Title: Letter commenting on the proposed state water policies
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 Material Information
Title: Letter commenting on the proposed state water policies
Alternate Title: Letter commenting on the proposed state water policies and a copy of SWFWMD's December 3, 1980 draft of a State Water Policy
Physical Description: 12p.
Language: English
Publication Date: Dec. 30, 1980
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
General Note: Box 2, Folder 3A ( STATE WATER POLICY ), Item 14
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00051024
Volume ID: VID00001
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Holding Location: Levin College of Law, University of Florida
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Bruce Tyndall, Chairman
December 30, 1980
Page Six


significance." Regional significance is not defined. I
believe we should seek clarification of this policy and
modification of its language.

Rule 17-X.04(3)(b) (Page 6) -- provides that in de-
termining transfer of water, the Department or District
should consider the major costs and benefits for both the
supplying and receiving areas.

COMMENT: Obviously, the question of costs per se
should not be the business of the Department of Environmental
Regulation. Cost consideration should be that of the water
supplier not the water regulator.

Obviously, the benefits to Pasco County are non-existent
and if the benefits to Pasco County must be balanced with
the benefits to the receiving area, Pinellas County, the
decision must be made if the policy is to be applied that
water not be transferred from Pasco to Pinellas.

Rule 17-X.04(3)(c) (Page 6) -- provides that in de-
termining transfer of water intracounty, the Department or
District should determine whether the transfer is the most
economic method to supply water for the given purpose.

COMMENT: Again, the determination of economics should
be made by the supplier of water not the regulator. The
Department nor the District should take it upon itself to
determine whether the supply of water is the most economical
method to supply Pinellas County. THIS IS THE PINELLAS
COUNTY COMMISSION'S PREROGATIVE.

Rule 17-X.04(3)(d) (Page 6) -- requires that the
projected water needs of the supplying and receiving area
are reasonably determined and can be met if the transfer
takes place. Stated another way, the projected water needs
of a county must be met before any intracounty water transfer
may take place.
COMMENT: Obviously, the projected water needs of Pasco
County to a point in time would require the utilization of
all water in Pasco County. The rule does not designate a
time period in which "projected water needs" of the supplying
area are to be determined. This open-ended approach simply
means the cutting off of water supply from Pasco to Pinellas

Continued, please .














Bruce Tyndall, Chairman
December 30, 1980
Page Seven


County if the rule is strictly applied. This rule is
intolerable and must be resisted at all costs.

Rule 17-X.04(3)(f) (Page 7) provides that the
supplying area not be deprived of the prior right to the
reasonable beneficial use of the water transferred.

COMMENT: This rule establishes a completely new
criteria for protecting water rich counties to the detri-
ment of water poor counties. Under present law, a county
does not have the prior right to the reasonable beneficial
use of its water. The water rich county has the right to,
utilize waters being taken by another county only if all
other water supplies have been developed and are being
used by that county. This rule applies the doctrine of
"prior appropriation" to the benefit of water rich counties.
This provision must be resisted at all costs.

Rule 17-X.05(1)(a) -- provides that water resources
shall be managed such that the "safe yield" of the source
of water is not exceeded.

COMMENT: Obviously, this can be interpreted as the
Water Crop Theory. It is innocuous enough so that I am sure
the Department will argue that no water resource should be
managed beyond its "safe yield." With this, I agree. It is
the application that counts. If the Department intends to
define "safe yield" in terms which would reinstitute the
Water Crop Theory, then we must oppose this policy. I recom-
mend further clarification and modification of this provision.

Rule 17-X.05(2) -- provides that a salt water barrier
line shall be established and enforced throughout coastal
areas of the state.

COMMENT: This possibly is a good rule; however, as a
practical effect is almost impossible to attain. The salt
water barrier line has been established in Pasco County as
an estimate by the Water Management District. The cost of
establishing a salt water barrier line or even determining
whether it is being maintained is astronomical. Then there
is the problem of determining what is causing the movement
of a salt water barrier line if indeed movement is detected.
The Commission should be aware of all of these problems
attendant to the promulgation of this policy.


Continued, please .





V









Bruce Tyndall, Chairman
December 30, 1980
Page Eight


In a nutshell, I have attempted to isolate those
problem areas for the Commission. I recommend a workshop
on these subjects for the Commission with possibly a view
toward making the Commission's position known to the Depart-
ment of Environmental Regulation prior to implementation
of the policies.
Very truly,




J n T. Allen,.

JTAjr/mt
Enclosure

cc: Commissioner John E. Chesnut, Jr.
Commissioner Charles E. Rainey
Commissioner Gabriel Cazares
Commissioner Barbara Sheen Todd
Mr. Arthur R. Finney, Jr.
Mr. Fred Marquis



















December 30, 1980



Bruce Tyndall, Chairman
Board of County Commissioners
315 Court Street
Clearwater, FL 33516

Dear Mr. Chairman:

I am enclosing a two page statement of the recommendations
of the Governing Board of the Southwest Florida Water Manage-
ment District to Jake Varn, Secretary of the Department of
Environmental Regulation. This recommendation was trans-
mitted by Donald R. Feaster, Executive Director, to Mr.
Varn via letter dated December 8, 1980.

The Commission already has my comments concerning the
proposed water policies now being considered by the Depart-
ment of Environmental Regulation. The purpose of this
letter is to get the information transmitted by the Water
Management District to Mr. Varn in your hands and to bring
to your attention the fact that items 5, 10, 12, 13 and the
12 criteria for determination of reasonable beneficial use
appear to encompass the detrimental aspects of the proposed
state policies which I outlined to the Commission in my


water policy of the Department of Environmental Regulation.

Very truly,




ot T. Allen, J "

JTAjr/mt
Enclosure

cc: Commissioner John E. Chesnut, Jr.
Commissioner Charles E. Rainey
Commissioner Gabriel Cazares
Commissioner Barbara Sheen Todd
V-4aA.%t1er 1 p l c A-















BRUCE A. SAMSON, Chairman. Tampa B. T. LONGINO. Sarasota JIM KIMBROUGH, Brooksville
Win. O. STUBBS. JR., Vice Chairman. Dade City CLIFF STEPHENS, Clearwater ARCH UPDIKE, JR., Lake Wales
JAMES CAMPBELL, Secretary, Plant City DON CRANE, St. Petersburg
RONALD B. LAMBERT, Treasurer. Wauchula DONALD R. FEASTER. Executive Director
December 8, 1980




Tallahassee, FL 32301HIGHW SOUTH BROOKSVLLE, FLORIDA 351
1961 PHONE (904) 796-7211

4G VA V-% BRUCE A. SAMSON. Chairman. Tamps B. T. LONGINO. Sarasota JIM KIMBROUGH. Brooksville
^^^1^ Wm. 0. STUBBS. JR.. Vice Chairman. Dade City CLIFF STEPHENS. Clearwater ARCH UPDIKE. JR.. Lake Waler
JAMES CAMPBELL, Sccretary, Plant City DON CRANE. St. Petenburg
RONALD B. LAMBERT. Treasurer. Wauchula DONALD R. FEASTER. Executive Director












Dear Jake:
At the December 3, 1980 meeting, the Governing Board reviewed the1980
Mr. Jacob Varn, Secretary



attached input tothe drafting of the State Water Policy and
Twin Towers Office Building
2600 Blair Stone Road
Tallahassee, FL 32301

Dear Jake:

At the December 3, 1980 meeting, the Governing Board reviewed the
attached input to the drafting of the State Water Policy and
authorized transmittal to you. As you can see, it is the Board's
desire to have broad but concise policy under which DER and each
water management district may adopt appropriate rules. We hope
this input is beneficial to you and look Torward to future drafts.

Sincerely yours,



DONALD R. FEASTER, P.E.
Executive Director

DRF:JRW:jmt

cc: Water Management District's
Governing Board
Attachment: Proposed State Water Policy (Draft Approved 12/3/80)







File No.
10D-GOV 12-01



^ ^ \ .-


f1"no3












PROPOSED STATE WATER POLICY



It is the policy of the State of Florida that, where appropriate:

1. All waters of the state should be managed to maximize reasonable-beneficial
uses.

2. Water necessary to support essential non-withdrawal demands such as
navigation, recreation and the maintenance of natural systems should be
preserved.

3. Wetlands, floodplains, flood hazard areas, and lands significant to the
conservation and management of water should be protected. High priority
should be given to their acquisition.

4. Stormwater runoff should be managed to the extent practicable in conservation
of water and reduction of flooding.

5. All regions should utilize local water resources to the greatest degree
that is economically and environmentally feasible before considering the
transfer of more distant water resources.

6. The use and reuse of water of the lowest acceptable quality for the purpose

7. Water management and land use planning should be coordinated to the extent
practicable.

8. Water resource projects of particular benefit to limited segments of the
population should be financed by those most directly benefited.

9. Encouragement and assistance should be provided in the assessment of non-
structural solutions to flooding, soil erosion and drainage problems.

10. The factors to be considered in determining "reasonable-beneficial use"
should be clearly articulated and adopted by separate rule.

11. Water uses to support new inappropriate development in wetland, floodplain,
and flood hazard areas should not be considered reasonable-beneficial uses.

12. Permits for consumptive use of water should be limited to reasonable-
beneficial uses and water conservation should be a condition of water use.

13. The constitutional rights of private ownership of land shall be fully
protected.

14. The implementation of this policy should be through delegation to the water
management districts so that water management decisions may be made as
closely as possible to the areas where they will be implemented.













n/ The Governing Board recommends that the Secretary of the Department of
Environmental Regulation adopt a separate rule which would provide that
in determining reasonable-beneficial use of water in connection with
consumptive use permitting programs that consideration should be given
to:

a. Quantity of water requested for the use;

b. The demonstrated need for the use;

c. The suitability of the use to the source of water;

d. The social, economic and environmental value of the use;

e. The extent and amount of social, economic and environmental
harm caused;

f. The practicality of mitigating any harm by adjusting the
quantity or method of use;

g. The method and efficiency of use;

h. Water conservation measures taken or available to be taken;

i. The practicality of reuse, or the use of waters of more

j. The projected demand;
k. The extent of water quality degradation caused; and
1. Other environmental factors impacting the water resources.


















December 30, 1980



Bruce Tyndall, Chairman
Board of County Commissioners
315 Court Street (
Clearwater, FL 33516

Dear Mr. Chairman:

The Department of Environmental Regulation has pub-
lished for public comment proposed water policy rules
which it intends to enact as rules of the Department in
either February or March of 1981. A copy for each Com-
missioner of these proposed rules is enclosed.

There are a number of portions of the proposed rules
which I believe I should comment on for the benefit of the
Commission so that the Commission can determine my view of
how each of the material proposed rules will effect the
water supply of Pinellas County.

From an overall point of view, it is my belief that
some of the proposed rules constitute legislation rather
than adoption of a rule by a governmental agency who has
had authority to adopt such rules delegated to it by the
Legislature. In this respect, I am advising all of the
Legislators from Pinellas County concerning these points
and particularly Senator Ware and Representative Kiser who
are on the Administrative Procedures Committee who review
each of the newly proposed rules by each agency to determine
whether or not they are promulgated in excess of legislative
authority.

The rules require that Water Management District imple-
ment rules which places the enunciated policies into effect.
While the policy dictates that the rules in each District be
uniform, some latitude is given where there is a difference
in regional water resource characteristics and needs.
(17-X.ll(2)(a)) (Page 13)

Continued, please .
and artculaly enatr Wre ad Rpresntaive ise h














Bruce Tyndall, Chairman
December 30, 1980
Page Two


As stated, I will only comment upon those policies
which I believe will impact upon Pinellas County's water
supply.

Rule 17-X.01(7) (Page 3) -- states that because of
increasing competition for the use of water, there is a
necessity for a more refined categorical set of management
guidelines.

COMMENT: I take issue with this statement. There is
S no Water Management District who has ever said that the
S U existing rules now in use by Water Management Districts
"; j i" < throughout the state are inadequate. In my view, this
I statement is made to justify a complete revamping of present
i" water management rules and policies which favors counties
with substantial water supplies over counties who have little
or no water supply.

Rule 17-X.02(2) (Page 4) -- the terms "safe yield" and
"present and future most beneficial use" remain undefined
in the proposed water policy.

COMMENT: The term "safe yield" is directly linked to
the Water Crop Theory which Pinellas County has just had
invalidated by a DOAH Hearing Officer. The District deter-
mined what the "safe yield" was for the entire District and
then divided it by the number of acres available in the District
to come out to 1,000 gallons per acre per day. The Depart-
ment's determination as to how "safe yield" will be defined
is critical in applying state water policies established later
in the document. (See Rule 17-X.05(1) (a) which states that
water resources shall be managed such that the "safe yield"
of such source of water is not exceeded.)

Rule 17-X.03(1) (Page 4) -- requires an "affordable"
water supply. This is a good policy. Too long has SWFWMD
and other agencies been inattentive to the cost factor
caused by their overregulation. If this policy is followed,
it should mean that in issuing Consumptive Use Permits, Water
Management Districts should require the least regulation
necessary but which is adequate to protect the resource so
that these costs will not be passed on to the public in in-
creased rates for public water supplies.

Continued, please .

-













Bruce Tyndall, Chairman
December 30, 1980
Page Three


Rule 17-X.03(l)(c) --

COMMENT: The Department attempts to redefine reasonable
beneficial use which was defined by the Legislature. A
number of criteria are set forth in Rule 17-X.03 which seek
to redefine what a reasonable beneficial use is. Subsection (c)
provides that no person may take water for other than a
reasonable beneficial use.' In other words, if Pinellas
County is found to not be taking water for a reasonable
beneficial use as defined, the water supply may be shut off.
Rule 17-X.03(4) proposes 12 different criteria for determining
what is the reasonable beneficial use of water. In sum,
this criteria utilizes subjective rather than objective
criteria and places apparent unbridled discretion in Water
Management Districts to determine exactly what is a reason-
able beneficial use. Pinellas County has always advocated
objective criteria so that if it meets these objective
criteria, no board can take away Pinellas County's water
supply. Taken in this light, I am seriously concerned with
the proposal establishing discretionary subjective criteria
for determining the reasonable beneficial use of water.

Rule 17-X.03(1)(d) -- provides that waters shall be
managed to achieve multiple reasonable beneficial uses where
appropriate.

COMMENT: One of the themes throughout the fiber of
these rules is to achieve multiple uses of water. I am not
sure that this is detrimental to Pinellas County; however,
the County may see Water Management Districts require re-
cycling of County water supply such as that being accomplished
by the City of St. Petersburg if this policy is fully imple-
mented.

Rule 17-X.03(2) (Page 5) -- provides that a reasonable
beneficial use shall be preserved unless a competing reason-
able beneficial use better serves the public interest.

I ) COMMENT: This policy is alarming. If a water supply
r I to Pinellas County is determined to be a reasonable beneficial
use, but SWFWMD should determine that Pasco residents who
would be a "competing" reasonable beneficial use also need the
water, the District would be in a position to say that Pasco
County's needs better serves the public interest, and there-

Continued, please .














Bruce Tyndall, Chairman
December 30, 1980
Page Four


fore, Pinellas County's water supply, even though a reason-
able beneficial use, must be discontinued. This analogy
speaks for itself.

Rule.17-X.03(4) (Page 5-6) -- the rule provides for 12
subjective criteria in determining whether or not there is a
reasonable beneficial use of water. The criteria are need,
suitability of use to source, social, economic and environmental
value of the use, amount of social, economic and environmental
harm caused by the use, practicality of avoiding the harm by
adjusting the use, efficiency of use, practicality of adjusting
quantity, practicality of reuse, projected demand, amount of
land owned or legally controlled by user, extent water degrada-
tion is caused, and other factors which the state may deem
appropriate.

COMMENT: The proposed criteria, when applied to a set
of facts in which Pinellas County transports its water supply
from long distances, can obviously be detrimental. Examples
of the application of such criteria to prohibit additional
water supplies or present water supplies flowing into Pinellas
County is obvious. With these subjective criteria, it in
reality is all left up to the discretion of each Water Manage-
ment District. Adoption of these criteria will make it almost
legally impossible to reverse a water management decision in
our Courts because of the placing of complete unbridled dis-
cretion in the Water Management District. Thus, a Court would
only look at whether or not a Water Management District abused
its discretion which means simply stated that an aggrieved
party would have to show an arbitrary and capricious decision
on the part of the Water Management District.

Rule 17-X.03(4)(i) -- provides that one of the criteria
for determination of reasonable beneficial use of water is
the projected demand.

COMMENT: Pinellas County has always been plagued with
the fact that the Water Management District has not allowed
Pinellas County to have a surplus of water on hand and avail-
able for use. No other water supply facility operates on
this precarious condition. If interpreted correctly, the
use of a "projected demand" might enable'Pinellas County to
obtain a surplus of water based upon its projected demand
which, as the Commission knows, is considerable.

6 Continued, please .














Bruce Tyndall, Chairman
December 30, 1980
Page Five


Rule 17-X.03(4)(j) -- provides that one of the criteria
for determination of a reasonable beneficial use of water is
the amount of land owned or legally controlled by the user.

COMMENTr This is the Water Crop Theory pure and simple.
The DOAH Hearing Officer who ruled the Water Crop Rule pro-
mulgated by SWFWMD to be enacted without legislative authority
stated that there was no basis under Chapter 373, Fla.Stat.,
for the granting or denying of a Consumptive Use Permit based
upon the amount of land owned or legally controlled by the
user. This is Jake Varn's attempt to reenact the Water Crop
Theory and make it apply statewide.

Rule 17-X.04(1) (Page 6) -- requires intracounty, intra-
basin and intradistrict water supplies be developed to the
maximum prior to intracounty, intrabasin or intradistrict
transfers.

COMMENT: This policy gives me grave concern. It could
be applied in such a manner to reason that there are closer
water supplies to Pinellas County than Cypress Creek or the
Cross Bar Ranch, and therefore, Pinellas County should attempt
to develop these water supplies even though its pipelines
which cost many millions of dollars reach the Cypress Creek
and Cross Bar Ranch facilities. Another application would
require the development of minute and expensive water supplies
within Pinellas County before additional water supplies could
be obtained "intracounty." I deplore the possibility of
having to develop expensive water supplies which substantially
raise the cost of water in comparison to the amount of water
obtained. Water supply must be cost efficient. This policy
could be utilized to eliminate this fundamental economic
essential.

Rule 17-X.04(2) (Page 6) -- provides that the transfer
of water across management districts, basins or county
boundaries which the state determines to have regional sig-
nificance may be undertaken if the transfer is a reasonable
beneficial use, does not interfere with existing legal uses,
and is in the public interest.

COMMENT: The policy essentially states applicable
state law under Chapter 373, Fla.Stat., but adds the necessity .>
for the state to determine whether the transfer has "regional <,

Continued, please .





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