June 23, 1977
RE: Proposed SWFWMD Rule Amendment No. 29 and
Rule 16J-2.11(3), Florida Administrative Code
The proposed amendment of the "water crop rule" discussed at
the District Governing Board meeting June 1, 1977 causes me
a great deal of concern. It is my fear that the proposed
amendment may render the rule unenforceable, either as a
result of legal deficiencies stemming from its ambiguity,
or as a result of the practical difficulties involved in
determining the size of the "water crop" on a case by case
As you know, under the present rule the water crop through-
out the District is "assumed to be three hundred sixty-five
thousand (365,000) gallons per year per acre". Permits
authorizing new consumptive uses in excess of the Water crop
are not to be issued unless the Board grants exception to the
rule for good cause shown.
Although the present rule permits determination of the size
of the water crop of lands owned, leased, or otherwise
controlled by an applicant on a case by case basis, there
apparently exists some feeling within the District staff
that the "assumed" size of the water crop is regarded by
permit applicants as an amount to which they are automatically
The announced purpose of the proposed amendment is to "clarify
the wording in the rule to provide a range within which to
determine the available water within the District ."
The evident intent of the proposed amendment is to strengthen
the rule by making it absolutely clear to permit applicants
that they are not automatically entitled to withdraw 365,000
gallons per year per acre.
While I agree with the intent of the proposed amendment, I
feel the language selected does not accomplish the desired
objective and will result in a weakening of the rule.
Potential legal deficiencies:
The proposed rule amendment may render the water crop rule
unenforceable as a result of its ambiguity.
J-Ul -- I- -- L-Uai 1i __
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Memo to LMB
June 23, 1977
1. In my view, the language "presumed not to
exceed" is equivalent to the phrase "assumed to be less than
or equal to". Both expressions describe an open ended
continuum running from 365,000 gallons per year per acre
down to zero (and perhaps even on beyond to points less
than zero). The usefulness of an open ended spectrum in
this context is.limited. It permits neither the staff
nor the applicant to "assume" any particular value for the
size of the water crop and merely prohibits assumptions of
size greater than the specified quantity.
The point is this .the proposed rule amendment explains
what value will not be assumed for the water crop, but does
not explain what value should be assumed for the crop in the
absence of a contrary determination.
The effect of the proposed amendment is to say to an
applicant, "we won't grant your permit if the amount con-
sumptively used will exceed the water crop of your land.
We assume that your water crop is less than or equal to
365,000 gallons per year per acre, but we can't tell you
exactly what it is without more data, .and therefore we don't
know if you will use more than your crop or not. Consequently,
until the needed data is provided and the value for the water
crop is determined for your land we can't issue the permit".
This sort of "now you see it, now you don't" catch-22 may be a
violation of the fundamental due process right of permit
applicants to be regulated by rational rules.
2. The effect of the proposed amendment might well
be to strengthen the hand of those parties who object to the
water crop concept or theory. Not only will an applicant
have to show that his proposed use is less than the water crop,
under the proposed amendment he will have to establish the
value or size of the crop as well. Query what provision in
Ch. 373, Florida Statutes, authorizes the District Board to
require each applicant to establish in numerical terms the
quantity remaining after evapotranspiration losses have been
subtracted from precipitation? Query is this a burden the
District Board deliberately wishes to place upon the applicants?
Does the Board realize that the numerical value of the water
crop will have to be separately determined for every "new use"
3. The effect of the proposed amendment is to create
a presumption that throughout the District the water crop does
not exceed 365,000 gallons per year per acre. This presumption
,i I. I ll I
Memo to LMB
June 23, 1977
may be a useful device in the abstract, but how does it
relate to the question which every "new use applicant" must
answer how large or small is my water crop? I submit
that it does not relate at all. As proposed to be amended,
the entire parenthetical expression could be deleted from
16J-2.11(3), F.A.C., without having any impact upon the
substance, procedure or meaning of the rule enunciated in
the first sentence of 16J-2.11(3). Is this a posture that
the Board and staff wish to assume?
Much of what I have said leads me to conclude that the
proposed amendment will either slow the permitting process
down to a snail's pace, or render the water crop rule
unenforceable. For instance:
What value will the staff use in their
hydrologic models, computer analyses, etc.?
At first blush one might feel comfortable using the entire
365,000 gallons per year per acre as a sort of "worst case"
value. If the new consumptive use will exceed this value,
surely the rule will have been violated. But wait .
reconsider where in the proposed rule does it say a
consumptive use in excess of 365,000 gallons per year per acre
is greater than the water crop throughout the District? The
answer unfortunately is that under the proposed amendment the
rule is silent. No one ever knows the value of the water crop,
until it's determined by the Board on a case by case basis,
presumably after public hearing.
In sum, it is my fear the proposed amendment will seriously
hamper the effectiveness of the water crop rule as we know