Water District Wins on Appeal

BY Victor Hull Sarasota Herald-Tribune staff writer

SARASOTA, Fla., Sept. 7, 2000 — Southwest Florida's water managers have broad power to force local governments and utilities to conserve water to protect the environment, a state appeals court has ruled.

In a landmark decision, the 2nd District Court of Appeal declared that the water managers can compel water suppliers to pursue recycled waste water and purified salt water, both more expensive alternatives to Southwest Florida's overpumped ground water reserves.

In addition, utilities seeking water-use permits can be required to adopt water conservation rates, which require heavy users to pay more, and to meet criteria aimed at protecting wetlands, wildlife and other natural resources.

The decision put an exclamation point on a multimillion-dollar legal fight that has complicated Southwest Florida's efforts to solve one of its most pressing problems: what to do about increasing contamination of ground water, the region's least expensive, most plentiful water supply.

That supply is regulated by the Southwest Florida Water Management District, an agency that controls water resources across a 16-county area, including Charlotte, Manatee and Sarasota.

In the early 1990s, the district proposed a series of rules aimed at reducing excessive ground-water pumping, which is causing salt water to flow inland from the coast. The proposals drew a flurry of legal challenges that have dragged on for years.

The appeals court ruling issued late last week in Lakeland could shape water policy throughout the state. Water managers are finding it increasingly difficult to juggle the water demands of a growing population, agriculture, industry, golf courses and other users with environmental protection.

"It's an important and significant win for us," said Southwest Florida Water Management District general counsel William S. Bilenky. "It certainly has solidified and clarified the power the district has.

"The court's ruling recognizes that our water resources have limits and have to be protected."

Environmentalists were also pleased. They said it should embolden water managers to be more aggressive in protecting natural resources.

"This makes it clear that the district has the authority to protect water and environmental resources," said Ansley Samson, an attorney with the Earthjustice Legal Defense Fund, representing the Environmental Confederation of Southwest Florida. "I think it makes it clear the district should be doing more."

But others say the ruling gives too much power to the water management district, at the expense of local governments and private utilities. Water rate regulation and decisions on which water resources to tap have typically been made by cities and counties.

"I was surprised by the breadth of the decision and how far the court went," said Ed de la Parte, a lawyer who represented Pinellas County, which had raised many of the challenges to the district's authority.

De la Parte said Pinellas and other local governments request that the district court send the issues to the Florida Supreme Court as a matter of "great statewide importance."

Supreme Court intervention would avoid conflicting rulings later by other district appeals courts, he said.

The case has already set several records in water management law.

At issue is the water management district's 1995 attempt to roll back pumping in the Southern Water Use Caution Area. Scientists determined that permits had been issued for about twice as much pumping as the aquifer can safely withstand in the area, which encompasses Manatee, Sarasota, DeSoto, Hardee and parts of Charlotte, Highlands, Hillsborough and Polk counties.

Besides pumping cutbacks, the district sought to develop new water supplies, such as sea water desalination, and to promote conservation and other measures.

Some local governments and farmers considered the rules too strict. Environmentalists said they didn't go far enough. Charlotte County joined the suit questioning the district's guidelines for pumping water from surface supplies, such as rivers.

After nine months of hearings and 16 months of review, a state administrative law judge in 1997 issued an unprecedented 730-page opinion upholding some of the proposed rules and invalidating others.

The ruling forced the district to back away from the most controversial provisions, including mandatory pumping cutbacks. But the agency appealed the administrative judge's decision undercutting the district's ability to force local government and private utilities to promote conservation, recycle waste water and protect the environment.

As the case dragged on, the district has been in limbo. It still hasn't decided what to do about the excess pumping and saltwater intrusion.

Pinellas, DeSoto, Hardee and Polk counties, along with Florida Citrus Mutual, argued before the appeals court that the district had overstepped its authority.

But the appellate judges sided firmly with the district. The court found that, in considering whether to grant a water-use permit, the district can:

Require applicants to investigate the feasibility of using recycled waste water and desalination.
Require utilities to adopt conservation rates that penalize excessive water users.
Make wholesale water customers that buy water from public utilities obtain a permit so the district can enforce its per capita water use restrictions.
Enforce all 14 conditions for issuing a permit, including prohibitions against damaging or polluting wetlands, lakes, estuaries and other resources.

The court also went out of its way to address the importance of determining the amount of water needed to keep the state's aquifers, rivers and lakes healthy. Water management districts were supposed to have set these so-called minimum flows and levels in the 1970s, but they're doing it only now.

"We recognize that the establishment and implementation of minimum flows and levels is a decision that is of the utmost importance to the citizens who live within the district's jurisdiction and one that will affect future generations," the opinion stated.