Title: Memorandum of concern about the procedure for adopting the State Water Use Plan by DER
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00051072/00001
 Material Information
Title: Memorandum of concern about the procedure for adopting the State Water Use Plan by DER
Alternate Title: Memorandum of concern about the procedure for adopting the State Water Use Plan by DER on December 20, 1978, with attached newspaper article in the Orlando Sentinel by Bob Bobroff: Growers warned EPA's controls might halt work.
Physical Description: Book
Language: English
Publication Date: Nov. 17, 1978
Spatial Coverage: North America -- United States of America -- Florida
General Note: Box 2, Folder 3A ( STATE WATER POLICY ), Item 62
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: UF00051072
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

Growers warned EPA',s

controls might halt work
/ P -7
,The'cost and inflationary effect of Q l;^ '""' ,
government regulations on-water is /- 77 )
being studied by the National Envi- Florida
ronmental- Development Associ-
ation, Riley Miles, executive direct. Agriculture" .. :
tor of Florida Water Users Associ- Bob Bobroff
ation, told agribusiness -leaders 4._ B __
dealing with water problems. C.C -
Miles also said that if the Envi-, '
ronmental Protection Agency over-
"reacts in establishing water quality' -,/
standards, they could easily shut )
down some agricultural, operations i
and impede agricultural and indus-
trial land development. .,
"On a state level, Philip Parsons, a
Tallahassee attorney working on
water issues, said the-Department
of Environmental Regulation now is, c
drafting legislation to be presented
to the legislators for the next ses-
sion. Details of what the depart-
ment is seeking were not known.
He said the Corps of Engineers is
proposing a permit rule that would
require any project requiring a per-
mit to set aside 10 percent of the
wetlands involved for preservation.
The intent, he-said, is to.. preserve.
wildlife habitats, and he called the
proposal a bad precedent for the
land owner. .
The group of about 30 men were
also told the state planners believe
they need no additional legislative!
"authority to implement the water
section of the state comprehensive
plan. This position is causing con-
cern among the individual water:
management districts who have
been establishing their own plans,
tailored to the problems each has.

november 20, 1978
Memorandum Page Two

powers as the executive branch of government. This executive order has raised
legal questions as to the effectiveness of a SWUP or State Comprehensive Plan
in view of the fact that the 1978 Legislature has by Chapter 78-287, Laws of
Florida, stated that srccific policies of the State Cormprehensive Plan can
only be implemented through specific acts of the Legislature. However, DSP and
DER has argued that their present actions of adopting the SWUP are proper and
within the executive po,:wers of government. Also, DER has advocated that the
adoption of a SWUP would be of an advisory nature or as a technical document
and leaves the door open for the next Governor and his administration to make

Accordingly, my opinion is that DER intends to adopt a SWUP before 1979 and
await any legal attack or legislative action which will occur after the departure
of the present administration. If no one presents any legal attack, then submit
it as a part of the State Comprehensive Plan as the executive policy and if
acceptable, to the Legislature pursuant to the requirements of Chapter 23.013, F.S.
If it is not acceptable to the Legislature, then efforts would be exerted to have
it implemented as the executive branch of government's policy. However, this
latter course would appear to be in clear conflict with the statutory requirements
under Chapter 23.013, F.S., for implementing a State Comprehensive Plan.


November 20, 1978


TO: DONALD R. EASTER, Executive Director

FROM: JAY T. AHERN Staff Attorney

RE: DER HearTng on December 20, 1978 on State Water Use Plan

As requested by you, it is my legal opinion that Department of Environmental
Regulation (DER) intends to adopt a State Water Use Plan (SWUP) as an
advisory document after the scheduled hearing on December 20, 1978.

The whole procedure for adopting the SWUP by DER appears to be of a
pro forma nature. As you know Section 373.036(5), Florida Statutes,
provides for DER to give notice ninety days in advance of a hearing to
adopt a SWUP. This notice was given on September 15, 1978 of the hearing
on December 20, 1978. It is to be noted that the provisions on the procedure
for adoption of the SWUP are in conflict with the provisions of Chapter 120, F.S.,
on adoption of rules or policies by state agencies. The specific conflicts
are on the time for noticing of the intended action, normally at least
twenty-one days prior to the hearing, availability of the proposed rule
at the time of publication of a notice and a estimate of the economic impact
of the agency's proposed action and rule. Considering these requirements
from Chapter 120, F.S., DER has only complied with the noticing provision
which appeared on September 15, 1978 in the Florida Administrative Weekly.
All other Chapter 120, F.S., requirements have not been done. It would seem
then that DER is selecting from Chapters 373 and 120, F.S., those provisions
which will be met by it. The reason for this statement is based on the fact
the draft SWUP is not to be available until liovember 29, 1978 which is
twenty-one days prior to the December 20, 1978 hearing. This twenty-one day
period prior to the hearing for having the draft of the SWUP would allow DER
to be in compliance with the provisions and reouirements of Chapter 120, F.S.
It is my opinion that DER under Chapter 373.036(5), F.S., was required to give a
ninety day notice of the hearing which DER did, but was also required to have
available the Economic Impact Statement and the draft SWUP at this same time.
Thus, DER seems to be going through selected procedural steps or a pro forma

Taking DER's action at face value, it seems that DER intends to adopt a SWUP
pursuant to Chapter 373.036, F.S., and have it incorporated into the State
Comprehensive Plan being prepared under the control of the Division of State
Planning as contemplated under Chapter 23.013(2), F.S., as amended.

Both the STUUP and State Comprehensive Plan completions were accelerated at the
direction of Governor Askew's Executive Order 78-48 directing it be done during
his remaining administration and pursuant to and within his existing statutory

-J *

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