(1)(d) adopts by reference “Supplemental Regulatory Measures,” which is Section 6.0 of the Recovery Strategy. Rule 62-42.300(1)(e) states that DEP, in coordination with SRWMD and SJRWMD, shall reevaluate these minimum flows after completion of the North Florida Southeast Georgia Regional Groundwater Flow Model, which is currently under development. The rule also states that DEP will “strike” rules 62-42.300(1)(a) through (d) and adopt new rules no later than three years after completion of the final peer review report regarding the new groundwater model, or by December 31, 2019, whichever date is earlier. The Supplemental Regulatory Measures adopted by reference in rule 62-42.300(1)(d) are intended to provide additional criteria for review of consumptive use permit applications during Phase I. These measures would be applied to water uses within the North Florida Regional Water Supply Planning Area. For the purposes of the issues raised in these consolidated cases, it is necessary to discuss three categories of permit applications and how they would be treated under the Supplemental Regulatory Measures in Phase I: (1) A new permit application that shows a “potential impact” to the MFL water bodies must eliminate or offset the potential impact; (2) An application to renew a permit, which does not seek to increase the amount of water used, would be renewed for five years no matter what impact it is having on the MFL water bodies; however, if the impact is eliminated or offset, the renewal would not be limited to five years; and (3) An application to renew a permit which seeks an increased quantity of water would have to eliminate or offset the potential impact to the MFL water bodies associated only with the increase. This category of permits is limited to a five-year renewal unless the existing impacts are also eliminated or offset. See § 6.5(a)-(d) of the Recovery Strategy. Section 6.5(e) states that existing permits that do not expire during Phase I are considered consistent with the Recovery Strategy and are not subject to modification during the term of their permits. Many permits are issued for a 20-year period, so Phase I would not capture all existing permits because they would not all expire during Phase I.3/ DEP stated that existing permits may be affected by the regulatory measures DEP plans to adopt for Phase II. Section 6.5(f) of the Supplemental Regulatory Measures states that permittees are not responsible for impacts to the MFL water bodies caused by water users in Georgia, or for more than the permittee’s “proportionate share of impacts.” The record evidence established that the effect of Georgia water users on the MFL water bodies is small. Section 6.6(b) requires permits for agricultural use in the counties surrounding the MFL water bodies to include a condition requiring participation in the Mobile Irrigation Lab (MIL) program. The purpose of SRWMD’s MIL program is to improve the efficiency of irrigation systems. SRWMD provides cost- sharing in this program. Whether DEP Must Adopt the Entire Recovery Strategy by Rule Petitioners contend that proposed rules 62-42.100(1) and (2) enlarge, modify, or contravene sections 373.042(4) and 373.0421(2) because these statutes require DEP to adopt all of a recovery strategy by rule, not just the regulatory portion of a recovery strategy. Respondents contend that it was consistent with the law for DEP to adopt only the regulatory portion of the Recovery Strategy by rule and have SRWMD approve the non- regulatory portion and implement it through a regional water supply plan. It has been the practice of the water management districts to adopt by rule only the regulatory portion of a recovery strategy and to implement the non-regulatory portion as a component of their regional water supply plans. This is primarily a legal issue and is addressed in the Conclusions of Law where it is concluded that DEP is not required to adopt the entire Recovery Strategy by rule. Whether SRWMD Must Adopt the Recovery Strategy By Rule Petitioner Still challenged SRWMD’s approval of the Recovery Strategy as violating the rulemaking requirements of section 120.54. However, Petitioner Still presented no evidence in support of his claim that the Recovery Strategy contains statements that meet the definition of a rule, but were not adopted as rules. Whether the Non-Regulatory Portion of the Recovery Strategy Will Prevent Recovery The Alliance claims that there are flaws in the non- regulatory portion of the Recovery Strategy that was approved by SRWMD, primarily related to the estimate of flow deficits in the MFL water bodies and the corresponding amount of water that must be returned to the system to achieve the minimum flows. There is unrefuted record evidence indicating that SRWMD did not account for consumptive use permits issued in the last three or four years. Therefore, the Recovery Strategy probably underestimates the flow deficits in the Lower Santa Fe and Ichetucknee Rivers and the amount of water needed to achieve the minimum flows.4/ However, as explained in the Conclusions of Law, the Alliance cannot challenge the non-regulatory portion of the Recovery Strategy in this proceeding. The Recovery Strategy, including the non-regulatory portion approved by SRWMD, is in Phase I. SRWMD can revise the Recovery Strategy at any time, and in Phase II can do so with the improved analysis made possible with the new regional model. As explained in the Conclusions of Law, the non-regulatory portion does not have to achieve recovery in Phase I. Whether the Minimum Flows are Based on the Best Information Available Petitioner Still contends that the minimum flows are not based on the best information available as required by section 373.042(1)(b). He claims that the wrong method was used to estimate streamflow, the modeling was based on a false assumption about the relationship between groundwater levels and river flows, the relationship between withdrawals and flows was not properly accounted for, withdrawals and other anthropogenic impacts were not properly distinguished, tailwater effects were not properly accounted for, and the wrong period of record was used. Petitioner Still’s arguments in this respect are based largely on his own opinions about the quality and significance of the technical data that was used and how it affects the modeling results used in establishing the minimum flows. Petitioner Still does not have the requisite expertise to express these opinions and he did not get expert witnesses at the final hearing to agree with his claims. Petitioner Still does not have an expertise in modeling to express an opinion about the ability of the model to use particular data or how the model accounts for various surface and groundwater phenomena. Petitioner Still failed to prove that the minimum flows are not based on the best available information. Whether the Proposed Rules Are Vague Petitioner Still contends the Proposed Rules are invalid because they use terms that are vague. Some of the terms which Petitioner Still objects to are the same or similar to terms commonly used in other environmental regulations, such as “best available information,” “impact,” “offset,” and “eliminate.” The term “potential impact” is not materially different than the term “impact.” The term “best available modeling tools” is not vague. It reflects the recognition that, like best available information, hydrologic models and technical information are continually being created and updated. Petitioner Still contends that the definitions of “Flow Duration Curve” and “Flow Duration Frequency” in proposed rules 62-42.200(1) and (2), respectively, are vague because they do not state whether “synthetic” data may be used in the production of the flow duration curve, or that they are based on a specific period of record. Synthetic data are numeric inputs used to account for missing data and are created by extrapolating from existing data. As an example, they can be used to satisfy a model’s need to have a water flow entry for every month in a multi-year period being analyzed when there is no actual data available for some of the months. The use of synthetic data is a regular and accepted practice in modeling and does not have to be mentioned in the rule. Flow duration curves and flow duration frequencies are calculated from data covering specific periods of record. Although the definitions of these two terms in proposed rule 62-42.200 could contain more information than is provided, the proposed definitions are not inaccurate. They are not vague. Petitioner Still contends that proposed rule 62-42.300(1)(a) is vague because it establishes the minimum flows for the Santa Fe River at a location without precisely identifying the location. The record shows that the reference in proposed rule 62-42.300(1)(a) to “the Santa Fe River near Ft. White, FL” is the actual name of the United States Geological Survey flow gage that has been in use for many years. Furthermore, proposed rule 62-42.300(1)(c), which establishes the minimum flows for the priority springs, refers to “the respective river gages listed in paragraphs 62-42.300(1)(a) and (b).” Therefore, it is made clear that the reference to “the Santa Fe River near Ft. White, FL” in proposed rule 62-42.300(1)(a) is a reference to a river gage. The rule is not vague. Petitioner Still asserts that the minimum flows in proposed 62-42.300(1) are vague because they do not identify the period of record that was used in deriving the flow duration curves which are used in the rule. He compared the wording in the proposed rule to SRWMD’s existing rule 40B-8.061(1), which identifies the technical report from which the flow duration curve in that rule was derived. A general description of flow duration curves is found in “Minimum Flows and Levels for the Lower Santa Fe and Ichetucknee River and Priority Springs” dated November 22, 2013 (“MFL Technical Document”), at page 3-6: They show the percent of time specified discharges were equaled or exceeded for a continuous record in a given period. For example, during the period 1932 to 2010, the daily mean flow of the Santa Fe River near Fort White (Figure 3-2) was at least 767 cfs, 90 percent of the time. The curves are influenced by the period of record used in their creation, but for comparison purposes between different scenarios over a fixed time period they are extremely useful. [Emphasis added.] However, proposed rule 62-42.300(1) does not give the period of record for the flow duration curves that will be used to determine compliance with the minimum flows for the Lower Santa Fe and Ichetucknee Rivers. Respondents argued that identifying the period of record is unnecessary because anyone interested in knowing the period of record or anything else pertaining to how the flow duration curves were produced could refer to the MFL Technical Document. This is not a situation where a specific number and unit, such as 100 cfs, has been established as a criterion based on technical analyses that can be found in documents. In such a case, the technical documents are not needed to determine compliance with the criterion; they simply explain why the criterion was selected. In the case of a flow duration curve, however, the period of record for the data to be used must be known to determine compliance. For example, proposed rule 62-42.300(1)(a)1. would establish the following criterion: “3,101 cubic feet per second (cfs) for a flow duration frequency of five percent.” Five percent of what? Five percent of what data set? Data from what time period? Must the same synthetic data be used? The rule does not inform persons subject to the rule what data SRWMD will use to determine compliance. They would not know how to calculate flow duration frequencies without reviewing the MFL Technical Document. Because the minimum flows are not completely identified in the rule, they are vague. Whether a Minimum Flow Should be Established for Each Priority Spring Petitioner Still contends that the Proposed Rules are invalid because minimum flows are not established for each priority spring, which causes them to be unprotected. He claims that each spring needs its own minimum flow “that takes into account the surface and ground water inputs to its flow.” DEP and SRWMD presented evidence that establishing minimum flows for each spring was impracticable because there were insufficient data for the springs. Petitioner Still did not refute this evidence. Whether the Proposed Rules Allow Further Degradation of the MFL Water Bodies The Alliance contends that the Proposed Rules must reduce permitted withdrawals in Phase I and must require monitoring of water use by agricultural water users, but it did not present evidence that these alternative regulatory measures are practicable in SRWMD in Phase I. The Alliance did not show there are permitting mechanisms that have been used by other water management districts as part of the first phase of a recovery strategy that are practicable for use in SRWMD and would be more effective. The only evidence presented on the subject of what regulatory measures other water management districts have adopted as part of a recovery strategy pertained to the Southwest Florida Water Management District (“SWFWMD”). That evidence showed that SWFWMD took a similar approach of allowing existing permitted uses to continue their water withdrawals while new water supplies and conservation mechanisms were developed. The Alliance contends that the Supplemental Regulatory Measures do not prevent further degradation because there are projected to be numerous, new agricultural water uses in Phase I. However, under section 6.5(b), new water uses will not be allowed to adversely impact the MFL water bodies. The Alliance makes a similar argument regarding existing agricultural water users who will request an increase in water. Under section 6.5(c), increases in water use will not be allowed to adversely impact the MFL water bodies. Whether the SERC and Revised SERC are Good Faith Estimates and Whether the Proposed Rules Impose the Lowest Cost Regulatory Alternatives Petitioner Still failed to meet his burden under section 120.56(2) of going forward with evidence to support his allegations that DEP’s original SERC or the revised SERC were not good faith estimates of regulatory costs associated with the Proposed Rules. The record evidence shows they are good faith estimates. He also failed to meet his burden under section 120.56(2) of going forward with evidence to support his allegations that the objectives of the law being implemented could be substantially accomplished by a less costly regulatory alternative.
