Desal sparks war of words
Swiftmud wants Tampa Bay Water to use the plant full time. Tampa Bay Water says the plant is undergoing repairs.
By BILL VARIAN
Published June 28, 2005
In a strongly worded opinion, attorneys for the region's water regulator say a new desalination plant in Apollo Beach was always expected to run at or near full strength, full time.
The governing board of the Southwest Florida Water Management District did not pledge $85-million in taxpayer money toward the plant's construction to see it used full bore chiefly in peak-demand periods, the letter argues.
However, that is how Tampa Bay Water plans to use it now. The result will be increased groundwater pumping in the near term, a reversal to the sharp cuts the water utility has achieved in recent years.
The opinion letter goes to the Swiftmud governing board when it meets today in Brooksville. Frank L. Hearne, a consulting attorney for Swiftmud who wrote the opinion, said the board has the right to determine whether Tampa Bay Water is in breach of its funding agreement.
His letter arms the board with the legal backing to do so, if it chooses.
"We're legitimately looking out for how those taxpayer dollars are spent," said Bill Bilenky, general counsel for Swiftmud, who worked closely with Hearne in crafting the opinion.
Tampa Bay Water supplies most of Pasco, Pinellas and Hillsborough counties' drinking water. Swiftmud is in charge of safeguarding the region's water resources.
Tampa Bay Water countered with its own opinion Monday, one that weighs in at nearly twice the length of the eight-page Swiftmud letter sent out Friday. It says, in short, that there's no reason for this issue to be raised now. The desal plant is undergoing fixes and won't be fully working until at least 2007, and Tampa Bay Water isn't looking for a check from Swiftmud before then.
"The conclusion that I reach, first of all, is it's puzzling why the district is raising the issue at this time," said the utility's general counsel Don Conn.
Most of Conn's letter argues that Swiftmud has no say-so over how Tampa Bay Water runs its shop on a day-to-day basis anyway. In that regard, it directly counters the Swiftmud letter, using some of the same written agreements to do so.
Tampa Bay Water is only obligated by Swiftmud to build a set amount of alternative water sources and to ultimately reduce pumping by 2007, the letter argues. The utility has exceeded its alternative supply requirements and is already close to its 2007 target pumping reductions as a result, said Tampa Bay Water general manager Jerry Maxwell.
"It's pretty amazing what we've accomplished here," Maxwell said. "I can't imagine having a dispute over the issues they've raised."
The dispute arose in recent months after Tampa Bay Water officials unveiled a budget planning tool to chart out what mix of water sources to use in the coming years. In explaining the computer modeling system, water officials revealed they plan to use the desal plant to produce an average of 15-million gallons daily in future years.
The desal plant was built with the expectation that it could produce 25-million gallons of drinkable water daily, though the fixes are needed to reach that amount. Its total cost is expected to reach $140-million.
Assuming the fixes work, Tampa Bay Water says it doesn't plan to run the desal plant at full capacity all the time and isn't required to. Instead, groundwater pumping will increase an average 14-million gallons daily.
Groundwater pumping is cheaper, officials with the utility say. There has been plenty of rain, which seeps into the ground. The pumping will allow them to fill up a new reservoir in eastern Hillsborough.
But excessive groundwater pumping was at the heart of Tampa Bay's water wars of the 1990s, when drying wetlands and lakes caused a huge public outcry. Officials in Hillsborough County are particularly concerned about a perceived backtracking.
"Just to say we've had a rainy year or two allows us to go to harmful groundwater pumping, that's illogical," said Kathy Castor, chairwoman of the county's Environmental Protection Commission.
Hearne contends in his opinion that all of the agreements that led to construction of the desal plant made clear it was expected to run at full capacity all the time to decrease the need for groundwater. He cites the permit that enabled construction of the desal plant and the agreements that spelled out who would pay for it.
Further, he notes that the 1998 agreement that created Tampa Bay Water clearly requires that officials with the utility submit its annual operating plan to Swiftmud, giving it say-so in the matter. Bilenky added that it would seem like a reasonable courtesy.
"You just don't unilaterally do it," he said.
Hearne further contends that his reading of the documents is in keeping with what Tampa Bay Water officials have said themselves - that they intend to use the desal plant as part of their main supply, and use groundwater to meet peak demand.
Maxwell said Monday that that was true until 2002, when Tampa Bay Water took over ownership of the plant from the private companies that built it. Before then, the utility was obligated to buy 25-million gallons daily from the desal plant.
However, a year after the purchase, in April 2003, Maxwell stood before Swiftmud board members and told them the utility still planned to use the desal plant at 25-million gallons daily. It came up as he was describing the sources of water his utility would rely on first before pumping water from underground.
"The fixed supplies," he called them. "Things like the 25 (million gallons daily) from seawater desal."
Maxwell said Monday he didn't remember the presentation, that it was one of many given at the time.