Adam Smith Enterprises, Inc. v. State Dept. of Environmental Regulation
| Decision Date | 22 November 1989 |
| Docket Number | Nos. 88-1223,88-1224 and 88-1242,s. 88-1223 |
| Citation | 553 So.2d 1260,14 Fla. L. Weekly 2626 |
| Parties | 14 Fla. L. Weekly 2626, 14 Fla. L. Weekly 2722 ADAM SMITH ENTERPRISES, INC., Appellant, v. STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee, and Florida Electric Power Coordinating Group, Inc., West Coast Regional Water Supply Authority, Florida Land Council, Pasco County, and Concerned Citizens of Citrus County, Inc., Appellees/Intervenors Below. ALOHA UTILITIES, INC., Interphase Inc., Phase 1, Homes, Inc., A.C. & R., Inc., Tahitian Development, Inc., Great Cypress Mobile Home Village, Inc., and Barrington, Ltd., Appellants, v. STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION and Environmental Regulation Commission, Appellees, and Florida Electric Power Coordinating Group, Inc., West Coast Regional Water Supply Authority, Pasco County and Concerned Citizens of Citrus County, Inc., Appellees/Intervenors Below. STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellant, v. ALLIANCE FOR RATIONAL GROUND WATER RULES, INC., Adam Smith Enterprises, Inc., Aloha Utilities, Inc., Interphase, Inc., Phase 1 Homes, Inc., A.C. & R. Inc., Tahitian Development, Inc., Great Cypress Mobile Home Village, Inc., and Barrington, Ltd., Appellees. |
| Court | Florida District Court of Appeals |
Chris H. Bentley of Rose, Sundstrom & Bentley, Tallahassee, for appellant/appellee Adam Smith Enterprises, Inc.
Martin S. Friedman of Rose, Sundstrom & Bentley, Tallahassee, for appellants/appellees Aloha Utilities, Inc., Interphase Inc., Phase 1 Homes, Inc., A.C. & R., Inc., Tahitian Development, Inc., Great Cypress Mobile Village, Inc., and Barrington, Ltd.
Cynthia K. Christen, Asst. Gen. Counsel, Dept. of Environmental Regulation, Tallahassee, for appellants/appellees Dept. of Environmental Regulation and Environmental Regulation Com'n.
William D. Preston of Hopping, Boyd, Green & Sams, for appellee/intervenor below Florida Elec. Power Coordinating Group, Inc.
Douglas M. Wyckoff of de la Parte, Gilbert & Gramovot, P.A., Tampa, for appellee/intervenor- /intervenor below West Coast Regional Water Supply.
Thomas W. Reese, St. Petersburg, for appellee/intervenor below Concerned Citizens of Citrus County, Inc.
This case involves consolidated appeals and cross appeals from a final order of the Division of Administrative Hearings (DOAH), invalidating certain provisions of the G-1 Rule proposed by the Florida Department of Environmental Regulation (DER) while upholding the validity of other provisions. We affirm.
In 1983, Concerned Citizens of Citrus County, Inc. (Concerned Citizens) filed a petition to initiate rulemaking for a single source reclassification of groundwater under the existing provisions of Florida Administrative Code Rule 17-3.403. In this manner, Concerned Citizens sought to have existent potable waters in Pinellas, Hillsborough, Pasco, Hernando and Citrus counties classified Class G-I groundwater, and to thereby impose the most stringent water quality protection accorded groundwaters of the state.
At a public meeting in February 1985, the Environmental Regulation Commission (ERC) deferred action on the petition of Concerned Citizens, and directed DER to review the existing G-I rule, prepare proposed revisions, and present its recommendation to the ERC.
Following the ERC directive, DER held numerous public meetings and workshops to explore different approaches to groundwater protection. As a consequence, it prepared proposed revisions to Rules 17-3.021, 17-3.403, 17-3.404, and 17-4.245, Florida Administrative Code.
In October 1986, DER published notice in the Florida Administrative Weekly of its intent to adopt these proposed rules. The notice also advised all interested parties that a public hearing would be held in December 1986 before the ERC.
In December 1986, the ERC held the public hearing at which time it considered the rules recommended by DER. During the course of this meeting, the ERC approved and adopted the rules with certain changes. These changes were duly noticed in the Florida Administrative Weekly.
In November 1986, timely petitions were filed against DER and ERC, pursuant to Section 120.54(4), Florida Statutes, challenging the validity of the proposed rules. These petitions were consolidated for hearing. 1 The issue for determination below was whether certain provisions of DER's proposed rules 17-3.021, 17-3.403, 17-3.404, and 17-4.245, constituted an invalid exercise of delegated legislative authority. 2
DER is authorized under Section 403.061(10), Florida Statutes, to group the waters of the state into classes in accordance with their present and future most beneficial uses. This section also specifically allows DER to alter or modify its classifications after public hearing. The term "waters" includes groundwater.
In 1983, DER promulgated Florida Administrative Code Rule 17-2.403(1), which grouped groundwater into four classes, G-I through G-IV. Classes G-I and G-II are designated for potable water use, and Classes G-III and G-IV are designated for nonpotable water use.
The 1983 rule on Class G-I groundwater, approved by the ERC, limited that classification to groundwater in single source aquifers. Rule 17-3.403(1). Under the existing rule, the ERC could reclassify an aquifer or portions of an aquifer as G-I within specified boundaries upon a finding that:
1. The aquifer or portion of the aquifer is the only reasonably available source of potable water to a significant segment of the population; and
2. The designated use is attainable, upon consideration of environmental, technological, water quality, institutional, and social and economic factors.
The proposed modification greatly changes what a G-I classification entails. The changes would eliminate the single source requirement for Class G-I groundwater and replace it with new eligibility criteria for designation of an aquifer segment as Class G-I groundwater. Under the proposed revisions, an aquifer segment could be classified by the ERC as G-I provided it was:
within the zones of protection of a major public community drinking water supply well(s) or well field(s) withdrawing water from unconfined or from leaky confined aquifers....
Proposed rule 17-3.403(7).
As with the existing rule, the proposed rules require that rulemaking procedures be followed to actually designate the G-I aquifer or aquifer segment at any particular location.
The scheme envisioned by the proposed rules is to provide protection to "major community drinking water supply wells" by preventing contaminants from entering the groundwater within a circumscribed radius of the wells. To accomplish this purpose, the proposed rules establish a methodology whereby two zones of protection would be established around such wells if they were withdrawing water from unconfined aquifer (an aquifer exposed to the atmosphere) or leaky confined aquifer (an aquifer in which groundwater moves vertically from the water table to the top of the aquifer in five years or less). The first zone (the inner zone) would be based on a fixed radius of 200 feet. The second zone (the outer zone) would be based on a radius, calculated under the rule's methodology ("r" formula), of five years groundwater travel time. Within the inner zone, discharges would be prohibited. Within the outer zone, certain developments which discharged to groundwater would be prohibited or restricted.
Proposed rules 17-3.403(7) and (8), respectively, set forth the eligibility criteria for reclassification as G-I aquifers and the methodology whereby the boundaries of the zones of protection are established. To this end, proposed Rule 17-3.403(7) provides:
Categories of G-I aquifers. For aquifers or aquifer segments to be eligible for potential reclassification as G-I aquifers one of the following criteria must be met:
(a) That the aquifer or aquifer segment under consideration be within the zones of protection of a major public community drinking water supply well(s) or wellfield(s) withdrawing water from unconfined aquifers or leaky confined aquifers ...
Proposed rule 17-3.403(8) provides:
Determination of the boundaries of the zones of protection.
(a) The boundaries of the zones of protection shall be based on radii from the wellhead or wellfield (if closely clustered, so that the five year zones of protection are overlapping) measured in 200 feet for the inner zone and five years for the outer zone. The radius of the outer zone shall be determined using the following formula:
r = [ QT ]
------- 1/2
[nu] [ 3.14 hn ]
where Q = permitted average daily flow from the
well (measured in cubic feet per day)
T = five years (1825 days)
3.14 = mathematical constant pi;
r = radius (feet);
h = distance from the top of the producing
aquifer to the bottom of the hole;
n = effective porosity.
For the purpose of this calculation the following effective
porosities for representative Florida aquifers will be
used:
Floridan .05 Sand and Gravel .2
Biscayne .15 Surficial .2
The Department shall use more site-specific values for "Q," "n," or "h" when available for designation of the zones of protection by the Commission.
The "r" formula defines the outer zone of protection, and calculates it as a radius equal to the distance groundwater would flow in five years toward the well. The element "T" in the "r" formula is defined as "five years (1825 days)." By its inclusion, DER proposed to circumscribe the outer zone of protection at five years groundwater travel time.
The concept of a zone of protection is premised on the theory that restrictions should be placed on discharges to groundwater within the area proximate...
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