October 21, 1981
TO: L. M. BLAIN, GENERAL COUNSEL
FROM: JAY T. AHERN,. ATTORNEY, GENERAL ADMINISTRATION Cd
RE: State Water Policy
As requested, I have reviewed the two rule change notices by
the Secretary of DER. These comments are submitted from a
legal posture on the rule changes and not as an obstacle to
the adoption of a rule acceptable to the parties to the
Basically, I envision subsection (5) to reiterate the water
crop principle. Any changes suggested would be a restatement
of the property rights in water beneath or upon ones' land.
However, I have inserted some wording for consideration in
subsection (5) which would read as follows:
(5) In implementing consumptive use permitting programs,
the Department and the Districts shall recognize the rights
of an applicant property-owners to make consumptive uses of
water from their land and in a manner that is compatible
with the rights of other users to make consumptive uses of
water as both are allowed limited by law, for reasonable-
beneficial uses in a manner consistent with the public
interest and that will not interfere with any presently
existing legal use of water.
Reason for suggested changes: The use of the term applicant is
less offensive to imply one is banking water as a property owner,
but is broad enough to include the owner of property. Use of
the term in a manner that is compatible with is to cover competing
users and non-interference with legal uses of the resource. The
deletion of the term limited and use of the term allowed may be
considered one of semantics, but conveys what the Supreme Court
ruled in the Tequesta Case in a positive manner without conceding
a possible property right to the water.
Subsection (6) is a rephrasing of the rights recited as existing
in subsection (5) above plus preserves a right of redress for any
quantified damages resulting from the exercise of any consumptive
use. At face value the proposed rule seems to enlarge upon a
right that is not legislatively authorized by Chapter 373, F.S.,
but only through other sections of Florida Statutes and case law.
Thus, I view this subsection as inappropriate to appear as part
of the State Water Policy.
cc: J. E. Curren
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DEPARTMENT OF ENVIRONhMNTAL REGULATION
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
pame ( '.es, 3 .
-October 14, 19
October 14, 1901
The Department of Environmental Regulation announces a public work-
sh*rp to which interested persons are invited.
DATF AND TINEs November 10, 1981, 10:00 A.N.
PLACE: Conference Room B, Twin Towers Building, 2600 Blair Stone
Road, Tallahassee, Florida.
PrlPPO)SR To receive public comment on revisions to the state's water
quality standards, Chapters 17-3 and 17-4, Florida Administrative
Cod-, including testimony on the economic impacts of proposed revi-
sions. Copies of an agenda may be obtained by contacting the
Department of Environmental Regulation, Twin Towers Buildings 2600
Blair Stone Road, Tallahassee, Florida 32301, (904) 488-4807),
Attentions William Hinkley.
heMo pFlrthe aimi Vse' Owdr I Vn e d l
I* SLAIN stoms aO.
awc as onr #
AM ULE TITLE Water Policy
i-L The Department announces the continuation of a hearing
previously held on March 27, 1981, and continued on June 8, 1981,
before the Secretary of the Department of Environmental Aequlation
for the purpose of adopting the general section of a Rtate Water
Policy and discussion of rights to use of water. The Secretary
will consider adopting two subsections dealing with rights to use
DATE AND TINEB November 17, 1981, at 10:00 A.M.
PLACEs Department of Environmental Pegulation, Fourth Floor ron-
ference Rooms & D,0 Twin Towers office Ruildiniq, 600 f lair Stone
Road, Tallahassee, Florida. A copy of the Proposed Psle and Eronomir
Impart Statement may he obtained by contacting the office of Pushlite
Information, Department of Environmental Requlation, Twin Tnower
office Buildinq, 2600 Plair Stone Road, Tallalsansae, Florida 31201.
THEP FULL TEXT OF THE PROPOSED RUL IS1 AS FOLLOWS
/7-40.04 Water Use
(S) In implementing consumptive use permitting programs, the
d4a a ent nd the districts shall recognize the rights of ri
Sto mae s on ptive e of water from their land ad the
rqh her users to make consumptive uses of water, an bothlAjt.t
1 i.m,>i4 by law, for reasonable beneficial uses in a manner consistent
with the public interest that will not interfere with any presently
*xietinq legal use of water.
(I) Nothing in this chapter shall be deemed to authorize a
r(rmittee to make consumptive us n of water which cause significant
adverse impacts on off-qite land uses or legal uses of water, or
altrjidq the right of affected persons to seck redress or itlinat ion
.fr ~'h lqnificant advoroe Inpan-t, in an approprint.e forum.
F.pre ifnle uhorfty 'i7 .i7f, 7t .1,r i 4tyr. '..
Liw Implementeds .173.0,*, Part it. 711, r.S.
*'.:** TV, Nflw.
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DOCKET NO. 81-4R
October 19, 1981
To: J. Ahern, Esqv
Ed Curren, Esq.
Re: State Water Policy
Attached is a copy of a notice in connection with the state water
policy. It includes two proposed rules which I would like for
you to look at very closely and let me have your comments, in
writing, by November 9.