Title: Letter from an attorney writing on behalf of Pinellas County Commission
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 Material Information
Title: Letter from an attorney writing on behalf of Pinellas County Commission
Alternate Title: Letter from an attorney writing of the feelings and policy of the Pinellas County Commissions concerning the draft of the proposed water policy
Physical Description: 5p.
Language: English
Publication Date: Feb. 20, 1981
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
General Note: Box 2, Folder 3B ( STATE WATER POLICY ), Item 95
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00051105
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: Levin College of Law, University of Florida
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Full Text







Charles Littlejohn
Tallahassee, Florida
February 20, 1981 Page 5


in this fashion. For this reason, it is recommended that the
words "projected water needs" be eliminated and either the pro-
visions in Chapter 373 Fla.Stat. be relied upon for protecting
counties or areas as to "source of use" protection, or the statu-
tory language contained in Chapter 373 Fla.Stat. be substituted
for the pa section (d) re erred
If the rule was to be amended with the language of
F 373.1961(5), to wit:

"The present water needs of the supplying area are reason-
ably determined and can be met if the transport takes
place; and provided further that such transportation of
water shall not deprive directly or indirectly any area
wherein water is withdrawn for such transportation of the
prior right to the reasonable and beneficial use of water
which is required to supply adequately the reasonable
beneficial needs of the area or any of the inhabit s
"herein. "

The only other information which I believe we agreed we
would supply you was a recommended definition of "safe yield",
which Pinellas County and its entire staff believes is an adequate
definition. In our judgment, safe yield can and should be defined
as follows:

"The maximum amount of water which can be withdrawn from an
applicant's land, utilizing strictly hydrological principles,
which will not harm the resource."

I wish to express my appreciation for the opportunity of
filing this information with the Department, with the hope that
the Department will see fit to consider and.act upon Pinellas
County's recommendations. Naturally, should you have any further
questions concerning the positions taken in this letter by the
Pinellas County Commission, please do not hesitate to inquire.
Very truly yours,



JTAJr / bw JO TALLEN,

Board of County Commissioners
Fred E. Marquis, County Administrator
Arthur R. Finney, Jr., P.E.












Charles Littlejohn
Tallahassee, Florida
February 20, 1981 Page 4

WATER CROP THEORY. As we discussed in the workshop,
the Department does not intend to sanction the Water
Crop theory, and it is presumed that the district is
in accord with the proposition that from a legal stand-
point, the Water Crop theory may not be applied in
specific consumptive use permit applications. There-
fore, a notation should be made in the rule to speci-
fically advise all water management districts who would
have to, for themselves, construe these provisions that
the Department does not intend to sanction application
of the Water Crop theory.

6. Whether or not water conservation measures are
being taken should not be a condition for granting or
denying a consumptive use permit. If such criteria is
to be used, then water conservation measures should be
defined. It is extremely expensive and not cost-effi-
cient to reuse sewer water to a great extent. If such
a criteria was superimposed upon the rate structure of
any municipal or county water supply, rates would be
unreasonably high or prohibitive. Therefore, it is
suggested that subsection (i) be eliminated for these
reasons.

7. The criteria of the projected demand for compet-
ing uses is most troublesome. To begin with, one of the
three criteria recognized in FS 373.223 is that the new
use will not compete with a prior existing use. This
criteria should be substituted for the criteria "k" in
the rule.

8. The criteria of "other factors impacting water
resources" is simply too general and nebulous to warrant
inclusion in a state policy or plan, and for this reason
it is recommended that this criteria be eliminated.


17-40.05 (Water Transport) The Commission has substan-
tial problem with the provisions of subsection (d), which indicates
that one of the criteria is "the present and projected water needs
of the supplying area are reasonably determined and can be met if
the transport takes place". The term "projected water needs"
needs to be defined as to point in time, if it is to be used. Is
it to be to the year 1990 or the year 2000 or the year 3000? It
is felt that such a provision is not workable and will lead to
great confusion and problems in later years, if it is implemented

Continued, please...







4 y




Charles Littlejohn
Tallahassee, Florida
February 20, 1981 Page 3

1. The suitability of the use to the source of
water -- I truly do not understand how this would
apply or precisely what it means. If it is to remain
in the rule, a better definition of what is intended
should be substituted.

2. The social, economic and environmental value
of the use -- water management districts should not
be concerned with either the social or economic
aspects of the use of water. The economic considera-
tions should be the sole prerogative of the water
supplier, not the water regulator. Additionally,
Chapter 373 Fla.Stat. does not envision a water man-
agement district determining the social value of
granting a consumptive use permit. In Pinellas
County's opinion, this type of criteria falls outside
the legislative authority granted the Department or
the water management districts.

3. The extent and amount of social, economic and
environmental harm caused -- our comments concerning
the criteria of "social" and "economic" are the same
as the statement immediately above. Additionally, the
question of environmental harm should be addressed in
aquifer levels, as envisioned in FS 373.042, that being
a level or limit below which "further withdrawals would
be significantly harmful to the water resources of the
area". Therefore, there is no need for this criteria
at all, as it i's covered elsewhere.

4. The practicality of mitigating any harm by
adjusting the quantity or method of use -- often times,
if lake levels are drawn down because of aquifer with-
drawals, supplementation of the lake by pumping one of
the wells into the lakes is a regular condition made in
permits, with which we are familiar. Absent the ability
to completely mitigate a substantial harm or one which
would be significant, the water withdrawal should not
be permitted, since the harm with which we are talking
about is harm to the aquifer or water resources of the
area. Therefore, it is suggested that this criteria be
amended accordingly.

5. The provisions of whether the impact of the with-
drawal extends to lands not loaned or legally controlled
by the user, the safe yield of the source of water, etc.,
can be construed as sanctioning the application of the
Continued, please...












Charles Littlejohn
Tallahassee, Florida
February 20, 1981 Page 2


"Where hydrologically and financially feasible, local water
supplies should be developed to the maximum extent practicable
prior to the transport or use of the water across district
boundaries .


17-40.04(2) (Water Use) provides that in determining
whether a permit should be granted, consideration should be
given to evidence presented concerning 15 factors or criteria,
such as social, economic and environmental value of the use,
the extent and amount of social, economic and environmental
harm caused, etc. There a number of objections to the rule
as proposed:

a. The three criteria specified in FS 373.223 are
expanded contrary to the legislative mandate in the
statute and contrary to the ruling by the Division of
Administrative Hearings in the case of Pinellas County
v. Southwest Florida Water Management District, Volume
II, No. 9, May 5, 1980 of the Administrative Orders,
which held that such criteria could not be expanded.
If it is the intent to redefine the words "reasonable,
beneficial use", then, in our judgment, this legally
cannot be permitted either because the legislature has
already defined what reasonable, beneficial use is,
and any expansion of such definition would fall into
the same category and rule of law as that enunciated
in Pinellas County v. SWFWMD, supra.

b. If the criteria are to be expanded, they are
too subjective. Most of the criteria are not capable
of advising the consumptive use applicant of precisely
what he needs to prove in order to gain a consumptive
use permit. Therefore, if the criteria are applied,
the question of whether the permit should be granted
or not is thrown open to the unbridled discretion of
the water management district. Under such circumstances,
the applicant is merely placed in a position of request-
ing a consumptive use permit and depending entirely upon
the grace of the water management district. This is not
the situation at the present time under the three criteria
as specified in FS 373.223.

Therefore, it is recommended that all subjective require-
ments be eliminated from the proposed rule.
c. There are a number of criteria with which we find
fault:
Continued, please...


















February 20, 1981


Charles Littlejohn
Assistant to the Secretary
Department of Environmental Regulation
2600 Blairstone Road
Tallahassee FL 32301

Re: State Water Plan

Dear Mr. Littlejohn:

The purpose of this letter is two-fold. First, I wish to
advise you in writing of the feelings and policy of the entire
Pinellas County Commission concerning the recent draft of the
proposed water policy. Second, I wish to supply you with infor-
mation, which we discussed at the workshop on February 19, 1981,
concerning the water policy, which I was to provide you.

The Pinellas County Commission wishes to go on record as
opposing certain provisions of the water policy, as presently
contemplated, as follows:

17-40.03(6) states that local water supplies should be
developed to the maximum extent practicable prior to transmis-
sion or use of water across district boundaries. The Commission
is pleased with the elimination of the reference to intercounty
transfer; however, the Commission is still troubled over the
requirement of maximizing use before transfer occurs. The objec-
tion is two-fold. First, there is a definite problem should the
rule be interpreted to require the development of all local
water supplies before transportation of water across district
boundaries is permitted. Water development must be cost-efficient.
If a district had the ability to develop a wellfield at 1,000
gallons per day, but it would cost several million dollars to
develop such a small resource, the development of this resource
would not be cost-efficient. If, on the other hand, it was eco-
nomically feasible to develop a water resource in another district
which would be cost-efficient for the same dollars or less, trans-
fer of the water across district boundaries would be prevented
under a literal interpretation of the rule.

It is recommended that the rule be amended to read:
Continued, please...





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