Title: Water Law: The Florida System
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 Material Information
Title: Water Law: The Florida System
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Water Law: The Florida System Presented to United States Geological Survey USGS Southeastern Region Management Conference Charleston, S.C. October 24-28, 1988 By: L.M. Buddy Blain
General Note: Box 7, Folder 4 ( Vail Conference 1989 - 1989 ), Item 10
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00000911
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

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Presented to United States Geological Survey


USGS
SOUTHEASTERN REGION MANAGEMENT CONFERENCE
CHARLESTON, S.C.
OCTOBER 24-28, 1988


Water Law: The Florida System
L. M. Buddy Blain
Blain & Cone, P.A.
Tampa, Florida




The state of Florida has a comprehensive, equitable and eminently
workable system for managing water. The system responds smoothly
to current needs yet retains enough flexibility to meet future
demands.

Florida's system of water management is based on the Water
Resources Act, which was enacted by the legislature in 1972.
Florida's substantive water laws come from both the Water
Resources Act and thecommon law. To appreciate Florida's system
of water management and its water law, a few basic facts about
the state must be understood.

Florida is a big state -- For example, it takes 13 or 14 hours to
drive the 600 + miles from the southernmost city, Key West, to
the capital in Tallahassee ... and another 4 hours to drive the
200 miles from Tallahassee west to Pensacola.

Florida is a flat state -- Florida's highest peak is a bump on
the topography maps less than 350 feet above sea level. It's
also a wet state, with an average yearly rainfall of more than 54
inches. Until relatively recently -- say the last 50 years -- it
has been an underpopulated state.

From what is described, it would hardly sound like Florida would
have water problems. But it does ... and the problems have
fallen into two categories: Too much water and too little water.

TOO MUCH WATER

During Florida's early years, say the 100 years from 1845 to
1945, the problem was too much water. Heavy rainfall and flat
topography were hindrances to development. The overriding
concern of the early leaders was to get the water off the land to


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make the land amenable to development, whether it be for
residential communities or, more prevalently in the early years,
for agricultural purposes.

TOO LITTLE WATER

After World War II, however, the picture began to change
remarkably. Florida's enormous population boom -- which is
continuing at a great rate even today -- brought with it new
demands for potable water and new kinds of problems. Officials
began to realize that while the average annual rainfall was high,
there were significant periods of drought, resulting in too
little water. Coastal cities such as Miami, Tampa and St.
Petersburg flourished, and this growth in the coastal areas
created an increasing demand for water. As groundwater
withdrawals increased along the coast, salt water intrusion began
to take place, creeping from the Gulf and the Atlantic into the
shallow, fresh water aquifers of the coastal regions. Water
shortages during certain times of the year became increasingly
common in the urbanized coastal areas.

THE CHALLENGE OF GROWTH

Florida's greatest challenge today is its growth. Perhaps you
have heard the story making the rounds in Florida. The latest
"good news bad news" story.

"By 1990 Florida will be putting its sewage
effluent back into the public drinking water
supply system."

Was that the bad news? NO! That was the good news -- the bad
news is:

"There will not be enough of it."

Florida's population continues to grow. The state had a net
migration of almost 350,000 people in 1987.

THE FLORIDAN AQUIFER

Although the shift from "Too Much" to "Too Little" contributed to
the Florida system of water management as it exists today, other
factors played a role, too. For example, the source of Florida's
water supplies has heavily influenced the fresh water system.


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Contrast Florida with other states -- 90% supply from ground, 10%
from rivers .

Most of the ground water in Florida is contained in the Floridan
Aquifer. This huge, underground freshwater-filled rock stretches
from the north central part of the state southward to just north
of the Everglades. It provides water to most of the ground water
users in peninsular Florida. Only the extreme portions of
western Florida and the southeastern part of the state do not
draw potable ground water from this source.

Unlike the panhandle, peninsular Florida is a hydrologic island.
(Fresh Water lens) No water, ground water or surface water,
flows southward into the peninsula from northern areas. All the
water in this area comes from local rainfall.

Florida can be divided into many surface water hydrologic
systems. Each of these distinct systems can be subdivided into
drainage basins. However, surface water divides often shift as a
result of even minor alterations of the very gently sloping
topography. Ground water divides are even less distinct and
often shift with these surface water modifications as well as
with changes in withdrawal patterns.

Each area in Florida, in terms of water management, has much in
common with other areas of the state -- yet, each has its own
unique problems.

Different solutions have been tried for different areas. Two
very significant developments in Florida's history set the stage
for the current system of water management.

I. FLORIDA'S SYSTEM OF WATER MANAGEMENT

A. A Flood Control District In 1949

The first significant development was in 1949, when the Central
and Southern Florida Flood Control District was formed as a
multi-purpose flood control district. It was charged with the
duty to dispose of accumulated water during periods of excess
rainfall, and also to conserve and use diffused surface water
throughout the year. This entity, which later became the South
Florida Water Management District (SoFWMD), had jurisdiction over
a large portion of south Florida but not all of it. The old
Flood Control District encompassed most of the Everglades, the
highly urbanized Gold Coast and Miami, as well as the Kissimmee


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Valley and the upper portions of the St. Johns River. It
inherited a vast network of drainage canals and ditches. It took
over maintenance as well as construction of additional structures
and modification of others in what is now an elaborate system of
structures to control surface waters. Some of these were
originally dug before the turn of the century. Everyone and
every governmental entity had dug a canal. Central and Southern
Flood Control District was given the job of making order from
chaos of stopping salt walter intrusion.

B. A Water Management District In 1961

The second significant development was in 1961, when the
Southwest Florida Water Management District (SWFWMD) was formed.
It was given jurisdiction over 16 counties stretching both north,
south and inland of the two major west coast cities, Tampa and
St. Petersburg. This was the first district created after
passage of the 1957 Water Resources Act. It was created mainly
to alleviate life-threatening flooding which occurred in the
Tampa area during heavy rainfall in 1959 and 1960. It was given
other water management powers as well, such as limited regulation
of ground water resources within its jurisdiction. The Central
and Southern Florida Flood Control District had not been given
any regulatory powers. Actually, ground water was not of the
same concern in the Central and Southern Flood Control District
at the time as it was in the Southwest Florida Water Management
District.

Each district had ad valorem taxing authority: Central and
Southern 1 mill; SWFWMD 1.3 mills.

C. A New Law In 1972

For the next decade, these two entities -- the Central and
Southern Florida Flood Control District (which has now become the
South Florida Water Management District), and the Southwest
Florida Water Management District -- made significant progress in
alleviating some of the major problems within their
jurisdictions. It was this positive experience and an increasing
sensitivity to general environmental values that led to the
enactment of the Florida Water Resources Act of 1972. This Act,
codified as Chapter 373 of the Florida Statutes, became the basic
document outlining the state's system of water management. The
drafters relied heavily upon A Model Water Code With Commentary
by Dean Frank Maloney, Richard Ausness, and Scott Morris, but the
legislators made numerous changes.


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The Water Resources Act of 1972 was influenced strongly by the
experiences of the two existing water management districts and
from exhaustive efforts of a Joint House Legislative Committee.
It also was influenced by recommendations from he Governor's 1971
Conference on the Everglades.

The Act provided authority for regulation of all waters in the
state. This includes all water on or beneath the surface of the
ground or in the atmosphere, including natural and artificial
water courses, lakes, ponds and diffused surface water, and water
percolating, standing, or flowing beneath the surface of the
ground as well as all coastal waters within the state's
jurisdiction.

The Act had as its aims the following:

To provide for the management of water and related
land resources.

To promote the conservation, development and proper
utilization of surface and ground water.

To provide water storage for beneficial purposes.

To prevent damage from floods, soil erosion an
excessive drainage.

To preserve natural resources, fish and wildlife
and to promote recreational development.


D. Five Districts

The Act directed that the state be divided into five water
management districts. This was to include the existing South
Florida and Southwest Florida Districts and three new ones. The
Northwest Florida Water Management District was to encompass an
area extending from the middle of the northern part of the state
westerly more than 200 miles to include the state's westernmost
city, Pensacola. The Suwannee River Water Management District
was to encompass the huge watershed of that river. The St. Johns
River Water Management District, on the state's northeast coast,
was to cover the watershed of the St. Johns River. In 1973 the
legislature drew boundary lines for interim districts and in 1974
the final boundaries were set forth.


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The division of the state into five districts largely follows
topographic, hydrologic and geologic watershed boundaries.
Political boundaries were not followed.

Each district is governed by a nine member lay board, appointed
by the Governor and subject to confirmation by the State Senate.
Board members are not paid. The makeup of each board is largely
determined by residency requirements in the Act to ensure a
diverse geographical representation within each district. Each
board has its own staff.

Additionally, the Water Resources Act authorized further sub-
divisions of districts, into basins. The Act allowed basins to
be controlled by separate basin boards responsible for the
planning and approval of construction of primary water resource
development projects and secondary water control facilities
within their jurisdictions. The 1988 legislature abolished two
of the existing basins in the St. Johns River Water Management
District.

E. A Constitutional Amendment In 1976

One of the strengths of Florida's water management system is the
independent funding of the districts. Each district has ad
valorem taxing power. This was achieved by amending the Florida
Constitution.

Central and Southern Florida Flood Control District and Southwest
Florida Water Management District were granted ad valorem taxing
authority when each was created in 1949 and 1961, respectively.
Under the 1968 Florida Constitution, as it existed in 1972, ad
valorem tax authority could not be granted to any new special
districts without referendum. Ad valorem taxing powers were
preserved for existing districts having such authority prior to
1968. Thus, the old districts (Central and Southern Florida
Flood Control District, now South Florida Water Management
District and Southwest Florida Water Management District)
retained their independent taxing power, but the new districts
could not be granted ad valorem taxing authority. Furthermore, a
circuit court ruled that change of boundaries of either of the
"old" districts would result in loss of their preserved taxing
authority.

A constitutional amendment, to allow taxing power to all five
districts, was proposed. In 1976, this amendment was approved
overwhelmingly by the voters, which enabled the legislators to
grant ad valorem taxing authority to each water management


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district. This is the first time in the history of Florida that
the people, by popular vote, have opted for a tax on themselves.

All districts levy and spend ad valorem taxes, but they are also
funded, in part, by State General Revenue Funds over which the
legislature has ultimate control. In addition, each district now
gets a portion of the documentary stamp tax for use in land
acquisition under the "Save Our Rivers" legislation adopted in
1981.

F. Diverse Authority

The authority of the water management districts is quite diverse
and multi-faceted. Currently, Florida's water management
districts engage in:

Consumptive use permitting;

Well construction permitting;

Regulating water control structures;

Permitting the use of works or lands of
the district;

Regulating artificial recharge projects;

Water quality permitting; including wetlands,
storm water, and surface water and storage;

Acquisition and construction of works of the
district such as flood detention-retention areas;

Participating as statutory parties in power
plant and transmission line citing proceedings;
and

Efgaging in necessary rulemaking standard
setting and enforcement activities.


G. State Control And Supervision

Florida's system handles its diverse activities on a regional
basis. The strength of the system is found in the structure of
the districts, as independent, regional boards. The regional
jurisdiction is crucial as it allows each board to address


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regional problems. But each regional board is governed by the
1972 Act and each is supervised by the Florida Department of
Environmental Regulation.

The Secretary of DER has general supervisory authority over water
management districts, with clear direction to delegate authority
to the districts to the maximum extent possible. DER has the
power to do anything that a water management district could do,
except that the power to review and rescind or modify any action
of a water management district is reserved solely for the
Governor and Cabinet. DER has worked closely with the water
management districts. It currently is working with South Florida
and St. Johns River Water Management Districts to solve water
supply problems in Brevard County. As noted by the Fifth
District Court of Appeal in the case of Osceola County v. St.
Johns River Water Management District, 486 So.2d 616, 618-619,
affirmed, 504 So.2d 385 (Fla. 1987), "in relation to DER, the
five water management districts are both subordinate and
independent".

Seldom has an action of a water management district been taken to
the Governor and Cabinet for review. The only times water
management districts have been reversed have been on procedural
grounds, and then the matters have been remanded for rehearing.

Each water management district is subject to statewide water
policy, as set by DER. In 1982, DER adopted rules on general
water policy which is to be considered by districts in evaluating
consumptive use permits. The policy is set forth at Chapter 17-
40, Florida Administrative Code. It was developed as a joint
effort with the districts, taking almost a full year of
conferences and workshops to produce a consensus.

The General Water Policy became part of DER's 1986 State Water
Use Plan. DER developed its Water Use Plan by selecting 29
"Policy Clusters" relevant to water use issues, out of 75 "Policy
Clusters" contained in the State Comprehensive Plan. Each water
management district must produce its own agency plan to implement
the policies in the State Water Use Plan.

A good example of the interplay between regional interests and
state policy can be found in the on-going issue of water
transfers from one district to another. This issue is brewing
between Brevard County, a user county located in the St. Johns
District, and Osceola County, an intended supply county located
in the South Florida District. The South Brevard Water Authority
applied to the St. Johns District for a CUP to authorize use,
within St. Johns, of water to be withdrawn from Osceola County,


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within the jurisdiction of South Florida Water Management
District. Inter-district water transfers, although never
implemented, had been authorized by DER Rule 17-40.050, which
required approval of the proposed use by both the supply district
(here South Florida), and the use district (St. Johns). In this
case, the applicant had not yet applied to South Florida when the
government of Osceola County, the site of the proposed
withdrawal, stopped the permit process by challenging the legal
ability of St. Johns to consider the use of water taken from
outside its boundaries.

Osceola County argued that the Water Resources Act (Chapter 373,
Fla. Stat.) does not expressly authorize either DER or the
districts to approve inter-district water transfers. The Florida
Supreme Court rejected Osceola's argument, agreeing with the
Fifth District Court of Appeal that the Water Resources Act
contains a statewide water management system to be implemented by
DER and the five districts. The districts' boundaries were not,
in this case, to be considered borders of regulatory authority.

The Florida Supreme Court thus held that Chapter 373 authorized
DER's Rule 17-40.050, which, in turn, authorized district
authority over inter-district water transfers. The court's
validation of DER Rule 17-40.050 was limited to the particular
water transfer contemplated by South Brevard Water Authority.
Osceola County v. St. Johns River Water Management District, 504
So.2d 385 (Fla. 1987).

After DER's inter-district transfer rule was upheld by the
Florida Supreme Court, the Florida legislature got into the act.
It directed that proposed inter-district water transfers shall be
regulated by a commission composed of the DER Secretary and the
Chairmen of the governing boards of the affected districts.
Chapter 87-347, 1987 Laws of Florida. As I said earlier, DER is
now working with the two districts to determine whether Brevard
County has a water supply problem that should be solved by water
transfer. This should be an interesting example of DER
supervision and district cooperation.



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