Title: Letter to Senate Natural Resources Committee
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 Material Information
Title: Letter to Senate Natural Resources Committee
Alternate Title: Letter to Senate Natural Resources Committee, House Natural Resources Committee re Housekeeping Legislation Amending Chapter 373 Relating to Water Management Districts.
Physical Description: 4p.
Language: English
Publication Date: April 11, 1984
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
General Note: Box 4, Folder 1 ( SF BASIN BOARD CONCEPT ), Item 65
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: UF00051981
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text



MANG & STOWELL, P. A.
ATTORNEYS AT LAW
SUITE 740, BARNETT BANK BUILDING
TALLAHASSEE, FLORIDA 32302
DOUGLAS A. MANG POST OFFICE BOX I019
DOUGLAS L. STOWELL TELEPHONE (904) 222-492 5
GARY J. AN7ON
CHARLES T. COLLETTE
MARY K. KRAEMER


MEMORANDUM

April 11, 1984



TO: Senate Natural Resources Committee
House Natural Resources Committee
Water Management Districts

FROM: Douglas L. Stowell

RE: Housekeeping Legislation Amending Chapter 373 Relating
to Water Management Districts


The proposed legislation is a result of the review by the
Senate Natural Resources Select Subcommittee on Water Management
Districts, the Auditor General's audit of the St. Johns River
Water Management District for fiscal year ended September 30, 1983
and comments from the Joint Administrative Procedures Committee
regarding implementation of Chapter 373. These proposed changes
are intended to be housekeeping or corrective in nature.

Section 1 amends Section 373.044, Florida Statutes, to
resolve a concern that was presented to the Joint Administrative
Procedures Committee relative to personnel policies. In the case
of Frank A. Caluwe, Jr. vs. South Florida Water Management
District, a DOAH hearing officer determined that the personnel
policies of the South Florida Water Management District were
unenforceable in that they had not been promulgated with the
formalities of rulemaking pursuant to Chapter 120. While the
personnel policies had in fact been adopted in public meeting by
the governing board, they had not published the entire personnel
manual in the Florida Administrative Weekly nor in the Florida
Administrative Code, thereby rendering the policies unenforceable.
Each water management district makes available to its employees
and to the general public copies of its personnel policies. Each
water management district governing board adopts its personnel
policies in public meeting with adequate notice.








Memorandum
April 11, 1984
Page two



The proposed amendment would simply provide that such personnel
policies need not be published in the Florida Administrative
Weekly or in the Florida Administrative Code thus reducing the
expense of adopting and maintaining the personnel policies on a
current basis.

Section 2 creates Section 373.698 to clarify that all
existing and newly created basins are intended to operate pursuant
to the general law provisions in Chapter 373 relating to basin
boards. This issue was indirectly raised in the Auditor General's
report of the St. Johns River Water Management District,
paragraphs (10) and (11), as well as by the Southwest Florida
Water Management District, which includes eight (8) basins and
basin boards. Prior to the creation of the five water management
districts by general law, the water management districts were
created by special act. Chapter 61-691, Laws of Florida as
amended created the Southwest Florida Water Management District
and seven different basin boards. The eighth basin board was
transferred to the Southwest Florida Water Management District in
1977 under the provisions of Chapter 373. Each basin board has
differing authorities in its enabling legislation and it appears
.that subsequent to the passage of the Florida Water Resources Act
-of 1972, that the Legislature intended to have all basins operate
on the same basis. This section would provide for consistency
within and among all the districts as to how basin boards will
operate under the provisions of Chapter 373.

Section 3 and Section 4 relating to 373.079(3) address the
Auditor General's comments in the St. Johns River Water Management
District Report paragraphs (148) and (149), relating to travel and
per diem for members of the governing board and basin boards. The
Auditor General questioned whether the board members were allowed
to be paid for travel and per diem when traveling to board
meetings at the board headquarters in Palatka. The underlying
issue is whether the headquarters for purposes of travel and per
diem for the governing board members is their home or the
headquarters of the districts. The districts have all
consistently treated the headquarters for governing board members
as their personal residences and have paid travel and per diem on
that basis. The proposed language would clarify that board
members' headquarters are their personal residences for purposes
of travel and per diem.

Section 4 relating to Section 373.079(4) is in response to
the Auditor General's comments in the St. Johns River Water
Management District Report at paragraph (14). Each water
management district governing board delegates to its executive
director the authority to handle personnel matters within the
district including hiring and terminations~ Each governing board









Memorandum
April 11, 1984
Page three



looks to the executive director to resolve these matters within
the guidelines set forth in the personnel policies adopted by the
governing board. The proposed language clarifies that the
governing boards have the authority to delegate all or part of
their authority relating to personnel matters to the executive
director.

Section 5 provides clarifying amendments to Section 373.085
which was referred to in paragraph (83) of the Auditor General's
Report of the St. Johns River Water Management District and has
been the subject of comment by the Joint Administrative Procedures
Committee. Each of the five water management districts either
own, or will own under the provisions of the Save Our Rivers Act,
large tracts of land which should be made available to the public
for multi-use purposes consistent with their predominant water
management purposes. In an effort to accomplish this goal, the
districts have attempted to establish a permitting system under
the provisions of 373.085 to allow persons to use lands of the
district. The Joint Administrative Procedures Committee indicated
that this section was limited only to works, which implied
structural facilities, thus could not be used as a basis for
establishing a permitting system for the use of lands. While the
districts have agreements with the Game and Fresh Water Fish
Commission for the management of most of their lands for hunting
and fishing, other lands which are used for other recreational
activities such as camping, canoeing,. hiking, etc. are provided by
the districts. The districts need to clarify their authority to
establish such permitting systems to implement the multi-use
goals established by the Legislature. The last sentence relating
to Section 704.01 is provided to insure that persons who have
holdings within the Everglades and conservation areas in the South
Florida Water Management District are not allowed to use a way of
necessity in lieu of the permit procedure. This is to avoid the
conversion of water management structures, i.e., dikes and levies
use as roadways for access to properties privately held.

Section 6 amends Section 373.109 relating to permit
application fees was addressed in the Auditor General's Report on
the St. Johns River Water Management District at paragraphs (84)
through (88). The purpose of the changes to this section is to
clearly indicate that the governing boards may require a fee for
all permits granted under 373 as well as those permitting
activities which are delegated to the water management districts
by DER. Rather than require fees to reflect actual costs the
change simply requires that the fee not exceed the actual cost to
the district.








Memorandum
April 11, 1984
Page four



Section 7 adds subsections 5, 6 and 7 to Section 373.121
relating to the maintenance of actions by the districts. These
new provisions are similar to the provisions in 403.121 relating
to the enforcement by the Department of Environmental Regulation
and is being requested by the districts as an additional
enforcement tool. The civil penalty provisions and the recovery
of attorneys' fees would provide the districts with an alternative
to seeking enforcement through the state attorney's office which
would result in criminal penalties. Under existing provisions for
example, enforcement of a water shortage declaration by the state
attorney could result in clogging the criminal dockets and
criminal records for violators. The civil penalty approved could
provide an economic incentive on the part of a violator to comply
with the districts' civil judicial enforcement efforts.

Section 8 amends Section 373.246 relating to declaration of a
water shortage. The proposed changes to this section are a result
of comments from the Joint Administrative Procedures Committee and
are technical in nature. The reference to the classification
system is to a water use classification system and not a permit
classification system. The provision is made for variances and
alternative measures to insure equitable distribution of water
resources during water shortage. The changes allow the governing
board to limit the scope of a water shortage declaration to a
source or sources within the district and allows the water
shortage to be declared in anticipation of unavailability of
adequate water resources to meet the requirements of the permitted
users.

Section 9 repeals portions of 61-691, Laws of Florida,
relating to basins within the Southwest Florida Water Management
District which are inconsistent with the provisions of Chapter 373
and Section 2 of this bill.

DLS:am


















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