Title: Water Policy, Chapter 17-40
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00004481/00001
 Material Information
Title: Water Policy, Chapter 17-40
Physical Description: Book
Language: English
Publisher: DER 1982 Water Policy 17-40
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jake Varn Collection - Water Policy, Chapter 17-40 (JDV Box 86)
General Note: Box 22, Folder 4 ( Court Cases in The State Of Florida - 1982 ), Item 7
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004481
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




17-40.01 Declaration and Intent.
17-40.02 Definitions.
17-40.03 General Water Policy.
17-40.04 Water Use.
17-40.05 Water Transport.
17-40.06 Water Quality.
17-40.07 Surface Water Management.
17-40.08 Minimum Flows and Levels.
17-40.09 District Water Management
17-40.10 Review and Application.

17-40.01 Declaration and
(1) The waters of the state are
among its basic resources. Such
waters should be managed to conserve
and protect natural resources and
scenic beauty and to realize the
full beneficial use of the resource.
Recognizing the importance of water
to the state, the Legislature passed
the Water Resources Act, Chapter
373, Florida Statutes.
(2) Chapter 373, Florida Stat-
utes, provides that the State Water
Use Plan and the Florida Water Plan
will be developed progressively as
studies are completed and as Depart-
ment or District rules and programs
are developed.
(3) As a part of the State
Water Use Plan, the Department may
provide such information, direc-
tions, or objectives for the guid-
ance of the Districts as it deems
(4) To this end, this Chapter
is intended to clarify water policy
as expressed in Chapter 373, Florida
Statutes, and to otherwise provide
guidance to the Department and
Districts in the development of
programs, rules, and plans.

(5) This Chapter does not re-
peal, amend or otherwise alter any
rule now existing or later adopted
by the Department or District. How-
ever, procedures are included in
this Chapter which provide for the
review and modification of Depart-
ment and District rules to assure
consistency with the provisions of
this Chapter.
(6) This Chapter shall be a
part of the State Water Use Plan and
the Florida Water Plan.
(7) It is the intent of the
Department, in cooperation with the
Water Management Districts, to seek
adequate sources of funding to sup-
plement District ad valorem taxes to
implement the provisions of this
Specific Authority: 373.026(7),
373.043, 403.805, F.S. Law
Implemented: 373.036, F.S.
History: New 5-5-81.

17-40.02 Definitions.
When appearing in this Chapter,
the following words shall mean:
(1) "Department" means the
Department of Environmental Regu-
(2) "District" means a Water
Management District created pursuant
to Chapter 373, Florida Statutes.
Specific Authority: 373.026(7),
373.043, 403.805, F.S. Law
Implemented: 373.036, F.S.
History: New 5-5-81.

17-40.03 General Water Policy.
The following statement of
general water policy shall provide a
basis for Department review of water
management programs, rules, and

17-40.01 -- 17-40.03




LR Q ------- --P-LICY

plans. Water management programs,
rules and plans, where economically
and environmentally feasible, not
contrary to the public interest, and
consistent with Florida law, shall
seek to:
(1) Assure availability of an
adequate and affordable supply of
water for all reasonable-beneficial
uses. Uses of water authorized by a
permit shall limited to reasonable-
beneficial uses.
(2) Reserve from use that water
necessary to support essential
non-withdrawal demands, including
navigation, recreation, and the
protection of fish and wildlife.
(3) Promote water conservation
as an integral part of water manage-
ment programs, rules, and plans and
the use and reuse of water of the
lowest acceptable quality for the
purpose intended.
(4) Utilize, preserve, restore,
and enhance natural water management
systems and discourage the channel-
ization or other alteration of natu-
ral rivers, streams and lakes.
(5) Protect the water storage
and water quality enhancement func-
tions of wetlands, floodplains, and
aquifer recharge areas through
acquisition, enforcement of laws,
and the application of land and
water management practices which
provide for compatible uses.
(6) Mitigate adverse impacts
resulting from prior alteration of
natural hydrologic patterns and
fluctuations in surface and ground
water levels.
(7) Establish minimum flows and
levels to protect water resources
and the environmental values asso-
ciated with marine, estuarine,
freshwater, and wetlands ecology.
(8) Encourage nonstructural
solutions to water resource problems

and give adequate consideration to
non-structural alternatives whenever
structural works are proposed.
(9) Encourage the management of
floodplains and other flood hazard
areas to prevent or reduce flood
damage, consistent with establish-
ment and maintenance of desirable
hydrologic characteristics of such
(10) Manage the construction
and operation of facilities which
dam, divert, or otherwise alter the
flow of surface waters to prevent
increased flooding, soil erosion or
excessive drainage.
(11) Encourage the development
of local and regional water supplies
within districts rather than
transport water across District
(12) Control point and non-
point sources of water pollution to
the greatest degree feasible as
provided in Chapters 17-3, and 17-6,
(13) Develop interstate agree-
ments and undertake cooperative
programs with Alabama and Georgia to
provide for coordinated management
of surface and ground waters.
Specific Authority: 373.026,
373.043, 403.805, F.S. Law
Implemented: Chapter 373, F.S.
History: New 5-5-81.

17-40.04 Water Use.
The following shall apply to
those areas where the use of water
is regulated pursuant to Part II of
Chapter 373, Florida Statutes:
(1) No permit shall be granted
to authorize the use of water unless
the applicant establishes that the
proposed use is a reasonable-benefi-
cial use, will not interfere with
presently existing legal uses of
water and is consistent with the

17-40.03 -- 17-40.04




public interest.
(2) In determining whether a
water use is a reasonable-beneficial
use, consideration should be given
to any evidence presented concerning
the following factors:
(a) The quantity of water re-
quested for the use;
(b) The demonstrated need for
the use;
(c) The suitability of the use
to the source of water;
(d) The purpose and value of
the use;
(e) The extent and amount of
harm caused;
(f) The practicality of miti-
gating any harm by adjusting the
quantity or method of use;
(g) Whether the impact of the
withdrawal extends to land not owned
or legally controlled by the user;
(h) The method and efficiency
of use;
(i) Water conservation measures
taken or available to be taken;
(j) The practicality of reuse,
or the use of waters of more suit-
able quality;
(k) The present and projected
demand for the source of water;
(I) The long term yield avail-
able from the source of water;
(m) The extent of water quality
degradation caused;
(n) Whether the proposed use
would cause or contribute to flood
damage; and
(o) Whether the proposed use
would significantly induce salt
water intrusion.
(p) The amount of water which
can be withdrawn without causing
harm to the resource.
(q) Other relevant factors.
(3) Water shall be reserved
from permit use in such locations
and quantities, and for such seasons

of the year, as in the judgement of
the Department or District may be
required for the protection of fish
and wildlife or the public health or
(4) Conservation of water shall
be a requirement unless not economi-
cally or environmentally feasible.
(5) In implementing consumptive
use permitting programs, the depart-
ment and the districts shall recog-
nize the rights of property owners,
as limited by law, to make consump-
tive uses of water from their land,
and the rights of other users, as
limited by law, to make consumptive
uses of water, for reasonable bene-
ficial uses in a manner consistent
with the public interest that will
not interfere with any presently
existing legal use of water.
(6) Permits authorizing con-
sumptive uses of water which cause
unanticipated significant adverse
impacts on off-site land uses exist-
ing at the time of permit applica-
tion, or on legal uses of water
existing at the time of permit
application, should be considered
for modification, to curtail or
abate the adverse impacts, unless
the impacts can be mitigated by the
Specific Authority: 373.026,
373.043, 403.805, F.S. Law
Implemented: 373.036, Part II,
373, F.S. History: New 5-5-81,
Amended 2-4-82.

17-40.05 Water Transport.
The following shall apply to
the transfers of water where such
transfers are regulated pursuant to
Part II of Chapter 373, Florida
(1) The transport or use of
water across District boundaries
shall require approval of each

17-40.04 -- 17-40.05





involved District.
(2) In deciding whether the
transport and use of water across
District boundaries is consistent
with the public interest pursuant to
Section 373.223, Florida Statutes,
the Districts should consider the
extent to which:
(a) Comprehensive water con-
servation and reuse programs are
implemented and enforced in the area
of need.
(b) The major costs, benefits,
and environmental impacts have been
adequately determined including the
impact on both the supplying and
receiving areas;
(c) The transport is an envi-
ronmentally and economically accept-
able method to supply water for the
given purpose;
(d) The present and projected
water needs of the supplying area
are reasonably determined and can be
satisfied even if the transport
takes place;
(e) The transport plan incorpo-
rates a regional approach to water
supply and distribution including,
where appropriate, plans for even-
tual interconnection of water supply
sources; and
(f) The transport is otherwise
consistent with the public interest
based upon evidence presented.
Specific Authority: 373.026,
373.043, 403.805, F.S. Law
Implemented: 373.036, Part II,
373, F.S. History: New 5-5-81.

17-40.06 Water Quality.
(1) Water quality standards
shall be enforced pursuant to Chap-
ter 403, Florida Statutes, to
protect waters of the State from
point and non-point sources of
(2) State water quality stan-

dards adopted by Department rule
shall be a part of the Florida Water
Specific Authority: 403.061,
373.026, 373.043, 403.805, F.S.
Law Implemented: 373.036, 373.039,
403.021, F.S. History: New 5-5-81.

17-40.07 Surface Water
The following shall apply to
the regulation of surface waters
pursuant to Part IV, Chapter 373,
Florida Statutes.
(1) The construction and opera-
tion of facilities which manage or
store surface waters, or other
facilities which drain, divert, im-
pound, discharge into, or otherwise
impact waters in the State, and the
improvements served by such facili-
ties, shall not be harmful to water
resources or inconsistent with the
objectives of the Department or
(2) In determining the harm to
water resources and consistency with
the objectives of the Department or
District, consideration should be
given to:
(a) The impact of the facili-
ties on:
(i) recreation,
(ii) navigation,
(iii) water quality,
(iv) fish and wildlife,
(v) wetlands, floodplains, and
other environmentally sensitive
(vi) saltwater or pollution
intrusion, including, any barrier
line established pursuant to Section
373.033, Florida Statutes,
(vii) reasonable-beneficial
uses of water,
(viii) minimum flows and
levels established pursuant to
Section 373.042, Florida Statutes,

17-40.05 -- 17-40.07





(ix) other factors relating to
the public health, safety, and
(b) Whether the facilities meet
applicable design or performance
(c) Whether adequate provisions
exist for the continued satisfactory
operation and maintenance of the
(d) The ability of the facili-
ties and related improvements to
avoid increased damage to offsite
property or the public caused by:
(i) floodplain development,
encroachment or other alteration,
(ii) retardance, acceleration
or diversion of flowing water,
(iii) reduction of natural
water storage areas,
(iv) facility failure, or
(v) other actions adversely
impacting offsite water flows or
Specific Authority: 373.026,
373.043, 403.805, F.S. Law
Implemented: 363.036, Part IV,
373, F.S. History: New 5-5-81.

17-40.08 Minimum Flows and
(1) In establishing minimum
flows and levels pursuant to Section
373.042, consideration shall be
given to the protection of water
resources, natural seasonal fluctua-
tions in water flows or levels, and
environmental values associated with
coastal, estuarine, aquatic, and
wetlands ecology, including:
(a) Recreation in and on the
(b) Fish and wildlife habitats
and the passage of fish;
(c) Estuarine resources;
(d) Transfer of detrital mate-

(e) Maintenance of freshwater
storage and supply;
(f) Aesthetic and scenic attri-
(g) Filtration and absorption
of nutrients and other pollutants;
(h) Sediment loads;
(i) Water quality; and
(j) Navigation.
(2) Established minimum flows
and levels shall be a consideration
where relevant to:
(a) The construction and opera-
tion of water resource projects.
(b) The issuance of permits
pursuant to Part II, Part IV, and
Section 373.086, Florida Statutes.
(c) The declaration of a water
shortage pursuant to Section 373.175
or Section 373.246, Florida Stat-
Specific Authority: 373.026,
373.043, 403.805, F.S. Law
Implemented: 373.036, 373.042,
373.086, 373.175, 373.246, F.S.
History: New 5-5-81.

17-40.09 District Water
Management Plans.
(1) A water management plan
shall be prepared by each District
which is consistent with the provi-
sions of this Chapter and Section
373.036, Florida Statutes. The plan
shall identify specific geographical
areas where water resource problems
have reached critical levels.
(2) A course of remedial action
shall be specified for each critical
(3) Measures may include, but
are not limited to, water resource
projects; water resources restora-
tion projects pursuant to Section
403.0615, Florida Statutes; purchase
of lands; enforcement of Department
or District rules; and actions taken
by local government pursuant to a

17-40.07 -- 17-40.09

DER 1982




Local Government Comprehensive
Plan, local ordinance, or zoning
(4) District Plans shall also
provide for identifying areas where
collection of data, water resource
investigations, water resource
projects, or the implementation of
regulatory programs are necessary to
prevent water resource problems from
reaching critical levels.
Specific Authority: 373.026,
373.043, 403.805, F.S. Law
Implemented: 373.036, 373.033,
373.042, 373.106, 373.114, F.S.
History: New 5-5-81.

17-40.10 Review and
(1) This Chapter shall be re-
viewed periodically, but in no case
less frequently than once every four
years. Revisions, if any, shall be
adopted by rule.
(2) Within 12 months after
adoption or revision of this Chap-
ter, the Department, in coordination
with the Districts, shall review
existing rules for consistency with
the provisions contained herein.
(3) District rules adopted
after this Chapter takes effect
shall be reviewed by the Department
for consistency with this Chapter.
(4) At the request of the De-
partment, each District shall initi-
ate rulemaking pursuant to Chapter
120, Florida Statutes, to consider
changes the Department determines to
be necessary to assure consistency
with this Chpater. The Department
shall be made a party to the pro-
(5) District water policies may
be adopted which are consistent with
this Chapter, but which take into
account differing regional water
resource characteristics and needs.

(6) A District shall initiate
rulemaking to consider implementa-
tion of programs pursuant to
Sections 373.033, 373.042, 373.106,
Part III, or Part IV of Chapter 373,
Florida Statutes, where the Depart-
ment or District determines that
present or projected conditions of
water shortages, saltwater intru-
sion, flooding, drainage, or other
water resource problems, prevent or
threaten to prevent the achievement
of reasonable-beneficial uses, the
protection of fish and wildlife, or
the attainment of other water policy
(7) The Department and Dis-
tricts shall assist other governmen-
tal entities in the development of
plans, ordinances, or other programs
to promote consistency with this
Chapter and District water manage-
ment plans.
(8) Duplication of water quali-
ty and quantity permitting functions
should be eliminated where appropri-
ate through delegation of Department
responsibilities to Districts.
(9) The Department and ,Dis-
tricts should assist educational
institutions in the development of
educational curricula and research
programs which meet Florida's
present and future water management
Specific Authority: 373.026,
373.043, 403.805, F.S. Law
Implemented: 373.036, 373.033,
373.042, 373.106, 373.114, F.S.
History: New 5-5-81.

17-40.09 -- 17-40.10




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