Title: Letter to Bart Bibler, DER, from Frank E. Matthews re: State Water Policy Workshop, August 31, 1993, with comments as a follow-up of his presentation
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Title: Letter to Bart Bibler, DER, from Frank E. Matthews re: State Water Policy Workshop, August 31, 1993, with comments as a follow-up of his presentation
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Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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HOPPING BOYD GREEN & SAMS
ATTORNEYS AND COUNSELORS
CARLOS ALVAREZ 123 SOUTH CALHOUN STREET C ALLEN CULJR.
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. DrROSE 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 0. PRESTO September 8, 1993 or COUNSEL
CAROLYN S. RAEPPLE W. ROBERT FOKES
GARY P. SAMS
ROBERT P. SMITH
CHERYL G. STUART


VIA HAND DELIVERY
Mr. Bart Bibler
Florida Department of
Environmental Protection
3900 Commonwealth Blvd.
Marjorie Stoneman Douglas Building
Tallahassee, FL 32399-3000



Re: State Water Policy Workshop, August 31, 1993

Dear Bart,

As a follow-up to my presentation at the August 31, 1993, Tallahassee workshop on the
proposed revisions to Chapter 17-40, the State Water Policy, I have prepared written comments
for your consideration. As was apparent from the comments which were raised during the
workshop, there is considerable unrest with the scope and breath of the proposed rule revisions.

Statutory Authority

First and foremost, I would like to reiterate the absence of a statutory directive for the
scope of the changes included in the proposed rule. As I indicated in my rural comments at the
workshop, certain sections of the rule have no specific statutory authority cited. Specifically,
with regard to Sections 17-40.450, 17-40.458 and 17-40.470, relating to Flood Protection,
Floodplain protection and Natural Systems Protection and Management respectively, the
Department has not even attempted to cite specific authority. In fact, it is my opinion that there
is no authority upon which those wide-ranging amendments can be based. The Department is
attempting to graft land management principles onto its water policy with no statutory directive.
Virtually all other sections of the proposed rule, including 17-40.475, cite as the specific
authority, sections 376.026 and 376.043, Florida Statutes. A studied review of those sections
results in no arguable justification for expanding the water policy to address buffer zones,
ecosystem management, flood-prone area management or floodplain regulation arenas.









Mr. Bart Bibler
Florida Department of
Environmental Protection
September 8, 1993
Page 2

Although natural system and ecosystem management was the subject of three very limited
provisions in Chapter 93-213, Laws of Florida, those provisions only required a report to be
prepared by the Secretary and an analysis to be performed by the Partners for a Better Florida
Advisory Council. Nowhere in the legislation was a directive provided to the Department of
Environmental Protection to initiate rulemaking to incorporate ecosystem management as an
element of the State Water Policy. If the report by the Secretary and the analysis by Partners
prompts the Legislature to implement regulation on an ecosystem wide basis, then expanding
the State Water Policy may be viable. However, until such Legislative authority is given, the
Department has no authority to act.

Similarly, I have severe reservations regarding the inclusion of Chapter 17-40.475,
entitled Protection Areas for Surface Waters, in the State Water Policy. Other than the Wekiva
River Protection Act, which is codified at Section 369.301 .309, Florida Statutes, there is no
statutory authority for the designation of protection areas in Florida law. This section constitutes
a significant expansion of purported regulatory authority which could result in water management
districts establishing these protection areas around surface waters throughout Florida. Such an
expansion is impermissible without specific statutory authority.

Exculpatory Provision

It is imperative that the declaration and intent section accurately note that the State Water
Policy has no ramifications for project by project permitting decisions, and that it does not
provide additional criteria or standards to be applied when making these decisions. The State
Water Policy has been increasingly cited as a basis for opposition in a number of permitting
circumstances. The integration of these policies into water management district rules leads to
consideration of these policies as regulatory criteria and standards. A similar qualification
should be provided for the definition section of the proposed rules so that the definitions do not
inadvertently result in a purported expansion of regulatory authority or criteria.

Minimum Flows and Levels

The water management districts and the Department have admittedly been unable to
establish minimum flows and water levels for virtually all of the surface waters in the State.
Therefore, it is questionable how minimum flows and levels can be given greater credence as
is proposed under the rule since there is no apparent funding mechanism available for the district
and the Department to perform this task.









Mr. Bart Bibler
Florida Department of
Environmental Protection
September 8, 1993
Page 3

Goals of the Rulemaking

During the presentation of the proposed rule, it was discussed that the objectives to be
met could be broken into three categories: pollution prevention; watershed/ecosystem
management and integrated water management district coordination and regulation. The first
two objectives are legally inappropriate. The pollution prevention objective is inappropriate
because it should be addressed in the context of legislation since the only act to date relating to
pollution prevention has been the establishment of a Pollution Prevention Council. We are
aware that the Pollution Prevention Council has issued recommendations; however, until such
time as the Legislature acts upon those recommendations, the Department and the districts are
unable to implement those recommendations, unless independent, pre-existing authority can be
cited.

The ecosystem/natural system management objective noted at the outset of the workshop
is misplaced since the Department has yet to issue its December 10, 1993 report on whether or
not this concept should be integrated into the regulatory programs administered by the
Department. At the present time, these terms have no definition, let alone usefulness, in the
context of a water policy plan or permitting program administered by the Department or
districts.

Water Reuse

The proposed revision in Rule 17-40.201(23), which deletes the enhancement of surface
water by the discharge of advance treated reclaimed water as an acceptable form of reuse thwarts
the statutory directive found in Section 403.918(4), Florida Statutes. The restoration and
enhancement of wetlands by the discharge of treated wastewater is an essential component of the
statute's reuse strategy and it must remain as an acknowledged form of reuse.

In addition, the amendment to the Water Reuse section which deletes the proviso
language from the requirement that reclaimed water must be used within resource caution areas
"unless such use is not economically, environmentally, or technically feasible," is senseless. If
such use of reclaimed water is not economically, environmentally, or technically feasible, it
should not be required.

Finally, the proposed policy stating that reclaimed water is a water resource in the state
that must be used in a reasonable beneficial manner could subject the use of reclaimed water to
consumptive use permitting. If that is the goal, the Department should cite to its specific
authority. If not, then it should be clear that reclaimed water will not be subject to consumptive
use permitting.










Mr. Bart Bibler
Florida Department of
Environmental Protection
September 8, 1993
Page 4

Conclusion

It is apparent that there is strong opposition to the significant expansion of the State
Water Policy proposed in the amendments to Chapter 17-40, F.A.C. We would strongly suggest
that the Department evaluate its statutory authority for the amendments. We would also urge
the Department to reconsider its current schedule whereby the proposed rule would be submitted
to the Environmental Regulation Commission on December 1 or 2, 1993. Thank you for your
attention to this matter.

Sin ely,



Frank E. Matthews

/mml


25152.






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