Title: Memorandum to St. Johns Agricultural Forum Members from Frank E. Mathews re: State Water Policy Meeting on Chapter 17-40 Revisions. Minutes of meeting
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Title: Memorandum to St. Johns Agricultural Forum Members from Frank E. Mathews re: State Water Policy Meeting on Chapter 17-40 Revisions. Minutes of meeting
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PPING BOYD GREEN & SAM,
ATTORNEYS AND COUNSELORS
CARLOSALVAREZ 123 SOUTH CALHOUN STREET C. ALLEN CULP, JR.
JAMES S. ALVES JONATHAN S. FOX
BRIAN H. BIBEAU POST OFFICE BOX 6526 JAMES C. GOODLETT
KATHLEEN BLIZZARD GARY K. HUNTER JR.
ELIZABETH C. BOWMAN TALLAHASSEE, FLORIDA 32314 DALANA W. JOHNSON
WILLIAM L. BOYD, IV RICHARD W. MOORE
RICHARD S. BRIGHTMAN (904) 222-7500 ANGELA R. MORRISON
PETER C. CUNNINGHAM FAX (904) 224-8551 MARIBEL N. NICHOLSON
RALPH A. DcMEO GARY V. PERKO
THOMAS M. DeROSE FAX (904) 681-2964 MICHAEL R PETROVICH
WILLIAM H. GREEN DOUGLAS S. ROBERTS
WADE L. HOPPING KRISTIN C. RUBIN
FRANK E. MATTHEWS JULIE ROME STEINMEYER
RICHARD D. MELSON
WILLIAM D. PRESTON MEMORANDUM OF COUNSEL
CAROLYN S. RAEPPLE W. ROBERT FOKES
GARY P. SAMS
ROBERT P. SMITH
CHERYL G. STUART



TO: St. Johns Agricultural orum Members

FROM: Frank E. Matthews \

DATE: September 15, 1993

RE: State Water Policy Meeting on Chapter 17-40 Revisions




On September 14, 1993, I met with a number of people who were invited to discuss the
Department of Environmental Protection's (DEP) proposed revisions to Chapter 17-40. Pam
McVety convened the meeting. It was attended by Keith Hedrick, Assistant General Counsel
with DEP; Bart Bibler, primary author of the state water policy revisions; and Chuck Aller and
Tom Swihart from DEP. Others parties who attended included Doug Buck of the Florida
Homebuilders Association; Charles Lee of the Florida Audubon Society; Martha Edenfield
representing Associated Industries of Florida; Chuck Littlejohn, the Florida Chamber; Pat
McCaffrey, the Florida Cattlemen's Association; Richard Hamman from the University of
Florida; and a representative from the Department of Agriculture.

Ms. McVety and Mr. Bibler lead the discussion for DEP indicating that it was their
desire to receive as much feedback regarding the proposed rulemaking so that accommodations
could be made where possible and points of irreconcilable disagreements could be identified.
Mr. Bibler gave a brief introduction indicating his belief that the proposed rule was consistent
with the existing authorities contained within Chapters 373 and 403. DEP also wished to
integrate a number of water related policies in this state water use plan and that the language
contained within the current draft was negotiable provided the substantive issues were covered.
Ms. McVety stressed that DEP was coordinating its effort in accordance with the new
procedures adopted by the merged agency. All of the executive directors of the water
management districts were supportive of the proposed revision, and that Lieutenant Governor
McKay directed DEP to pursue the adoption of the revisions under the current schedule which
calls for an adoption hearing before the Environmental Regulation Commission in early
December.








Memorandum
September 15, 1993
Page 2


At the outset of the meeting, Mr. Lee expressed his grave reservations regarding some
of the provisions within the proposal, most notably Part V, which calls for the creation of the
Florida Water Plan. Mr. Lee spoke disparagingly of requiring the development of a narrative
water plan, given what he considered to be the dubious history relative to the implementation
of various other related plans (most notably the surface water improvement management plans).
Mr. Lee sees these failures resulting from the absence of funding to implement these plans and
the absence of political fortitude. Overall, Mr. Lee repeatedly requested that DEP narrow its
scope and simply direct the development of timely minimum flows and levels for the major
hydrologic components within each water management district and the development of buffer
zones or protection areas for existing Outstanding Florida Waters. It was his position that these
tangible and achievable results would do far more to advance water resource protection in this
state than any of the remaining provisions contained in the rule.

7 --- Mr. Littlejohn and I concentrated on the over-reaching elements of the proposed rule,
specifically the flood plain protection, natural systems management and protection area sections,
arguing that there was no specific statutory authority for the inclusion of Sections 17-40.450,
.458, .470, and .475. DEP personnel acknowledged that there was absence of citation in the
draft rule dated August 5, but that they were adding to the citations. They felt that each of the
sections were justified. They did acknowledge that they would re-evaluate the use of the state
comprehensive plan as a citation of flood plain and flood area provisions since Chapter 187
specifically states that it is not be used for regulatory purposes. DEP is very much looking for
language relative to revisions in these sections, and invited the regulated communities to provide
modifications to those sections which they opposed.

Mr. Hamman indicated that he was present to express his support for the policy arguing
that it integrates a number of concepts, which are currently applied by water management
districts, without focus or direction. He did recommend that there be a definition of the term
"natural ecosystems" if that term was to appear throughout the policy. Currently, there are
references to ecosystems, associated ecosystems, and natural systems. DEP believes its authority
for using these terms is the general term "water resources" found in Chapter 373. However,
that term is not defined in statute or rule. Mr. Hamman also recommended that the property
rights provision be deleted since it was an extraneous statement of existing law as it relates to
the relationship between property ownership and the ability to claim an ownership interest in
water. Another significant debate involved Page 6, lines 11-17, where the rule professes to
include a statement that ecosystem and natural system water requirements must be considered
prior to any allocation of water pursuant to a consumptive use permitting process. DEP argues
that this is consistent with Section 373.233; however, a close review of that section indicates that
the language speaks to an allocation of water for fish and wildlife, and public health and safety
purposes. It does not speak to the broader concepts of ecosystem or natural system protection.








Memorandum
September 15, 1993
Page 3


The Department of Agriculture sent a representative indicating they had heard expressions
of concern throughout the agricultural community, and that significant additional discussions
were needed with that group of interested parties.

At the conclusion of the meeting, Ms. McVety indicated her willingness to work between
now and October 15, when it is anticipated that the proposed rule will be published for adoption
on any changes that regulated interests would like to recommend. I indicated that it would be
very difficult for us to revise certain sections of the rule since our fundamental disagreement was
centered on the underlying authority for DEP, including these provisions in the rule. It is
particularly perplexing since these subjects have not been addressed in the state water use policy
for the last decade or more, and yet, there has been no statutory changes that can be identified
as introducing these topics to the policy. In effect, it is our position that DEP is putting
rulemaking before the needed statutory authority.


/mml




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