Title: Opinion File 77-160 (3 pgs)
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003520/00001
 Material Information
Title: Opinion File 77-160 (3 pgs)
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Buddy Blain's Collections - Opinion File 77-160 (3 pgs)
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 72
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003520
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


IN RE: Water Use Caution v. Water Shortage

SWFWMD may declare and delineate "water use caution" areas
within the district where it finds that the use of groundwater
or surface water, or both requires coordination and limited
regulation for protection of both the public interest and the
water resources of the state. This procedure was developed by
the Regulatory District of SWFWMD and adopted as Rule 16CC-2.01
on March 1, 1972 (prior to the enactment of the 1972 Water
Resources Act).

It has been recodified as Rule 16J-3.30 and requires that the
following procedures be followed in declaring and delineating
water use caution areas:

1. When the governing board believes the water use caution
situation exists, it may direct investigation and reports thereon.

2. Such reports include findings and recommendations
identifying the problem and prescribing measures and actions which
may be taken.

3. If the governing board finds, following its review of
the report, that a water use caution area should be declared,
it may declare such water use caution area. Such declaration
must include a delineation of the boundary of the hydrologic
area and the district may prepare proposed orders and regulations
commensurate with the degree of control needed.

4. The governing board may prepare orders to be applied in
said area containing such of the following provisions as it finds

a. Provisions requiring large users to submit reports
not more frequently than at 30-day intervals concerning withdrawal,

b. Provisions concerning the timing of withdrawals;
provisions to protect or abate saltwater encroachment or other
deterioration of quality; provisions to protect against or abate
unreasonable adverse effects on other water users within the area.

c. With respect to groundwater, provisions concerning
well spacing and well construciton controls; and provisions
establishing a range of prescribed pumping levels or maximum
pumping rates, etc.

d. Provisions requiring that no users shall withdraw,

(1 divert, obtain or utilize surface waters or groundwaters, or both,
in excess of 100 million gallons per year (273,973 gallons per
day average) without written authorization from the district.

e. Provisions requiring groundwater users to pay for
design, construction, supervision, perpetual operation and mainte-
nance costs of works required to divert excess surface water to
the users area of groundwater withdrawal, etc.

The board by order may declare that a water shortage exists within
all or part of the district when insufficient water is available
to meet the needs of the users or when conditions are such as to
require temporary reduction and total use within the area to
protect water resources from serious harm. The board may
oppose such restrictions on one or more users of the water
resources as may be necessary to protect water resources of the
area from serious harm. This was authorized by Rule 16J-2.20 which
was adopted in October, 1974 pursuant to the provisions of
Section 373.175, Florida Statutes. The water shortage law was
adopted during a special session of the legislature in the fall
of 1972 and has been utilized by SWFWMD on several noteworthy

Utilization of this law has never been challenged in court even
though very stringent measures have been taken pursuant to it.
S For example:

1. The rates of withdrawal by Pinellas County from the
Eldridge-Wilde Well Field and by the City of St. Petersburg
from the Cosme-Odessa and Section 21 Well Fields were
substantially reduced pursuant to an order adopted under the
authority of Section 373.175.

2. Extensive reports have been required of utility owners
in the West Pasco area pursuant to Section 373.175.

The water use caution rule was adopted as a tool to use when
there was a lack of specific statutory authority. This rule
was developed through a series of public hearings at which a
preponderance of evidence was introduced showing the necessity
for such a rule.

On the other hand, the water shortage authority is specifically
granted by a section of the Florida Statutes which was adopted
by the legislature in special session in 1972. At the time of
its adoption it had an expiration date for 1973 but during the
1973 legislation the expiration date was removed so that the
law continues in full force and effect.

Section 373.175 grants very broad powers to the governing board
to "impose such restrictions on one or more users of the water
resource as may be necessary" if the governing board declares
that a water shortage exists by finding that "insufficient ground
or surface water is available to meet the needs of the users."



*373.209 Artesian wells; penalties for viola-
(1) No owner, tenant, occupant, or person in
control of an artesian well shall knowingly and
(a) Allow the well to flow continuously with-
out a valve or mechanical device for checking or
controlling the flow.
b) Permit the water to flow unnecessarily.
) Pump a well unnecessarily.
) Permit the water from the well to go to

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WumL, 111 yyu11 uv. ... "l
strued to apply to an artc:ian well feeding a
lake already in existence prior to June 15, 1953.
which lake is used or inteinled to be used for
public bathing and/or the propagation of fish,
where the continuous flow of water is neces-
sary to maintain its purity for bathing and the
water level of said lake for fish.
Hibtory.--6. eh. 28253. 1953; 25. ch. 7;. 1!4.
Note.--Se former SaI370.05. 373.061.
373.216 Implementation of program for
regulating the consumptive use of water.-
The department may autlhrize the governing
board of a water managenwm n district to imple-
ment a program for the aauance of permits
authorizing the consumptive use of particular

quantities of water. No such program shall be
implemented or discontinued except after public
notice and public hearing. A hearing may be
called by the governing board upon its own
initiative, and it shall be called by the governing
board upon direction of the department, upon
petition from the board of county commissioners
or boards of county commissioners of any com-
bination of counties wholly or partly within the
area proposed to be subject to the regulations
provided herein, or upon a petition signed by 5
percent of the registered voters of any territory
proposed to be subject to the regulations pro-
vided herein, according to the most recent list
of registered voters as disclosed by the records
of the office of the supervisor of elections of the
Counties affected. Notice of public hearing on the
proposed implementation of these regulations
shall be published at least once a week for two
weeks in a newspaper of general circulation in
the area to be affected by such regulations, the
last notice appearing no less than ten days prior
to the date of the public hearing. Upon im-
plementation, the provisions of this part shall
History.--l. part IL ch. 72-299; 18, ch. 73-190.

373.217 Superseded laws and regulations.-
(1) It is the intent of the Legislature to provide a
means whereby reasonable programs for the issu-
ance of permits authorizing the consumptive use of
particular quantities of water may be authorized by
the Department of Environmental Regulation, sub-
ject to judicial review and also subject to review by
the Governor and Cabinet, sitting as the Land and
Water Adjudicatory Commission as provided in s.
(2) It is the further intent of the Legislature that
Part II of the Florida Water Resources Act of 1972,
as amended, as set forth in ss. 373.203-373.249, shall
provide the exclusive authority for requiring per-
mits for the consumptive use of water and for au-
thorizing transportation thereof pursuant to s.
(3) If any provision of Part II of the Florida Wa-
ter Resources Act of 1972, as amended, as set forth
in ss. 373.203-373.249, is in conflict with any other
provision, limitation, or restriction which is now in
effect under any law or ordinance of this state or any
political subdivision or municipality, or any rule or
regulation promulgated thereunder, Part II shall
govern and control, and such other law or ordinance
or rule or regulation promulgated thereunder shall
be deemed superseded for the purpose of regulating
the consumptive use of water. However, this section
shall not be construed to supersede the provisions of
the Florida Electrical Power Plant Siting Act.
(4) Other than as provided in subsection (3)
*[of this section], Part II of the Florida Water Re-
sources Act of 1972, as amended, preempts the regu-
lation of the consumptive use of water as defined in
this act.
Hisory.--. 9, cr, 76-241
'Notx=-Brcktud words iuerted by thi editor

Ch. 373

Ch. 37


Ch. 373


Ch. 373

4 I

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