Integrating land and water management

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Integrating land and water management
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Hamann, Richard
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Publication No. 54


INTEGRATING LAND AND WATER MANAGEMENT

By

Frank E. Maloney (Deceased)
Richard Hamann


College of Law
Center for Governmental Responsibility
University of Florida
Gainesville












INTEGRATING LAND AND WATER MANAGEMENT


By



Frank E. Maloney (Deceased)
Richard Hamann



PUBLICATION NO. 54



FLORIDA WATER RESOURCES RESEARCH CENTER




RESEARCH PROJECT TECHNICAL COMPLETION REPORT



OWRT Project Number A-037-FLA




Annual Allotment Agreement Numbers

14-34-0001-9010
14-34-0001-0110




Report Submitted March, 1981



The work upon which this report is based was supported in part
by funds provided by the United States Department of the
Interior, Office of Water Research and Technology
as Authorized under the Water Resources
Research Act of 1964 as amended.











TABLE OF CONTENTS


Page
INTRODUCTION 1

SECTION I THE NEED FOR BETTER INTEGRATION OF LAND AND WATER MANAGEMENT 2

A. The Physical Interrelationship of Land and Water Systems 2

B. Functional Interrelationship of Land and Water
Management Programs 4

C. Causes of the Lack of Integration 7

D. Results of the Failure to Integrate and Coordinate 11

Footnotes 13


SECTION II LAND AND WATER MANAGEMENT IN THE STATE OF FLORIDA:
EXISTING INTERRELATIONSHIPS 17

Introduction 17

A. Overview of Management Structure 18

1. State Agencies 18

2. Regional Agencies 21

3. Special Districts 22

4. Local Governments 24

B. The Environmental Land and Water Management Act of 1972
(Ch. 380) 25

1. Areas of Critical State Concern 25

2. Development of Regional Impact 27

3. Regulating Areas of Critical State Concern
to Protect Water 29

4. Use of the DRI Process to Protect Water 32

5. Effectiveness of the ELA as a Device for Integrating
Land and Water Management 34

C. The Local Government Comprehensive Planning Act of 1975
(Ch. 163) 39










D. The Florida Water Resources Act of 1972 (Ch. 373) 45

1. History 45

2. Administrative Framework 47

3. Planning 47

4. Water Management Structures 48

5. Surface Water Management 49

6. Consumptive Use Permitting 56

7. Coordination with Land Use Management 59

E. State Land and Water Planning 64

1. The Florida State Comprehensive Plan 64

2. The State Water Plan 66

3. The Failure of State Planning in the 1970's 70

4. The Current Status of State Planning 72

Footnotes 75


SECTION III TECHNIQUES FOR THE INTEGRATION OF LAND AND
WATER MANAGEMENT 97

A. Introduction 97

1. Common Themes 97

2. Caveat 98

B. Reorganization 99

1. Consolidation in General 99

2. Consolidation in Florida 101

3. Delegation 103

C. Review and Comment Procedures 104

1. Introduction 104

2. Environmental Impact Statements (EIS) 105

3. A-95 Review 108

4. Evaluation 110











D. Coordinating Councils

1. Overview

2. Resource Planning and Management Committees

3. Evaluation

E. Integration Through Planning

F. Coordinated Permitting

1. Overview

2. Washington's Environmental Coordination


3.

4.


Procedures Act (ECPA)

The Florida Industrial Siting Act of 1979

Optional Coordinated DRI Review


5. Conclusion


Footnotes


111

111

112

115

116

119

119


120

.122

124

126

128













INTRODUCTION


The need for better integration of land and water management is widely

accepted. There are several reasons for this. One is that land and water are

so closely related as natural, physical systems that it is impossible to fully

understand, wisely use or effectively manage one without considering the other.

Sound decisions regarding the use and protection of water cannot be made with-

out considering the effects of land use. Nor is it possible to properly manage

land unless planning and regulatory functions are coordinated with water manage-

ment. Second, it is highly inefficient to attempt to manage land or water in

isolation. Just as the resources are interrelated, so are management programs.

Unless management is well integrated, conflict, inconsistencies, overlap and

duplication inevitably result. Such waste of public and private effort is

increasingly intolerable. In Section I of this report, the need for better

integration is examined.

Numerous programs for the planning and regulation of land and water use

currently operate in Florida. Together they form an extremely complex management

system. This system is not well integrated, but it demonstrates many subtle

interrelationships. In Section II, the major land and water management programs

are described and their mutual relations are examined.

Improved integration of land and water management can be attained. A range

of management techniques are available to enhance communication and resolve

inconsistencies. In Section III, several methods are discussed, including

reorganization, review and comment procedures, coordinating councils, planning,

and coordinated permitting. Examples of how these techniques have been used

are described.











I. THE NEED FOR BETTER INTEGRATION OF LAND AND WATER MANAGEMENT


A. The Physical Interrelationship of Land and Water Systems

As physical systems, land and water are so closely related that it is

impossible to fully understand, wisely use or effectively regulate one without

considering the other.1 Human development and use of land affects water in

several ways. These impacts result from physical alterations to the land itself,

from release to the hydrologic cycle of various substances associated with a

particular activity, and from the withdrawal of water. As in most situations,

no factor works independently. For example, a change in the land's surface

features which causes increased runoff of water may also cause greater quantities

of pollutants to wash into a stream.

One of the first steps in development of land for agricultural, urban or
2
commercial uses is often to clear vegetation. Destruction of the vegetative

cover generally has three principal effects resulting from exposure of the soil,

alteration of its structure, and loss of the plants. First, the rate and

quantity of runoff increases and infiltration correspondingly decreases because
3
the soil loses its capacity to absorb water. Flooding downstream may be
4
accentuated and groundwater recharge may be diminished as a result. Second,

erosion of the bare soil increases. Erosion of watercourses may also be caused

by the accentuated flows described above. Third, any function performed by

the vegetation of filtering pollutants from runoff is lost.

The impacts caused by destroying the natural vegetative cover are generally

amplified by constructing impervious surfaces to replace it, with one exception -

erosion is reduced once the surface is constructed. The cumulative impact on

water resources of roofing, paving and compacting extensive land areas can be

enormous. Impermeable surfaces collect and rapidly direct into watercourses what-

ever precipitation occurs. The recharge of groundwater is blocked, streams










experience more rapid and accentuated fluctuations, flood peaks are increased,

and dry period flows are diminished.8 In addition, whatever pollutants have

been deposited on the surface or leach from it are washed downstream.
9
Filling and draining wetlands has particularly severe impacts. Wetlands

exist at the interface between upland and aquatic systems and are the location of

intensive biological actitivy. Destruction eliminates many of the functions

served by wetlands, with harmful effects on both terrestrial and aquatic systems.

One very important role of wetlands is as buffer against rapid hydrologic fluctu-

ations. They provide natural storage for flood waters, which are then released

gradually, thus reducing flood peaks and the severity and duration of droughts.11

In addition, by slowing the velocity of flood waters, wetlands can help reduce
12
the damages when flooding does occur. Wetlands are also important sites of
13
groundwater recharge in some areas. Another significant function of wetlands

is that they purify the waters which flow through them and thus serve to mitigate
14
the impacts on the aquatic system of land development in the watershed. In

addition, wetlands help to prevent siltation of downstream areas by slowing the

flow of water, thus decreasing its ability to erode stream banks and allowing a

portion of the sediment load to settle out.15

Another impact of land use on water arises from the contribution of pollu-

tants. Some water pollutants, such as sediment16 and nutrients,17 may be released

from natural systems as a consequence of altering the land. Other substances are

deposited on the land and subsequently carried by runoff into waterbodies. The

wastes generated by a land use activity may be deliberately discharged into

adjacent waters. In all cases, the type of land use and the manner in which it

is designed and carried out, has a direct relationship with the type and quantity

of pollutants which consequently enter receiving waters.

A similar relationship exists with regard to the withdrawal of water from

natural systems to serve land uses. The amount of water that must be withdrawn




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is directly related to the character of land use, its intensity and the practices
20
or techniques used in the consumption of water. For example, if a section of

land is used as the site of a power generating plant, then many more gallons

of water will be needed than if it is used for non-improved pasture, in which case

no water other than rainfall is used.21

The quality, quantity and location of water, of course, also have a sub-

stantial impact on land use. The availability of sufficient quantities of clean
22
water determines whether land can be used for many purposes. Industry, agri-

culture and residential development cannot occur without adequate supplies of

water. The feasibility of coal development in the upper great plains may well

depend, for example, on whether sufficient quantities of water are available.23

The critical importance of water is reflected in market values of land.24

Declining water quality may result in corresponding declines in the usefulness

of land.


B. Functional Interrelationship of Land and Water Management Programs

Because land and water are so closely related as physical systems, programs

for the development or management of these resources also tend to be function-

ally related. Thus, for example, the decisions made in the land use management

program will affect whether the goals of a water quality improvement program

are met. Similarly, the construction of a project for the improvement of water

quality of the control of floods is likely to affect the success of land use

planning. There are many examples of these types of interrelationships. Unfor-

tunately, they too often arise as unintended secondary effects rather than well

conceived interactions. Much of the need for better integration of land and

water management is a need to better harmonize conflicting programs and to use

them in mutually reinforcing ways.





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Most local, state and federal programs for the protection and improvement

of water quality operate pursuant to regulatory and planning authority and

financing under the federal Clean Water Act. These programs are replete with

examples illustrating the functional relationship between land and water manage-
27
ment programs and the need for better integration. One of the most notorious

has been the effect on land use patterns of constructing new se'.3e treatment

plants and interceptor sewers. Such facilities are typically designed with

excess capacity to avoid problems of early obsolescence. The availability of

sewers, however, often stimulates growth in areas that are unsuitable or unpre-

pared to accommodate it. Runoff and other nonpoint sources of pollution can then

cause water quality degradation as severe as that which the facilities were

intended to correct. Because of the need to increase tax revenues to pay for

their share of the eosts of building and operating the facilities, local govern-

ment officials with land use control authority may be reluctant to implement

adequate growth control measures.

On the other hand, the failure to build new water pollution control facili-

ties can have equally severe impacts on land use patterns and the growth manage-
29
ment plans of local government officials.29 Sewage treatment plants are designed

with limited capacity. If excess volume is received, they discharge inadequately

treated wastes. Discharge permits, then, allow the operator to accept a limited

quantity of waste. When the connection of new development threatens to exceed

this capacity, the utility may be required to impose a moratorium on new hookups.

Unless alternative treatment systems are available, this action translates into a

moratorium on new construction, which is more usually the perogative of local

land use control authorities. Similar restrictions on the industrial usage of

land may result from the enforcement of water quality limited effluent limitations

in areas with badly degraded water quality.











These effects are largely unavoidable. It is not possible to regulate the

sources of water pollution without affecting land use management programs because

those sources are land use activities. This linkage of land and water manage-

ment has become most evident in the control of nonpoint sources of water pollu-
30
tion. The traditional emphasis of water pollution control programs has been

on regulating the discharge of wastes from "point sources" such as sewage treat-
31
ment plants and industrial facilities. Water quality goals, however, cannot be

achieved with such a limited approach because much of the pollutant load comes

from nonpoint sources such as the runoff from construction sites, agricultural
32
operations and urban streets. The usual regulatory methods for controlling

water pollution -- establishing and enforcing standards on the quality and

quantity of discharge -- are impractical for use against the nonpoint sources,
33
as is the construction of conventional treatment facilities. If the nonpoint

sources are going to be controlled, then land use controls must be used. Among

the measures that have been recommended for consideration are: "zoning, flood

plain zoning and regulations, environmental performance zoning, subdivision

regulations, planned unit development regulations, buffer zones, conservation

and scenic easements, density bonuses, housing codes, building codes, construc-

tion permits, development permits, transferable development rights, hillside

development regulations, drainage regulations, grading regulations, soil erosion

and sediment control regulations, solid waste control regulations, septic tank

ordinances, taxation policies, public works policies, public investment policies,

land conservation policies, and discharge policies."34

Flood plain management is another need that defies classification as

exclusively a land or water management problem. In some respects, flooding is

a water management problem. Water is the damaging agent. One way of controlling

flood damage is to build structures to control the water. In other respects












flood damage is a problem of land use control. Flooding is a natural, necessary

and beneficial hydrologic phenomenon. Problems occur because people build

structures that are susceptible to damage within the flood plain. The least

costly and least environmentally damaging method of preventing flood damage is

to restrict land use within the flood plain. In many cases where structural

improvements have been made to the flood channel, at a great cost, additional

encroachment on the flood plain, made possible by the new works, has negated any

reductions in flood damage potential.

Many other pressing needs of environmental management simply defy classifi-

cation as either water managemenL of land use problems exclusively and are not

susceptible to solution by traditional, autonomous water management or land use

controls. For example, the need for wetlands protection is widely recognized.36

Many of the benefits of wetlands are water oriented. They filter pollutants,

recharge groundwater, store surface water, and reduce the velocity of floodwaters.

But they also provide excellent wildlife habitat, timber, open space and recre-

ational areas, which are typical land use considerations. More importantly,

the degradation of wetlands, and the loss of their water management functions,

generally comes from changing land use patterns, such as conversion to agricul-

tural use or for subdivision development. Although wetlands may be threatened

by certain water management actions, such as lowering water levels in a river

to provide water supplies or channeling streams to reduce flooding, these actions

are generally taken to accommodate land use changes. Unless the land and water

management decisions complement each other, wetlands cannot be effectively

protected.


C. Causes of the Lack of Integration

Although land and water, because of their close physical relationship, are

essentially a single resource, and land and water management programs are











functionally interrelated, these facts have not been adequately reflected in the

multitude of decisions, laws and institutions which affect natural resources.

Land and water are frequently used and abused, studied and regulated, spoken

of and acted upon as though they were not integral parts of the same system.

The reasons are complex. The widespread failure to perceive that land

and water are interrelated is a primary cause. Few people understand there is

a relationship between what is done on the land and what happens to the water

and vice versa.

Natural processes are unitary whereas human interventions tend to
be fragmentary and incremental. The effect of filling the estuarine
marshes or felling the upland forests is not perceived as related
to the water regime to flood or drought nor are both activities
seen to be similar in their effect. The construction of outlying
suburbs and siltation of river channels are not normally understood
to be related nor is waste disposal into rivers perceived to be
connected with the pollution of distant wells.37

Even when individuals do understand, they frequently lack concern for

the impact of their actions on the environment. For example, a person whose con-

struction company is clearing land from which sediment erodes to smother aquatic

life seldom cares enough about that impact to voluntarily pay for the added costs

of erosion control. The lack of concern evidenced by such a person results from
38
a deficiency in our system of ethics and values. Although the builder would

undoubtably view it as "wrong" to smother another human and, indeed, would be

appalled at the thought of doing such a thing, there are no similar ethical

scruples against smothering all of the non-human life in a section of a stream.

Whereas the dominant ethics of our society hold that human life is valuable and

not to be destroyed, the living environment presently has no equivalent value

and is thus abused at will.

Another reason for the lack of concern for environmental effects is that

the damage usually does not accrue as an economic cost to the person who causes

it. To the contrary, substantial economic benefits may be gained.39





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Because neither ethics nor economics have effectively restrained environ-

mental degradation, government has had to intervene. Government regulation,

however, and the actions of government itself have not been adequately inte-

grative of land and water management. One reason, of course, is that the

people who staff government agencies may suffer from the same ignorance and

lack of values as private individuals. They are also subject to political

pressure brought to bear by those whose business interests would be thwarted

by effective environmental regulation. Other reasons suggested by commentators

implicate institutional factors.

Government has historically attacked problems in a piecemeal, rather than

a comprehensive manner. Numerous single-purpose agencies have been created to

deal with specific problems such as the need for roads, flood protection or

irrigation water. The emphasis of these agencies has been on achieving those

narrow goals which have been assigned to them. Other factors have been less

important.40
Many times this approach compounded other problems even as it
was helping resolve the one for which it was designed. This
occurred because the problem-solver failed to consider secondary
impacts, such as stimulus to growth and development, and failed
to recognize the synergism involved. Federal agencies them-
selves have been slow to perceive, and often unable to correct
undesirable secondary effects. The reason is that correction
often would require a departure from the single-purpose mission-
oriented role typically thrust on these agencies by legislation--
and adherence to the assigned role is the standard by which
Congress and client groups measure their effectiveness.41

More efficient and cost-effective methods may be ignored by such an agency

when they lie outside the scope of traditional activities. For example, an

agency which was created, staffed and funded to build dams is likely to

promote the construction of dams to control flooding even when a less expensive

alternative would be to implement flood plain management practices, if the latter
42
solution would not be implemented by that agency.

As the objectives of government have broadened in recent years to include





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the goal of environmental protection, regulation has been implemented in an

incremental and disjointed fashion with little regard to how the total system
43
should operate. As problems are recognized, new programs are specifically

designed to address them. A legislature which sees a need to regulate the

use of water might pass a law with the limited objective of accomplishing that

goal. Later, that same legislature might see the need for land use planning,

wetlands protection or some other aspect of the problem and pass regulations

which bear little logical relationship to each other and are often duplicative,

conflicting or inconsistent.

The confusion is compounded by a fragmentation of authority at each level

of government and between levels of government. As new programs are initiated,

new agencies are created to administer them. As a result, there is

a vast array of functional programs and responsibilities under
the jurisdiction of numerous state agencies, units of local
government and special purpose boards, districts and com-
missions.45

One investigator has counted 137 federal programs which directly affect land
46
use. In addition there are thousands of local governments, which remain

the primary focus of land use control, hundreds of regional organizations, and

the states, each with individual, complex bureaucracies. Because of such a

splintered organization, it is very difficult to devise and administer an

integrated approach to land and water management. The agencies are often myopic,

concerned only with their individual slice of the problem. They may also be

jealous of their perogatives and funding among themselves.

Much of the fragmentation at state, regional and local levels reflects
47
the demands of numerous federal categorical assistance programs. State and

local governments have, in many respects, become agents for the implementation

of federal programs. Substantial funds are made available to accomplish national

goals. The grants are administered at the federal level by a number of differ-

ent units of the federal bureaucracy. Each of them is limited by detailed





-11-


statutory and administrative criteria regarding their expenditure, funding
48
cycles, accounting requirements and similar matters. These federal require-
49
ments are complex, diverse and nonharmonious. If the state or local entity

is not organized to mirror the federal organization, there may be substantial

difficulty in meeting the program requirements. As state and local counter-

parts are organized to manage the federal assistance, the fragmentation of

government is enhanced.51


D. Results of the Failure to Integrate and Coordinate

Numerous undesirable consequences have flowed from the failure to effectively

integrate and coordinate land and water management. Despite considerable progress,

the environment is still not being managed as an integrated holistic, natural

system. Numerous decisions regarding development or regulatory activity are

being made on a daily basis without adequate consideration of their effect on

the resource as a whole or on other government programs. The quality of the

environment is therefore continuing to be degraded.

This decline is occurring despite a proliferation of environmental laws

and agencies to administer them. Much of the cause lies, no doubt, in the

immensity of the task. Our laws, our institutions and the resources we have

committed are probably insufficient to reverse the decline. Bureaucratic

resources, like natural resources, are limited and likely to become even scarcer

in the immediate future. One must question, however, whether current approaches

are as effective and efficient as they should be.

Many programs and agencies have overlapping responsibilities, jurisdictions

and requirements. Such duplication tends to waste the resources of both govern-

ment and private parties. For example, it is not uncommon for more than one

agency to consider the impact of a proposed project on water quality. Each





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agency must support the necessary personnel to make the evaluation and may

also need to support laboratory facilities. If they are making the same deter-

mination, then there is obvious waste. The money expended on two evaluations

could be spent more profitably improving the quality of one of them.

The waste of duplication also affects private parties. A developer may

have to submit multiple applications and otherwise deal with the independent

personnel and discrete, sometimes conflicting requirements of the various

agencies and levels of the government. As developers consistently emphasize,

it is expensive and frustrating to negotiate the maze. Citizen groups also

suffer, however, from the waste of scarce donated funds and volunteer time.

Appearing at multiple hearings, presenting their views and evidence repeatedly

and seemingly never receiving a final decision saps the strength of volunteer

organizations.

The problems caused by the lack of integration are most acute when programs

are conflicting and inconsistent. One arm of government, for example, may be

seeking to destroy wetlands, while another seeks to protect them. Although

conflict is necessary and beneficial so long as there are different points of

view, in many cases too much effort is spent on such interagency struggles.

The potential benefits of having programs reinforce one another may also be

lost.





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SECTION I THE NEED FOR BETTER INTEGRATION OF LAND AND WATER MANAGEMENT

1Ian McHarg, Design With Nature 56 (1969); Walker & Cox, Water An Element
or Land-Use and Urban Growth Policies, 102 J. of the Urban Planning and
Development Division, Proc. of the Am. Soc. of Civ. Eng. 82 (August 1976).

2EPA, Processes. Procedures and Methods to Control Pollution Resulting from
All Construction Activity, 41, EPA 430/9-73-007 (1973).

3R. Darnell, Impact of Construction Activities in Wetlands of the United States,
131, 132 EA-6001 3-76-045 (1976) (hereinafter cited as Darnell).
Environments for Tomorrow, Interrelationships of Land Use Planning and Control
to Water Quality Management Planning (prepared for the U.S. Environmental Pro-
tection Agency under Contract No. 68-01-0750) (hereinafter cited as Inter-
relationships). L. Leopold, Hydrology for Urban Land Planning: A Guidebook
on the Hydrologic Effects of Urban Land Use, U.S.G.S Survey Circular 555 (1968).

4Interrelationships, supra note 3 at 49-50.

5R. Darnell, supra note 3 at 9. Sedimentation is a major environmental problem.
Over 4 billion tons of sediment are washed into our nation's waterbodies each
year. 2 Committee on Public Works, U.S. Senate, 93rd Congress, 1st Sess.,
A Legislative History of the Water Pollution Control Act Amendments of 1972,
at 1457 (1973). Sedimentation is an insidious farm of biological destruction
because the public tends not to recognize silt as a pollutant and to view
turbidity as an unavoidable natural phenomenon. Hines, Agriculture: The
Unseen Foe in the War on Pollution, 55 Cornell L. Rev. 740, 754 (1970). Sedi-
ment literally smothers insects, molluscs, crustaceans and fisheggs; clogs the
gills of fish; blocks the transmission of light; and increases water tempera-
tures. Darnell, supra note 3 at 9. By filling channels, lakes and reservoirs,
sediment decreases their usefulness. "Annual sediment deposits in the nation's
reservoirs amount to approximately 950,000 acre-feet, or nearly five times the
total volume excavated in building the Panama Canal." U.S. Environmental Pro-
tection Agency, Legal and Institutional Approaches to Water Quality Management
Planning and Implementation at VI, n.l (1977) (hereinafter cited as Approaches).
Finally, sediment is a major transport mechanism for other pollutants, which
attach themselves to the particles and are moved with them. Processes, supra
note 2 at 92, 96.

Interrelationships, supra note 3 at 49-50; U.S. Environmental Protection Agency,
Preventive Approaches to Stormwater Management 16-21 (1977) (hereinafter cited
as Preventive Approaches).

7Darnell supra note 3 at 30.

8Darnell, Id at 49; Interrelationships, supra note 3 at 49.

9See generally R. Darnell, supra note 3; C. Wharton, H. Odum, K Ewel, M. Duever,
A. Lugo, R. Boyt, J. Bartholomew, E. de Bellevue, S. Brown, M. Brown & L.
Duever, Forested Wetlands of Florida, Their Management and Use (1977) (herein-
after cited as Forested Wetlands); Proposed Amendments to the Federal Water
Pollution Control Act: Hearings on S. 2770, 404 Before the Senate Committee
on Public Works, 94th Cong., 2d Sess. 390 (1976) (hereinafter cited as 404
Hearings) (statements of Louis L. Clapper & Kenneth S. Kamlet); Id. at 683-87
(statement of Orie L. Loucks).





-14-


A six inch rise in water over ten acres of wetlands places more than 1.5
million gallons in storage. 404 Hearings, Id. at 501.

11Researchers who studied the Nepuset River in Massachusetts concluded that
destroying 10% of the wetlands would raise flood stages by 1.5 feet, and
destroying 50% would raise floodwaters 3 feet. Id. at 685 n.l The Army
Corps of Engineers calculates that a 40% reduction in wetlands along the
Charles River would elevate flood stages between 2 to 4 feet. Id. 685.

12For example, after widespread flooding in Pennsylvania, bridges below a
wetland that had been preserved were unharmed, while similar bridges else-
where were destroyed. Id. at 501.
13Id. at 419, 501.

14Forested Wetlands, supra note 10, at 51, 111-13. A study of Lake Minnetonka
in Minnesota for the period from June 1969, to May 1970, revealed that although
77,000 pounds of phosphorus were released into the watershed, only 50,300
pounds reached the lake. Wetlands trapped 26,700 pounds. Id. at 509. The 512
acre Tinicum marsh daily reduces about 7.7 tons of BOD, 4.9 tons of P-P04, 4.3
tons of N-NH3, 138 pounds of N-NO3 and produces 20 tons of 02. Id. at 503. In
the Alcovy River system, the water of one tributary which was heavily polluted
by human sewage and chicken offal could be reclassified as clean after passing
through 2.75 miles of river swamp and upgraded to excellent after 7 more miles.
Id. In Wisconsin, researchers concluded that 300 acres of wetlands which had
been destroyed would have trapped 200-300 kg/yr of the phosphorus generated
by agricultural and urban development of uplands. Id. at 684 n.5. It has
been estimated that a 1,000 acre marsh may be able to purify the nitrogenous
wastes of 20,000 people. Id. at 421.

15Id., 686 n.6.

16The runoff from a construction site, for example, may carry 40,000 times as
much sediment as the runoff from an unaltered watershed. J. Wildrick, K.
Kerns, Urban Water Runoff & Water Quality Control 10 (Dec. 1976)(Virginia
Water Resources Research Center).

17There were over 10 billion tons of organic nitrogen in the virgin soil of the
United States. Cultivation induces nitrification of organic nitrogen, which
is then more susceptible to being washed away as nitrate. Interrelationships,
supra note 3 at 50; Hines, supra note 5 at 748-49.

18The surfaces of an urban environment collect large quantities of a variety of
noxious pollutants, including particulates from air pollution, petroleum
products, litter, animal wastes, road deicing salts, herbicides, fungicides,
pesticides, fertilizers and other chemicals. See generally, EPA, Urban
Ctormwater Management and Technology: An Assessment 88 (1974) (Hereinafter cited
as Assessment). Amy, Pitt, Singh, Bradford & Lagraff, Water Quality Manage-
ment Planning for Urban Runoff, EPA-440/9-75-004 (NTIS PB 241-689/AS)(1974).

19See generally, Interrelationships, supra note 3 at 30-56.

20National Water Commission, Water Policies for the Future, 368 (1973).





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21If freshwater cooling towers or ponds are used, approximately 12,500 gallons
of water are consumed in the production of one megawatt of electricity.
Southwest Florida Water Management District, Water Management Plan, L-1 (1978).

22See generally, Interrelationships, supra note 3 at 61-74.
D. Scott, G. Pfeiffer & D. Gronhovd, "Water as a Parameter for Development of
Energy Resources in the Upper Great Plains -- Effects on Land and Water
'Resources of Alternative Patterns of Coal-Based Energy Development," North
Dakota Research Report No. 70 (Dec. 1978), N.D.Ag. Ex. Station, Fargo, N.D.
C. Boris & J. Krutilla, Water Rights and Energy Development in the Yellowstone
River Basin; An Integrated Analysis (1980).
24
See generally, Interrelationships 73-74. In Eastern Washington, for example,
one study determined that availability of irrigation water caused a three to
fourfold increase in the value of farmland. Department of Ecology, State of
Washington, Irrigation Values (unpaginated mimeo)(1975).

25Interrelationships, Id.

26The Federal Water Pollution Control Act Amendments of 1972, P.L. 92-500,
were revised and renamed by The Clean Water Act of 1977, P.L. 95-217, codified
at 33 U.S.C. 1251-1376
For comprehensive discussions of the water pollution control scheme embodied
in the Act, see Hall, The Clean Water Act of 1977, 11 Nat. Resources Law. 343
(1978); Comment, The Clean Water Act of 1977: Great Expectations Unrealized,
47 TU. Cin. L. Rev. 259 (1978).

27See generally Donley & Hall, Section 208 and Section 303 Water Quality Planning
and Management: Where is it Now?, 6 Envt'l L. Rptr. 50115 (1976); Federman, The
1972 Water Pollution Control Act: Unforeseen Implications for Land Use Planning,
8 Urb. Law. 140 (1976); Hines, Farmers, Feedlots and Federalism: The Impact of
the 1972 Federal Water Pollution Control Act Amendments on Agriculture, 19
S.D.L. Rev. 540- (1974); Jungman, Areawide Planning Under the Federal Water
Pollution Control Act Amendments of 1972: Intergovernmental and Land Use Impli-
cations, 54 Tex. L. Rev. 1047 (1976); Phillips, Developments in Water Quality
and Land Use Planning: Problems in the Application of the Federal Water Pollu-
tion Control Act Amendments of 1972, 10 Urb. L. Ann. 43 (1975).

Interrelationships, supra note 3 at 74-77.
29
C. Williams, The Influence of Environmental Law on Nebraska Land Use, 57 Neb.
L. Rev. 730-762, 742-43 (1978).

30See generally, the authorities cited in note 27.


A point source is "any discernible, confined and discrete conveyance from
which pollutants are or may be discharged." 33 U.S.C. 1362(14) (Supp. 1980).

32See discussion supra at notes 16 to 18.

33Jungman, supra note 27 at 67.





-16-


34EPA, Guidelines for Areawide Waste Treatment Management Planning 4-6 (August
1975). See also, EPA, Preventive Approaches to Stormwater Management 105-135
EPA 440/9-77-001.

35Water Policies for the Future, supra note 20 at 149-50.

36See e.g., Fish and Wildlife Service, Proceedings of the National Wetlands
Protection Symposium, Reston, Va., June 6-8, 1977.

37Ian McHarg, Design with Nature, 65 (1971).

38Aldo Leopold, "The Land Ethic," A Sand County Almanac (1949).

39Ian McHarg, supra note 37.

40See remarks of Senators Jackson and Muskie quoted in Dreyfus and Ingram, The
National Environmental Policy Act: A View of Intent and Practice, 16 Nat. Res.
J. 243-262, at 246 and 253 (1976).

41Walker & Cox, supra note 1 at 86.

42Water Policies for the Future, supra note 20 at 379.

43J. Noble, J. Banta and J. Rosenberg, Groping Through the Maze, 1-164, 21 (1977).

44Groping Through the Maze, supra note 43 at 21, 27; F. Bosselman, D. Feurer, C.
Siemon, The Permit Explosion, 73 (1976).

45Council of State Governments, State Planning: Intergovernmental Policy Coordi-
Nation 1-158, 18 (1976).

46Groping Through the Maze, supra note 43 at 22
47
In 1975, an Office of Management and Budget Committee found 1100 different
categorical assistance programs. State Planning supra note 45 at 10.

48Id., 47.
49
Id., 12.

50Id., 47.

51Id., 11.





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II. LAND AND WATER MANAGEMENT IN THE STATE OF FLORIDA: EXISTING INTERRELATIONSHIPS


Introduction

Land and water management is an extremely complex process in Florida.

Numerous state, regional and local governmental entities play varying roles.

A bewildering plethora of laws and regulations govern the execution of their

responsibilities. The details of their activity are virtually impossible to

comprehend. Yet, it is the sum of those actions that constitutes the system

for managing natural resources that has evolved in Florida. This section of

the report will describe the major laws that currently guide land and water

management in Florida. Emphasis will be placed on their interrelationships

and on techniques that are being used to integrate land and water management.

Subsection A describes the basic administrative structure that has been created

to administer these laws. Susbsections B through E then detail the operation of

the Environmental Land and Water Management Act of 1972, the Local Government

Comprehensive Planning Act of 1975, the Florida Water Resources Act of 1972 and

the Florida State Comprehensive Planning Act of 1972.





-18-


A. Overview of Management Structure

As in most states, the government of Florida is divided into legislative,

judicial and executive branches. The characteristics of the executive are unique,

however. Many functions are carried out by the Governor. He may, for example,

appoint the heads of certain executive agencies, subject to the approval of the

Senate. Many other powers, though, are exercised by the Governor and independently

elected Cabinet officers sitting as a board on which the Governor has only one

vote. This board carries different names depending upon the particular duties

being performed. Several different types of regional agencies, local governments

and special districts also play important roles.

1. State Agencies

a. Department of Environmental Regulation

The Florida Department of Environmental Regulation (DER) was created by the

Florida Environmental Reorganization Act of 1975 as the primary state level
2
environmental permitting agency. The Secretary of DER is appointed by the

Governor. In addition, there is a seven member Environmental Regulatory Commission

(ERC) which, representing various interest groups, sets regulatory standards and
3
approves the use of federal grants. Many of the functions of DER are exercised
4
through district offices.

The specific responsibilities of DER cover a wide spectrum. A primary

activity is the regulation of pollutant discharges into the air or water pursuant
4a
to the Florida Air and Water Pollution Control Act. DER also has broad re-

sponsibilities,exercised in conjunction with regional water management districts,

for the management of water quantity under the Florida Water Resources Act of

1972. In addition, DER permits dredging, filling and similar activities in

waters of the state. The construction of wells, the operational personnel of
8 9
water and sewage treatment plants, public drinking water systems, solid waste





-19-


disposal, and hazardous waste management. DER also has important responsi-

bilities for coordinating a broad environmental review of power plants,12
13 14
power lines, and certain major industrial facilities. Besides these

regulatory functions, DER also has responsibilities for lake restoration programs,

the administration of wastewater treatment plant construction grant programs,

areawide waste treatment management planning, the coordination of Florida's
18
public works program and development of Florida's Coastal Zone Management

Program.

b. Department of Natural Resources20

The Florida Department of Natural Resources (DNR), in contrast to DER, is

headed by the Governor and Cabinet. DNR has similarly broad responsibilities

although they are oriented more toward natural resource:management and less

toward environmental permitting. One major area of responsibility is to manage

the use of marine resources. Seafood dealers are licensed and regulated; the

use of seafood is promoted and the taking of various marine creatures such as
21
shrimp, crawfish and oysters is regulated. Substantial scientific investiga-

tion into the biology of these resources is also conducted. With regard to

freshwater areas, DNR conducts research and attempts to control the growth of
22
noxious aquatic weeds. DNR also has primary responsibility for protecting

and restoring the state's sandy ocean shores, which it does by regulating coastal

construction and helping to fund erosion control projects. The various state

parks and preserves are administered by DNR,24 as are many aspects of the manage-
25
ment of all other state lands, especially sovereignty submerged lands. The

acquisition of new state lands for conservation and recreation purposes is

administered by DNR.26 The containment and removal of pollutants discharged in

coastal areas is a duty of DNR.27





-20-


c. Department of Community Affairs

The Department of Community Affairs (DCA) has been given responsibility

for most of the state's activities in the area of land use control. The

Environmental Land and Water Management Act of 197228 is administered by DCA.

Under this Act certain large scale developments of regional impact (DRI) are

subjected to regional and state scrutiny with review powers in the Governor and
29
Cabinet. DCA plays a key role in the DRI review process. In addition, DCA

is responsible for administering the Areas of Critical State Concern program,

under which the state may intervene in the land use regulatory process of local
30
governments in certain critical areas. Finally, DCA oversees implementation

by local governments of the Local Government Comprehensive Planning Act, by

which local governments in the state are required to adopt and enforce compre-
31
hensive plans covering certain specified elements of concern. The Secretary of

DCA is appointed by the Governor.

d. Game and Freshwater Fish Commission

The Game and Freshwater Fish Commission is an agency with independent
32
constitutional status. It is governed by five Commissioners, who are appointed
33
by the Governor for staggered five year terms. The Commission exercises the

usual powers of such an agency to regulate bag limits, seasons, and techniques
34
for the taking of game and freshwater fish. In addition, the Commission has

been charged with responsibility for protecting and managing rare, threatened
35
and endangered species. In recent years the Commission has become increas-

ingly concerned with the need to preserve habitat, control pollution and manage

water for the benefit of wildlife. It conducts research and advises other

agencies on these needs.

e. Executive Office of the Governor

A reorganization of the Governor's Office by Governor Bob Graham in 1979

included a consolidation of state planning and budgeting functions under his





-21-


control. The responsibility for developing a state comprehensive plan,

formerly executed by the Division of State Planning of the Department of

Administration was transferred to his office.

2. Regional Agencies

a. Regional Planning Councils

Regional Planning Councils (RPC) play an important role in the management

of land and water resources in Florida. Eleven regional planning councils,

covering the entire state, have been created by the voluntary agreement of
38
participating local government. They perform a myriad of planning and techni-

cal assistance functions. Regional planning councils typically perform A-95
39 40
review, conduct various functional planning activities, provide technical

assistance to local governments in preparing local plans, and review certain

large scale land development projects, i.e. developments of regional impact

(DRI).42 In addition, the RPC's have been given statutory authority to appeal

local government decisions regarding developments of regional impact to the

Governor and Cabinet.43

As of January 1, 1981, the effective date of the Florida Regional Planning
44
Council Act, significant changes have been made in the compoFstion and status

of Regional Planning Councils. The Governor is given authority to specify the
45 46
geographic area of the RPC's, appoint one third of the membership, and review
47
rules of the RPC's relating to functions designated to them by the state. In

addition, the RPC's are now required to adopt regional policy plans, and to use

them as the basis for review of DRI's, local government comprehensive plans,
49
and federally assisted projects subject to the A-95 review process. These plans

must be consistent with the plans of the Water Management Districts and the

Department of Environmental Regulation.50 The latter two agencies have been

given authority to revise the regional plans to make them consistent, with a right





-22-


of appeal to the Governor and Cabinet remaining in the RPC.51

b. Water Management Districts

Five regional water management districts (WMD), organized along hydrologic

boundaries and covering the entire state, exercise broad water management
52
authority pursuant to the Florida Water Resources Act of 1972. Although much

of the authority of the water management districts has been actually dele-

gated to them by DER and they are subject to the "supervisory authority of DER,

in fact the water management districts are largely autonomous. Nine-member gov-

erning boards, appointed by the Governor, direct the water management districts.53

Their responsibilities include the duty to conduct scientific investigations
54
into the technical aspects of regional water resources, consumptive use per-

mitting authority, power to regulate surface water management systems such as

dams, impoundments or drainage works,56 the preparation of a regional water use
57 58
plan, the permitting of artificial recharge projects, the permitting of well

construction59 and the licensing of water well contractors.60 All such decisions

may be appealed to the Governor and Cabinet. In addition, unlike any other

state or regional agency, the WMD's are authorized to levy ad valorem taxes to

finance their activities.62

3. Special Districts

a. Regional Water Supply Authorities

Regional Water Supply Authorities may be established by local governments,

subject to approval by the Governor and Cabinet, for the purpose of constructing

and operating regional water supply facilities. There are at present only two

such authorities. The West Coast Regional Water Supply Authority was created

in an attempt to resolve a long-standing "water war" between Pinellas, Pasco,

and Hillsborough Counties. The Withlacoochee Regional Water Supply Authority

was apparently created as a defensive move in an attempt to preclude the former





-23-


authority from taking water from that area.

b. Drainage Districts (Water Control Districts)

Much of Florida is wetlands and one of the predominant historical trends

has been for landowners to drain their lands. The State has long encouraged such

activity by creating or allowing landowners to establish special drainage dis-

tricts. Such districts are necessary to allow landowners to collectively

raise money to build and operate works. In addition, unwilling landowners may

be forced to participate.

Although many districts were created by special act or by general act of

local application,64the General Drainage Act of 1913,65 codified as Chapter 298,

Florida Statutes, provided a popular alternative. Under Chapter 298, a

majority of the landowners of contiguous wetlands can petition the circuit

court and have a water control district created. A board of supervisors, elected

by landowners in proportion to the extent of their holdings, conducts the affairs

of the district. A plan of reclamation, approved by the court, guides the drain-

age project, and taxes on the benefited land pay for it.

c. Other Special Districts

In addition to the special districts described above, Florida law provides

for the creation of numerous other types. Soil and water conservation districts,

with extensive authority to adopt land use regulations, may be established.67

Watershed improvement districts, with ad valorem taxing authority, may be created

as subdistricts of the soil and water conservation districts.68 Beach and shore

preservation districts may be created by county governments.69 Mosquito control

districts,70 navigation districts71 and miscellaneous other special districts72

are authorized and exist in profusion throughout the state.





-24-


4. Local Governments

Virtually all land use decisions in Florida are made by local governments.

In addition, they sometimes exercise water management functions, particularly

with regard to drainage control and water pollution abatement. There are three

types of general purpose local governments in Florida: municipalities, chartered

counties and nonchartered counties. Although each of them derives its power

from the state, through the Constitution or by Legislative Act, the specific

sources differ. Their respective authorities therefore differ somewhat also.

Municipalities derive their power from Article VIII, 2 of the Florida
73
Constitution and the Municipal Home Rule Powers Act. These municipal home rule

powers generally authorize municipal legislation concerning any subject upon

which the State Legislature could act except where preempted by the state or a

charter county. Municipalities thus have authority to enact .building, zoning,

subdivision and environmental protection regulations. Non-charter counties
74
have similarly broad powers. Charter counties have whatever powers are con-

fered by the charter.

One law of particular interest that affects all local governments in Florida

is the Local Government Comprehensive Planning Act of 1975 (LGCPA). In essence,

this law requires local governments to adopt comprehensive plans for their

growth and development. These plans must include specified elements and future

land use decisions must be consistent with the plans. Non-binding review by state

and regional agencies is also provided for.




-25-


B. The Environmental Land and Water Management Act of 1972 (Ch. 380)


The State of Florida's greatest direct involvement with land use is

through the Environmental Land and Water Management Act of 1972 (ELA).77

Closely modeled after the American Law Institute's (ALI) Model Land Development
78
Code, the ELA is an attempt to force local governments to consider the impact

on state and regional interests of land development decisions while leaving
79
most of the power to make those decisions at the local level. A basic premise

of the Act is that the state should become involved with only a small number of
80
land use decisions -- those with regional or statewide impacts. Local

development decisions are primarily left to local communities, while the state

participates in regulating development in "areas of critical state concern"81

and "developments of regional impact."82 Although many details of the process

have been changed in recent years, the basic thrust of the regulatory framework

remains unchanged.

1. Areas of Critical State Concern

The ELA empowers Florida's Governor and Cabinet, sitting as the "Administra-

tion Commission", to designate selected lands as "areas of critical state con-

cern," thereby invoking a measure of state control over the content and admini-

stration of local land development regulations in the area. As originally

enacted, an area could be designated if it fit within one of the following

categories:

(a) An area containing, or having a significant impact upon
environmental, historical, natural, or archaeological resources
of regional or statewide importance;
(b) An area significantly affected by, or having a significant
effect upon, an existing or proposed major public facility or
other area of major public investment;
(c) A proposed area of major development potential which may
include a proposed site of a new community, designated in a
state land development plan.84




-26-


With Florida's extensive, unique natural resources and rapid development,

much of the state could obviously qualify under one of these categories,

although the legislature limited designation at any one time to no more than
85
5% of the state's area. Accordingly, in 1978, in the case of Askew v. Cross

Key Waterways,86 the Supreme Court of Florida invalidated that section. The

basis of the Court's decision is a venerable doctrine prohibiting delegation

of legislative powers. According to the non-delegation doctrine, a grant

of powers by the Legislature to an administrative agency is invalid unless

guidelines and standards sufficient to constrain the unbridled discretion of the

agency are attached.88 In the view of the court, the grant of power to desig-

nate areas of critical state concern was essentially unconstrained by the broad

criteria of the statute and was thus an unconstitutional delegation of the

legislative powers.

Amendments enacted in 197989 attempt to cure the deficiency. First, the

affected areas were redesignated by the Legislature, thereby rendering them

non-administrative actions. Second, more detailed standards were added to the

act for guidance of the Commission in making designations.90

The original ELA allowed the Commission to make a designation based on a

report by the state land and planning agency and its own deliberations. Now,

designation must be preceded by the appointment of a Resource Planning and

Management Committee for the area, which must be given an opportunity to allow

local governments to voluntarily work together to alleviate the problems com-

pelling designation. This program will be discussed at length in a later section
91
of this report.

"Principles for guiding development of the area" must be specified at the

time an area is designated.92 A moratorium on development is specifically pro-

hibited.93 Local governments in the area then have six months to present land

development regulations to the Commission which "comply" with the specified





-27-


94
principles. If that does not occur, the state land planning agency, which is

currently the Department of Community Affairs (DCA), must submit to the Commis-

sion, within 120 days, recommended land development regulations to supercede

or supplement those of the local governments.95 These must be adopted by the

Commission before twelve months have transpired since the date of designation,
96
or designation automatically terminates. Until the Commission has approved

or adopted land development regulations "...a local government may grant devel-

opment permits in accordance with such land development regulations as were

in effect immediately prior to the designation of the area..."97 Afterwards,

it is the responsibility of the local governments to adminster and enforce the
98
new regulations, and to conform the local government comprehensive plan to
99
the principles for guiding development. If the administration of them is

inadequate, the DCA "may institute appropriate judicial proceedings...to compel

proper enforcement...." 100 Development orders of the local government in an

area of critical state concern may also be appealed to the Land and Water

Adjudicatory Commission.101

2. Development of Regional Impact

The state also participates, under the ELA, in regulating developments of

regional impact (DRI). The statute defines a DRI as "...any development, which,

because of its character, magnitude or location, would have a substantial
102
effect upon the health, safety, or welfare of citizens of more than one county.

The Aministration Commission has adopted guidelines "...to be used in determin-

ing which particular developments shall be presumed to be of regional impact."103

For example, a petroleum storage facility would be presumed to be a DRI if located

within 1,000 feet of navigable waters and with a storage capacity of over 50,000
104
barrels. A sliding scale threshold applies to residential developments. Thus,

in a county with a population of less than 25,000 a development of over 250 dwel-

ling units is a DRI while the limit is 3,000 units in a county with a population




-28-


in excess of 500,000. Although the statutory definition is apparently self-

executing, a developer may obtain a binding letter of interpretation from

the DSP as to whether a development would be a DRI, which is binding on all

state, regional or local agencies.107

The specifics of regulation depend upon the jurisdiction in which the DRI
108
is to be built. If there are no land development regulations in the juris-

diction, the developer is merely required to notify the DSP and local authori-

ties of his intentions to build.109 If no regulations are enacted or the area

is not designated as being of critical state concern within 90 days, then

development may proceed unimpeded by the ELA. If development is proposed

within an area of critical state concern, then it must meet the requirements

of the designation and associated regulations. The designation may speci--
112
fically activate the DRI process for the area. In most instances, the pro-

posed DRI will be in a jurisdiction which has adopted land development regu-

lations. An application must then be made to the local government for develop-

ment approval.113 Procedures for coordinating this application with other

permitting agencies were recently enacted and will be discussed in a later
114
section of this report.

Although the local government is empowered to initially approve or deny

an application, the regional planning agency is charged with the duty of evalu-

ating the proposed developments' regional impacts and making a recommendation

to the local government. It must consider "whether and to the extent which:

(a) The development will have a favorable or unfavorable
impact on the environment and natural resources of the region.
(b) The development will have a favorable or unfavorable impact
on the economy of the region.
(c) The development will efficiently use or unduly burden water,
sewer, solid waste disposal, or other necessary public facilities.
(d) The development will efficiently use or unduly burden public
transportation facilities.




-29-


(e) The development will favorably or adversely affect the
ability of people toJfind adequate housing reasonably acces-
sible to their places of employment.
(f) The development complies with such other criteria for
determining regional impact as the regional planning agency
shall deem appropriate, including, but not limited to, the
extent to which the development would create an additional
demand for, or additional use of, energy, provided such
criteria and related policies have been adopted by the
regional planning agency pursuant to 120.54.115

The local government in turn must "...consider whether, and the extent to

which:

(a) The development unreasonably interferes with the achieve-
ment of the objectives of an adopted state land development
plan applicable to the area;
(b) The development is consistent with the local land develop-
ment regulations; and
(c) The development is consistent with the report and recommend-
ations of the regional planning agency submitted pursuant to
subsection (8) of this section.116

There is no requirement that the recommendations of the RPC be followed,

but the decision regarding issuance of a development order may be appealed by

either the developer, the Regional Planning Council, or the Division of State

Planning to the Land and Water Adjudicatory Commission. A final decision

on whether to allow development is then made by that state level body.118

3. Regulating Areas of Critical State Concern to Protect Water

The history of the ELA furnishes an excellent example of the way land

use controls may be used to protect water resources. The Environmental Land

Act itself was proposed by Governor Askew's Task Force on Resources Management,

which had been directed by him "to follow up on the recommendations of the

Governor's conference on water management problems in South Florida...."119

The ELA was thus a response to an environmental crisis which had first received

significant attention, as is often the case, because of problems of water supply.

Water has continued to dominate the process. Those areas which have been

designated as being of critical state concern thus far have been brought under





-30-


the Act largely to protect their vital resources. Within a year after passage

of the ELA, the legislature designated a part of the Big Cypress Swamp as an
120
area of critical state concern.

The Big Cypress is an enormous swampy area occupying most of the south-
121
western end of the Florida peninsula. Habitat is extremely varied, includ-

ing pine flatwoods, hardwood hammocks, cypress swamps, wet prairies, and saw-
122
grass marshes. The location, depth and timing of inundation by water are

extremely important in determining habitat types. The difference between a

flatwood or hardwood hammock and a cypress swamp results from a relatively

minor difference in elevation. Freshwater flow from the Big Cypress is also

vital for regulating salinity in the adjacent highly productive mangrove

estuaries of Everglades National Park. The entire region is thus extremely

sensitive to alterations in the distribution and flow of surface waters.

Drainage and development threatened to ruin The Big Cypress, and local
123
government officials had taken little action to prevent it. Development of

Golden Gate Estates by Gulf American Land Corporation, for example, was per-
124
mitted. In Golden Gate Estates an intricate grid of canals and roads was

constructed to drain and provide access to a 173 square mile tract of the Big

Cypress. The land was subdivided and sold to buyers all over the world. The

water table was reduced, the hydroperiod shortened, the incidence of fires

increased, the coastal estuary disrupted, and the specter of water shortages

made imminent.125

The Division of State Planning proposed regulations and boundaries for

The Big Cypress Area of Critical State Concern which were designated to prevent

duplication of the Golden Gate Estates tragedy elsewhere in the area. Three-

fourths of the watershed was to be protected by stringent regulations.

Intense political opposition forced a drastic reduction in boundaries and weaker

ening of the regulation.128




-31-


The final regulations which the Commission adopted are fairly restric-

tive.129 No more than 10% of a site may be altered and no more than 50% of

that may be covered with a non-permeable surface. Other sections primarily

regulate the hydrologic aspects of land development.131 For example, if any

dredge or borrow ponds are constructed they must "be aligned in the direction

of local surface water flows...and must be designed to ... release ... storm-

waters as sheet flow from their down-stream end into unaltered areas of vege-

tation."132 New drainage facilities are required to "...release water in a

manner approximating the natural local surface flow regime, through a spreader

pond or performance equivalent structure or system, either on site or to a

natural retention, or natural filtration and flow area."133

The first area to be designated as an area of critical state concern by
134
the Commission was part of the Green Swamp in central Florida. This area --

a perched swamp -- is both threatened by development and hydrologically vital.135

The threat comes from being adjacent to the booming Orlando Disney World area.

The hydrologic value of the Green Swamp lies in the fact that it is the source

of five major rivers and one of the most important recharge areas in the

state for the Floridan aquifer, Florida's main source of groundwater supply.

The Green Swamp was designated primarily to protect its ability to supply good

quality water.

Regulations subsequently adopted for the area reflected this concern.

For example, the percentage of a site's area which may be altered is "...limited

in accordance with the natural drainage capabilities of its soil."138 No more

than 50% of the altered area may be covered with a nonpermeable surface.139

Large nonpermeable surfaces,140 and new drainage systems141 must release waters

"...in a manner approximating the natural surface water flow regime." Protection
142 143
or recharge capability, prohibition of discharge into sinkholes, protection





-32-


of the "water retention and filtering capacity of wetlands,"144 and floodplain

building restrictions are all addressed by the regulations. The standards and

regulations of the Southwest Florida Water Management District regarding ground

water withdrawals are incorporated by reference.145

4. Use of the DRI Process to Protect Water

Considerations of the impact on water resources have also played a deter-

minative role in the evaluation of developments of regional impact. The first

case decided on appeal by the Cabinet involved the proposed Three Rivers develop-

ment, which was to be a large residential community located about 20 miles north
146
of Orlando in Lake County. Although supported by Lake County, the develop-
147
ment was opposed by the East Central Florida Regional Planning Council. A

primary reason for its opposition was concern for the effects of sewage and

stormwater runoff on water quality of the adjacent Wekiva River, which the Coun-

cil had recommended for designation as a "scenic and wild river."148 A hearing

examiner appointed by the state agreed with the Council and his report was

accepted by the Cabinet, thus blocking the uncoordinated development.149

Another example of how the DRI process works to protect water resources is

the Estuaries, a proposed development of regional impact in Lee County adjacent

to Estero Bay in Southwest Florida. The developer proposed to develop a

6,500 acre tract of land151 with 26,500 high density dwelling units.152 The

development would house 42,000 permanent residents, increasing to a seasonal

population of 74,000.153 Because approximately 92% of the property is wetlands,

major filling would be necessary for development. The adjoining waters of

Estero Bay and San Carlos Bay are "relatively pristine coastal estuaries."155

Estero Bay has been set aside as a State Aquatic Preserve and both estuaries

have been recommended for protection by an area of critical state concern
designation. 157
designation.




-33-


In its evaluation recommending disapproval of the project, the Southwest

Florida Regional Planning Council concentrated heavily on potential harmful

impacts on the water quality of the estuaries. Drainage from impervious

surfaces158 and grassed areas carrying a heavy load of pollutants159 would

eventually be routed into the estuaries. The filtering effect of a larger

interceptor canal proposed by the developer was untested and subject to theore-

tical dispute.160 Because of this threat to the water quality of San Carlos

Bay and Estero Bay Aquatic Preserve the Regional Planning Council recommended

denial of the project.161

Another impact evaluated by the Council was the proposed development's

demand on the area's freshwater supplies. The developer proposed to meet

the sizable potable water demands of the project163 by drawing upon a nearby
164
aquifer known as the Sandstone Aquifer, the capacity of which, according to

the U.S. Geological Survey, had not been ascertained. In the event suffi-

cient water could not be obtained from the Sandstone Aquifer, the developer

proposed to build a reverse osmosis plant to desalinate waters from the lower

Harthorne and Suwannee aquifers. These aquifers, however, are also of

unknown capacity and currently serve several other nearby communities. Non-

potable water for irrigation of open spaces and recreational areas in the pro-

ject would be drawn from effluent discharged from a planned sewage treatment

facility, or barring that, from the lower Hawthorne and Suwannee aquifers.168

The conclusion of the Planning Council staff with respect to these plans was

that insufficient data existed to determine whether the project would unduly

burden areawide water resources and for that reason the Council recommended
169
against approval.

Based on the negative recommendations of the Regional Planning Council,

the Lee County Board of County Commissioners refused to issue a favorable develop-

ment order. The developer appealed to the State Cabinet, and a state appointed





-34-


hearing examiner held lengthy hearings. Considerations of water quality and

availability played a major role in the hearings and the local decision to

prohibit the development was upheld.170

5. Effectiveness of the ELA as a Device for Integrating Land and Water
Management

The Environmental Land Act represents an ambitious first step toward the

integration of land and water management. Powers to control land use under the

ELA are being used to protect the quality and quantity of water in areas of

critical state concern and in watersheds affected by developments of regional

impact. The effectiveness of the ELA in achieving these results, however, is

limited by a number of restrictions born of legislative compromise with its

opponents.

First, and most obvious is the 5% cap on designating areas of critical

state concern. Much more of the state could benefit from state supervision.

Wetlands alone constitute 24.7 to 34.02% of the state's area. The entire

coast should probably be designated as an area of critical state concern, because

of its tremendous importance to the entire state and because of the development

pressures which are being brought to bear on it.172 Designation as areas of

critical state concern could also be used to restrain development in regionally

important floodplain and wetland areas. Similarly, those areas of the state

which are growing beyond the limits which can be supported by their water

resources and which are beginning to look toward other regions of the state for

water, would be restrained by designation as areas of critical state concern.

The 5% limit effectively forecloses these possibilities, however, which is

probably what was intended.

A second major fault lies in the area of exemptions from regulation. An

agricultural exemption may be found in the definition of development.173

Development, as defined by the Legislature, does not include:





-35-


...The use of any land for the purpose of growing plants,
crops, trees and other agricultural and forestry products;
raising livestock...; or for other agricultural purposes.174

Therefore, land development regulations may not be used to control agri-

cultural development of land. This is extremely unfortunate. Vast areas

of the state are being cut, bulldozed, burned and drained for agricultural

expansion. Mixed hardwood forests and swamps are rapidly being replaced with

either a pine tree monoculture or cattle pasture. The environmental effects of

this development are as serious as that of building houses, because it is so

extensive.176

Another exemption comes from the creation of certain vested rights in areas

of critical state concern. The statute prohibits limiting or modifying in

any way "...the rights of any person to complete any development that has

been authorized by subdivision approval,178 or by a building permit or other

authorization to commence development on which there has been reliance and a

change of position."179 Furthermore, "if a developer has by his actions in

reliance on prior regulations obtained vested or other legal rights that in

law would have prevented a local government from changing those regulations in

a way adverse to his interests, nothing in this chapter authorizes any govern-

mental agency to abridge those rights."180 There are many areas of the state

which have been subdivided or platted but where there has not been much actual

building. Two particularly egregious examples are Golden Gate Estates near

Naples and the Melbourne-Tillman Drainage District.181 Because of this section,

both are exempt from regulation despite a clear and urgent need to at least

control the manner in which building occurs. Many parts of the Charlotte Harbor

Area are similarly exempted.182

The protection of "vested rights" is a particularly expansive loophole

because the Administration Commission is prohibited from establishing a





-36-


moratorium on development in the designated area and the principles for

guiding development do not become effective until after a legislative review.184

A substantial gap is thus created between the date of designation and the

effectiveness of new land development rules during which developers may obtain

plat or subdivision approvals. Their rights would vest and they could not be

regulated under the new principles.

Numerous specific time limits have been included in the ELA within which

agency action is required. In most cases these seem unrealistic. For

example, the Regional Planning Council must evaluate the application, prepare

a report, and give the developer "a reasonable opportunity to present evidence"

regarding the contents of the report within a period of 50 days. This is

an insufficient period of time for an agency with limited personnel to properly

assess the many environmental, economic and social impacts of a large develop-

ment.

The ELA gives only the owner of the property, the developer, the Regional

Planning Council or the Division of State Planning standing to appeal the local
187
government's decision regarding a DRI. The courts have so far strictly

interpreted this provision. The Model Code is superior in this respect,

allowing any other person who was a party at the local hearing to appeal the

local decision. Interested parties have a good opportunity under the Model

Code to participate in the hearings.190

The exemptions for agricultural development of land and "vested rights"

are weaknesses shared by the DRI process with the regulation of areas of
191
critical state concern. State authority to control development in juris-

dictions with no land development regulations is too limited. Developers may

conspire with local government officials to avoid DRI review and the state's

only recourse is to designate the area as one of critical state concern within

90 days.193





-37-


Another problem lies in the definition of a DRI. The statutory definition

is very broad and potentially applicable to a broad range of developments.194

The administrative guidelines and standards, on the other hand, are extremely
195
narrow. They include only a few types of development, ignoring the other
196
significant classes; there are inordinately high thresholds for the types of
197
development included; they make no provision for classifying as DRI develop-

ment which, because of their location, may have significant extraterritorial

impacts, such as developments in prime aquifer recharge areas, wetlands, barrier
198
islands, or riverine flood plains. This weakness is probably attributable
199
to the fact that legislative approval of the guidelines is necessary.

Although the statutory definition is self-executing, so that develop-

ments which are not included in the administration guidelines can be regulated

as DRI, another section may effectively preclude this result. Developers are

entitled to seek a binding letter of interpretation as to whether a proposed

project would be a DRI. These letters are presumably issued using the guide-

lines. If a letter is issued stating that a proposed development is not a

DRI, then other parties are barred from challenging that determination in the

future and the development could never be forced to undergo a DRI review.

Since regional planning councils bear the primary burden of analyzing

applications for construction of DRI it is extremely important that they have

sufficient financing to hire competent personnel to conduct the necessary

studies. They should not be dependent for funding on the local governments

whose decisions the RPC may have to appeal. It would also be advantageous for

the boundaries of the RPCs to coincide with those of water management districts.201

As originally enacted, the ELA made inadequate provision for the review of

DRIs by agencies other than the regional planning council and local government.

The specific expertise of other agencies should also be used. In particular,




-38-


review by the water management district and the Department of Environmental

Regulation regarding the proposed development's impact on regional water

resources is desirable. The statute now requires other agencies, if requested

by the RPC, to review the proposed development and offer written recommenda-
202
tions on matters within the area of their jurisdiction. These reports must

then be incorporated verbatim in the RPC report, although dissenting views may

also be attached. Where permits have been issued by DER or a water management

district, however, the RPC is prohibited from offering any contradictory

recommendations. This latter provision appears intended to create the appear-

ance of consistency by stifling conflicting opinions. In general, however,

the new requirements would appear useful for stimulating the joint, coordi-

nated interagency review of DRI.





-39-


C. The Local Government Comprehensive Planning Act of 1975 (Ch. 163)


Land use control has traditionally been the domain of local government

officials. By choosing to allow state intervention in only limited situations

pursuant to Chapter 380, the Florida Legislature made the policy decision to

continue giving local governments the bulk of responsibility for regulating

land development. That was a task, however, that most local governments had

never responsibly exercised. A policy statement in 1970 of the Southeastern

Regional Assembly spoke of the problems of urbanization and stated:

The problems are also those of local governments unprepared for
meeting urban problems. The situation is further compounded
by a rapidly expanding population and their often unresponsive
elected representatives; neither are yet willing to recognize
the cost of being urban and the ominous implications of unplanned
future growth...For lack of land use controls and plans to guide
and coordinate growth, subdivisions hastily built a decade ago
have generated the school, transportation, and sewage crises of
today.203

The Local Government Comprehensive Planning Act of 1975204 was enacted

as a corollary of Chapter 380205 to stimulate and guide the development and

implementation of comprehensive plans by local government. It contains two

essential mandates:

(1) Local governments are required to adopt comprehensive plans.207

(2) Development must conform to the plan.208

All local governments in Florida, including counties, municipalities,
209
and certain special districts, are subject to the Act. Approximately 460

local governments are thus regulated.210 Each local government was required

to officially designate a local planning agency by July 1, 1976211 and have

adopted a comprehensive plan by July 1, 1979.212 The Act also required the

state land planning agency to grant two one year extensions upon a showing of
213
good faith effort to meet the statutory requirements. The form and makeup





-40-


214
of the local planning agency is only loosely prescribed. It may be a

local planning commission, planning department, or council of local
217
government officials. In one instance a single city commission was desig-

nated.218 The local planning agency has responsibility for recommending a

plan for adoption by the local governing body and for monitoring its subse-

quent effectiveness.219

The Local Government Comprehensive Planning Act specifies a number of
220
elements which must be included in a plan. Each element encompasses a

particular problem for which the plan is required to propose a solution. A

land use plan element is required to designate the "proposed future general

distribution, location, and extent of uses of land..." for various categories
221
of use. Another required element is the projection of needs for sewer, solid

waste, drainage, and potable water facilities and the correlation of these
222
needs with the land use element. The plan must specifically address the
223
problems of how to provide the necessary facilities. A conservation element

must be included which provides for "the conservation, development, utiliza-

tion, and protection of natural resources in the area...."224 Additional
225
required elements are a traffic circulation element, a recreation and open
226 227 228
space element, a housing element, a utility element, and, for those
229
areas lying in the coastal zone, a coastal zone protection element. There

is also a number of "optional elements," which may be included in a plan, but
230
are not required. Optional elements are allowed for planning such aspects
231 232 233
of the transportation system as mass transit, ports, airports, bike
234 235 236
paths, pedestrian walkways, and off-street parking. Other optional
237 238
elements provide for public services and facilities, public buildings,
239 240 241
recommended community design, area redevelopment, safety, historical

preservation,242 economic development,243 and other appropriate needs.244





-41-


One of the most important aspects of the Act is its requirements for

consistency and coordination. All elements of the comprehensive plan must

be consistent with each other.245 Although the term "consistent" is unde-

fined, it would appear to mean, for example, the land use element should not

plan for industrial development of an area which the water supply element

plans to use of aquifer recharge. Similarly, the transportation element

should not plan to pave a valuable wildlife habitat slated for preservation.

Coordination with the plans of adjacent local governments, the region

and the state is also required as "a major objective of the local comprehen-

sive planning process."246 The plan must "include a specific policy statement

indicating the relationship of the proposed development of the area to the

comprehensive plans" of those other entities. An intergovernmental coordi-

nation element, "showing relationships and stating principles and guidelines

to be used in the accomplishment of coordination...,"248 must be prepared.

This element is required to "demonstrate consideration of the particular

effects of the local plan..." upon the development of adjacent areas, the

regional and the state comprehensive plan.249

Intergovernmental coordination is further encouraged by provisions for

review of the plan by other governments, state agencies and the public. Sixty

days before adoption, a copy of the plan must be sent to the Division of Local
250 251
Resource Management, to the Regional Planning Council, to the county if
252
the plan is prepared by a municipality or special district, and to any
253
other government agency in Florida which has requested one. The Division

of Local Resource Management then must distribute the plan to other appropriate
254
state agencies for their review and comment. The Division of Local Resource

Management is then required to comment in writing on the plan, specifying any

objections and making recommendations for modification. Review by DLRM





-42-


should be primarily directed toward the local plan's impact on the state

comprehensive plan and the activities of other state agencies. Similarly,

the Regional Planning Council may comment on the relationship of the local

plan to any regional comprehensive plan.257 The local governing body must
259
respond in writing to these comments within four weeks. All comments and

replies are public documents. In addition, procedures to facilitate public

participation and input to the plan are mandated. The local government is

unconstrained, however, by the comments or reviews it receives. Although it

is required to "consider all comments received from any person, agency or

government,"262 it may "adopt, or adopt with changes or amendments, the pro-

posed comprehensive plan...despite any adverse comment received."263

In many respects the Local Government Comprehensive Planning Act was a

tremendously progressive step toward integrated land and water management in

Florida. At no other level of government are those functions so unified as

at the local level. Because of this Act, many local officials have been

forced to sit down and grapple with the problems of land and water use in a

unified and holistic manner. The process of developing a comprehensive plan

necessarily requires an integrated approach. Many innovative and effective

programs have been stimulated by the process. Certain deficiencies have ham-

pered the effectiveness of the Local Government Comprehensive Planning Act,

however, and they must be examined.

First, the substance of the plans is not controlled. A local government

can go through the requisite procedural motions of planning and never alter

the existing pattern of development. Many have done so. Good planning

involves looking at natural systems and human needs and from that insight

deciding if, when, where and under what conditions development may proceed.

Too many planners recite platitudes, juggle statistics and then draw a few





-43-


multi-colored maps in whatever configuration local real estate developers

have demanded. The LGCPA provides no method, other than persuasion, for the

state to ensure that good planning takes place.

Second, there is no effective method of ensuring consistency of a local

plan with the plans of other local governments, the state or regional entities.

Although provisions for formal review help to encourage coordination, in many

cases plans are incompatible and inconsistent. Sometimes this occurs because

the reviewing agencies do not give their responsibility the necessary atten-

tion and effort. Budgetary limitations may effectively preclude the substan-

tial commitment of qualified people's time that is needed for the analysis of

comprehensive plans and the drafting of recommendations for improvement. In

other instances, the local governing body may simply reject proffered advice

and choose to adopt a plan that is inconsistent with those of other agencies

or units of government. There is no means for resolving such conflicts.

Voluntary cooperation has had some success, however, and is to be com-

mended where it occurs. The efforts of the South Florida Water Management

District are particularly notable in this regard. The District has arrange-

ments with all of the counties within its jurisdiction that provides for

participation by technical staff in their comprehensive planning activities.

District staff advise the local governments as to the effect of local plans

on water resources and whether they are consistent with regional water manage-

ment plans. There is no requirement for a local government to accept the advice

of the District, however.

These deficiencies could be remedied by giving the state and regional

agencies a stronger role in the local governments' comprehensive planning

process, together with the personnel to adequately perform that role. Consis-

tency of local plans with state plans, regional plans and the plans of other





-44-


local governments could be mandated.266 An entity established at the state

level could be given authority to modify local plans to achieve consistency

and resolve conflict. Although a recent gubernatorial task force recom-
268
mended such reforms, they do not appear to be forthcoming.

One certain prediction is that the plans which are now being adopted will

not moulder unused on the dusty back shelves of local libraries. They have
269
a powerful legal status. All land development regulations, all land develop-

ment and "all actions taken in regard to development orders" must be "consis-

tent" with the adopted comprehensive plan.270 The precise meaning of the
271
consistency requirement is not clear. The statute offers no definition.

Courts, however, are specifically authorized to consider the relationship of

the comprehensive plan to challenged governmental action and much litigation

focusing on this term is expected.





-45-


D. The Florida Water Resources Act of 1972 (Ch. 373)


1. History

Land development in Florida is inextricably dependent on water management.

Vast areas of the state are naturally subject to frequent inundation. Early

settlers saw the water as an obstacle to productive use of the land and

emphasized the construction of drainage works to remove it, thus allowing

agricultural and residential development. Hundreds of single purpose drainage
274 275
districts, 274 including the large Everglades Drainage District, were

formed to remove surface water from the land. In most instances, the water

was simply dumped into the sea. The problems created by overdrainage and

the destruction of wetlands continue to afflict Florida.276 They include

a lack of sufficient water in storage during periodic droughts, increased

flooding during wet periods, salt water intrusion, proliferation of exotic

plants, destructive fires, loss of organic soils, deterioration of water

quality, and disruption of estuarine processes.

A more balanced approach to water management began with the formation

of the Central and Southern Florida Flood Control District in 1949.277 The

immediate impetus for the formation of the District was provided by a major

hurricane in 1947, which devastated the lower east coast of Florida and

graphically demonstrated the need for further flood control measures. How-

ever, the District, which covered the lower southeastern quarter of the state,

was not created as a simple flood control district. The storage of surface

water for subsequent use rapidly became of equal importance to its disposition

in periods of heavy rainfall.

Other hurricanes, in 1959 and 1960, led to the creation in 1961 of

another large-scale multipurpose water management district, the Southwest
Florida Water Management District, which covers another fifth of the state.78
Florida Water Management District, which covers another fifth of the state.





-46-


As in the case of the Central and Southern District, storage of water

quickly became one of the principal objects of the District. Moreover,

the legislature granted the Southwest District authority to regulate ground

water resources, which was lacking in the Central and Southern District.

Meanwhile, following the state's rejection of a proposed switch from

common law riparianism to prior appropriation, the Florida legislature and

water law experts at the University of Florida began to examine the possi-

bilities for establishing a workable regulatory system for all of Florida,
279
using the riparian system as its starting point. These studies led

first to the enactment of the 1957 Florida Water Resources Act, establish-

ing a statewide administrative agency to oversee the development of Florida's

water resources. This agency, originally established as a Division within

the State Board of Conservation, was authorized to issue permits for the

capture and use of excess surface and ground waters, and to establish rules

for the conservation of water in areas of the state where overwithdrawals
282
were endangering the resource through salt water intrusion or other causes.

Building on the somewhat modest beginning described above, a group of

water law experts at the Holland Law Center of the University of Florida
283
developed "A Model Water Code." The Code was designed to provide a vehicle

for comprehensive state regulation of Florida's water resources along hydro-

logically sound lines, taking into consideration the interrelationship of

all types of water resources. It provides for a system of administrative

regulation within the framework of a riparian water law system. The essential

chapters of A Model Water Code were adopted with significant modification as
284
the Florida Water Resources Act of 1972 codified as Chapter 373, Florida

Statutes (1979).





-47-


2. Administrative Framework

Florida's 1972 Water Resources Act established a two-tiered administra-

tive structure headed at the state level by what is now the Department of
285
Environmental Regulation. Under the Department are five regional water

management districts designed to provide the diverse types of regulation neces-

sary in different areas of the state. They include the already existing Cen-

tral and Southern Florida Flood Control District, renamed the South Florida

Water Management District, and the Southwest Florida Water Management District.

The Northwest Florida, St. John's River and Suwanee River Water Management

Districts were created. Although the Act grants liberal powers to DER, dele-
286
gation of those powers to the water management districts is encouraged.

DER and the water management districts have four primary areas of

responsibility under the Florida Water Resources Act of 1972: (1) water

management planning; (2) construction and operation of water management

structures; (3) regulation and permitting of consumptive use of water; and

(4) regulation and permitting of surface water management systems. Each of

these functions can have an enormous impact on land use and development and may,

because of their effect on water resources, either enhance or conflict with

attainment of the water management district's goals. Development of housing

in wetlands with extensive private drainage systems, for example, supplements

and aids a water management district that is seeking to drain land, but con-

flicts with objectives of water conservation by retention. Similarly, the

locating of a landfill in an aquifer recharge area can aggravate problems of
287
providing sufficient potable water.

3. Planning

One of the most important functions of the water management agencies is

to prepare a water management plan. Specifications for the preparation of





-48-


this plan and its relationship to other planning efforts are discussed in

another section of this report.288

4. Water Management Structures

Chapter 373 recognizes the need for construction and operation of water
289
management structures in Florida. Enormous sums of money have been spent

constructing such works. The federal government has usually provided 80% of

the necessary construction money, with the state paying the remaining 20%.290

The bulk of the money has been spent in South Florida on the Central and

Southern Florida Flood Control Project. It is estimated that when the

elaborate network of publicly constructed canals, levees and pumping stations

is completed in South Florida, it will have cost over 721 million dollars.291

This expenditure has made possible the intensive agricultural and urban

development of South Florida. Large sugar cane and vegetable farmers in the

Everglades Agricultural Area south of Lake Okeechobee have been able to drain

a large portion of the original Everglades and farm the thick, organic soils.

These farmlands, as well as several associated small towns, have also been

protected from hurricane flooding. Urban development along the lower East

Coast has also been protected from periodic flooding. As a result, developers

have encroached even farther into the Everglades. Cities are being built

to the very edge of the dikes which contain the remaining Everglades waters.

These urban developments, often poorly designed, in turn have had numerous

adverse effects on water resources resulting from drainage, destruction of

vegetation, construction of impervious surfaces, and generation of pollutants.

The South Florida Water Management District is now seeking to control some

of these impacts through its surface water management system permitting
292
process.





-49-


5. Surface Water Management

Land development in Florida is particularly dependent on the construc-

tion and operation of drainage systems. Regulation of the management and

storage of surface waters is expressly authorized by the Florida Water

Resources Act. It states:

Except for the exemptions set forth herein, the governing
board or the department may require such permits and impose
such reasonable conditions as are necessary to assure that
the construction or alteration of any dam, impoundment,
reservoir appurtenant work, or works will not be harmful
to the water resources of the district293

and

Except for the exemptions set forth in this part, the
governing board or department may require such permits
and impose such reasonable conditions as are necessary
to assure that the operation or maintenance of any dam,
impoundment, reservoir, appurtenant work, or works will
not be inconsistent with the overall objectives of the
district and will not be harmful to the water resources
of the district. 294

The potential breadth of this authority is revealed by an examination

of the statutory definitions for the terms used.295 In particular, a "dam"

is defined as "...any artificial or natural barrier, with appurtenant works,

raised to obstruct or impound, or which does obstruct or impound, any of

the surface waters of the state. 296 "Surface water" in turn is "...water

upon the surface of the earth, whether contained in bounds created naturally

or artificially or diffused."297 "Works" are defined as "...all artificial

structures not included in subsections (1) and (2), including but not limited

to, ditches, canals, conduits, channels, culverts, pipes, and other construc-

tion that connects to, draws water from, drains water into, or is placed in or

across, the waters of the state..."298

Virtually any movement of earth in Florida could create a "dam" as

defined in this statute. It is difficult to conceive of a construction

project which would not result in the creation of "works," whether as a





-50-


golf course, parking lot or rooftop from which water drains or as a drainage

system utilizing swales, gutters, ditches and culverts. A liberal reading

of the statute would, therefore, give DER and the water management districts

extensive authority to control many of the surface land alterations and

drainage systems which are presently damaging water resources.

Three vaguely worded but potentially crippling loopholes in the fore-

going regulatory powers were also enacted by the Legislature.300 The first

exemption provides:

Nothing herein, or in any rule, regulation, or order adopted
pursuant thereto, shall be construed to affect the right of
any natural person to capture, discharge, and use water for
purposes permitted by law.301

The exact meaning of this provision is not apparent. It could be

interpreted to mean that natural persons are completely exempt from all

regulation under this section and may, therefore, build, drain, ditch, dike,

and dam at will, subject only to the common law and other regulatory powers.

A better interpretation would be that the regulations cannot affect the

right of a person to conduct the activity of capturing, discharging and using

water, but they can affect the manner in which he does so. Thus a natural

person would have a right to trap or drain water, but not so much than

minimum flows or ground water levels are affected. The district might also

insist that a drainage system which a natural person constructs, incorporate

design features to protect water quality and conserve water. An alternative

interpretation would render this section of the Act almost completely

ineffectual.

The second major exemption is for agriculture. Legislatures often exempt

agriculture from environmental regulation, either not recognizing the substan-

tial harm which agricultural development often causes or bowing to powerful

political pressure. This particular exemption states:





-51-


Nothing herein, or in any rule, regulation, or order adopted
pursuant thereto, shall be construed to affect the right of
any person engaged in the occupation of agriculture, flori-
culture, silviculture, or horticulture to alter the topography
of any tract of land for purposes consistent with the practice
of such occupation. However, such alteration may not be for
the sole or preqdoinant purpose of impounding or obstructing
surface waters.

The damage which could be wrought via this loophole is enormous. A

farmer who wished to do so might fill any wetland on his property without

restriction or plow or clear to the very edge of a creek. Whether lands
303
can be drained at will is not clear. The answer depends on whether drain-

age is an alteration of topography and whether drainage involves acts which

are "...for the sole or predominant purpose of impounding or obstructing

surface waters."

A third exemption states:

Nothing herein, or in any rule, regulation or order adopted
pursuant thereto, shall be construed to be applicable to
construction, operation or maintenance of any closed system.
However, part II of this chapter shall be applicable as to
the taking and discharging of water for filling, replenish-
ing, and maintaining the water level in any such closed
system.304

'Closed system' means any reservoir or works located entirely
within lands owned or controlled by the user and which requires
water only for the filling, replenishing, and maintaining the
water level thereof.305

The meaning of this exemption is again not very clear. It appears to

be an attempt to exempt private reservoirs. By using the term "works,"

however, and by ignoring the fact that works are often used for draining water

from lands as well as impounding them, the legislature has made somewhat

doubtful the applicability of the statute to drainage systems controlled by

any one entity. The term "closed system" is itself a misnomer. Although

a system might be located entirely within the boundaries of land a single

entity controls, the effects may extend far beyond those boundaries. The only





-52-


reasonable interpretation of this exemption is that it applies only to ;

systems which hold all water on the land and must occasionally draw addi-

tional water from outside to replenish water which is used.

To date neither DER nor any of the water management districts has

implemented a program for the regulation of surface water management which

is as comprehensive and protective as that authorized by the Water Resources

Act. The Department of Environmental Regulation, the Northwest Florida

Water Management District, and the Suwannee River Water Management District

have no regulations yet. The St. Johns River Water Management District,
307
the Southwest Florida Water Management District, and the South Florida

Water 3Management District308 have each implemented permitting systems.

The regulations of the St. Johns River Water Management District

regarding management and storage of surface waters are applicable at this

date only in areas which have been transferred to the District from either

the Central and Southern Florida Flood Control District or the Southwest

Florida Water Management District, where permitting systems were previously
309
in effect. Because these rules are so similar to those of the Southwest

Florida Water Management District, they will not be discussed further in

detail.

The Southwest Florida Water Management District requires a permit to

"construct, alter, abandon or remove any dam, impoundment, reservoir,

appurtenant work, or works which" impounds water on or diverts water from

an area greater than 40 acres or alters a watercourse which drains a water-
310
shed in excess of five square miles. A permit is also required for the

operation or maintenance of a dam or other works which impounds water on or
3]11
diverts water from an area exceeding 160 acres.1 If the structure has a
312
headgate or a valve, the threshold decreases to 40 acres.





-53-


A number of conditions, apparently designed to protect minimum flows,

potentiometric surfaces and other aspects of water quantity, are attached

to the issuance of a permit. The permitted activity must be one which

is "a reasonable, beneficial activity," 314 is "consistent with the public

interest," 315 and will not interfere with an existing "legal use of water.' 316

More specifically, the permitted activity:

(a) Must not restrict or alter the rate of flow
of a stream or other watercourse by more than ten per-
cent (10%) at the time and point of withdrawal, except
in the case of a dam where water is stored for subse-
quent release downstream.

(b) Must not cause the level of the potentiometric
surface under lands not owned,leased, or otherwise con-
trolled by the applicant to be lowered more than five
feet (5').

(c) Must not cause the level of the water table
under lands not owned, leased, or otherwise controlled
by the applicant to be lowered more than three feet (3').

(d) Must not cause the level of the surface of
water in any lake or other impoundment to be lowered
more than one foot (1') unless the lake or impoundment
is wholly owned, leased, or otherwise controlled by
the Applicant.

(e) Must not cause thepotentiometric surface to
be lowered below sea level.

(4) Issuance of a permit will be denied if the per-
mitted activity:

(a) Will cause the rate of flow of a stream or
other watercourse to be lowered below the minimum
flow established by the Board.

(b) Will cause the level of the potentiometric
surface to be lowered below the regulatory level
established by the Board.

(c) Will cause the level of the surface of water
in any lake or other impoundment to be lowered below
the minimum level established by the Board.

(d) Will significantly induce salt water encroach-
ment.





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(e) Will cause the water table to be lowered so that
the lake stages or vegetation will be adversely and signi-
ficantly affected on lands other than those owned, leased,
or otherwise controlled by the applicant. 31P

This permitting system has several faults. First, the thresholds are

so high as to exempt too many of the small projects whose cumulative impact

or direct local impact may be very harmful. Second, the published criteria

do not sufficiently provide for consideration of impacts on water quality,

fish and wild life, other environmental impacts or land use implications.319

Third, the numerical criteria, though seemingly precise, are vague and fail

to consider cumulative impacts.

The South Florida Water Management District has promulgated the most

detailed and comprehensive regulations of the water management districts.320

The District has issued, in the regulations, a "District-wide General Permit"

for projects that:

1. have less than ten acres total land area,
2. have less than two acres of impervious area,
3. require a discharge facility no greater than
the equivalent of one 24-inch pipe gravity discharge,
4. are located wholly on lands which may be classified
as uplands as defined in Chapter 17-4, Florida Administra-
tive Code,
5. are located within a local jurisdiction which has
adopted subdivision regulations, and
6. are not located in areas governed by District basin
rules which specifically provide that General Permit rules
are not applicable;
are hereby granted a general permit to construct,
alter, or operate said works. For projects which are
to be developed in phases the term 'total land area' 321
shall be construed to mean total contiguous land holdings.

A similar type of District-wide General Permit has been issued for the con-

struction, alteration or operation of works in conjunction with certain public
322
highway projects. Although there is no need to apply for a permit, a

"Notice of Intent to Construct works pursuant to General Permit" must be filed

at least 30 days prior to commencement of work. 323





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A number of additional conditions are attached to the General Permit.

Design of the works must include "...techniques for storm water runoff

quality control"324 and the work must be carried out "...so as to minimize

any degradation of water quality..."325 Accordingly, the permitted is

required to "...institute necessary measures during the construction period,

including full compaction of any fill material placed around newly installed

structures, to reduce erosion, turbidity, nutrient loading and sedimentation

in the receiving waters, and to minimize any adverse impact of the works on

fish, wildlife and natural environmental values."326 All other local, state
327
or federal authorizations must be obtained before the permit is effective.

Thus the water management district reinforces the functioning of other regu-

latory agencies. Finally, the district reserves the right to require individ-

ual permitting of any works which "...are shown to be harmful to the water

resources of the District or may interfere with the legal rights of others or

may be inconsistent with the overall objectives of the District, or may other-

wise be contrary to the public interest...." ,,328

The construction, alteration, operation or abandonment of any works which

are not covered by a general permit must be specifically permitted by the water
329
management district. To obtain a permit, the applicant has the burden of

showing the act:

(a) will not be harmful to the water resources of the
District; and
(b) will not interfere with the legal rights of others;
and 330
(c) is not against public policy.

In addition, "the Board will consider the water quality and quantity impact

and land use implications of the requested act."331 More detailed criteria

for the construction of works are specified in the publication, "Basis of

Review of Construction of Surface Water Management Systems Serving Projects





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with Two or More Acres of Impervious Area Within the South Florida Water

Management District May 1977."332

The South Florida Water Management District has demonstrated an awareness

of the relationship of its surface water management permitting system to the

regulatory functions of other government agencies. Thus, the effectiveness

of a permit is conditioned on the receipt of all other necessary governmental
333
authorizations. In addition, there are higher thresholds for the General

Permit program in Dade and Palm Beach Counties because local agencies there

have the power and willingness to enforce standards similar to those which
334
the District would impose. The District, thus, is essentially delegating

its permitting authority to the local agencies in order to eliminate redundancy

and overlap of functions. In one area of Dade and Borward Counties, the C-9

or Snake Creek Canal basin, the District has been working closely with all

local governments and the Regional Planning Council to develop integrated

335
criteria for both surface water and land management. Special surface water

management criteria have thus been implemented in this sensitive area.336

6. Consumptive Use Permitting

One of the most important parts of the Florida Water Resources Act of

1972 authorizes regulation of consumptive use of water.

the governing board or the department may require such
permits for consumptive use of water and may impose such
reasonable conditions as are necessary to assure that such
use is consistent with [its] overall objectives and is not
harmful to the water resources of the area.

Only "...domestic consumption of water by individual users" is legislatively

exempted from potential regulation.;339 Even existing users must apply for

a permit.340

To obtain a consumptive use permit, the applicant has a burden of showing,

"...that the proposed use of water:





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(a) Is a reasonable-beneficial use...; and
(b) Will not interfere with any presently existing
legal use of water; and
(c) Is consistent with the public interest.

The standard of reasonable-beneficial use is a particularly innovative

feature of the Act. It is defined as "...the use of water in such quantity

as is necessary for economic and efficient utilization for a purpose and in

a manner which is both reasonable and consistent with the public interest."'342

This standard is derived from aspects of both Eastern and Western water law

and is designed to protect both other water users and the general public
343
from wasteful uses of water.

The reasonable use rule as developed in the Eastern United States allows

each riparian owner to use only such amounts of water as are reasonable with

respect to the uses of other riparian owners. The rule is sufficient to pro-

tect other riparians from some wasteful operations, but is of little use to

nonriparians or to the general public. The beneficial use rule of the Western

prior appropriation states holds that an appropriator who diverts more water

than is actually needed acquires no rights to the excess. There is no require-

ment of "reasonableness," however, in relation to other users or potential

users.

Use of reasonable-beneficial use as a standard in Florida's law is an

attempt to combine the best features of the reasonable use and beneficial use

rules. First of all, the quantity of water used must be efficient with respect

to the use itself. This part of the reasonable-beneficial use test, requir-

ing that the use be "beneficial," allows only that quantity of water to be

used as is necessary for an economically efficient operation. The value of

the use itself in relation to other uses is not considered in this part of

the test. However, the reasonable-beneficial use standard also requires that





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the water, regardless of amount, be used for a purpose which is both reason-

able and consistent with the public interest. Thus, the purpose must be

"reasonable" in relation to other uses. This criterion requires that the

use not be detrimental to other users or inconsistent with the character of

the watercourse from which the supply is taken, or inconsistent with the

public interest.

One device which the water management districts could use to integrate

their decisions with those of local land use planners would be through

defining the public interest component of the reasonable-beneficial use

standard.344 Permitting use of water for an activity that is inconsistent

with local, state, or regional plans could be found contrary to the public

interest. For example, if coastal zone management planners have determined

it would be desirable to preserve an area in its natural state, it would not

be in the public interest for the water management district to grant a con-

sumptive water use permit for the potable water supply of a large residential

development in this area. Rather than granting the permit simply because

water is physically available, the District could deny it to reinforce the

efforts of the land use planner.

Two other features of the 1972 Florida Water Resources Act could be used

by Florida's water managers to harmonize the issuance of permits with land

use and other plans. The Department of Environmental Regulation is allowed

to designate in the State Water Use Plan certain desirable uses which are to

be given a preference in the granting of consumptive use permits.345 Such

uses might include recreation, preservation of the environment, protection

of recharge areas, and others. A general preference for those uses which are

consistent with land use plans over those uses which are inconsistent might

also be stated. Once such a designation is made, the governing boards of the





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water management districts must recognize it. Although some western states

employ preferences in their prior appropriation laws to promote particular

water policies, to date, preferences have seldom been used in the United

States to further environmental objectives.346

Similarly, certain uses may be declared undesirable, in which case the

governing board of a water management district is authorized, but not compelled,

to deny a consumptive use permit. Activities which are contrary to local,

state or regional land use plans could be declared undesirable, regardless

of their impact on water resources. Water use zoning would thus reinforce land

use plans.

The Florida Water Resources Act also provides for the establishment of

minimum flows for surface watercourses, as well as minimum lake and ground
347
water levels. It is essential that any system of water allocation include

provisions for minimum flows and levels for public purposes. Commercial navi-

gation, recreational boating, fishing, hunting, swimming, and protection of

the ecology are some of the non-consumptive public purposes that can be and

should be protected under the minimum flow and level concept in Florida. The

determination of which uses are entitled to protection, however, should be

made only after taking into consideration all relevant land use and other plans.

7. Coordination with Land Use Management

Several of the water management districts review and comment on the water

resource aspects of applications to local government for the approval of land

development projects. In addition to DRIs, such projects as subdivisions, park-

ing lots, condominiums, PUDs and changes in zoning may be reviewed. Informa-

tion regarding such factors as the availability of water supplies, the impact

of the drainage system on water quality, susceptibility to flooding, and loss

of wildlife habitat or other environmental values may be supplied.





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The degree to which a particular water management district actually makes

such reviews varies widely between districts. It depends in large part on the

willingness of the District to assess the impacts of land use damages. The

Southwest Florida Water Management District, for example, has been dominated

by board members who believe the District should strictly limit its activities

to water management. The Board therefore disallows involvement by the District

in what they view as strictly "land use" decisions. There is also some worry

on the part of SWFMD attorneys that if statements are made in the context of

a review process, the District may be stopped to take an inconsistent position

with regard to its own permit, which is typically issued at a later date. For

this reason, the SWFMD has been unwilling to give advice on DRIs or other land

use decision. The South Florida Water Management District, on the other hand,

has consistently sought to increase its participation in the land use decisions
348
of local governments. Another factor is whether a District can afford the

financial cost of participation. It takes a great deal of time and money for

well qualified experts to properly review complicated development. proposals

and then articulate their concerns in written reports and oral presentations.

Since the SFWMD is the most involved of any district and since it has

set a pattern that other districts appear to be following, its review activities

will be described in detail. The District''s stated objectives are:

1. To provide technical expertise on water-related matters to local governments
and regional planning councils to assist them in making more enlightened
land development decisions

2. To inform the applicant and local government of potential problems (includ-
ing possible conflicts between District and local government permitting
requirements) and thus facilitate the resolution of problems prior to land
use commitments by local government

3. To apprise the applicant, during the initial planning stages, of develop-
ment modifications that are necessary to comply with District permitting
requirements

4. To enable the District to be informed of potential development activity
relevant to its permitting process.349





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350
The SFWMD has reviewed 88 DRIs within its jurisdiction since 1973.

This review is made pursuant to agreements the WMD has entered into with

each of the five Regional Planning Councils that lie, at least in part,

within its jurisdiction. The agreements provide for the District to submit

a report to the RPC and state:

The report shall include an analysis based on the information
in the ADA, of the magnitude of any positive or negative impacts
of the proposed project on groundwater quality and quantity,
surface water quality and quantity, and on the demonstrated
ability of the project area and Region to absorb the increased
demand for water supply, sanitary sewage disposal, and storm
drainage. The report may also include analyses of such other
relevant water and natural resource matters upon which the
DISTRICT may wish to comment. Statements regarding the DRI's
conformance with local and federal criteria shall also be
included where applicable.351

These reports are made free of charge.352

The SFWMD has identified two specific problems relating to review by it

of DRIs.

(1) In certain cases the District impact assessments provided to
the Regional Planning Councils have not been utilized as a
basis for the preparation of the natural resources and water-
related public facilities portions of the RPC's Recommendation
Reports. In these cases this has resulted in technical inac-
curacies (of a water-related nature) in the RPC's report.353

(2) Generally ADAs are submitted with insufficient data for review.
The type of impacts that are assessed by this District require
more detailed technical data than that requested in the ADA
questions.354

The SFWMD also reviews certain other applications for rezoning or sub-

division approval pursuant to agreements that have been entered into with most

of the counties in the District. Under these agreements, the county staff is

generally entitled to request District review of applications that:

(1) Involve an area greater than 10 acres;

(2) would require greater than 100,000 gallons per day, peak
day demand (approximately 170 units);

(3) in parcels of a lesser size, have a runoff coefficient of
greater than .8 at ultimate development;





-62-


(4) involve an excavation; or

(5) involve a water treatment plant.355

In addition, District input may sometimes be requested for applications that

do not meet those criteria.

Under the Florida Uniform Land Sales Practices Law, Chapter 478, Florida

Statutes, the subdivision of land into 50 or more parcels must be registered

with and approved by the Division of Florida Land Sales of the Department of

Business Regulation. The SFWMD has an agreement by which applications for
356
registration are reviewed and commented upon by the District.

The local government comprehensive plans that are being prepared and

adopted under the LGCPA will form the basis for most local land use decisions
357
and thus will have an enormous impact on water resources. The SFVWMD has

been reviewing the drainage and water supply elements of these plans.

DER and the Corps of Engineers have a coordinated program for the joint

processing of permit applications for dredging, filling, constructing bulkheads
359
or docks and similar activities in state waters. These activities often

also require water management district permits. In addition, other types of

activities regulated by DER (discharge of pollutants, location and land fills,

construction of water treatment plants, etc.) have a tremendous impact on the

same waters the WMDs are charged with managing from the perspective of Chapter

373. Because of this overlap, the desirability of coordinating the activities

of DER and the WMDs has long been recognized.

In 1975, the Legislature mandated the collocation of DER regional offices

with the WMD offices "to the maximum extent practicable."360 It was intended

by this action that they would work as more of an integrated unit. To some

extent collocation has been achieved. DER has an office, for example, in the

building of the SFWMD. In other instances collocation has not been practicable





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because the WMD offices are located in rural areas while the bulk of DER's

work is done in the urban areas.

The most extensive coordination of permitting appears to occur in the

SFWHD. Upon receiving a permit application, each agency immediately forwards

a copy of its respective counterpart. The receiving agency then evaluates

the application to determine whether it also requires a permit and whether

the activity would have impacts of concern. The permit is then discussed atbi-

weekly staff meetings attended by personnel from both agencies.





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E. State Land and Water Planning


There were two major state and regional planning efforts in Florida

during the 1970's. The Division of State Planning attempted to develop a

comprehensive state plan, including sections dealing with land development

and water. The Department of Environmental Regulation and the five regional

water management districts have been preparing a State Water Plan. This

section will trace the development of those plans.

1. The Florida State Comprehensive Plan

The State of Florida, like most other governments, has historically

operated without a clear conception of its goals and policies. Problems have

been addressed on an ad hoc basis and usually only after a crisis has developed.

Of course, it is impossible for any organization to be either efficient or

effective without knowing what state of affairs it is seeking to promote over

the long term. Without such guidance it is difficult to evaluate the perfor-

mance of agencies and conflicts are likely to arise. For example, the agency

which builds roads may be constructing expressways and thus promoting construc-

tion in areas which water management agencies would like to protect as loca-

tions for aquifer recharge.

Having recognized the need for planning, the legislature passed the

Florida State Comprehensive Planning Act of 1972. This Act ordered the

Division of State Planning to prepare a state comprehensive plan designed to

"provide long-range guidance for the orderly social, economic and physical

growth of the state by setting forth goals, objectives and policies."'363 The

State Comprehensive Plan was not conceived of as a document that would ever be

final, but as one that would be continually revised to reflect new information

and values.





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In 1976, the Governor ordered the Division of State Planning to prepare

the comprehensive plan as a compilation of eighteen sections, each of which

focused on a particular area of concern such as agriculture, economic develop-

ment, environmental resources, land development, utilities and water.364 DSP

then moved to prepare the plan by forming interagency and interdisciplinary

committees to advise the agency on what the contents of the plan should be. 365

Numerous drafts were prepared, debated and refined. By 1977 a plan was ready.

Major shifts in state policy were proposed. The water section, for

example, proposed that it should be state policy:

In substantially unaltered watersheds, maintain runoff
infiltration and other hydrologic relationships (soil
profile, rate of soil erosion or impoverishments, etc.)
to achieve as nearly as practical the natural hydrologic
conditions and to provide for a balance of urban, agri-
cultural, and natural systems recognizing that natural
productivity is optimized under unaltered conditions. 366

This policy is exactly contrary to the popular and lucrative tradition in

Florida of ditching, diking, draining and otherwise grossly modifying natural

hydrologic systems. Several sections called for closer coordination of land

and water management. 367 The plan itself was intended to aid attainment of

that goal by formulating a comprehensive and consistent state policy regarding

all aspects of land and water management.

The State Comprehensive Plan, however, was never implemented. The original

Act provided that an element of the plan could become effective as a state policy

upon approval by the Governor and transmittal to the Legislature.368 In 1977,

however, when it appeared the plan would be controversial, legislative approval

was r-equired before the plan "or parts or revisions thereof" could become

effective as state policy.369 Governor Askew subsequently approved the plan

and duly submitted it to the Legislature. It emerged a eunuch. The Legislature

not only refused to approve the State Comprehensive Plan, it directed:





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Except as specifically authorized by law, no part of the
state comprehensive plan, or the policies set forth there-
in, or any revision thereto shall be implemented or enforced
by any executive agency. The chief planning officer may,
from time to time, in bill form, present to the Legisla-
ture specific proposals to implement goals, objectives, and
policies of the state comprehensive plan. Nothing contained
in the plan or parts or revisions thereof shall have the
force or effect of law or authorize the implementation of
any programs not otherwise authorized pursuant to law. Itis
further the intent of the Legislature that enactment of this
legislation shall not amend existing statutes, other than
as provided 3erein, or provide additional regulatory
authority.

In response, Governor Askew ordered his executive agencies to implement

the plan as "executive planning policy."371 It was to be used in preparation of

All planning documents and, perhaps more significantly, it was to be used by the
372
Department of Administration when it analyzed agency budget requests. Al-

though the Graham administration has not withdrawn the order and has in fact

moved to further integrate planning with the budgeting process, little else

has been done regarding the plan. An assessment of this apparent failure will

be deferred until the parallel and somewhat intertwined history of development

of the State Water Plan has been explained.

2. The State Water Plan

The development of a State Water Plan is specifically required by the
373
Florida Water Resources Act of 1972. It is one of the most important

requirements of the Act because the State Water Plan should serve as an intelli-

gent basis for the comprehensive management contemplated by the legislation.

The drafters of A Model Water Code stated, with respect to this requirement:

[A]dditional measures toward more efficient management of
water resources must be implemented at all levels of govern-
ment. This will require a determination of needs and capa-
bilities, and the formulation of long-range plans for the
development of all water resources and related land resources
within a hydrologic unit...Regulation of water use remains a
primary state function. This requires state planning for many





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purposes including enforcement of existing laws, enactment
of new legislation, coordination of local regulatory efforts,
and administration of consistent state regulatory policies.
Unfortunately, state planning and resource management agencies
are frequently understaffed and lacking in sufficient expertise
to carry out meaningful planning responsibility...It is essential
that state agencies be staffed to discharge their water resources
planning responsibilities competently. Failure of the states
to respond to this challenge ca7 only result in inadequate and
uncoordinated water management.

The Department of Environmental Regulation is given primary responsibility

by the Water Resources Act for developing the State Water Plan.375 It is to

be developed in cooperation with the Division of State Planning, however, "as

a functional element of a comprehensive state plan."'376 The State Water Plan,

in turn, is to be a marriage of the State Water Quality Plan and the State
377
Water Use Plan. The State Water Quality Plan contains water quality stan-

dards, objectives and guidelines with a specific program of implementation.

The State Water Use Plan is intended to be "an integrated, coordinated plan

for the use and development of the waters of the state..."378 The Act requires

that planners base the State Water Plan on studies of existing water resources,

existing and contemplated uses of water, and such other subjects as drainage

and flood plain zoning.

A listing of general objectives which the State Water Use Plan should

seek to reconcile and implement is contained in the Act. It requires that

the Department of Environmental Regulation give "due consideration to":

(a) the attainment of maximum reasonable-beneficial use of water...

(b) the maximum economic development of the water resources con-
sistent with other uses.

(c) the control of such waters for such purposes as environmental
protection, drainage, flood control, and water storage.

(d) the quantity of water available...

(e) the prevention of wasteful, uneconomical, impractical or
unreasonable uses...





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(f) presently exercised domestic use and permit rights.

(g) the preservation and enhancement of the water quality of
the state...
380
(h) the state water resources policy...

The Department is further specifically directed to "....give careful con-

sideration to the requirements of public recreation and to the protection and

procreation of fish and wildlife."381 In the plan it may "...prohibit or

restrict other future uses on certain designated bodies of water which may

be inconsistent with these objectives."382 In addition, it can designate

undesirable or desirable uses for particular bodies of water and either deny

permits or grant preferences on that basis.383

The Act clearly seems to contemplate that preparation of the State

Water Use Plan would be undertaken by the Department of Environmental Regulation,

with the water management districts acting in a subsidiary role. [T]he depart-

ment" is specifically charged with the responsibility of formulating a plan.384

The water management districts appear to have been given primarily an advisory

or consulting role.

During the process of formulating or revising the State
Water Use Plan, the department shall consult with, and
carefully evaluate the recommendations of, concerned
federal, state, and local agencies, particularly the
governing boards of the w er management districts, and
other interested persons.

Each governing board of a water management district, in turn,

...is directed to cooperate with the department in con-
ducting surveys and investigations of water resources,
to furnish the department with all available data of
a technical nature, and to advise and assist the depart-
ment in the formulation and drafting of those portions
of the state plan applicable to the district.386

Although the water management districts have an important role in the statutory

scheme for preparation of a state water use plan arising from their technical

expertise and familiarity with local conditions, it seems clear that primary





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responsibility for setting general policy, as well as specific objectives

and plAns for action, was given to the Department of Environmental Regulation

in the Water Resources Act.

Development of the State Water Use Plan, however, has never proceeded

as envisioned by the statutory drafters. Initially, the Legislature failed

to appropriate sufficient funds for the State to undertake the detailed, compre-

hensive water resources planning required by the statute. The Department of

Natural Resources, originally charged with administration of Chapter 373, there-

fore did nothing to prepare a plan. Instead, in 1974, it delegated this

responsibility to the water management districts, which were prepared to

exercise it. The two largest and relatively affluent water management districts
388
immediately began to invest large sums of money in planning. By December

of 1973 the Central and Southern Florida Flood Control District (C&SFFCD) had

already formulated "A 'Rough Cut' Model of a South Florida Water Supply Plan."389

Over 2.6 million dollars was spent by the C&SFFCD in the fiscal years 1974-76
390
on resource planning. The Southwest Florida Water Management District

(SWFWMD) has similarly emphasized planning. As a result, these water management

districts soon developed strong entrenched ideas about how water should be

managed within their respective areas.

There was a renaissance of state level interest in the State Water Use

Plan following the transfer to a newly created Department of Environmental
391
Regulation of the Chapter 373 administrative powers. DER began to work

on the plan in 1976. An agreement was soon reached with the Division of

State Planning whereby DER agreed to use the water element of the State Compre-
392
hensive Plan as the policy basis of the SWUP. An agreement was also reached

with the water management districts reaffirming their delegated authority

to continue developing plans for their respective areas but providing forsome





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393
standardization of format. DER was to take the five regional plans together

with the water element and "synthesize" a State Water Use Plan.

Although the agreement called for the SWUP to be consistent with the

water element, attainment of such consistency was very difficult. The water

management districts had been planning for several years in the absence of

state direction. Consequently, when the DSP developed a document that was

at variance with their established policies and with which they were supposed

to comply, they revolted. Negotiations ensued in the Office of the Governor
395
and a compromise water section was developed. DER prepared a document

consisting of a short introduction, the water section of the SCP, and five
396
executive summaries of the water management district plans and prepared to

hold public hearings on adoption of that collection as a technical and advisory
397
document to be termed Phase I of the SWUP. These hearings, however, were

cancelled when the Graham administration entered office.398

3. The Failure of State Planning in the 1970's

After several years of effort there is no effective State Comprehensive

Plan and there is no State Water Use Plan. The reasons for this apparent failure

are complex. First, at least with respect to the State Comprehensive Plan,

there was no clear conception, from the beginning, of how the plan was to be

used and implemented. It was unclear what actions of state government the SCP

would guide and by what means it would be used to control them. That uncertainty

hampered development of the plan and led to a reaction by the Legislature that

it should have no effect. A second major related problem leading to that

reaction is that the plan was not drafted by those who were in a position to

implement it. The Division of State Planning was an independent planning group

that was separated from the agencies that actually make substantive decisions.

If the plan had been drafted by those with authority for implementation, it





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would probably have received voluntary acceptance. The Division of State

Planning certainly had little such implementing authority and was in no posi-

tion to force other agencies to accept the plan. Indeed, it is difficult to

conceive of any one institution other than the Governor and Cabinet or the

Legislature having such power.

This deficiency was most apparent with respect to the State Water Use

Plan. DER and DSP had agreed the water section of the SCP would be used as

a policy basis for the SWUP. All parts of the SWUP were therefore supposed

to be consistent with the water section. The State Water Use Plan, however,

was actually being written by the water management districts. Water management

district governing boards, not DER, were making the substantive policy decisions

regarding water use planning. Furthermore, the WMDs had the willingness and

ability to implement those decisions. To the extent that the water section con-

flicted, it was vigorously resisted.

DER, on the other hand, has limited power to implement anything that is

inconsistent with policies of the water management districts. Although Chapter

373 gives DER "general supervisory authority"399 over the water management

districts, it is mostly illusory. The Governor and Cabinet are exclusively

empowered to "review and ...rescind or modify any rule or order of a water

management district..."'400 Therefore, since in addition the two larger dis-

tricts are also financially independent, DER was put in the untenable position

of attempting to adopt a plan that it could not implement.

Finally, it appears the Legislature's enthusiasm for planning and environ-

mental protection was dwindling in the late 1970's. The State Comprehensive

Planning Act had been passed early in the decade. By 1978 the Legislature was

more concerned with what it perceived as excessive government regulation and

a runaway bureaucracy than with adopting new, comprehensive and protective

policies.





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4. The Current Status of State Planning

Shortly after taking office in January, 1979, Governor Graham appointed

a blue ribbon Resource Management Task Force and charged it with the responsi-

bility of reviewing Florida's system for planning, land use and environmental

management. After a year of deliberations, including thirty days of full

committee meetings, numerous other subcommittee meetings, and the review of

voluminous staff papers, the Task Force reported its conclusions and recom-
401 402
mendations. Two prominent concerns were expressed. The first was a

need to eliminate the "current chronic under-funding of resource laws." The

second was the need for integrated state, regional and local planning for

resource management.

With respect to the latter, the Task Force made several specific
S. 403
recommendations.

1. Comprehensive resource management policies are prerequisite
to the effective management of land and water resources at all
levels of government. Activities of the various resource manage-
ment agencies need a clear direction within an integrated policy
framework that promotes consistency between government agencies.

2. The state should formally adopt state resource management
policies that concisely express policy direction for the manage-
ment of state resources and the inherent problem of growth.
These policies should have the necessary legal effect of guid-
ing state agency activities, including planning, research, regu-
lation and service delivery toward a common set of goals. They
should also guide the policies and activities of regional and
local agencies insofar as these activities affect state resources.
Specific state goals should include, but not be limited to a
state water policy, coastal management policy, and agricultural
lands policy, as described in later recommendations in this
report.

3. Florida's regional planning councils should formally adopt
by rule comprehensive regional resource management policies
which are a concise statement of policy direction for the manage-
ment of regional resources. They should be more detailed than
state policies, but not as site specific as a local comprehen-
sive plan. Regional policies should be consistent with state
policies, and be certified as such by the state planning agency.





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4. Local government comprehensive planning is currently the
basic tool for growth management in Florida. The hopes and
aspirations which led to the passage of the Local Government
Comprehensive Planning Act of 1975 have not been achieved.
It is vital that local government comprehensive planning be
improved and integrated with other state and regional resource
management. After the adoption of state and regional resource
management policies, and when the required five year review
of local government comprehensive plan occurs, local compre-
hensive plans should be certified by both the region and the
state for local conformance to state and regional policies.
Subsequent local government plan amendments should also be
certified. This should not change already-approved develop-
ment decisions made by local governments.

Another set of recommendations directly addressed the need for water
404
management planning.

1. The Task Force recommends that the state develop and adopt
a state water policy. The policy should be developed through
the combined efforts of the water management districts and the
Department of Environmental Regulation, with the aid of regu-
lated industries and the public. The policy should be a "mid-
range" policy, that is of more specificity than the water
policies expressed in the Florida statutes, but broad enough
to guide the development of more specific plans by the water
management districts. The policy should be a part of the
integrated policy framework described in Section One, and
should be formally adopted as a state rule under the Adminis-
trative Procedure Act. Both the State Water Use plan and
the State Water Quality plan should be made consistent with
the adopted state water policy.

2. The Task Force recommends to the Governor that, to the
greatest extent possible, planning for the regulation of both
water quality and water quantity be consolidated at the region-
al or district level. This process should continue on a selec-
tive basis, with delegation occurring under standards and
guidelines established by the state, to those regional or dis-
trict agencies which have or can develop the financial and
technical capabilities to carry out both functions.

A year later, little has been accomplished toward developing the inte-

grated planning framework recommended by the Task Force, except in the area

of water policy. DER and the water management district have been working to

develop a state water policy along the lines recommended by the Task Force.405

Extensive negotiations have taken place, a compromise has been reached and





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public hearings are now being held as part of the rule adoption process. The

value of the document that appears likely to emerge is doubtful, however.

Because of DER's weak legal position vis-a-vis the water management districts,

the policies resulting from the negotiations are considerably vaguer and less

specific than those originally proposed by DER. Further, a disclaimer at the

beginning of the document states, "this rule does not repeal, amend or other-

wise alter any rule now existing or later adopted by the Department or Water

Management Districts." 406

Despite these weaknesses, there would be value in adopting the proposed

policy. It would, at the very least, be a common point of agreement and

reference for the development of more specific policies and plans in the future.

It could also serve as a beginning for implementation of the more comprehensive

recommendations of the Task Force.





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SECTION II.- LAND AND WATER lAdilAGE!IET IN THE STATE OF FLO'RIDAr EXISTING
INTERRELATIONSHIPS

iFor a more detailed description of the relevant governmental agencies, see
Chapter II, "State, Regional and Local Water Resource Agencies," Maloney,
Plager, Ausness and Canter, Florida Water Law 1980, Florida
Water Resources Research Center Publication No. 50, at 99-166.
21975 Fla. Laws, Ch. 75-22.

3Fla. Stat. 403.804.

4Id., 403.802.
4a1967 Fla. Laws, Ch. 67-436, codified at Fla. Stat. 403.011-403.4153 (1979).

51972 Fla. Laws, Ch. 72-299, codified at Fla. Stat.373.012-.617 (1979).

6Fla. Stat. Chs. 403 and 253 (1979); Fla. Admin. Code, C. 17-4.

7Fla. Stat. 373.306 (1979); Fla. Admin. Code, Ch. 17-21.

8Fla. Stat. 403.101 (1979); Fla. Admin. Code, Ch. 17-16 (1979).

9Florida Safe Drinking Water Act, 1977 Fla. Laws, Ch. 77-337, codified at
Fla. Stat. 403.850-.864 (1979).

10Florida Resource Recovery and Management Act, 1974 Fla. Laws, Ch. 74-342,
codified at Fla. Stat. 403.701-.715 (1979).
111980 Fla. Laws, Ch. 80-302, amending Fla. Stat. Ch. 403, Part IV (1979).

12Florida Electrical Power Plant Siting Act, Fla. Stat. 403.501-.517 (1979);
Fla. Admin. Code 17-17.

13Florida Electrical Transmission Line Siting Act, 1980 Fla. Laws, Ch. 80-65,
codified at Fla. Stat. 403.522-.527 (Supp. 1980).

14Florida Industrial Siting Act, ELa- 3Saz. 288.501-.518 (1979).

15Water Resources Restoration and Preservation Act, 1977 Fla. Laws, Ch. 77-369,
codified at Fla. Stat. 403.0615 (1979).

16Fla. Stat. 403.1821-.1835 (1979).

17See 208, Pub. L. 92-500, 86Stat. 880.

18Fla. Stat. 373.026(9) (1979).

19Florida Coastal Management Act of 1978, 1978 Fla. Laws, Ch. 78-287, codified at
Fla. Stat. 380.19-.25 (1979).

20See generally, Fla. Admin. Code, Ch. 16-6.

21Fla. Stat., Ch. 370 (1979).

22Id., 372.925, 372.932 (1979).





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23Id., Ch. 161 (1979).

24Id., Chs. 592, 258.

25Id., Chs. 177, 197-270, 285.

26Id., Chs. 253, 259.

27 Id., Ch. 376.
281972 Fla. Laws, Ch. 72-317, codified at Fla. Stat. 380.012-380.12(1979).

29Id., 380.06 (1979).
30Id., 380.05 (1979).


311975 Fla. Laws, Ch. 75-257, codified at Fla. Stat. 163.3161-.3211 (1979).

32Fla. Const. Art. IV, 9; Whitehead v. Rogers, 233 So. 2d. 330 (Fla. 1969).

3Fla. Stat. 372.01 (1979).

34See Fla. Stat., Ch. 372 (1979); Fla. Admin. Code, Ch. 16.
35
Florida Endangered and Threatened Species Act, 1977 Fla. Laws, Ch. 77-375
codified at Fla. Stat. 372.072 (1979). Endangered and Threatened Species
Reward Trust Fund, 1979 Fla. Laws, Ch. 79-217, 2 codified at Fla. Stat.
372.073 (1979).
361979 Fla. Laws, Ch. 79-190. See Stryker, Planning and Budgeting Reunited:
A Contract Marriage, 7 Fla. Env. & Urban Issues 12 (1979).

37Fla. Stat. 23.011-.017 (1979).

38Alternative mechanisms for creating Regional Planning Councils have existed.
Councils have been established pursuant to Fla. Stat. 163.01, 163.02 and Ch.
160 (1979).

39See discussion in Section III,C infra accompanying notes 34-60.
40RPC's may study original capabilities and needs in such diverse areas as criminal
justice, water quality, disaster preparedness and health care.

41Many smaller local governments have contracted with RPC's for the preparation of
local government comprehensive plans.
42Fla. Stat. 380.06(8)(1979).
43Fla. Stat. 380.07(2)(1979).


144980 Fla. Laws, Ch. 80-315 codified at Fla. Stat. 160.001-.008 (1980 Supp.).

45Fla. Stat. 160.003(8); 160.01(1) (1980 Supp.).

46Id., 160.01(2), (3).





-77-


47d., 160.05(3).

48Id., 160.07

49Id.

50Id.

51Id.

521972 Fla. Laws, Ch. 72-299 codified at Fla. Stat. Ch. 373 (1979).

53Fla. Stat. 373.073 (1979).

54d., 373.026, .036.

55Id., 373.203-.249.

56Id., 373.403-.443.

57Id., 373.036.

581d., 373.106.

59Id., 373.313.

I60d., 373.323.

61Id., 373.114.

62Id., 373.503; Fla Const. 9(b), Art. VII.

63Id., 373.1962.

64See for example, the creation of the Everglades Drainage District, 1913 Fla.
Laws, Ch. 6456.

65Id., Ch. 6458.

Whether drainage districts may continue to be created under Ch. 298 is in doubt.
See Florida Water Law 1980 at 157-160, discussing the Formation of Local Govern-
ments Act, 1974 Fla. Laws, Ch. 74-192, codified as Fla. Stat. Ch. 165 (1979).

67Fla. Stat., Ch. 582 (1979).

68Id., 582.231.

69Id., 161.36.

70Id., Ch. 388.

71Id., 374.3001-.521.

72Id., Ch. 165.

173973 Fla. Laws, Ch. 73-129, codified as Fla. Stat., Ch. 166 (1979).





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74Fla. Const., Art. VII, l(f)(1968); Fla. Stat., 125.001-.74(1979).

75Fla. Const., Art. VIII, l(g)(1968); Fla. Stat. 125.80-.88(1979).

761975 Fla. Laws, Ch. 75-257 codified as Fla. Stat. 163.3164-.3211(1979).

7 1972 Fla. Laws, Ch. 72-317, codified as Fla. Stat. Ch. 380 (1979).

78ALI, A Model Land Development Code (1975). In actuality, the law was modeled
after Tent. Draft No. 3, April 1971, which was the version available at that
time.

79Fla. Stat. 380.021 (1979). Although the state has authority to regulate land
use decisions, it has traditionally delegated that power to local governments,
which are now very jealous of preserving their powers in this area. Finnell,
Saving Paradise: The Florida Environmental Land and Water Management Act of
1972, 1973 Urb. L. Ann. 103-136, 107.

80The ALI Reporters believed "...at least 90 percent of the land use decisions
currently being made by local governments have no major effect on the state or
national interests." ALI, Model Code, supra note 78 at 50. If cumulative and
aggregate impacts of those decisions are considered, the validity of that state-
ment is doubtful.
81See discussion infra at notes 119-144.
82See discussion infra at notes 102-118.


83Fla. Stat. 380.05 (1979).
84Fla. Stat. 380.05(2) (1975).

85Fla. Stat. 380.05(20) (1979).


86372 So. 2d 913 (Fla. 1978).

87See K. Davis, Administrative Law Treatise 2.00 to 2.17.

88See e.g., Conner v. Joe Hatton, Inc., 216 So. 2d 209 (Fla. 1968); Sarasota
County v. Barg, 302 So. 2d 737 (Fla. 1974).
891979 Fla. Laws, Ch. 79-73.

90The effectiveness of this attempt to comply with the Cross Key Waterways
decision has been questioned. See Pelham, Regulating Areas of Critical
State Concern: Florida and the Model Code, 18 Urb.L.Ann. 3-83, 71 (1980).

91See discussion infra in Section III, D, 2 accompanying notes 67-71.

92Fla. Stat. 380.05(1)(b)(1979).
93
Id.

94Id., 380.05(6).

95Id., 380.05(8).




-79-


9Id., 380.05(9).

9Id., 380.05(17).

98Id., 380.05(8).

99Id., 380.05(14).

100Id., 380.05(13).

1Id., 380.07(2).

102Fla. Stat. 380.06(1) (Supp. 1980).

103Id., 380.06(2); Fla. Admin. Code 22F-2.
1Id., 22F-2.08.

105Fla. Admin. Code 22F-2.10.

106Thus a development that does not meet the criteria of the guidelines can still
be a DRI if it meets the statutory definition. General Development Corp. v.
Division of State Planning, 353 So. 2d 1203 (Fla. 1st DCA 1977); Pelham,
Regulating Developments of Regional Impact: Florida and the Model Code, 29
U. Fla. L. Rev. 789, 799-801 (1977).

107Fla. Stat. 380.06(4) (Supp. 1980).

108See Finnell, supra note 79 at 129-30.

109Fla. Stat. 380.06(5)(c)(1979).

Id., A recent article in the Gainesville Sun described the political machina-
tions in Suwannee River City which resulted from this technical distinction
in the ELA. The City Commission, which had planned to adopt land development
regulations, delayed adoption so that the developer of a 160 acre site would
not be required to have it evaluated as a DRI. Gainesville Sun, 2D, Wed., Feb.
15, 1978.

Fla. Stat. 380.06(5)(b)(1979).

112Fla. Admin. Code 22F-1.30.

113Fla. Stat. 380.06(5)(a), (6)(1979). Special procedures are mandated for
consideration of the application. Fla. Stat. 380.06(7)(1979).

S114ee discussion infra in Section III,F,4 accompanying notes 127-136.

115Fla. Stat. 380.06(11)(a)(Supp. 1980).

116Id., 380.06(13).





-80-


117Fla. Stat. 380.07(2)(1979).

118Id., 380.07(4). The Land and Water Adjudicatory Commission tends to uphold
the decisions of local government.

119Finnell, supra note 79 at 112.
120
1973 Fla. Laws, ch. 73-131. The Big Cypress was also removed from calculation
of the 5% limitation specified in Fla. Stat. 380.05(17)(1979).

121See L. Carter, The Florida Experience 20-21 (1974).

122Eisenbud, supra note at 6-8.
A South Florida regional jetport was one of the more threatening proposals.
See, L. Carter, supra note 44 at 232-40.

124See, Phase I, Golden Gate Estates Redevelopment Study, Collier County, Florida
[hereinafter cited as Golden Gate Estates Study]; L. Carter, supra note 44 at
232-40.
125
Id., Big Cypress Study, supra note To its credit, Collier County is now
seeking to reverse the destruction. See Proposed Interim Modifications, Golden
Gate Estates Canal System, Ch2M-Hill, November, 1978.
126L. Carter, supra note 121 at 248-51.

127Id. Carter described the proposed regulations succinctly: "The basic objective
was to maintain indigenous hydrologic and ecologic systems. In the sloughs and
coastal wetlands, only 5 percent of any given site could be disturbed and only
half of that could be paved over or otherwise covered with impermeable surfaces
...For the higher lands...the regulations were less restrictive, but, even
there, not more than 10 or 20 percent of any site could be 'disturbed' and only
5 or 10 percent covered with impermeable surfaces. Although some drainage could
be allowed, discharges would be expected to simulate natural surface flows and
no discharges to tidewater were to be permitted. Even in the existing urbaniz-
ing areas..., the regulations would be significant; for instance, no mangroves
could be disturbed, no new drainage facilities discharging to tidewater could
be built, and no new construction would be allowed that did not meet standards
prescribed under the national flood insurance program." Id. at 251.
128650,000 acres outside of the proposed national preserve were originally included.
This was reduced to 285,000 acres. Id. at 253-54.

129Fla. Admin. Code 22F-3.

30 Id. 22F-3.06(l).

131Note, however, that they expressly fail to regulate any of the hydrologic aspects
of agriculture development or operation. Id., 22F-3.04, .07(4), .09(3).
132Id., 22F-3.06(5).

133Id., 22F-3.07(2).





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134d., 22F-5.02. The area has since been redesignated by the Legislature.
Fla. Stat. 380.0511(1979).

R. Healy, Land Use and the States 116 (1976).

136The rule designating the area lists the following objectives:

1. Minimize the adverse impacts of development on resources of the
Floridan Aquifer, wetlands, and flood-detention areas.

2. Protect the normal quantity, quality and flow of ground water and
surface water which are necessary for the protection of resources
of state and regional concern.

3. Protect the water available for aquifer recharge.

4. Protect the functions of the Green Swamp Potentiometric High of the
Floridan Aquifer.

5. Protect the normal supply of ground and surface water.

6. Prevent further salt-water intrusion into the Floridan Aquifer.

7. Protect or improve existing ground and surface water quality.

8. Protect the water-retention capabilities of wetlands.

9. Protect the biological-filtering capabilities of wetlands.

10. Protect the natural flow regime of drainage basins.

11. Protect the design capacity of flood-detention areas and the water
management objectives of these areas through the maintenance of
hydrologic characteristics of drainage basins.

Fla. Admin. Code 22F-5.03.

137See Id., 22F-6, 7.

138See Id., 22F-6.08(4).

139d

140Id., 22F-6.08(5).

14Id., 22F-6.08(12).

142Id., 22F-6.08(10).

143Id.

144Id., 22F-6.08(11).

145Id., 22F-6.08(15).





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R. Healey, supra note 135 at 123. Three Rivers was planned to contain 18,000
dwelling units, housing 50,000 people, on a 5,800 acre tract of land. Id.
147id
1Id.
148Id

149Id. at 125.

150The Principal Investigator, Frank E. Maloney, was involved in this controversy
as a consultant to the Southwest Florida Regional Planning Council.
1512,800 acres were to be left undisturbed.

152
Development of Regional Impact Assessment, The Estuaries, No. 6-7475-5,
Southwest Florida Regional Planning Council, April, 1976, [hereinafter cited
as DRI Assessment]. 1. Net density was estimated to be 13.0 dwelling units/
acre.

1Id.
154Id. at 4.

155Id

156See the Florida Aquatic Preserve Act of 1975, Fla Stat. 258.35 .46 (1979).

157DRI Assessment, 4.

158It was estimated that approximately 25% of the development site would be
covered by impervious surfaces. DRI Assessment, 45.

159Some of the pollutants associated with such runoff are nitrogen, phosphorus,
bacteria, viruses, petrochemicals, and heavy metals.
160DRI Assessment, 50.

161Id. at 68.

162Id. at 28-37.

163See table, Id. at 29.
164Id. at 30.

165Id. at 31.

166Id. at 32.

167Cape Coral and Sanibel Island both draw saline water from the same Hawthorne
and Suwannee formations and desalinate it for potable water.
168Id. at 34.





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169Id. at 37, 125.

170Estuary Properties, Inc. v. Board of City Comm. of Lee County, Case No.
76-1560, Division of Administrative Hearings, Order of the Land and Water
Adjudicatory Commission, December 8, 1977. The decision of the Governor
and Cabinet, however, has been reversed by the First District Court of
Appeal on the grounds that it constitutes an unconstitutional taking of
private property. Estuary Properties, Inc. v. Askew, 381 So. 2d 1126
(Fla. 1st D.C.A. 1979). Ultimate resolution of the case will soon be
made by the Supreme Court of Florida.
171Environmental Land Management, Final Report to the Governor and the Legis-
lature, Environmental Land Management Study Committee, 90, December 1973.
One group calculates that only 35% of Florida is suitable for development.
L. Carter, supra note 121at 135 n. 24.

1Id.
173Fla. Stat. 380.04(1979).
174Fla. Stat. 380.04(3)(e)(1979).


175Fla. Stat. 380.031(7)(1979).
L. Carter, supra note 121 at 26-7.

177Fla. Stat. 380.05(18)(1979).

178The statute specifically refers to subdivision registration under Chapter
478 or recording of the subdivision under a local subdivision plan law.
Fla. Stat. 380.05(18)(1979).
179It appears unclear whether the qualifying phrase "...on which there has
been reliance and a change of position" applies only to building permits
or whether it also applies to subdivision approvals. Id.

180Fla. Stat. 380.05(15)(1979). This section apparently refers to a line
of Florida cases which have applied theories of estoppel to prevent govern-
ment regulation of landowners. See, Texas Co. v. Town of Miami Springs, 44
So. 2d 808 (Fla. 1950); Sakolsky v. City of Coral Gables, 151 So. 2d 433
(Fla. 1963); City of Gainesville v. Bishop, 174 So. 2d 100 (Fla. 1st D.C.A.
1965).
181
See notes 121-125 supra and accompanying text; D. Barile, An Environmental
Study of the Melbourne-Tillman Drainage District and an Evaluation of
Alternative Land Use Plans for the City of Palm Bay, Florida. Masters
Thesis, Florida Inst. of Technology (1976).
182DSP, Charlotte Harbor: A Florida Resource, DSP BLWM 39-78.

183Fla. Stat. 380.05(l)(b)(1979).
184d., 380.05(1)(c).





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185Fla. Stat. 380.06(4)(a)(1979). (60 days for issuance of binding letter
of interpretation); Fla. Stat. 380.06(7)(b)(1979) (If the Regional Planning
Council needs more information than the application supplies, then it must
request the additional information within 15 working days of receipt); Fla.
Stat. 380.06(8)(1979) (The Regional Planning Council's report must be
prepared within 50 days of receipt of public hearings on the application.)

186Fla. Stat. 380.06(8)(1979).

187Fla. Stat. 380.07(2)(1979); Pelham, supra note 25 at 64-7.

188Sarasota County v. Beker Phosphate Corp., 322 So. 2d 655 (Fla. 1st D.C.A.
1975) (adjacent county had no standing to appeal decision of neighboring
county); Sarasota County v. General Development Corp., 325 So. 2d 45 (Fla.
2d D.C.A. 1976) (county had no standing to appeal decision of municipality
within its borders).
189ALI, Model Code, supra note 78 7-502(2), 9-103(1)-(2).

190Id. 2-304(5), 7-502(2), 9-103(4).

191See, notes 104-105,supra and accompanying text.

192See, note 110 supra.

193The 5% limitation, of course, generally precludes this action.
194
Fla. Stat. 380.06(1)(1979).

195Fla. Admin. Code 22-F.

196Pelham, supra note 90 at 802-803.

197There is evidence developers are modifying their plans to slip under the
thresholds and thus escape regulation. Pelham, supra note 90 at 803.
198Id. at 803-804.

199Fla. Stat. 380.10(1), (2)(1979); Pelham, supra note 25 at 801.

200General Development Corp. v. Division of State Planning 353 So. 2d 1203
(Fla. 1st D.C.A. 1977); Pelham, supra note 90 at 799-801.

201Environmental Land Management, Final Report to the Governor and the Legis-
lature, Environmental Land Management Study Committee, 9 (December, 1973).

202Fla. Stat. 380.06(ll)(b)(Supp. 1980).





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203Quoted by Daniel W. O'Connell, Status Report on the Local Government Compre-
hensive Planning Act of 1975: Problems and Prospects, 5 (Seminar, Updating
the Land Use Game in Florida, Environmental Law Section and Local Government
Law Section of the Florida Bar, Orlando, Florida, March 8, 1977)[hereinafter
cited as O'Connell].

204Fla. Stat. 163.3161-.3211 (1979).

205The Local Government Comprehensive Planning Act which was enacted was also
based on a draft prepared by the Environmental Land Management Study (ELMS)
Committee. See, O'Connell, supra note 203 at 5.

06Fla. Stat. 163.3161 (1979). See generally, Sullivan & Kressel, Twenty
Years After Renewed Significance of the Comprehensive Plan Requirement,
9 Urban L. Annual 33-67 (1975).
207Fla. Stat. 163.3167(1979).
Fla. Stat. 163.3167(1979).
208Fla. Stat. 163.3194(1)(1979).
Fla. Stat. 163.3164(11)(1979).


Id. This total includes 390 municipalities, 66 counties and 3 special
districts. See, O'Connell supra note 126, at 6.

211Fla. Stat. 163.3167(8), .3174(1979).
212Id., 163.3167(2)(1979).
213Id., 163.3167(7)(1979).


214
Id., 163.3164(12), .3174(1)(1979).

215Id., 163.3174(1)(1979).
216Id.

2 Id.

2180'Connell, supra note 203 at 7.

219Fla. Stat. 163.3174(5)(1979).
220Id., 163.3177(1979).
221Id., 163.3177(6)(a)(1979).

222Id., 163.3167(6)(c)(1979).
Id., 163.3167(6)(c)(1979).


224d., 163.3167(6)(d)(1979).





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225Id., 163.3167(6)(b)(1979).
226Id., 163.3167(6)(e)(1979).

22Id., 163.3167(6)(f)(1979).

228Id., 163.3167(6)(i)(1979).
227
2Id., 163.3167(6)(g)(1979).

230Two of the optional elements, regarding mass transit and ports, and airports,
are required, however, for local governments with populations greater than
50,000. Id., 163.3167(6)(j)(1979).
231Id., 163.3177(7)(a)(1979).
232Id., 163.3177(7)(b)(1979).
233Id

234Id., 163.3177(7)(c)(1979).

235Id.

236Id., 163.3177(7)(d)(1979).

23Id., 163.3177(7)(e)(1979)

238Id., 163.3177(7)(f)(1979)

239d., 163.3177(7)(g)(1979).

240Id 163.3177(7)(h)(1979)

241Id., 163.3177(7)(i)(1979).

2Id., 163.3177(7)(j)(1979).

243Id., 163.3177(7)(k)(1979)

244Id., 163.3177(7)(g)(1979).

245Id., 163.3177(2)((1979).

246Id., 163.3177(4)((1979).

2472d.

248Id., 163.3177(6)(h)(1979).
249Id.

'Id.




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250Id., 163.3184(1)(a)(1979). This function was formerly performed by the
Division of State Planning, which was dissolved in 1979.
251Id., 163.3184(l)(b)(1979).

2521d., 163.3184(1)(c)(1979).
253Id., 163.3184(1)(d)(1979).

254Id., 163.3184(1)(d)(1979).
Id., 163.3184(l)(e)(1979).

255d., 163.3184(2)(1979).
256Id. In practice the review is sketchy and not very helpful. The Division
of Local Resource Management has one individual assigned to reviewing the
hundreds of plans that are being received. A visit to his office finds them
stacked in the hall for lack of storage space.
257 d., 163.3184(3)(1979).

259Id., 163.3184(2)(1979).

260d., 163.3184(5)(1979).

261Id., 163.3181(1979).

262Id., 163.3184(6)(1979).

263id

I. McHarg, Design With Nature (1969).

2653 So. Fla. Water Management District Bulletin, No. 9 (Oct. 1977); Also, inter-
views and material on file with the author supplied by P. K. Sharma and
Jeanne Crews of the District.

266See, e.g., Mandelker, The Role of the Local Comprehensive Plan in Land Use
Regulation, 74 Mich.L.Rev. 900, 965-71 (1976).

267See, e.g., Ore. Rev. Stat. 197.325 (1)(1979).

268See, Final Report to Governor Bob Graham of the Resource Management Task Force,
Volume I Recommendations (January, 1980). The author served as staff to the
Committee on Integrating Land and Water Planning and Administration.
269Fla. Stat. 163.3194, .3197(1979).

270Fla. Stat. 163.3194(1)(1979).





-88-





27See generally, Mandelker, Catalano and Dimento, Mandating Consistency Between
General Plans and Zoning Ordinances: The California Experience, 8 ABA Nat.
Res. Lawyer 455-66(1975); Jarlock, Consistency With Adopted Land Use Plans
as a Standard of Judicial Review: The Case Against, 9 Urban L. Amn. 69-109
(1975); Note, Comprehensive Land Use Plans and the Consistency Requirement,
2 Fla. St. L. Rev. 766-88 (1974); Arline, The Legal Significance of the
Local Government Comprehensive Plan (unpublished seminar paper on file with
the author).
272Fla. Stat. 163.3194(3)(a)(1979).





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274See Florida Dept. of Agriculture, Drainage Districts of Florida, Bull. 67,
New Series 9-14 (1931); see generally F. Maloney, S. Plager and F. Baldwin,
Water Law and Administration: The Florida Experience 100.1 (1968).
2751913 Fla. Laws, ch. 6456 1, at 129.

See M. Carter, Ecosystems Analysis of the Big Cypress Swamp and Estuaries,
(EPA, Region IV, June 1973); R. Eisenbud, An Examination of the Law Relating
to the Water Rights of the Everglades National Park: A Case Study in Legal
Problems of the Coastal Zone, Sea Grant Tech. Bull No. 21 (Univ. of Miami;
Sea Grant Program 1971); Division of State Planning, Tallahassee, Fla.,
Report of the Special Project to Prevent Entrophication of Lake Okeechobee
(November 1976); D. Barile, An Environmental Study of the Melbourne-Tillman
Drainage District and an Evaluation of Alternate Land Use Plans for the City
of Palm Bay, Florida (Thesis to Graduate Council of Florida Institute of
Technology, February, 1976).
2771949 Fla. Laws, Ch. 25270, at 629.

278
1961 Fla. Laws, Ch. 61-691, at 230.
279
See, Fla. Water Resources Study Comm'n, Florida's Water Resources, A Report
to the Governor and the 1957 Legislature 14, 15 (1956).
2801957 Fla. Laws, Ch. 57-380, at 855.

2811957 Fla. Laws, Ch. 57-380, 8(1)(a), at 858.

2821957 Fla. Laws, Ch. 57-380, 8(1)(b), at 858.

283Maloney, Ausness & Morris, A Model Water Code (University of Florida Press)
(1972).
284
1972 Fla. Laws, Ch. 72-299; now Fla. Stat. 373.013-.433 (1979).

285The 1972 Florida Water Resources Act established the Dept. of Natural Resources
as the state level agency charged with regulation of consumptive use of water.
Fla. Stat. 373.019(1)(1975). At that time, a separate state agency, the Dept.
of Pollution Control was in charge of water quality control. Fla. Stat.
403.503(1975). To assure proper coordination of these two management functions,
water use and water quality control, the 1975 Florida Legislature placed both
under a single new environmental agency, the Department of Environmental Regu-
lation. Florida Environmental Reorganization Act of 1975 Fla. Laws, Ch. 75-22,
8,11.

286Fla. Stat. 373.016(3)(1979).

287The Miami-Dade Water and Sewer Authority has faced just such a problem. "New
Water Site Faces Pollution," The Miami Herald C-1 (Jan. 2, 1977).

288See discussion accompanying notes 373-398, infra.





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289Fla. Stat. 373.016(2)(c), .86, .103(3)(4), .036(2)(c)(1979).

290Milliman, Water Supply Planning and the Longterm Outlook for Southeast Florida,
3, Vol. 1, No. 2 The Florida Outlook (Bureau of Economic and Business Research,
U. of F. 1977).

291Central and South Florida Flood Control District, Facts and Figures.

292See notes 320-336, infra and accompanying text.

293Fla. Stat. 373.413(1)(1979).

294Id., 373.416(1).

295Id., 373.403.

296Id., 373.403(1).

297Id., 373.019(11).

298Id., 373.403(5). Note also the very broad definition of "waters of the state"
in 373.019(a).

299The damages referred to are:
(a) A loss of natural water storage on the surface and in the ground.
(b) Reduced infiltration, when water table is below the surface, and
thus reduced recharge of ground water.
(c) Increased downstream flooding and erosion.
(d) Destruction of habitat and natural water level fluctuations which
are necessary for fish and wildlife.
(e) Estuarine productivity is reduced both by diversion of fresh water
from the estuary and by alteration of its rate of flow.
(f) The natural filtering function of marshes and other vegetation is
destroyed, bypassed, or overloaded, thus causing open water pollution.
(g) Increased pollution is generated by increased unwise human use of
the area.
(h) Fires, subsidence of soils, undesirable changes in vegetation, etc.
result from the drying out of land.

300Fla. Stat. 373.406(1979).

301Id., 373.406(1).

302Id., 373.406(2)(Supp. 1980) Silviculture was added in 1980.

303The Southwest Florida Water Management District has adopted a qualified
interpretation of this provision. The exemption does not apply if the
alteration results in substantially:
(a) Altering the peak rate of flow or the total volume of discharge of
waters into works of the District;
(b) Altering the rate of flow or total volume of water withdrawn from
works of the District;





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(c) Altering the direction of surface runoff into works of the District;
(d) Altering the water table or the level of the potentiometric surface.
Fla. Admin. Code 16J-4.05(2).

304Fla. Stat. 373.406(3)(1979).

3051d., 373.403(b).

306Fla. Admin. Code 161-4.

307Id., 16J-4.

308Id., 16K-4.
309Id., 161-4.03.

310Id., 16J-4.04(l).
311Id., 16J-4.04(2)(a)(b).

312Id., 16J-4.04(2)(c).

313Id., 16J-4.06(3),(4),(5).
314d., 16J-4.06(3)(a).

315Id., 16J-4.06(3)(b).

316Id., 16J-4.06(3)(c).

317d., 16J-4.06(5)(a)-(e).

318Id., 16J-4.06(4). Note conditions may also be attached to operation and main-
tenance permits. "...to assure that the permitted operation or maintenance
will not be inconsistent with the overall objectives of the District and will
not be harmful to the water resources of the District." Id., 16J-4.10(3).

319Rule 16J-4.06(4)(e), which prohibits lowering the water table to such an
extent that vegetation is adversely affected, is the type of criteria which
is needed. It does not apply, however, within the boundaries of lands "owned,
leased, or otherwise controlled by the applicant" and to that extent is of
limited effectiveness.

320See Fla. Admin. Code 16K-4. Note that these regulations were published under
the District's former name, the Central and South Florida Flood Control District.
321Id., 16K-4.021(a)(l)-(6).

322Id., 16K-4.022.

323d., 16K-4.021(l)(c).





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324Id., 16K-4.021(a)(b)l.

325Id., 16K-4-021(l)(b)2.

326Id.

327Id., 16K-4.021(1)(b)3.
328Id., 16K-4.021(1)(d).

329Id., 16K-4.Ol, 4.03, 4.09. Note, however, the exemptions of 16K-4.15(l).

330Id., 16K-4.15(1)

331Id., 16K-4.15(2).
332Id., 16K-4.035.

333Id., 16K-4.021(l)(b)3.

334d., 16K-4.021(2).

335Central and Southern Florida Flood Control District, Annual Report for the
Years October, 1974, thru September, 1976, at 11.

336la. Admin. Code 16K-34.

337Fla. Stat. 373.203-.249 (1979).

338Fla. Stat. 373.219(1)(1975).
339Id.

340Fla.__Stat. 373.226(1979).

341d., 373.223(1).

342d., 373.019(5).

343See generally, Maloney, Capehart & Hoofman, Florida's "Reasonable Beneficial"
Water Use Standard: Have East and West Met?, 31 U.Fla.L.Rev. 235-83
(1979).

344The rules of the Southern Florida Water Management District lists factors which
the Board may consider in determining whether a use is consistent with the
public interest. Fla. Admin. Code 16CA-2.05(2).

345Fla. Stat.373.036(a)(1979).

346See Ohrenschall & Imhoff, Water Law's Double Environment: How Water Law
Doctrines Impede the Attainment of Environmental Enhancement Goals; 5 Land &
Water L. Rev. 259, 270(1970); but see Ore.Rev.Stat. 536.340 (Supp. 1971).





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347Fla. Stat. 373.042(1979).

348The SFWMD began to review and comment on DRI applications for development
approval in 1973. In 1974 it began to review zoning applications and sub-
sequently began reviewing subdivision approvals. SFWMD, Resource Control
Department, Annual Report Fiscal Year 1976-77, 3-4.

3 Id., 27.

350SFWMD, Improvement of the Department of Regional Impact Process, (June 8,
1979)(Report submitted to the Governor's Resource Management Task Force).
(Hereinafter referred to as SFWMD DRI Report.)
351
Agreement Between the South Florida Regional Planning Council and The South
Florida Water Management District, Article I, November 10, 1977. I assume
the other agreements have the same language. These elements are further
explained in Appendix B of SFWMD, DRI Report, supra note 350at 18-19.

352Id., Article 7 of the Agreement.

353SFWMD, DRI Report, supra note350 at i.

354Id.

355These criteria are contained or alluded to in the following letters from the
District confirming the agreement. W.V. Storch, P.E., Director, Resource
Planning Department to J. Gary Ament, Development Coordinator, St. Lucie
County (August 26, 1975); Peter Rhoads, Assistant to the Director, Resource
Planning Department to Kris Schenk, Director, Martin County Planning and
Zoning Department (March 28, 1976); Susan M. McCormick, Planner, Resource
Planning Department to Chuck DeSanti, Assistant Zoning Director, Department
of Planning, Zoning and Building (October 8, 1975); W.V. Storch, P.E.,
Director, Resource Planning Department to Robert F. Cook, Director, Metro-
politan Dade County Building and Zoning Department (October 14, 1975).

356Resource Planning Department, Central and Southern Florida Flood Control
District, Report to Governing Board on Land Development Review Activities,
July 1, 1974 September 30, 1975, p. 6 (June, 1976).

357See the discussion of the LGCPA at Section II,C, supra accompanying notes 203-272.

358SFWMD, DRI Report, supra note 350.

359
See Fla. Admin. Code, 17-4 Memorandum of Understanding Between Corps of
Engineers and Florida Department of Environmental Regulation on Permit
Processing and Enforcement in the Waters of the State.

360Fla. Stat. 403.809(1)(1977).





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3611972 Fla. Laws, Ch. 72-295; codified at Fla. Stat. 23.011-.013 (1979).

362The Division of State Planning was in the Department of Administration.
Fla. Stat. 23.0112(2)(1977). Its functions regarding comprehensive plan-
ning were transferred to the Office of the Governor in 1978.

363Fla. Stat. 23.0114(1979).

364Exec. Order No. 76-29; 6 Fla. Admin. Code, 22E-3.02.

365The Principal Investigator for this study, Frank E. Maloney, served on the
Policy Advisory Committee for the water section.
366The Florida State Comprehensive Plan, 174 (Feb. 9, 1978).

367See e.g., The Florida State Comprehensive Plan, 186 (Feb. 9, 1978).

368Fla. Stat. 23.013 (1975).

369Fla. Laws, Ch. 77-306.

370Fla. Stat. 23.013(2)(1979).

371Exec. Order 78-48 (August 28, 1978).
372d

373
Fla. Laws, Ch. 72-299, codified at Fla. Stat. 373.013-.6161 (1979).
37 A Model Water Code, 70-71 (1972).

375Fla. Stat. 373.036(1)(1979).
376 Id:.

377Fla. Stat. 373.039(1979). The State Water Quality Plan is expected to be
a compilation of State water quality standards and rules and the 208 plans.

378Fla. Stat. 373.936(1)(1979).
379id

380la. Stat. 373.036(2)(1979).

381Fla. Stat. 373.036(7)(1979).
382Id.

3Fla. Stat. 373.036(8), (9)(1979).

384Fla. Stat. 373.036(1)(1979).





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385Fla. Stat. 373.036(3)(1979).

386Fla. Stat. 373.036(4)(1979).

387Governor's Resource Management Task Force, Committee Seven, Integrating
Planning and Policy for Water Resources, Appendix C, p. 25, Final Staff
Draft (Oct. 10, 1979).
388At the time the Florida Water Resources Act of 1972 was passed, the Central
and Southern Flood Control District and the Southwest Florida Water Manage-
ment District were already operating and funded by property tax revenues.
See, Maloney, Plager, and Baldwin, Water Law and Administration: The Florida
Experience, 101 (1968).
389W. Storch, A Rough Cut Model of a South Florida Water Supply Plan Vol. 1,
No. 9, (Central and So. Fla. Flood Control District, Dec-Jan. 1973). See
also, S. Winn, A Progress Report on the South Florida Water Use and Supply
Development Plan Vol. 3, No. 3, (August, 1976).
390
Annual Report for the Years Oct. 1, 1974 Sept. 30, 1976, 26 (Central and
So. Fla. Flood Control District).

391Fla. Laws, Ch. 75-22.

392Appendix C, supra note 387,at 26.

393Id., at 25.

394Id., at 27.
395Id.

State Water Use Plan, December, 1978.

397Appendix C, supra note 31, at 28.
398id.

399Fla. Stat. 373.026(7)(1979).

400Fla. Stat. 373.114(1979). The director of the department administering
Chapter 373 was originally vested with this power, but it was removed in
1975. Fla. Laws, Ch. 75-22, 11.

401Resource Management Task Force, Final Report to Governor Bob Graham, Volume
I Recommendations, Volume II Appendix (January, 1980).

402Id., Volume 1,2.

403Id., 11-12.




Full Text

PAGE 1

WATER IiRESOURCES researc center Publication No. 54 INTEGRATING LAND AND WATER MANAGEMENT By Frank E. Maloney (Deceased) Richard Hamann College of Law Center for Governmental Responsibility University of Florida Gainesville UNIVERSITY O'F FLORIDA

PAGE 2

INTEGRATING LAND AND WATER MANAGEMENT By Frank E. Maloney (Deceased) Richard Hamann PUBLICATION NO. 54 FLORIDA WATER RESOURCES RESEARCH CENTER RESEARCH PROJECT TECHNICAL COMPLETION REPORT OWRT Project Number A-037-FLA Annual Allotment Agreement Numbers 14-34-0001-9010 14-34-0001-0110 Report Submitted March, 1981 The work upon which this report is based was supported in part by funds provided by the United States Department of the Interior, Office of Water Research and Technology as Authorized under the Water Resources Research Act of 1964 as amended.

PAGE 3

TABLE OF CONTENTS Page INTRODUCTION 1 SECTION I -THE NEED FOR BETTER INTEGRATION OF LAND AND WATER MANAGEMENT 2 A. The Physical Interrelationship of Land and Water Systems B. Functional Interrelationship of Land and Water Management Programs C. Causes of the Lack of Integration D. Results of the Failure to Integrate and Coordinate Footnotes SECTION II -LAND AND WATER MANAGEMENT IN THE STATE OF FLORIDA: EXISTING INTERRELAT IONSHIP S Introduction A. Overview of Management Structure 1. State Agencies 2. Regional Agencies 3. Special Districts 4. Local Governments B. The Environmental Land and Water Management Act of 1972 (Ch. 380) 1. Areas of Critical State Concern 2. Development of Regional Impact 3. Regulating Areas of Critical State Concern to Protect Water 4. Use of the DRI Process to Protect Water 5. Effectiveness of the ELA as a Device for Integrating Land and Water Management C. The Local Government Comprehensive Planning Act of 1975 (Ch. 163) 2 4 7 11 13 17 17 18 18 21 22 24 25 25 27 29 32 34 39

PAGE 4

D. The Florida Water Resources Act of 1972 (Ch. 373) 1. History 2. Administrative Framework 3. Planning 4. Water Management Structures 5. Surface Water Management 6. Consumptive Use Permitting 7. Coordination with Land Use Management E. State Land and Water Planning 1. The Florida State Comprehensive Plan 2. The State Water Plan 3. The Failure of State Planning in the 1970's 4. The Current Status of State Planning Footnotes SECTION III -TECHNIQUES FOR THE INTEGRATION OF LAND AND WATER: MANAGEMENT A. Introduction 1. Common Themes 2. Caveat B. Reorganization 1. Consolidation in General 2. Consolidation in Florida 3. Delegation C. Review and Comment Procedures 1. Introduction 2. Environmental Impact Statements (EIS) 3. A-95 Review 4. Evaluation 45 45 47 47 48 49 56 59 64 64 66 70 72 75 97 97 97 98 99 99 101 103 104 104 105 108 110

PAGE 5

D. Coordinating Councils 1. Overview 2. Resource Planning and Management Committees 3. Evaluation E. Integration Through Planning F. Coordinated Permitting Footnotes 1. Overview 2. Washington's Environmental Coordination Procedures Act (ECPA) 3. The Florida Industrial Siting Act of 1979 If. Optional Coordinated DRI Review 5. Conclusion 111 111 112 115 116 119 119 120 122 124 126 128

PAGE 6

INTRODUCTION The need for better integration of land and water management is widely accepted. There are several reasons for this. One is that land and water are so closely related as natural, physical systems that it is impossible to fully understand, wisely use or effectively manage one without considering the other. Sound decisions regarding the use and protection of water cannot be made without considering the effects of land use. Nor is it possible to properly manage land unless planning and regulatory functions are coordinated with water management. Second, it is highly inefficient to attempt to manage land or water in isolation. Just as the resources are interrelated, so are management programs. Unless management is well integrated, conflict, inconsistencies, overlap and duplication inevitably result. Such waste of public and private effort is increasingly intolerable. In Section I of this report, the need for better integration is examined. Numerous programs for the planning and regulation of land and water use currently operate in Florida. Together they form an extremely complex management system. This system is not well integrated, but it demonstrates many subtle interrelationships. In Section II, the major land and water management programs are described and their mutual relations are examined. Improved integration of land and water management can be attained. A range of management techniques are available to enhance communication and resolve inconsistencies. In Section III, several methods are discussed, including reorganization, review and comment procedures, coordinating councils, planning, and coordinated permitting. Examples of how these techniques have been used are described.

PAGE 7

-2-I. THE NEED FOR BETTER INTEGRATION OF LAND AND WAlERMANAGEMENT A. The Physical Interrelationship of Land and Water Systems As physical systems, land and water are so closely related that it is impossible to fully inderstand, wisely use or effectively regulate one without considering the other.1 Human development and use of land affects water in several ways. These impacts result from physical alterations to the land itself, from release to the hydrologic cycle of various substances associated with a particular activity, and from the withdrawal of water. As in most situations, no factor works independently. For example, a change in the land's surface features which causes increased runoff of water may also cause greater quantities of pollutants to wash into a stream. One of the first steps in development of land for agricultural, urban or 1 fl' 2 commerC1a uses 1S 0 ten to c ear vegetat10n. Destruction of the vegetative cover generally has three principal effects resulting from exposure of the soil, alteration of its structure, and loss of the plants. First, the rate and quantity of runoff increases and infiltration correspondingly decreases because 3 the soil loses its capacity to absorb water. Flooding downstream may be accentuated and groundwater recharge may be diminished as a resu1t.4 Second, erosion of the bare soil increases.S Erosion of watercourses may also be caused by the accentuated flows described above.6 Third, any function performed by the vegetation of filtering pollutants from runoff is lost. The impacts caused by destroying the natural vegetative cover are generally amplified by constructing impervious surfaces to replace it, with one exception -erosion is reduced once the surface is constructed. The. cumulative impact on water resources of roofing, paving and compacting extensive land areas can be enormous. Impermeable surfaces collect and rapidly direct into watercourses what-... 7 ever prec1p1tat10n occurs. The recharge of groundwater is blocked, streams

PAGE 8

-3-experience more rapid and accentuated fluctuations, flood peaks are increased, and dry period flows are diminished.S In addition, whatever pollutants have been deposited on the surface or leach from it are washed downstream. Filling and draining wetlands has particularly severeimpacts.9 Wetlands exist at the interface between upland and aquatic systems and are the location of intensive biological actitivy. Destruction eliminates many of the functions served by wetlands, with harmful effects on both terrestrial and aquatic systems. One very important role of wetlands is as buffer against rapid hydrologic fluctu ations.lO They provide natural storage for flood waters, which are then released 11 gradually, thus reducing flood peaks and the severity and duration of droughts. In addition, by slowing the velocity of flood waters, wetlands can help reduce the damages when flooding does occur.12 Wetlands are also important sites of 13 groundwater recharge in some areas. Another significant function of wetlands is that they purcify the waters which flow through them and thus serve to mitigate the impacts on the aquatic system of land development in the watershed.14 In addition, wetlands help to prevent siltation of downstream areas by slowing the flow of water, thus decreasing its ability to erode stream banks and allowing a portion of the sediment load to settle out.lS Another impact of land use on water arises from the contribution of pollutants. Some water pollutants, such as sediment16 and nutrients,17 may be released from natural systems as a consequence of altering the land. Other substances are deposited on the land and subsequently carried by runoff into waterbodies.lS The wastes generated by a land use activity may be deliberately discharged into adjacent waters. In all cases, the type of land use and the manner in which it is designed and carried out, has a direct relationship with the type and quantity of pollutants which consequently enter receiving waters. A similar relationship exists with regard to the withdrawal of water from natural to serve land uses. The amount of water that must be withdrawn

PAGE 9

-4-is directly related to the character of land use, its intensity and the practices h d' h f 20 or tee nlques use ln t e consumptlon 0 water. For example, if a section of land is used as the site of a power generating plant, then many more gallons of water will be needed than if it is used for non-improved pasture, in which case no water other than rainfall is used.21 The quality, quantity and location of water, of course, also have a sub-stantial impact on land use. The availability of sufficient quantities of clean 22 water determlnes whether land can be used for many purposes. Industry, agri-culture and residential development cannot occur without adequate supplies of water. The feasibility of coal development in the upper great plains may well depend, for example, on whether sufficient quantities of water are available.23 The c:li".i1i:it:tal importance of water is reflected in market values of land.24 Declining water quality may result in corresponding declines in the usefulness 25 of land. B Functional Interrelationship of Land and Water 1:1anagement Programs Because land and water are so closely related as physical systems, programs for the development or management of these resources also tend to be function-ally related. Thus, for example, the decisions made in the land use management program will affect whether the goals of a water quality improvement program are met. Similarly, the construction of a project for the improvement of water quality of the control of floods is likely to affect the success of land use planning. There are many examples of these types of interrelationships. Unfor-tunately, they too often arise as unintended secondary effects rather than;well conceived interactions. Much of the need for better integration of land and water management is a need to better harmonize conflicting programs and to use them in mutually reinforcing ways.

PAGE 10

-5-Most local, state and federal programs for the protection and improvement of water quality operate pursuant to regulatory and planning authority and 26 financing under the federal Clean "l-Jater Act. These programs are replete with examples illustrating the functional relationship between land and water manage-d h d f b 27 ment programs an t e nee or etter lntegratlon. One of the most notorious has been the effect on land use patterns of C!,onstructing new sewage treatment 28 plants and interceptor sewers. Such facilities are typically designed with excess capacity to avoid problems of early obsolescence. The availability of sewers, however, often stimulates growth in areas that are unsuitable or unpre-pared to accommodate it. Runoff and other nonpoint sources of pollution can then cause water quality degradation as severe as that which the facilities were intended to correct. Because of the need to increase tax revenues to pay for their share of the eosts of building and operating the facilities, local govern-ment officials with land use control authority may be reluctant to implement adequate growth control measures. On the other hand, the failure to build new water pollution control facili-ties can have equally severe impacts on land use patterns and the growth manage-1 f 1 1 ff' 1 29 ment pans 0 oca government 0 lCla s. Sewage treatment plants are designed with limited capacity. If excess volume is received, they discharge inadequately treated wastes. Discharge permits, then, allow the operator to accept a limited quantity of waste. the connection of new development threatens to exceed this capacity, the utility may be required to impose a moratorium on new hookups. Unless alternative treatment systems are available, this action translates into a moratorium on new construction, which is more usually the perogative of local land use control authorities. Similar restrictions on the industrial usage of land may result from the enforcement of water quality limited effluent limitations in areas with badly degraded water quality.

PAGE 11

-6-These effects are largely unavoidable. It is not possible to regulate the sources of water pollution without affecting land use management programs because those sources are land use activities. This linkage of land and water ment has become most evident in the control of nonpoint sources of water po11u tion.30 The traditional emphasis of water pollution control programs has been on regulating the discharge of wastes from "point sources" such as sewage treat-1 d 'd '1 f '1 31 ment p ants an ln ustrla aCl ltles. Water quality goals, however, cannot be achieved with such a limited approach because much of the pollutant load comes from nonpoint sources such as the runoff from construction sites, agricultural d b 32 operatl0ns an ur an streets. The usual regulatory methods for controlling water pollution --establishing and enforcing standards on the quality and quantity of discharge --are impractical for use against the nonpoint sources, as is the construction of conventional treatment faci1ities.33 If the nonpoint sources are going to be controlled, then land use controls must be used. Among the measures that have been recommended for consideration are: "zoning, flood plain zoning and regulations, environmental performance zoning, subdivision regulations, planned unit development regulations, buffer zones, conservation and scenic easements, density bonuses, housing codes, building codes, construc-tion permits, development permits, transferable development rights, hillside development regulations, drainage regulations, grading regulations, soil erosion and sediment control regulations, solid waste oontro1 regulations, septic tank ordinances, taxation policies, public works policies, public investment policies, land conservation policies, and discharge po1icies.,,34 Flood plain management is another need that defies classification as exclusively a land or water management problem. In some respects, flooding is a water management problem. Water is the damaging agent. One way of controlling flood damage is to build structures to control the water. In other respects

PAGE 12

-7-flood damage is a problem of land use control. Flooding is a natural, necessary and beneficial hydrologic phenomenon. Problems occur because people build structures that are susceptible to damage within the flood plain. The least costly and least environmentally damaging method of preventing flood damage is to restrict land use within the flood plain. In many cases where structural improvements have been made to the flood channel, at a great cost, additional encroachment on the flood plain, made possible by the new works, has negated any reductions in flood damage potential. Many other pressing needs of environmental management simply defy classification as either water managemenL of land use problems exclusively and are not susceptible to solution by traditional, autonomous water management or land use con troIs. For example, the need for wetlands protection is widely recognized. 36 Many of the benefits of wetlands are water oriented. They filter pollutants, recharge groundwater, store surface water, and reduce the velocity of floodwaters. But they also provide excellent wildlife habitat, timber, open space and recreational areas, which are typical land use considerations. More importantly, the degradation of wetlands, and the loss of their water management functions, generally comes from changing land use patterns, such as conversion to agricultural use or for subdivision development. Although wetlands may be threatened by certain water management actions, such as lowering water levels in a river to provide water supplies or channeling streams to reduce flooding, these actions are generally taken to accomodate land use changes. Unless the land and water management decisions complement each other, wetlands cannot be effectively protected. C. Causes .of the Lack of Integration Although land and water, because of their close physical relationship, are essentially a single resource, and land and water management programs are

PAGE 13

-8-functionally interrelated, these facts have not been adequately reflected in the multitude of decisions, laws and institutions which affect natural resources. Land and water are frequently used and abused, studied and regulated, spoken of and acted upon as though they were not integral parts of the same system. The reasons are complex. The widespread failure to perceive that land and water are interrelated is a primary cause. Few people understand there is a relationship between what is done on the land and what happens to the water and vice versa. Natural processes are unitary whereas human interventions tend to be fragmentary and incremental. The effect of filling the estuarine marshes or felling the upland forests is not perceived as related to the water regime -to flood or drought -nor are both activities seen to be similar in their effect. The construction of outlying suburbs and siltation of river channels are not normally understood to be related -nor is waste disposal into rivers perceived to be connected with the pollution of distant wells.37 Even when individuals do understand, they frequently lack concern for the impact of their actions on the environment. For example, a person whose con-struction company is clearing land from which sediment erodes to smother aquatic life seldom cares enough about that impact to voluntarily pay for the added costs of erosion control. The lack of concern evidenced by such a person results from a deficiency in our system of ethics and values.38 Although the builder would undoubtably view it as "wrong" to smother another human and, indeed, would be appalled at the thought of doing such a thing, there are no similar ethical scruples against smothering all of the non-human life in a section of a stream. Whereas the dominant ethics of our society hold that human life is valuable and not to be destroyed, the living environment presently has no equivalent value and is thus abused at will. Another reason for the lack of concern for environmental effects is that the damage usually does not accrue as an economic cost to the person who causes it. To the contrary, substantial economic benefits may be gained.39

PAGE 14

-9-Because neither ethics nor economics have effectively restrained environmental degradation, government has had to intervene. Government regulation, however, and the actions of government itself have not been adequately inte-grative of land and water management. One reason, of course, is that the people who staff government agencies may suffer from the same ignorance and lack of values as private individuals. They are also subject to political pressure brought to bear by those whose business interests would be thwarted by effective environmental regulation. Other reasons suggested by commentators implicate institutional factors. Government has historically attacked problems in a piecemeal, rather than a comprehensive manner. Numerous single-purpose agencies have been created to deal with specific problems such as the need for roads, flood :protection or irrigation water. The emphasis of these agencies has been on achieving those narrow goals which have been assigned to them. Other factors have been lass 40 lmportant. Many times this approach compounded other problems even as it was helping resolve the one for which it was designed. This occurred because the problem-solver failed to consider secondary impacts, such as stimulus to growth and development, and failed to recognize the synergism involved. Federal agencies themselves have been slow to perceive, and often unable to correct undesirable secondary effects. The reason is that correction often would require a departure from the single-purpose missionoriented role typically thrust on these agencies by legislation-and adherence to the assigned role is the standard by which Congress and client groups measure their effectiveness.41 More efficient and cost-effective methods may be ignored by such an agency when they lie outside the scope of traditional activities. For example, an agency which was created, staffed and funded to build dams is likely to promote the construction of dams to control flooding even when a less expensive alternative would be to implement flood plain management practices, if the latter 42 solution would not be implemented by that agency. As the objectives of government have broadened in recent years to include

PAGE 15

-10the goal of environmental protection, regulation has been implemented in an incremental and disjointed fashion with little regard to how the total system 43 should operate. As problems are recognized, new programs are specifically designed to address them. A legislature which sees a need to regulate the use of water might pass a law with the limited objective of accomplishing that goal. Later, that same legislature might see the need for land use planning, wetlands protection or some other aspect of the problem and pass regulations which bear little logical relationship to each other and are often duplicative, conflicting or inconsistent. The confusion is compounded by a fragmentation of authority at each level 44 of government and be'twa'en levels of government. As new programs are initiated, new agencies are created to administer them. As a result, there is a vast array of functional programs and responsibilities under the jurisdiction of numerous state agencies, units of local governments and special purpose boards, districts and commissions. 4 One investigator has counted 137 federal programs which directly affect land 46 use. In addition there are thousands of local governments, which remain the primary focus of land use control, hundreds of regional organizations, and the states, each with individual, complex bureaucracies. Because of such a splintered organization, it is very difficult to devise and adminster an integrated approach to land and water management. The agencies are often myopic, concerned only with their individual slice of the problem. They may also be jealous of their perogatives and funding among themselves. Much of the fragmentation at state, regional and local levels reflects h d d f f d 1 1 47 t e eman s 0 numerous e era categorlca asslstance programs. State and local governments have, in many respects, become agents for the implementation of federal programs. Substantial funds are made available to accomplish national goals. The grants are administered at the federal level by a number of differ-ent units of the federal bureaucracy. Each of them is limited by detailed

PAGE 16

-11statutory and administrative criteria regarding their expenditure, funding 1 0 0 d 0 01 48 cyc es, account1ng requ1rements an Slm1 ar matters. These federal require-1 do d h 0 49 ments are comp ex, 1verse an non armon10US. If the state or local entity is not organized to mirror the federal organization, there may be substantial difficulty in meeting the program requirements.50 As state and local counter-parts are organized to manage the federal assistance, the fragmentation of o h d 51 government 1S en ance D. Results of the Failure to Integrate and Coordinate Numerous undesirable consequences have flowed from the failure to effectively integrate and coordinate land and water management. Despite considerable progress, the environment is still not being managed as an integrated, holistic, natural system. Numerous decisions regarding development or regulatory activity are being made on a daily basis without adequate consideration of their effect on the r:esource as a whole or on other government programs. The quality of the environment is therefore continuing to be degraded. This decline is occurring despite a proliferation of environmental laws and agencies to administer them. Much of the cause lies, no doubt, in the immensity of the task. Our laws, our institutions and the resources we have committed are probably insufficient to reverse the decline. Bureaucratic resources, like natural resources, are limited and likely to become even scarcer in the immediate future. One must however, whether current approaches are as effective and efficient as they should be. Many programs and agencies have overlapping responsibilities, jurisdictions and requirements. Such duplication tends to waste the resources of both govern-ment and private parties. For example, it is not uncommon for more than one agency to consider the impact of a proposed project on water quality. Each

PAGE 17

-12agency must support the necessary personnel to make the evaluation and may also need to support laboratory facilities. If they are making the same determination, then there is obvious waste. The money expended on two evaluations could be spent more profitably improving the quality of one of them. The waste of duplication also affects private parties. A developer may have to submit multiple applications and otherwise deal with the independent personnel and discrete, sometimes conflicting requirements of the various agencies and levels of the government. As developers consistently emphasize, it is expensive and frustrating to negotiate the maze. Citizen groups also suffer, however, from the waste of scarce donated funds and volunteer time. Appearing at multiple hearings, presenting their views and evidence repeatedly and seemingly never receiving a final decision saps the strength of volunteer organizations. The problems caused by the lack of integration are most acute when programs are conflicting and inconsistent. One arm of government, for example, may be seeking to destroy wetlands, while another seeks to protect them. Although conflict is necessary and beneficial so long as there are different points of view, in many cases too much effort is spent on such interagency struggles. The potential benefits of having programs reinforce one another may also be lost.

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-13SECTION I -THE NEED FOR BETTER INTEGRATION OF LAND AND WATER MANAGEMENT lIanMcHarg;DesignWith Nature 56 (1969); Walker & Cox, Water -An Element Policies, 102 J. of the Urban Planning and Development "DiviSion; Proc. of the Am. Soc. of Civ. Eng. 82 (August 1976).

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-14lOA six inch rise in water over ten acres of wetlands places more than 1.5 million gallons in storage. Hearings, Id. at 501. llResearchers who studied the Nepuset River in Massachusetts concluded that destroying 10% of the wetlands would raise flood stages by 1.5 feet, and destroying 50% would raise floodwaters 3 feet. Id. at 685 n.l The Army Corps of Engineers calculates that a 40% reduction in wetlands along the Charles River would elevate flood stages between 2 to 4 feet. Id. 685. l2For example, after widespread flooding in Pennsylvania, bridges below a wetland that had been preserved were unharmed, while similar bridges elsewhere were destroyed. Id. at 501. 13 Id. at 419, SOL l4F.orested Wetlands, supra note 10, at 51, 111-13. A study of Lake Minnetonka ln Mlnnesoba for the period from June 1969, to May 1970, revealed that although 77,000 pounds of phosphorus were released into the watershed, only 50,300 pounds reached the lake. Wetlands trapped 26,700 pounds. Id. at 509. The 512 acre Tinicum marsh daily reduces about 7.7 tons of BOD, ,4. 9tons of P-P04 4.3 tons of N-NH3 138 pounds of N-N03 and produces 20 tons of 02. Id. at 503. In the Alcovy River system, the water of one tributary which was heavily polluted by human sewage and chicken offal could be reclassified as clean after passing through 2.75 miles of river swamp and upgraded to excellent after 7 more miles. Id. In Wisconsin, researchers concluded that 300 acres of wetlands which had been destroyed would have trapped 200-300 kg/yr of the phosphorus generated by agricultural and urban development of uplands. Id. at 684 n.5. It has been estimated that a 1,000 acre marsh may be able to purify the nitrogenous wastes of 20,000 people. Id. at 421. l5Id., 686 n.6. 16 The runoff from a construction site, for example, may carry 40,000 times as much sediment as the runoff from an unaltered watershed. J. Wildrick, K. Kerns, Urban Water Runoff & Water Quality Control 10 (Dec. 1976)(Virginia Water Resources Research Center). l7There were over 10 billion tons of organic nitrogen in the virgin soil of the United States. Cultivation induces nitrification of organic nitrogen, which is then more susceptible to being washed away as nitrate. Interrelationships, supra note 3 at 50; Hines, supra note 5 at 748-49. 18 19 The surfaces of an urban environment collect large quantities of a variety of noxious pollutants, including particulates from air pollution, petroleum products, litter, animal wastes, road deicing salts, herbicides, fungicides, pesticides, fertilizers and other chemicals. See generally, EPA, Urban JtortmiI8.,ter l1anagement and ,Technology: An 88 (1974) (Hereinafter cited as Assessment). Amy, Pitt, Singh, Bradford & Lagraff, Water Quality Management Planning for Urban Runoff, EPA-440/9-75-004 (NTIS PB 24l-689!AS) (1974). See generally, Interrelationships, supra note '3 at 30-56. 2QNational Water Commission, Water Policies for the Future, 368 (1973).

PAGE 20

-152lXf f'l1'eshwa,ter cooling towers or ponds are used, approximately 12,500 gallons of water are consumed in the production of one megawatt of electricity. Sou.thwe8't Florida Water Management District, Water Management Plan, L-l (1978). Interrelationships, supra note 3 at 61-74. 23D Scott, G. Pfeiffer & D. Gronhovd, "Water as a Parameter for Development of Energy Resources in the Upper Great Plains --Effects on Land and Water Resources of Alternative Patterns of Coal-Based Energy Development," North Dak,ota'R,esearch Report No. 70 (Dec. 1978), N.D.Ag. Ex. Station, Fargo, N.D. Borts & J. Krutilla, Water Rights and Energy Development in the Yellowstone R;i;ver Basin; An Integrated Analysis (1980). 24see Interrelationships 73-74. In Eastern Washington, for example, one study determl,ned that ava1.1ability of irrigation water caused a three to fourfold increase in the value of farmland. Department of Ecology, State of lrrigation Values (unpaginated mimeo)(1975). 25Interrelationships, Id. 26The Federal Water Pollution Control Act Amendments of 1972, P.L. 92-500, were revised and renamed by The Clean Water Act of 1977, P.L. 95-217, codified at 33 U.S.C. 1251-1376 For comprehensive discussions of the water pollution control scheme embodied in the Act, see Hall, The Clean Water Act of 1977, 11 Nat. Resources Law. 343 (1978); Comment, The Clean Water Act of 1977: Great .Expectations Unrealized, 47U. Cjn. 1" Rev. 259 (1978). 27See generally Donley & Hall, Section 208 and Section 303 Water Quality Planning a:ndManagement: Where is it NOW?, 6 Envt'l L. Rptr. 50115 (1976); Federman, The 1972 Water Pollution Control Act: Unforeseen Implications for Land Use Planning, 8 .Urb. Law. 140 (1976); Hines, Farmers, Feedlots and Federalism: The Impact of the 1972 Federal Water Pollution Control Act Amendments on Agriculture, 19 'S.D.L Rev. 540(1974); Jungman, Areawide Planning Under the Federal Water Pollution Control Act Amendments of 1972: Intergovernmental and Land Use Implicat,ions, 54 Tex. L. Rev. 1047 (1976); Phillips, Developments in Water Quality and Land Us.e Planning: Problems in the Application of the Federal Water Pollution Control Act Amendments of 1972, 10 Urb. L. Ann. 43 (1975). 281 l' h' nterre at1.ons l.pS, supra note 3 at 74-77. 29 C. Williams, The IDri.fluence of Environmental Law on Nebraska Land Use, 57 Neb. L. Rev. 730-762, 742-43 (1978). 30 See generally, the authoi.ities cited in note 27. 3lA point source is "any discernible, confined and discrete conveyance from which pollutants are or may be discharged." 33 U.S.C. (14) (Supp. 1980). 32S d' 16 18' ee l.SCUSS1.on supra at notes to 33 Jungman, supra note 27 at 67.

PAGE 21

-16-34EPA, Guidelines for Areawide Waste Treatment Management Planning 4-6 (August 1975). See also, EPA, Preventive Approaches to Stormwater Management 105-135 EPA 440/9-77-001. 35Water Policies for the Future, supra note 20 at 149-50. 36See e. g., Fish and Wildlife Service, Proceedings of the National i'letlands Protection Symposium, Reston, Va., June 6-8, 1977. 37 38 39 40 Ian McHarg, Design with Nature, 65 (1971). Aldo Leopold, "The Land Ethic," A Sand County Almanac (1949). Ian McHarg, supra note 37. See remarks of Senators Jackson and Muskie quoted in Dreyfus and Ingram, The National Environmental Policy Act: A View of Intent and Practice, 16 Nat. Res. 243-262, at 246 and 253 (1976). & Cox, supra note 1 at 86. 42Water Policies for the Future, supra note 20 at 379. 43 J. Noble, J. Banta and J. Rosenberg, Groping Through the Maze, 1-164, 21 (1977). 44Groping Through the Maze, supra note 43 at 21, 27; F. Bosselman, D. Feurer, C. Siemon, The Permit Explosion, 73 (1976). 45Council of State Governments, State Planning: Intergovernmental Policy CoordiNation 1-158, 18 (1976). 46Groping Through the Maze, supra note 43 at 22 47In 1975, an Office of Management and Budget Committee found 1100 different categorical assistance programs. State Planning supra note 45 at lw. 48Id. 47. 49 Id. 12. 50Id. 47. 5lId., 11.

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-17-II. LAND AND WATER MANAGEMENT IN THE STATE OF FLORIDA: EXISTING INTERRELATIONSHIPS Introduction Land and water management is an extremely complex process in Florida. Numerous state, regional and local governmental entities play varying ro1es.1 A bewildering p1ehhora of laws and regulations govern the execution of their responsibilities. The details of their activity are virtually impossible to comprehend. Yet, it is the sum of those actions that constitutes the system for managing natural resources that has evolved in Florida. This section of the report will describe the major laws that currently guide land and water management in Florida. Emphasis will be placed on their interrelationships and on techniques that are being used to integrate land and water management. Subsection A describes the basic administrative structure that has been created to administer these laws. Susbsections B through E then detail the operation of the Environmental Land and Water Management Act of 1972, the Local Government Comprehensive Planning Act of 1975, the Florida Water Resources Act of 1972 and the F10iida State Comprehensive Planning Act of 1972.

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-18-A. Overview of Management Structure As in most states, the government of Florida is divided into legislative, judicial and executive branches. The characteristics of the executive are unique, however. Many functions are carried out by the Governor. He may, for example, appoint the heads of certain executive agencies, subject to the approval of the Senate. Many other powers, though, are exercised by the Governor and independently elected Cabinet officers sitting as a board on which the Governor has only one vote. This board carries different names depending upon the particular duties being performed. Several different types of regional agencies, local governments and special districts also play important roles. 1. State Agencies a. Department of Environmental Regulation The Florida Department of Environmental Regulation (DER) was created by the Florida Environmental Reorganization Act of 1975 as the primary state level 1.. 2 enVlronmenta permlttlng agency. The Secretary of DER is appointed by the Governor. In addition, there is a seven member Environmental Regulatory Commission (ERC) which, representing various interest groups, sets regulatory standards and 3 approves the use of federal grants. Many of the functions of DER are exercised through district offices.4 The specific responsibilities of DER cover a wide spectrum. A primary activity is the regulation of pollutant discharges into the air or water pursuant 4a to the Florida Air and vJater Pollution Control Act. DER also has broad re-sponsibilities,exercised in conjunction with regional water management districts, for the management of water quantity under the Florida Water Resources Act of 1972.5 In addition, DER permits dredging, filling and similar activities in 6 7 waters of the state. The construction of wells, the operational personnel of d 1 8 bl d k" 9 l"d water an sewage treatment pants, pu lC rln lng water systems, so 1 waste

PAGE 24

-19-disposal,lO and hazardous waste management.llDER also has important responsi-12 bilities for coordinating a broad environmental review of power plants, 1 13 d d 1 f '1" 14 power lnes, an certaln major ln ustrla aCl ltles. Besides these 15 regulatory functions, DER also has responsibilities for lake restoration programs, 16 the administration of wastewater treatment plant construction grant programs, 'd 1 17 h d" f Fl 'd' areaWl e waste treatment management p annlng, t e coor lnatlon 0 orl a s 18 public works program and development of Florida's Coastal Zone Management 19 Program. b. 20 Department of Natural Resources The Florida Department of Natural Resources (DNR) in contrast to DER, is headed by the Governor and Cabinet. DNR has similarly broad responsibilities although they are oriented more toward natural resource:management and less toward environmental permitting. One major area of responsibility is to manage the use of marine resources. Seafood dealers are licensed and regulated; the use of seafood is promoted and the taking of various marine creatures such as 21 shrimp, crawfish and oysters is regulated. Substantlal scientific investiga-tion into the biology of these resources is also conducted. With regard to freshwater areas, DNR conducts research and attempts to control the growth of d 22 nOXl0US aquatlc wee s. DNR also has primary .responsibility for protecting and restoring the state's sandy ocean shores, which it does by regulating coastal construction and helping to fund erosion control projects.23 The various state parks and preserves are administered by DNR,24 as are many aspects of the manage-25 ment of all other state lands, especially sovereignty submerged lands. The acquisition of new state lands for conservation and recreation purposes is administered by DNR.26 The containment and removal of pollutants discharged in 27 coastal areas is a duty of DNR.

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-20c. Department of Community Affairs The Department of Community Affairs (DCA) has been given responsibility for most of the state's activities in the area of land use control. The Environmental Land and Water Management Act of 1972 28 is administered by DCA. Under this Act certain large scale developments of regional impact (DRI) are subjected to regional and state scrutiny with review powers in the Governor and C b 29 a 1net. DCA a key role in the DRI review process. In addition, DCA is responsible for administering the Areas of Critical State Concern program, under which the state may intervene in the land use regulatory process of local '. .. 1 30 governments 1n certa1n cr1t1ca areas. Finally, DCA oversees implementation by local governments of the Local Government Comprehensive Planning Act, by which local governments in the state are required to adopt and enforce compre-31 hensive plans covering certain specified elements of concern. The Secretary of DCA is appointed by the Governor. d. Game and Freshwater Fish Commission The Game and Freshwater Fish Commission is an agency with independent 1 32 const1tut10na status. It is governed by five Commissioners, who are appointed 33 by the Governor for staggered five year terms. The Commission exercises the usual powers of such an agency to regulate bag limits, seasons, and techniques for the taking of game and freshwater fish.34 In addition, the Commission has been charged with responsibility for protecting and managing rare, threatened and endangered species.35 In recent years the Commission has become increas-ingly concerned with the need to preserve habitat, control pollution and manage water for the benefit of wildlife. It conducts research and advises other agencies on these needs. e. Executive Office of the Governor A reorganization of the Governor's Office by Governor Bob Graham in 1979 included a consolidation of state planning and budgeting functions under his

PAGE 26

-21-36 control. The responsibility for developing a state comprehensive plan, formerly executed by the Division of State Planning of the Department of Administration was transferred to his office.37 2. RegionalAgencies a. Regional Planning Councils Regional Planning Councils (RPC) play an important role in the management of land and water resources in Florida. Eleven regional planning councils, covering the entire state, have been created by the voluntary agreement of 38 participating local government. They perform a myriad of planning and techni-cal assistance functions. Regional planning typically perform A-95 39 d "f" 1 1" "" 40 d h" 1 reV1ew, con uct var10US unct10na p ann1ng act1v1t1es, prOV1 e tec n1ca assistance to local governments in preparing local plans, and revlliew certain large scale land development projects, i.e. developments of regional impact, (DRI).42 In addition, the RPC's have been given statutory authority to appeal local government decisions regarding developments of regional impact to the Governor and Cabinet.43 As of January 1, 1981, the effective date of the Florida Regional Planning C "1 A 44 ""fi h h b d" h '" d ounC1 ct, s1gn1 cant c anges ave een ma e 1n t e compofLt10n an status of Regional Planning Councils. The Governor is given authority to specify the 45 46 geographic area of the RPC's, appoint one third of the membersh1p, and review rules of the RPC's relating to functions designated to them by the state.47 In addition, the RPC's are now required to adopt regional policy p1ans,48 and to use them as the basis for review of DRI's, local government comprehensive plans, and federally assisted projects subject to the A-95 review process.49 These plans must be consistent with the plans of the Water Hanagement Districts and the Department of Environmental Regu1ation.50 The latter two agencies have been given authoritty to revise the regional plans to make them consistent, with a right

PAGE 27

-22-51 of appeal to the Governor and Cabinet remaining in the RPC. b. Water Management Districts Five regional water management districts (WMD) organized along hydrologic boundaries and covering the entire state, exercise broad water management authority pursuant to the Florida Water Resources Act of 1972.52 Although much of the authority of the water management districts has been actually dele-gated to them by DER and they are subj ect to the 'lsupervisory authority of DER, in fact the water management districts are largely autonomous. Nine-member governing boards, appointed by the Governor, direct the water management districts.53 Their responsibilities include the duty to conduct scientific investigations h h' 1 f' 1 54. lnto t e tec nlca aspects 0 reglona water resources, consumptlve use per-.. h' 55 1 f h mlttlng aut orlty, power to regu ate sur ace water management systems suc as d d d' k 56 h f 1 ams, lmpoun ments or ralnage wor s, t e preparatlon 0 a reglona water use plan,57 the permitting of artificial recharge projects,58 the permitting of well construction59 and the licensing of water well contractors.60 All such decisions b 1 d h G d C b 61 may e appea e to t e overnor an a lnet. In addition, unlike any other state or regional agency, the HMD's are authorized to levy ad valorem taxes to f h ... 62 lnance t elr actlvltles. 3. Special Districts a. Regional Water Supply Authorities Regional Water Supply Authorities may be established by local governments, subject to approval by the Governor and Cabinet, for the purpose of constructing and operating regional water supply facilities. There are at present only two such authorities. The West Coast Regional Water Supply Authority was created in an attempt to resolve a long-standing "water war" between Pinellas, Pasco, and Hillsborough Counties. The Withlacoochee Regional Water Supply Authority was apparently created as a defensive move in an attempt to preclude the former

PAGE 28

-23-authority from taking water from that area. b. Drainage Districts (Water Control Districts) Much of Florida is wetlands and one of the predominant historical trends has been for landowners to drain their lands. The State has long encouraged such activity by creating or allowing landowners to establish special drainage dis-tricts. Such districts are necessary to allow landowners to collectively raise money to build and operate works. In addition, unwilling landowners may be forced to participate. Although many districts were created by special act or by general act of local app1ication,64the General Drainage Act of 1913,65 codified as Chapter 298, Florida Statutes, provided a popular a1ternative.66 Under Chapter 298, a majority of the landowners of contiguous wetlands can petition the circuit court and have a water control district created. A board of supervisors, elected by landowners in proportion to the extent of their holdings, conducts the affairs of the district. A plan of reclamation, approved by the court, guides the drain-age project, and taxes on the benefited land pay for it. c. Other Special Districts In addition to the special districts described above, Florida law provides for the creation of numerous other types. Soil and water conservation districts, with extensive authority to adopt land use regulations, may be estab1ished.67 Watershed improvement districts, with ad valorem taxing authority, may be created b d f h '1 d d' 68 as su lstrlcts 0 t e SOl an water conservatl0n lstrlcts. 69 preservation districts may be created by county governments. Beach and shore Mosquito control d 70 d' 71 d 11 h 1 d' 72 lstrlcts, navlgatl0n lstrlcts an mlsce aneous ot er speCla lstrlcts are authorized and exist in profusion throughout the state.

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-24-4. LocalGoverrtmertts Virtually all land use decisions in Florida are made by local governments. In addition, they sometimes exercise water management functions, particularly with regard to drainage control and water pollution abatement. There are three types of general purpose local governments in Florida: municipalities, chartered counties and nonchartered counties. Although each of them derives its power from the state, through the Constitution or by Legislative Act, the specific sources differ. Their respective authorities therefore differ somewhat also. Municipalities derive their power from Article VIII, of the Florida 73 Constitution and the Municipal Home Rule Powers Act. These municipal home rule powers generally authorize municipal legislation concerning any subject upon which the State Legislature could act except where preempted by the state or a charter county. Municipalities thus have authority to enact building, zoning, subdivision and environmental protection regulations. Non-charter counties have similarly broad powers.74 Charter counties have whatever powers are con-75 fered by the charter. One law of particular interest that affects all local governments in Florida is the Local Government Comprehensive Planning Act of 1975 (LGCPA).76 In essence, this law requires local governments to adopt comprehensive plans for their growth and development. These must include specified elements and future land use decisions must be consistent with the plans. Non-binding review by state','. and regional agencies is also provided for.

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-25-B. The Environmental Land and Water Management Act of 1972 (Ch. 380) The State of Florida's greatest direct involvement with land use is through the Environmental Land and Water Management Act of 1972 (ELA).77 Closely modeled after the American Law Institute's (ALI) Model Land Development 78 Code, the ELA is an attempt to force local governments to consider the impact on state and regional interests of land development decisions while leaving most of the power to make those decisions at the local level.79 A basic premise of the Act is that the state should become involved with only a small number of land use decisions those with regional or statewide impacts.80 Local development decisions are primarily left to local communities, while the state 81 participates in regulating development in "areas of critical state concern" d "d 1 f 1 ,,82 an eve opments 0 regl0na lmpact. Although many details of the process have been changed in recent years, the basic thrust of the regulatory framework remains unchanged. 1. Areas of Critical State Concern The ELA empowers Florida's Governor and Cabinet, sitting as the "Administra-tion Commission", to designate selected lands as "areas of critical state con-cern," thereby invoking a measure of state control over the content and admini-83 stration of local land development regulations in the area. As orginally enacted, an area could be designated if it fit within one of the following categories: (a) An area containing, or having a significant impact upon environmental, historical, natural, or archaeological resources of regional or statewide importance; (b) An area affected by, or having a significant effect upon, an existing or proposed major public facility or other area of major public investment; (c) A proposed area of major development potential which may include a proposed site of a new community, designated in a state land development plan.84

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-26-With Florida's extensive, unique natural resources and rapid development, much of the state could obviously qualify under one of these categories, although the legislature limited designation at anyone time to no more than 5% of the state's area.85 Accordingly, in 1978, in the case of Askew v. Cross 86 Key Waterways, the Supreme Court of Florida invalidated that section. The basis of the Court's decision is a venerable doctrine prohibiting delegation f 1 "1 87 o eg1s at1ve powers. According to the non-delegation doctrine, a grant of powers by the Legislature to an administrative agency is invalid unless guidelines and standards sufficient to constrain the unbridled discretion of the 88 agency are attached. In the view of the court, the grant of power to desig-nate areas of critical state concern was essentially unconstrained by the broad criteria of the statute and was thus an unconstitutional delegation of the legislative powers. 89 Amendments enacted in 1979 attempt to cure the deficiency. First, the affected areas were redesignated by the Legislature, thereby rendering them non-administrative actions. Second, more detailed standards were added to the act for guidance of the Commission in making designations.90 The original ELA allowed the Commission to make a designation based on a report by the state land and planning agency and its own deliberations. Now, designation must be preceded by the appointment of a Resource Planning and Management Committee for the area, which must be given an opportunity to allow local governments to voluntarily work together to alleviate the problems com-pe11ing designation. This program will be discussed at length in a later section 91 of this report. "Principles for guiding development of the area" must be specified at the d" d 92 t1me an area 1S eS1gnate. A moratorium on development is specifically prohOb" d93 11te Local governments in the area then have six months to present land development regulations to the Commission which "comply" with the specified

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-27" "1 94 prlnClp es. If that does not occur, the state land planning agency, which is currently the Department of Community Affairs (DCA), must submit to the Commission, within 120 days, recommended land development regulations to supercede 95 or supplement those of the local governments. These must be adopted by the Commission before twelve months have transpired since the date of designation, d"" "11" 96 or eSlgnatlon automatlca y termlnates. Until the Commission has approved or adopted land development regulations a local government may grant devel-opment permits in accordance with such land development regulations as were in effect immediately prior to the designation of the area ,,97 Afterwards, it is the responsibility of the local governments to adminster and enforce the 1 98 d f h 1 1 h 1 new regu atl0ns, an to con orm t e oca government compre enSlve p an to h "" 1 f "d" d 1 99 t e prlnClp es or gUl lng eve opment. If the administration of them is inadequate, the DCA "may institute appropriate judicial proceedings .. to compel 100 proper enforcement Development orders of the local government in an area of critical state concern may also be appealed to the Land and Water Ad" d" C"" 101 JU lcatory ommlSSlon. 2. Development of Regional Impact The state also participates, under the ELA, in regulating developments of regionalimpact (DRI). The statute defines a DRI as any development, which, because of its character, magnitude or location, would have a substantial 102 effect upon the health, safety, or welfare of citizens of more than one county." The Aministration Commission has adopted guidelines to be used in determining which particular developments shall be presumed to be of regional For example, a petroleum storage facility would be presumed to be a DRI if located within 1,000 feet of navigable waters and with a storage capacity of over 50,000 104 barrels. A sliding scale threshold applies to residential developments. Thus, in a county with a popUlation of less than 25,000 a development of over 250 dwel-ling units is a DRI while the limit is 3,000 units in a county with a population

PAGE 33

-28-in excess of 500,000.105 Although the statutory definition is apparently selfexecuting,106 a developer may obtain a binding letter of interpretation from the DSP as to whether a development would be a DRI, which is binding on all 1 1 1 107 state, reglona or oca agencles. The specifics of regulation depend upon the jurisdiction in which the DRI is to be built. lOB If there ar.e no land development regulations in the juris-diction, the developer is merely required to notify the DSP and local authorities of his intentions to build.l09 If no regulations are enacted or the area is not designated as being of critical state concern within 90 days, then development may proceed unimpeded by the ELA.110 If development is proposed within an area of critical state concern, then it must meet the requirements of the designation and associated regulations. 111 The designation may speei+ 112 fically activate the DRI process for the area. In most instances, the pro-posed DRI will be in a jurisdiction which has adopted land development regu-lations. An application must then be made to the local government for develop-113 ment approval. Procedures for coordinating this application with other permitting agencies were recently enacted and will be discussed in a later 114 section of this report. Although the local government is empowered to initially approve or deny an application, the regional planning agency is charged with the duty of evalu-ating the proposed developments' regional impacts and making a recommendation to the local government. It must consider "whether and to the extent which: (a) The development will have a favorable or unfavorable impact on the environment and natural resources of the region. (b) The development will have a favorable or unfavorable impact on the economy of the regio.n. (c) The development will efficiently use or unduly burden water, sewer, solid waste disposal, or other necessary public facilities. (d) The development will efficiently use or unduly burden public transportation facilities.

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-29-(e) The development will favorably or adversely affect the ability of people to.tind adequate housing reasonably accessible to their places of employment. (f) The development complies with such other criteria for determining regional impact as the regional planning agency shall deem appropriate, including, but not limited to, the extent to which the development would create an additional demand for, or additional use of, energy, provided such criteria and related policies have been adopted by the regional planning agency pursuant to 120.54.115 The local government in turn must consider whether, and the extent to which: (a) The development unreasonably interferes with the achievement of the objectives of an adopted state land development plan applicable to the area; (b) The development is consistent with the local land development regulations; and (c) The development is consistent with the report and recommendations of the regional planning agency submitted pursuant to subsection (8) of this section.116 There is no requirement that the recommendations of the RPC be followed, but the decision regarding issuance of a development order may be appealed by either the developer, the Regional Planning Council, or the Division of State Planning to the Land and Water Adjudicatory Commission. 117 A final decision on whether to allow development is then made by that state level body.118 3. Regulating Areas of Crit.ical State Concern to Protect Water The history of the ELA furnishes an excellent example of the way land use controls may be used to protect water resources. The Environmental Land Act itself was proposed by Governor Askew's Task Force on Resources Management, which had been directed by him lito follow up on the recommendations of the Governor's conference on water management problems in South Florida "ll9 The ELA was thus a response to an environmental crisis which had first received signi:ficant attention, as is often the case, because of problems of water supply. Water has continued to dominate the process. Those areas which have been designated as being of critical state concern thus far have been brought under

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-30-the Act largely to protect their vital resources. Within a year after passage of the ELA, the legislature designated a part of the Big Cypress Swamp as an f .. 1 120 area 0 crltlca state concern. The Big Cypress is an enormous swampy area occupying most of the southwestern end of the Florida peninsu1a.121 Habitat is extremely varied, inc1ud-ing pine flatwoods, hardwood hammocks, cypress swamps, wet prairies, and saw-122 grass marshes. The location, depth and timing of inundation by water are extremely important in determining habitat types. The difference between a f1atwood or hardwood hammock and a cypress swamp results from a relatively minor difference in elevation. Freshwater flow from the Big Cypress is also vital for regUlating salinity in the adjacent highly productive mangrove estuaries of Everglades National Park. The entire region is thus extremely sensitive to alterations in the distribution and flow of surface waters. Drainage and development threatened to ruin The Big Cypress, and local government officials had taken little action to prevent it.123 Development of Golden Gate Estates by Gulf American Land Corporation, for example, was per-. d 124 mltte In Golden Gate Estates an intricate grid of canals and roads was constructed to drain and provide access to a 173 square mile tract of the Big Cypress. The land was subdivided and sold to buyers allover the world. The water table was reduced, the hydroperiod shortened, the incidence of fires increased, the coastal estuary disrupted, and the specter of water shortages d .. 125 ma e lmmlnent. The Division of State Planning proposed regulations and boundaries for The Big Cypress Area of Critical State Concern which were designated to prevent duplication of the Golden Gate Estates tragedy in the area.126 Threefourths of the watershed was to be protected by stringent regu1ations.127 Intense political opposition forced a drastic reduction in bourtdaries and weak.y f h l' 128 en1ng o. t e reguatl0n.

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-31-The final regulations which the Commission adopted are fairly restrictive.129 No more than 10% of a site may be altered and no more than 50% of 130 that may be covered with a non-permeable surface. Other sections primarily 131 regulate the hydrologic aspects of land development. For example, if any dredge or borrow ponds are constructed they must aligned in the direction of local surface water f10ws .. and must be designed to ... release storm-waters as sheet flow from their down-stream end into unaltered areas of vege tation.,,132 New drainage facilities are required to re1ease water in a manner approximating the natural local surface flow regime, thro.ugh a spreader pond or performance equivalent structure or system, either on sitle or to a 133 natural retention, or natural filtration and flow area." The first area to be designated as an area of critical state concern by h C f h G S' 1 F1 'd 134 t e ommlSS10n was part 0 t e reen wamp ln centra orl a. This area a perched swamp --is both threatened by development and hydrologically vita1.135 The threat being adjacent to the booming Orlando Disney World area. The hydrologic value of the Green Swamp lies in the fact that it is the source of five major rivers and one of the most important recharge areas in the state for the Floridan aquifer, Florida's main source of groundwater supply. The Green Swamp was designated primarily to protect its ability to supply good 1 136 qua lty water. 137 Regulations subsequently adopted for the area reflected this concern. For example, the percentage of a site's area which may be altered is limited d h th 1 d b'l" f' '1 ,,138 ln accor ance Wlt e natura ralnage capa 1 ltles 0 lts SOL No more 139 than 50% of the altered area may be covered with a nonpermeab1e surface. 140 141 Large nonpermeab1e surfaces, and new drainage systems must release waters .. in a manner approximating the natural surface water flow regime." Protection h b '1' 142 h'b" f d' h kh 1 143 or rec arge capa 1 lty, pro 1 ltl0n 0 lSC arge lnto sln 0 es, protectlon

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-32-of the "water retention and filtering capacity of wetlands, ,,144 and floodplain building restrictions are all addressed by the regulations. The standards and regulations of the Southwest Florida Water Management District regarding ground 145 water withdrawals are incorporated by reference. 4. Use of the DRI Process to Protect Water Considerations of the impact on water resources have also played a deter-minative role in the evaluation of developments of regional impact. The first case decided on appeal by the Cabinet involved the proposed Three Rivers develop-ment, which was to be a large residential community located about 20 miles north 146 of Orlando in Lake County. Although supported by Lake County, the develop-ment was opposed by the East Central Florida Regional Planning Council.147 A primary reason for its opposition was concern for the effects of sewage and stormwater runoff on water quality of the adjacent Wekiva River, which the Council had recommended for designation as a "scenic and wild river.,,148 A hearing examiner appointed by the state agreed with the Councl and his report was 149 accepted by the Cabinet, thus blocking the uncoordinated development. Another example of how the DRI process works to protect water resources is the Estuaries, a proposed development of regional impact in Lee County adjacent to Estero Bay in Southwest Florida.150 The developer proposed to develop a 6,500 acre tract of land15l with 26,500 high density dwelling units.152 The development would house 42,000 permanent residents, increasing to a seasonal population of 74,000.153 Because approximately 92% of the property is wetlands, major filling would be necessary for deve10pment.154 The adjoining waters of Estero Bay and San Carlos Bay are "relatively pristine coastal estuaries.,,155 E t B h b t "d SA" P 156 d b h s ero ay as een se aSl e as a tate quatlc reserve an ot estuarles have been recommended for protection by an area of critical state concern d 157 eSlgnatlon.

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-33-In its evaluation recommending disapproval of the project, the Southwest Florida Regional Planning Council concentrated heavily on potential harmful impacts on the water quality of the estuaries. Drainage from impervious 158 159 surfaces and grassed areas carrying a heavy load of pollutants would eventually be routed into the estuaries. The filtering effect of a larger interceptor canal proposed by the developer was untested and subject to theore-. 1 d" 160 t1.ca l.spute. Because of this threat to the water Carlos Bay and Estero Bay Aquatic Preserve the Regional Planning Council recommended denial of the project.16l Another impact evaluated by the Council was the proposed development's demand on the area's freshwater supplies.162 The developer proposed to meet the sizable potable water demands of the project163 by drawing upon a nearby aquifer known as the Sandstone Aquifer,164 the capacity of which, according to the U.S. Geological Survey, had not been ascertained.165 In the event suffi-cient water could not be obtained from the Sandstone Aquifer, the developer proposed to build a reverse osmosis plant to desalinate waters from the lower H h d S "f 166 art orne an uwannee aqu1. ers. These aquifers, however, are also of unknown capacity and currently serve several other nearby communities.167 Non-potable water for irrigation of open spaces and recreational areas in the project would be drawn from effluent discharged from a planned sewage treatment facility, or barring that, from the lower Hawthorne and Suwannee aquifers.168 The conclusion of the Planning Council staff with respect to these plans was that insufficient data eXisted to determine whether the project would unduly burden areawide water resources and for that reason the Council recommended 169 against approval. Based on the negat;i..ye ;t;eGoJIll.l).endll,tiQns of the RegiQna), l?lCJ,nniIlg C(>unci,l, the Lee County Board of County Comm.issioners refused to issue a favorable develop-ment order. The developer appealed to the State Cabinet, and a state appointed

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-34-hearing examiner held lengthy hearings. Considerations of water quality and availability a major role in the hearings and the local decision to 170 prohibit the development was upheld. 5. Effectiveness of the ELA as a Device for Integrating Land and Water Management The Environmental Land Act represents an ambitious first step toward the integation of land and water management. Powers to control land use under the ELA are being used to protect the quality and quantity of water in areas of critical state concern and in watersheds affected by developments of regional impact. The effectiveness of the ELA in achieving these results, however, is limited by a number of restrictions born of legislative compromise with its opponents. First, and most obvious is the 5% cap on designating areas of critical state concern. Much more of the state could benefit from state supervision. Wetlands alone constitute 24.7 to 34.02% of the state's area.17l The entire coast should propably be designated as an area of critical state concern, because of its tremendous importance to the entire state and because of the development pressures which are being brought to bear on it.172 Designation as areas of critical state concern could also be used to restrain development in regionally important floodplain and wetland areas. Similarly, those areas of the state which are gwowing beyond the limits which can be supported by their water resources and which are beginning to look toward other regions of the state for water, would be restrained by designation as areas of critical state concern. The 5% limit effectively forecloses these possibilities, however, which is probably what was intended. A 6econd majQ:r, ;I,ies ;i,n the flrea ot" exempUons f);om regulation. An 173 agricultural exemption may be found in the definition of development. Development, as defined by the Legislature, does not include:

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-35. The use of any land for the purpose of growing plants, crops, trees and other agricultural and forestry products; livestock ; or for obher agricultural purposes.174 Th f 1 d d 1 1 175 b d 1 ere ore, 'an eve opment regu atIons may not e use to contro agrIcultural development of land. This is extremely unfortunate. Vast areas of the state are being cut, bulldozed, burned and drained for agricultural expansion. Mix:ed har4wood forests and swamps are rapidly being replaced with either a pine tree mono culture or cattle pasture. The environmental effects of this development are as serious as that of building houses, because it is so 176 extenSIve. Another exemption comes from the creation of certain vested rights in areas f .. 1 177 o crltlca state concern. The statute prohibits limiting or modifying in any; way ... the rights of any person to complete any development that has 178 been authorized by subdivision approval, or by a building permit or other authorization to commence development on which there has been reliance and a h f ..' ,,179 c ange 0 posltlo.n. Furthermore, "if a developer has by his actions in reliance on prior regulations obtained vested or other legal rights that in law would have prevented a local government from changing those regulations in a way adverse to his interests, nothing in this chapter authorizes any governmental agency to abridge those rights."l80 There are many areas of the state which have been subdivided or platted but where there has not been much actual building. Two particularly egregious examples are Golden Gate Estates near Naples and the Melbourne-Tillman Drainage District.18l Because of this section, both are exempt from regulation despite a clear and urgent need to at least control the manner in which building occurs. Many parts of the Charlotte Harbor 182 Area are similarly exempted. The protection of "vested rights" is a particularly expansive loophole because the Administration Commission is prohibited from establishing a

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-36-183 moratorium on development in the designated area and the principles for guiding development do not become effective until after a legislative review.184 A substantial gap is thus created between the date of designation and the effectiveness of new land development rules during which developers may obtain plat or subdivision approvals. Their rights would vest and they could not be regulated under the new principles. Numerous specific time limits have been included in the ELA within which 0 0 d 185 agency act10n 1S requ1re In most cases these seem unrealistic. For example, the Regional Planning Council must evaluate the application, prepare a report, and give the developer "a reasonable opportunity to present evidence" 186 regarding the contents of the report within a period of 50 days. This is an insufficient period of time for an agency with limited personnel to properly assess the many environmental, economic and social impacts of a large develop-ment. The ELA gives only the owner of the property, the developer, the Regional Planning Councilor the Division of State Planning standing to appeal the local government's decision regarding a DRI.187 The courts have so far strictly o d hO 0 0 188 1nterprete t 1S prOV1S10n. The Model Code is superior in this respect, allowing any other person who was a party at the local hearing to appeal the 1 1 do 0 189 oca eC1S10n. Interested parties have a good opportunity under the Model C do 0 0 h h 0 190 o e to part1c1pate 1n t e ear1ngs. The exemptions for agricultural development of land and II.'lested rights" are weaknesses shared by the DRI process with the regulation of areas of 191 critical state concern. State authority to control development in juris-dictions with no land development regulations is too limited. Developers may conspire with local government. :officials to avoid DRI review192 and the state's only recourse is to designate the area as one of critical state concern within 193 90 days.

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-37-Another problem lies in the definition of a DRI. The statutory definition 194 is very broad and potentially applicable to a broad range of developments. The administrative guidelines and standards, on the other hand, are extremely 195 They include only a few types of development, ignoring the other narrow. significant 196 classes; there are inordinately high thresholds for the types of development old d 197 lnc u e ; they make no provision for classifying as DRI develop-ment which, because of their location, may have significant extraterritorial impacts, such as developments in prime aquifer recharge areas, wetlands, barrier islands, or riverine flood plains.198 This weakness is probably attributable to the fact that legislative approval of the guidelines is necessary.199 Although the statutory definition is self-executing,200 so that develop-ments which are not included in the administration guidelines can be regulated as DRI, another section may effectively preclude this result. Developers are entitled to seek a binding letter of interpretation as to whether a proposed project would be a DRI. These letters are presumably issued using the guide-lines. If a letter is issued stating that a proposed development is not a DRI, then other parties are barred from challenging that determination in the future and the development could never be forced to undergo a DRI review. Since regional planning councils bear the primary burden of analyzing applications for construction of DRI it is extremely important that they have sufficient financing to hire competent personnel to conduct the necessary studies. They should not be dependent for funding on the local governments whose decisions the RPC may have to appeal. It would also be advantageous for h b d o f h RPC 0 d h h f dO 0 201 t e oun arles 0 t e s to COlnCl e Wlt t ose 0 water management lstrlcts. As originally enacted, the ELA made inadequate provision for the review of DRIs by agencies other than the regional planning council and local government. The specific expertise of other agencies should also be used. In particular,

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-38-review by the water management district and the Department of Environmental Regulation regarding the proposed development's impact on regional water resources is desirable. The statute now requires other agencies, if requested by the RPC, to review the proposed development and offer written recommenda-. h h f h' d" 202 t10ns on matters W1t 1n t e area 0 t e1r Jur1S 1ct10n. These reports must then b? incorporated verbatim in the RPC report, although dissenting views may also be attached. Where permits have been issued by DER or a water management district, however, the RPC is prohibited from offering any contradictory recommendations. This latter provision appears intended to create the appear-ance of consistency by stifling conflicting opinions. In general, however, the new requirements would appear useful for stimulating the joint, coordi-nated interagency review of DRI.

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-39C. The Local Government Comprehensive Planning Act of 1975 (Ch. 163) Land use control has traditionally been the domain of local government officials. By choosing to allow state intervention in only limited situations pursuant to Chapter 380, the Florida Legislature made the policy decision to continue giving local governments the bulk of responsibility for regulating land development. That was a task, however, that most local governments had never responsibly exercised. A policy statement in 1970 of the Southeastern Regional Assembly spoke of the problems of urbanization and stated: The problems are also those of local governments unprepared for meeting urban problems. The situation is further compounded by a rapidly expanding population and their often unresponsive elected representatives; neither are yet willing to recognize the cost of being urban and the ominous implications of unplanned future growth ... For lack of land use controls and plans to guide and coordinate growth, subdivisions hastily built a decade ago have generated the school, transportation, and sewage crises of today. 203 The Local Government Comprehensive Planning Act of 1975 204 was enacted as a corollary of Chapter 380 205 to stimulate and guide the development and 206 implementation of comprehensive plans by local government. It contains two essential mandates: (1) 207 Local governments are required to adopt comprehensive plans. (2) 208 Development must conform to the plan. All local governments in Florida, including counties, municipalities, d 1 d" b h A 209 an certaln specla lstrlcts, are su Ject to t e ct. Approximately 460 210 local governments are thus regulated. Each local government was required 211 to officially designate a local planning agency by July 1, 1976 and have adopted a comprehensive plan by July 1, 1979.212 The Act also required the state land planning agency to grant two one year extensions upon a showing of d f h ff h 213 goo alt e ort to meet t e statutory requlrements. The form and makeup

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-40of the local planning agency is only loosely prescribed.2l4 It may be a 1 1 1 "" 215 1 "d 216 "I f 1 1 oca p ann1ng comm1SS1on, p ann1ng epartment, or counC1 0 oca ff" "1 217 government 0 1C1a s. In one instance a single city commission was desig-218 nated. The local planning agency has responsibility for recommending a plan for adoption by the local governing body and for monitoring its subseff" 219 quent e ect1veness. The Local Government Comprehensive Planning Act specifies a number of 220 elements which must be included in a plan. Each element encompasses a particular problem for which the plan is required to propose a solution. A land use plan element is required to designate the "proposed future general distribution, location, and extent of uses of land .. for various categories 221 of use. Another required element is the projection of needs for sewer, solid waste, drainage, and potable water facilities and the correlation of these needs with the land use element.222 The plan must specifically address the bl f h "d h f "1"" 223 pro ems 0 ow to prOV1 e t e necessary aC1 1t1es. A conservation element must be included which provides for "the conservation, development, utiliza-. d fl' h ,,224 t10n, an protect1on 0 natura resources 1n t e area ... Additional 225 required elements are a traffic circulation element, a recreation and open 226 227 228 space element, a housing element, a utility element, and, for those areas 1 "h 1 1 "1 229 y1ng 1n t e coasta zone, a coasta zone protect10n e ement. There is also a number of "optional elements," which may be included in a plan, but d 230 are not requ1re Optional elements are allowed for planning such aspects f h 231 232. 233 b"k o t e transportat1on system as mass trans1t, ports, a1rports, 1 e h 234 d' lk 235 d ff k' 236 pat s, pe estr1an wa ways, an 0 -street 1ng. Other optional 1 "d fbI" d f "1"' 237 bl" b "ld" 238 e ements .prOV1 e or pu 1C serV1ces an aC1 1t1es, pu 1C U1 1ngs, d d d "239 d 1 240 f 241 h' 1 recommen e commun1ty eS1gn, area re eve opment, sa ety, 1stor1ca preservation,242 economic development,243 and other appropriate needs.244

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-41One of the most important aspects of the Act is its requirements for consistency and coordination. All elements of the comprehensive plan must be consistent with each other.245 Although the term "consistent" is unde-fined, it would appear to mean, for example, the land use element should not plan for industrial development of an area which the water supply element plans to use of aquifer recharge. Similarly, the transportation element should not plan to pave a valuable wildlife habitat slated for preservation. Coordination with the plans of adjacent local governments, the region and the state is! also required as "a maj or obj ective of the local comprehen-246 sive planning process." The plan must "include a specific policy statement indicating the relationship of the proposed development of the area to the comprehensive plans" of those other entities.247 An intergovernmental coordi-nation element, "showing relationships and stating principles and guidelines to be used in the accomplishment of coordination ,,248 must be prepared. This element is required to "demonstrate consideration of the particular effects of the local plan ... upon the development of adjacent areas, the 1 d h h 1 249 reg10na an testate compre enS1ve pan. Intergovernmental coordination is further encouraged by provisions for review of the plan by other governments, state agencies and the public. Sixty days before adoption, a copy of the plan must be sent to the Division of Local Resource Management,250 to the Regional Planning Council,25l to the county if the plan is prepared by a municipality or special district,252 and to any other government agency in Florida which has requested one.253 The Division of Local Resource Management then must distribute the plan to other appropriate f h' d 254 state agenc1es or t e1r reV1ew an comment. The Division of Local Resource Management is then required to comment in writing on the plan, specifying any b t' d k' d' f d' f' 255 o Jec 10ns an ma 1ng recommen at10ns or mo 1 1cat1on. Review by DLRM

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-42-should be primarily directed toward the local plan's impact on the state comprehensive plan and the activities of other state agencies.256 Similarly, the Regional Planning Council may comment on the relationship of the local 257 plan to any regional comprehensive plan. The local governing body must respond in writing to these comments within four weeks.259 All comments and 260 replies are public documents. In addition, procedures to facilitate public 261 participation and input to the plan are mandated. The local government is unconstrained, however, by the comments or reviews it receives. Although it is required to "consider all comments received from any person, agency or government,,,262 it may "adopt, or adopt with changes or amendments, the proposed comprehensive plan .. despite any adverse comment received. 1,263 In many respects the Local Government Comprehensive Planning Act was a tremendously progressive step toward integrated land and water management in Florida. At no other level of government are those functions so unified as at the local level. Because of this Act, many local officials have been forced to sit down and grapple with the problems of land and water us.e in a unified and holistic manner. The process of developing a comprehensive plan necessarily requires an integrated approach. Many innovative and effective programs have been stimulated by the process. Certain deficiencies have ham-pered the effectiveness of the Local Government Comprehensive Planning Act, however, and they must be examined. First, the substance of the plans is not controlled. A local government can go through the requisite procedural motions of planning and never alter the existing pattern of development. Many have done so. Good planning involves looking at natural systems and human needs and from that insight d "d" "f h h d d h t d"" d 1 d 264 eCl lng 1 wen, were an un er w a con ltl0ns eve opment may procee Too many planners recite platitudes, juggle statistics and then draw a few

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-43multi-colored maps in whatever configuration local real estate developers have demanded. The LGCPA provides no method, other than persuasion, for the state to ensure that good planning takes place. Second, there is no effective method of ensuring consistency of a local plan with the plans of other local governments, the state or regional entities. Although provisions for formal review help to encourage coordination, in many cases plans are incompatible and inconsistent. Sometimes this occurs because the reviewing agencies do not give their responsibility the necessary atten-tion and effort. Budgetary limitations may effectively preclude the substan-tial commitment of qualified s time that is needed for the analysis of plans and the drafting of recommendations for improvement. In other instances, the local governing body may simply reject proffered advice and choose to adopt a plan that is inconsistent with those of other agencies or units of government. There is no means for resolving such conflicts. Voluntary cooperation has had some success, however, and is to be commended where it occurs. The efforts of the South Florida Water Management D 1 I bl h d 265 Th D h 1str1ct are partlcu ar y nota e 1n t 1S regar e 1str1ct as arrange-ments with all of the counties within its jurisdiction that provides for participation by technical staff in their comprehensive planning activities. District staff advise the local governments as to the effect of local plans on water resources and whether they are consistent with regional water management plans. There is no requirement for a local government to accept the advice of the District, however .. These deficiencies could be remedied by giving the state and regional agencies a stronger role in the local governments' .comprehensive planning process, together with the personnel to adequately perform that role. Consis-tency of local plans with state plans, regional plans and the plans of other

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-44-, 266 local governments could be mandated. An entity established at the state level could be given authority to modify local plans to achieve consistency d 1 fl 267 an reso ve con lct. Although a recent gubernatorial task force recom-d d h f h d b f h 268 men e suc re orms, t ey 0 not appear to e ort comlng. One certain prediction is that the plans which are now being adopted will not moulder unused on the dusty back shelves of local libraries. They have 269 a powerful legal status. All land development regulations, all land develop-ment and "all actions taken in regard to development orders" must be "consis270 tent" with the adopted comprehensive plan. The precise meaning of the .. 1 271 conslstency requlrement lS not c ear. The statute offers no definition. Courts, however, are specifically authorized to consider the relationship of the comprehensive plan to challenged governmental action272 and much litigation focusing on this term is expected.

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-45-D. The Florida Water Resources Act of 1972 (Ch. 373) 1. History Land development in Florida is inextricably dependent on water management. Vast areas of the state are naturally subject to frequent inundation. Early settlers saw the water as an obstacle to productive use of the land and emphasized the construction of drainage works to remove it, thus allowing agricultural and residential development. Hundreds of single purpose drainage d 274. 1 d' hIE 1 d D' D' 275 lstrlcts, lnc u lng t e arge verg a es ralnage lstrlct, were formed to remove surface water from the land. In most instances, the water was simply dumped into the sea. The problems created by overdrainage and the destruction of wetlands continue to afflict Florida. 276 They include a lack of sufficient water in storage during periodic droughts, increased flooding during wet periods, salt water intrusion, proliferation of exotic plants, destructive fires, loss of soils, deterioration of water quality, and disruption of estuarine processes. A more balanced approach to water management began with the formation of the Central and Southern Florida Flood Control District in 1949. 277 The immediate impetus for the formation of the District was provided by a major hurricane in 1947, which devastated the lower east coast of Florida and graphically demonstrated the need for further flood control measures. How-ever, the District, which covered the lower southeastern quarter of the state, was not created as a simple flood control district. The:storage of surface water for subsequent use rapidly became of equal importance to its disposition in periods ofl heavy rainfall. Other hurricanes, in 1959 and 1960, led to the creation in 1961 of another large-scale mUltipurpose water management district, the Southwest Florida Water Management District, which covers another fifth of the state. 278

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-46-As in the case of the Central and Southern District, storage of water quickly became one of the principal objects of the District. Moreover, the legislature granted the Southwest District authority to regulate ground water resources, which was lacking in the Central and Southern District. Meanwhile, following the state's rejection of a proposed switch from common law riparianism to prior appropriation, the Florida legislature and water law experts at the University of Florida began to examine the possi-bi1ities for establishing a workable regulatory system for all of Florida, h .. 279 uS1ng t e r1par1an system as 1tS start1ng p01nt. These studies led first to the enactment of the 1957 Florida Water Resources Act, 280 estab1ish-ing a statewide administrative agency to oversee the development of Florida's water resources. This agency, originally established as a Division within the State Board of Conservation, was autho:rr.:i:zed to issue permits for the 281 capture and use of excess surface and ground waters, and to establish rules for the conservation of water in areas of the state where overwithdrawa1s were endangering the resource through salt water intrusion or other causes. 282 Building on the somewhat modest beginning described above, a group of water law experts at the Holland Law Center of the University of Florida 283 developed "A Model Water Code." The Code was designed to provide a vehicle for comprehensive state regulation of Florida's water resources along hydro-logically sound lines, taking into consideration the interrelationship of all types of water resources. It provides for a system of administrative regulation within the framework of a water law system. The essential chapters of A Model Water Code were adopted with significant modification as 284 the F1ot.ida Water Resources Act of 1972 codified as Chapter 373, Florida Statutes (1979).

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-47-2. Administrative Framework Florida's 1972 Water Resources Act established a two-tiered administra-tive structure headed at the state level by what is now the Department of 285 Environmental Regulation. Under the Department are five regional water management districts designed to provide the diverse types of regulation neces-sary in different areas of the state. They include the already existing Cen-tral and Southern Florida Flood Control District, renamed the South Florida Water Management District, and the Southwest Floiida Water Management District. The Northwest Florida, St. John's River and Suwanee River Water Management Districts were created. Although the Act grants liberal powers to DER, dele-h d d 286 gat ion of tose powers to the water management istricts is encourage DER and the water management distyicts have four primary areas of responsibility under the Florida Water Resources Act of 1972: (1) water management planning; (2) construction and operation of water management structures; (3) regulation and permitting of consumptive use of water; and (4) regulation and permitting of surface water management systems. Each of these functions can have an enormous impact on land use and development and may, because of their effect on water resources, either enhance or conflict with attainment of the water management district's goals. Development of housing in wetlands with extensive private drainage systems, for example, supplements and aids a water management district that is seeking to drain land, but con-flicts with objectives of water conservation by retention. Similarly, the locating of a landfill in an aquifer recharge area can aggravate problems of 287 providing sufficient potable water. 3. Planning One of the most important functions of the water management agencies is to prepare a water management plan. Specifications for the preparation of

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-48-this plan and its relationship to other planning efforts are discussed in 288 another section of this report. 4. Chapter 373 recognizes the need for consttuction and operation of water Fl 'd 289 management structures 1n or1 a. Enormous sums of money have been spent constructing such works. The federal government has usually provided 80% of the necessary construction money, with the state paying the remaining 20%.290 The bulk of the money has been spent in South Flottda on the Central and Southern Florida Flood Control Project. It is estimated that when the elaborate network of publicly constructed canals, levees and pumping stations is completed in South Florida, it will have cost over 721 million dOill1ars. 291 This expenditure has made possible the intensive agricultural and urban development of South Florida. Large $ugar cane and vegetable farmers in the Everglades Agricultural Area south of Lake Okeechobee have been able to drain a large portion of the original Everglades and farm the thick, organic soils. These farmlands, as well as several associated small towns, have also been protected from hurricane flooding. Urban development along the lower East Coast has also been protected from periodic flooding. As a result, developers have encroached even farther into the Everglades. Cities are being built to the very edge of the dikes which contain the remaining Everglades waters. These urban developments, often poorly designed, in turn have had numerous adverse effects on water resources resulting from drainage, destruction of vegetation, const:tTuction of impervious surfaces, and generation of pollutants. The South Florida Water Management District is now seeking to control some of these impacts through its surface water management system permitting 292 process.

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-49-5. .Su!,face Water Management Land development in Florida is particularly dependent on the construc-tion and operation of drainage systems. Regulation of the management and storage of surface waters is expressly authorized by the Florida Water Resources Act. It states: and Except for the exemptions set forth herein, the governing board or the department may require such permits and impose such reasonable conditions as are necessary to assure that the construction or alteration of any dam, impoundment, reservoir appurtenant work, or works will not be harmful to the water resources of the district293 Except for the exemptions set forth in this part, the governing board or department may require such permits and impose such reasonable conditions as are necessary to assure that the operation; :or maintenance of any dam, impoundment, reservoir, appurtenant work, or works will not be inconsistent with the overall objectives of the district and will be harmful to the water resources of the district. 29 The potential breadth of this authority is revealed by an examination of the statutory definitions for the terms used. 295 In particular, a "dam" is defined as any artificial or natural barrier, with appurtenant works, raised to obstruct or impound, or which does obstruct or impound, any of the surface waters of the state. 296 "Surface water" in turn is water upon the surface of the earth, whether contained in bounds created naturally or artificially or diffused. ".297 "Works" are defined as all artificial structures not included in subsections (1) and (2), including but not limited to, ditches, canals, conduits, channels, culverts, pipes, and other construc-tion that connects to, draws water from, drains water into, or is placed in or across, the waters of the state ,,298 Virtually any movement of earth in Florida could create a "dam" as defined in this statute. It is difficult to conceive of a construction project which would not result in the creation of "works," whether as a

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-50golf course, parking lot or rooftop from which water drains or as a drainage system utilizing swales, gutters, ditches and culverts. A liberal reading of the statute would, therefore, give DER and the water management districts extensive authority to control many of the surface land alterations and drainage systems which are presently damaging water resources. 299 Three vaguely worded but potentially crippling loopholes in the foregoing regulatory powers were also enacted by the Legislature.300 The first exemption provides: Nothing herein, or in any rule, regulation, or order adopted pursuant thereto, shall be construed to affect the right of any natural person to captllre, discharge, and use water for purposes permitted by law.301 The exact meaning of this provision is not apparent. It could be inb.erepreted to mean that natural persons are completely exempt from all regulation under this section and may, therefore, build, drain, ditch, dike, and dam at will, subject only to the common law and other regulatory powers. A better interpretation would be that the regulations cannot affect the right of a person to conduct the activity of capturing, discharging and using water, but they can affect the manner in which he does so. Thus a natural person would have a right to trap or drain water, but not so much than minimum flows or ground water levels are affected. The district might also insist that a drainage system which a natural person constructs, incorporate design features to protect water quality and conserve water. An alternative interpretation would render this section of the Act almost completely ine;ffectual,. The second major exemption is for agriculture. Legislatures often exempt agriculture from environmental regulation, either not recognizing the substan-tial harm which agricultural development often causes or bowing to powerful political pressure. This particular exemption states:

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-51-Nothing herein, or in any rule, regulation, or order adopted pursuant thereto, shall be construed to affect the right of ?Uy person engaged in the occupation of agriculture, floriculture, silviculture, or horticulture to alter the topography of any tract of land for purposes consistent with the practice of such occupation. However, such alteration may not be for the sole or purpose of impounding or obstructing surface waters. The damage which could be wrought via this loophole is enormous. A farmer who wished to do so might fill any wetland on his property without restriction or plow or clear to the very edge of a creek. Whether lands b d d 1 303 can e ra1ne at W1 1S not c ear. The answer depends on whether drain-age is an alteration of topography and whether drainage involves acts which are for the sole or predominant purpose of impounding or obstructing surface waters." A third exemption states: Nothing herein, or in any ru1e, regulation or order adopted pursuant thereto, shall be construed to be applicable to construction, operation or maintenance of any closed system. However, part II of this chapter shall be applicable as to the taking and discharging of water for filling, replenish..., ing, and maintaining the water level in any such closed system. 304 'Closed system' means any reservoir or works located entirely within lands owned or controlled by the user and which requires water only for the filling, replenishing, and maintaining the water level thereof.305 The meaning of this exemption is again not very clear. It appears to be an attempt to exempt private reservoirs. By using the term "works," however, and by ignoring the fact that works are often used for draining water from lands as well as impounding them, the legislature has made somewhat doubtful the applicability of the statute to drainage systems controlled by anyone entity. The term "closed system" is itself a misnomer. Although a system might be located entirely within the boundaries of land a single entity controls, the effects may extend far beyond those boundaries. The only

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-52-reasonable interpretation of this exemption is that it applies only to systems which hold all water on the land and must occasionally draw addi-tiona1 wab'er from outside to replenish water which is used. To date neither DER nor any of the water management districts has implemented a program for the regulation of surface water management which is;as comprehensive and protective as that authorized by the Water Resources Act. The Department of Environmental Regulation, the Northwest Florida Water Management District, and the Suwannee River Water Management District have no regulations yet. The St. Johns River Water Management District,306 the Southwest Florida Water :M:anagement District,307 and the South Florida W -'M D' 308 h h" 1 d.....J.."" ater ,qanagement lstrl.ct aye eac :u:np emente peuulttlng systems. The regulations of the St. Johns River Water Management District regarding management and storage of surface waters are &pp1icable at this date only in areas which have been transferred to the District from either the Central and Southern Florida Flood Control District or the Southwest Florida Water Management District, where permitting systems were previously ff t 309 1n e. ec Because these rules are so similar to those of the Southwest Florida Water Management District, they will not be discussed further in detail. The Southwest Florida Water Management District requires a permit to "construct, alter, abandon or remove any dam, impoundment, reservoir, appurtenant work, or works which" impounds water on or diverts water from an area greater than 40 acres or alters a watercourse which drains a h d f f" "1 310 s e ln excess 0 lve square ml es. A permit is also required for the operation or maintenance of a dam or other works which impounds water on or 311 diverts water from an area exceeding 160 acres. If the structure has a 312 headgate or a valve, the threshold decreases to 40 acres.

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-53-A number of conditions, apparently designed to protect minimum flows, potentiometric surfaces and other aspects of water quantity, are attached h f ,313 Th 'd b h' h to t e 1ssuance 0 a perm1t, e perm1tte act1v1ty must e one w 1C b1 b f" 1 314,,,, h h b1' 1S a reasona e, ene 1C1a act1v1ty, 1S cons1stent W1t t e pu 1C 315 d 11 f h ""1 1 f ,. 316 1nterest, an W1 not 1nter ere W1t an eX1st1ng ega use 0 water. More specifically, the permitted activity: (a) Must not restrict or alter the rate of flow of a stream or other watercourse by more than ten percent (10%) at the time and point of withdrawal, except in the case of a dam where water is stored for subsequent release downstream. (b) Must not cause the level of the potentiometric surface under lands not. owned,leased, or otherwise controlled by the applicant to be lowered more than five feet (5'). (c) Must not cause the level of the water table under lands not owned, leased, or otherwise controlled by the applicant to be lowered more than three feet (3'). (d) Must not cause the level of the surface of water in any lake or other impoundment to be lowered more than one foot (1') unless the lake or impoundment is wholly owned, leased, or otherwise controlled by the Applicant. (e) Must not cause thE'3fftentiometric surface to be lowered below sea level. (4) Issuance of a permit will be denied if the permitted activity: (a) Will cause the rate of flow of a stream or other watercourse to be lowered below the minimum flow established by the Board. (b) Will cause the level of the potentiometric surface to be lowered below the regulatory level established by the Board. (c) cause the level of the surface of water in any lake or other impoundment to be lowered below the minimum level established by the Board. (d) Will significantly induce salt water encroach-ment.

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-54-(e) Will cause the water table to be lowered so that the lake stages or vegetation will be adversely and significantly affected on lands other than those owned, leased, or otherwise controlled by the applicant. 318 This permitting system has several faults. First, the thresholds are so high as to exempt too many of the small projects whose cumulative impact or direct local impact may be very hammful. Second, the published criteria do not sufficiently provide for consideration of impacts on water quality, fish and wild life, other environmental impacts or land use implications?19 Third, the numerical criteria, though seemingly precise, are vague and fail to consider cumulative impacts. The South Florida Water Management District has promulgated the most detailed and comprehensive regulations of the water management districts ?20 The District has issued, in the regulations, a "District-wide General Permit" for projects that: 1. have less than ten acres total land area, 2. have less than two acres of impervious area, 3. require a discharge facility no greater than the equivalent of one 24-inch pipe gravity discharge, 4. are located wholly on lands which may be classified as uplands as defined in Chapter 17-4, Florida Administrative Code, 5. are located within a local jurisdiction which has adopted subdivision regulations, and 6. are not located in areas governed by District basin rules which specifically provide that General Permit rules are not applicable; are hereby granted a general permit to construct, alter, or operate said works. For projects which are to be developed in phases the term I totaill land area I 321 shall be construed to mean total contiguous land holdings. A similar type of District-wide General Permit has been issued for the con-struction, alteration or operation of works in conjunction with certain public 322 highway projects. Although there is no need to apply for a permit, a "Notice of Intent to Construct works pursuant to General Permit" must be filed at least 30 days prior to commencement o:e work. 323

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-55-A number of additional conditions are attached to the General Permit. Design of the works must include .. techniques for storm water runoff quality control" 324 and the work must be carried out" ... so as to minimizet d d f I" ,,325 Ad" 1 h any egra atl0n 0 water qua lty... ccor lng y, t e permlttee lS required to .. institute necessary measures during the construction period, including full compaction of any fill material placed around newly installed structures, to reduce erosion, turbidity, nutli'.ient loading and sedimentation in the receiving waters, and to minimize any adverse impact of the works on 326 fish, wildlife and natural environmental values." All other local, state or federal authorizations must be obtained before the permit is effective. 327 Thus the water management district reinforces the functioning of other regu-latory agencies. Finally, the district reserves the right to require individqal permitting of any works which ... are shown to be harmful to the water resources of the District or may interfere with the legal rights of others or may be inconsistent with the overall objectives of the District, or may other-i b h hI" 328 w se e contrary to t e pu lC lnterest .. The construction, alteration, operation or abandonment of any works which are not covered by a general permit must be specifically permitted by the water d 329 management lstrlct. To obtain a permit, the applicant has the burden of showing the act: (a) will not be harmful to the water resources of the District; and (b) will not interfere with the legal rights of others; and () "hI" I" 330 c lS not agalnst pu lC po lCy. In addition, "the Board will consider the water quality and quantity impact and land use implications of the requested act.,,33l More detailed criteria for the construction of works are specified in the publication, "Basis of Review of Construction of Surface Water Management Systems Serving Projects

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-56-with Two or More Acres of Impervious Area Within the South F1oi.ida Water Management District -May 1977. ,,332 The South F1oi.ida Water Management District has demonstrated an awareness of the relationship of its surface water management permitting system to the regulatory functions of other government agencies. Thus, the effectiveness of a permit is conditioned on the receipt of all other necessary governmental authorizations. 333 In addition, there are higher thresholds for the General Permit program in Dade and Palm Beach Counties because local agencies there have the power and willingness to enforce standards similar to those which the District would impose.334 The District, thus, is essentially delegating its permitting authoi.ity to the local agencies in order to eliminate redundancy and overlap of functions. In one area of Dade and Borward Counties, the C-9 or Snake Creek Canal basin, the District has been working closely with all local governments and the Regional Planning Council to develop integrated criteria for both surface water and land management!35 Special surface water management criteria have thus been implemented in this sensitive area. 336 6. Consumptive Use Permitting One of the most important parts of the Florida Water Resources Act of 1972 authorizes regulation of consumptive use of water. 337 the governing board or the department may require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure that such use is consistent with [its] overall objectives and is not harmful to the water resources of the area. 338 Only .. domestic consumption of water by individual users" is legislatively exempted from potential regu1ation.:339 Even existing users must apply for a permit. 340 To obtain a consumptive use permit, the applicant has a burden of showing, that the proposed use of water:

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-57-(a) Is a reasonable-beneficial use .. ; and (b) Will not interfere with any presently legal use of water; and 34i (c) Is consistent with the lnterest. The standard of reasonable-beneficial use is a particularly innovative feature of the Act. It is defined as ll the use of water in such quantity as is necessary for economic and efficient utilization for a purpose and in a manner which is both reasonable and consistent with the public interest. 1\'342 This standard is derived from aspects of both Eastern and Western water law and is designed to protect both other water users and the general public 343 from wasteful uses of water. The reasonable use rule as developed in the Eastern United States allows each riparian owner to use only such amounts of water as ;are reasonable with respect to the uses of other riparian owners. The rule is sufficient to pro-tect other riparians from some wasteful operations, but is of little use to nonriparians or to the general public. The beneficial use rule of the Western prior appropriation states holds that an appropriator who diverts more water than is actually needed acquires no rights to the excess. There is no require-ment of "reasonableness," however, in relation to other users or potential users. Use of reasonable-beneficial use as a standard :in Florida's law is an attempt to combine the best features of the reasonable use and beneficial use rules. First of all, the quantity of water used must be efficient with respect to the use itself. This part of the reasonable-beneficial use test, requir-ing that the use be "beneficial," allows only that quantity of water to be used as is necessary for an economically efficient operation. The value of the use itself in relation to other uses is not considered in this part of the test. However, the reasonable-beneficial use standard also requires that

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-58-the water, regardless of amount, be used for a purpose which is both reasonable and consistent with the public interest. Thus, the purpose must be "reasonable" in relation to other uses. This criterion requires that the use not be to obher users or inconsistent with the character of the watercourse from which the supply is taken, or inconsistent with the public interest. One device which the water 'management districts could use to integrate their decisions with those of local land use planners would be through defining the public interest component of the reasonable-beneficial use standard. 344 Permitting use of water for an activity that is inconsistent with local, state, or regional plans could be found contrary to the public interest. For example, if coastal zone management planners have determined it would be desirable to preserve an area in its natural state, it would not be in the public interest for the water management district to grant a consumptive water use permit for the potable water supply of a large residential development in this area. Rather than granting the permit simply because water is physically available, District could deny it to reinforce the efforts of the land use planner. Two other features of the 1972 Florida Water Resources Act could be used by Florida's water managers to harmonize the issuance of permits with land use and other plans. The Department of Environmental Regulation is allowed to designate in the State Water Use Plan certain desirable uses which are to be given a preference in the granting of consumptive use permits. 345 Such uses might include recreation, preservation of the environment, protection of recharge areas, and others. A general preference for those uses which are consistent with land use plans over those uses which are inconsistent might also be stated. Once such a designation is made, the governing boards of the

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-59-water management districts must recognize it. Although some western states employ preferences in their prior appropriation laws to promote particular water policies, to date, prefl.erences have seldom been used in the United S f h 1 b' 346 tates to urt er enVlronmenta 0 Jectlves. Similarly, certain uses may be declared undesirable, in which case the governing board of a water management district is authorized, but not compelled, to a consumptive use permit. Activities which are contrary to local, state or regional land use plans could be declared undesirable, regardless of their impact on water resources. Water use zoning would thus reinforce land use plans. The Florida Water Resources Act also provides for the establishment of minimum flows for surface watercourses, as well as minimum lake and ground 347 water levels. It is essential that any system of water allocation include provisions for minimum flows and levels for public purposes. Commercial navi-gation, recreational boating, fishing, hunting, swimming, and protection of the ecology are some of the non-consumptive public purposes that can be and be protected under the minimum flow and level concept in F10xida. The determination of which uses are entitled to protection, however, should be made only after taking into consideration all relevant land use and other plans. 7. <::oordination with Land Use Mana&ement Several of the water management districts review and comment on the water resource :aspects of applications to local government for the approval of land development projects. In addition to DRIs, such projects as subdivisions, park-ing lots, condominiums, PUDs and changes in zoning may be reviewed. Informa-tion regarding such factors as the availability of water supplies, the impact of the drainage system on water quality, susceptibility to flooding, and loss of wildlife habitat or other environmental values may be supplied.

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-60The degree to which a particular water management district actually makes such reviews varies widely between districts. It depends in large part on the willingness of the District to assess the impacts of land use damages. The Southwest Florida Water Management District, for example, has been do.minated by board members who believe the District should strictly limit its activities to water management. The Board therefore disallows involvement by the District in what they view as strictly "land use" decisions. There is also some worry on the part of SWFMD attorneys that if statements are made in the context of a review process, the District may be estopped to take an inconsistent position with regard to its own permit, which is typically issued at a later date. For this reason, the SWFMD has been unwilling to give advice on DRIs or other land use decision. The South Florida Water Management District, on the other hand, has consistently sought to increase its participation in the land use decisions 348 of local governments. Another factor is whether a District can afford the financial cost of participation. It takes a great deal of time and money for well qualified experts to properly review complicated development:proposals and then articulate their concerns in written reports and oral presentations. Since the SFWMD is the most involved of any district and since it has set a pattern that other districts appear to be following, its review activities will be described in detail. The District':s stated obj ectives are: 1. To provide technical expertise on water-related matters to local governments and regional planning councils to assist them in making more enlightened land development decisions 2. To inform the applicant and local government of potential problems (including possible conflicts between District and local government permitting requirements) and thus facilitate the resolution of problems prior to land use commitments by local government 3. To apprise the applicant, during the initial planning stages, of development modifications that are necessary to comply with District permitting requirements 4. To enable the District to be informed of potential development activity relevant to its permitting process. 349

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-61350 The SFWMD has reviewed 88 DRIs within its jurisdiction since 1973. This review is made pursuant to agreements the WMDhas entered into with each of the five Regional Planning Councils that lie, at least in part, within its jurisdiction. The agreements provide for the District to submit a report to the RPC and state: The report shall include an based on the information in the ADA, of the magnitude of any positive or negative impacts of the proposed project on groundwater quality and quantity, surface water quality and quantity, and on the demonstrated ability of the project area and Region to absorb the increased demand for water supply, sanitary sewage disposal, and storm drainage. The report may also include analyses of such other relevant water and natural resource matters upon which the DISTRICT may wish to comment. Statements regarding the DRI's conformance with local and federal criteria shall also be included where applicable. 351 These reports are made free of charge. 352 The SFWMD has identified two specific problems relating to review by it of DRIs. (1) In certain cases the District impact assessments provided to the Regional Planning Councils have not been utilized as a basis for the preparation of the natural resources and waterrelated public facilities portions of the RPC's Reconnnendation Reports. In these cases this has resulted in technical inaccuracies (of a water-related nature) in the RPC's report. 353 (2) Generally ADAs are submitted with insufficient data for review. The type of impacts that are assessed by this District require more detailefl. technical data than that requested in the ADA questions. 354 The SFWMD also reviews certain other applications for rezoning or sub-division approval pursuant to agreements that have been entered into with most of the counties in the District. Under these agreements, the county staff is generally entitled to request District review of applications that: (1) Involve an area greater than 10 acres; (2) would require greater than 100,000 gallons per day, peak day demand (approximately 170 units); (3) in parcels of a lesser size, have a runoff coefficient of greater than .8 at ultimate development;

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(4) (5) -62-invalve an excavatian; ar 355 invalve a water treatment plant. In additian, District input may sametimes be requested far applicatians that do. nat meet thase criteria. Under the J;larida Unifarm Land Sales Practices Law, Chapter 478, Flarida Statutes, the subdivisian af land into. SOar mare parcels must be registered with and appraved by the Divisian af Florida Land Sales af the Department of Business Regulatian. The SFWMD has an agreement by which applications far 356 registratian are reviewed and commented upan by the District. The lacal gavernment comprehensive plans that are being prepared and adapted under the LGCPA will farm the basis far most lacal land use decisians 357 and thus will have an enormous impact an water resources. The SFWMD has 358 been reviewing the drainage and water supply elements of these plans. DER and the Corps af Engineers have a coordinated pragram for the jaint pracessing of permit applications for dredging, filling, constructing bulkheads d k d"l .. 359 or oc s an Slml ar actlvltles ln state waters. These activities aften also require water management district permits. In addition, other types af activities regulated by DER (discharge of pallutants, lacatian and land fills, constructian af water treatment plants, etc.) have a tremendaus impact an the same waters the WMDs are charged with managing from the perspective af Chap.ter 373. Because af this averlap, the desirability of caardinating the activities af DER and the WMDs has lang been recagnized. In 1975, the Legislature mandated the collacatian af DER regional offices with the WMD affices "to. the maximum extent practicable." 360 It was intended by this actian that they would wark as mare af an integrated unit. To. some extent callocation has been achieved. DER has an office, far example, in the buildingocf the SFlNMD. In ather instances collacatian has nat been pn<1rcticable

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-63-because the WMD offices are located in rural areas while the bulk of DER's work is done in the urban areas. The most extensive coordination of permitting appears to occur in the SFWMD. Upon receiving a permit application, each agency immediately forwards a copy of its respective counterpart. The receiving agency then evaluates the application to determine whether it also requires a permit and whether the activity would have impacts of concern. The permit is then discussed atbiweekly staff meetings attended by personnel from both agencies.

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-64-E. State Land and Water Planning There were two major state and regional planning efforts in Florida during the 1970's. The Division of State Planning attempted to develop a comprehensive state plan, including sections dealing with land development and water. The Department of Environmental Regulation and the five regional water management districts have been preparing a State Water Plan. This section will trace the development of those plans. 1. The Florida State Comprehensive Plan The State of Florida, like most other governments, has historically operated without a clear conception of its goals and policies. Problems have been addressed on an ad hoc basis and usually only after a crisis has developed. Of course, it is impossible for any organization to be either efficient or effective without knowing what state of affairs it is seeking to promote over the long term. Without such guidance it is difficult to evaluate the perfor-mance of agencies and conflicts are likely to arise. For example, the agency which builds roads may be constructing expressways and thus promoting construc-tion in areas which water management agencies would like to protect as loca-tions for aquifer rechange. Having recognized the need for planning, the legislature passed the 361 Florida State Comprehensive Planning Act of 1972. This Act ordered the 362 Division of State Planning to prepare a state comprehensive plan designed to "provide long-range guidance for the orderly social, economic and physical h f h b f h 1 b" d 1" ".363 Th growt 0 testate y sett1ng ort goa s, 0 Ject1ves an po 1C1es. e State Comprehensive Plan was not conceived of as a document that would ever be final, but as one that would be continually revised to reflect new and values.

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-65-In 1976, the Governor ordered the Division of State Planning to prepare the comprehensive plan as a compilation of eighteen sections, each of which focused on a particular area of concern such as agriculture, economic development, environmental resources, land development, utilities and water. 364 DSP then moved to prepare the plan by forming interagency and interdisciplinary 365committees to advise the agency on what the contents of the plan hou1d be. Numer@us drafts were prepared, debated and refined. By 1977 a plan was ready. Major shifts in state policy were proposed. The water section, for example, proposed that it should be state policy: In substantially unaltered watersheds, maintain runoff infiltration and other hydrologic relationships (soil profile, rate of soil erosion or impoverishments, etc.) to achieve as near1y.as practical the natural hydrologic conditions and to provide for a balance of urban, agricultural, and natural systems recognizing that natural productivity is optimized under unaltered conditions. 366 This policy is exactly contrary to the popular and lucrative tradition in Florida of ditching, diking, draining and otherwise grossly modifying natural hydrologic systems. Several sections called for closer coordination of land and water management. 367 The plan itself was intended to aid attainment of that goal by formulating a comprehensive and consistent state policy regarding all aspects of land and water management. The State Comprehensive Plan, however, was never implemented. The original Act provided that an/element of the plan could become effective as a state policy upon approval by the Governor and transmittal to the Legislature. 368 In 1977, h.Q'Weyer? 'When :;Lt appeared the plan would be controversial, legislative approval was re.qt:J:;L1,'eO, be;t;ore the plan I10r parts or revisions thereof" could become ef.:eective as state policy. 369 Governor Askew subsequently approved the plan and duly submitted it to the Legislature. It emerged a eunuch. The Legislature not only refused to approve the State Comprehensive Plan, it directed:

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-66-Except as specifically authorized by law, no part of the state comprehensive plan, or the policies set forth therein, or any revision thereto shall be implemented or enforced by any executive agency. The chief planning officer may, from time to time, in bill form, present to the Legislature specific proposals to implement goals, objectives, and policies of the state comprehensive plan. Nothing contained in the plan or parts or revisions thereof shall have the force or effect of law or authorize the implementation of any programs not otherwise authorized pursuant to law. Itis fUrther the intent of the Legislature that enactment of this legislation shall not amend existing statutes, other than asprovided!berein, or provide additional regulatory authori ty. 3 In response, Governor Askew ordered his executive agencies to implement the plan as "executive planning policy." 371 It was to be used in preparation of .ill planning documents and, perhaps more significantly, it was to be used by the 372 Department of when it analyzed agency budget requests. A1-though the Graham administration has not withdrawn the order and has in fact moved to further integrate planning with the budgeting process, little else has been done regarding the plan. An assessment of this apparent failure will be deferred until the parallel and somewhat intertwined history of development of the State Water Plan has been explained. 2. The State Water Plan The development of a State Water Plan is specifically required by the Florida Water Resources Act of 1972. 373 It is one of the most important requirements of the Act because the State Water Plan should serve as an inte11i-gent basis for the comprehensive management contemplated by the legislation. The drafters of A Model Water Code stated, with respect to this requirement: [A]dditiona1 measures toward more efficient management of water resources must be implemented at all levels of government. This will require a determination of needs and capabilities, and the formulation of long-range plans for the development of all water resources and related land resources within a hydrologic unit .. Regu1ation of water use remains a primary state function. This requires state planning for many

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-67-purposes including enforcement of existing laws, enactment of new legislation, coordination of loc&l regulatory efforts, and administration of consistent state regulatory policies. Unfortunately, state planning and resource management agencies are frequently understaffed and lacking in sufficient expertise to carry out meaningful planning responsibility .. It is essential that state agencies be staffed to discharge their water resources planning responsibilities competently. Failure of the states to this challenge result in inadequate and uncoordlnated water management. The Department of Environment.al Regulation is given primary responsibility by the Water Resources Act for developing the State Water Plan. 375 It is to be developed in cooperation with the Division of State Planning, however, "as a functional element of a comprehensive state plan.n-376 The State Water Plan, in turn, is to be a marriage of the State Water Quality Plan and the State Water Use Plan. 377 The State Water Quality Plan contains water quality stan-dards, objectives and guidelines with a specific program of implementation. The State Water Use Plan is intended to be "an integrated, coordinated plan for the use and development of the waters of the state ,,378 The Act requires that planners base the State Water Plan on studies of existing water resources, existing and contemplated uses of water, and such other subjects as drainage and flood plain zoning. 379 A listing of general objectives which the State Water Use Plan should seek to reconcile and implement is contained in the Act. It requires that the Department of Environmental Regulatiem give "due consideration to": (a) the attainment of maximum reasonable-beneficial use of water .. (b) the maximum economic development of the water resources consistent with other uses. (c) the control of such waters for such purposes as environmental protection, drainage, flood control, and water storage. (d) the quantity of water available (e) the prevention of wasteful, uneconomical, impractical or unreasonable uses

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-68-(f) presently exercised domestic use and permit rights. (g) the preservation and enhancement of the water quality of the state ... (h) h 1 380 testate water resources po lCy ... The Department is further specifically directed to ... give careful con-sideration to the requirements of public recreation and to the protection and procreation of fish and wildlife. ,,381 In the plan it may" ... prohibit or restrict other future uses on certain designated bodies of water which may b h h b 382 e lnconslstent Wlt t ese 0 ]ectlves .. In addition, it can designate undesirable or desirable uses for particular bodies of water and either deny f h b 383 permlts or grant pre erences on t at aSlS. The Act clearly seems to contemplate that preparation of the State Water Use Plan would be undertaken by the Department of Environmental Regulation, with the water management districts acting in a subsidiary role. [T]he department" is specifically charged with the responsibility of formulating a plan.384 The water management districts appear to have been given primarily an advisory or consulting role. During the process of formulating or revising the State Water Use Plan, the department shall consult with, and carefully evaluate the recommendations of, concerned federal, state, and local agencies, particularly the governing boards of the management districts, and other interested persons. 5 Each governing board of a water management district, in turn, ... is directed to cooperate with the department in conducting surveys and investigations of water resources, to furnish the department with all available data of a technical nature, and to advise and assist the department in the formulation and drafting of those portions of the state plan applicable to the district.386 Although the water management districts have an important role in the statutory scheme for preparation of a state water use plan arising from their technical expertise and familiarity with local conditions, it seems clear that primary

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-69-responsibility for setting general policy, as well as specific objectives and plans for action, was given to the Department of Environmental Regulation in the Water Resources Act. Development of the State Water Use Plan, however, has never proceeded as envisioned by the statutory drafters. Initially, the Legislature failed to appropriate sufficient funds for the State to undertake the detailed, compre-hensive water resources planning required by the statute. The Department of Natural Resources, originally charged with administration of Chapter 373, there-fore did nothing to prepare a plan. Instead, in 1974, it delegated this 'b'l' h d' 387 h' h d responsl 1 lty to t e water management lstrlcts, w lC were prepare to exercise it. The two largest and relatively affluent water management distiicts d 1 b 1 f' 1 388 imme iate y egan to lnvest arge sums 0 money ln p annlng. By December of 1973 the Central and Southern Florida Flood Control District (C&SFFCD) had 389 already formulated "A 'Rough Cut' Model of a South Florida Water Supply Plan." Over 2.6 million dollars was spent by the C&SFFCD in the fiscal years 1974-76 390 on resource plannlng. The Southwest Florida Water Management District (SWFWMD) has similarly emphasized planning. As a result, these water management districts soon developed strong entrenched ideas about how water should be managed within their respective. areas. There was a renaissance of state level interest in the State Water Use Plan following the transfer to a newly created Department of Environmental Regulation of the Chapter 373 administrative powers. 391 DER began to work on the plan in 1976. An agreement was soon reached with the Division of State Planning whereby DER agreed to use the water element of the State Compre392 hensive Plan as the policy basis of the SWUP. An agreement was also reached with the Water management districts reaffirming their delegated authority to continue developing plans for their respective areas but providing for, some

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-70standardization of format. 393 DER was to take the five regional plans together 394 with the water element and "synthesize" a State Water Use Plan. Although the agreement called for the SWUP to be consistent with the water element, attainment of such consistency was very difficult. The water management districts had been planning for several years in the absence of state direction. Consequently, when the DSP developed a document that was at variance with their established policies and with which they were supposed to comply, they revolted. Negotiations ensued in the Office of the Governor 395 and a compromise water section was developed. DER prepared a document consisting of a short introduction, the water section of the SCP, and five 396 executive summaries of the waterl'management district plans and prepared to hold public hearings on adoption of that collection as a technical and advisory d b d Ph I f h SWUP 397 Th h h ocument to e terme ase 0 t e ase ear1ngs, owever, were cancelled when the Graham administration entered office. 398 3. The Failure of State Planning the 1970's After several years of effort there is no effective State Comprehensive Plan and there is no State Water Use Plan. The reasons for this apparent failure are complex. First, at least with respect to the State Comprehensive Plan, there was no clear conception, from the beginning, of how the plan was to be used and implemented. It was unclear what actions of state government the SCP would guide and by what means it would be used to control them. That uncertainty hampered development of the plan and led to a reaction by the Legislature that it should have no effect. A second major related problem leading to that reaction is that the plan was not drafted by those who were in a position to implement it. The Division of State Planning was an independent planning group that was separated from the agencies that actually make substantive decisions. If the plan had been drafted by those with authority for implementation, it

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-71-would probably have received voluntary acceptance. The Division of State Planning certainly had little such implementing authority and was in no position to force other agencies to accept the plan. Indeed, it is difficult to conceive of anyone institution other than the Governor and Cabinet or the Legislature having such power. This deficiency was most apparent with respect to the State Water Use Plan. DER and DSP had agreed the water section of the SCP would be used as a policy basis for the All parts of the SI\TUP were therefore supposed to be consistent with the water secltion. The State Water Use Plan, however, was actually being written by the water management districts. Water management district governing boards, not DER, were making the substantive policy decisions regarding water use planning. Furthermore, the had the willingness and ability to implement those decisions. To the extent that the water section conflicted, it was vigorously resisted. DER, on the other hand, has limited power to implement anything that is inconsistent with policies of the water management districts. Although Chapter 373 gives DER "general supervisory authority,,399 over the water management districts, it is mostly i11usory. The Governor and Cabinet are exclusively empowered to "review and ... rescind or modify any rule or order of a water management district. .. ",400 Therefore, since in addition the two larger districts are also financially independent, DER was put in the untenable position of attempting to adopt a plan that it could not implement. Finally, it appears the Legislature's enthusiasm for planning and environmental protection was dwindling in the late 1970's. The State Comprehensive Planning Act had been passed early in the decade. By 1978 the Legislature was more concerned with what it perceived as excessive government regulation and a runaway bureaucracy than with adopting new, comprehensive and protective policies.

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-72-4. The Current Status of Strate Planning Sh0rtly after taking office in January, 1979, Governor Graham appointed a blue ribbon Resource Management Task Force and charged it with the responsi-bility of reviewing Florida's system for planning, land use and environmental management. After a year of deliberations, including thirty days of full committee meetings, numerous other subcommittee meetings, and the review of voluminous staff papers, the Task Force reported its conclusions and recomd 401 T d 402 f men atlons. wo promlnent concerns were expresse The irst was a need to eliminate the "current chronic under-funding of resource laws." The second was the need for integrated state, regional and local planning for resource management. With respect to the latter, the Task Force made several specific d 403 recommen atlons. 1. Comprehensive resource management policies are prerequisite to the effective management of land and water resources at all levels of government. Activities of the various resource management agencies need a clear direction within an integrated policy framt'Mork that promotes consistency between government agencies. 2. The state should formally adopt state resource management policies that concisely express policy direction for the management of state resources and the inherent problem of growth. These policies should have the necessary legal effect of guid-ing state agency activities, including planning, research, regulation and service delivery toward a common set of goals. They should also guide the policies and activities of regional and local agencies insofar as these activities affect state resources. Specific state goals should include, but not be limited to a state water policy, coastal management policy, and agricultural lands policy, as described in later recommendations in this report. 3. Florida's regional planning councils should formally adopt by rule comprehensive regional resource management policies which are a concise statement of policy direction for the management of regional resources. They should be more detailed than state policies, but not as site specific as a local comprehensive plan. Regional policies should be consistent with state policies, and be certified as such by the state planning agency.

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-73-4. Local government comprehensive planning is currently the basic tool for growth management in Florida. The hopes and aspirations which led to the passage of the Local Government Comprehensive Planning Act of 1975 have not been ahhieved. It is vital that local government comprehensive planning be !mproved and integrated with other state and regional resource management. After the adoption of state and regional resource management policies, and when the required five year review of local government comprehensive plan occurs, local comprehensive plans should be certified by both the region and the state for local conformance to state and regional policies. Subsequent local government plan amendments should also be certified. This should not change already-approved development decisions made by local governments. Another set of recommendations directly addressed the need for water 404 management planning. 1. The Task Force recommends that the state develop and adopt a state water policy. The policy should be developed through the combined efforts of the water management districts and the Department of Environmental Regulation, with the aid of regulated industries and the public. The policy should be a "mid range" policy, that is of more specificity than the water policies expressed in the Florida statutes, but broad enough to guide the development of more specific plans by the water management districts. The policy should be a part of the integrated policy framework described in Section One, and should be formally adopted as a state rule under the Administrative Procedure Act. Both the State Water Use plan and the State Water Quality plan should be made consistent with the adopted state water policy. 2, The Task Force recommends to the Governor that, to the greatest extent possible, planning for the regulation of both water quality and water quantity be consolidated at the regional or district level. This process should continue on a selective basis, with delegation occurring under standards and g'llidelines established by the state, to those regional or dis t.:rict agencies which have or can develop the financial and te.chnical capabilities to carry out both functions. A year later, little has been accomplished toward developing the inte-grated planning framework recommended by the Task Force, except in the area of water policy. DER and the water management district have been working to develop a state water policy along the lines recommended by the Task Force.40S Extensive negotiations have taken place, a compromise has been reached and

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-74-public hearings are now being held as part of the rule adoption process. The value of the document that appears likely to emerge is doubtful, however. Because of DER's weak legal position vis-a-vis the water management districts, the policies resulting from the negotiations are considerably vaguer and less specific than those originally proposed by DER. Further, a disclaimer at the beginning of the document states, "this rule does not repeal, amend or other-wise alter any rule now existing or later adopted by the Department or Water M D" 406 anagement lstrlcts. Despite these weaknesses, there would be value in adopting the proposed policy. It would, at the very least, be a common point of agreement and reference for the development of more specific policies and plans in the future. It could also serve as a beginning for implementation of the more comprehensive recommendations of the Task Force.

PAGE 80

-75-SECTION II .. "" .. LAND AND WATER J'1ANAGEl1ENT IN THE OF :fJeORll)A; EXISTING INTERRELATIONSHIPS lFor a more detailed description of the relevant governmental agencies, see Chapter II, "State, Regional and Local 1AJater Resource Agencies," Maloney, Plager, Ausness and Canter, Florida Water Law 1980, Florida Water Resources Research Center Publication No. 50, at 99-166. 2 1975 Fla. Laws, Ch. 75-22. 3 Fla. Stat. .804. 4 Id., .802. 4a 1967 Fla. Laws, Ch. 67-436, codified at Fla. Stat. .0ll-403.4l53 (1979). 5 1972 Fla. Laws, Ch. 72-299, codified at Fla. Stat..0l2-.6l7 (1979). 6 Fla. Stat. Chs. 403 and 253 (1979); Fla. Admin. Code, C. 17-4. 7 Fla. Stat. .306 (1979); Fla. Admin. Code, Ch. 17-21. 8 Fla. Stat. .l0l (1979); Fla. Admin. Code, Ch. 17-16 (1979). 9Florida Safe Drinking Water Act, 1977 Fla. Laws, Ch. 77-337, codified at Fla. Stat. .850-.864 (1979). 10Florida Resource Recovery and Management Act, 1974 Fla. Laws, Ch. 74-342, codified at Fla. Stat. .70l-.7l5 (1979). 111980 Fla. Laws, Ch. 80-302, amending Fla. Stat. Ch. 403, Part IV (1979). l2Florida Electrical Power Plant Siting Act, Fla. Stat. (1979); Fla. Admin. Code l7-l7. l3Florida Electrical Transmission Line Siting Act, 1980 Fla. Laws, Ch. 80-65, codified at Fla. Stat. .522-.527 (Supp. 1980). l4Florida Industrial Siting Act, .50l-.5l8 (1979). l5Water Resources Restoration and Preservation Act, 1977 Fla. Laws, Ch. 77-369, codified at Fla. Stat. .06l5 (1979). 16 Fla. Stat. .l82l-.l835 (1979). 17 See Pub. L. 92-500, 86Stat. 880. l8Fla. Stat. .026(9) (1979). 19F1orida Coastal Management Act of 1978, 1978 Fla. Laws, Ch. 78-287, codified at Fla. Stat. .l9-.25 (1979). 20 See generally, Fla. Admin. Code, Ch. 16-6. 2lFla. Stat., Ch. 370 (1979). 22Id., .925, 372.932 (1979).

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-76-23Id. Ch. 161 (1979). 24Id. Chs. 592, 258. 25Id. Chs. 177, 197-270, 285. 26Id. Chs. 253, 259. 27Id. Ch. 376. 281972 Fla. Laws, Ch. 72-317, codified at Fla. Stat. .012-380.12(1979). 29Id., .06 (1979) 30Id. .05 (1979). 31 1975 Fla. Laws, Ch. 75-257, codified at Fla. Stat. .3161-.3211 (1979). 32F1a. Const. Art. IV, ; Whitehead v. Rogers, 233 So. 2d. 330 (Fla. 1969). 33 Fla. Stat. .01 (1979). 34 See Fla. Stat., Ch. 372 (1979); Fla. Admin. Code, Ch. 16. 35 Florida Endangered and Threatened Species Act, 1977 Fla. Laws, Ch. 77-375 codified at Fla. Stat. .072 (1979). Endangered and Threatened Species Reward Trust Fund, 1979 Fla. Laws, Ch. 79-217, codified at Fla. Stat. .073 (1979). 36 1979 Fla. Laws, Ch. 79-190. See Stryker, Planning and Budgeting Reunited: A Contract Marriage, 7 Fla. Env. & Urban Issues 12 (1979). 37 Fla. Stat. 23.011-.017 (1979). 38A1ternative mechanisms for creating Regional Planning Councils have existed. Coqncils have been established pursuant to Fla. Stat. .01, 163.02 and Gh. 160 (1979). 39See .discussion in Section II1,C infra accompanying notes 34-60. 40RPC's may study original capabilities and needs in such diverse areas as criminal justice, water quality, disaster preparedness and health care. smaller local governments have contracted with RPC's for the preparation of local government comprehensive plans. 42F1a. Stat. .06(8)(1979). 43F1a. Stat. .07(2)(1979). 441980 Fla. Laws, Ch. 80-315 codified at Fla. Stat. 160.001-.. 008 (1980 Supp.). 45F1a Stat. .003(8); 160.01(1) (1980 Supp.). 46Id., .01(2), (3).

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47Id., .05(3). 48Id., .07 49Id. 50rd. SlId. -77-52 1972 Fla. Laws, Ch. 72-299 codified at Fla. Stat. Ch. 373 (1979). 53F1a. Stat. .073 (1979). 54Id., .026, .036. 55Id., .203-.2!t9. 56Id., .403-.443. 57Id., .036. 58Id., .106. 59Id., .313. 60Id., .323. 61Id., .114. 62Id., .503; F1a Const. (b), Art. VII. 63Id., .1962. 64 See for example, the creation of the Everglades Drainage District, 1913 Fla. Laws, Ch. 6456. 65Id., Ch. 6458. drainage districts may continue to be created under Ch. 298 is in doubt. See F1oi.ida Water Law 1980 at 157-160, discussing the Formation of Local Governments Act, 1974 Fla. Laws, Ch. 74-192, codified as Fla. Stat. Ch. 165 (1979). 67F1a. Stat., Ch. 582 (1979). 68Id., .231. 69Id., l61. 36. 70Id., Ch. 388. 71Id., .3001-.521. 72Id., Ch. 165. 731973 Fla. Laws, Ch. 73-129, codified as Fla. Stat., Ch. 166 (1979).

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-78-74Fla. Const., Art. VII, l(f) (1968); Fla. Stat., .00l-. 74(1979). 75Fla. Const., Art. VIII, (g)(1968); Fla. Stat. .80-.88(1979). 761975 Fla. Laws, Ch. 75-257 codified as Fla. Stat. .3l64-.32ll(1979). 771972 Fla. Laws, Ch. 72-317, codified as Fla. Stat. Ch. 380 (1979). 78ALI, A Model Land Development Code (1975). In actualIty, the law was modeled after Tent. Draft No.3, April 1971, which was the version available at that time. 79 Fla. Stat. .02l (1979). Although the state has authority to regulate land use decisions, it has traditionally delegated that power to local governments, Which are now very jealous of preserving their powers in this area. Finnell, Saving Paradise: The Florida Environmental Land and Water Management Act of 1972, 1973 Urb. L .. Ann. 103-136, 107. 80 The ALI Reporters believed at least 90 percent of the land use decisions currently being made by local governments have no major effect on the state or national interests." ALI, Model Code, supra note 78 at 50. If cumulative and aggregate impacts of those decisions are considered, the validity of that statement is doubtful. 8lSee discussion infra at notes 119-144. 82See discussion infra at notes 102-118. 83Fla. Stat. .05 (1979). 84Fla Stat. .05(2) (1975). 85Fla Stat. .05(20) (1979). 86 372 So. 2d 913 (Fla. 1978). 87 D Ad i L '1" t 00 2 17 See K. ye "aw ,.,l;'ea ;I,se to 88 See e.g., Conner v. Joe Hattcm, Inc., 216 So. 2d 209 (Fla. 1968); Sarasota County v. Barg, 302 So. 2d 737 (Fla. 1974). 891979 Fla. Laws, Ch. 79-73. 90 The effectiveness of this attempt to comply with the Cross Key Waterways decision has been questioned. See Pelham, Regulating Areas df Critical StateCdncern: Fldridaand theM6del Code, 18 Urb.L.Ann. 3-83, 71 (1980). 9lS d .. f St 11'1 D 2 67 71 ee l.SCUSSl.on l.n ra l.n ec l.on accompanyl.ng notes -. 92Fla. Stat. .05(1)(b)(1979). 93Id. 94Id., .05(6). 95Id., .05(8).

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-79-96Id. 380.05(9). 97 Id. 380 05 (17) 98Id. 380.05(8). 380.05(14). 100Id. 380.05 (13) lOiId. 380.07 (2) 102Fla. Stat. 380.06 (1) (Supp. 19S0) 103Id. S0.06(2); Fla. Admin. Code 22F-2. 104Id. 22F-2.0S. 105Fla. Admin. Code 22F-2.l0. 106Thus a development that does not Uleet the of the guidelines can still be a DRI if it meets the statutory definition. General Development Corp. v. Division of State Planning, 353 So. 2d 1203 (Fla. 1st DCA 1977); Pelliham, Regulating DevelopmentsdfRegional Impact: Florida and the Hodel Code, 29 U. Fla. L. Rev. 789,799-801 (1977). 107 Fla. Stat. 380.06(4) (Supp. 1980). 108See Finnell, supra note 79 at 129-30. 109Fla. Stat. 380.06(5)(c)(1979). 110Id., A recent article in the Gainesville Sun desc;t;"ibed the political machinations in Suwannee 'River City which resulted from this technical distinction in the ELA. The City Commission, which had planned to adopt land development regulations, delayed adoption so that the developer of a 160 acre site would not be required to have it evaluated as a DRI. Gainesville Sun, 2D, Wed., Feb. 15, 1978. lllFla. Stat. 3S0.06(5)(b)(1979). l12F1a. Admin. Code 22F-l.30. l13Fla. Stat. 380.06(5)(a), (6)(1979). Special procedures are mandated for consideration of the application. Fla. Stat. 380.06 (7) (1979) l14See discussion infra in Section III,F,4 accompanying notes 127-136. 115Fla. Stat. 38Q.06(1l)(a)(Supp. 1980). l16Id., 380.06(13).

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-80117F1a. Stat. 380.07(2)(1979). 118Id., 380.07(4). T:heL,and a,nd Wa,ter Adjudicatory COIQll}isaiQn tends to uphold the decisions of local government. 119Finne11, supra note 79 at 112. 120 1973 Fla. Laws, ch. 73-131. The Big Cypress was also removed from calculation of the 5% limitation specif;i.ed i.n Fla. Stat. 380.05(17) (1979). 121See L. Carter, The Florida Experience 20-21 (i974). i, 122 E b d 1sen u supra note at 6-8. 123 A South Florida regional jetport was one of the more threatening proposals. 124 See, L. Carter, supra note 44 at 232-40. See. Phase I. Golden Gate Estates Redevelopment Study, Collier County. Florida [hereinafter cited as Golden Gate Estates Study]; L. Carter,supra note 44 at 232-40. 125Id., Big CypreBs Study, supra note To its credit, Collier County is now 126 seeking to reverse the destruction. See Proposed Interim Modifications, Golden Gate Estates Canal System, Ch2 M-Hi11 November, 1978. L. Carter, supra note 121 at 248-51. 127Id. Carter described the proposed regulations succinctly: liThe basic objective was to maintain indigenous hydrologic and ecologic systems. In the sloughs and coastal wetlands, only 5 percent of any given site. could be disturbed and only half of that could be paved over or otherwise covered with impermeable surfaces For the higher .. the regulations were less restrictive, but, even there, not more than 10 or 20 percent of any site could be' disturbed' and only 5 or 10 percent covered with impermeable surfaces. Although some drainage could be allowed, would be expected to simulate natural surface flows and no discharges to tidewater were to be permitted. Even in the existing urbanizing areas ... the regulations would be significant; for instance, no mangroves could be disturbed, no new drainage facilities discha:r.ging to tidewater could be built, and no new construction would be allowed that did not meet standards prescribed under the national flood insurance program."ld. at 251. 128 650,000 acres outside of the proposed national preserve were originally included. This was reduced to 285,000 acres. ld. at 253-54. 129Fla. Admin. Code 22F-3. 130Id. 22F-3.06(1). however, that they expressly fail to regulate any of the hydrologic aspects of agriculture development or operation. Id., 22F-3.04, .07(4), .09(3). 132Id., 22F-3.06(5). 133Id., 22F-3.07(2).

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-81-l34Id., 22F-S.02. The area has since been redesignated by the Legislature. Fla. Stat. 380.0Sll(1979). 13S R. Healy, Land Use and the States 116 (1976). l36The rule designating the area lists the following objectives: 1. Minimize the adverse impacts of development on resources of the Floridan Aquifer, wetlands, and flood-detention areas. 2. Protect the normal quantity, quality and flow of ground water and surface water which are necessary for the protection of resources of state and regional concern. 3. Protect the water available for aquifer recharge. 4. Protect the functions of the Green Swamp Potentiometric High of the Aquifer. S. Protect the normal supply of ground and surface water. 6. Prevent further salt-water intrusion into the Floridan Aquifer. 7. or improve existing ground and surface water quality. 8. Protect the water-retention capabilities of wetlands. 9. Pr0tect the biological-filtering capabilities of wetlands. 10. Protect the natural flow regime of drainage basins. 11. Protect the design capacity of flood-detention areas and the water management objectives of these areas through the maintenance of hydrologic characteristics of drainage basins. Fla. Admin. Code 22F-S.03. 137 See Id., 22F-6, 7. 138 See Id., 22F-6.08(4). l39Id. l401d 22F-6.08(S). l4lId. 22F-6.08(12). l42Id. 22F-6.08(lO). l43Id l44Id. 22F-6.08(1l). l4SId. 22F-6.08(lS).

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-82l46R Healey, supra note 135 at 123. Three Rivers was planned to contain 18,000 dwelling units, housing 50,000 people, on a 5,800 acre tract of land. Id. l47Id l48Id l49Id. at 125. l50The Principal Investigator, Frank E. Maloney, was involved in this controversy as a consuilitant to the Southwest Florida Regional Planning Council. 151 2,800 acres were to be left undisturbed. 152 Development of Regional Impact Assessment, The Estuaries, No. 6-7475-5, Southwest Florida Regional Planning Council, April, 1976, [hereinafter cited as DRI Assessment]. 1. Net density was estimated to 13.0 dwelling units/ acre. l53Id. l54Id. at 4. l55Id l56See the Florida Aquatic Preserve Act of 1975, Fla Stat..35 .46 (1979). l57DRI Assessment, 4. l58It was estimated that approximately 25% of the development site would be covered by imperVious surfaces. DRI Assessment, 45. 159 Some of the pollutants associated with such runoff are nitrogen, phosphorus, bacteria, viruses, petrochemicals, and heavy metals. l60DRI Assessment, 50. l61Id at 68. l62Id at 28-37. l63S ee table; ld. at 29. l64Id. at 30. l65Id at 31l66Id at 32. 167 Cape Coral and Sani,bel Island both draw saline watel;" f;r;-oll} th.e sa,ll}e lIawtho;me and Suwannee formations and desalinate it for potable water. l68Id at 34.

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--83169 Id. at 37, 125. l70Estuary Properties, Inc.v. of City Comm. of Lee County, Case No. 76-1560, Division of Administrative Hearings, Order of the Land and Water Adjudicatory Commission, December 8, 1977. The decision of the Governor and Cabinet, however, has been reversed by the First District Court of Appeal :on the grounds that it constitutes an unconstitutional taking of private property. Estuary Properties, Inc. v. Askew, 381 So. 2d 1126 (Fla. 1st D.C.A. 1979). Ultimate resolution of the case will soon be made by the Supreme Court of Florida. l7lEnvironmental Land Management, Final Report to the Governor and the Legislature, Environmental Land Management Study Committee, 90, December 1973. One group calculates that only 35% of Florida is suitable for development. L. Carter, supra note 121 at 135 n. 24. l72Id. l73Fla. Stat. 380.04 (1979) l74Fla. Stat. 380.04(3) (e) (1979). l75Fla Stat. 380.031(7)(1979). 176 L. Carter, supra note 121 at 26-7. 177 Fla. Stat. 380.05(18)(1979). l78The statute specifically refers. to subdivision registration under Chapter 478 or recording of the subdivision under a local subdivision plan law. Fla. Stat. 380.05(18)(1979). 179 It appears unclear whether the qualifying phrase ... on which there has been reliance and a change of position" applies only to building permits or whether it also applies to subdivison approvals.ld. 180 Fla. Stat. 380.05(15)(1979). This section apparently refers to a line of Florida cases which have applied theories of estoppel to prevent govern ment regulation of landowners. See, Texas Co. v. Town of Uiami Springs, 44 So. 2d 808 (Fla. 1950); Sakolskyv. City of Coral Gables, 151 So. 2d 433 (Fla. 1963); City of Gainesville v. Bishop, 174 So. 2d 100 (Fla. 1st D.C.A. 1965) l8lSee notes l,2l-l25 supra and accompanying text; D. Baril,e, An EnviJ;'onmental Study of the M:elbourne..,..Tillman Drainage Distri.ct and an Evaluation of Alternative Land Use Plans for the City of Palm Bay. Florida. Masters Thesis, Florida Inst. of Techno16.gy (1976). l82DSP, Charlotte Harbor: A Florida Resource, DSP -BLWM 39-78. l83Fla. Stat. 380.05(1)(b)(1979). l84Id., .05(1)(c).

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-84-185F1a. Stat. 380.06(4) (a) (1979). (60 days for issuance of binding letter of interpretation); Fla. Stat. 380.06(7)(b)(1979) (If the Regional Planning Council needs more information than the application supplies, then it must request the additional information within 15 working days of receipt); Fla. Stat. 380.06(8)(1979) (The Regional Planning Council's report must be prepared within 50 days of receipt of public hearings on the application.) 186F1a. Stat .. 380.06(8)(1979). 187F1a. Stat. 380.07(2)(1979); Pelham, supra note 25 at 64-7. 188Sarasota County v. Beker Phosphate Corp., 322 So. 2d 655 (Fla. 1st D.C.A. 1975) (adjacent county had no standing to appeal decision of neighboring county); Sarasota County v. General Development Corp., 325 So. 2d 45 (Fla. 2d D.C.A. 1976) (county had no standing to appeal decision of municipality within its borders). 189 ALI, Model Code, supra note 78 7-502(2), 9-103(1)-(2). 190Id. 2-304(5), 7-502(2), 9-103(4). 1915 ee, notes 104-105,supra and accompanying text. 192 See, note 110 sup:na. 193Th 5% 1" f e 0 1m1tat10n, 0 course, generally precludes this action. 194 F1a Stat. 380.06(1)(1979). 195F1a. Admin. Code 22-F. 196 p 1h 90 802 803 e am, supra note at -. 197Th 'd d 1 d'f' th' t l' d th ere 1S eV1 ence eve opers are mo 1 y1ng e1r 0 s 1p un er e thresholds and thus escape regulation, Pelham, supra note 90 at 803. 198Id. at 803-804. 199F1a Stat. 380.10(1), (2)(1979); Pelham, supra note 25 at 801. 200Genera1 Development Corp. v. Division of State Planning 353 So. 2d 1203 (Fla. 1st D. C.A. 1977); Pelham, supra note 90 at 799-80l. 201Envii.onmenta1 Land Management. Final Report to the Governor and the Legislature, Environmental Land Management Study Committee, 9 (December, 1973). 202 Fla. Stat. 380.06(1l)(b) (Supp. 1980).

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-85203Quoted by Daniel W. O'Connell, Status Report on the Local Government Comprehenstve Planning Act of 1975: Problems and Prospects, 5 (Seminar, Updating the Land Use Game in Florida, Law Section and Local Government Law Section of the Florida Bar, Orlando, Florida, March 8, 1977)[hereinafter cited as O'Connell]. 204 Fla. Stat. 163.3161-.3211 (1979). 205 The Local Government Comprehensive Planning Act which was enacted was also based on a draft prepared by the Environmental Land Management Study (ELMS) Committee. See, O'Connell, supra note 203 at 5. 206 Fla. Stat. 163.3161 (1979). See generally, Sullivan & Kresse1, Twenty Years After Renewed Significance of the Comprehensive Plan Requirement, 9 Urban L. Annual 33-67 (1975). 207F1a. Stat. 163.3167(1979). 208F1a. Stat. 163.3194(1)(1979). Stat. 163.3164(11)(1979). 209F1a. 210Id. This total includes 390 municipalities, 66 counties and 3 special districts. See, O'Connell supra note 126, at 6. 211F1a. Stat. 163.3167(8), .3174(1979). 212Id., .3167(2)(1979). 213Id., 163.3167(7)(1979). 214Id., 163.3164(12), .3174(1)(1979). 215Id., 163.3174(1)(1979). 216Id. 217Id 218 O'Connell, supra note 203 at 7. 219F1a. Stat. 163.3174(5)(1979). 220Id., 163.3177(1979). 221Id., 163.3177(6) (a)'{1979). 222Id., 163.3167(6)(c)(1979). 223Id. 224Id., .3167(6)(d)(1979).

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-8"6225Id. 163.3167(6)(b)(1979). 226Id. 163.3167(6) (e) (1979). 227Id. 163.3167(6)()(1979). 228Id. 163.3167(6)(i)(1979). 229Id., 163.3167(6)(g)(1979). 23Two of the optional elements, regarding mass transit and ports, and airports, are required, however, for local governments with populations greater than 50,000. Id., 163.3167(6) (j) (1979). 231Id. 163.3177(7)(a)(1979). 232Id. 163.3177(7)(b)(1979). 233Id. 234Id. 163.3177(7)(c)(1979). 235Id. 236Id. 163.3177(7)(d)(1979). 237Id., 163.3177(7)(e)(1979). 238Id., 163.3177(7)()(1979). 239Id., 163.3177(7) (g) (1979). 240Id. 163.3177(7)(h)(1979). 241Id. 163.3177(7)(i)(1979). 242Id. 163.3177(7)(j)(1979). 243Id. 163.3177(7)(k)(1979). 244Id. 163.3177(7)(1)(1979). 245Id. 163.3177(2)(1979). 246Id. 163.3177(4)(1979). 247Id. 248Id. 163.3177(6)(h)(1979). 249Id.

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-87250Id., 163.3184(1)(a)(1979). This function was formerly performed by the Division of State Planning, which was dissolved in 1979. 251Id., 163.3184(1) (b) (1979). 252Id., 163.3184(1) (c) (1979). 253Id., 163.3184(1) (d)(1979). 254Id., 163.3184(1) (e) (1979). 255Id., 163.3184(2)(1979). 256Id. In practice the review is sketchy and not very helpful. The Division of Local Resource Management has one individual assigned to reviewing the hundreds of plans that are being received. A visit to his office finds them stacked in the hall for lack of storage space. 257 Id. 163.3184(3)(1979). 259Id. 163.3184(2)(1979). 260Id. 163.3184(5)(1979). 261Id. 163. 3181( 1979) 262Id. 163.3184(6)(1979). 263Id. 264 I. McHarg, Design With Nature (1969). 265 3 So. Fla. Water Management District Bulletin, No.9 (Oct. 1977); Also, inter-views and material on file with the author supplied by P. K. Sharma and Jeanne Crews of the District. 266 See, e.g., Mande1ker, The Role of the Local Comprehensive Plan in Land Use 74 Mich.L.Rev. 900, 965-71 (1976). 267See, e.g., Ore. Rev. Stat. 197.325 (1)(1979). 268See, Final Report to Governor Bob Graham of the Resource Management Task Force, Volume I Recommendations (January, 1980). The author served as staff to the Committee on Integrating Land and Water Planning and Administration. 269F1a. Stat. 163.3194, .3197(1979). 270F1a. Stat. 163.3194(1)(1979).

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-8827JSee generally, Mande1ker, Catalano and Dimento, Mandating Consistency Between General Plans and Zoning Ordinances: The California Experience, 8 ABA Nat. Res. Lawyer 455-660.975); Jarlock, Consistency With Adopted Land Use Plans as a Standard of Judicial Review: The Case Against, 9 Urban L. Amn. 69-109 (1975); Note, Comprehensive Land Use Plans and the Consistency Requirement, 2 Fla. St. L. Rev. 766-88 (1974); Arline, The Legal Significance of Looa1 Government Comprehensive Plan, (unpub1ish-ed seminar paper on file with the author). 272 J!la. Stat. 163.3194(3) (a) (1979).

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-89-274See Florida Dept. of Agriculture,Drainage Districts of Florida, Bull. 67, Series 9-14 (l93l);seegeIierally F. Maloney, S. Plager and F-:-B'aldwin, Water Law and Administration: The Florida Experience .1 (1968). 275 1913 Fla. Laws, ch. 6456 l, at 129. 276See M. Carter, Ecosystems Analysis. of the Big Cypress Swamp and Estuaries, (EPA, Region IV, June 1973); R. Eisenbud, An Examination of the Law Relating to the Water Ri hts of the Ever lades National Park: A Case Stud in Le al Problems of the Coastal Zone, Sea Grant Tech. Bull No. 21 Univ. of Miami; Sea Grant Program 1971); .Division .of State Planning, Tallahassee, Fla., Re ort of the S ecial Pro'ect to Prevent Entro hication of Lake Okeechobee (November 1976 ; D. Barile, An Environmental Study of the Melbourne-Tillman Drainage District and an Evaluation of Alternate Land Use Plans for the City of Palm Bay, Florida (Thesis to Graduate Council of Florida Institute of Technology, February, 1976). 277 1949 Fla. Laws, Ch. 25270, at 629. 278 1961 Fla. Laws, Ch. 61-691, at 230. 279See, Fla. Water Resources Study Comm'n, Florida's Water Resources, A Report to the Governor and the 1957 Legislature 14, 15 (1956). 28 Fla. Laws, Ch. 57-380, at 855. 281 1957 Fla. Laws, Ch. 57-380, (1)(a), at 858. 282 1957 Fla. Laws, Ch. 57-380, (1)(b), at 858. 283 Maloney, Ausness & Morris, A Model Water Code (University of Florida Press) (1972) 284 1972 Fla. Laws, Ch. 72-299; now Fla. Stat. .0l3-.433 (1979). 285 The 1972 Florida Water Resources Act established the Dept. of Natural Resources as the state level agency charged with regulation of consumptive use of water. Fla. Stat. .0l9(1)(1975). At that time, a separate state agency, the Dept. of Pollution Control was in charge of water quality control. Fla. Stat. .503(l975). To assure proper coordination of these two management functions, water use and water quality control,the 1975 Florida Legislature placed both under a single new environmental agency, the Department of Environmental Regulation. Florida Environmental Reorganization Act of 1975 Fla. Laws, Ch. 75-22, ,11. 286Fla. Stat. .0l6(3) (1979). 287 The Miami-Dade Water and Sewer Authority has faced just such a problem. "New Water Site Faces Pollution," The Miami Herald C-l (Jan. 2, 1977). 288See discussion accompanying notes infra.

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-90-:289 Fla. Stat. .016(2)(c), .86, .103(3)(4), .036(Z)(c)(1979). 290Mi11iman, Water Supply Planning and the Longterm Out1o.ok for Southeast Florida, 3, Vol. 1, No. 2 The Florida Outlook (Bureau of Economic and Business Research, U. of F. 1977). 291Centra1 and South Florida Flood Control District, Facts and Figures. 292 See notes 3Z0-336, infra and accompanying text. 293F1a. Stat. .413(1)(1979). 294Id., .416(1). 295Id., .403. 296Id., .403(1). 297Id., .019(11). 298 Id., .403(5). Note also the very brQ.ad definition of "waters of the state" in .019(a). 299 The damages referred to are: (a) A loss of natural water storage on the surface and in the ground. (b) Reduced when water table is below the surface, and thus reduced recharge of ground water. (c) Increased downstream flooding and erosion. (d) Destruction of habitat and natural water level fluctuations which are necessary for fish and wi1d1if.e. (e) Estuarine productivity is reduced both by diversion of fresh water from the estuarY,and by alteration of its rate of flow. (f) The natural filtering function of marshes and other vegetation is destroyed, bypassed, or overloaded, thus. causing open water pollution. (g) Increased pollution is generated by increased unwise human use of the area. (h) Fires, subsidence of soils, undesirable changes in vegetation, etc. result from the drying out of land. 300F1a. Stat. .406(1979). 301Id., .406(1). 302Id., .406(2) (Supp. 1980) Silviculture was added in 1980. 303= The Southwest Florida Water Management District has adopted a qualified interpretation of this provision. The exemption does not apply if the alteration results in substantially: (a) Altering the peak rate of flow or the total volume of discharge of waters into works of the District; (b) Altering the rate of flow or total volume of water withdrawn from works of the District;

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-91-(c) Altering the direction of surface runoff into works of the District; (d) Altering the water table or the level of the potentiometric surface. Fla. Admin. Code 16J-4.05(2). 304F1a. Stat. 40:6.(3) (1979) 305Id. .403(b) 306F1a. Admin. Code 161-4. 307Id. 16J-4. 308 Ido 16K-4. 309Id. 161-4.03. 310Id. 16J-4. 04 (1) 311Id 16J-4.04(2)(a)(b). 312Id., 16J-4.04(2) (c). 313Id. 16J-4.06(3),(4),(5). 314Id. 16J-4. 06 (3) (a) 315Id 16J-4.06(3) (b). 316Id. 16J-4. 06 (3) (c) 317Id., 16J-4.06(5) (a)-(e). 318Id., 16J-4.06 (4). N dO 1 b h d d ote con ltlons may a so e attac e to operatlon an maln-tenance permits. .. to assure that the permitted operation or maintenance will not be inconsistent with the overall objectives of the District and will not be harmful to the water resources of the District." Id., 16J-4.10(3). 319 Ru1e 16J-4.06(4)(e), which prohibits lowering the water table to such an extent that vegetation is adversely affected, is the type of criteria which is needed. It does not apply, however, within the boundaries of lands "owned, leased, or otherwise controlled by the applicant" and to that extent is of limited effectiveness. 320 See Fla. Admin. Code 16K-4. Note that these regulations were published under the District's former name, the Central and South Florida Flood Control District. 321Id., 16K-4.021(a) (1)-(6). 322Id., 16K-4.022. 323Id., 16K-4.021(1) (c).

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324Id., l6K-4.02l(a) (b)l. 325Id., (b)2. 326Id. 327Id., l6K-4.02l(1) (b)3. 328Id., l6K-4.02l(1) (d). -92-329Id., 16K-4'.,01, 4.03, 4.09. Note, however, the exemptions of l6K-4.l5(1). 330Id., l6K-4.l5(1) 33lId., l6K-4.l5(2). 332Id., l6K-4.035. 333Id., l6K-4.02l(1) (b)3. 334Id., l6K-4.02l(2). 335Central and Southern Florida Flood Control District, Annual Report for the Years October, 1974, thru September, 1976, at 11. 336Fla. Admin. Code l6K-34. 337Fla. Stat. .203-.249 (1979). 338Fla. Stat. .219(1)(1975). 339Id. Stat. .226(1979). 34lId., .223(1). 342Id., .0l9(5). 343 See generally, Maloney, Capehart & Hoofman, Florida's "Reasonable Beneficial" Water Use Standard: Have East and '
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-93-347 Fla. Stat. .042(1979). 348 The SFWMD began to review and comment on DR! applications for development approval in 1973. In 1974 it began to review zoning applications and subsequently began. reviewing subdivision approvals. SFWMD, Resource Control Department, Annual Report -Fiscal Year 1976-77, 3-4. 349Id., 27. 350SFWMD, Improvement of the Department of Regional Impact Process, (June 8, 1979)(Report submitted to the Governor's Resource Management Task Force). referred to as SFWMD DRI Report.) 35lAgreement Between the South Florida Regional Planning Council and The South Florida Water Management District, Article I, November 10, 1977. I assume the other agreements have the same language. These elements are further explained in Appendix B of SFWMD, DRI Report, supra note 350at 18-19. 352Id., Article 7 of the 353SFWMD, DRI Report, supra note 350 at i. 354Id. 355These criteria are contained or alluded to in the following letters from the District confirming the agreement. W. V. Storch, p E., Director, Resource Planning Department to J. Gary Ament, Development Coordinator, St. Lucie County (August 26, 1975); Peter Rhoads, Assistant to the Director, Resource Planning Department to Kris Schenk, Director, Martin County Planning and Zoning Department (March 28, 1976); Susan M. McCormick, Planner, Resource Planning Department to Chuck DeSanti, Assistant Zoning Director, Department of Planning, and Building (October 8, 1975); W.V. Storch, P.E., Director, Resource Planning Department to Robert F. Cook, Director, Metropolitan Dade County Building and Zoning Department (October 14, 1975). 356Resource Planning Department, Central and Southern Florida Flood Control District, Report to Governing Board on Land Development Review Activities, July 1, 1974 -September 30, 1975, p. 6 (June, 1976). 357See the discussion of the LGCPA at Section II,C, supra accompanying notes 203-272. 358SFWMD, DRI Report, supra note 350. 359See Fla. Admin. Code, 17-4 Memorandum of Understanding Between Corps of Engineers and Florida Department of Environmental Regulation on Permit Processing and Enforcement in the Waters of the State. 360 Fla. Stat. .809(1)(1977).

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-94-361 1972 Fla. Laws, Ch. 72-295; codified at Fla. Stat. .0ll-.0l3 (1979). 362 The Division of State Planning was in the Department of Administration. Fla. Stat. .0ll2(2)(1977). Its functions regarding comprehensive planning were transferred to the Office of the Governor in 1978. 363 Fla. Stat. .0114(1979). 364 Exec. Order No. 76-29; 6 Fla. Admin. Code, 22E-3.02. 365 The Principal Investigator for this study, Frank E. Maloney, served on the Policy Advisory Committee for the water section. 366 The Florida State Comprehensive Plan, 174 (Feb. 9, 1978). 367 See e.g., The Florida State Comprehensive Plan, 186 (Feb. 9, 1978). 368Fla. Stat. .013 (1975). 369Fla. Laws, Ch. 77-306. 370Fla. Stat..0l3(2)(1979). 37lExec Order 78-48 (August 28, 1978). 372Id 373Fla. Laws, Ch. 72-299, codified at Fla. Stat. .013-.6l6l (1979). 374 A Model Water Code, 70-71 (1972). 375Fla. Stat. .036(1)(1979). 376Id. 377F1a. Stat. .039(1979). The State Water Quality Plan is expected to be a compilation of State water quality standards and rules and the 208 plans. 378Fla. Stat. .936(1)(1979). 379Id. 380Fla. Stat. .036(2) (1979). 38lFla. Stat. .036(7)(1979). 382Id. 383F1a. Stat. .036(8), (9) (1979) 384Fla. Sta.t. .036(1)(1979).

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-95-385F1a. Stat. 386F1a. Stat. .036(4)(1979). 387 Governor's Resource Management Task Force, Committee Seven, Integrating Planning and Policy for Water Resources, Appendix C, p. 25, Final Staff Draft (Oct. 10, 1979). 388At the time the Florida Water Resources Act of 1972 was passed, the Central and Southern Flood Control District and the Southwest Florida Water Management District were already operating and funded by property tax revenues. See, Maloney, P1ager, and Baldwin, Water Law and Administration: The Florida Experience, (1968). 389 W. Storch, A Rough Cut Model of a South Florida Water Supply Plan Vol. 1, No.9, (Central and So. Fla. Flood Control District, Dec-Jan. 1973). See also, S. Winn, A Progress Report on. the South Florida Water Use and Supply Plan Vol. 3, No.3, (August, 1976). 390 Annual Report for the Years Oct. 1, 1974 -Sept. 30, 1976, 26 (Central and So. Fla. Flood Control District). 391 Fla. Laws, Ch. 75-22. 392Appendix C, supra note 387, at 26. 393Id. at 25. 394Id. at 27. 395Id 396 State Water Use Plan, December, 1978. 397Appendix C, supra note 31, at 28. 398Id 399F1a. Stat. .026(7)(1979). 400F1a Stat. .114(1979). The director of the department administering Chapter 373 was originally vested with this power, but it was removed in 1975. Fla. Laws, Ch. 75-22, 401Resource Management Task Force., Final Report to Governor Bob Graham, Volume I Recommendations, Volume II Appendix (January, 1980). 402Id., Volume 1,2. 403Id., 11-12.

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-96404Id., 31; The Auditor General recently made similar recommendations. See State of Florida, Office of the Auditor General, Performance Audit of the Administrative Structure of the State Water Management Program, 25-27 (May 21, 1980). 405 See proposed Chapter 17-40, Water Policy, Workshop Draft (2/12/81). 406Id.,

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-97-III. TECHNIQUES FOR THE INTEGRATION OF LAND AND WATER MANAGEMENT A. 1. Common Themes The search for integrating techniques and an evaluation of those that are examined must begin with a definition of what integration encompasses. 1 Webster defines the verb "integrate" as "to form into a whole: UNITE." The closely related concept to "coordinate" is defined as "to bring into a common movement, or condition: HARMONIZE." The basic purpose of integrating or coordinating land and water management is to create an holistic system for the management of those interrelated resources. Integration therefore has two goals which should be differentiated. The first concerns improving the quality of our society's relationship to the ecosystem. Land use decisions should be made with regard given to how they will affect the quality, quantity and availability of water. Similarly, decisions regarding the use of water should reflect a consideration for their effect on land and land use. In other words, all of our social, economic, 1egal,business and political decisions should be grounded in an awareness of and respect for environmental values and functions. To achieve substantial integration of land and water management, from this aspect, there must be substantial additional controls on land and water use. At a minimum, there would have to be a broadening of perspectives, which the present management system, looking at problems narrowly, if at all, does not foster. The second goal is to coordinate and integrate the functioning of existing governmental programs that affect or manage land and water resources in order to make them more effective and efficient. Such an integrated system would have several significant characteristics. Each agency and unit of government would

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-98-have knowledge of and would act with concern for the effect of its activities on the natural system as a whole and on the interests of other agencies or units of government. Information and opinions would be freely exchanged. Cooperation and mutual assistance would be emphasized. Unnecessary duplication would be eliminated. Conflicts and inconsistencies would be identified and resolved. To accomplish the integration of land and water management, a variety of organizational and procedural techniques may be used. The remainder of this report is devoted to a discussion of the most important techniques that have been developed. They share common themes. The communication of information facts, data, opinions, expertise and views --seems vital. The development of plans, environmental impact statements, formal review and comment procedure, and the creation of coordinating councils all help to facilitate the flow of information. The identification and resolution of conflicts or inconsistencies is a second major theme of the integrating techniques examined here. Reorgani-zations, delegations, and consistency requirements are used to shift the authority to make decisions. Finally, redundancy, overlap and duplication of effort are particularly the target of coordinated permitting procedures. 2. Caveat Although this report is primarily oriented toward showing why the integration of land and water management is needed, where it is presently occurring and how it can be improved, several cautionary remarks must also be included. First, complete and total integration is not possible. Both the natural world and the institutional context of management are too complex for the holistic ideal to ever be fully achieved. Clearly, everything is connected. But because everything is connected, it is beyond our capacity to manipulate variables comprehensively. Because everything is interconnected, the whole of the environmental problem is beyond our capacity to control in one unified policy.2

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-99-Second, the creation of a totally intregrated system for environmental management could have highly undesirable consequences. In particular, there is a danger of inhibiting the diversity and creative tension that seems needed in governmental affairs. I regard the fractionalization of effort as our only hope to maintain an inflow of diversified opinion which will permit the surfacing and consideration of all points of view. I don't believe there is any chance of lumping all environmental activities within one .agency, on either the federal or state level, without one 3 interest becoming the dominant interest and squelching all others. Third, the push for greater efficiency can leave many substantive concerns as casualties in its wake. Development interests frequently bemoan the mu1ti-p1icity of environmental hurdles they must overcome. Often, however, their con-cerns seem directed more at the substance than at the process. They do not want to comply with environmentally protective standards if profits will be reduced. "Red tape" is often a code phrase for "painstakingly crafted substantive laws. ,A In addition, the benefits of a careful decision-making process should not be 5 overlooked. Finally, the importance of individual human responsibility, creativity and initiative must be emphasized. Although revised procedures and organizations may often be necessary, the ultimate success of any integrating or coordinating technique ultimately depends on the attitudes and awareness of the people who staff government agencies. This is an intangible but most important factor. B. Reorganization 1. Consolidation in General Much of the current complexity, duplication and difficulty in resolving conflicts in land and water management may be attributable to the fact that there are so many agencies at each level of government, whose respective responsibilities overlap, and who are not all directly accountable to the same

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-100supervisory authority. Agencies that are independent of each other tend, at a minimum, to not communicate very well. At worst, they are adversarial in their relationship. Each agency has its own legislative authority, procedures, internal lines of communication and perceived mission. Each agency has relative independence in that adminstrators of each agency have some authority to shift funds, hire and fire, change rules and procedures, approve or disapprove permits and otherwise direct all parts of the agency in accordance with a common policy. No such direction is invested in one administrator over all of the agencies involved with land and water management in Florida. One option for integrating the planning and administration of land and water would be to consolidate these functions into one agency whose head could then integrate them.6 Reorganizations may also be used to separate overlapping jurisdictions or establish clearer mechanisms for the resolution of conflicts. The consolidation of disparate programs into one agency offers several advantages. It establishes clear reponsibility for natural resource management, thereby enhancing bureaucratic accountability to the public, the Legislature and the executive. "Passing the buck" is made mo.re difficult. Common goals can be more easily set and enforced. It is easier for a large agency to retain specialized expertise and shift it between departments than for separate agencies. Communication also seems to be enhanced. Most importantly, the adminstrative head of such an agency is uniquely capable of resolving conflicts as they arise. Indeed, that is a chief responsibility of such a person. With the widened perspective of broadened responsibilities, interactions can be seen and considered, appropriate tradeoffs can be made, and a more ecologic, holis'tic management can be implemented. The effectiveness of consolidated natural resource management programs in states such as New York, Wisconsin, Minnesota and Georgia is evidence of these advantages.

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-101Significant disadvantages may also accrue to large "super agencies". Size can make them cumbersome and unwieldy, difficult to administer effectively. Rather than becoming integrated, the various land and water management programs may continue to operate separately, submerged within a "holding company". Accountability may thus be lessened in reality and interagency conflict, rather than being reduced, may simply become intra-agency strife. Finally, the checks and balances that come from having differing views advocated by different agencies in the public arena, would be lost. A strong administrator may suppress certain ideas and stifle opposing views. Reorganization is clearly no panacea. As Petronius noted in 66 A.D.: We strained hard .. but it seemed that every time we were beginning to form a team, we were reorganized. I was to learn later in life that we tend to meet any new situation by reorganizing. This is a wonderful method for creating an illusion of progress while producing confusion, inefficiency and demoralization. 2. Consolidation in Florida The 1975 Environmental Reorganization Act was intended to consolidate land d 1 7 an water management programs ln a slng e state agency. For a variety of political reasons, it was only partially successful. Although many pollution control and permitting functions were consolidated into the Department of Environ-mental Regulation, whose Secretary is appointed by the Governor, many related functions remained in the Department of Natural Resources, whose Executive Direc-tor is responsible to the Governor and Cabinet. In addition, the authority to review water management district rules and orders was :p1aced in the Governor and Cabinet, with general supervisory authority given to DER. At the state level, four agencies presently exercise major, overlapping 8 responsibilities for land and water management. The Department of Environmental Regulation regulates dredge and fill, discharge of water pollutants, discharge

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-102of ai.r pollutants, sewage treatment systems, landfills, hazardous wastes, and potable water systems. In addition, it oversees public works funding, lake restoration proj ects, wa.ter quality planning and "supervises" the water manage-ment districts. The Department of Health and Rehabilitative Services regulates septic ta.nks. The Department of Natural Resources regulates dredge and fill of sovereignty submerged lands and coastal construction setback lines. In addition, it manages preserves, parks and saltwater fisheries. The Department of Community Affairs administers the DRI and Areas of Critical State Concern processes. There is excessive duplication and overlap in this system. Although DER has responsibility for protecting water quality, HRS regulates septic tanks, a major potential source of water pollutants. The coastal construction setback line is regulated by DNR, while coastal zone management planning is conducted by DER, and the determination of whether a development in the coastal zone is a DRI rests with DCA. Thi.s is illogical. On the regional level, DER regional offices process many of that agency's less major permit applications for dredge and fill or discharge of water pollutants. Water management districts are authorized to prepare water management plans, construct and operate water control structures, regulate consumptive use of water, regulate surface water management systems, and regulate discharge to underground formations. Regional Planning Councils prepare regional plans, advise local governments, make recommendations regarding DRIs and can appeal local government DRI development orders. Several options for consolidating land and water management authority were considered by the Governor's Resource Management Task Force.9 The most sweeping proposal that was discussed had been developed by the Chamber of Commerce. It provided for the merger of state level land and water management functions into a new Department of Resource Management under the Governor and Cabinet. All of

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-103the regional functions would be consolidated into Regional Environmental Dis-tricts. Regional Environmental Districts (REDs) would be organized along the lines and would assume the duties and taxing authority of water management districts. In addition, the districts would exercise the regional permitting certification functions of DER and the DRI review and appeal functions that RPCs presently exercise. State oversight would be the responsibility of the Department of Resource Management. This option was rejected by the Committee. Although it remains viable as a theoretical concept, it does not appear to have much political support in Florida. 3. Delegation Another type of reorganization, involving the reallocation of responsibility and authority between levels of government occurs when one agency delegates its permitting duties to another. Since decision-making is then centered in one agency rather than several, redundancy, overlap and inconsistency can be reduced. Those who are regulated then only have to deal with a single agency rather than two or more. Delegation can also serve to bring regulation down to a level that is more familiar with local problems and conditions. Regulation can thus be made more effective. On the other hand, if lower levels of government are more r.esponsive to development interests, then regulatory objectives may noy" be attained. There is also a danger of transforming the recipient of the author-ity into a mere agent of the delegator. The delegation of permitting authority to the states is very common in federal programs. The Clean Water Act, for example, provides for the delegation to state pollution control officials of authority to issue discharge permits 10 under the National Pollutant Discharge Elimination System. In order to qualify for a delegation of this authority, a state must meet certain crite.ria designed to ensure that federal obj ectives will be met in the absence of direct federal

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-104permitting. In addition, the delegating agency, in this case the United States Environmental Protection Agency, retains authority to review state issued permits and supersede them when necessary. The delegation may also be revoked if the authotity is not exercised in accordance with federal standards. This pattern of delegation, with accompanying restrictions, is very typical of federal per-mitting programs. Similar delegations could be useful in Florida. The Governor's Resource Management Task Force recommended, in particular, that some of the water quality permitting of DER be delegated to water management districts, thereby .. l' d .. 1 1 1 11 lntegratlng water qua lty an quantlty management on a regl0na eve. De1e-gat ion of certain water quality management tasks to local governments was also recommended. In both instances, DER would retain strong oversight powers. C. Review and Comment Procedures 1. Introduction Procedures for the review by one agency or unit of government of the plans, permits or other proposed actions of another can help to integrate land and water management. Comments submitted by the reviewing agency may contain a technical evaluation that the recipient could not make. They might also contain informa-tion regarding possible conflicts with the activities or interests of the reviewer. The identification and resolution of such conflicts is thus facilitated. A wide variety of procedures have been devised for the exchange of this type of information. Environmental Impact Statement (EIS) procedures are perhaps the best known, but those of Circular A-95 are also significant. Numerous other more local systems are in use. All of them help to create the conditions under which disparate programs and interests can be coordinated. Their common weakness, however, is that they cannot reconcile the conflicts that are identified.

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-1052. Environmental Impact Statements (EIS) The National Environmental Policy Act of 1969 (NEPA)12 established a national policy to integrate land and water management. Congress specifically recognized the profound impact of man's activity on the interrelations of all components f h 1 ,,13 d dId h F dIG h o t e natura enVlronment... an ec are tee era overnment. as a responsibility "to improve and coordinate Federal plans, functions, programs 14 and resources .. to attain environmental quality. NEPA was thus designed to force the myriad of government agencies to manage the nation's resources in a h d' d 15 compre enSlve, coor lnate way. NEPA's "action-forcing,,16 heart is the requirement that "every recommendation or report on proposals for legislation and other major Federal actions signifi-cantly affecting the quality of the human environment contain a detailed 17 environmental impact statement. Environmental impact statements must be a comprehensive compilation and disclosure of information on the potential environ-mental impacts of a project. Most importantly it is meant that decision-makers use this information in evaluating whether to pursue a particular course of action. The environmental impact statement is intended to cut through bureau-cratic myopia and force officials to consider the interrelated effects on land and wat.er resources of their ded:.isions. For example, prior to NEPA, an official who was planning a highway could limit consideration to such factors as distance, cost, and expected usage. If a highway were needed between two points then it would be routed so as to be most convenient to drivers and least expensive, monetarily, to construct. If that alignment cut through the center of a vital wetland,: it was irrelevant to the planner, except for the fact that expensive filling would be necessary. NEPA gave such a planner the additional responsi-bility of considering the effects of highway construction on the wetland ecology and of considering less damaging alternatives.

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-106In addition to forcing agencies to consider the impacts of their activi-ties on the environment, NEPA forces them to consider how those activities interrelate with those of other agencies. Prior to the passage of NEPA, Senator Jackson noted, "The present problem is not simply the lack of a policy. It also involves the need to rationalize and coordinate existing policies.,,18 Accordingly, NEPA directs: "Prior to making any detailed statement, the respon-sible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. ,,19 Guidelines issued by the Council on Environ .... mental Quality for preparation of environmental impact statements also require that state and local agencies be given an opportunity to comment on the proposed federal action.20 Failure to offer other agencies and the public an opportunity to comment on an environmental impact statement may result in rejection of it by 21 a court. Furthermore, those comments must be meaningfully considered. Other agencies and individuals whose environmental interests will be affected by a proposed federal action thus have a right to show how the action will conflict with their programs, goals or policies. Although in most cases the agency may continue with the project despite the conflict, it must address the issue and rationalize its action. Strong pressures can thus be exerted for the agency to d """ "h h f h 22 coor lnate ltS actlvltles Wlt t ose 0 ot ers. Finally, NEPA may have broadened the legislative mandate of many agencies to include implementation of its policies, authorizing them to undertake environmental programs which they felt were unauthorized by previous law. 23 Although there was conflict in Congress over whether NEPA should have the effect of changing existing agency mandates, it appears Senator Jackson and those who f d bl k d "I d 24 avore a an et man ate preval e NEPA, therefore "authorizes and directs that, to the fullest extent possible, ... the policies, regulations, and public

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-107laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act.,,25 It includes such language as "[A]ll agencies of the Federal Government shall (A) Utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking which may have an impact on man's environment.,,26 Furthermore, "1;he goals and policies set forth in this Act are supplementary to those set forth in existing authorizations of Federal agencies.,,27 Although the agencies have been reluctant to base their action on any 28 expanded authorization stemming from NEPA, ... NEPA has been used as authority for regulating the use of off-road vehicles on public lands, for barring the use of poisons in federal predator-control programs, for modifying the multiple use concept of national forest management, and for regulating mining on national forest 1ands.29 NEPA has tended to aid the integration of land and water management in three important ways. First, it requires agencies to consider all of the significant environmental effects of their projects. The impact of a land use modification on the water regime must now be considered whereas previously it could have been ignored. Unfortunately, a strongly single-purpose agency may of those effects, but they must be formally considered. Second, NEPA forces an agency to consider the views of other agencies and groups through formal commenting procedures. Comments may not be ignored, but must be addressed. The views of another with expertise in particular b h 30 must e glven great welg t. Although the conflict may continue, it must be recognized and rationalized. Third, NEPA may have broadened the authority of existing agencies where necessary to implement its policies. Agencies thus may have greater powers to take whatever action is necessary to ensure that environmental impacts A.re

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-108minimized and that programs are consistent with thoRe of other agencies. The deficiencies of NEPA, or of any similar process for developing envi-1 1"' f ff' 31 ronmenta lmpact statements, are lmltatlons 0 e ectlveness. Agencies are required to develop analyses of environmental impact and consider the comments of reviewers, but they are not required to conform their action to any standard. The EIS process can thus become a vast and cumbersome exercise in paper shuffling. 3. A-95 Review The Office of Management and Budget has initiated a major program, detailed in Circular A-95, to coordinate federal or federally assisted programs with those of state, regional and local authorities. The program utilizes a network of state and areawide planning and development clearinghouses which must be given an opportunity to review federal programs or requests for federal ass is-34 tance. A wide range of activities must undergo A-95 review. The program applies 35 to projects or activities for which federal assistance is being sought; to d f dId 1 .. 36 f d 1 h' h lrect e era eve opment actlvltles; to e era programs w lC requlre a state plan as a condition for receiving assistance;37 and to all federally assisted multijurisdictional and areawide planning.38 In addition, agencies which grant licenses or permits "for developments or activities significantly affecting area:and community development or the physical environment" are urged to utilize the A-95 clearinghouses.39 The A-95 clearinghouse has two major functions. First, it acts as a cooy.dinating body. After the clearinghouse is notified of a project or application, it has the function of notifying other appropriate state or local agencies and then acting as liaison with the federal agency or applicant.40 Second, the

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-109A-95 clearinghouse is responsible for making comments and recommendations on the project or app1ication,41 "for the purpose of assuring maximum consistency 42 ... with State, areawide and local comprehensive plans." d d'd f 43 Comments or recommen atlons are encourage on a Wl e range 0 lssues including: (1) E 1 f' h h' 1 44 b' va uatlon 0 conslstency Wlt compre enSlve pans, 0 ]ectlves, 1 d .. 45 goa s, an prlorltles; (2) Analysis of whether the proposal "duplicates, runs counter to, or needs to be coordinated with other projects or activities"; 46 (3) Consideration of environmental impacts.47 Another important aspect of Circular A-95 relates to the coordination of 1 l' d' 1 48 p annlng ln mu tlJurls lctlona areas. First, the boundaries of any planning district designated under federal programs must conform to the boundaries of planning districts designated under state programs "unless there is clear justification for not doing so .49 If no state planning districts have been esta-b1ished, local governments and the Federal Regional Council must be consulted h h .. d' 50 to assure conslstency Wlt ot er eXlstlng lstrlcts. Second, federal agencies are required to develop procedures applicable to multijurisdictiona1 planning activities funded by them designed "to assure the fullest consistency and coor-dination with related planning and development being carried on by the area'wide h 1 1 h ,,51 compre enSlve p annlng agency or c earlng ouse .... Applicants for multijuris-dictional planning assistance must submit to the federal funding agency a memorandum of agreement with the applicable areawide comprehensive planning agency specifying how coordination will be achieved.52 The agreement must identify relationships between the organizations and the activities which should be coordinated 53 and specify lithe organizational and procedural arrangements f d h ... 1154 S d h or coor lnatlng suc actlvltles. uggeste arrangements are to ave over-lapping board memberships, joint review of projects and activities, and a system 55 of information exchange. Arrangements for the cooperative sharing of resources

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-110must also be included.56 Finally, the memorandum must contain "agreed upon base data, statistics and projections for planning.,,57 The impact of Circular A-95 may be considerable, because it gives an agency with a regional integrated perspective the authority to review and attempt to coordinate a myriad of programs with land and water management implications. Although the role of an A-95 clearinghouse is only advisory, """d b h f d 1 "58 0 ltS comments are glven serlOUS conSl eratlon y tee era agencles. ne commentator reports that the federal government has followed the recommenda-tions of a regional agency with which he is familiar in 90% of the applications reviewed by it.59 To the extent that regional planners are given influence over the disbursement of federal money, they have obtained a powerful tool.60 4. Evaluation The EIS and A-95 procedures are not, of course, the only instances where review and comment are practiced. Previous sections of this report described procedures for the review of local .land use decisions by water management districts and the review by a variety of other interests of local government comprehensive plans. Such procedures are valuable in several ways. They help to identify inconsistencies and conflicts. Other agencies, units of government, and interest groups can make their views or knowledge known. If all parties are willing, some accommodation or mitigation can be negotiated. If not, then at least the conflict has been identified. More often, the review process helps to establish common points of agreement. As noted previously, however, there are deficiencies that make this tech-nique incapable of fully integrating land and water management. It tends. to be extraordinarily cumbersome. Vast quantities of paper are generated and never read by those who should do so. More fundamentally, although the review and comment procedure can help to identify conflicts, it cannot relieve them.

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-111-Altheugh the identificatien ef incensistencies is a necessary first step in the integratien ef pregrams, it is net the final ene. Semeene must be empewered to. go. further and make whatever dettisiens are needed to. resolve cenflicts. D. Ceerdinating Ceuncils 1. Overview One very cemmenly used technique fer integrating etherwise independent land and water management pregrams is to. establish a ceo.rdinating ceuncil, with repre-sentatien en it ef varieus agencies, units ef gevernment and greups whese interests transcend erganizatienal lines.6l Ceerdinating ceuncils serve several f 62 unctlens. Like review and cemment precedures, they serve as a means by which the members can exchange infermatien and share perspectives. They enable the greup to. focus en cemmen preblems. Hest impertantly, ceerdinating ceuncils pro.vide a ferum in which cenflicts can be reselved threugh debate and negetiatien. Activities that sheuld net be censelidated into. a single agency can there-by be ceerdinated. C d '1 h b f d' f" 63 eer lnatlng ceunCl save een erme ln many cen 19uratlens. In seme states the cabinet acts as a ferm o.f ceerdinating ceuncil. In ether states, interagency greups have been established by statute er executive erder. Regienal ceuncils, primarily cempesed ef representatives ef lecal gevernments, ceerdinate intergevernmental relatiens in many areas. Numereus ceerdinating ceuncils are werking in the state ef Flerida. The Ceerdinating Ceuncil en the Resteratien ef the Kissimmee River Valley and Tayler Creek-Nubbins Sleugh Basin was created to. develep means ef undeing the damage caused by channelizatien ef the Kissimmee River.64 As part ef Flerida's Co.astal Zene Management Pregram, an Interagency Management Cemmittee, cemposed ef several principal agency heads, was established to. ceerdinate state pregrams

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-112-affecting coastal land and water resources.65 Eleven Regional Planning Councils, made up of local government representatives and gubernatorial appointees, per-form many coordinated tasks. The author is most familiar, however, with the Resource Planning and Management Committees established pursuant to Section 380.045. 2. Resource Planning and Hanagement Committees Previous sections of this report described the process by which areas of critical state concern are designated and local land use controls are preempted 67 by the state. There are strong traditions of land development and home rule in Florida. In both instances where the state has exercised the power to designate areas of critical state concern, there has been vociferous opposition by local interests. Considerable controversy surrounded both efforts. When, in 1977, the state began to examine another area for possible designation, the Apalachicola Bay region, it decided to take a more conciliatory tack.68 The regional need was to resolve certain conflicts that were arising between the development of upriver areas and the protection of the estuary and its associ-ated fishing industry. A committee was established with representatives of both upriver and estuarine local governments. Technical assistance was provided by the Division of State Planning. Results were encouraging. Through informal meetings and negotiations, the participants came to understand each others' positions, discovered points of common agreement and eventually developed a unified position on several important issues. As a result, legislation was introduced to formalize such committees and make them a part of the process for designating areas of ciiti:ical state concern. Section 380.045 of the Florida Statutes now requires the Governor to designate a resource planning and management committee for any area under consideration for designation as an area of critical state condern. The committee must include

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-113-representatives of elected officials, planning officials, the regional planning council, the water management district and other representatives deemed appro-priate by the Governor. It is required to meet for at least six months prior to a designation, but can meet longer. The statutory purpose of a resource planning and management committee is "to organize a voluntary, cooperative resource planning and management program to resolve existing, and prevent future, problems which may endanger those resources, facilities, and areas described in .05(2)." Its only power is to make a recommendation as to whether.an area should be designated. The first such connnittee established was formed to address the serious: problems confronting the three counties which surround the Charlotte Harbor estuarine area.69 The waters of the Myakka, Peace and Caloosahatchee Rivers, draining into an embayment formed by several relatively underdeveloped barrier islands and fringed by extensive wetlands, form one of the largest, most pris, 'd 70 t1ne estuar1ne systems 1n E or1 a. The development of surrounding lands, however, is a major threat to the system. The current population of Lee, Charlotte and Sarasota counties is about 200,000. Yet over 800,000 lots have been platted and not yet builtl upon. Massive, ill-planned, subdivisions have scarred the landscape. Wetlands have been drained or filled, homesites are highly subj ect to. flooding, the sources of water supply are uncertain, and water quality degradation seems inevitable if development proceeds as envisioned. The committee appointed by Governor Graham had four from each county --an elected official from the county, an elected official from a dId I' 71 major C1ty, a eveoper an an enV1ronmenta 1st. In addition, representatives of the Department of Community Affairs, the Department of Environmental Regula-tion, the Department of Natural Resources, the Southwest Florida Regional Plan-ning Council, the South Florida Water Management District, and the Southwest Florida Water Management District were members. Other persons participated on

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-114-an ad hoc basis. The :Principal Investigator on this project, Dean Frank E. Maloney, was named Chairma.n. The committee was given one year by the Governor to develop recoTIlTIlendations. The initial meeting of the Charlotte Barbor Committee focused on attempting to define the problems of the area and the goals of the group. Two goailis were identified: (1) To maintain and improve the functional and structural integrity of the natural estuari.ne ecosystems and related coastal components through coordinated management of human impacts in surrounding uplands and freshwater systems. (2) To identify and address the impact of growth so as to minimize or eliminate any adverse effects on the Charlotte Harbor area. Specific problems in the areas of intergovernmental coordination and decision-making, community infrastructure, water quality and quantity and natural systems were identified. General recommendations were developed. Discussions were intense, lengthy, confused and sometimes acrimonious. A year after beginning, the committee had only developed some rather general recommendations. Then, something tragic happened. The Chairman suddenly and unexpectedly died. A new Chairman was appointed just before the final meeting. At that meeting, the CHC voted to adopt the recommendations it had developed and recommend that the Governor reconstitute the committee to work toward imple-mentation. Their recommendation was accepted and the committee is continuing. Recommendations have been made more specific and the focus is now on evaluating how well local governments are impelmenting the recommendations of the committee. Specific criteria for making such evaluations have been adopted and will be recommended to the Governor after a formal hearing in April, 1981. The ultimate success of this effort will depend, of course, on the extent to which local governments implement the recommendations of the committee and whether the estuarine ecosystem is thereby protected from the impact of human

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.:..115activities in "surrounding uplands and freshwater systems." Only time will tell on that point. Heanwhi1e, significant smaller successes are identifiable. Herely bringing together all the diverse interest groups,agencies and units of government has clearly enhanced communication and mutual understanding. Some conflicts have probably been avoided and a common focus has been brought to bear on the enormous problems of the area. The deficiencies are the same as those which afflict any similar coordinating council. There was considerable confusion as members postured, jockeyed for position and tried to set a course of action with little guidance as to what direction they should be heading. The commitment of sufficient time and money to really accomplish the needed tasks in an expert manner was also not forthcoming. 3. Evaluation Coordinating councils perform valuable functions that can help to integrate land and water management. They provide a forum through which technical infor-mation and points of view can be exchanged. The interrelationships of various programs can be explored. Conflicts can be identified and discussed. Opportunities for cooperation may be explored. As the Council of State Governments has stated, however, On the whole, then, 'interagency councils seem to have been relatively effective to date in those States where they have been used. They depend heavily upon communications and mutual cooperation to achieve coordination. Their primary weakness is probably a tendency to degenerate discussion groups. This happens most often when there is no specific focus for the council's activities or no substantive responsib1ities to perform.72 The most successful coordinating councils seem to be those that have some substantive authority to implement their recommendations. A Tahoe Regional Planning Commission, for example, established in 1961, was largely ineffective.73 Although it had adopted a regional land use plan, it "had no authority to implement the plan itself or to require local governments to adhere to it.,,74

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-116-A successor, the Tahoe Regional Planning Agency, was created by interstate compact with power to directly regulate land use. It appears to have been much more effective. The Twin Cities Metro Council has been similarly success-fu1, largely because it was given authority to disapprove local plans that are 75 inconsistent with certain regional plans. E. Integration Through Planning The development and implementation of comprehensive plans for the use of land and water resources appears to offer the greatest potential for integrating 76 the management of them. Indeed, it is a necessity. In order to bring order and consistency out of the chaos of numerous, sometimes conflicting programs, common goals and policies must be established. These are complex problems that cross all jurisdictional boundaries .. If government actions and activities are to aihi:e:v:e compatible objectives, overall goals and priorities must be defined, and policies and pro-gralIfS at all government levels coordinated within this framework. The function of a .... planning process is to provide .. this capability to define goals and policies, determine priorities, allocate resources and coordinate activities.77 The existence of some means to ensure implementation or enforcement of the plan is essential, however, for success. Otherwise, the process can easily become an exercise in futility --planning for the sake of planning --with little sub-stantive effect on the conduct of functional programs or on the use of resources. Few states have an effective comprehensive planning process. Those plans which are developed tend to be overly broad and general. They also tend to go out of date quickly or to be simply unrealistic. These defects result from the immensity of the task and the fact that few plans have any "teeth"--they are unenforceable, so they do not matter and little attention is given to their deve10pmen t One noteworthy exception is the state of Oregon. In 1973, Oregon established

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-117-a Land Conservation and Development Commission (LCDC), composed of seven b 1 78 gu ernatorla appolntees. The LCDC is required to "adopt state-wide planning goals and guidelines for use by state agencies, cities, counties and special districts in preparing, adopting, revising and implementing existing and future comprehensive p1ans.,,79 Local governments, in turn, are required to adopt local comprehensive plans which are consistent with the state goals and guidelines and implement them through appropriate zoning, subdivision and other ordinances.80 The comprehensive plan is to be "a generalized, coordinated land use map and policy sta,te 1l!ent q:f the goyex-ning body that interrelates all and natural \ systems and activities relating to the use of lands [which are defined to include waterJ To enforce these requirements, the LCDC is empowered to review local government comprehensive plans, implementing ordinances and land development decisions to ensure consistency.82 If a local government refuses to comply, then 83 the LCDC can develop and administer a comprehensive plan for the area and charge the expense to the local government. 84 The Metro Twin Cities Council, discussed previously, is another example of 85 how the enforcement of plans can help to integrate land and water management,. Sprawling land development in that area had threatened to destroy natural resource areas, pollute ground and surface waters and increase the cost of providing such services as water and sewers. In response, the Metropolitan Twin Cities Council was created and given responsibility to assist local governments in the development and impe1mentation of local comprehensive plans consistent with a development framework adopted by the council. 86 Four "metropolitan system plans" for transportation, airports, open space and sewers are particularly significant. The Metro Council can disapprove local plans and local governments are prohibited from allowing development that is inconsistent or conflicts with one of the system plans.

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-118Other schemes for developing consistent, effective plans have been implemented in the coastal areas of California,87 the Portland, Oregon area,88 the New York Adirondack Park,89 and Lake Tahoe.90 State approval and coordination f I 1 1 d' A l' 91 d' h N hId 92 o oca pans 1S requ1re 1n ustra 1a an 1n teet er an s. In Florida, local governments are required to develop comprehensive plans and subsequent development decisions have to b.e consistent with the plan, but there is no 93 requirement for approval by state or regional levels of government. In addi-tion, as discussed previously, state and planning are largely uncoordinated and ineffectual.94 Proposals by the Governor's Resource Management Task Force, following h h 1 hOld h h" 95 somew at t e same 1nes as t e regon system, wou c ange t 1S sltuat10n. Their recommendation was to create an hierarchical system of comprehensive plans. State policy would be adopted and used to guide the development of more specific regional policies. Local comprehensive plans would be developed in accordance with the regional plans. Consistency of local plans with regional policy and of regional policy with state policy would be mandated, and enforced by review and certification procedures. Land development would have to be consistent with the planning framework. The implementation of such a comprehensive planning system seems necessary if consistency in land and water management is to be achieved. Someone must be given authority to resolve conflicts between the multitudinous programs, agencies, units and levels of government in Florida, but this role could only be performed rationally by reference to an integrated, comprehensive plan.

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-119-F. CoordinatedPermitting 1. Overview j Many programs for the management of land and water resources are ultimately implemented through permitting systems. These programs often have different, sometimes conflicting, objectives. Procedures are also frequently at variance with one another. The system as a whole has thus become extraordinarily complex. It is expensive to administer and it is expensive to participate. Developers view themselves as victims of an overly complicated, confusing, redundant and inconsistent morass of rules and regulations, administered by an alphabet soup of bureaucrats. Developers have difficulty identifying the rules applicable to their development and the agencies responsible for administering them. They also have trouble obtaining decisions once jurisdiction has been established. The costs of delay seem particularly objectionable: The American developer is confronted with a bewildering and time-consuming proliferation of regulations at virtually every level of government. The cost of meeting the myriad of requirements a developer now faces is less in preparation of the documenting materials and more in the cost of delay itse1f.96 Citizens who are concerned with protecting environmental quality also suffer when the system is unnecessarily complex and fragmented. The multiplicity of permits and complexity of the permit process are bewildering. Environmentalists have a difficult time identifying the laws with which a developer must comply and determining where citizen input is necessary in the numer0US permit granting procedures of state agencies. Equally important, environmentalists are concerned that because of the fragmented, complex permit granting process, the public's interest is not adequately protected through the cluster of low visibility decisions made by state agency officials. In fact, some environmental advocates assert that current permit granting activities have become so complex and confusing that the legislative intent and mandate of many environmental safeguards are not being fulfilled. Procedural games have displaced analysis of proposals as the dominant activity in permit acquisition. As a result, the quality of public policy decisions regarding permits has declined. 97

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-120For these reasons, improvement of the permitting process has become a major governmental objective. Simplistic solutions, however, are unlikely to be implemented. 'One-stop shopping' --the delegation of all authority over land use and environmental issues to a single 'czar'--cannot, realistically speaking, be accomplished. The issues are too complex; our political institutions, too varied. There are, however, very real opportunities for simplifying present control systems and, in the process, improving the quality of development and enhancing the fairness and efficiency of procedures.98 The coordinated permitting procedures discussed below are representative examples of a type of reform that is likely to become more and more common. 2. Washington's Environmental Coordination Procedures Act (ECPA) The Environmental Coordination Procedures Act (ECPA),99 enacted in Washing-ton, does two things. It a centralized mechanism for disseminating information about the regulatory and it creates an optional consolidated procedure for obtaining state permits. Both aspects of the ECPA are administered by the Department of Ecology (DOE). DOE is directed to establish permit information centers at its central and regional offices where citizens can go and receive information regarding the "" f f dId 1 1 "100 permlttlng requlrements 0 e era, state an oca agencles. In addition, each county is directed to establish an office for receiving master permit applications. Personnel in these offices are to assist citizens in preparing master permit applications and have responsibility for submitting them to the DOE. The consolidated permitting process is initiated by submission of a com-1 d "1"" 101 pete master permlt app lcatlon. A certification by the local government that the project complies with the local comprehensive plan and zoning ordinances h 1"" 102 must accompany t e master app lcatl0n. Once it has certified a project, the local government is prohibited from changing its rules during the pendency of

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-121-master application processing. However, if the local government so chooses, it can have the request for certification processed as part of the master appli-cation. In that case, it has the same status as one of the state agencies. Upon receiving the master application, the Department of Ecology notifies h h h h 103 ot er state agencles t at may ave an lnterest ln t e proJect. Those agencies can then respond in one of two ways. They may notify DOE that they have no interest in the project, in which case they are barred from ever claiming juris-diction. Or they may notify DOE of which permits are needed and whether public hearings are required. The DOE then sends appropriate forms to the applicant for each of the individual permits. When returned to DOE these applications are transmitted to the agencies with jurisdiction for evaluation in accordance with their usual standards. Use of the consolidated process does not change the substantive rules 104 applicable to a proposed development. DOE is responsible for notifying the public of the master application and scheduling a public hearing. 105 At the public hearing information and views 1 h 1" b' d 106 re evant to t e varlOUS permlt app lcatlons are su mltte Each of the agencies with substantive responsibility is then given a deadline for making a determination. Those decisions are collected by DOE, incorporated into a single document and sent to the applicant. A consolidated appeal may then be taken l'f d d 107 eSlre The major criticism of the Environmental Coordination Procedures Act appears to be the voluntarl'ness of 1t.l08 D 1 t' d h eve opers are no requlre to use t e process; it is optional to them. In practice, most developers are using the master application procedure to identify relevant state permits and are then dropping out to pursue individual negotiations.l09

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-122-3. The Florida Industrial Siting Act of 1979 The Florida Industrial Siting Act of 1979 (ISA)110 establishes a conso1i-dated state level permitting process that is similar to the Washington ECPA discussed supra. Because of several important differences, however, it is closer to the "one-stop permit" ideal of development interests. Only a single application needs to be submitted under the ISA. Unlike the ECPA, individual permit applications are not required. Further, although substantive permitting standards are not supposed to be altered by the ISA, a single state agency deter-mines whether the application demonstrates compliance. Finally, the ultimate decision on whether to issue a permit is made by one body--the Governor and cabinet. That permit then stands in lieu of all other state permits. To be eligible to use the ISA permitting process an applicant must be proposing a new or expanded industrial, connnercia1, wholesale or retail business activity having the potential to create 50 jobs and requiring at least two 112 perm1ts. A developer who chooses to use the ISAl13 may file a notice of intent to file an application with the Department of Environmental Regu1ation.114 This notice of intent is sent to : the Division of State Planning, the water management district and the regional planning agency which have jurisdiction over the area wherein the proposed project is to be located, the Department of Community Affairs, the Department of Commerce, the Department of Transportation, the Department of Natural Resources, the Game and Fresh Water Fish Commission, the Department of Health and Rehabilitative Services, the Department of Business Regulation, the Department of Agriculture and Consumer Services, the Department of Statel and the local governmental entities which have jurisdiction. 15 The applicant can then seek binding written agreements with DER as to the data and level of information which must be submitted.116 Once the application itself is submitted, DER requests a hearing officer and transmits copies to the agencies 1 d b 117 1ste a ove. DER is also required to make rapid determinations as to the completeness and sufficiency of the app1ication.118

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-123-DER carries the primary burden of analyzing the proposal. It is required to study: (a) The environmental impact of the project, including impacts on water quality, air quality, fish and wildlife, and cultural resources. (b) The impact of the project on the economy of the area, including provisions of employment opportunities and related economic impacts. (c) The impact of the project on necessary public facilities, including transportation facilities. (d) The impact of the project on energy demand. 119 (e) Compliance of the project with agency standards. In addition, the Department of Veterans and Community Affairs and the appropriate water management district are required to submit reports regardingl the effect of h d h h .. d 120 t e propose proJect on matters Wlt ln t elr respectlve Jurls lctlons. All of these reports are compiled with any comments received by DER and transmitted h h ff 121 to t e earlng 0 Before a certification hearing can be held, however, the applicant must secure a statement of approval from the local government with jurisdiction over h 122 t e proJect. The local government must certify that the project complies with Chapter 380 of the Florida Statutes and with local comprehensive plans and land development regulations. h h ffi h h ld f h 123 T e earlng 0 cer may t en 0 a certl lcatlon earlng. Any possibly interested agency, unit of government or person is either required or allowed to be a party to the hearing. After hearing all the evidence, the hearing officer submits a recommended order to the Governor and Cabinet, which is responsible f f 1 d 124 or lssulng a lna or ere This order constitutes the only state permit required to build and operate h 125 t e proJect. It replaces a host of other permits, including authorization to use state lands. It is effective for seven years, during which time it cannot be altered, except that DER can impose new operating standards to the same extent

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-124-that it impases them an ather aperating facilities. Once the lacal gavernment has issued a statement af appraval, hawever, it is barred fram altering its regulatian at all during the pendency af the praceedings ar far a periad af twa years fallawing issuance af the appraval except thraugh the pracedures af the Lacal Gavernment Comprehensive Planning Act.126 4. Optianal Caordinated DRI Review The pracess af securing appraval to. canstruct Develapments af Regianal 127 Impact has been a subj ect af criticism by develapment interests. Their maj ar camplaint has been the .cast in time and maney af preparing an applicatian far develapment appraval and maving it thraugh the review and appeals pracess. Much af this expense is wasted, they cant end because the DRI pracess is merely duplicating ather permitting and review pragrams administered by the state, federal and lacal agencies, none af which is caardinated with DRI review. This subject was examined extensively by the Governar's Resaurce Management 128 Task Farce, which cancluded: The Develapments af Regianal Impact Pracess is relatively effective but at times has been unnecessarily burdensame and camplicated. Hawever, it is basically a valuable pracess and shauld nat be abandaned ar replaced by ather existing review ar permitting pracesses. Rather, the process shauld be imp raved to. fulfill its statutory purpase and shauld be better integrated with ather planning and permitting to. eliminate processing delays and pravide mare knawledgeable review.129 Many participants felt that the DRI review pracess cauld be madified to. serve as a means.af caardinating ather permitting and review pragrams and that if this were dane, develapers wauld have an incentive to. use the pracess rather than evade it. A number af specific recammendatians directed taward this goal were conside:ri.ed by the Legislature in the 1980 sessian. A mare caardinated review pracess emerged fram thase deliberatians.130 Preapplicatian canferences between the develaper and the regional planning

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. d 131 agency are now requlre -125-Preapplication conferences may be used to identify issues and coordinate the review with other appropriate state and local agency requirements. At the request of either party, other state or regional agencies may be required to participate in the preapplication conference by identifying the types of permits issued by them, the level of information that must be sub-mitted, and permitting procedures. In addition, the preapplication conference can be used to negotiate a binding written agreement with the regional planning agency as to the information which must be submitted in the application for 132 development approval. Questions may be eliminated if they are irrelevant to regional review. The information submitted in other permit applications or in environmental impact statements may be incorporated. In addition, the developer has the option of selecting any state or regional licensing agencies and requiring them to participate in a coordinated review 133 process. Binding agreements with any of those agencies may be requested on the following matters: 1. The identifiable areas of agency jurisdiction over the proposed development. 2. The identifiable agency rules, subject to changes imposed by law, applicable to the proposed development. 3. The types and categories of information which may be required at the time of license or permit application for th e proposed development. 4. Any other appropriate agreement pUJ:lsuant to appropriate state or federal law or regulation.134 These agreements are binding on the agencies for five years unless inaccurate information was supplied by the developer, conditions have changed substantially, or material modifications of the development are proposed. The agencies may also be requested to identify "issues or problems which could later constitute 135 grounds for permit denial or major modifications of the proposed agreement." These statements, however, are not binding. Coordination of the actual review process is largely the responsibility of

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-126-136 the regional planning agency. It is given considerable latitude to exercise creativity and initiative in this task. It may encourage additional preappli-cation conferences, the development of coordinated permit processing schedules, concurrent processing of applications, joint application requirements or other techniques. Another amendment is intended to reduce the appearance of inter-agency con-flict. At the request of the regional planning agency, other agencies may be required to comment on matters within their jurisdiction. Those comments must be incorporated verbatim, although the regional planning agency may attach dissenting views. If water management district or Department of Environmental Regulation permits have been issued, however, the regional planning agency is prohibited from offering conflicting recommendations to the local government. 5. Conclusion Coordination of the permitting process offers many advantages to both devel-opment interests and environmentalists. As a Special Committee of the American Bar Association has noted: Overlapping agency jurisdiction and repetitious hearings are among the most frustrating aspects of present decisionmaking mechanisms ... No reasonable person can deny the pressing need to avoid unnecessary repetitious or circuitous proceedings.137 The attempts to coordinate permitting described here are only examples. Other coordinating systems are also available as models. The Florida Electrical Power PI so 0 A tl38 0 0 I I h I f IOd d ant 1t1ng c 1S part1cu ar y notewort y as an examp e 0 conso 1 ate state review of major energy facilities. Unlike the Industrial Siting Act, local powers are preempted. An excellent example of coordination at the local level and between local, state and regional agencies may be found in the operation of Dade County's Development Impact Committee, where an interagency board reviews develop-ment proposals and makes a coordinated recommendation to the board of county commissioners.139 The benefits of meticulous, public review of land and water

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-127-resource commitments should not be forgotten, however, for the sake of expediency. As the Conservation Foundation has observed: "[T]he line between procedural and substantive is a fine one.,,140

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-128-III. TECHNIQUES FOR THE INTEGRATION OF LAND AND WATER MANAGEMENT Seventh New Collegiate Dictionary. 2 d Charles Lindblom, quoted in Connci1 of State Goyernments, Integration an Coordjnation of State Environmental Programs (1975) at 16. 3 An anonymous state official, Id. at 17. 4 Amory Lovins, quoted in the Conservation Foundation Letter (October 1979) at 7. 5Id. 6See generally, Mister Z, The Case for a Department of Natural Resources, 1 7 8 9 Nat. Res. J. 197-207 (1961); H. Henry and D. Halperin, State Government Organization: Agencies Dealing with Marine Resources, Volume I, Marine Law Affecting Marine Resources (1969); Council of State Integration and Coordination of State Environmental Programs, 19-54 (1975). Fla. Laws 1975, Ch. 75-22. See the discussion in Section II, A, infra for a more complete general description of state and regional agencies and their functions. See Resource Management Task Force, Final Report to Governor Bob Graham, Volume II, Committee Eight (January 1980). 10 33 USC (Supp. 1980); 40 CFR See generally, Maloney, Fernandez Merging Two Systems: NPDES and Tennessee Water Quality Control (1976) (Report to the Division of Water Quality Control, Department of Public Health, State of Tennessee). 11 Resource Management Task Force, Final Report to Governor Bob Graham, Volume I, 31-32 (January 1980). l2p .L. 91-190 codified at 42 USC 4321 et seq. Several states have enacted similar provisions regarding state action. See 5 Environmental Affairs 567-93 (1976). 13 101(a). l4 101(b). l5Drefus and Ingram, The National Environmental Policy Act: A View of Intent and Practice,. 16 Nat. Res. J. 243-62, 246 (1976). l6F Anderson. NEPA in the Courts, vii (1973). l7 102(c). The Environmental Impact Statement must discuss, (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

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-129-(iii) alternatives to the proposed action, (:tv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. l8F Anderson sup:na note 16 at n.189. 19 102 (c) 2040 CFR 1503. For a di.scussion of these regulations see Roady, The 1979 Council on Environmental Quality Regtilations Under the NEPA, 54 Fla. Bar J. 155-59 (1980). 2lSee cases discussed in F. Anderson supra note 16 at 223; Environmental Law Institute, Federal Environmental Law 290-295 (1974). 22See e.g., Andrews, Agency Responses toNEPA: A Comparison and Implications, 16 Nat. Res. J. 301-22, 315-16 (1976). 23 Federal Environmental LaW supra note 21 at 286-297. 24Id. 25 102(1). 26 102(2)(A). 27 105. 28Federal Environmental Law supra note 21 at 291-92. 29Id 30Sierra Club v. Froehlke, 359 F. Supp. 1289, 1348-49 (S.D.Tex., 1973). 3lCouncil of State Governments, Integration and Coordination of State Environ-mental Programs 72-24 (1975). 320ffice of Management and Budget, Evaluation Review and Coordination of Federal and Federally Assisted Programs and Projects, Cire. A-95 (revised), 41 FR 2052 (Jan. 13, 1976), ELR 47001. See generally, Hoffman, Regional Planning and A-95 Review, 10 Real Corp. Prof. and Trust J. 670-74 (1975); Myhra, A-95 Review and the Urban Planning process, 50 J. of Urb. Law 449-463 (1973); Council of State Governments, State Planning: Intergovernmental Policy Coordination, 103-18 (1976). 33D f A 95 1 h .. 11 b h G f h eS1gnat1on 0 -c ear1ng ouse agenc1es 1S genera y y t e overnor 0 t e state or state law. Circ. A-95, Part V, 10. 34Id., Part I. 35Id., 3 (a) 36Id., 3(b) and Part II.

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37 Id., 3 (c) and Part III. 38Id. 3(d) and Part IV. 39 Id. 3(b); Part 11,4. 40Id. 3(b)-(h) 41Id. 3(a). 42Id. 5 43Id. 5 44Id. 5 (a), (g). 45Id. 5 (c) 46Id. 5(b)(1). 47Id. 5(d) 48Id. Part IV. 49Id. 2(a) 50Id. 2 (b) 51Id. 3. 52Id. 53Id., 3(b). 54Id. 55Id. 56Id.,3(c). 5 7 Id ., 3 (d) 58 Myhra, supra note 32 at 457-59. 59 Hoffman, supra note 32 at 674. 60 Myhra, supra note 32 at 451. -130-61See generally, Council of State Governments, Integration and Coordination of State Environmental Programs. 67-69 (1975). 62Counci1 of State Governments, State Planning: Intergovernmental Policy Coordination, 123 (1976).

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-131-63Id., 70-73. 64Fla. Stat. 1373.1965 (1979). 65 J Brindel, Florida and Coastal Zone Management, 54 Fla. Bar J. 295-299 (April 1980) 66See the Florida Regional Planning Council Act, 1980 Fla. Laws, Ch. 80-315 codified at Fla. Stat. 160.001-.09 (1980 Supp.). 67See the discussion in Sectlon II,B,l, supra accompanying notes 83-l0l. 68Division of State Planning, The Apalachicola River and Bay System: A Florida Resource (1977) (DSP-BLvlM-5-77). Ted Forsdgren, a planner with DSP, largely coordinated the effort and supplied much of this information. 69Since the first committee did not contain a representative from the "planning o.ffice of each of the local governments within the area under study" it probably did not fully comply with the statutory cli".iteria. 70See generally, Division of State Planning, Charlotte Harbor: A Florida Resource In addition, the author has an extensive file on hhis area. 7lThe author served the committee intensively as a staff assistant to the Chairman. The discussion is based on that experience and a large file of program documents. 72Integration and Coordination of State Environmental Programs, supra note 61. at 69. 73Council of State Governments, Intergovernmental Relations in State Land Use Planning, 14-15 (1974). 75 F. Bosselman, D. Feurer and C. Siemon, The Permit Explosion, 12-15 (1976). 76Mulder et aI, Integ:rating Water Resources and Land Use Planning, 44-46 (Utah Water Research Laboratory) (January, 1979). 77Council of State Governments, State Planning: Intergovernmental Policy Coordination, 8 (1976). 78 The Oregon Land Use Act of 1973, codified at Oregon Rev. Stat. .005-.425 (1979) 79Id l97.225. 80Id .l75. 8lId. l97 .015 ( 4 ) 82Id. .300

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83Id., .325. 84Id., l97. 330. -'132-85See note, 75 infra and accompanying discussion. 86See The Permit Explosion supra note 75 at 12-17. 87 See R. Healy (ed.), Protecting the Golden Shore: Lessons from the California Coastal Commissions (1978). 88 Ore. Rev. Stat. .705-.795 (1979). 89 N.Y.Exec.Law -813 (CLS, 1980 Supp.). 90See discussion infra at notes 73-75. 91 F Bosse1man, In the Wake of the Tourist, 134 (1978). 9 2Id. 122. 93See cl.iscussion in Section II,C supra accompanying notes 203-272 94 S ee discussion in Section II,E supra accompanying notes 361-400. 95See discussion in Section II, E supra accompanying notes 401-406. 96 U S Department of Housing and Urban Development, Final Report of the Task Force on Housing Costs, 28 (May 1978). 97Counci1 of State Governments, Untangling the Permit Web: Washington's Environmental Coordination Procedures Act, 1-2 (June 1978). 98 The Permit Explosion, supra note 75 at 5. 99RCWA .62.010-.908 (Supp. 1980-81). See Coker and Elliott, The Environmental coordination Procedures Act of 1973, or ECPA! ECPA! Rah, RahLRa1:"J..!!, 49 Wash. t.Rev. 463-508 (1974); Untangling the Permit Web supra note 97. 100 RCWA .62.090 (Supp. 1980-81). 101Id. .62.040. 102Id. .62.100. 103Id. .62.040. 104Id. .62.060(7) 105Id. .62.050. 106Id. .62.060.

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-133-107Id., .62.080. 108Coker and Elliott, supra note 99 at 475. 109 The Permit Explosion supra note 75 at 21. 110 1979 Fla. Laws, ch. 79-147 codified at Fla. Stat. .50l-.5l8 (1979). lllSee generally, Hopping and Rhodes, Penetrating the Permitting Profligacy: The Industrial Siting Act of 1979, 53 Fla.B.J. 555-59 (Oct. 1979). 112 Fla. Stat. .503(13) (1979). Residential housing projects are excluded and special requirements surround Outstanding Florida Waters. Id. l13Id., .506. Unlike the ECPA, the ISA provides for locklng the applicant into the proceeding.Id. l14Id., .508. l15Id., .509. l16Id., .508(2). 117Id., .507, .508(1). 118Id. l19Id., .509(4). l20Id., 288.509 (2), (3). l2lId., .504(9). l22Id., .505. l23Id., .5l. l24Id., .5ll. l25Id., .Sl4. l26Id., .50S. l27See the discussion in Section II,B supra accompanying notes 102-118. 128 Resource Management Task Force, Final Report to Governor Bob Graham, Vols.I,II (January 1980). l29Id., Vol I at 23. l30Fla. Laws 1980, Ch. 80-313. See generally, Stroud, The SecortdGeneration 8 Fla.Env.& Urb.Issues 3 et seq. (Oct. 1980).

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"""134131 F1a Stat. .06(7) (a) (Supp. 1980). 132Id. .06(7) (b). 133Id. .06(8)(a). 134Id. .06(8)(h). 135Id. .06(8)(c). 136Id. .06(8)(d). 137ABA Committee on Environmental Law, Development and the Environment, 45-46 (1974). 138 Fla. Stat. .501-.517 (1979). 139 The Permit Explosion, supra note 75 at 33-34 140Conservation Foundation Letter, 7 (Oct. 1979).