Court sides with Swiftmud on water-use regulation

The ruling goes against the counties and cities that fought for six years what they viewed as intrusion into local authority.

By DAVID BALLINGRUD

© St. Petersburg Times, published September 6, 2000

A state appeals court has declared the Southwest Florida Water Management District the winner of a six-year battle with Central Florida counties and cities over the regulation of water use.

Bill Bilenky, general counsel for the district, called Friday's ruling by the 2nd District Court of Appeal in Lakeland "a clear signal to counties and cities that the district has statutory authority to protect the resource."

Edward P. de la Parte Jr., who represented Pinellas County in the matter, called the ruling "a significant expansion of the district's powers into the governmental activities of cities and counties."

In matters involving reclaimed water and desalination, de la Parte said, the powers of the district, commonly called Swiftmud, "now have no effective limits. They effectively can tell cities what to do and how to do it."

Pick Talley, Pinellas County's utilities director, said an appeal to the Florida Supreme Court will be considered.

"We'll discuss that with the County Commission and with other counties around the state," he said.

The battle began in November 1994, when Swiftmud created the Southern Water Use Caution Area, a plan to halt saltwater intrusion into the Floridan Aquifer by limiting groundwater pumping in a 5,100-square-mile area in Central Florida. The plan was challenged as an intrusion into local government matters by a number of public agencies, including Pinellas, Hardee, Polk and DeSoto counties.

In particular, the counties objected to a Swiftmud requirement that water permit holders investigate the feasibility of using reclaimed water and desalination.

They also took issue with Swiftmud's requirement that utilities adopt "water conservation rate structures," in which heavy users pay more for water.

"It was not just a matter of studying feasibility," Talley said Tuesday.

"The way the rule is written, they also reserve the right to determine whether it is feasible or not, and ultimately whether you have to use it or not."

Such power, de la Parte said, crosses "that bright line between protecting the resource and intrusion."

Not so, Swiftmud's general counsel said. "The court did not say we can tell the counties to build a desal plant," Bilenky said.

"But it did say we can tell permit holders they can't have a permit to put in another well field, to draw a lot more water, if there are sound environmental alternatives."

"No question," Talley said. "They won; we lost."

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