November 12, 1981 0
RE: State Water Policy/Review of Jay Ahern's Comments
1. Jay views subsection 5 of the proposed policy to "reinterate the
water crop principle". I do not agree with this. The water crop
principle is a balancing of the available water with demand. It
is premised on the hypothesis that "mining of water" should not
be allowed to occur. Thus, withdrawals from a particular source
would be limited to that amount which is renewed periodically. I
see nothing in proposed subsection 5 which establishes such a
"balancing process" as part of state water policy.
2. Jay's comments seemed to indicate that he believes that proposed
subsection 5 could be interpreted as a recognition of the "right"
of a property owner to "bank" water for future use. In other words,
this subsection might be construed as requiring the Districts to
"preserve" the right of an adjacent property owner to make future
consumptive uses of water from beneath his or her land, while
considering an application for withdrawal from nearby property.
This interpretation had not occurred to me before.
I do not agree that proposed subsection 5 can be interpreted
properly to require recognition of the "banking" concept. This
subsection would require DER and the districts to recognize the
rights of property owners as limited by law. The Florida Supreme
Court in the Village of Tesquesta case held that current law does
not recognize a property owner's right to use water from his or
her land unless they have a permit which would authorize that
use. Thus, since there is not "banking" allowed under the current
law, this proposed subsection would obligate DER and the Districts
to refrain from recognizing that principle in implementing con-
sumptive use permitting programs.
3 I .do not favor Jay's, proposed suggested changes to subsection 5.
They could be construed as subordinating the rights of an applicant
to the rights of other users. Further, the shift from the term
"property owners" to "applicants" is pointless so long as this
proposed subsection continues to address the rights of those
applicants to make consumptive uses of water from their land. I
think it is more straight forward to refer to them as property
owners in this context.
4. I agree with Jay that proposed subsection 6 should not be included
as part of the state water policy. However, I do not understand
his reasoning on this point. My own thinking has been set down
in an earlier memo, a copy of which is attached.
--- ji ____.
November 9, 1981
RE: Proposed Amendments to Section 17-40.04,
Florida Administrative Code
The Secretary of DER proposes to amend this rule to include new
Subsections 5 and 6. A copy of the proposed amendments is attached.
Subsection 5 is essentially the same as the "property rights" provision
we supported earlier, It is a restatement of existing law and should
have no impact on existing SWFWMD regulatory programs. To add clarity
to this language, I would recommend that the word "are" be added after
the first word in line 6.
Subsection 6 of the proposed amendments is more troublesome. The
negative language in Subsection 6 defeats the clarity of the provision.
For example,isthis provision intended to mean that consumptive uses of
water which cause significant adverse impacts on off-site land uses
are prohibited? Conversely, the language in this provision could be
construed by implication to mean that significant adverse impacts on
off-site land uses are allowable. If neither is intended, what does
Subsection 6 mean?
The lack of clarity in subsection 6 leads me to recommend that it
be deleted entirely. Why go to the trouble of creating a list of
things which are not to be "deemed authorized" by state water policy,
when we know that there are many other things which are also not
"authorized" by state water policy? Is the listing in Subsection 6
intended to be all inclusive? I think not, and for that reason would
recommend that it be deleted.