Title: First Draft Water Regulatory Authority
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 Material Information
Title: First Draft Water Regulatory Authority
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: First Draft Water Regulatory Authority
General Note: Box 10, Folder 7 ( Unknown - 1979-1980 ), Item 18
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00002199
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


FIRST DRAFT .-


WATER REGULATORY AUTHORITY

: Statutory Provisions;


1. Sectioni373.016(2),' Florida Statutes, declares it to be the
Ii4ayapf 'the Legislature -to "-prItot the conservation, devel-
opment, and proper utilization of surface and ground water"
but,-4lso to "prevent damage from floods, soil erosion, and
excessive drainage" as well as, among other things, to
"preserve natural resources, fish and wildlife."

2. Section 373.223(11, Florida Statutes, requires that "to obtain
a Cconsumptive use] permit... the applion t mausa esabgah
that the proposed use of water: (a) is a reasonable
beneficial use... (b) will not interfere with any presently
existing legal use of water; and (c) is consistent with the
public interest."
Subsection (3) provides that the governing board '"m~rwyw e"
from use by"permit applicants, water in such locations and
quantities, and for such seasons of the year, as in its
judgement may be required fore" e protetion of-ish and
wil ~ife or the public health and safety.... However, all
presently existing legal uses of water shall be protected
so long as such use is not contrary to the public interest."

3. Section, 373.219,(1), Florida Statutes, provides that the
governing board "ay- .iimpose such reasonable dawo4itias, as are
necessary to assure that such use is &njfa with the
eve.all j;Jectiees of- the aLstripct.,. .iA4. o *: tami ul bo
Ua..,wate.r,.-resources of the area,... Land that no permit
shall be required for domestic consumption of water by
individual users."

4. Section 373.01915), Florida Statutes, states that reasonablele'
bene'ficial ~pe moans the use of water in such quantity as
is necessary for economic and efficient utilization for a
purpose and in a manner which is ~ath reae.mable and consaim
.tnt with the public interest."

5. Sectionm73.042, Florida Statutes, provides that "the water
management districtt as a whole, the department or the governing
board shall establish... &inima fiem, for all surface water
courses in the area.... 5i6 & ... ~i~axum awP1s ive].Cs ...
[for3 ... ground water ....' and that "the governing board
.ihanialseo- qpnsidea, 'ana at their discretion M*1~Pe -Vide*
for, the protection of nonconsumptive uses in the establishment
of minimum flows and levels."


-iB~xl-i





APPLICATION IN SWFWMD:

Unfortunately, the "public interest" has not been defined
by the legislature or specifically addressed by the courts
in this state insofar as it relates to use of water.

The primary problem is to determine just how much water may
be consumptively used in the district, and still be consistent
with the public interest and not interfere with any presently
existing legal use of water.

It is necessary to determine the effect of removing water
through consumptive use. SWFWMD has been wrestling with this
for almost 15 years, and has made substantial progress.
The scientific staff, together with USGS, consulting firms,
and others have developed techniques which have proved to be
quite reliable in calculating predictable results from with-
drawals of varying quantities of water.

Obviously, these calculations must be based upon an accurate
determination of aquifer characteristics and an assumed amount
of precipitation over an extended period of time. These
factors vary throughout the district and are measured through
the use of pump tests.

To determine the amount of water available in the district,
the water crop concept has been developed. It is now an ac-
cepted fact that peninsular Florida receives no water from
north Florida. There is a hydrologic divide extending across
the state just south of Gainesville and no water flows south
across that line, leaving rainfall as the only source of
fresh water.

The amount of water available on a continuing basis has been
designated as the water crop or water budget. In its simplest
terms, water crop (WC) is defined to be the amount of rainfall
(precipitation, P) minus the amount of evaporation and plant
-LIS e" (orv r%+ -dn-rncri rA--i nn ... .f A s vt-nivd don p bhv the USGS
in the mid-1960's formed the basis for the numerical values
attributed to water crop. To date, no subsequent studies
have refuted these values as averages over the entire district.

The current valuation of the water available over the entire
District, as defined by the water crop method (WC = P Et),
is 1,000 gallons per day per acre, or approximately 13
inches of water per year.

The evapotranspiration within the District has been determined
to be approximately 39 inches per year and the average annual
rainfall ranges between 50 and 55 inches. Therefore, the
water available over the entire district as defined by the
water crop method (P Et =WC) is 11 to 16 inches, say 13h
inches of water per year, or approximately 1,000 gallons
per day per acre.


~C-S~


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PROPERTY


1Up To I Ft.|
2.IM(4)@


rand


clay


limestone


Use and

|2.11(3)

PUMPING REGULATORY
WELL WELL


Adverse E-if:ts
On Vg':taticn
2.11(2)(e)


Original Water Table


....- --- **
--"6. Water Table AFTER
Pumpage
SOriginal Potentiometric Surface


,__ Potentiometric Surface
AFTER Pumpage


SWFWMD
Dwg 76102
5/8/76 @-


Original Salt Water Interface


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C CFI'S USE IS A REASONABLE-BENEFICIAL USE



The reasonable-beneficial use standard requires that
water be used for a beneficial purpose, in an efficient and
non-wasteful manner, that does not unreasonably interfere with
other uses or the rights of the general public.

Uses associated with mining, manufacturing and general
industrial purposes are uniformly recognized as beneficial
under the common law. The Florida legislature has gone further
and required that the State Water Plan seek to attain the
maximum reasonable-beneficial use of water for certain enumerated
purposes, including mining and industrial uses (9373.036(1) and
(2), F.S.). Phosphate mining, benefication operations, and
chemical processing are all "beneficial" purposes.

-Efficient and non-wasteful water use is assured by
CFI's heavy emphasis on water conservation. The proposed project
would maximize the reuse of water in recirculating water systems
that have flows more than ten times the amount withdrawn from
supply sources. Additionally, the project would minimize the
use of aquifer water by using as much surface water as efficient,
environmentally sound engineering practices will allow. Only
S that amount of water which is reasonably needed for an efficient
Operation will be used. A portion of withdrawn water will be
returned to surface waters which leave the property in the form
of environmentally acceptable, treated effluents.

The proposed use of water is reasonable. It has sub-
stantial, positive socio-economic value to the public. The
amount of water used would be less than that allowed by the water
crop limit and, with one minor exception in the "worst case"
analysis, the use will meet all the objective withdrawal criteria
contained in SWFWMD rules. Detailed engineering studies have
demonstrated that no harm to neighboring landowners or to the
public is foreseeable from the proposed use.

The intended use is clearly consistent with the public
interest. The applicant is a major manufacturer and distributor
of basic nitrogen, phosphate and fertilizer products. Owned
by nineteen regional North American farm cooperatives, CFI serves
1.5 million farmers in 42 states and two Canadian provinces. It
will provide a reliable, economical source of fertilizer. As
Secretary of Agriculture, Earl Butz recently noted, the phosphate
industry is "...a basic industry on which the world's food supply
depends." (The Tampa Tribune, p. 8, Feb. 18, 1976). The project
also will produce substantial local economic benefits in the


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0p/. Li L. *







form of new job opportunities, increased demands for goods,
and increased tax revenues. 'The company's investment in land
and facilities will be approximately $300,000,000. The facility,
once built, will permanently employ over 700 persons at an
annual payroll in excess of $10,000,000. In addition to the
direct and indirect benefits to the economy of Hardee/County,
the state and the country, the public interest ina high quality
environment will be protected and assured through an extensive
program of air and water monitoring implemented at the site.

In summary, the proposed use is not merely a reasonable-
beneficial use--it is a use which will positively contribute
to interests of the. public. The consumptive use application
should be granted.


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Item 1


'16%


]-2


t A I I i ,i I I


JtM


1.11 Conditions for an off site Consumptive Use Permit.

Any applicant for a new use or an increased use involving withdrawal

of water for off site purposes will be considered as follows:

(1) The intended consumptive use:

(a) Must be a reasonable, beneficial use.

(b) Must be consistent with the public interest.

(2) Applicant will show that the withdrawal of water will not:
.(a) Cause the rate of flow of a stream or other water course to

be lowered below the minimum rate of flow established by the

Board.

(b) Cause the level of the surface of water to be lowered below

the minimum level established by the Board.

(c) Significantly induce salt water encroachment.

(d) Interfere with any legal use of water existing at the time

of the application.

(3) The applicant will show:

(a) The uses to which the water will be put.

(b) What effect, if any, the withdrawal will have upon:

1. The flow of streams and other water courses.

2. The levels of the potentiometric surface.

3. The levels of the water table.

4. Lake stages.

5. Vegetation.

6. Water quality in the area of withdrawal.




[Id I, _,, 1 .


Item 1 continued



(4) In demonstrating whether a proposed new consumptive use of water

is a reasonable beneficial use, is consistent with the public

interest and will not interfere with any legal use of water

existing at the time of the application, the Applicant will

present a Water Management plan which will specifically address

deficiencies identified in paragraph 2, if any, and significant

impacts predicted in paragraph (3).

A permit will be granted if the proposed water management plan reasonably

meets the requirements of paragraphs 1, 2, and 3 above.


_I





.. .-t .. ...


6J 2.11 Conditions for a Cor.s'-ptive Use Permit

Notwithstanding the above (subsections 1 9) any applicant

for a new use or an increased use involving withdrawal of water

for off-site purposes will show that:

(1) The intended consumptive use:

(a) Is reasonable and beneficial

(b) Is consistent with the public interest

(2) The applicant will show.

(a) The uses to which the water will be put

(b) Estimates of what effect,-if any, the withdrawal

will have upon:
1. The flow of streams and other water courses

2. The levels of the potentiometric surface

3. The levels of the water table

4. Lake stages

5. Vegetation

6. Water quality in the area of withdrawal

(3) The proposed withdrawal normally will not:

(a) Cause the rate of flow of a stream or other

water course to be lowered below the minimum rate of flow estab-

lished by the Board

(b) Induce salt water encroachment

(c) Interfere with any legal use of water existing

at the time of application.
(d) Cause the level of the potentiometric surface

in the aquifer, in the District as a whole, or within ground water

s basins, to drop below a minimum level established by the Board

which would be significantly harmful to the resource.










(4) In demonstrating whether a proposed consumptive

use of water is a reasonable beneficial use, is consistent

with the public interest, and will not interfere with any legal

use of water existing at the time of the application, the appli-

cant will present a water management plan which, among other

things, should specifically address significant impacts predicted

in (2), and deficiencies identified in (3), above, if any.


















-. '"




Proposed Amendment No. 6





Proposed Amendment No. 6


PUBLIC HEARING No. "F"




Revised 10-6-76


Amend Subsections (1), (3) and (4) of Rule 16J-2.11 to read:

T6J-2.11 Conditions for a Consumptive Use Permit.


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(1) The intended consumptive use:

(a) Must be a reasonable, beneficial use.

(b) Must be consistent with the public interest.

(c) Must W411 not interfere with any legal use of water existing
at the time of the application.

(2) Issuance of a permit will be denied if the withdrawal of water:
(a) Will cause the rate of flow of a stream or other water course

to be lowered below the minimum rate of flow established by
the Board.

(b).Will cause the level of the potentiometric surface to be

lowered below the regulatory level established by the Board.

(c) Will cause the level of the surface of water to be lowered
below the minimum level established by the Board.

(d) Will significantly induce salt water encroachment.

(e) Will cause the water table to be lowered so that the lake stages

or vegetation will be adversely and significantly affected on

lands other than those owned, leased, or otherwise controlled

by the applicant.

(3) In determining whether a proposed new consumptive use of water is

a reasonable beneficial use, is consistent with the public interest'

and will not interfere with any legal use of water existing at the

time of the application, as well as in determining the locations

and quantities of water, and the seasons of year, to reserve from


*






2

3 use by permit applicants as required for the protection of fish and

4 wildlife and the public health and safety, the Board will specifically

S consider, among other factors:

6 (a) The uses to which the water will be put.

7 (b) What effect, if any, the withdrawal will have upon:

8 1. The flow of streams and other water courses.
9 2. The levels of the potentiometric surface water under-

10 lands not owned by the applicant.

11 3. The levels of the water table under lands not owned by

12 .the applicant.

13 4. The lake stages and recreational lands not owned by the

14 applicant.

15 (c) The relative area and capacity of applicant's land and the amount

16 of water being withdrawn. In this regard the Board will be

.17 guided by the water management principle that, except for

18 good cause, no permit should be granted for the consumptive

19 use of more water than, on an annual basis, is replenished

20 by precipitation falling on lands owned, leased, or other-

21 wise controlled by the applicant. Except where otherwise

22 determined, the amount of water replenished by precipitation

23 will be presumed to be thirteen inches (13") per year.

24 Applicant'st sha be so situated as to minimize the

25 impact of water level drawdowns on adjacent property not

.26 legally controlled by the applicant.

27 .1. Where economics, type of use, and modern conservation

28 practices make it possible, the amount of water to be

( 29 consumptively used shall not exceed the amount of water

30 annually replenished by precipitation falling on lands

31
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owned, leased, or otherwise controlled by the applicant.

2. Where the desired consumptive usef-ai-s to meet the

conditions specified in 16J-2.11(3)(c)l, th~oapps~ 1iet

-.a ,requestuth.egeaton, nd fpr good cause shown a

permit may be issued provided that:

(i) Withdrawals under said permit will not reduce the

quantity of water authorized under any existing.

permit.

(ii) Applicant agrees to adjust applicant's withdrawals to

a rate which will mitigate damage to the water

resources and-other environmental resources on

lands not owned, leased, or otherwise controlled

by the applicant, and to abide by such regulatory

levels as the Board may establish for this purpose.

IssuaRee-ef-a-permit-wi44-be-deR4ed-4f-the-ame nt-ef-water-eensumpt4vely

used-will-exeeed-the-water-eiep-ef-lands-ewnedi-leased--ep-ethepw4se

seRtrelled-by-the-apphleaRt.(Pree4p4tatien-less-evapetransp4pat4eR)

threugheut-the-BDstrPet-wi4l-be-assumed-te-be-three-hundred-and-s4xty-fve

(6~8 T90)-ga4enRs-pei-yeap-pep-aeFe-

(4) The applicant should be especially prepared to show that the proposed with.

drawal is consistent with the public interest, will not interfere with any

presently existing legal use of water, and is a reasonable beneficial use,

if the withdrawal ef-water:

(a) From a stream or other water course will must-net reduce the.rate

of.flow by five percent (5%) or more than-five-pePeent-f %) at the

time and point of withdrawal.

(b) Will Must-net cause the level of the potentiometric surface under

lands not owned, leased, or otherwise controlled by the applicant

to be lowered more than five feet (5').
-3-






2

3 (c) Will Must-net cause the level of the water table under lands not
S owned, leased, or otherwise controlled by the applicant to be

5 lowered more than three feet (3').

6 (d) Will Must-net cause the level of the surface of water in any lake

7 or other impoundment to be lowered more than one foot (1') unless

8 the lake or impoundment is wholly owned, leased, or otherwise

9 controlled by the applicant.

10 (e) Will Must-net cause the potentiometric surface to be lowered below

11 sea level.

12 (5) The Board for good cause shown may grant exceptions to the provisions

13 of paragraphs (2), (3), and (4) above when after consideration of all

14 data presented, including economic information, it finds that it is

15 consistent with the public interest.
l, (6) The Board may condition the granting of a permit so as to require:

17 (a) Notification of the date on which withdrawals are commenced with

18 such notification to be postmarked no later than five days (5)

19 after the date of such commencement.

20 (b) Installation of flow metering or other measuring devices.

21 (c) Reports of withdrawals on forms to be provided which shall be

22 submitted within the times prescribed.

23 (d) Installation of observation wells-or other monitoring facilities

24 and may establish regulatory levels.

25 (e) Future reductions in withdrawals or diversions, provided the

26 schedule of any such reductions or withdrawals shall be set.forth
27 specifically on the face of the permit.

8 (7) The Board may reserve water from use by permit in such locations and

29 quantities, and for such seasons of the year, as in its judgment may

30 be required for the protection of fish and wildlife or the public

31 health and safety. Such reservations shall be subject to periodic
-4-






2

3 review and revision in the.light of changed conditions. However, all

4 \ legal uses of water existing January 1, 1975, will be protected so
5 long as such use is not contrary to the public interest.

6 (8) In considering applications for permits under this Rule, the portion
7 of water consumptively used will be determined based on available

8 data, or in the absence of such data, it shall be established by

9 reasonable calculations approved by the Board.

10 (a) Permits for withdrawal of water from an area owned, leased or

11 otherwise controlled by an applicant to be used on such area to

12 irrigate fruit trees, seed and plant beds, vegetables, other food

13 crops, pasturage and to irrigate nursery stock, including ornamental

14 plants, trees and shrubs, will be issued if there is no surface

15 runoff from the area from such irrigation. If surface runoff occurs,

1, the amount of the runoff shall be the primary consideration in
17f. determining the amount of consumptive use.

18 (b) Permits for water to be applied to plants, trees and shrubs, and to
19 nursery stock, including ornamental plants, trees and shrubs, and

20 fish farming ponds, as a direct means of frost or freeze protection

21 during time when temperatures-are below or near freezing, will be

22 issued even though such application may cause temporary surface

23 runoff.

24 (c) Permits for removing water from fish farming ponds periodically

25 for the primary purpose of harvesting the fish or for treating,

26 reconditioning or restocking such ponds, and for filling or

27 maintaining such ponds, will be issued without considering such
activity to be a consumptive use of water.

29 .(d) Water removed during temporary dewatering for construction of

30 building or other foundations and roadways, or during installation'

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A I- I .

2

3 of utility pipelines, cables, culverts and catch basins, will not

4 be considered to be consumptively used.

5 (9) Flow metering devices will not be required to be installed at applicant's

6 expense when all the water to be withdrawn will be used for irrigation
7 or for frost or freeze protection. The Board may supply and install

8 such devices for the purpose of testing and monitoring methods of

9 .applying water but the.cost of such activity shall be borne by the
10 District.

11 CITED AGENCY AUTHORITY:

12 (a) Rulemaking: (b) Implementation!

13 373.044, F.S. 373.219, F.S.

14 373.113, F.S. &373.223, F.S.

15 373.149, F.S.

16 373.171, F.S.

17 373.216, F.S.

18 373.249, F.S.

19 ECONOMIC IMPACT: The proposed amendment, technically speaking, should have no

20 impact on applicants. However, from a practical standpoint it should have a

21 beneficially economic impact on applicants and on the District since the

22 amendment gives greater clarity and sets forth procedures more precisely so

23 as to reduce the apprehension of applicants and to avoid unnecessary preparation.

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opposed Amendment No. 6


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Revised 10-6-76


;...----..~J ,.i~dil_ m


Amend Subsections (1), (3) and (4) of Rule 16J-2.11 to read:
16J-2.11 Conditions for a Consumptive Use Permit.

..(1) The intended consumptive use:
(a) Must be a reasonable, beneficial use.

(b) Must be consistent with the. public interest.
(c) Must Wil4 not interfere with any legal use of water existing

at the time of the application.
(2) Issuance of a permit will be denied if the withdrawal of water:
(a) Will cause the rate of flow of a stream or other water course

to be lowered below the minimum rate of flow established by
the Board.

(b) Will cause the level of the potentiometric surface to be

lowered below the regulatory level established by the Board.
(c) Will cause the level of the surface of water to be lowered

below the minimum level established by the Board.

;(d) Will significantly induce salt water encroachment.

(e) Will cause the water table to be lowered so that the lake stages
or vegetation will be adversely and significantly affected on

lands other than those owned, leased, or otherwise controlled

by the applicant.

(3) In determining whether a proposed new consumptive use of water is

a reasonable beneficial use, is consistent with the public interest-
and will not interfere with any legal use of water existiLng atth

and .uantlitiape.ofatJin. ,a the Jl as-Jn-of tLrinng-tho r-scare ns.

andlquantiti'sr of wal.r, and the .seasons of year, to reserve from





K3 use by permit applicants as required for the protection of fish and
.4 wildlife and the public health and safety, the Board will specifically
|5F consider, among other factors:

6 (a) The uses to which the water will be put.
7 (b) What effect, if any, the withdrawal will have upon:

8 1. The flow of streams and other water courses.

i 2. The levels of the potentiometric surface water under-
10 lands not owned by the applicant.
11 3. The levels of the water table under lands not owned by

12 the applicant;
S13 4. The lake stages and recreational lands not owned by the

14 applicant.
15 (c) The relative area and capacity of applicant's land and the amount
16 of water being withdrawn.. In this regard the Board will be
S"' guided by the water management principle that, except for

18 good cause, no permit should be granted for the consumptive
19 use of more water than, on anWannuaT basis, is replenished
20 by precipitation falling on lands owned, leased, or other-
21 wise controlled by the applicant. Except where otherwise
22 determined, the amount of water replenished by precipitation
23 will be presumed to be thirteen inches (13") per year.
24 Applicant's wells shall be so situated as to minimize the
25 impact of water level drawdowns on adjacent property not
26 legally controlled by the applicant.
27 .1. Where economics, type of use, and modern conservation
28 practices make it possible, the amount of water to be
; cojntuic )tiv5(ly_,y ,(d lshalil not exceed the ailmoult of water
30 annljall rjplenihd yj rci)itation falli n an

: 1 -2-




3 owned, leased, or otherwise controlled by the applicant.
4 2. Where the desired consumptive use fails to meet the
5 conditions specified in 16J-2.11(3)(c)1, the applicant

6 i may request authorization, and for good cause shown a
7 permit may be issued provided that:

8 (1) 'Withdrawals under said permit will not reduce the
9g quantity of water authorized under any existing

10 permit.
11 (ii) Applicant agrees to adjust applicant's withdrawals to
12 'a rate which will mitigate damage to the water
13 resources and other environmental resources on
14 lands not owned, leased, or otherwise controlled

15 by the applicant, and to abide by such regulatory
16 levels as the Board may establish for this purpose.

17 ssuanee-ef-a-perm4t-w4il-be-den4ed-4f-the-amount-ef-water-eensumpt4vely
18 C u' sed-will-exeeed-the-wateP-e6ep-ef-,ands-ewned -l-easedi-ep-etherw 4se
19 e. seRtfeled-by-the-applseant. (Pree4p4tatien-less-evapetraRsp4rateRn)
20 thpeugheut-the-D4str et-w4IT'-be-assumed-te-e-be-thpee-hundred-and-sxty-five

21' (365g000)-galleRs-pep-year-peP-aerev
22 (4) The applicant should be especially prepared to show that the proposed with-

23 drawal is consistent with the public interest, will not interfere with any
24 presently existing legal use of water, and is a reasonable beneficial use,

25 if the withdrawal of-water:
26 (a) From a stream or other water course will must-Ret reduce the rate

27 of flow by five percent (5%) or more than-five-pereent-(G%) at the
28 time and point of withdrawal.

2 ?- (b) Will -mcH-wt cause the level of the potentionmetric surface under
30 lands not owned, leased, or otherwise controlled by the applic>nlt

il1 to Ib lowered more than five feet (5').
3"





3 (c).Will Must-net cause the level of the water table under lands not

4 owned, leased, or otherwise controlled by the applicant to be
5(-S lowered more than three feet (3').

6. .(d) Will Must-net cause the level of the surface of water in any lake
7 or other impoundment to be lowered more than one foot (1') unless
8 .. the lake or impoundment is wholly owned, leased, or otherwise
9 controlled by the applicant.
10 (e) Will Must-net cause the potentiometric surface to be lowered below
:11 sea level.
12 (5) The Board for good cause shown may grant exceptions to the provisions
13 of paragraphs (2), (3), and (4) above when after consideration of all
14 data presented, including economic information, it finds that it is
15 consistent with the public interest.
16 (6) The Board may condition the granting of a permit so as to require:
r (a) Notification of the date on which withdrawals are commenced with

18 such notification to be postmarked no later than five days (5)
19 after the date of such commencement.

20 (b) Installation of flow metering or other measuring devices.
21 (c) Reports of withdrawals on forms to be provided which shall be
22 submitted within the times prescribed.
23 (d) Installation of observation wells or other monitoring facilities
24 and may establish regulatory levels.
25 (e) Future reductions in withdrawals or diversions, provided the
26 schedule of any such reductions or withdrawals shall be set forth

27 specifically on the face of the permit.
28 (7) The Board may reserve water from use by permit in such locations and
) quantities, and for such seasons of the year, as in its judgment iMly

30 be required for the protection of fish and wildlife or the public
31 health a.ld safety. Such reservations shall be subject to periodic
..4 -




2 ,
3 review and revision in the light of changed conditions. However, all

4 legal uses of water existing January 1, 1975, will be protected so
Y* long as such use is not contrary to the public interest.

6. (8) In considering applications for permits under this Rule, the portion
7 of water consumptively used will be determined based on available
8 data, or in the absence of such data, it shall be established by
9 reasonable calculations approved by the Board.
10 (a) Permits for withdrawal of water from an area owned, leased or
11 otherwise controlled by an applicant to be used on such area to
.12 irrigate fruit trees, seed and plant beds, vegetables, other food
13 crops, pasturage and to irrigate nursery stock, including ornamental
14 plants, trees and shrubs, will be-issued if there is no surface
15 runoff from the area from such irrigation. If surface runoff occurs,

16 the amount of the runoff shall be the primary consideration in
n determining the amount of consumptive use.

18 (b) Permits for water to be applied to plants, trees and shrubs, and to
19 nursery stock, including ornamental plants, trees and shrubs, and
.20 fish farming ponds, as a direct means of frost or freeze protection
21 during time when temperatures are below or near freezing, will be
22 issued even though such application may cause temporary surface
23 runoff.

.24 (c) Permits for removing water from fish farming ponds periodically
25 for the primary purpose of harvesting the fish or for treating,
26 reconditioning or restocking such ponds, and for filling or
27 maintaining such ponds, will be issued without considering such
28 activity to be a consumptive use of water.
9 (d) Water removed during temporary devcatering for construction of

30 building or other foundations and roadways, or during installation




2 -4
3 .. of utility pipelines, cables, culverts and catch basins, will not

4 be considered to be consumptively used.
5 (9) Flow metering devices will not be required to be installed at applicant's

6 expense when all the water to be withdrawn will be used for irrigation
7 or for frost or freeze protection. The Board may supply and install

8 such devices for the purpose of testing and monitoring methods of
9 applying water but the cost of such activity shall be borne by the
10 District.
11 CITED AGENCY AUTHORITY:
12 (a) Rulemaking: (b) Implementation:

13 373.044, F.S. 373.219, F.S.

14 1373.113, F.S. 373.223, F.S.
15 373.149, F.S.

16 373.171, F.S.
T7 1373.216, F.S.

18 1373.249, F.S.

19 ECONOMIC IMPACT: The proposed amendment, technically speaking, should have no

20 impact on applicants. However, from a practical standpoint it should have a
21 beneficially economic impact on applicants and on the District since the

22 amendment gives greater clarity and sets forth procedures more precisely so
23 as to reduce the apprehension of applicants and to avoid unnecessary preparation.

24

25

26

27 ,

28


30

31 '
"* *-.'









NOTE:


CONSUMPTIVE USE OF WATER


16J-2.11 Conditions for a Consumptive Use
Permit.
(1) The intended consumptive use:
(a) Must be a reasonable, beneficial use.
(b) Must be consistent with the public interest.
(c) Will not interfere with any legal use of
water existing at the time of the application.
(2) Issuance of a permit will be denied if the
withdrawal of water:
(a) Will cause the rate of flow of a stream or other
watercourse to be lowered beow the minimum rate o'flow
established by the Board.
(b) Will cause the level of the gotentiometric
surface to be lowered below the regulatory level
established by the Board.
(c) Will cause the level o the surface of water
to be lowered below the minimum level established
by the Board.
(d) Will significantly induce salt water
encroachment.
(e) Will cause the water table to be lowered so
that the lake stages or vegetation will be adversely
and significantly affected on lands other than those
owned, leased, or otherwise controlled by the
applicant.
(31 Issuance of a permit will be denied if the
amount of water consumptively used will exceed the
water croD of lands owned, leased, or otherwise
controlled by the anplicant. (Except where
determined otherwise, the water crop precipitation,
les evapotranspiration| throughout the District winl
Sb assumed to be three hundred sixty-five thousand
(365.000 gallons per year per acre.)
(4) The withdrawal of water:
(a) From a stream or other watercourse must
not reduce the rate of flow by more than five percent
(5%) at the time and point of withdrawal.
(bh Muist not cause the level of the
Potentiometric surface under lands not owned,
Inwmred more than five feet (')
(c) Must not cause the level of the water table
controlled by the applicant t be loweredmore than
three feet. ($'.
(d) Must not cause the level of the surface of
water in any lale or other impoundment to be
lowered more than one foot (1') unless the lake or
impoundment is wholly owned, leased, or otherwise
controlled by the applicant.
(e) Must not cause the potentiometric surface
to be lowered below sea level.
(5) The Board for good cause shown may grant
eseeptions to the provisions of paragraphs (2). (3),
and (4) above when after consideration of all data
presented, including economic information, it finds
that it is consistent with the public interest.
(6) The Board may condition the granting of a
permit so as to require:
(a) Notification of the date on which
withdrawals are commenced with such notification to
be postmarked no later than five (5) days after the
date of sch commencement.
(b) Installation AT flow metering or other
measuriug devices.


Supp. No. 63


(c) Reports of withdrawals on forms to be
provided which shall be submitted within the times
prescribed.
(d) Installation of observation wells or other
monitoring facilities and may establish regulatory
levels.
(e) Future reductions in withdrawals or
diversions, provided the schedule of any such
reductions or withdrawals shall be set forth
specifically on the face of the permit.
(7) The Board may reserve water from use by
permit in such locations and quantities, and for such
seasons of the year, as in its judgement may be
required for the protection of fish and wildlife or the
public health and safety. Such reservations shall be
subject to periodic review and revision in the light of
changed conditions. However, all legal uses of water
existing January 1, 1975, will be protected so long as
such use is not contrary to the public interest.
(8) In considering applications for permits
under this Rule, the portion of water consumptively
used will be determined based on available data, or in
the absence of such data, it shall be established by
reasonable calculations approved by the Board.
(a) Permits for withdrawal of water from an
area owned, leased, or otherwise controlled by an
applicant to be used on such area to irrigate fruit
trees, seed and plant beds, vegetables, other food
crops, and forage crops, including pasturage, and to
irrigate nursery stock, including ornamental plants,
trees and shrubs, will be issued if there is no surface
runoff from the area from such irrigation. If surface
runoff occurs, the amount of the runoff shall be the
primary consideration in determining the amount of
consumptive use.
(b) Permits for water to be applied to plants,
trees and shrubs, and to nursery stock, including
ornamental plants, trees and shrubs, and fish farming
ponds, as a direct means of frost or freeze protection
during time when temperatures are below or aear
freezing, will be issued even though such application
may cause temporary surface runoff.
-. -(c) Permitsl -or renoingwats r-Rfroinish
farming ponds periodically for the primary purpose
of harvesting the fish or for treating, reconditioning
or restocking such ponds, and for filling or
maintaining such ponds, will be issued without
considering such activity to be a consumptive use of
water.
(d) Water' removed during temporary
dewatering for construction of building or other
foundations and roadways, or during installation of
utility pipelines, cables, culverts and catch basins, will
not be considered to be consumptively used.
(9) Flow metering devices will not be required
to be installed at applicant's expense when all the
water to be withdrawn will be used for irrigationor
for frost or freeze protection. The Board may supply
and install such devices for the purpose of testing and
monitoring methods of applying water but the cost of
such activity shall be borne by the District.
General Authority 373J 4. 373.113.. 373.14., 878.171.
,$73.216. 373.249 FS. Law Implemenatd 3731.23 FS.
MUtore-Readopted 10--14. Amsnded 1541-4.


Changes proposed to meet JAPC objections are set forth on attached
sheet. These were developed after several consultations with the
JAPC staff, were scrutinized at a publiC hearing before the
Southwest Florida Water Management Dist4ict governing board and
are submitted for consideration of JAPC before final adoption and
promulgation by Southwest Florida Water Management District.

Changes are proposed to subsections (1), (3) and (4). In order
to more precisely show the total impact of the proposed changes
the first five subsections of the rule are set forth in full
with coding indicating changes by underlining additions and by
striking-through deletions. Subsections (6) through (9) are not
proposed for change are not reproduced again. (See above for
full text.)


7 7


The Joint Administrative Procedures Committee (JAPC)
objected to subsections (3), (4)(a), (b) and (c). The
present rule as adopted October, 1974, pursuant to exhaustive
hearings held in July, August, September and October, 1974,
and amended in December, 1974, after subsequent hearings,
which took effect January 1, 1975 is set forth in full
below with objectionable parts underlined.


CHAPTER 16J-2


Ir


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___ __ _~__I _____
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--------------------~----- -- I


TT~" ~--rr-u :r5*0-~s~'"'";"'mL.~t':~'r-11~~srprv


-~..,. ....






Changes Proposeh by SWFWMD to Meet JAPC Objections

1 Amend subsections (3) and (4) of Rule 16J-2.11 to read:
2 16J-2.11 Conditions for a Consumptive Use Permit.
3 (1) The intended consumptive use:
4 (a) Must be a reasonable, beneficial use.
5 (b) Must be consistent with the public interest.
6 (c) Must Will not interfere with any legal use of water
7 existing at the time of the application.
8 (2) Issuance of a permit will be denied if the withdrawal of water:
9 (a) Will cause the rate of flow of a stream or other water
10 course to be lowered below the minimum rate of flow established by the
11 Board.
12 (b) Will cause the level of the potentiometric surface to
13 be lowered below the regulatory level established by the Board.
14 (c) Will cause the level of the surface of water to be
15 lowered below the minimum level established by the Board.
16 (d) Will significantly induce salt water encroachment.
17 (e) Will cause the water table to be lowered so that the
18 lake stages or vegetation will be adversely and significantly affected
19 on lands other than those owned, leased, or otherwise controlled by the
20 applicant.
21 (3) Esstanee-e-a-permi-wil-be-denied--he-aun-e-we
22 eensumpti:vely-used-wail-exeeed-the-water-erep-e-ande-ewned7-Ieased7
23 er-etherwise-eentreeled-by-the-appieeant In determining whether a
24 proposed new consumptive use of water is a reasonable beneficial use,
25 is consistent with the public interest and will not interfere with any
26 legal use of water existing at the time of the application, as well as
27 in determining the locations and quantities of water, and the seasons
28 of year, to reserve from use by permit applicants as required for the
29 protection of fish and wildlife and the public health and safety, the
30 Board will specifically consider, among other factors:
31 (a) The uses to which the water will be put.
32 -(b) What effect, if any, the withdrawal will have upon:
33 1. The flow of streams and other water courses.
34 2. The levels of the potentiometric surface under
35 lands not owned by the applicant.
36 3. The levels of the water table under lands not owned
37 by the applicant.
38 4. The lake stages and vegetation on lands not owned
39 by the applicant.
40 (c) The relative area and capacity of applicant's land and
41 the amount of water being withdrawn as it relates to the total area
A2 of the District and the total water available. (Except where
43 determined otherwise, the water crop [precipitation less evapotrans-
44 piration] throughout the District will be assumed to be three hundred
45 and sixty-five thousand (365,000) gallons per year per acre.)
46 (4) The applicant should be especially prepared to show that the
47 proposed withdrawal is consistent with the public interest, will not
48 interfere with any presently existing legal use of water, and is a
49 reasonable beneficial use, if the withdrawal of-water:
50 (a) From a stream or other water course will mest-not reduce
51 the rate Of flow by 5% or more than-five-pereent-45%- at the time and
52 point of withdrawal.
53 (b) Will Must-net cause the level of the potentiometric
54 surface under lands not owned, leased, or otherwise controlled by the
55 ,applicant to be lowered more than 5 feet.
56 (c) Will Must-net cause the level of the water table under
87 lands not owned, leased, or otherwise controlled by the applicant to be
58 lowered more than 3 feet.
59 (d) Will Must-net cause the level of the surface of water in
60 any lake or other impoundment to be lowered more than 1 foot unless the
61 lake or impoundment is wholly owned, leased, or otherwise controlled by
62 the applicant.
63 (e). Will Mest-net cause the potentiometric surface to be
64 lowered below sea level.
65 (5) The Board for good cause shown may grant exceptions to the
66 provisions of paragraphs (2), (3), and (4) above when after consideration
67 of all data presented, including economic information, it finds that it
68 is consistent with the public interest.
69
70
71
72
73
74
75

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