Title: The Evolution of Florida's Administrative System of Water Management
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Title: The Evolution of Florida's Administrative System of Water Management
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Selections from the Past: The Evolution of Florida's Administrative System of Water Management, by L.M. Buddy Blain and Hallie S. Evans, from 1988-7th Annual Water Management Seminar
General Note: Box 8, Folder 4 ( Vail Conference, 1994 - 1994 ), Item 13
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00001358
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.

Full Text
this article was used as a basis for a speech to the 1988 SEVEN II
Alabama Water Conference held in Montgomery, Alabama ANNUAL WATER
on October 20, ]987. It will appear as part of the MANAGEMENT
conference proceedings. SEMINAR
The Evolution of Florida's Administrative
System of Water Management

By L. M. Buddy Blain and
Hallie S. Evans
Blain & Cone, P.A.
Tampa, Florida



The state of Florida has a comprehensive, equitable, and
eminently workable administrative system for managing water. It
responds smoothly to today's needs and retains enough flexibility
to meet future demands. The system adapts well to regional
variations in water resources, climate, and to population growth.
Floridians can be proud of this system, which finds its strength
in regional divisions, independent lay boards., Department of
Environmental Regulation guidance, legislative responsiveness,
and gubernatorial restraint and discretion.

Today's administrative system of water management is the result
of almost one hundred years of water legislation. Since the
enactment in 1893 of its first water resource law (1), Florida
has experimented with various water management mechanisms.
Certain trends have been common throughout the water management
journey. The first trend is the focus on regional solutions,
necessary because of state-wide variations in rainfall amounts,
rainfall patterns, temperature, topography, and water resources.
[21 Another trend is private sector participation private water
users have been associated with water management solutions in
various ways, from creating and managing local water districts,
to serving on the boards of state created districts as
gubernatorial appointees. Private sector participation, along
with restrained supervision by the governor and state agencies,
has led to a unique degree of independence for today's water
management districts. Private property rights have been
protected, in varying degrees, throughout the development of the
administrative system of water management. The most important
trend in Florida water law is the slow but steady move toward
greater understanding of the uses and values of water resources,
culminating in the current balance of water management permitting
and water resources planning.

This will be a discussion of significant legislation in the
development of the current Florida administrative system of water
management. [3)




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Ditch and Drain

After Florida became a state in 1845, its leaders embarked upon
one development-oriented scheme after another. The vast expanses
of wetlands, especially the Everglades area, were a major
impediment to development, transportation and agriculture. The
state was land rich as a result of the 1850 Swamp and Overflowed
Lands Act, by which the United States Congress conveyed to the
state millions of acres of land deemed wet and unfit for
cultivation, on the condition that the state sell such lands only
for reclamation. (4) The state was cash poor as a result of
unfortunate transportation development plans in the midst of the
Civil War. In its desperation to raise $1 million to pay
interest on $14 million in state-guaranteed bonds, the state sold
four million acres, at 25 cents an acre, to a group of investors
headed by Hamilton Disston, son of the saw man, Henry Disston.
Mr. Disston, obligated to drain swamplands in the Lake Okeechobee
area and to reclaim other parcels, proceeded to dig ditches and
drain swamplands throughout South Florida. Other drainage
activities were carried out by other investors and entrepreneurs,
as Florida began its alliance with the private sector in learning
to manage its water resources. [5)

In 1893, the state enacted its first significant water resources
law. Chapter 4178, 1893 Fla. Laws, authorized any board of
county commissioners to construct drains, ditches or watercourses
upon petition of two or more landowners. Construction was
financed by proportionate special assessments. In 1901, the
legislature provided additional authorization for counties to
ditch and drain upon private initiative, should the county
determine that such reclamation would be necessary or beneficial
for agriculture, or the public health and sanitation. [6]

In 1913, the state began its experiment with local special
districts for water management purposes. Chapter 6458, 1913 Fla.
Laws, allowed formation of drainage districts based upon the
petition of the majority of landowners within the proposed
district or the owners of the majority of the land. Petitions
were considered and approved by either the board of county
commissioners or the appropriate circuit court. The trend of
independent lay boards began with these early drainage districts,
which had three-member boards of supervisors elected on a per
acreage voting basis. The Everglades Drainage District was
created in 1913, and other special districts were created based
upon the 1913 legislation. [7) Chapter 6458 was codified as
Chapter 298, Florida Statutes, and these special districts became
known as "Chapter 298 districts" to distinguish them from other









water-related special districts. Chapter 298 districts did not
have any regulatory powers and were not subject to state
supervision or direction; they functioned as purely local and
privately governed districts.


The Flood Control Act

After two hurricanes within one month in 1947, it was clear that,
for south Florida at least, the "ditch and drain" focus had been
short-sighted. Public outcry led to federal action, the 1948
U.S. Flood Control Act included approval of the first phase of a
$70 million Army Corps of Engineers flood control plan for
Florida. Fifteen percent of the cost was to be paid by the
state. [8) Florida also turned its attention to flood control.
In 1949, it enacted its first serious water management
legislation. The Flood Control Act, Chapter 25209, 1949 Fla.
Laws, focused on construction of project works and acquisition of
land for water storage. Flood control districts could be formed
upon petition by the State Board of Conservation and the owners
of the majority of the land. Flood control districts were
authorized only for areas included in federal flood control
projects. The districts blended state supervision with private
sector participation. Five-member governing boards of
landowners, appointed by the governor with senate confirmation,
were authorized to assess benefits and set budgets; but the State
Board of Conservation controlled the districts' shares from the
Flood Control Account of the General Revenue Fund. The districts
had no regulatory powers, and were limited to cooperation with
the federal government in its flood control projects, and to
construction, maintenance, and operation of works and projects
such as canals, levees, dikes, and pumping stations. The Act was
codified as Chapter 378, Florida Statutes, "Flood Control", and
flood control districts were also known as "Chapter 378
districts" to distinguish them from other types of water
management districts. [9)

In 1949, the legislature also created the Central and Southern
Florida Flood Control District for the purposes set forth in
Chapter 25209, 1949 Fla. Laws. The structure conformed to
Chapter 25209, 1949 Fla. Laws, except that the Central and
Southern board was authorized to levy ad valorem taxes. Chapters
25214 and 25270, 1949 Fla. Laws. The Central and Southern
district, governed by a board of five lay gubernatorial
appointees, completely replaced the Okeechobee Flood Control
District and the Everglades Drainage District, which were
abolished. (101



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4.3










Water Resources Law of 1957


The Water Resources Law of 1957, Chapter 57-380, 1957 Fla. Laws,
declared that the state's water policy was to effect "the maximum
beneficial utilization, development and conservation of the water
resources of the state in the best interest of all its people and
to prevent the waste and unreasonable use of said resources...."
11l thus Florida began allowing down its "ditch and drain"
process and started focusing more on water conservation and wise
water use.

The Water Resources Law of 1957 was Florida's first step toward
regulation of water use. The State Board of Conservation,
consisting of the Governor and Cabinet, was empowered to
authorize use of surface water and ground water only in excess of
average minimum flow (for a watercourse), level (lake) or
elevation (aquifer), while protecting existing legal uses against
interference. (121 This State Board could delegate its water use
regulatory powers to any (Chapter 378) water management district
or to any water development or conservation districts it created.
This first small step toward water use regulation was carefully
balanced with protection for private property rights. The state
water policy declared that "the present property rights of
persons owning land and exercising existing water rights
appertaining thereto shall be respected and such rights shall not
be restricted without due process of law nor divested without
payment of just compensation...." Special protection from
regulation was granted for springs "now developed and operated
for recreational purposes or as tourist attractions...." [13) The
law also exempted from regulation "individual users of water for
domestic purposes or ordinary livestock cultivation" and lakes or
ponds completely surrounded by land owned by a single owner or
several owners with common title. [14]

The 1957 Water Resources Law combined centralized state power
with regional and local districts. The Chapter 378 districts,
the Central and Southern Flood Control District, and the Chapter
298 districts were still operating. The 1957 law not only
authorized the State Board of Conservation or its Division of
Water Resources to cooperate with existing districts, it also
authorized a new type of district: water development and
conservation districts. These districts, to be created by and to
be totally subservient to the State Board of Conservation, were
intended to govern water use and conservation. (151 Although the
1957 law did not affect existing regional districts and it even
authorized additional districts, the main effect was a
strengthening of the state's powers over water resources. The law



4




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empowered the State Board of Conservation to conduct research,
cooperate with local and regional drainage districts, create and
govern water conservation and development districts, issue rules
and regulations for the water conservation and development
districts, hold hearings, issue subpoenas, and enforce its rules
and regulations. (161 For the first time, the state had a
statewide agency to supervise its water resources.

Chapter 57-380, 1957 Fla. Laws was codified at Chapter 373,
Florida Statutes.

Southwest Florida Water Management District

After disastrous floods in March 1959, March 1960, and September
1960, the legislature created a flood control district for
Southwest Florida. 117) Like the Central and Southern Flood
Control District, the new district was created to cooperate under
Chapter 378 with federal flood control projects. However, the
Southwest district was called a "water management district"
rather than a "flood control district", representing a subtle
change in the state's water policy since the 1949 legislation.
Southwest, as a legally constituted water management district,
was eligible to be authorized by the State Board of Conservation
to exercise the limited regulatory power relating to the capture,
storage and use of water contained in the Water Resources Law
codified in Chapter 373.

Chapter 61-691, 1961 Fla. Laws, consolidated the authority of
several local boards into the new regional board. The Southwest
District was directed to assume responsibility for the operation
and maintenance of the water works of the Oklawaha Basin and Lake
Apopka recreation and water conservation and control authorities,
and the Peace River Valley Water Conservation and Drainage
District was abolished. [18)

Chapter 61-691, 1961 Fla. Laws, continued and expanded the trend
toward independent lay boards. The Southwest District was to be
governed by a board of nine lay gubernatorial appointees, with
ad valorem taxation powers. [191 This structure remains intact
in the current administrative system. Chapter 61-691 also began
the trend of quasi-independent sub-regional districts. The
Southwest District board was directed to divide the entire
district into watershed basins, each to be governed by an
appointed lay board, but all to be a part of the Southwest
District. [20]




5





4.!5








Refinement of the State Water Policy


In Chapter 63-336, 1963 Fla. Laws, the legislature amended
Chapter 373. The law refined the state's water policy; expanded
regulatory powers; gave greater powers, including regulatory
authority, to local boards; and continued the trends toward
regional water boards and protection of existing legal uses.

The 1963 act expanded the state water policy as it had been first
expressed in Chapter 57-380. The 1963 policy strongly emphasized
the state's interest in "proper development, wise use,
conservation and protection of water resources". [21) Vespite
the stronger emphasis on the state's interest in owning,
controlling, and developing water resources, the 1963 art
retained the 1957 protection for existing property and mater
rights. 122]

The structure of the system was changed with the 1963 art. The
State Board of Conservation, or any appropriate Chapter 378 water
management district, could, after a hearing finding necessity
established by a preponderance of evidence, create a water
regulatory district with boundaries conforming to a
hydrologicallyy controllable area based on ground water and re-
charge area". [231 Water regulatory districts were to'te
governed by the applicable water management district boad, or,
where appropriate, by a board appointed by the governor- [24]
The State Board of Conservation had general supervisory authority
over the regulatory districts. (25] The Governmental
Reorganization Act of 1969 subsequently transferred the State
Board of Conservation to the newly created Department cff Natural
Resources. [26)

The 1963 legislation was notable for its authorization cf
expanded regulatory powers, all of which were granted' tt the
regulatory districts. The districts were empowered to "establish
rules, regulations, or orders, affecting the use of water as
conditions warrant, and forbidding the construction of Tew
diversion facilities or wells, the initiation of new water uses,
or the modification of any existing uses"; and to "regulate the
use of water within the affected area by apportioning, Fimiting
or rotating uses of water, or by preventing those uses which the
local board finds have ceased to be reasonable or beneficial".
[27) This was the first substantial step toward the cwrent
system of regional boards with full regulatory powers, and a
state agency with supervisory powers.

The 1963 act also expanded the powers of the Chapter 373 water
management districts, authorizing their boards to maintain court









actions to enforce rules, regulations and orders. The act added
a top layer of supervision, by creating the state water resources
appeal board, whose members were appointed by the governor. The
appeal board was authorized to review decisions of the governing
board of any water regulatory district. [28) This structural
change was absorbed into the the current administrative system,
which has a special, executive branch board for appeals from
water management district governing board decisions. [29]


An Act Relating to Drainage Districts

Chapter 298 was amended by Chapter 72-291, 1972 Fla. Laws, which
only added to the confusing mixture of local and regional boards
by changing the name of Chapter 298 "drainage districts" to
"water management districts". This was given further confusion
by hyphenating the term in Florida Statutes so it appeared as
"water-management districts". The semantic change represented
the change in the state's water policy since the 1913 enactment
of the original drainage district law. Previously, Chapter 298
districts had been restricted to drainage and reclamation
activities. Now, they were authorized to engage in water
management activities for the preservation and protection of
water resources. (301


Florida Water Resources Act of 1972

In 1972, the state completely revised water resource management
law by passage of the Florida Water Resources Act of 1972. This
repealed much of Chapters 373 and 378, Florida Statutes, and
completely amended the Water Resources Law which had first been
enacted as Chapter 57-380, 1957 Fla. Laws, and had been amended
with Chapter 63-336, 1963 Fla. Laws. The 1972 Act established
the current administrative system of water management.

Chapter 72-299, 1972 Fla. Laws, was developed by a joint House of
Representatives committee. (Typically joint legislative
committees consist of members from both the house and senate.
This did not. It was comprised of members from two house
committees.) The joint committee used Frank E. Maloney's draft
Model Water Code as a basis for the new law it was discovered at
hearings around the state taking testimony. [311 Substantial
revisions to the state law were proposed. Exhaustive hearings
were held, bringing together many different factions. Many
compromises were made. The joint committee referred its product
to the House Natural Resources Committee. When it finally came
before the committee it was approved without debate. The



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proposed bill then went to the floor of the House, where it was
vigorously debated. There were many amendments, some quite
crippling to the existing districts (Central and Southern, and
Southwest Florida); but the amendments were necessary to ensure
passage by the House.

The House bill went to the Senate. The Chairman of the Senate
Natural Resources Committee told one of the authors, the day
following the House approval, that he would agenda the bill and
take it up the next Tuesday as the Senate leadership wanted it to
pass. The House bill had not yet been engrossed. The author
began composing amendments to temper the House amendments so that
the bill would be workable and the two existing districts could
continue to function. The Senate Committee accepted more than 30
amendments prepared by the author, and sent the amended version
to the full Senate for consideration. The bill was on the Senate
calendar for days, facing more challenges and opposition. Forces
to kill the bill were gathering strength, despite the governor's
threat of a special session should the bill not pass.

A compromise was reached. It was agreed to defer the effective
date of the primary portions of the act to allow a year to
examine it more closely. (32] The bill had been patched together
with numerous amendments and many people (legislators and
lobbyists, alike) were confused as to what the bill said, didn't
say, or should have said. Also, the proposed bill was very broad,
and there were implementation problems with the two ongoing
districts.

The further revised bill was passed by the Senate and sent back
to the House in its fully amended form. The House approved the
bill as revised by the Senate, and Chapter 72-299, 1972 Fla.
Laws, was enacted. [33]

Chapter 72-299 established the current administrative program,
with one supervisory state agency authorized to regulate water
use, well construction, and management and storage of surface
waters, and five regional water management districts with
independent lay boards authorized to accept delegation from the
state agency of its regulatory powers.

The Department of Natural Resources (DNR), through its Division
of Interior Resources, was required to develop a state water use
plan, and was authorized to allocate funds to the water
management districts out of the water resources development
account in the state general revenue fund. DNR, headed by the
Governor and Cabinet, was to exercise supervisory authority over
the water management districts, and could delegate its regulatory



8









powers to the districts.


The act mandated the creation of five water management districts:
Northwest Florida, Southwest Florida, South Florida, St. Johns
River Basin, and Suwannee River Basin. DNR and the district
boards were to submit proposed boundaries to the 1973
legislature. The districts were to be governed by nine-member
boards, appointed by the governor with senate confirmation. Each
board was authorized to employ an executive director and such
engineers, other professional persons, and such personnel and
assistants as deemed necessary; to employ a legal staff; to
determine the location of its principal office; to enter into
contracts; to issue orders to implement its rule; to investigate
water supply resources; to cooperate with other agencies; to
replenish groundwater; to buy, sell, or exchange water; to store,
transport, reclaim, purify and treat water; to build district
works; to buy, lease, or receive land for flood control, water
management, water storage, and preservation; and to exercise the
power of eminent domain to acquire flood control and water
storage lands. The boards were granted administrative
enforcement powers and were authorized to maintain court actions.
[35] This was the first time that regional or local water
districts were granted such far-reaching powers; and it was the
first time that regional districts were mandated for the entire
state.

Thus, with this new law, the state began an era of complete water
regulatory authority. Parts II and IV of Chapter 72-299
authorized regulation of water use and surface water management
and storage; and Part III mandated well construction regulation.

Chapter 72-299 is, in many respects, similar to the Model Water
Code but, in some respects it is quite different. Part III,
Regulation of Wells, does not follow the Model Water Code.
Legislation prepared by an interest group was engrafted verbatim
onto the compromise bill. Chapter 72-299, Part III, Section 12,
exempts from well construction regulation any area where water
wells were regulated by a water regulatory district. This
exemption applied to the Southwest District, which in 1968 had
formed a Water Regulatory District with the same boundaries and
board as the Southwest Florida Water Management District. In
1969 the Southwest Florida Water Regulatory District (Regulatory)
issued regulations at Chapter 357 R-1, Florida Administrative
Code, governing registration of well drillers and construction of
wells. Well drillers within the Southwest District had to
register with the District, but they did not have to comply with
the licensing requirements of Chapter 72-299.



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Chapter 72-299 retained some of the earlier laws' protections for
existing users and private property rights while it eliminated
others. All waters of the state were now subject to regulation,
and tourist springs and lakes surrounded by private ownership no
longer were exempt. The use regulation exemption for individual
domestic use was retained, but ordinary livestock consumption was
no longer exempt. The specific statement of the state's policy
to protect existing property rights and water rights was
repealed, and replaced by a grace period in which existing water
uses could be exercised without a use permit. Very few
guidelines were prescribed for programs for regulating
consumptive use of water other than requiring that the proposed
use is a reasonable-beneficial use (a new term defined in the
act); will not interfere with any presently existing legal use of
water and is consistent with the public interest. [36)

Existing districts were not affected immediately. Water
regulatory districts would remain intact until specifically
revoked or amended by DNR or the appropriate water management
district. Central and Southern Florida Flood Control District
and Southwest Florida Water Management District retained their ad
valorem taxation powers (until and unless any of their existing
territory was transferred to another district when the boundaries
were drawn). [37)

The act required the districts, or DNR, to prepare a water
shortage plan, and authorized water shortage declarations and use
restrictions. [381

The act repealed almost all of the water management act as it
existed after the 1963 amendments, and it repealed the portions
of the law that related to flood control districts. (39] The
administrative system, and its laws, had finally been
consolidated.

In a rather unique schedule of effective dates, implementation of
almost the entire act was delayed until July 1, 1973. The only
portions effective immediately were the statement of policy, and
the provisions for creation of the water management districts and
for interagency agreements. The appropriation of $75,000 to DNR
was effective July 1, 1972. (401

The Water Resources Act did not direct codification in a
particular chapter of the Florida Statutes. Before the 1972 act,
Central and Southern Florida Flood Control District and Southwest
Florida Water Management District were governed by the special
acts creating them and under Chapter 378, "Flood Control". [41]
Chapter 373, "Conservation; Geology; and Water Resources",



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contained the water resources law, state water policy, regulatory
program, and authorization for water management activities of the
State Board of Conservation. 1421 The statutory revision
division of the joint legislative management committee put the
Water Resources Act of 1972 into Chapter 373 but it did not use
the customary tracing tables so legislative history was difficult
to decipher. In 1973, the legislature directed the statutory
revision division of the joint legislative management committee
to put the Water Resources Act of 1972 into Chapter 378, renumber
Chapter 378 as necessary, and transfer related parts of Chapter
373 to Chapter 378. It also was directed to change the title of
Chapter 378 to "Water Management Districts" and change the title
of Chapter 373 to "Geology". (431 Editorial preogatives were
exercised instead and the mandate was never followed. The Water
Resources Act remained in Chapter 373 and Chapter 378 disappeared
with publication of the 1973 Florida Statues.

An Act Relating to Environmental Land and Water Management

The 1972 legislative session was noted for its far-reaching,
precedent-setting environmental laws. Not only did it pass the
Water Resources Act of 1972 but also with the Florida
Environmental Land and Water Management Act of 1972, Chapter 72-
317, 1972 Fla. Laws, the legislature created the development of
regional impact procedure, and the areas of critical state
concern program. Water management was affected by the act's
implementation of the following policies

land and water management policies [should be
established) to guide and coordinate local decisions
relating to growth and development, and ...
such state land and water management policies should to
the maximum extent possible be implemented by local
governments ... and ...

all the existing rights of private property [should) be
preserved in accord with the constitution....

(44) The policy expressed in Chapter 72-317 was consistent with
the water management system's emphasis on local and regional
implementation, and protection for existing rights.

Chapter 72-317 created the Florida Land and Water Adjudicatory
Commission, which later became the executive branch appeal board
for water management district governing board decisions.



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Water Shortages

Chapter 72-299, 1972 Fla. Laws, also required that a water
shortage plan be prepared, but this provision was not effective
until July 1, 1973. (451 In November 1972, just 5 months after
the enactment of Chapter 72-299, an impending drought in south
Florida made it clear that the water shortage provisions of the
new law were not comprehensive enough for immediate assistance.
A special session had been called for other purposes, so the
Governor extended the call to include a solution to the water
shortage problem. It was suggested that Chapter 72-299 be
implemented immediately? instead, a separate, broader provision
for water shortage emergencies was enacted in the special
legislative session as An Act Relating to Flood Control
Districts, Chapter 72-730, 1972 Fla. Laws.

Chapter 72-730 amended Chapter 378, Florida Statutes, to add a
new section on declaration of water shortage. The Chapter 378
water shortage provision was similar to the Chapter 373 water
shortage provision, but it eliminated the requirement of a water
shortage plan, allowed the districts to operate by declaration
instead of regulation, and eliminated the participation of DNR
except for supervision and review. The boards were authorized to
issue emergency orders apportioning, rotating, limiting, or
prohibiting water use.

This new law on water shortages (Chapter 72-730) took effect on
December 1, 1972 and was to be repealed on July 1, 1973. In
1973, the repeal date was eliminated and the exceptional
emergency water shortage authority was extended indefinitely.
(461

It was thought that the water shortage powers would first be
implemented in south Florida, but shortages in that area were
controlled by canals, pumps, and gates. A drought in northwest
Hillsborough County and the onset of the central Gulf Coast
"water wars" led Southwest to first exercise the new broad power.
Before then, Southwest had declared certain mining areas as water
use caution areas. This procedure had few real teeth in it
except as a "club" when Southwest reviewed proposed permits.
When Southwest first exercised its water shortage powers, it trod
on hallowed ground; an appointed lay board was telling elected
officials to implement sprinkling bans and other use
restrictions. Many of these use restrictions have now become a
way of life in some areas of the Southwest district.




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1973-1976: District Boundaries and District Taxing Power


In An Act Relating to Water Management, Chapter 73-190, 1973 Fla.
Laws, the Water Resources Act was amended to establish water
management district boundaries, to pick up glitches in the law,
and to smooth rough edges. It also authorized the designation by
district governing board of subdistricts or basins similar to
basins mandated for the Southwest district when it was originally
created.

The most significant aspect of the 1973 law was its setting of
district boundaries. Determination of the boundaries was
complicated by the fact that the two existing districts, Central
and Southern Florida Flood Control District and Southwest Florida
Water Management District, were active, functioning districts
which had ad valorem taxation power by virtue of their enacting
legislation. In 1968, the Florida Constitution was revised. One
change provided that the legislature could no longer authorize
special districts to levy ad valorem taxes without prior voter
approval. The prohibition did not affect the ad valorem taxing
power of special districts existing when the 1968 constitution
became effective, so the two existing districts retained their
taxing power.

The legislature recognized that the two districts had to maintain
their existing ad valorem tax power to fund existing projects.
Although it changed the name of the Central and Southern Florida
Flood Control District to the South Florida Water Management
District, effective July 1, 1975, [471 it left unchanged the
boundaries of the two existing districts. A hiatus existed
between the Central and Southern and the Southwest districts, so
the legislature created a sixth interim district, the Ridge and
Lower Gulf Coast Water Management District. This sixth district
consisted of several non contiguous areas to allow functional
transition of the existing two districts in 1975 to their new
counterparts. See Figure 1. Legislators made it quite clear
that this was merely an interim step and scheduled further
changes in boundaries to reduce the state to.five districts. 148]
This would require changing the boundaries of the two older
districts. The boundary changes could be construed as the
creation of two new districts, which would need voter approval to
exercise ad valorem taxing power.

District boundaries were not finally resolved until 1976. During
the 1973 legislative session, Southwest Florida filed a
"friendly" suit for declaratory judgment, seeking judicial
determination that the district could continue to levy ad valorem
taxes without voter approval after the proposed boundary changes.



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The suit concluded in early May 1975, while the legislature was
still in session, with the court finding that: the boundary
change (then scheduled for July 1, 1975) would result in a
different Southwest Florida Water Management District from the
district that existed on the date of the 1968 Constitution, and,
thus, the Southwest District no longer would have authority to
levy any ad valorem taxes without prior voter approval. (49) The
same reasoning could also apply to the South Florida District
which was scheduled to lose part of its existing area and to gain
other areas. The boundary change date was deferred while other
solutions were sought.

By 1975, the four new districts were functioning on direct
appropriations. There was anti-regulatory sentiment against
granting all the districts ad valorem taxing power. There was a
move toward user fees to finance regulation, but, in the case of
water, it is difficult to determine which user should pay. A
proposed constitutional amendment, to authorize the districts to
levy no more than one mill, with Northwest to be authorized to
levy 0.05 mill, was approved by the legislature for submittal to
the voters. The amendment was approved in a special election
held in conjunction with the March 9, 1976 presidential primary.
(50]


Regional Water Supply Authorities

As an outgrowth of the Southwest District water wars and water
shortages, it was conceded that a regional water supply mechanism
was needed to supplement traditional methods by which local
governments supplied potable water. The structure of the
proposed mechanism was the subject of vigorous debate and
lobbying. In 1974, the legislature enacted Chapter 74-114, which
authorized the creation of regional water supply authorities
pursuant to the existing interlocal cooperation act, section
163.01, Florida Statutes. Counties and municipalities were
encouraged to create local authorities with primary
responsibility for water supply, while the districts were to
engage only in those functions related to their flood control and
water management purposes.


Florida Environmental Reorganization Act of 1975

By 1975, six years after passage of the governmental
reorganization act, the legislature felt saw the need to
centralize authority over certain state environmental agencies so
that responsibility for the management of the environment could



14





A I.i4









be pinpointed and substantial decision-making authority could be
delegated to the district level.

Thus the Florida Environmental Reorganization Act of 1975,
Chapter 75-22, 1975 Fla. Laws, was passed creating the Department
of Environmental Regulation, with a secretary to be appointed by
and to serve at the pleasure of the Governor. A separate
Environmental Regulation Commission was created as part of DER.
Seven citizens, appointed by the governor, were to set standards
to guide DER. The regulatory powers and functions of the
Department of Pollution Control were transferred to DER, as were
the water management functions of DNR. DER was required to
establish field offices, which were to be collocated with water
management district offices to the maximum extent practicable.

The water management districts had been subject to the
supervision of DNR, which was headed by the Governor and Cabinet,
and to the appellate powers of the water resources appeals board.
Water quality regulatory activities (which were not handled by
the water management districts) were supervised by the Department
of Pollution Control. For the first time, all water management
and conservation programs both quantity and quality were
assigned to one state agency.

The Governor and Cabinet, now sitting as the Land and Water
Adjudicatory Commission, retained exclusive power to rescind or
modify water management district rules and orders, except those
relating solely to internal management.

Chapter 75-22 finalized the basic structure of the current system
of water management. Although the water management districts
function without direct order from DER, they could be subjected
to far more pressure than has been applied thus far. The
districts' independence is enhanced by the use of lay board
members, who do not receive any remuneration for performing their
duties. Gubernatorial attempts to pressure the boards have been
rare and are seldom discussed publicly. The district boards are
deferential toward the executive branch, while retaining their
independence.

The creation of DER was greeted with a long period of unrest
between the districts and DER, as no one was sure what kind of
muscle DER would flex, or how much resistance the water
management boards would exert. DER had many problems, inheriting
many regulatory programs from different agencies. It has done
quite well, considering all the obstacles it has had to face.

DER has been more reluctant to delegate to its own regional



15





4.15








managers and to the water management districts than was
envisioned by the legislature. True collocation of offices
mandated by Chapter 75-22 has not been achieved, although some
efforts have been made.

Final District Boundary Changes
The final water management district boundaries were set in 1976.
The Ridge and Lower Gulf Coast Water Management District was
abolished by Chapter 76-243, 1976 Fla. Laws. That legislation
also imposed residency requirements for each of the water
management districts to assure geographical distribution of
governing board members. The legislature also created specific
basins within certain districts as part of the district boundary
changes. The Manasota Watershed Basin of the Ridge and Lower
Gulf Coast District became the Manasota Basin of the Southwest
District. An area transferred from Southwest to St. Johns River
became the Oklawaha River Basin of the St. Johns River District.
The South Florida District received the Big Cypress Basin from
the Ridge and Lower Gulf Coast District, and the rest of South
Florida became the Okeechobee Basin. See Figure 2.

Chapter 77-382, 1977 Fla. Laws, created the Greater St. Johns
River Basin out of all of the St. Johns River District except for
the portion containing the Oklawaha Basin. With Chapter 78-65,
1978 Fla. Laws, the remainder of the Ridge and Lower Gulf area
was transferred to Southwest District as a result of boundary
changes for the South Florida and Southwest Districts.

Documentary Stamp Tax Act

Chapter 81-33, 1981 Fla. Laws, created the Water Management Lands
Trust Fund within DER, to be used to purchase lands necessary for
water management, water supply and the conservation and
protection of water resources. Seven point two percent (7.2%) of
the documentary stamp tax monies was allocated to the Trust Fund. 924

From July 1, 1981 to July 15, 1982, the fund money could be
applied only to specific enumerated purchases. Thereafter, each
district's expenditures had to be consistent with its five-year
plan, to be submitted to the legislature by January 15, 1982.
Chapter 81-33 became known as the "Save Our Rivers Act" despite
the absence of any reference to "save our rivers" within the act.

Bond programs were desired by several of the water management
districts but it was unclear whether a district was authorized to


16


4.l16








pledge its share of money from the Trust Fund as security for
revenue bonds and notes. Chapter 85-247, 1985 Fla. Laws,
clarified this and opened the door to several financing
alternatives, including general obligation bonds, short term
borrowing, special obligation bonds and cash basis financing. It
not only permitted the districts to greatly expand their
acquisition projects, but also permitted them to do it quickly
and to place the expense of the acquisition program on new
construction and transfer of property rather than on ad valorem
taxes.


The 1987 SWIM Legislature

This past year the Legislature passed what has been referred to
as "SWIM" legislation. (51) The acronym stands for Surface Water
Improvement Management and gives the water management districts
responsibility for devising and implementing plans for
improvement of the water quality of certain bodies of surface
water, many of which are saltwater bays and estuaries. Thus the
water management districts have been directed by the legislature
to assume primary responsibility for protecting and improving
saltwater surface water bodies.


CONCLUSION

In summary:

1. The state is divided into regions for the purpose of
managing water in order to conserve and control it so as to
realize its full beneficial use.
2. Each region (district) is governed by an independent board.
3. Nine appointed, lay citizens, residing in specified
geographic areas, comprise each board.
4. Each board may employ its own staff and consultants.
5. Each board has rulemaking authority.
6. Each board has independent funding through ad valorem
taxing.
7. Each board has documentary stamp tax revenue for land
acquisition.
8. Each district may designate subdistricts or basins.
9. Each subdistrict or basin is governed by a separate,
independent board.
10. A single state agency (DER) has responsibility for
exercising general supervisory authority over all water
management districts.
11. The Governor and Cabinet have the exclusive authority to


17





t419








review orders and rules of water management districts.
12. Standards for decision-making are flexible enough to allow
modification as public interests evolve.
13. Each board is directed to prioritize its surface water
bodies, both salt and fresh, and to take steps to protect
and/or improve the water quality of these water bodies.

Today, Florida finds itself on the forefront of water management
with the most comprehensive system of any state in the United
States.


Footnotes

1. Chapter 4178, 1893 Fla. Laws.

2. See Water Resources Atlas of Florida 6-7, 18-67 (A. Fernald
& D. Patton ed. 1984) for a full discussion of Florida's
rainfall, climate, topography, and groundwater and surface
water resources.

3. This article will discuss the legal history of Florida water
management from a water quantity point of view. Water
management, in this context, includes drainage and flood
control; drought and water shortage; aquifer recharge;
withdrawal, impoundment, and diversion of water; lake and
stream regulatory levels for recreation, fish and wildlife
protection. It includes water conservation, but it does not
include water quality concerns.

4. An Act to Enable the State of Arkansas and Other States to
Reclaim the Swamp Lands Within Their Limits, 43 U.S.C.,
sections 981-994.

5. See C. Harner, Florida's Promoters, 12-17 (1973) for more on
Hamilton Disstont see N. Blake, Land into Water Water
into Land 73-83 (1980) for more on Hamilton Disston, and 19-
87 for extensive discussion of other early drainage and
development efforts.

6. See Florida Board of Conservation, Florida's Water Resources
Development (1963) for details of early drainage
legislation.

7. Id. Appendix A for list of special districts through 1961.
See N. Blake, supra note 5, at 113-140, for history of
Everglades Drainage District.


18





L.4










8. See N. Blake, supra note 5, at 176-194, for history of
federal flood control project in South Florida.

9. See Florida Board of Conservation, supra note 6, Appendix A,
for list of flood control districts.

10. N. Blake, supra note 5, at A-I.

11. Water Resources Law of 1957, Chapter 57-380, 1957 Fla. Laws,
section 4.

12. Id. section 8.

13. Id. section 4, codified as section 373.101, Fla. Stat.

14. Id. sections 3, 2.

15. Id. section 11.

16. Id. sections 7, 8, 12, 14, 15, 16.

17. See Parker, "Highlights of Water Management in the
Southwest Florida Water Management District", 11
Ground Water (May June 1973) for a short history of
Southwest Florida Water Management District.

18. An Act Creating Southwest Florida Water Management District,
Chapter 61-691, 1961 Fla. Laws, sections 4, 9.

19. Id. sections 3, 8.

20. Id. section 5.

21. An Act Relating to the Water Resources Law, Chapter 63-336,
1963 Fla. Laws, section 1.

22. Id., adding section 373.072(f), specifying that the
statement of policy shall not amend or modify section
373.101, Fla. Stat., which expressed the policy of Chapter
57-380 to preserve existing rights. See also section 2,
which amended 373.081 to add a definition of "beneficial
use" as "a use of water...that is reasonable and consistent
with property rights and with the public interest in proper
utilization of water resources". Section 2 also retained
the exclusion from regulation for lakes surrounded by common
ownership, as enacted in Chapter 57-380 and codified as
section 373.081(3).










In section 8, the boards of the regulatory districts were
mandated, in enacting their rules, to aim for "full
protection of existing rights to water"; and no
modifications of existing uses were allowed unless they were
detrimental to other uses.

23. An Act Relating to the Water Resources Law, Chapter 63-336,
1963 Fla. Laws, section 4, adding section 373.142.

24. Id. section 5.

25. An Act Relating to the executive branch of government,
Chapter 69-106, 1969 Fla. Laws, section 25.

26. An Act Relating to the Water Resources Law, Chapter 63-336,
1963 Fla. Laws, section 11.

27. Id. section 8.

28. Id. section 9. The Water Resources Appeal Board was
polished in the Governmental Reorganization Act of 1969,
Chapter 69-106, 1969 Fla. Laws.

29. Fla. Stat. sections 373.114, 373.217, 373.59 (1985).

30. An Act Relating to Drainage Districts, Chapter 72-291, 1972
Fla. Laws, section 1.

31. F. Maloney, R. Ausness, and J. Morris, A Model Water Code
(1972).

32. An Act Relating to Water Resource Management, Chapter 72-
299, 1972 Fla. Laws, Part VI, section 8.

33. The history of Chapter 72-299 is based on the author's
recollections.

34. An Act Relating to Water Resources Management, Chapter 72-
299, 1972 Fla. Laws, Part I, sections 3, 5, 6, 7, 8, 9, 10,
11.

35. Id. sections 12, 13, 16, 18, 26.

36. Id. sections 2, 3(9); Part I, section 3(7); Part II,
sections 1, 2(1), 3? Part VI, section 1 (repealing section
373.101) and Part II, section 4.



20





__.ao








37. Id. Part II, section 11; Part V, section 1(2).

38. Id. Part II, section 10.

39. Id. Part VI, section 1.

40. Id. Part VI, sections 8, 7.

41. Chapter 378, Fla. Stat. (1971).

42. Chapter 373, Fla. Stat. (1971).

43. An Act Relating to Water Management, Chapter 73-190, 1973
Fla. Laws, section 25.

44. An Act Relating to Environmental Land and Water Management,
Chapter 72-317, 1972 Fla. Laws, section 2.

45. An Act Relating to Water Resources Management, Chapter 72-
299, 1972 Fla. Laws, Part II, section 10; Part VI, section
8.

46. An Act Relating to Flood Control Districts, Chapter 72-730,
1972 Fla. Laws, section 2? An Act Relating to Flood Control
Districts, Chapter 73-295, 1973 Fla. Laws, section 1,
repealing section 2 of Chapter 72-730.

47. An Act Relating to Water Management, Chapter 73-190, 1973
Fla. Laws, section 6. The effective date of the name change
was delayed to December 31, 1976 by An Act Relating to the
Florida Water Resources Act of 1972, Chapter 75-125, 1975
Fla. Laws, section 1.

48. The Ridge and Lower Gulf Coast Water Management District was
scheduled for dissolution on July 1, 1975, and district
boundaries were to be changed on July 1, 1975. See An Act
Relating to Water Management, Chapter 73-190, 1973 Fla.
Laws, section 6. The effective dates were delayed to
December 31, 1976 by An Act Relating to the Florida Water
Resources Act of 1972, Chapter 75-125, 1975 Fla. Laws,
section 1.

49. See Southwest Florida Water Management District v. Hernando
County, No. 75-07-CA-01, declaratory judgment (Cir.Ct. 5th
Jud. Cir., Hernando County, May 9, 1975).

50. See S.J.Res. 1061, 1975 Fla. Laws, a joint resolution
proposing an amendment to section 9, Article VII of the









State Constitution relating to local ad valorem taxes. See
Blain, "Under the Florida Constitution: A History of Water
Management District Ad Valorem Taxing Authority" 9 Northwest
Florida Water Manaaement District Pump (April 1986) for a
full discussion of the history of the 1976 constitutional
amendment.

50A. The documentary stamp tax act came as a suggestion from a
smoke-filled room at DER. Sandy Young, Jim Lewis.

51. An Act Relating to Natural Resources -- Surface Water
Improvement and Management Act, Chapter 87-97, 1987 Fla.
Laws.



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