June 15, 1981
FR: TEC "
RE: State Water Policy- Review of Water Management District Rules
I was somewhat surprised when I saw that the State Water Policy
included provisions for the review of water management district rules
by the Department of Environmental Regulation. I am of the opinion
that DER lacks the power to review, rescind, or modify any rule of
a water management district. This power was vested in the Land and
Water Adjudicatory Commission in the Environmental Reorganization
Act of 1975 (Section 11 of Chapter 75-22, Laws of Florida; see
Section 373.114, Fla. Stat.).
In view of this, I believe the "review provisions" in the new
State Water Policy should be construed as a voluntary program of
cooperation between DER and the water management districts, under
which DER does not have authority to rescind or modify any water
management district rule. This interpretation is consistent with
sub-section 5 of Rule 17-40.01, F.A.C.
Subsection 2 of new Rule 17-40.10, requires the Department,
in coordination with the districts to review existing rules for
consistency with the State Water Policy provisions within twelve
months of adoption of the policy. It seems to me that this review
should encompass two separate questions, namely:
1. Are the existing water management district rules consistent
with declared State Water Policy?
2. Whether other rules should be adopted by the water management
district to implement various policy considerations that may have been
previously omitted from existing rules and regulations?
Concerning the second of the two questions stated above, I believe
it may be useful for each water management district to adopt rules
incorporating the policy statements into their regulatory program.
For example, the factors that are to be considered in determining
whether a particular use is a reasonable-beneficial use, a specific
listing of the factors appearing in the policy statement may be
helpful to those using water management district rules. It may be equally
suitable to merely refer to these factors by including a statement
which says merely that...whether a particular use is a reasonable-
beneficial use, will be determined by consideration of the factors
listed in Rule 17-40.04(2), F.A.C.
In any event, I believe each water management district should
work with DER individually, and not as a group. Each water management
district has different problems, different technical capabilities,
and many are at different stages of implementation. I believe the
whole process would be bogged down if the water management districts
attempted to coordinate this collectively.
While the procedural aspects of this review appear at first
blush to be quite simple, they can get very complicated in a hurry.
I suggest that each water management district work with DER informally
to determine whether there any points in dispute or matters of dis-
agreement. If there are none, then the secretary of DER could issue
a letter finding that the existing rules are consistent with state
policy. I do not think that an evidentiary hearing should be conducted
by DER or its secretary to determine consistency. If a dispute arises,
DER may request that each water management initiate rule making
pursuant to subsection 4 of new Rule 17-40.10, F.A.C. The water
management district will then be required to consider specific changes
the Department believes necessary to assure consistency with the
State Water Policy Rules. I do not believe that the water management
district is obligated to adopt the changes proposed by the Department
in this circumstance. Nevertheless, the possibility of judicial review
of the water management district decision on the rule making proceeding
DER could also request a hearing before the Land and Water Ad-
judicatory Commission pursuant to Section 373.114, Fla. Stat. If
disputed facts are involved, the Commission could appoint a hearing
officer to make a recommendation after an evidentiary hearing. The
Commission would then enter a Final Order either approving or dis-
approving the water management district rule.
Subsection 3 of new Rule 17-40.10, F.A.C., does not contemplate
that DER be made a party to rule making proceedings initiated by the
water management district after the State Water Policy becomes effective.
In other words, there seems to be no requirement for DER to participate
in new rule adoption proceedings, except where the rule making proce-
edings are initiated by the water management district at the request
of the Department. However, since DER will be reviewing rules adopted
after the effective date of Chapter 17-40, F.A.C., it probably is
advisable towock with the Department in advance of adoption of new rules.
Please note that the review of rules adopted after the effective date
of Chapter 17-40 is to occur by DER, alone; participation by the
districts in this review process is not provided for in the new rules.
If DER determines that a new water management district rule
is inconsistent with State Water Policy, it may request that the
rule be revoked or modified pursuant to subsection 4 of Rule
17-40.10, F.A.C. If the water management district declines, review
by the Land and Water Adjudicatory Commission or a District Court
of Appeal is available.