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FLWAC Rejects Challenge to Water Management District Policy Shift

Published: September 29th, 2015

By: John L. Wharton

On September 29, after an hour of public comment and legal wrangling, the Governor and Cabinet, sitting as the Florida Land and Water Adjudicatory Commission, rejected a challenge to the St. Johns River Management District’s (“SJRWMD” or the “District”) determination that some surface water withdrawals could be classified as Alternative Water Supplies.

The Petitioners’ primary argument was that the District’s actions were in violation of statute. The Petitioners also challenged the District’s actions on the basis that it had been made without sufficient public input and without due deference to water conservation. Today’s hearing was several years in the making. Petitioners’ original attempt to have FLAWAC hear their appeal was rejected, but eventually forced by Court action.

Today the Commission initially ruled that it had jurisdiction to hear the matter, and that various parties who had filed briefs should be allowed to participate as amicus but that requests to intervene in the proceeding from various parties should be denied. Among the amicus briefs was a joint brief from the remaining water management districts in support of SJRWMD.

Petitioners argued that only those alternative water supplies specifically set forth by statute could be considered as such by the various water management districts. SJRWMD countered that it was entitled to deference on its action, as a policy matter, and that the Petitioners’ reading of the statute was too narrow. The Commission accepted staff’s recommendation that the statute should not be read as narrowly as the Petitioners advocated, and that what the Petitioners characterized as an “expansion” of the statutory definition of an alternative water supply was an allowable interpretation within the plain language of the statute and an essential promotion of sound water policy. If the Commission would have accepted the Petitioner’s position, the matter could have been sent back to SJRWMD for formal rulemaking on the issue.

The inclusion of the challenged alternative water supplies in the District’s water supply plan does not grant any particular water allocation to any particular user, but it is likely to influence which water sources applicants apply for in the future, and the District’s decision on those applications.

Counsel for the Petitioners inferred in his argument that an adverse ruling would be appealed to the 1st District Court of Appeal.

 

About the Author:

John L. Wharton is a member of Dean Mead’s Litigation department and the Governmental Relations, Lobbying & Administrative Law Industry Team. He represents both public and private clients in cases from application creation to administrative litigation before state and federal agencies. He also practices general litigation in state and federal courts. Mr. Wharton has over 25 years of experience in Tallahassee practicing before and often litigating against numerous state agencies in the areas of water resource planning; permitting and regulation; mitigation banking; utility law and utility regulation; professional regulation and environmental law. He may be reached at jwharton@deanmead.com.