Title: Speech: Consumptive Use Permits
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00000724/00001
 Material Information
Title: Speech: Consumptive Use Permits
Physical Description: Book
Language: English
Publisher: Florida Engineering Society
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Speech: Consumptive Use Permits, 1986 Water Short Course
General Note: Box 7, Folder 1 ( Vail Conference 1987 - 1987 ), Item 117
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00000724
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

Florida Engineering Society
1986 Water Short Course

I'm here today to talk with you about how to get a consumptive
use permit. You should already have a copy of my outline, that

explains the basics of the CUP procedure, Florida Statutes and
district rules. I want to expand on that outline by telling you
how consumptive use permitting may become more technical and
* difficult.

DER's State Water Use Plan contains several goals and policies
that will, eventually, filter down into the districts' regulation
of water use. These goals and policies will affect some water
users' ability to get a CUP for the desired amount of withdrawal,
and, for all users, the CUP process will be based on technical
data to a greater degree than it is today.

Despite the fact that Florida has plenty of high quality
groundwater and surface water --- as admitted in the State Water
Use Plan -- DER suggests measures to protect the water supply at
an average annual cost of $517 million. most of these measures
are already authorized by existing law or rule and DER's State
Water Use Plan does not --- indeed, cannot --- authorise anything

not already implicated by Florida law. However, the Mater Use
Plan provides additional encouragement to the districts to
implement these measures --- although the necessary funding is a
missing element.

DER suggests that the districts pursue their statutory mandate
for a statewide groundwater inventory at an estimated cost of $3
million a year. Each inventory would identify existing uses,
potential quantities of groundwater available for consumptive
use, recharge areas, and areas suitable for future water resource
development. Of course, even without the State Water Use Plan,
the districts have been required to perform these inventories
since 1982. Assuming adequate funding, and assuming that the
Water Use Plan motivates the districts to begin and/or complete

their inventories, the inventories would provide an additional
base of information for use in consumptive use permitting.

DER also suggests that the districts, local governments, and the
state spend $3 1/2 million a year to implement water conservation
programs, with the goal of reducing potable consumption by IS b;

1995. The goal of conservation and reuse is laudable in and of
itself, but it encompasses some policies that will affect each
user class differently. For example, DER suggests that
residential and commercial users should install water-saving

devices. However, in regard to the use of water for mining, DER
suggests that the districts, when issuing CUPs, "balance the need
for resource extraction against protection of water resources'.
In regard to agricultural water use, DER suggests a b5 reduction
in fresh water use by 1995. This reduction is to be implemented
through the CUP process, with districts to require conservation
and reuse where economically and environmentally feasible. DER

foresees a cost of $11 million a year for the conservation
maesures, to consist of converting sprinkle irrigation acreage to
drip irrigation, at $700 an acre. Of course, funding is not

The districts already are evaluating water conservation and reuse
measures according to their individual regional needs. St. Johns
has been considering adding a reuse requirement to CUPs and has a
committee grappling with the technical issues. Southwest is
evaluating metering of agricultural use. It has implemented
voluntary water conservation measures, which have been adopted in
mandatory form by the City of Tampa and Hillsborough County. In
addition, where appropriate, Southwest may (and does) impose
reuse or conservation requirements as special conditions on
individual permits. The Water Use Plan seems to eliminate the
districts' flexibility to make public interest decisions in their
CUP processes, by mandating (or strongly suggesting) particular

treatment for particular users, regardless of regional concerns.
This result is not desirable. The CUP process has functioned
well, with each of the five districts deciding, with regard to
each individual CUP application and with regard to the situation

within each district, whether the application is for a
reasonable-beneficial use and whether the application is
consistent with the public interest. There should be no
statewide policy that particular uses are, statewide, more in the
public interest than other uses, or that certain uses are or are
not reasonable-beneficial. I'm not saying this is the result
e that DER wants to achieve through its State Water-Use Plan, and
I'm not saying it's an inevitable result. I am saying that CUP
practitioners need to be aware of these policies and suggestions
that will filter down to the districts and that will, eventually
and in some fashion or another, enter ihto the CUP process. Find

out, through the district handbook, through conversations with
staff, or through staff memoranda, how your district determines
consistency with the public interest and reasonable-beneficial

y The State Water Use Plan also suggests that DER, the districts,

and the federal government create a coordinated inventory of
surface water use, at an estimated cost of $692,000 per year.
The inventory would include forecasts of surface water demand and



supply. I am not aware of any statutory mandate for the proposed
surface water inventory.

In addition to its promotion of different treatment for different

user classes, the State Water Use Plan is noteworthy for its

promotion of a location-biased view of consumptive use

permitting. In the plan DER acknowledges that there is no

current water supply problem only a water distribution problem.

There is a concentration of population and growth in urban

coastal areas with limited amounts of groundwater for potable
' use. On the other hand, DER is concerned with maintaining the

long-term purity of current water supply areas and areas

identified as prime aquifer recharge areas. This, of course,

connects with the pending proposed changes in the G-l rule. DER

seems to advocate restriction of new development and new water

uses within areas of major potable groundwater supplies, but it

clearly frowns on inter-district water transportation. The

answer to the distributional imbalance is intra-district water

transportation. DER's policies can affect CUP applicants who are

located in an area rich with high quality groundwater ... with

major public water supply sources. Does DER's policy implicitly

reserve groundwater for the use of the large-scale public

suppliers? Again, this is not the necessary result, nor DER's

desired result, yet it is possible. I suggest that CUP

practitioners should be aware that Florida law requires proof

that the source of water in a particular area is inadequate to

supply all proposed uses, before one use is deemed more

desirable, from a public interest standpoint, than another use.

See Section 373.233, Florida Statutes, on competing uses in the

consumptive use permitting process.

DER's State Water Use Policy is an attempt to implement all water

elements of the State Comprehensive Plan, and elements required

by previously existing Florida law. A lot of the content was

mandated by the State Comprehensive Plan. The format was

prescribed by the Governor's office. Although the State Water

Use Plan is now neither rule nor law, it is bound to become a

force in the districts' regulatory programs in the same manner as

DER's State Water Policy. Although the Florida Statutes on

consumptive use permitting, and the district rules, are fairly

straightforward, a good CUP practitioner needs to be aware of the

background policies and plans that will be shaping the districts'

CUP programs.

Another area, not really covered in the outline, that you should

be aware of, is the possibility of an administrative hearing in

connection with your CUP application.

As detailed in the outline, the districts' procedures vary --
slightly -- on processing the CUP application. Eventually, the

staff will have to send a notice stating that it recommends that
the governing board grant or deny the application. At that

point, the application can follow one of several routes.

If the staff recommends denial of the application, the applicant

can request a hearing before the governing board. If there is no

dispute as to the facts, the hearing would be short and informal,

similar to a presentation before a county commission or other

local government board or commission. If the applicant disagrees

with the facts relied on by the staff in its recommendation, the

applicant can request a formal hearing, which is more structured,
sore like a courtroom proceeding, than an informal hearing. If

the applicant so requests, the formal hearing must be referred to

the State Division of Administrative Hearings for trial before an

impartial, appointed state hearing officer. Even if the

applicant doesn't request, the district governing board may send

the matter to a bearing officer rather than hear the matter

itself. Informal hearings, involving no factual dispute, are

always before the Governing Board.

If the staff recommends granting the permit, the applicant may

yet be subject to a hearing, if the application is opposed by a
person whose substantial interests will be affected by the

granting of the permit. A third party can intervene end force

the matter to a formal hearing if there are disputed issues of

facts and at the hearing, the applicant must prove entitlement to

the permit even though the agency recommended granting the

permit. A third party would be entitled to intervene upon a

claim that he would be affected by the proposed withdrawals as a

current legal users or upon a claim that the proposed permit

would hare the waters of the state in violation of Florida's

Environmental Protection Act, Section 403.412, Florida Statutes.

Third parties may also intervene when the staff recommended

denial of the permit so a CUP consultant should never take

lightly the objections or comments of neighbors in the area of

the proposed use. Take their concerns seriously and work with
them and district staff to address their concerns or face the

prospect of a long and expensive delay in securing the permit.

In administrative proceedings, whether formal or informal, the

CUP applicant may represent himself, he can get a lawyer or he
can have a non-lawyer representative. In formal hearings, the

hearing officer or other presiding officer must determine that

the non-lawyer representative is able to adequately represent the

party before the proceedings begin. I recommend, however, that

the applicant secure legal counsel for representation in formal


proceedings. Even though an engineer or other technical
consultant ay quite competently guide the applicant through

agency proceedings, a lawyer's involvement is desirable once tt

matter becomes disputed. For one thing, the consultant may hai

been hired as an expert and may have difficulty in shedding thi

role to adopt the role of advocate, questioner, and negotiator.
Moreover, there are several sets of inter-related legal rules
that may apply to the formal administrative proceeding, such as

the Florida ICourt) Rules of Civil Procedure), the Administrati

Procedures Act, the Model Rules of Administrative Procedure,

Division of Administrative Hearings Rules, and district rules.
The formal hearing may involve extensive discovery, and various
motions, hearings, and orders. These matters are best handled
a lawyer who does not have the additional burden of testifying
an expert at the final hearing.

A formal administrative hearing can delay a permit by six montL
to a year and a half. The date of the final trial, before the
hearing officer, will depend on the amount of discovery that is

necessary and on the hearing officer's schedule. At the hearing

the crucial matter will be convincing the hearing officer of tt

truth of the facts as you see them. After the hearing, the
hearing officer sends the governing board a recommended order,
which contains a statement of the facts proved at the hearing,

ana conclusions of law based on those facts. The governing boa

cannot reject or change the findings of fact, without reviewing

the entire record of the proceedings and determining that the
facts as found by the hearing officer were not supported by the
evidence. It would be a rare governing board that would have t

time or inclination to do this. So, you see, the hearing office

acts mainly as a fact-finder. The governing board can modify o

reject the hearing officer's conclusions of law ... but the leg

conclusions must be based on the facts as proved at trial.

With increased public interest in issues of water quality and

water quantity, with growth pressures, and with new legislation
or rules such as the G-I rule and Growth Management, you probab
will see more disputes over CUPs, with many of the disputes goi

to a hearing. You may find yourself on one side or the other a

a neighDor opposes a potential large consumer, or as a local

public supplier user opposes-a new private use. In the context

of an administrative battle, as in the simpler CUP process, the
way to secure the CUP is to convince the fact-finder (the hear

officer, the governing board, or the district staff) of the
accuracy of your facts.

A some of you know, I have a fictitious client named R. J. who

drops by my office from time to time to find out what he can't do

S net. I keep trying to send him to talk to a good engineering
fire, but he says he doesn't know any that he trusts. I em sure
be has not had the opportunity to met any of you here today.
Maybe I will have a chance to introduce you in the near future.

ow R. J.'s land is too big to give away and too small to do very
much with. His property is too wet to build on without drainage
so I told his he would have to get a permit from the water
management district for the control and management of surface


He aaid "Nell Buddy, if I have all this problem getting rid of
wter, maybe I can just sell the water I have got."

*R.J., you don't have any water", I told him "That water belongs
to all of us. At least it belongs to anybody who proposes a
legal and reasonable-beneficial use for it and obtains a permit
from the water management district, even if its right from under

your own property.*- He was sure I was just joking with him.

"well Buddy, if I can't sell the water, maybe I can just use the

land for something. I have been reading about all this sprey

sewergetion. Maybe the county would want to use my land to spray
some of that sewage water so I could make things grow on it.
What do you think about that?"

WNell R. J., I think that is a fine public spirited idea. But
there are a couple of slight problems. Let me tell you what they
are. First of all, you have got wetlands and hydric soils on
your property. That is not a good sign. Why that property might
be utilized from time to tim by migratory species, including

some that are threatened or endangered. you eight not be allowed
to do anything that would disturb their habitat."

*Buddy, are you saying that my property belongs to the birds?"
he asked. He was starting to listen to me because he noticed
S that I hadn't been laughing yet.

*Well, I wouldn't say it belongs to them exactly R.J., but you
my have trouble doing anything that would disturb them."

ng *ell, isn't that about the same thing?", he asked.

*Well, not exactly R. J., but I see your point. Let me just
mention the other problem you might have while we are on the
subject.- Your property may be located too near the groundwater

aquifer. If that is the case, you may have to get a special
groundwater permit to do anything that would discharge water into


the ground.* today, is lets make sure we get the job done 3ust as soon a% we
know what It is we are doing. If we do, I am sure we won't have

"Come on Buddy, you're putting me on*, he said. *This is any trouble explaining it to R. J.

"R.J., I am serious as a heart attack. Haven't you heard about
the G-I amendments?

*No*, he said, "is that something new that is going around?"

Nell, you could say that. What it means is that you may have to

hire a hydrogeologist to evaluate your property and to determine
what the vertical or lateral travel time from youth property or
from any point of discharge might be to a potential future water


*Well, how would they find that out?-, he asked.

*Well, they use a combination of things, R.J. They would get
some things from the USGS but they night have to do some core
boring and pump tests and computer modeling to know whether you
are in the zone of protection or not. But it is nothing you
couldn't get done for $40,000 or $50,000 so don't worry about it,

*$40,000 or $50,000 dollars to a_ geologist he asked. "What do

they know that is worth all that?"

SWell. R.J. I am trying to explain it to you. You need to know
how far away you are from water. We might need to ae* that water

"Buddy, I don't want no geologist running around on my property.
I had a run-in with them once. One of them was an atheist. They
might know the age of rocks but they don't the Rock of Ages. So
don't oe sending any of them out to my place."

Me had to cut our discussion short because a paying client had
arrived outside and 1 didn't want to keep his waiting all
morning. But I remember the look on R. J.'s face as I told him
about each new regulatory hurdle and each new scientific
discipline he would have to encounter to do something with the
land that he had always thought was his own. I was in a peculiar
situation which I am sure you have been in many times. He didn't
believe anything I said and I didn't tell his anything that was

wrong. I think a lot of us work from day to day with people like
R.J. and try to represent them, educate them and direct their
interests in ways that are compatible with our rapidly evolving
understanding of the world around us. I appreciate the trust
that he seems to put in me and I suspect whether he likes it or
not that I will soon introduce him to some of you. All that
really means to me, and the little message I am leaving with you


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