DATE: October 27, 1980
IN RE: State Water Policy
Attached to this memo is a copy of the draft (2) State Water
Policy of 10/21/80, upon which I have noted some of my observations.
I think this is more efficient than sending down a several page
My general observation is much as it was to the first draft; there seems
to be a dearth of statutory authority in some of the most important
sections of the proposed policy. As a matter of fact, the only
sections of Chapter 373 cited by the drafters are 373.016 and 373.223.
373.223 is cited twice and every other cite to Chapter 373 is to
373.016 which is, of course, the Chapter's general declaration of
policy. I don't know if this is the case because the DER wants to
have as apparent authority for its policy the kind of vague and
grandiose language that often, of necessity, is found in declarations
of legislative policy or if the DER simply did not go through Chapter
373 as thoroughly as it should have. I do see some fertile areas
for rule challenges, if the water policy is to be promulgated as it
is now written.
Perhaps I am over-reacting, but I do fear that the direction this
proposed water policy is taking might be, on a long term basis,
injurious to the regionalism concept which underpins the entire
water management district scheme. You will note on page one of
the draft, at (3), mention of the regionalism concept is conspic-
uously absent, even though it is conspicuously present in Chapter
373.016 (3), the statutory reference cited as authority for this
section of the rule.
After thinking about it over the weekend, I am even more convinced
that it would be a mistake for us to be lured into participation
in the drafting of the water policy. Even if we were to deal with
Chuck Littlejohn with a handful of caveats and provisos, it would
be easy for Jake to later tout the policy as being the product of
massive water management district input. Even if that input were
one of disagreement with the DER. Anyway, you know far better than
I how these games are played.
M.~~. ~ ..-- ------