Title: Letter re hearing on the proposed rules and regulations for SWFWMD(R)
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 Material Information
Title: Letter re hearing on the proposed rules and regulations for SWFWMD(R)
Alternate Title: In a letter re hearing on the proposed rules and regulations for SWFWMD(R), Frank Maloney attached a copy of his draft of Chap. 2 of proposed book on Model Water Resources Act to assist with problems of permits for consumptive use.
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
General Note: Box 2, Folder 1A ( SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT (Regulatory), Folder 1 ), Item 20
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00050840
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text



A,.




UNIVERSITY OF FLORIDA
GAINESVILLE. 32601


COLLEGE OF LAW '7&P4
OFFICE OF THE DEAN J y







Myron Gibbons, Esq.
P.O. Box 1363
Tampa, Florida 33601

Dear Myron:

Following the hearing yesterday on the proposed rules and regulations
of the SWFWMD(R), it occurred to us that you might be interested
in examining the notice provisions of the proposed Model Water
Use Act which we are currently developing at the University of
Florida under a grant from the Office of Water Resources Research
of the Department of the Interior. Section 2.09 on page 17 of
our draft deals with this problem. Inasmuch as you will later
be faced with the problem of permits for consumptive use of water,
Professor Ausness and I concluded that it might be better to send
you the whole of Chapter 2 of our proposed Model Act which de-
scribes a proposed permit system for an eastern jurisdiction along
with the notice provisions in Section 2.09. In the left hand
margin of the draft we have noted the sources which were consulted
in drafting the proposed material.

I hope that this may be of some help to you. Section 2.09 dealing
with application and notice could provide a means of meeting the
objection raised by Mr. Wagner at the hearing.

Personal regards.

ncerely yours,



,rank E. Maloney
Dean

FEM:mwr

cc: Dale Twachtmann, Executive Director
Southwest Florida Water Management District
P.O. Box 457
Brooksville, Florida








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2.01. Classes of Permits--for Consumptive Use,
oT,= (1) There shall be three classes of permits dividing water
resources into:
(a) contained surface water as (b) diffused surface water as defined in section 4.-
(c) ground water as defined in section 4.-
(2) The governing board shall establish appropriate stan-
dards for each class of permit.

2.02. Types of Permits.
(1) There shall be four types within each class of permits
oCrn^Ala according to water use as defined by the governing board:
(a) agricultural
A (b) industrial
(c) municipal
(d) other
(2) The governing board may create subtypes of each type of
permit, and may establish different standards for each type and
subtype. The governing board may establish a system of preferences
among the ;ipes of permits, to foster the development and conserva-
tion of the water resources of the district.

2.03. Duration of Permits.
IM rOFNdt Wcft Permits may be granted for any period of time according to
use Acr f4(ot class and type deemed proper by the governing board, but not
exceeding ten years.
Permits may be renewed for any period of time according to
class and type deemed proper by the governing board, but not
exceeding ten years.
The initiation and renewal of permits are subject to the
conditions and qualifications set forth in sections 2.06 and 2.08,
respectively.

2.04. Powers Under the Permit System.
ScA. (1) The governing board shall require permits for the
continuation, initiation, or modification of any consumptive use
of water not exempted from the operation of this Act.
(2) The governing board may, when the public int .'est re-
*I, \. ( quires, regulate the use of water within the "district uy modifying
wasA W.H ( the provisions of use permits under this section and under sections
2.02 (2) and 2.07.
(3) After notice and hearing as provided in subsection 7 of
this section the governing board may declare that a water shortage
*megrl WA,aue exists within all or part of the district. The board shall then
Ac+ SKo have the power to temporarily reclassify permits within the affected
areafor the purpose of limiting the consumptive uses of water or by
apportioning or rotating the right to consumptive use among the
water users in the affected area.
(4) (a) If the governing board determines that the exercise
of its powers under subsection (3), above, will-not adequately
MOatl Wet Use protect the public health, safety, or welfare or that the exercise
rot JJ1o of its powers under subsection (3), above, will not prevent
serious and lasting damage- to the water resources within the
affected area, it may petition the state board to have the area
declared to be in a state of water emergency.


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S (b) The state board upon receiving such a petition
. may declare ac area to be in a state of water emergency pursuant
to section 1.07 (f), (g) and (h).
(c) Upon declaration by the state board of a state
: of water emergency, the governing board may regulate the
consumptive use of all waters by the same means allowed it
under subsection (3) in cases of water shortage and, when
necessary, by completely suspending for the duration of the
water emergency all uses which it deems to be unreasonable
under the circumstances of the existing emergency situation.
(5) In the cases of water shortages and water emergencies,
all restrictions on uses under subsections (3) and (4) res-
pectively shall be of equal proportion as among permittees of
the same type and class.
(6) A state of water shortage may be rescinded by the
governing board. A state of water emergency may be rescinded
by the state board upon petition by the governing board.
(7) Notice of water shortage or emergency:
(a) When a water shortage or water emergency is
declared, the governing board shall cause notice of such state
of shortage or emergency to be published in a prominent place
within a newspaper of general circulation throughout the area.
Such notice shall be published each day for the first week of
the period of shortage or emergency and once a week thereafter
until the order declaring the shortage or emergency is rescinded
under subsection (6) above. The publication of such notice by
the governing board shall serve as notice to all water users in
the district of the condition of shortage or emergency.
(b) The governing board shall in the case of a water
shortage or water emergency notify each permitted in the district
by regular mail of any change in the conditions of his permit,
of any suspension of his permit, or of any other restriction on
his use of water.

2.05. Existing Uses.
(1) Any beneficial use existing for a period of one year
0 l,,t ending on the effective date of this Act and which use is not
exempted from the operation of this Act by section 1.04 of this
Act may be continued after the effective date of this Act only
with a permit issued as provided in section 2.09, subject to the
qualifications of subsection (2) below.
(2) Applications for the preservation of a use under sub-
section (1), above, must be made within a period of one year
from the effective date of this Act. Failure to apply for a
permit within the one-year period shall create a conclusive
presumption of abandonment of the use, and the user, if he
desires to revive the use, must apply for a permit to initiate
a use, under section 2.06.
(3) The governing board shall grant a timely request for
a permit for continuation of a use as provided in subsection (1)
above if the use is a beneficial one as defined in section
1.03 (4) of this Act.





SPBISIBHI^W^^^^









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(4) In the event that the governing board determines that
an existing use is not beneficial and refuses the owner a permit
to continue his existing use, the user shall be allowed reasonable
compensation amounting at least to reimbursement for any damages
attributable to the lessening1, of his water supply and for any-
expense which the denial causes him to incur in connection with
the lessening of his water supply.

gOroe,,t 2.06. Initiation of Uses.
(1) Any person desiring to initiate a consumptive use of
surface or ground water may do so only by obtaining a use permit
from the governing board. Such person shall satisfy the
governing board that such use is beneficial as defined in
section 1.03 (4) of this Act and allowable, under the common
law of the state as of the date of enactment of this Act, except
as authorized in subsection (2) below.
(2) The common law of the state to the contrary notwith-
standing, the governing board may allow the holder of a use permit
to transport and use surface or ground water outside the watershed
from which it is taken if tt is satisfied that the transport
and use is* n the best interests of proper utilization of the
water management district's water resources.

2.07. Modification of Permits.
DOgrrlge Any person who desires a modification of his use permit
may obtain the modification by applying to the governing board.
(1) Time of modification.
(a) A permit may be modified at the time of its
renewal under section 2.08.
(b) A permit may be modified before the time for Its
renewal.
(2) Conditions for modification.
The permitted must satisfy the governing board that:
(a) A change in conditions has resulted in the water
allowed under the permit becoming inadequate for the h
permitted's needs, or,
(b) A change in the water source used, or in the
means of using water, or in the amount of water used would
result in a more efficient and more beneficial utilization of
water than is possible under the existing permit.
(3) Method of modification.
Cet. 0terCod (a) A permitted desiring to modify his permit at the
I l7ei-In63 time of its renewal shall do so under the provisions of section
z2.08.
2.08 (b) A permitted desiring to modify his permit at a
time other than its renewal may do so by filing an application
with the governing board.
(i) Applications must contain whatever information
the governing board deems necessary whether the permit should be
modified.
(ii) The governing board shall give notice of the
application to interested state agencies and to any person who
has filed a request for notification of any hearings affecting a
designated county or geographic area.

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as-16-



(iii) If a substantial modification of the
terms of the permit is requested, or if any interested person
files a written objection within thirty (30) days of the date
of the notice, then the governing board shall set a time and
place a hearing under section 2.10.
(iv) In the absence of both of the conditions
set forth in subsection (iii) above, the governing board may
grant the modification without a hearing.

Cor ild 2.08. Renewal of Permits.
(1) A permitted desiring to renew his permit must file an
application with the governing board. The application must be
made before the expiration of the permit and may not be made
prior to one year nor subsequent to thirty (30) days before the
expiration of the permit.
(2) An application for renewal of a permit made more than
one year prior to the date of the expiration of the permit
shall not be considered by the governing board. An application
for renewal made after the date thirty (30) days prior to the
expiration of the permit but before the expiration of the permit
shall be considered by the. governing board if it is satisfied
that the failure to file on time was due to a hardship and was
not due to willful neglect on the part of the permi-ttee.
(3) If. a permitted fails to file an application for
renewal until after his permit has expired, his untimely
application shall be considered to be an application to
initiate a new use, under section 2.06.
(4) Applications must contain whatever information the
governing board deems necessary to determine whether the permit
should be renewed.
(5) The governing board shall give notice of the application
to interested state agencies and to any person who has filed a
request for notification of any hearings affecting a designated
county or geographic area.
(6) If a substantial modification of the terms of the
permit is requested, or if any interested person files a
written objection within thirty (30) days of the date of the
notice, or if the governing board determines that a change
either in the district's water supply or in its preference
system under section 2.02 (2) dictates a change in the terms
of the permit, then he shall set a time and place for a hearing
under the provisions of section 2.10.
(7) In the absence of all three of the conditions set forth
in subsection (6), above, the governing board may grant the
renewal without a hearing.
(8) In the event that a user is unable to apply for
renewal of a permit, he may make application by his agent.
(9) Subject to the provisions of subsections (1)
through (7) above, there is no limit to the number of times
a permit may be renewed.













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J.& T (1) A permit may be issued only upon the filing of a
Qo 4,PV) written application with the governing board. If the appli-
SU SA* i -*h 3qo.1*oA16 governing board shall forthwith set a date for a public
Shearing on the application, unless the section under which
the application is filed provides otherwise.
(2) Upon applying for a permit under this Act, the
C & P e* Code applicant shall cause to be published at his own expense a
Ildtt (IX alg o notice in a newspaper or newspapers having a general circu-
lation within the water management district and within each
Atxt X41MI county wherein a point of diversion lies, if there is to be a
Tor. r, 7'ro' public, hearing on the application. The notice shall be
frouw 4A.er);(C) published at least once a week for three consecutive weeks,
shk 40.o,6 .l1o the first publication to be thirty-one (31) days before the
Mar A-er 1te4 date set.
'rt Moatob) (3) The notice shall specify the number assigned the
application, the name and address of the applicant (in the
case of a corporation, the name and address of its principal
business office), the date of filing, the date set for the
hearing, the source of water supply, the amount of water
CA Uab)er applied for, the use to be made of the water, the location of
Coot (&30 the place of use, the location of the well or point of diversion
as the case may be, and such other information as the governing
board deems necessary.
(4) The notice shall state that written objections to'
r the granting of the permit may be filed with the governing
Ot0cw\ng t board no later than ten (10) days prior to the date set for
the hearing.
(5) If an objection to the application is filed and if
the permit applicant finds that, in light of the objection, he
*,.will be unable to prepare adequately for the hearing then the
governing board may, upon the applicant's written request,
delay the hearing for a reasonable time so that the applicant
may be adequately prepared.
(6) If no objection to the application is filed, the
Otiq^l1 governing board, after proper investigation by its staff, may
at its discretion approve the application without a hearing.

2.10. Revocation of Permits.
The governing board may revoke permits as follows:
(1) For any material false statement in an application
t\ to continue, to initiate, or to modify a use, or for any
material false statement in any report of statement of fact
required of the user pursuant to the provisions of this Act,
the governing board may revoke the users permit, in whole or
in part, permanently.
(2) For willful violation of the conditions of the permit,
Pr nal the governing board may revoke the permit, in whole or in part,
for a period not to exceed one year.
(3) For violation of any provision of this Act, the
{)fransI governing board may revoke the permit, in whole or in part,
for a period not to exceed one year.




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(4) For nonuse of the water supply allowed by the permit
for a period of two years or more, the governing board may
nYal ulf"-ole) revoke the permit permanently and in whole unless the user can
factors beyond his control.
f (5) When a use is no longer deemed beneficial by the
governing board, it may revoke all permits for such use, in
whole and permanently.
(6) The governing board may revoke a permit, permanently
a < and in whole, with the written consent of the permitted.
(7) In any instance where the governing board decides to
revoke a permit without the permitted's consent it may do so
only after affording the permitted adequate notice and a fair
hearing under section 2.10,














































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