| Material Information
||Proposed Amendments to Section 17-40.04, Florida Administrative Code
||North America -- United States of America -- Florida
Proposed Amendments to Section 17-40.04, Florida Administrative Code
November 9, 1981
||Box 9, Folder 6 ( SF- State Water Policy/Property Rights Issue - 1980-1981 ), Item 17
||Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
November 9, 1981
FR: TEC &
RE: Proposed Amendments to Section 17-40.04,
Florida Administrative Code
The Secretary of DER proposes to amend this rule to include new
Subsections 5 and 6. A copy of the proposed amendments is attached.
Subsection 5 is essentially the same as the "property rights" provision
we supported earlier. It is a restatement of existing law and should
have no impact on existing SWFWMD regulatory programs. To add clarity
to this language, I would recommend that the word "are" be added after
the first word in line 6.
Subsection 6 of the proposed amendments is more troublesome. The
negative language in Subsection 6 defeats the clarity of the provision.
For example,isthisprovision intended to mean that consumptive uses of
water which cause significant adverse impacts on off-site land uses
are prohibited? Conversely, the language in this provision could be
construed by implication to mean that significant adverse impacts on
off-site land uses are allowable. If neither is intended, what does
Subsection 6 mean?
The lack of clarity in subsection 6 leads me to recommend that it
"Be ieeted entirely. Why go to the trouble or creating a list of
things which are not to be "deemed authorized" by state water policy,
when we know that there are many other things which are also not
"authorized" by state water policy? Is the listing in Subsection 6
intended to be all inclusive? I think not, and for that reason would
recommend that it be deleted.
1 17-40.04 Water Use
2 (5) In implementing consumptive use permitting programs, the
3 department and the districts shall recognize the rights of prop-
4 erty owners to make consumptive uses of water from their land and
5 the rights of other users to make consumptive uses of water, as
6 both limited by law, for reasonable beneficial uses in a manner
7 consistent with the public interest that will not interfere
8 with any presently existing legal use of water.
9 (6) Nothing in this Chapter shall be deemed to authorize a
10 permitted' to make consumptive uses of water which cause signi-
11 ficant adverse impact on off-site land uses or legal uses of
12 water, or abridge the right of affected persons to seek redress
13 or mitigation of such significant adverse impacts, in an appro-
14 private forum.
15 Specific Authority: 373.026, 373.043, 403.805, F.S.
16 Law Implemented: 373.036, Part II, 373, F.S.
17 History: New.
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