FLORIDA ENGINEERING SOCIETY
1986 WATER SHORT COURSE
July 10-11, 1986
CONSUMPTIVE USE PERMITS
L. M. Buddy Blain
Slain & Cone, P.A.
Regulation of water use was authorized in 1972 by the Water
Resources Act of 1972 (Chapter 72-299, Laws of Florida). The
Act, codified as Chapter 373, Florida Statutes, provided
three criteria for determining whether water could be
withdrawn. These criteria -- reasonable-beneficial use, non-
interference with existing legal uses of water, and
colrsistency with the public interest -- provided the
foundation for water use regulation. Florida's five water
management districts have enacted rules, and have refined and
expanded their rules, policies and procedures to deal with
the large volume of permit applications. The water use
permit process has increased in complexity since the 1972
enactment of the Water Resources Act, as water planners
increasingly view our water supply as finite and subject to
competing, mutually exclusive demands that cannot all be
Tne districts' rules, policies, and procedures change to meet
perceived crises or issues in water use, so a CUP applicant
should always precede his application with a check on current
district rules, proposed rules, handbooks, written and
unwritten district policies and procedures. Even before
trhat, however, the applicant or his consultant needs to
ur.uerstand the basic framework of the CUP process the
statutory authority under which the districts and their
employees must operate.
B. SrATL:TOHY OVERVIEW
1. XAl districts are required to implement a consumptive use
perm.rtinn (CUP) program, but are granted discretion as
to area of program..."as deemed appropriate by the
governing board". Section 373.216, Pla. Stat. (1985).
2. Governing Boards of water management districts are
granted a great oeal of discretion in designing and
implementing CUP programs. The districts may require
"such permits" as would be consistent with their overall
objectives. Section 373.219(1), Fla. Stat. (1985).
3. Tr.e Governing Boards also have latitude in regard to
rrtir,. CUPs. Tnere are only three absolute, statutory
conditioi;s for granting a permit; the proposed use of the
a. be a reasonable beneficial use;
b. not interfere with any presently existing legal use
c. be consistent with the public interest.
Sec. 373.223(a)(1). Only one of those statutory terms,
"reasonable-bereficial use*, is defined within Chapter
373 t(se Sec. 373.019(4)1. "Presently existing legal
use" and "consistency with the public interest" are not
defined in Chapter 373; but "existing legal use" has been;
defined by the Suwannee River and St. Johns Districts by
rul., and the Southwest District's rules list factors
relevant to "consistency with the public interest".
4. Under the policy and philosophy of Chapter 373, existing
use, and permits are granted some degree of protection
ISection 373.223(1) b); 373.233(2), Fla. Stat. (1985)).
Land ownership does not automatically entitle the owner
to withdrawal of water for consumptive use (Section
373.2235, Fla. Stat. (19851); however, see DER Rule 17-
40.04(5), which requires that districts recognize
property owners' rights, as limited by law, to make
consumptive uses of water from their lands, if the three
basic statutory criteria are met.
5. Chapter 373 provides a skeleton for DER or districts to
fill in with rules. Section 373.229 establishes minimal
requirements for a CUP application, Very little
intormation is required by statute; the districts may
require more, and all dot Chapter 373 authorizes varying
degrees of regulatory l.volvement depending on the type
and amount of use requested;
a. ldivlJual domestic consumption--No permit required;
section 373.21i11). ('Domestic use* is drinking,
batting, cooking, sanitation only; 373.019(6).]
b. Usv of less than 100.000 gallons per day--Permit
required out no hearing is required; 373.229(3).
c. Use of more than 100,000 gallons per day and no
objection received--Permit required and no I.hearil'
d. Use of more than 100,000 gallons per day and
objections) received--Permit required; Chapter 373
implies that hearing required.
6. Chapter 373, Part II, is expressly intended to be an
exclusive administrative system for water use. All
rules, orders, hearings, and procedures of the districts
must comply with Chapter 120, Administrative Procedures
Act, and appropriate administrative rules; Sec. 120.52,
Florida Statutes. Section 373.023 prohibits state and
local agencies from enforcing any special act, rule,
regulation, or order, affecting waters of the state,
unless filed with DER.
7. Part II of Chapter 373 sets forth specific provisions for
consumptive use permitting, but practitioners should be
aware of other provisions of Chapter 373 relevant to
CUPs. Specifically, see the definitions in 373.019;
state policy in 373.016; general powers of DER
established in 373.126; and State Water Use Plan mandated
8. Section 373.0395 was amended in 1985 to require that
districts adopt as rules their inventory of prime ground
water recharge areas to Floridan or Biscayne aquifers,
after notice and hearing. Chapter 85-42, Laws of
9. Section 373.036 was amended in 1985 to add requirements
that the Southwest and St. Johns River Districts enter
into an interagency agreement allowing Southwest to
process applications for activities within Polk County
requiring a St. Johns permit. Chapter 85-211, Laws of
C. DISTRICT RULES
Chapter 373 did not establish specific requirements tor
permitting systems. Nevertheless, the five districts
implemented substantially similar systems. The extent to
which each district follows or varies from a.basic procedure
is discussed in this section; eccentricities or peculiarities
of each district are discussed in (D) (H).
a. All districts require basic information on method of
withdrawal, capacity of facilities, site, use, and
b. St. Johns provides for a preapplication conference;
a. Most district rules establish a permit processing
i. NWFWND -
$100.00 (Standard permit for a system);
$ 50.00 (Standard permit for individual
$ 00.00 (Governmental entity) R40A-2.201.
ii. SJRWMD $60.00; R40C-2.201.
iii. SWPWMD $10.00; R40D-0.201.
a. Some district rules authorize the Board to require a
I. SRWHD; R4UB-1.704.
ii. SJRWND; R40C-1.05.
iii. SoFWMD; R40E-1.604.
4. Additional Information
a. Most district rules authorize requests for additional
information or clarification, after application
i. NWPWMD District shall request additional
information within 30 days. Applicant may
direct the district to act on application "as
is"; R40A-1.203 (effective 1/1/86).
ii. SRWND District shall notify applicant
within 30 days if application incomplete or
additional information required. Application
will be denied within 90 days. Extensions of
time are authorized; R40B-2.101(3).
iii. SJRWMD 30 days. District shall, issue
Intent to Deny if applicant has not responded
or completed the application within 60 days.
Applicant can request extension beyond 60
iv. SWFWMD 30 days. District will deny if
applicant fails to respond within 90 days.
If applicant responds within 90 days, and
District still considers application
incomplete, shall grant another 30 days for
response. District may request clarification
or additional information, based on
additional information submitted, within 30
days after additional information is
v. SoPWMD 30 days. District will deny if
information is not supplied within 90 days.
If applicant responds, District may still
consider application incomplete and shall
grant another 30 days within which to
5. Public Notice
a. Sections 373.116 and 373.229 require that the
districts, "upon receipt of an application*, publish
notice stating objections may be filed.
i. NWFWMD "Upon receipt of a completed
application", and no earlier than 14 days
before Board action, the Board must publish a
notice; R40A-2.121. (* This rule was amended
effective 1/6/86, and Part II of Chapter 40A-
1 will govern CUP processing. At date of
publication, Chapter 40A-1 was not available
to the authors.)
ii. SRWMD "Within 30 days of receipt of a
completed application'; R406-2.121; 2.111.
ili. SJRWMD "Upon receipt of an application*;
iv. SWFWMD "No later than 30 days after receipt
of application"; R40D-1.603(4). Notice also
shall be mailed to all property owners
located within a certain distance from
withdrawal site (distance depends on amount
of withdrawal); R40D-2.12112). Notice may be
posted "in prominent locations" near the
withdrawal site; at least two notices shall
be posted if the withdrawal will exceed
m"d average annual on a single day; R40D-
v. SoFWMD "No later than 30 days alter
6. Notification that application is complete.
a. In most districts, the Board shall notify applicant
of the date the application is-complete" ISRWMD,
H408-2.101; SWFWMD, R40D-1.603(8); SoPWMD, R40E-
1.6031;6). (NKFWMD, See Chapter 40A-1.1
7. Proposed Agency Action/Staff Report
a. SoPWHD, SWFWMD and SRWHD rules require a staff report
"within a reasonable time" after the District
notifies the applicant that the application is
complete (R40E-1.603)6), R40E-1.603(8), R408-2.131).
Notice of Proposeo Agency Action and staff report
must be mailed to applicant and others who have
b. NkFWMD My issue Notice of Intent to Deny; R40A-
2.342. (Hepealed 1/6/86.1
c. SJRWMD Must issue Notice of Intent to Deny; R40C-
a. NWFNMD Board shall hold a public hearing on
applications to wihdraw more than 100,000 gpd if
objections received; R40A-2.121(3). (* See note at
0. SRhW "The board ,y consider a permit application
at its next meeting which is 14 days after the Notice
of Proposed Agency Action'; R409-2.131(3).
c. SJNtMD "The Board shall hold a hearing on each
application for a perm when required by law, when
any person whose substantial interests are affected
makes a timely request for a hearing, or at the
discretion of the Board"; R40C-1.07(6).
d. SWHOMD The board shall consider the permit
application on the date indicated in the Notice of
Proposed Agency Action; R40D-1.603(9).
e. SoFWMD Tne Board shall consider the permit
ai.plication at its next available regulatory meeting
following the mailing of Notice of Proposed Agency
D. NORTHWEST FLORIDA WATER MANAGEMENT DISTRICT hULE:
1. Permits: General and Standard.
a. General Permits are granted b rule to non-exempt
water users who are not required to have a standard
b. Standard Permits may be granted upon compliance with
role c ertera. R40A-2.101.
2. Distinguishes between permits (whether General or
Standard) for individual well, or wells, or for a system
of wells; defines "system" in R.40A-2.021(5).
3. Exemption: (a) domestic uses (b) pump test and monitor
wells; (c) non-public supply shallow wells in certain
areas and (d) heating and cooling systems which return
non-treated, uncontaminated water by means of a closed
system to the source from which the water came. R40A-
4. Permit Transfers
a. Standard Permit: Board approval required.
b. General Permits Automatic, upon transfer of
withdrawal site. R40A-2.351.
E. SUWANNEE RIVER WATER MANAGEMENT DISTRICT RULES (40B)
a. Existing Legal Use any permitted use; all exempt
domestic use; R40B-2.021.
2. Permits: General and Individual
a. General Permit: Less than 10 mgd maximum and 2 mgd
b. General Permits are granted by R40B-2.042 upon filing
Notice of Intent to Withdraw (however, R4ib-2.04211)
in main Volume Eleven of Fla. Admin. Code refers to
withdrawal of less than 10.000 gallons per day,
i. Applicant for General Permit with existing
use must supply only that information
"personally known" to the applicant; R40B-
ii. $20.00 processing fee.
c. Individual Permit: follow basic course of
application, additional information, notice, and
d. Limiting conditions: certain conditions authorized
for any permit; certain conditions authorized only
for individual permits; R40B-2.381(3).
3. Exemptions: fire fighting; dewatering; repair or
maintenance of manmade retention structures; domestic
uses self-supplied residential uses; R40B-2.051.
4. Transport of water across District or intra-District
a. Unless existing use, prove compliance with State
Water Policy (R17-40.05); R4GB-2.301(2).
5. Permit transfer: The permit must be transferred if
manner of use will remain the same; R409-2.351.
6. Permits cannot be issued unless the withdrawal complies
with statutory criteria (Section 373.223, Fla. Stat.
(1983)M and with DER "Water Use" rule (R17-40.041; R4a-
F. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT RULES (40C
1. No specific exemptions. Permits are required depending
on amount of withdrawal or size of capacity of withdrawal
a. 100,000 gpd, average annual;
b. I mgd capacity (individual well or combination);
c. well's largest permanent water bearing casing has
outside diameter of 6* or more. R40C-2.041.
2. Definitions:- 'presently existing legal use of water'
means a legal use that exists at the time of receipt of
the application for the CUP; R40C-2.301(3).
3. Lists criteria that must be met for a use to be
reasonably (sic) benefEcial:
a. the use must be in such quantity as is necessary for
economic and efficient utilization;
b. the use must be for a purpose that is both reasonable
and consistent with the public interest;
c. the source of the water must be capable of reducing
(sic) the requested amounts of water
d. the environmental or economic harm caused by the
consumptive use must be reduced to an acceptable
e. to the degree which is financially, environmentally,
and socially practicable, available water
conservation and reuse measures shall be used or
proposed for use;
f. the consumptive use should not cause significant
saline water intrusion or further aggravate currently
existing saline water intrusion problems;
g. the consumptive use should not cause or contribute to
h. the water quality of the source of the water should
not be seriously harmed by the consumptive use;
i. the water quality of the receiving body of water
should not be seriously harmed by the consumptive
In addition, the use must not:
(aa.) significantly induce saline water encroachment,
Ibb.l cause the water table or surface water level to
be lowered so that stages or vegetation will be
adversely and significantly affected on lands
other than those owned, leased or otherwise
controlled by the applicant; or
(cc.) cause the water table level or aquifer
potent ometric surface level to be lowered so
thnt significant and adverse impacts will affect
existing legal users or
lod.) require the use of water which the Board has
reserved from use by permit; or
lee.) cause the rate of flow of a surface water course
to be lowered below a minimum flow; or
(ff.) cause the level of a water table aquifer, the
potentiometric surface level of an aquifer
source, or the water level of a surface water
source to be lowered below a minimum level.
4. The District is considering adding a conservation and
reuse requirement to its CUP rules.
5. Transport across district boundaries requires "approval
of each affected district'. SJRWMD permit is required
even if withdrawal is in another district, if diversion
or use will occur within SJRWMD. R40C-2.312.
6. Permit transfer: Mandatory if source and use remain the
7. Requires issuance of identification tag upon issuance of
8. "Use Classifications" include "aesthetic use"' "freeze
protection'; "navigation use', R40C-2.S01.
G. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT RULES (40D)
1. Exemptions: domestic use, existing permits; R40D-2.051.
Permits are required depending on amount of withdrawal or
size or capacity of withdrawal equipment:
a. I agd during any single day, or 100,000 per day
b. well has inside diameter of 6' or more;
c. 1 agd capacity (individual well or combination of
2. Permits: Individual and General.
a. General Permit: For withdrawal from well with inside
diameter of 6 or more and which are not exempt
i. General Permit requires written authorization to
ii. General Permit issued if use not greater than
100,000 gpd average, 1 mgd maximum (except within
a prescribed area along the Coast); R40D-20.301.
3. Definitions: 'Consistency with the public interest*,
relevant factors are listed; R40D-2.301(5).
4. Presumption that use is consistent with public interest
if use wil average less than 1,000 gallons per acrt pi.r
5. Identification tags will be issued; R40D-2.401.
6. Permit transfer: Permit holder may assign permit to
subsequent land owner, assignee must accept assignment
and assume responsibility for all permit terms and
conditions, and Board must be notified in writing.
Requires transfer of all lands covered by permit, and
approval may be denieiTf assignee previously mismar.gea
SWFWMD permit; R40D-0.381.
H. SOUTH FLORIDA WATER MANAGEMENT DISTRICT RULES (40E)
a. domestic use by individual users;
b. fire fighting;
c. individual home use (home lawn and ornamental
irrigation, car washing); R40E-2051.
2. Permits Individual and General.
a. General Permit; Withdrawals not greater than 100,000
gpd (10,000 gpd average or 20,000 gpd maximum in
certain area); R40E-20.302.
i. Applicant for General Permit must file a Notice
of Intent 5 or 60 days before withdrawal; R40E-
ii. General Permit requires written authorization to
3. Incorporates "reasonable-beneficial use" factors listed
in DER Water Use Plan IR17-40.04); R40E-2.301(1)(d).
1. DISTRICT POLICIES AND HANDBOOKS
1. Districts may follow certain practices or procedures, or
act according to certain policies, that are not evident
from the agency's written rules. These policies-and
practices may be unwritten or there may be some intra-
agency memoranda or reports that establish or reflect
such -non-rule policy'. A CUP applicant should ir.q-.r,
in writing, of the existence of any such non-rule police.
Agency action pursuant to non-rule policy may be
appropriate in certain situations. See, e.g., McDonala
v. Department of Banking and finance, 346 So2d 9 (t
DCA 1977). In other instances, courts have invalidated
agency action pursuant to policy not adopted by rule.
E.g., Departmsnt of Administration v. Harvey, 356 So2d
323 list DCA 197 8) Amos v. Department of HNelth and
Rehabilitative Services, 444 Sod 43 (lst DCA 1963);
Department of Administration v. Stephens, 344 So2d 290
list DCA 195i).
2. The St. Johns River and South Florida Districts have
issued very helpful applicants' handbooks. These contain
District rules, application forms, and sample permits.
More importantly, the handbooks express the districts'
policies on aquifer pump testing and explain in plain
language their CUP policies and procedures, and
criteria for evaluation of applications.
The St. Johns River applicant's handbook on consumptive
use explains that district's application and
interpretation of the statutory criteria of reasonable
beneficial use, interference with existing use, and
consistency with public interest. It also explains how
the district determines whether the requested quantity of
water is appropriate for the proposed use.
The South Florida District's Permit Information Manual
Volume III (Management of Water Use) specifies how to
calculate whether the proposed use will interfere with
existing legal uses, and how to determine whether there
is a reasonable need for the quantity of water requested.
The CUP applicant should inquire whether the district
having jurisdiction has a handbook; if it does, it should
be studied carefully. If the proposed use is large
volume, or controversial, or any opposition from tne
public or from the district is expected, the applicant
should not begin the application process until he is
prepared to present evidence of compliance with district
policies as expressed in the handbook. The districts are
beginning to enforce their criteria literally and
strictly especially in the case of large volume uses.
If the district with jurisdiction does not have a
handbook, ask for copies of all district policies for
internal review of CUP applications.
J. STATf. REGIONAL, AND LOCAL PLANS THAT CAN AFFECT THE CUP
1. State Water Use Plan.
Mater users are likely to be affected by the State Water
Use Plan and the water management districts' groundwater
basin resource availability inventories. The water use
plan and the resource inventory are not new concepts.
Even before the latest wave of growth management
legislation, Florida law directed that a state water use
plan be prepared.
In 1972 the legislature directed that the Departmnt of
Natural Resources, headed by the Governor and Cabinet and
through its Division of Interior Resources should:
"Proceed as rapidly as possible to
study existing water resources in
the state; means and methods of
conserving and augmenting such
waters; existing and contemplated
needs and uses of water for
protection and procreation of
fish and wildlife, irrigation.
mining, power development and
domestic, municipal and industrial
uses, and all other related subjects
including drainage, reclamation,
flood plain or flood hazard areas
zoning, and selection of reservoir
sites.* Part I, Section 6,
Ch. 72-299, Laws of Florida.
DNR was further directed to cooperate with the State
Department of Administration, .ureau of Planning, or its
successor agency, to progressively formulate "as a
functional element of a comprehensive state plan" an
integrated, coordinated plan for the use and development
of the waters of the state based on the above studies.
This plan was to be known as the state water use plan and
the department was directed, in formulating it, to give
cue consideration to:
a. The attainment of maximum reasonable beneficial use
b. The maximum economic development of the water
resources consistent with other uses.
c. Ihe control of such waters for such purposes as
environmental protection, drainage, flood control and
d. The quantity of water available for application to a
reasonable beneficial use.
e. The prevention of wasteful, uneconomical, impractical
or unreasonable uses of water resources.
f. Presently exercised domestic use and permit rights.
g. The preservation and enhancement of the water quality
of the state.
h. The state water resources policy as expressed by the
Water Resources Act of 1972.
Each of the governing boards of the two then-existing
water management districts and the three new water
management districts were directed to cooperate with the
department in conducting surveys and investigations of
water resources and to furnish the department with all
available data of a technical nature, and to advise and
assist the department in the formulation and drafting of
those portions of the state plan applicable to the
In addition, the governing boards of the water management
districts were directed to establish minimum flows and
levels for certain ground water and surface water at
which further withdrawals would be significantly harmful
to the water resources of the area.
The department was directed to give careful consideration
to the requirements of public recreation and protection
and procreation of fish and wildlife.
This state water use plan together with the water quality
standards and classifications of the Department of
Pollution Control or its successor agency was to
constitute the Florida Water Plan.
Three years later (in 1975) the Florida Environmental
Reorganization Act was passed, creating the Department of
Environmental Regulation in order to centralize authority
over and pinpoint responsibility for the management of
the environment; the responsibilities of DNR were
transferred to DER insofar as they related to the state
During 1975 and 1970 each of the water management
districts began to develop district water use plans.
These evolved into published and disseminated district
water management plans during 1977 and 1978.
In December 1978, the Department of Environmental
Regulation issued a draft of a State Water Use Plan,
Phase 1 marking the completion of a six year planning,
process. This compilation contained an introduction and
overview together with the executive summaries of the
five water management district plans. This draft was
never formally adopted.
In 1981, DER adopted a water policy, set forth in Chapter
17-40, F.A.C., as the first part of the state water use
plan. Chapter 17-40 is used by the districts in their
evaluations of CUP applications, and CUP applicants
should review DER's water policy before submitting an
application to the water management districts.
DER recently completed its State Water Use Plan ana
submitted it to the legislature in March 1986, as
required by 1985 growth management legislation. The
legislature accepted the Plan, but did not enact it as
law. DCR has not codified its Plan as a rule. The Plan
will guide the districts in their regulation of water
user and each district is required to produce its own
agency plan to implement the policies in the State Water
2. State and Regional Comprehensive Plans.
The State and Regional Planning Act of 1984 (Section
186.507, Fla. Stat. 1964) requires that the Governor's
Office develop, and the legislature approve, a State
Comprehensive Plan. Chapter 85-57, effective Nay 31,
1985, adopted a State Comprehensive Plan composed of 25
topics, with goals and policies. The Plan does not a&q
to or amend any agency's regulatory authority or
authorize adoption of agency rules or policies not
otherwise legally authorized. Chapter 85-57, at Section
2, includes Water Resources as part of the State
Comprehensive Plan as follows (quoted from 85-571:
(1) Water Resources
a) Goal--Florida shall assure the availability of dn
adequate supply of water for all competing Uses
seemed reasonable and beneficial and shall
maintain the function of natural systems and the
over present level o surface a roun w ter
qual ty. orda shall improve and restore the
quality or waters not presently meetir.o w.ter
Ensure the safety and quality of drinking
water supplies and promote the develoirent of
reverse smosis and desa llnizr ton
technoloAes for develop nq water supplies.
2. Identify and protect the functions of water
recharge areas and provide incentives for
S n. Enaura th+ devlnonment of lanal an
reqionl water supplies within water
management districts instead of transporting
surface water across district boundaries.
4. Protect and use natural writer systems in lieu
o structural alternatives and restore
5. Ensure that new development is compatible
with existing local and regional water
SEstablish minimum seasonal flows and levels
for surface watercourses with primary
consideration given to the protection of
natural resources, especially marine,
estuarine, and aquatic ecosystems.
7. Discourage the channelization. diversion, or
dammnio of natural riverine systems.
S. Encourage the development of a strict
loodplain manaeent proqran by start and
local overnment e ned to preserve
hydrolially sign icant wetands and other
natural floodplain features.
SProtect aquifers from depletion and
contaminatior. through approprirat regulat.ry
programs and through incentives.
LO. Protect surface and groundwater quality and
0 quantity in the state.
Li. Promote water conservation as an integral
part water ignaqemnt program s ewTll af
he ue and reuse of water of the lowest
acceptable quality for the purposes Intenade.
12. Eliminate the discharge of inadequately
treated wastewater and stormwater runoff into
the waters of the state.
13. Identify and develop alternative methods of
wastewater treatment. dispal, and reuse of
wastewater to reduce degradation of water
14. Reserve from use that water necessary to
support essential nonwithdrawal deans
incudinq navigation, recreation. and the
protection of fish end wildlife.
In addition. Regional Planning Councils must submit
Comprehensive keqional Policy Plans by December 31, 1986.
The Taupa Bay Regional Planning Council/Community
Resources Committee has established a Water Supply Task
Force to develop regional issues to include in the
Regional Policy Plan. This Policy Plan, as ultimately
developed, and other plans developed by other planning
councils, may affect the CUP process and CUP applicants
should be aware of these plans.