18126407, 40E-10.041 - Florida Administrative Rules, Law, Code, Register

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Florida Department of State and Division of Library and Information Services

Notice: 18126407

Notice of Development of Rulemaking

Department:

WATER MANAGEMENT DISTRICTS

Division:

South Florida Water Management District

Chapter:

WATER RESERVATIONS

Overview

RULE:

40E-10.041	Water Reservation Areas: Lower West Coast Planning Area
40E-10.051	Water Reservation Areas: Upper East Coast Planning Area
40E-10.061	Water Reservation Areas: Lower East Coast Planning Area

PURPOSE:

During the rulemaking effort to reserve water for the Caloosahatchee River (C-43) West Basin Storage Reservoir Project (C-43 Reservoir), the District included language stating: “all presently existing legal uses of water shall be protected so long as such use is not contrary to the public interest.”  The inclusion of this language was challenged in DOAH Case No. 14-1329RP.  The administrative law judge (A.L.J.) determined the language was invalid, stating that “[e]xisting legal uses are presumed not contrary to the public interest unless and until the District determines otherwise.” The A.L.J. went on to state that while the District “can make a ‘not contrary’ determination,” it cannot do so prospectively for the duration of a permit.
Language similar to that found invalid in C-43 Reservoir reservation case exists in the water reservations for Picayune Strand, Fakahatchee Estuary, North Fork of the St. Lucie River, and Nearshore Central Biscayne Bay, in subsections 40E-10.041(1) and (2), 40E-10.051, and 40E-10.061(2), F.A.C., respectively.

SUBJECT:

The language "all presently existing legal uses of water shall be protected so long as such use is not contrary to the public interest" will be deleted in the text for the following water reservations: 1) Picayune Strand; 2) Fakahatchee Estuary; 3) North Fork of the St. Lucie River; and 4) Nearshore Central Biscayne Bay. The preliminary draft rule text is available on the District's website at: www.sfwmd.gov/reservations, or may be obtained at no cost by contacting the persons listed below.

RULEMAKING AUTHORITY:

373.044, 373.113, 373.171, F.S.

LAW:

373.016, 373.026, 373.036, 373.1501, 373.1502, 373.219, 373.223, 373.4592, 373.4595, 373.430, F.S.

PRINT PUBLISH DATE:

11/23/2016 Vol. 42/228

RELATED STATUTES
AND LAWS:

373.044, 373.113, 373.171, F.S., 373.016, 373.026, 373.036, 373.1501, 373.1502, 373.219, 373.223, 373.4592, 373.4595, 373.430, F.S.

OVERSIGHT COMMITTEE:

Joint Administrative Procedures Committee
Florida Administrative Law Central Online Network (F.A.L.C.O.N.)

RELATED COURT CASES:

Division of Administrative Hearings

FEDERAL eRULEMAKING
WEB PORTAL:

Regulations.gov

HOW TO LINK TO
THIS NOTICE:

http://flrules.org/gateway/ruleno.asp?id=40E-10.041&PDate=11/23/2016&Section=1

REFERENCE MATERIALS:

No reference(s).

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