Title: Memorandum of observations on the draft of the State Water Policy
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00051049/00001
 Material Information
Title: Memorandum of observations on the draft of the State Water Policy
Alternate Title: Memorandum of observations on the draft (No. 2, Oct. 21, 1980) of the State Water Policy with attachment: Statutory Expressions of Policy for Water Management in Florida.
Physical Description: 7p.
Language: English
Publication Date: Oct. 27, 1980
Spatial Coverage: North America -- United States of America -- Florida
General Note: Box 2, Folder 3A ( STATE WATER POLICY ), Item 39
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00051049
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


this section, Part II of the Florida Water Resources 373.226 Existing uses.-
Act of 1972, as amended, preempts the regulation of (1) All existing uses of water, unless otherwise
the consumptive use of water as defined in this act. exempted from regulation by the provisions of this
History.-s 9. ch. 76-243; s. 1, ch. 77-174 chapter, may be continued after adoption of this per-
mit system only with a permit issued as provided
373.219 Permits required.- herein.
(1) The governing board or the department may (2) The governing board or the department shall
require such permits for consumptive use of water issue an initial permit for the continuation of all
and may imose sucheasnble conditions re uses in existence before the effective date of imple-
necessary to assure tha such use is consistent wit mentation of this part if the existing use is a reasona-
the overall objectives ofthe district or dartmen ble beneficial use as defined in s. 373.019(5) and is
and is not harmful t the water resources of th arl allowable under the common law of this state.
However, no permit sha lere irl r ri (3) Application for permit under the provisions
consumption f-waper by individual users, of subsection (2) must be made within a period of 2
(2) n the event that any person shall e a com- years from the effective date of implementation of
plaint with the governing board the he department these regulations in an area. Failure to apply within
that any other person is making a diversion, with- this period shall create a conclusive presumption of
drawal, impoundment, or consumptive use of water abandonment of the use, and the user, if he desires
not expressly exempted under the provisions of this to revive the use, must apply fbr a permit under the
chapter and without a permit to do so, the governing provisions of s. 373.229.
board or the department shall cause an investigation Hior.-. 4 part ch 72-299;12 ch. 7190.
to be made, and if the facts stated in the complaint 373.229 Application for permit.-
are verified the governing board or the department (1) All permit applications filed with the govern-
shall order the discontinuance of the use. ing board or the department under this part and
History.-s. 2, part II, ch. 72299; s. 9 ch. 73-190 notice thereof required under s. 373.116 shall con-
373.223 Conditions for a permit.- tain"
373223 Conditions for a permit-(a) The name of the applicant and his address
(1) To obtain a permit pursuant to the provisions o he ae of corporation, the address of its
of this chapter, the applicant must establish that the principal business office;
proposed use of water: (b) The date of filing;
(a) Is a reasonable benefici se as defined in s. (c) The date set for a hearing, if any;
373.019(b) and (d) The source of the water supply;
(b) Wi ot interfere with any present existing (e) The quantity of water applied for;
legal use of water; and (0 The use to be made of the water and any
(c) Is consistent with the lic interest. limitation thereon;
(2) The governing board or the department may (g) The place of use;
authorize the holder of a use permit to transport and (h) The location of the well or point of diver-
use ground or surface water beyond overlying land, sion; and
across county boundaries, or outside the watershed (i) Such other information as the governing
from which it is taken if' the governing board or board or the department may deem necessary.
department determines that such transport and use (2) The notice shall state that written objections
is consistent with the public interest, and no local to the proposed permit may be filed with the govern-
government shall adopt or enforce any law, ordi- ing board or the department by a specified date. The
nance, rule, regulation, or order to the contrary. governing board or the department, at its discretion,
(3) The governing board or the department, by may request further information from either appli-
regulation, may reserve from use by permit an'nli cant or objectors, and a reasonable time shall be
cants, water in such locations ind quantities and for allowed for such responses.
such seas nsfthevea as in its udment ma be (3) If the proposed application is for less than
required for the protection offlsh an wlhe or 100,000 gallons per day, the governing board or the
pblc enith and snafetv. Such reservations shall e department may consider the application and any
subject to periodic review and revision in the light of objections thereto without a hearing. If the proposed
changed conditions. HIowever, all presently existing application is fbr 00,000 gallons per day or more
legal uses ofwater sha e o do -- and no objcction is received, the governing board or
.le .. uses of water shall protc. so lon the department, after proper investigation by its
"ul iry 3. part ih 72299 s. h73 s 76243. stafl: may, at'its discretion, approve the application

373.224 Existing permits.-An permits or per- itory.-s. 5 part II. ch 72-299; s 13, ch. 73-190; s. 11, ch. 76-243; s. 1. ch.
mit agreements for consumptive use of water execut-
ed or issued by an existing flood control, water man- 373.232 Citation of rule.-In addition to any
agement, or water regulatory district pursuant to other provisions within this part or any rules pro-
chapter 373 or chapter 378 prior to December 31, mulgated hereunder, the permitting agency shall,
1976, shall remain in full force and effect in accord- when requesting information fbr a permit applica-
ance with its terms until otherwise modified or re- tion pursuant to this part or such rules promulgated
evoked as authorized herein. hereunder, cite a specific rule. If a request for infor-
History.-s. i. ch 73-190; 3. ch 75-125. nation cannot be accompanied by a rule citation,

r '"_______________


w s of' chapter 120, issue emergency or- effects upon the areas from whence such water is
he existence of'such an emergency and withdrawn.
such action, including, but not limited History.-s 1. ch 74-114; 43. ch. 79.65.
ng, rotating, limiting, or prohibiting
the use of the water resources of the district, be tak- 373.1961 Water production.--In the perform-
en as the executive director, with the concurrence of ance of, and in conjunction with, its other powers
the governing board, deems necessary to rheet the ment district eis ing pursu at to cater 373n
emergency. (1) May engage in planning to assist counties,
'(5) The Department of Natural Resources shall municipalities, and regional water supply authori-
review, and may rescind, modify, or approve, any ties in meeting the water supply needs of the rapidly
policy rule, regulation, or order of a water manage- urbanizing areas within its district in such manner
ment district authorized by this section. as will give priority to reducing adverse environmen-
History.-s 1 ch. 72.730; s. 25. rh. 73-190; s 1. rh 73 295; s 14, ch. 7895. tal effects of improper or excessive withdrawals of
'Note.-Se s 11. ch 75-22 is 373.114). which vests exclusive authority to
review policies, rules. regulations. and orders of water management districts water from concentrated areas.
in the Governor and Cabinet, sitting as the Land and Water Adjudicatory (2) Upon request of a county, municipality, or
Commission. regional water supply authority, shall assist such
counties and municipalities and water supply au-
373.191 County water conservation projects, thorities in meeting the water supply needs of the
-The several counties of' the state may cooperate rapidly urbanizing areas within its district in such
with te division by engaging in county water devel- anner as will give priority to reducing adverse en-
with the division by engaging in county water devel- vironmental effects of improper or excessive with-
opment and conservation projects and may use coun- drawals of water from concentrated areas.
ty funds and equipment for this purpose and to do all (3) At the request of a county, municipality, or
other things necessary in connection with the devel- regional water supply authority, may establish wa-
opment and conservation of the county's water re- ter production and transmission facilities for the
sources consistent with the provisions of this law and purpose of supplying water to such counties, munici-
the rules and regulations adopted pursuant thereto. palities, and regional water supply authorities.
History.-s. 13. ch 57.380; ss. 25. 35. ch 69.106 (4) Shall not engage in local distribution.
(5) Shall not deprive, directly or indirectly, any
373.196 Legislative findings.- county wherein water is withdrawn of the prior
(1) It is the finding of'the Legislature that cooper- right to the reasonable and beneficial use of water
ative efforts between municipalities, counties, water which is required to supply adequately the reasona-
management districts, and the Department of Envi- ble and beneficial needs of the county or any of the
ronmental Regulation are mandatory in order to inhabitants or property owners therein.
meet the water needs of rapidly urbanizing areas in (6) May provide water and financial assistance to
a manner which will supply adequate and dependa- regional water supply authorities, but may not pro-
ble supplies ofwater where needed without resulting vide water to counties and municipalities which are
in adverse effects upon the areas from whence such located within the area of such authority without
water is withdrawn. Such efforts should utilize all the specific approval of the authority or, in the event
practical means of obtaining water, including, but of the authority's disapproval, the approval of the
not limited to, withdrawals of' surface water and Governor and Cabinet sitting as the Land and Water
ground water, recycling of waste water, and desalini- Adjudicatory Commission. The district may supply
zatio, and will necessitate not only cooperation but water at rates and upon terms mutually agreed to by
zatio, and will necessitate ony t the parties or, if they do not agree, as set b the
also well-coordinated activities. The purpose of this governing board and specifically approved by the
act is to provide additional statutory authority for Governor and Cabinet sitting as the Land and Water
such cooperative and coordinated efforts. Adjudicatory Commission.
(2) Municipalities and counties are encouraged (7) May acquire title to such interest as is neces-
to create regional water supply authorities as au- sary in real property, by purchase, gift, devise, lease,
thorized herein. It is further the intent that munici- eminent domain, or otherwise, for water production
palities, counties, and regional water upplyv a and transmission consistent with this section. How-
tie are o0 ave the primary responsibility for wntopr ever, the district shall not use any of the eminent
-y i T l, and Wter management districts and their domain powers herein granted to acquire water and
""bsin boards pre to enurae' only in those functions water rights already devoted to reasonable and bene-
that are incidental to the exercise of their flood co ficial use or any water production or transmission
troI nd water ma^gedifnt jdlxer facilities owned by any county, municipality, or re-
"(3) Nothing herein shall be construed to preclude gional water supply authority.
the various municipalities and counties from contin- History.-- 2. ch 74-114; s. 14, ch. 76-243.
uing to operate existing water production and trans- 373.1962 Regional water supply authori-
mission facilities or to enter into cooperative agree- ties.-
ments with other municipalities and counties for the (1) By agreement between local governmental
purpose of meeting their respective needs for de- units created or existing pursuant to the provisions
pendable and adequate supplies of water, provided of Art. VIII of the State Constitution, pursuant to
the obtaining of water through such operations shall the Florida Interlocal Cooperation Act of 1969, s.
not be done in a manner which results in adverse 163.01, and upon the approval of the 'Governor and


applying agency has jurisdiction. (c) The control of such waters for such purposes
(b) Require compliance with the provisions of as environmental protection, drainage, blood control,
this law by county or district forces under their con- and water storage.
trol; by those individuals or corporations filing plats T(d) The quantity of water available for applica-
for record and by individuals, corporations or agen- tion to a reasonable-beneficial use.
cies seeking authority to discharge surface or sub- (e) The prevention of wasteful, economical
surface drainage into tidal waters. impractical, or unreasonaele uses of water re-
(3) The board of county commissioners of any sos e
county or the governing board of any water manage- ( sent exercised domestic use andpermit
ment district, municipality or water district desiring rights
to establish a saltwater barrier line is authorized to (g) The preservation and enhancement ofthewa-
reimburse the department for any expense entailed ter qlity ofthe state and the provisions of the state
in making an investigation to determine the proper water quality plan.
location of the saltwater barrier line, from any funds (h) The state water resources policy as expressed
available to them for general. administrative pur- by this chapter.
poses. (3) During the process of formulating or revising
(4) The department, any board of county commis- the state water use plan, the department shall con-
sioners, and the governing board of any water man- suit with, and carefully evaluate the recommenda-
agement district, municipality, or water district hav- tions of, concerned federal, state, and local agencies,
ing competent jurisdiction over an area in which a particularly the governing boards of the water man-
saltwater barrier is established shall be charged agement districts, and other interested persons.
with the enforcement of the provisions of this sec- (4) Each governing board is directed to cooperate
tion, and authority for the maintenance of actions with the department in conducting surveys and in-
set forth in s. 373.129 shall apply to this section. vestigations of water resources, to furnish the de-
(5) The provisions of s. 373.191 shall apply specif- apartment with all available data of a technical na-
ically to the authority of the board of county commis- ture, and to advise and assist the department in the
sioners, or to the governing board of a water manage- formulation and drafting of those portions of the
ment district, a municipality, or a water district hav- state plan applicable to the district.
ing jurisdiction over an area in which a saltwater (5) The department shall not adopt or modify the
barrier line is established, to expend funds from state water use plan or any portion thereof without
whatever source may be available to them for the first holding a public hearing on the matter. At least
purpose of constructing saltwater barrier dams, 90 days in advance of such hearing, the department
dikes, and spillways within existing canals and shall notify any affected governing boards, and shall
streams in conformity with the purpose and intent give notice of such hearing by publication within the
of the board in establishing the saltwater barrier affected region pursuant to the provisions of chapter
line. 120, except such notice by publication shall be ex-
History.-s. 2. ch. 63-210; as. 25. 35. ch.'69-106; s 25, ch. 73-190; s. 14, ch. tended at least 90 days in advance of such hearings.
78-95; s. 40, ch 79-65; s. 85, ch. 79-164.
Note.-Former s 373.194 (6) For the purposes of this plan the department
may, in consultation with the affected governing
373.036 State water use plan.- board, divide each water management district into
(1) The department shall proceed as rapidly as sections which shall conform as nearly as practica-
possible to study existing water resources in the ble to hydrologically controllable areas and describe
state: means and methods of conserving and aug- all water resources within each area.
meeting such waters; existing and contemplated (7) The department shall give careful considera-
needs and uses of water for protection and procrea- tion to the requirements of public recreation and to
tion of fish and wildlife, irrigation, mining, power the protection and procreation of fish and wildlife.
development, and domestic, municipal, and industri- The department may prohibit or restrict other fu-
al uses; and all other related subjects, including ture uses on certain designated bodies of water
drainage, reclamation, flood-plain or flood-hazard which may be inconsistent with these objectives.
area zoning, and selection of reservoir sites. The de- (8) The department may designate certain uses
apartment shall cooperate with the Executive Office in connection with a particular source of supply
of the Governor, or its successor agency, progressive- which, because of the nature of the activity or the
ly to formulate, as a functional element of a compre- amount of water required, would constitute an unde-
hensive state plan, an integrated, coordinated plan sirable use for which the governing board may deny
for the use and development of the waters of the a permit.
state, based on the above studies. This plan, with (9) The department may designate certain uses
such amendments, supplements, and additions as in connection with a particular source of supply
may be necessary from time to time, shall be known which, because of the nature of the activity or the
as the state water use plan. amount of water required, would result in an en-
(2) In the formulation of the state water use plan, hancement or improvement of the water resources of
the department shall give due consideration to: the area. Such uses shall be preferred over other
(a) The attainment of maximum reasonable-ben- uses in the event of competing applications under
eficial use of water for such purposes as those re- the permitting systems authorized by this chapter.
Terred to in subsection (1). (10) The department, in cooperation with the Ex-
(b) The maximum economic development of the ecutive Office of the Governor, or its successor agen-
water resources consistent with other uses. cy, may add to the state water use plan any other

I ______________


tion project; measures authorized. 373.013 Short title.-This chapter shall be
known as the "Florida Water Resources Act of
373.012 Topographic mapping.- 1972."
(1) In order to accelerate topographic mapping in History.-s I. part I. ch. 72-299.
this state by the United States Geological Survey,
the Department of Transportation is hereby author- 373.016 Declaration of policy.-
ized and directed to set aside, to pledge, and to make (1) The waters in the state are among its basic
available annually out of its State Transportation resources. Such waters have not heretofore been con-
Trust Fund the sum of $30,000; and the Board of served or fully controlled so as to realize their full
Trustees of'the Internal Improvement Trust Fund is beneficial use.
hereby authorized and directed to set aside, to pledge (2) furtherdecla bli of the
and to make available annually out of the Land Ac- LegislaTure. ..
quisition Trust Fund the sum of $10,000; and the relatdedl e for te t of w r
South Florida Water Management District out of its pro e riO veloe
funds to be derived out of" the proceeds of' special and Ip eriStrtail.r -nd.wat.r
assessments of its flood control taxes, is authorized oevelo regu
(c) To develop- and regulate-d ams.-irnp'out
and directed.to set aside, to pledge and to make avail- mnts. reservoirs ot ks nd to pride
able annually such sum as may be required to meet aer storage for beneficial purposes
"the needs for topographic mapping of areas affecting o prevent damaefrom oodsgjj erosion
said district. Such sums shall be delivered to the aiecessiTye v rain .
Treasurer of the United States or to other proper (e) preserve natural resources, fish and wild-
officer, to be applied by the Department of the Interi- jfe
or, U. S. Geological Survey, as to said Department of (1) To prom ote recreational development, protect
Transportation and to said Board of Trustees of the public. larT-iand assist in maintain g le i aiviga
Internal Improvement Trust Fund, toward the pay- jlity..of rivers and harbors;and ..
ment of not exceeding one-half the cost of standard (g) Otherwise to promote the health, safety, and
topographic mapping in this state conducted by the general welfare of thep, oJti.slstate.
United States Geological Survey and as to said flood .ITT hhe Iegislature recognizes that thewater re-
control district to be applied toward the payment of source problems of the state vary from region to
such proportion or part of such cost as said district region, both in magnitude and complexity. It is
may determine. Provided, however, that said sums therefore the intent of the Legislature to vest in the
authorized in this section for the Department of Department of Environmental Regulation or its suc-
Transportation and for the Board of Trustees of the cessor agency the power and responsibility tog.cpm-,
Internal Improvement Trust Fund shall not prevent P1ish the conservat ion, protection. nageme t.n
either of said agencies from providing additional l i fl0hewale sothe st-Q at-d with sufficient
amounts for topographic mapping of areas which fl bility atLdiscreti to acromnisishlth e e-nds
either agency may consider of priority status in the trough delegation ofapro-riate o2wers to the var-
interest of said agencies. water manage ditts he department
(2) To further accelerate the rate at which topo- may exercise any power herein authorized to be ex-
graphic mapping may be carried on in Florida, any ercised by a water management district; however, to
state agency having funds available for the purpose, te greatest ex ent practicable, such power should
any county or drainage or reclamation or flood con- agement district.
trol district organized under the laws of this state, Hlistory.-s 2. part ch. 72.299 36. ch. 7965
any person, firm or corporation, is authorized to con-
tribute to the cost of such mapping by depositing 373.019 Definitions.-When appearing in this
with the Department of Transportation such chapter or in any rule, regulation, or order adopted
amounts as may be determined to be applied in like pursuant thereto, the following words shall, unless
manner toward topographic mapping in this state as the context clearly indicates otherwise, mean:
set forth in subsection (1). (1) "Department" means the Department of En-
(3) The Department of' Transportation, the vironmental Regulation or its successor agency or
Board of Trustees of' the Internal Improvement agencies.
Trust Fund of this state, and the South Florida Wa- (2) "Water management district" means any
ter Management District are hereby authorized to flood control, resource management, or water man-
make such arrangements or enter into such agree- agement district operating under the authority of
ments with the United States as may be necessary to this chapter.
carry out the purposes of' this section. (3) "Governing board" means the governing
(4) The Board of Trustees of the Internal Im- board of' a water management district.
lprovement Trust Fund. as and when copies of topo- (4) "Reasonable-beneficial use":' means the usf
graphic maps are made available to it, shall file such water in such quantity as is necessary for ernnomie
maps in the same manner as other maps and plats -d percent utilization for a u pose sani w lnt
of land surveys by the United States, and the maps ch is both reasonable an consistent wit the
shall be available for examination by any interested uc teresany and all persons, natural
person) person means any and all persons, natural
istory-s. 14 ch 57-775; s. 2, ch 61-119; s ch. 65-475; ss 23. 27. 35, or artificial, including any individual, firm, associa-
h. 69-106: s 2. 3. ch. 7357; s. 35. ch 79.65 tion, organization, partnership, business trust, cor-

t _____________

373.196.(2) Municipalities, counties and
regional water supply authorities have the
primary responsibility for water supply.
373.196 (2) Water management districts and their basins
are to engage only in those [water supply]
functions that are incidental to the exercise
of their flood control and water management
373.219 (1) Permits for consumptive use of water may be
required which may impose such reasonable
conditions as are necessary to assure that
such use is consistent with the overall
objectives of the water management district
and is not harmful to the water resources
of the area.
373.219 (1) No permit shall be required for domestic
consumption of water by individual users.
373.223 (1) (a) Any proposed use of water must be a reasonable
373.223 (1) (b) beneficial use of water which will not
373.223 (1) (c) interfere with presently existing legal use
of water and is consistent with the public
373.223 (3) Water may be reserved from use in such
locations and quantities, and for such
seasons of the year as may be required for
the protection of fish and wildlife or the
public health and safety. Such reservations
shall be subject to periodic review and
revision in the light of changed conditions.
373.223 (3) All presently existing legal uses of water
shall be protected so long as such use is
not contrary to the public interest.


Numerous expressions of State Water Policy appear
throughout Chapter 373, Florida Statutes. The statements
listed below are some of the more explicit expressions
of such policy which have been excerpted or paraphrased
from the sections indicated.

373.016 (1) The waters in the State are among its
basic resources. Such waters have not
heretofore been conserved or fully
controlled so as to realize their full
beneficial use.

[It is the policy of the state to:]

373.016 (2) (a) Provide for management of water and
related land resources.
373.016 (2) (b) Promote conservation, development and proper
utilization of surface and ground water.
373.016 (2) (c) Develop and regulate dams, improvements,
reservoirs, and others works and to provide
water storage for beneficial purposes.
373.016 (2) (d) Prevent damage from floods, soil erosion
and excessive drainage.
373.016 (2) (e) Preserve natural resources, fish and wildlife.
373.016 (2) (f) Protect public lands.
373.016 (2) (f) Promote recreational development.
373.016 (2) (f) Assist in maintaining navigability of
rivers and harbors.
373.016 (2) (g) Promote health, safety and general welfare
of the people of this State.
373.016 (3) Accomplish conservation, protection, manage-
ment and control of the waters of this State.
373.016 (3) Delegate appropriate powers to the various
water management districts to provide
sufficient flexibility and discretion.
373.019 (4) Use water in such quantity as is necessary
for economic and efficient utilization
for purposes and in manners which are both
reasonable and consistent with the public
373.036 (2) (a) Allow maximum reasonable beneficial use of
water for protection and procreation of
fish and wildlife.
373.036 (2) (b) Maximize economic development of the water
resources consistent with other uses.
373.036 (2) (c) Control waters for purposes of environmental
protection, drainage, flood control and
water storage.
373.036 (2) (e) Prevent wasteful, uneconomical, impractical
or unreasonable uses of water resources.
373.036 (2) (f) Protect presently exercised domestic use and
permit rights.
373.036 (2) (g) Preserve and enhance the water quality.


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.



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