Title: Research Memorandum re: Reclassification of Lake Manatee sources
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Title: Research Memorandum re: Reclassification of Lake Manatee sources
Alternate Title: Research Memorandum from L. M. Blain and T. E. Cone, Jr. to SWFWMD Governing Board re: Reclassification of Lake Manatee sources. Relationship between Reasonable-Beneficial Use Determinations under Chapter 373. Fla. Stat. and Present and Future Most Benefi
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
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General Note: Box 5, Folder 25 ( SF STATE WATER POLICY - VOL. III ), Item 27
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Volume ID: VID00001
Source Institution: University of Florida
Holding Location: Levin College of Law, University of Florida
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RESEARCH MEMORANDUM



June 1, 1981



TO: Governing Board

FR: L. M. Blain and
T. E. Cone, Jr.

RE: Reclassification of Lake Manatee sources.
Relationship between Reasonable-Beneficial Use
Determinations under Chapter 373, Fla. Stat. and
Present and Future Most Beneficial Use Decisions
under Chapter 403, Fla. Stat.


ISSUE PRESENTED:

Under Chapter 373, Fla. Stat., the DER and the water management
districts are authorized to determine whether particular proposed
uses of water are "reasonable-beneficial uses". Under Chapter 403,
Fla. Stat., DER and the Environmental Regulation Commission (here-
after, ERC) are authorized to group the waters of the state into
classes in accordance with the "present and future most beneficial
uses" of those waters.

Is there a relationship between these determinations?

Will a decision concerning beneficial use of water under either
chapter influence or control consideration of the same questions
in a proceeding pending under the other chapter?

SUMMARY CONCLUSION:

There is no direct relationship between determinations of "reasonable-
beneficial use" and determinations of the "present and future most
beneficial use" for a water body. These decisions are based on
different criteria and serve very different purposes. The deter-
mination of the "present and future most beneficial use" for a
water body under Chapter 403 will not directly control subsequent
determination by water management districts concerning applications
for consumptive use under Part II of Chapter 373. However, since
the water management districts should not, by permit, authorize
unlawful degradation of water quality (see, AGO-075-16), the ERC
determination of "most beneficial use" may impose indirect limita-
tions on how the water may be used. This may result even though
the ERC decision will not, in and of itself, control subsequent
consideration of "reasonable-beneficial uses" by water management
districts under Chapter 373.








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ANALYSIS:

1. DEFINITIONS AND PURPOSES:

(a) Under Chapter 373 a "reasonable-beneficial use"
is defined as the use of water in such quantity as is necessary
for economic and efficient utilization for a purpose and in a
manner which is both reasonable and consistent with the public
interest. Section 373.091(4), Fla. Stat. (1979). In order to
obtain a permit for a proposed consumptive use of water (in those
areas of the state where consumptive use permitting has been
implemented), the applicant must establish that the proposed use
of water qualifies as a "reasonable-beneficial use", among other
things. If the applicant fails to establish that the proposed
use is a "reasonable-beneficial use" then the application for
the permit to consume water will be denied. The decision in
each case is whether the proposed use is a "reasonable-beneficial
use" and not whether the water body should be preserved for that
particular use.

Further, the fact that a particular use from one
water body has been found to be a "reasonable-beneficial use"
does not prevent other and different uses from the same source
to likewise be found "reasonable-beneficial." The decision in
each case focuses on the use proposed by the applicant, alone.
The question is not whether the proposed use is "as beneficial"
as others from the same source, instead, the question is whether
the proposed use itself is "reasonable-beneficial."

(b) Under Chapter 403, DER and the ERC are authorized
to group the waters of the state into classes made in accordance
with the "present and future most beneficial use", in order to
implement a program for the prevention, abatement and control of
pollution of the waters of the state. Section 403.061(10) Fla.
Stat. (1979). The phrase..."present and future most beneficial
use"...is not defined in Chapter 403, Fla. Stat., or in the re-
gulations adopted by DER in Chapter 17-3, Florida Administrative
Code. However, the effect of a determination is clear under the
law and regulations. The effect of classifying a water body for
a particular designated use is to determine'which of several
different water quality criteria are applicable to that water
body. See Sections 17-3.011(4) and 17-3.081, Florida Administrative
Code. See also, Florida Water Law 1980 (Maloney, Plager, Ausness
and Canter/Water Resources Research Center, University of Florida
Publication No. 50), Page 402 and 403.

Under the water quality regulatory scheme in Chapter
17-3, Florida Administrative Code, all the waters of the state have
been grouped in one of several different classifications. They
have been classified according to the "designated use" of each
water body. This is defined as the present and future most bene-
ficial use of a body of water as designated by the ERC. Section








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17-3.021(7), Florida Administrative Code. For example, the waters
in Class I-A have a "designated use" of..."potable water supply".
Section 17-3.081, Florida Administrative Code.

2. PREEMPTION:

When the ERC determines a "designated use" for a
particular water body, this does not mean that the "present and
future most beneficial use" of that water body has any priority
or preference over other uses of that same body of water in
determining whether particular consumptive uses should be per-
mitted under the provisions of Chapter 373, Fla. Stat. This
results from the fact that Part II of the Florida Water Resources
Act of 1972, as amended, preempted the regulation of the consumptive
use of water and superseded all conflicting laws or ordinances to
the contrary. Section 373.217(4), Fla. Stat.

Under Part II of the Florida Water Resources Act of 1972,
as amended, the water management districts or DER, as part of a
plan for implementation during periods of water shortage, are
authorized to impose restrictions on one or more classes of con-
sumptive use permits, as may be necessary to protect the water
resources of the area from serious harm during the shortage.
Section 373.246, Fla. Stat. This is the mechanism which determines
the priority of use in times of shortage. The "most beneficial
use" determination for the water body has been superseded by the
Chapter 373 regulatory scheme.

The fact that a particular water body may have a "present
and future most beneficial use" for potable water supply, does not
necessarily mean that in times of shortage the potable water supply
use would have preference over other competing uses. This deter-
mination would be made based on the provisions of the water shortage
plan applicable to the water body under Section 373.246, Fla. Stat.

This interpretation of the relationship between reason-
able-beneficial use determinations and determinations of "most
beneficial use" is supported by Chapter 403, Fla. Stat., and
regulations adopted by DER. The purpose of grouping waters into
classes under Chapter 403 is to put into effect a program for the
prevention, abatement, and control of pollution of the waters of
the state. Section 403.061(10), Fla. Stat. Chapter 403 does not
authorize the waters of the state to be grouped into classes by
the 'ERC for the purpose of fixing priority of use in time of water
shortage. Further, under the DER regulatory scheme which estab-
lished the different classifications of water bodies, the classes
are arranged in order of the degree of protection from pollution
required...not in order of the degree of priority of use in times
of shortage. Section 17-3.081, Florida Administrative Code. The
classification of a water body according to a particular designated
use or uses does not preclude use of the water for other purposes.
Section 17-3.081(2), Florida Administrative Code.













3. DETERMINATION OF MOST BENEFICIAL USE:

Although Section 373.217, Fla. Stat., preempts the
regulation of consumptive use to DER and the water management
districts, decisions by them concerning particular uses of water
do not preclude the ERC from arriving at an independent decision
concerning the "most beneficial use" 'for a water body. This
results from the fact that the determination of "most beneficial
use" is made by the ERC for purposes of prevention, abatement,
and control of pollution of the waters of the state. The "reason-
able-beneficial use" determination under Chapter 373 has priority
over Chapter 403 decisions only in matters involving the allocation
of water to consumptive use. Section 373.217, Fla. Stat. does
not supersede or supplant decisions made under Chapter 403 for
the purpose of preventing or abating pollution of the waters of
the state.

Because the concept..."present and future most beneficial
uses"... is not defined in Chapter 403 or in Chapter 17-3, Florida
Administrative Code, it is unclear what factors or criteria make
one use more beneficial than another. Under current administrative
practice it seems clear that the ERC should consider all relevant
factors in making this determination. These factors should include
information concerning the existing and projected uses for the
water body. Information from the various water management districts
concerning existing permitted uses or projected consumptive uses
in the future would seem very useful in making this determination.

Implicit in some of the material we have researched is
the assumption that the use of water for potable supply is, per se,
the "most beneficial use" for any water body. The fact that the
potable water supply use falls within Class I-A and is protected
by the most stringent water quality criteria does not mean that
this use is therefore "the most beneficial use". Under Chapter
403, Fla. Stat., and Chapter 17-3, Florida Administrative Code,
the classification of a water body follows the determination of
its "present and future most beneficial use", and not the other
way around.


CONCLUSION:

The decision of the ERC under Chapter 403, Fla. Stat., determining
the "most beneficial use" for a water body is not necessarily the
preferred use for that water in times of shortage. This determi-
nation is made under Part II of Chapter 373, Fla. Stat., and the
ERC decision does not preclude a contrary determination by the
water management districts under Chapter 373, Fla. Stat.


LMB/TECj r/cer





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