Polk’s Swiftmud Funding Could Be Reconsidered, Board Told

The $40 million commitment the Southwest Florida Water Management District ‘s Governing Board made to Polk County could be up for reconsideration, Executive Director Brian Armstrong told board members Tuesday.

His comment came in response to a question from board member Ed Armstrong of Pinellas County following a briefing by General Counsel Karen West on the current litigation filed by Polk County to challenge a proposed permit request by the Peace River Manasota Water Supply Authority.

“Committed funds can be changed by the board if it so chooses” Brian Armstrong said, explaining only $11.5 million of that amount has been encumbered by formal contracts. He added those contracts are performance-based.

No board member has proposed such a change.

West cautioned board members not to comment on the pending litigation, explaining they will be required to vote on a final order after the administrative law judge issues a recommended order. At that time the board will have to consider all of the evidence and legal arguments in the case.

The three-week trial in the case is scheduled for January, West said.

Board member Armstrong asked West how much the case has cost the agency.

She said the agency has spent about $130,000 as well as used “substantial” staff time, but added she expects that number will increase as depositions begin and the process proceeds. Swiftmud has reportedly budgeted up to $1 million to cover litigation costs.

This litigation involves competing claims by utilities at opposite ends of the river in connection with their long-term water-supply planning.

An attempt to resolve the dispute through mediation so far has not been fruitful, though it is still possible a settlement could be reached before the case goes to trial.



PR Battle Over Peace River Water Moves Upstream

The public relations battle over the Polk Regional Water Authority’s challenge of a water permit proposed by the Peace River Manasota Water Supply Authority is reaching our area.

Sunday, PRMWSA purchased a full-page ad in The Ledger.

The advertisement framed the current dispute in the context of the costly and contentious water wars that occurred in the Tampa Bay area for decades until it was settled 20 years ago via the creation of a regional utility called Tampa Bay Water.

However, one of the bullet points, which claims that PRMWSA is “so far downstream, they can’t affect water resources upstream” is actually at the heart of the dispute.

Polk water officials contend that if PRMWSA’s permit is approved, it would commandeer all of the available withdrawals from the river, upstream or downstream.

However, data being assembled by third parties argues any withdrawals in the upper Peace River as envisioned by Polk officials would be a bad idea anyway because aquifer overpumping and diversions of surface flow as a result of phosphate mining over the past century has diminished that section’s of the river’s ability to serve as a water supply source unless Polk officials are intent on harming the river’s ecology.

The competing arguments will get a hearing at some point and in the meantime taxpayers will get the bill.



Peace River Permitting Dispute On Tuesday Swiftmud Agenda

The ongoing legal dispute over competing requests for withdrawals from the Peace River is scheduled to be discussed at Tuesday’s Southwest Florida Water Management District Governing Board meeting.

Here’s what has happened so far, at least the part that has been publicly disclosed:

On Oct. 2, 2017, the Peace River Manasota Water Supply Authority applied to Swiftmud for a permit to increased its permitted maximum withdrawal from 120 million gallons a day to 258 mgd.

On April 24, 2018 Swiftmud officials issued a notice of its intent to issue the permit at its May 22 regular meeting. Polk officials claim they were unaware of the proposed permit until the notice was issued.

On or about May 10 Polk Regional Water Cooperative submitted permit request to Swiftmud for water withdrawals from the Peace River, Peace Creek and Alafia River.

Between May 14 and 21, the Polk Regional Water Cooperative, Polk County and the cities of Bartow, Fort Meade, Lakeland, Wauchula and Winter Haven filed challenges to halt the issuance of the permit, arguing it would foreclose their ability to use water from the river to meet their future water needs.

On Sept. 19, Swiftmud officials attended the PRWC meeting to propose an alternative future water supply consisting of wells in southeastern Hillsborough County that might become a possible new water source if a pilot project to pump treated sewage underground to create a freshwater barrier to salt water intrusion works. They set up an Oct. 3 information meeting for PRWC members to get more information.

The Oct. 3 meeting occurred, but only Davenport representatives attended following an email circulated by Ryan Taylor, PRWC’s executive director, urging members not to attend because of alleged concerns that it would interfere with a mediation meeting scheduled for Oct. 8.

The Oct. 8 closed-door mediation meeting occurred as scheduled. Swiftmud officials said the parties are at an impasse, but PRWC officials disputed that.

In the meantime, without a settlement, the case will go to a formal hearing next year. The full cost to the taxpayers will be unknown until it’s over.

Swiftmud officials have lobbied Polk officials to avoid another lengthy and costly water war, similar to those that raged in the Tampa Bay area decades ago.

The Swiftmud meeting will be held at the agency’s Brooksville headquarters, beginning at 9 a.m. You can go to Swiftmud’s website and view the meeting online.

It will be interesting to hear what board members—particularly those from the counties involved—say about this issue.

Kathleen Project Vote Sharpens Development Debate

Tuesday’s 4-1 rejection of urban density in a rural corner of the Kathleen area by the Polk County Commission highlighted the various way development regulations are interpreted here.

It was unusual that commissioners rejected both the Planning Commission’s split recommendation and the staff’s seemingly unanimous recommendation for approval.

Commissioner George Lindsey’s dissent focused on the way the rules are set up to justify and to accommodate development, which he argued should guide decision-making.

He argued that it seems inequitable that a developer should be advised how to make a project compliant with the existing regulations only to face denial.

But the reality is that in many cases the staff report reflects an effort supported by county policy to accommodate development applicants to devise a rationalization for approving applications.

The window for that rationalization is the result of the way Lindsey and his colleagues in the development community lobbied commissioners to write development regulations that contained provisions such as the one that was at the heart of Tuesday’s case.

So instead of staff report that criticized a plan that would plop 5,000-square-foot lots next to 200,000-square-foot lots, there was a staff report that emphasized a provision in the development code that authorized the ability to transfer the imaginary density on undevelopable sections of property to the developable sections through something called density bonus points.

This flies in the face of traditional philosophy that if you bought a swamp, that was your problem, not the county’s.

Lindsey called for a work session to clarify what the rules should be to provide more certainty for applicants.

But it seems that if there are regulations that guarantee approval, you might wonder why have a public hearing at all.

Perhaps what’s needed is a review that results in a development code with fewer loopholes that gives property owners in the path of new development a little more certainty.



Polk’s Permissive Development Regs At Center of Tuesday Hearing

Next Tuesday the Polk County Commission will have to deal with a roomful of angry homeowners.

The issue is a plan to use a permissive provision of the county’s development regulations to cram a subdivision with 5,000-square-foot lots in an area where many of the lots are as much as 50 times as large.

Residents appealed the case after even the developer-friendly Polk County Planning Commission split 4-3 in recommending the project’s approval.

At the heart of the dispute is something called density bonus points.

This is an oddity of Polk’s development regs that provides a windfall for property owners with land that is dominated by wetlands or other development limitations.

It reflects the inordinate influence of the development community in drafting Polk’s development regulations.

In the case of this proposed development, it works this way.

The site is 121 acres, about 73 acres of which is covered with wetlands.

This land in the Kathleen area, lies in something called the Suburban Development Area., where development density is normally limited to one home per five acres.

But a loophole in the development regulations allow applicants to cram housing lots on the non-wetlands portions of the property at the rate of one home per wetlands acre if they agree to review as a Suburban Planned Development, which allows additional conditions, such as building sidewalks and putting in street lights.

So instead of about 10 lots on the 48 developable acres, there will be 139 lots.

I predict the application will be approved because it complies with the regulations.

Until the regulations are changed, this will recur and there isn’t much anyone but the County Commission can do about it.


Peace River Mediation Reported At Impasse

Representatives from Polk Count Regional Water Cooperative, the Peace River Manasota Water Supply Authority and the Southwest Florida Water Management District met in a private mediation meeting Oct. 8 to try to work out a permitting dispute over conflicting claims to withdraw more water from the Peace River.

According to Brian Armstrong, Swiftmud’s executive director, the mediation did not produce a compromise and litigation is expected to proceed.

The clash is over conflicting plans by both regional utilities to use water from the Peace River or its tributaries to meet future projected water supply needs.

PRMWSA uses the Peace River for most of its water supply needs because developing wellfields in that coastal area and removing fresh water from that part of the aquifer would only worsen saltwater intrusion . PRMWSA has applied for a permit to double its withdrawals from the river.

PRWC authorities, who claim they didn’t know about PRMWSA’s permit until it was on the verge of being approved by Swiftmud’s Governing Board, contend granting that permit will hinder Polk’s ability to develop alternative water supplies along the Peace Creek. Polk’s plan involves diverting some of the creek’s flow into retention areas that will allow the water to recharge the aquifer. That recharge is proposed to allow Winter Haven, a member of the cooperative, to increase its pumping from existing water supply wells in the Upper Floridan Aquifer.

All of the permits involving river withdrawals are pending technical review by Swiftmud staff.

Sid Flannery, a retired Swiftmud scientist, has submitted a plan proposing to tap Shell Creek, a tributary in the lower Peace River that is not used for water supply, and pipe that water to Polk County rather than allowing withdrawals in the stressed upper Peace River. Flannery, one of the scientists involved in determining how much water the PRMWSA could sustainably withdraw from the Peace River, said the flow in the Upper Peace River has been affected by a combination of overpumping of the aquifer and disruption of surface flow to the river, resulting the river’s not meeting its state-mandated minimum flow at times.

As a result, he said using the upper Peace River for future water supplies is a bad idea that is environmentally and hydrologically unsustainable.

Thursday Armstrong issued a statement reflecting Swiftmud’s take on the current permitting dispute. Other parties will likely weigh in as this case proceeds.

Armstrong’s statement follows.

We tried everything we could to find a peaceful resolution, but the Polk Regional Water Cooperative (PRWC) seems intent on fighting a legal battle.

The PRWC filed a legal challenge to a proposed permit that would allow the Peace River Manasota Regional Water Supply Authority (PRMRWSA) to withdraw additional quantities from the Peace River. An administrative law judge ordered all parties to meet in an effort to amicably resolve the litigation. The parties agreed to engage in mediation which was held on Oct. 8th but were unable to reach an agreement. Now the focus of the parties turns to fighting a legal war rather than working together to develop water supplies.

That’s a missed opportunity and a shame. We have tried to focus on the real issue, developing water supplies, rather than wasting money on legal bills.

At the PRWC’s Sept. 19th meeting, I asked the members to put their litigation on hold to give the parties time to explore a new water supply possibility for Polk County. We’ve been working with Hillsborough County on a regional water supply solution that could benefit all parties, including the PRWC. This is a regional effort that has great potential, but it requires everyone to come to the table. We need time to discuss options and work out details, but collaborative discussion is difficult while in a hail of legal claims and counterclaims.

And if the project didn’t prove feasible, the PRWC could have simply resumed its litigation.

On Oct. 3, members of the PRMRWSA voted unanimously to put litigation on hold to work out a solution. That same day, we held an informational meeting to discuss additional details about the project being considered. Hillsborough County, the city of Tampa, Tampa Bay Water and PRMRWSA representatives, among others, attended the meeting. Unfortunately, the only PRWC members to attend were two representatives from Davenport.

Prior to the mediation session, we sent a proposed stipulation for all parties to consider that would put all litigation on hold for 12 months to allow for the further development of the water supply project with Hillsborough County. The PRWC has not agreed to this proposal.

Despite the impasse at mediation, the District remains open to substantive discussions toward resolution. However, based on our experiences to this point, that doesn’t appear to be the path being taken by the PRWC. Without the litigation on hold, we have no choice but to focus all our resources on the legal permit challenge rather than the potential water supply project. We’ve been down this road before and we know how it ends – millions of dollars wasted in payments to attorneys without generating any new water supplies.

Now we all have to be prepared to open our checkbooks again and again. The only people who profit from water wars are people who are paid to fight water wars. And that’s not in the best interests of the taxpayers or ratepayers.

Brian J. Armstrong, P.G.

Executive Director

Southwest Florida Water Management District


More Development Proposed Along Peace Creek Canal

A low-lying area along the Peace Creek Drainage Canal near the intersection of U.S. 27 and Cypress Gardens Boulevard may be the site of a future residential/commercial development, the Winter Haven Sun reports.

Various development proposals, including a regional mall, have been proposed for the site dating to the 1980s.

Despite some Winter Haven officials’ statements about protecting the Peace Creek, much of in the portion of the Peace Creek basin near U.S. 27 has been rezoned for intense development.

The project site is in the upper left of this picture, which was taken after the 2004 hurricanes.

It is obvious from this image that some serious engineering would be need to precede any development.

Watch the city agendas for public hearing dates for this project.