Dept. Of Environmental Regulation
January 22, 1979 AUG 17 1979
OFFICE OF SECRETARY
TO: DONALD R. FEASTER, Executive Director
THROUGH: J. B. BUTLER, Director, Department of Planning & Regulation
FROM: B. A. BOATWRIGHT, Director, Regulatory Division 0 3
RE: Water Crop
Your January 5, 1979 letter to Jay Landers referencing the State Water Use
Plan (attached) brought to my attention what I think is a continuing
difficulty in understanding how the water crop is used as a permitting tool.
The statement of concern is:
"that municipal well fields have not been held to the strict
interpretation of the water crop but in most cases industrial
and agricultural users have been held to the strict interpretation."
All consumptive use permit applications, including those for municipal well
fields, are evaluated on the basis of how the requested consumptive use comes
in line with the water crop provision set forth in 16J-2.11(3). The Governing
Board has considered numerous municipal, public supply, agricultural and
industrial permit applications for new consumptive uses in excess of the water
crop of lands owned, leased, or otherwise controlled by the applicant. How-
ever, when the applicant has shown that the request is consistent with the
provision of 16J-2.11(1) and (2) the staff has recommended that an exception
be granted to the provision set forth in 16J-2.11(3) as provided for under
16J-2.11(5). In this sense, and in all cases, the calculated water crop
provides a threshold to be utilized in the initial evaluation of consumptive
use permit applications. It has never been considered by the staff that
these calculated values should be used as absolute limitations or positive
allocations of water availability from a particular tract of land.
There are other specific threshold criteria such as 5% of streamflow (16J-2.1
(4)(a), five-three-one(16J-2.il(4)(b,c, & d), and potentiometric surface
lowered below sea level (16J-2.11 (4)(e), which also are used in the initial
review process of a consumptive use permit application. Like water crop,
these other threshold criteria have not been considered as absolute limitations.
Again, when these criteria are exceeded the Governing Board, for good cause
shown, can grant an exception to the rule provisions. A showing that the
provisions of 16J-2.11(1) & (2) will not be exceeded constitutes part of the
good cause being shown.
No consumptive use permit has ever been denied because the request failed to
meet the threshold criteria prescribed in 16J-2.11(3) and (4). Requests for
rule exceptions to these specific criteria, including water crop, should not be
discouraged nor should granting of the request be extraordinary, provided
a good cause showing, including addressing the provisions of 16J-2.11(1) and
(2), can be made.
January 22, 1979
RE: Water Crop
In this manner the major municipal well fields are not different than any
other proposed use not meeting the threshold criteria. However, upon closer
examination of the majority of the well field consumptive use permit applications,
it appears that the provisions of 16J-2.11(2)(e) are not met. Issuance of such
permits is dependent upon limiting withdrawals in some manner so as to make
the effect of withdrawals on lake stages or vegetation on lands other than
those owned, leased or otherwise controlled by the applicant acceptable.
To accomplish this the concept of establishing regulatory levels was devised.
The setting of regulatory levels is not intended as a means of good cause
showing for an exception to the provision of 16J-2.11(3) (water crop), but
rather is a means of avoiding or preventing the provision of 16J-2.11,
especially paragraph (2)(e) to be exceeded. To my knowledge, the Governing
Board has never knowingly granted an exception to the provisions of 16J-2.11
(2). This should be the case. Exceptions to these provisions should only
be recommended when the applicant can show that, above all else, the granting
of the permit is consistent with the public interest.
The above description of how water crop is treated by staff during permit
review is intended to show you that all applications are evaluated equally
under the rules. There is no such thing as a strict or not strict interpretation
of water crop under the rules.
cc: L. M. Blain
J. E. Curren