Title: Letter to Chairman, Board of County Commissioners
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Permanent Link: http://ufdc.ufl.edu/UF00051121/00001
 Material Information
Title: Letter to Chairman, Board of County Commissioners
Alternate Title: Letter to Chairman, Board of County Commissioners, Pinellas County, Clearwater, Fl. Commenting on attorney's concerns relating to the water policy rules
Physical Description: 9p.
Language: English
Publication Date: February 9, 1981
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
General Note: Box 2, Folder 3B ( STATE WATER POLICY ), Item 111
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00051121
Volume ID: VID00001
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Rights Management: All rights reserved by the source institution and holding location.

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Bruce Tyndall, Chairman
Board of County Commissioners
February 9, 1981 Page 7

It is my recommendation that the Pinellas County Commission
oppose the provisions outlined in this letter and make the com-
mission's position known to the Department of Environmental
Regulations prior to implementation of these policies.
Very truly yours,



JO T.-ALLEN, .



JTAJr/bw

xc:
Commissioner John E. Chesnut, Jr.
Commissioner Charles E. Rainey
Commissioner Gabriel Cazares
Commissioner Barbara Sheen Todd
Arthur R. Finney, Jr., P.E.
Fred E. Marquis, County Administrator











Bruce Tyndall, Chairman
Board of County Commissioners
February 9, 1981 Page 6

proposed rule emasculates this provision. By the use
of the words "projected water needs" of an area, the
rule totally expands the source of origin provision
and, in my opinion, eliminates any possibility for
any transportation of water. "Projected water needs"
for what period of time???? To the year 2000? To
the year 2050? The concept of excess water withdrawal
is predicated on the fact that if there are other
available sources of water in a county, that county
or other water supplier must develop that source of
water before any "source of origin" prohibition may
/ be imposed. The proposed rule does not speak to this
problem, but infers that only consideration of developed
V water resources is to be considered in determining
whether this criteria has been met. Then, too, what
does the word "area" mean? There is no definition of
\ the word "area" does it mean county or district
basin, or what?

/ We must at all costs oppose this provision and, if
\ enacted, must give serious thought to whether or not we
should challenge in the courts its validity.


GENERAL COMMENTS:

The underlying premise of viewing these rules from the stand-
point of protecting Pinellas County and its water supply must be
bottomed upon preventing the establishment of procedural or sub-
stantive rules which establish a legal basis by which a Water
Management District or the Department of Environmental Regulation
may limit, intrude upon or halt the supply of potable water to
the citizens of Pinellas County. The above-outlined provisions
establish such a mechanism. Rules and regulations may be applied
leniently or stringently, depending upon the philosophy-and politi-
cal intent of the members of the Water Management District or the
/ director and staff of the Department of Environmental Regulation.
- / The establishment of a mechanism which has the potential of dis-
mantling the Pinellas County Water System must be vigorously
opposed. These rules will be in effect long after those who :i-
tiate them have left their seat of power. Therefore, whether the
rules are well-intended or not is irrelevant. The only relevant
question is whether or not there is an established mechanism to
do substantial and far-reaching harm to the supply of potable
water to the citizens of Pinellas County. In regard to the above
rules, the answer to this question must be in the affirmative.

Continued, please...










Bruce Tyndall, Chairman
Board of County Commissioners
February 9, 1981 Page 5

Department's designated legislative power. The deter-
mination of whether major costs and benefits are adequate
J is that of a supplier, not a regulator. It is up to
Pinellas County or the West Coast Regional Water Supply
Authority to determine whether-or not it is cost-efficient
to obtain and transport water, not the Department or the
District.
3. Note that the major costs, benefits and environ-
mental impacts of the supplying area may be considered.
In my opinion, the costs and benefits to the supplying
area are ambiguous. I don't know what this means.
Pinellas County owns the land in the supplying area
from which the water is pumped. The environmental im-
pacts, if confined to the property, should be of no con-
cern to the Department or District. If major costs and
benefits to the supplying area mean the costs to or bene-
fits to the county from which the water is taken, obvi-
" ously these factors will always be negative factors.
There will always be a cost and no benefit to the supply-
n area. or these reasons, this portion of the rule.I
should be opposed.
4. THERE IS NO MORE DETRIMENTAL PROVISION IN THESE
RULES THAN SUBPARAGRAPH (d), WHICH STATES:
"The present and projected water needs of the
supplying area are reasonably determined and can be
met if the transport takes place."
In the 1972-73 legislative session, Pinellas County
advocated the source of origin provision contained in
FS 373.1961(5), which states:

"In the performance of and in conjunction with, in
other powers and duties, the governing board of a water
supply management district existing pursuant to Chapter
373: (5) shall not deprive directly or indirectly any
county wherein water is drawn of the prior right to the
reasonable and beneficial use of water which is required
to supply adequately the reasonable and beneficial needs
of the county or any of the inhabitants or property
owners therein."
The interpretation of this provision is simply th,.t
S only excess water from a county may be withdrawn and
supplied to another county.. Subparagraph (d) of the

Continued, please...











Bruce Tyndall, Chairman
Board of County Commissioners
February 9, 1981 Page 4

criteria cannot be permitted to stand in the rules, and
if the rule is passed, I will recommend to the Commis-
sion legal action to eradicate immediately the reinsti-
Stution of the Water Crop rule into the rules of the
Department of Environmental Regulation.

S* 17-40.04(4) states that conservation of water shall be
item indicates that the word "shall" is to be changed to either
S"should" or the item eliminated completely. While no cne in
\ public service can take a position that water should not be con-
served, this provision is a virtual "Pandora's box" in that the
type of conservation is not specified. Passage of such a rule
could permit a Water Management District to require extremely
expensive conservation measures, which would increase unreasonably
the cost of water to the public. For instance, the requirement of
reuse of sewage water with the piping facilities which would be
required to be put in throughout the county, with its obvious
extensive capital cost, could totally raise havoc with an already-
inflated water cost to the public.

17-40.05(2) (Water Transport) provides that in deciding
whether the transport and use of water across district boundaries
is consistent with the public interest, the district should con-
sider five criteria, which include water conservation and reuse
programs, major costs, benefits and environmental impacts, trans-
port environmental and economic acceptability, the present and
projected water needs -f the supplying area are reasonably deter-
mined and can be met if the transport takes place, (tc.
You will note that in the draft, transport of water across
county boundaries has been stricken. If this deletion holds, and
the rule is passed without county restriction, this will be a big
plus for Pinellas County. On the other hand, the criteria
attempted to be established are detrimental to Pinellas County's
interests in the following respects:
I. Requirement of conservation programs and reuse
Program s could have too great a financial impact upon
our water system, as stated in my comment to rule
17-40.04(4) above.
2. Determining the adequacy of major costs, benefits
and environmental impacts for both the supplying and
receiving areas constitutes, in part, action beyond the

Continued, please...











Bruce Tyndall, Chairman
Board of County Commissioners
February 9, 1981 Page 3

use permit application is detrimental to the interests of Pinellas
County. These reasons are:
1. Pinellas County must constantly obtain permits
on its existing wellfields, being required A mt to
permits every three to five years. The subjectivee ri-
teria constitute a legal basis for reduction of pumpage
at our wellfields or even total cessation at our well-
fields.
2. At present, FF 373.223 (Conditions for a Permit-
states that in order to obtain a consumptive use permit
under Chapter 373 Fla.Stat. an applicant must establish
that the proposed use of water is a reasonable beneficial
use, will not interfere with any presently existing legal
use of water, and is consistent with the public interest.
The expanding of this statute from three criteria to 15
"standards or criteria obviously makes it much more diffi-
cult to obtain a consumptive use permit. In my opinion,
if the Depar-ment enacts this provision, it will do so
without legislative authority since the hearing officer
in "Water Crop I specifically ruled that SWFWMD could
not add an additional criteria to iS 371.223, such as
the ount of land owned, leased or otherwise controlled
as a basis for granting or denying a permit. The urging
of this rule is directly contrary to this decision.
Without question, both the Department and all Water Man-
agement Districts know about this decision, yet they per-
sist in establishing themselves as the legislature of
Florida and expanding the conditions which are required
S to be met by applicants to obtain consumptive use per-
mits.

3. The addition of subparagraphs (g) and (1), making
as standards or criteria the impact of the withdrawal on
\ land not owned or legally controlled by the user and the
safe yield of the source of water again is establishing
a basis for the imposition and use of the WATER CR0P RULE.
As a reminder, the Water Crop rule simply states that
applicants cannot withdraw more than 1,00) gallons per
acre per day based upon the amount of land which is owned,
leased or otherwise controlled. The commission is well
aware of the fact that the Water Crop theory was held to
be invalid by a hearing officer, and the appeal by SWFWMD
was dismissed -- yet, we have the Department of Environ-
mental Regulation attempting to re-establish this doctrine,
which simply cannot be tolerated. Simply stated, these

Continued, please...











Bruce Tyndall, Chairman
Board of County Commissioners
February 9, 1981 Page 2

Department means by "mitigate" adverse alteration of water
Resources could reasonably be interpreted as requiring aquifer
levels to be maintained much higher than in the past. Whether
or not such alterations would be considered an adverse alteration
of the water resource would depend upon the interpretation of the
Water Management District and the Department of Environmental
,j) Regulation.
I believe that we should seek to more specifically define
\ this provision because of the possible adverse interpretation
which might be given to it.

17-40.03(6) states that local water supplies should be
developed to the maximum extent practicable prior to transmission
or use of water across district boundaries. ou will note that
the attack on intercounty transfer of water has been stricken.
I am elated over this turn of events; however, we should be
apprised of the fact that the rule has not yet been passed and
the rule may be passed in its original form rather than its
amended form. I still have the same problem with the rule which
1 would require the development of all local water supplies before
transportation of water across district boundaries is permitted.
Again, water development must be cost-efficient. If Pinellas
County 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. The rule does not speak to this issue.
If the rule were amended to read "where hydrologically and filan-
cially feasible, local water suplis should eto the
maximum extent practicable prior to the transport or use o
water acr-sdistrict boundaries", the rule would be entirely
S- acceptable to me, and not pose a threat to Pinellas County.

17-40.04(2) (WaterUse) provides that in determining
whether a permit should be granted, consideration should be
given to evidence presented concerning 15 factors or criteria,
such as the social, economic and environmental value of the use,
the extent and amount of social, economic and environmental harm
caused, the safe vild of the source of water, whether the impact
\ of the withdrawal e-xtends to lands not owned or legally controlled
by the user, the purpose, method and efficiency of use, etc.

X I THIS PROVISION IS EXTREMELY HARMFUL TO PINELLAS COUNTY AND,
IN MY JUDGMENT, MUST BE RESISTED AT ALL COSTS. There a number of
reasons why expanding the criteria for determining a consumptive

Continued, please...

















'February 9, 1981


Bruce Tyndall, Chairman
Board of County Commissioner.-
Pinellas County
315 Court Street
Clearwater FL 33516

Dear Mr. Chairman:

On December 30, 1980, I wrote to you and the other commis-
sioners outlining my concerns relating to proposed water policy
rules, which the Department of Environmental Regulation intends
to adopt sometime in March of 1981. Since that time, there has
apparently been a substantial number of revisions to the rules,
which for the most part I am pleased to say have eliminated a
number of objectionable rules, which I pointed out to the
commission in my December letter.

I am in receipt of a rule revision draft sent by Buddy
Blain, SWFWMD counsel, to Lou de la Parte, counsel for the
West Coast Regional Water Supply Authority. A copy of the
transmitted rule revisions, which as you can see are substan-
tially written upon and edited, is enclosed.

Unfortunately, I still have serious concerns with a portion
of the proposed rules, which I will attempt to outline for you
in this letter.

17-40.03(5) states that, as a general policy, measures
should be undertaken to mitigate adverse alteration of water
resources where feasible and in the public interest. You will
note from the draft that the words "restore or otherwise com-
pensate for the previous" have been stricken. My obvious concern
is that the word "mitigate" is so broad in meaning that it is
capable of numerous interpretations, many of which are adverse
to Pinellas County's interest. There has always been a feeling
by staff personnel in the Department of Environmental Regulation
that aquifer levels should be restored to that of the time that
the Indians ruled Florida. I have heard this stated on numerous
occasions throughout at least the last three years. What the

Continued, please...





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