Title: Bridge Over Troubled Water: Recommendations of the Water Management District Review Commission
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Title: Bridge Over Troubled Water: Recommendations of the Water Management District Review Commission
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Bridge Over Troubled Water: Recommendations of the Water Management District Review Commission December 29, 1995
General Note: Box 8, Folder 6 ( Vail Conference, 1996 - 1996 ), Item 34
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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THE FLORIDA LEGISLATURE


WATER MANAGEMENT DISTRICT
REVIEW COMMISSION


Phillip D. Lewis, Chairman
William M. Bishop MImi K. McAndrews
Senator Charles Bronson Senator John McKay J
Rosana D. Cordova Mayor Carol Jaudon McQueen
Thomas H. Dyer Robert E. Nedley
John M. Finlayson Thomas E. Oakley
Richard J. Grosso Representative Vernon Peeples
Joe Marlin Hilliard Howard L. Searcy
Mary A. Kumpe Commissioner Samuel Taylor
Representative John Laurent / Commissioner Patti B. Webster
John R. Maloy Sanford N. Young
December 29, 1995


The Honorable Lawton Chiles
The Governor of Florida
Plaza Level, The Capitol
Tallahassee, Florida 32399-0001

The Honorable Jim Scott
President, The Senate of Florida
Suite 409, The Capitol
Tallahassee, Florida 32399-1100

The Honorable Peter R. Wallace
Speaker, The House of Representatives
Suite 420, The Capitol
Tallahassee, Florida 32399-1300

RE: Commission Recommendations

Dear Governor Chiles, Mr. President and Mr. Speaker:

On behalf of the Water Management District Review Commission, I am pleased
to transmit the attached report of Commission members, "Bridge Over Troubled Water:
Recommendations of the Water Management District Review Commission." As you
know, Chapter 94-240, Laws of Florida, directed the twenty-one appointed members to
perform a comprehensive analysis of the state's regional water management system, from
the appointment of governing boards and district budgeting processes to the legal
responsibilities, operations, and land acquisition programs of the agencies. Constrained
by a reporting deadline and the breadth of its charge, however, the Commission was not
able to address individual projects across the state that have been (or perhaps should be)
subject to additional scrutiny, e.g. Kissimmee River and Everglades restoration, water
supply and transport issues surrounding the Tampa Bay area, and the accessibility of
specific public lands for use by citizens, just to name a few.


Sally Bond Mann, Executive Director
600 South Calhoun Street, Suite 237 Holland Building, Tallahassee, Florida 32399-1400
Telephone: (904) 922-0981 SUNCOM: 292-0981 Fax: (904) 921-8007

1I






Governor Chiles, President Scott
and Speaker Wallace
December 29, 1995
Page Two



Over the past sixteen months, the Commission convened monthly public meetings
across the state for the purpose of hearing first-hand the concerns of Florida's citizens,
businesses and other governmental entities with regard to the current and future condition
of the state's water resource management. While Commissioners discovered that the
districts' programs and operations were generally adequate in many cases, they uniformly
agreed that water issues must be the subject of constant attention and regular monitoring
to ensure that the management of Florida's most critical resource is not driven by periodic
crises. Furthermore, with naturally fluctuating rainfall levels delivering an annual average
of fifty-five inches to the state's surface, it certainly seemed reasonable to Commissioners
that water supply development have a preeminent position in Florida's planning and
growth management processes.

The Commission's report contains specific suggestions for improving many aspects
of district programs and operations, as well as proposals for strengthening district financial
accountability and oversight by both the executive and legislative branches of state
government. To provide a clear and concise report, detailed historical information,
descriptions of all proposals considered, and the arguments and reasoning that support
Commissioners' final recommendations have been intentionally omitted from the report.
Background data and material, as well as tape recordings and transcripts of Commission
proceedings, are available at any time from Commission staff upon request.

Within the next thirty days, the Commission's Executive Director will draft proposed
legislation to implement the recommendations, and reports on the Commission's work will
be given during committee hearings on January 8th (Senate Select Committee on Water
Policy) and January 22nd (joint meeting of the House of Representatives' Natural
Resources Committee and Select Committee on Water Policy). Of course, additional
committee meetings may be scheduled for legislative consideration of the Commission's
proposed bills. Following adjournment of the 1996 regular session, a comprehensive
report of the Commission's work and an analysis of legislative action taken with regard
to water resource management will be prepared by the Commission's Executive Director.

It has indeed been an honor to chair the activities of the Water Management
District Review Commission, and I look forward to working with your respective offices
during the 1996 regular session to effectively implement its recommendations.

Respectfully yours,



Philip D. Lewis
Attachment









BRIDGE OVER TROUBLED WATER:


RECOMMENDATIONS OF THE WATER
MANAGEMENT DISTRICT REVIEW COMMISSION

DECEMBER 29, 1995



TABLE OF CONTENTS
PAGE

Commission Members 1


Introduction 2


Recommendations Regarding District Governance,
Oversight, Financial Structure and Budgeting

Summary 4

1. Appointed District Governing Boards 5
2. Staggered Appointment of Governing Board Members 5
3. District Ombudsman 5
4. Employment of Attorneys 6
5. Executive Approval of District Budgets 6
6. Executive Review of District Activities 6
7. Legislative Adoption of Water Policy and Plan 6
8. Legislative Committee Oversight 7
9. District Fiscal Year 7
10. Equalizing Constitutional Millage Caps 7
11. Supplemental Funding for Limited Tax Bases of Districts 8
12. State Funding for SWIM Program 8
13. Funding Sources for Statewide Programs 8
14. Financial Accountability and Budgeting 8
15. District Budget Processes 9
16. Truth-ln-Millage Adjustments 9
17. District Budget Advertising 10
18. Budget Formats and Allocations 10
19. Uniform Permit Applications and Fees 10


- --










TABLE OF CONTENTS
(continued)



Recommendations Regarding District Responsibilities and
Operations, Including Balancing and Prioritization


Summary 11


20. Balancing and Prioritization of District Responsibilities 12
21. Balancing by Governing Board When Reserving Water 13
22. Water Supply 13
23. Water Supply Development on Public Lands 13
24. Consumptive Use of Water 14
25. Consumptive Use Permit Duration 14
26. Priority Among Competing Uses 17
27. Concept of "Local Sources First" 17
28. Flood Protection Works 18
29. Flood Protection (Water Quantity) Regulation 18
30. Aquatic Plant Control 18
31. Water Quality Standards 19
32. Land Use Planning 19
33. Minimum Flows and Levels
A. Establishment of Priority Water Bodies 20
B. Scientific Peer Review 21
C. Definition of Significant Harm 21
34. Issuance of Permits by District Staff 22
35. Wetlands and Natural Systems: Clarification of Statutory Criteria 23
36. Consistent Procedural Rules Among Districts 24
37. District Supervision of Chapter 298 Districts 24
38. Alternative Dispute Resolution 25
39. Rulemaking: Least Cost Alternative 26
40. Rulemaking: Presumption of Correctness 26
41. Better Communication with the Public 27
42. Modifications to Agricultural Permitting 27
43. Environmental Protection Act (403.412, F.S.) 28


- II -








TABLE OF CONTENTS
(continued)


Recommendations Regarding District Land Acquisition,
Planning and Management


Summary 29


STATE LAND ACQUISITION PROGRAMS

44. No Increased Regulation 30
45. Restriction on Use of Maps 30
46. Notice to Property Owners 30
47. Voluntary Nature of Participation 30
48. Voluntary, Incentive-Based Acquisition Programs 31
49. Alternative Tax Incentives 31
50. Data Base for Public Lands 31
51. Integration of Local Government Programs 31
52. Coordination of Acquisition Programs 31
53. Streamlined Acquisition Procedures 32
54. Modify Rules to Facilitate Program Implementation 32
55. Continuation of P-2000 Funding 32
56. Administration of P-2000 and CARL Programs 32
57. Implementation of More Efficient Procedures 33
58. Annual Report on Acquisition Programs 33
59. Federal Cooperation 33
60. Cost/Benefit Analysis of Conservation Programs 33




ACQUISITION OF LESS-THAN-FEE INTERESTS IN LAND

61. Less-Than-Fee Simple Interests in Land 34
62. District Acquisition Programs 34
63. Utilization of Less-Than-Fee Alternatives 35
64. Review of Appraisal Methodologies 35
65. Inventory of Public Lands 35
66. Annual Report on Less-Than-Fee Acquisitions 36
67. Public Access to State and District Lands 36


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TABLE OF CONTENTS
(continued)


Recommendations Regarding District Land Acquisition,
Planning and Management



MANAGEMENT OF STATE AND DISTRICT LANDS

68. Private Management of Public Lands 37
69. Funding for District Land Management 37
70. Conceptual Management Plans 37
71. Final Management Plans 37
72. Uniform Criteria and Formats 38
73. Exotic Species Management Plans 38
74. Long-Term Management Costs 38




MITIGATION BANKING

75. Establishment of Mitigation Banks 39
76. Identification of Mitigation Bank Lands 39
77. Annual Report of Eligible Mitigation Bank Lands 39
78. Expedited Consideration of Mitigation Alternatives 40
79. Cost of Mitigation Activity 40
80. Mitigation Fund Accounts 40
















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COMMISSION MEMBERS

Philip D. Lewis, Chairman


William M. (Billy) Bishop
Bishop Consulting Engineers



Senator Charles Bronson
The Florida Senate, District 18


Rosana D. Cordova, Planning Director
Miller, Legg & Associates


Thomas H. Dyer, Vice President
Two Rivers Ranch, Inc.


John M. Finlayson



Richard J. Grosso, General Counsel
1000 Friends of Florida



Joe Marlin Hilliard
Hilliard Brothers of Florida


Mary A. Kumpe
Kumpe, Roberts & Associates


Representative John Laurent
House of Representatives of the
State of Florida, District 66


John R. Maloy, Vice President
The Viera Company


Mimi K. McAndrews, Attorney
Carlton, Fields, Ward, Emmanuel,
Smith & Cutler, P.A.


Senator John McKay
The Florida Senate, District 26


Mayor Carol Jaudon McQueen
City of Fanning Springs


R. E. Nedley, President and C.E.O.
St. Joe Paper Company


Thomas E. Oakley
Oakley Transport, Inc.


Representative Vernon Peeples
House of Representatives of the
State of Florida, District 72


Howard L. Searcy, Vice-President
Lindahl, Browning, Ferrari & Hellstrom, Inc.


Commissioner Samuel Taylor
Putnam County Commission


Commissioner Patti B. Webster
Executive Director, Environmental
Coalition of Broward County


Sanford N. Young
Environmental Consultant


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INTRODUCTION


Created by Chapter 94-270, Laws of Florida (1994), to performom a comprehensive
review of Florida's system of regional water management," the Water Management District
Review Commission embarked on a statewide journey to educate and enlighten its
members on the past and present state of water resource management in Florida. In the
twenty-something years since creation of the five regional water management districts in
1972, the statutory responsibilities of those agencies of the state have expanded to
include not only flood protection and surface water regulation, but also environmental
resource permitting, water quantity and quality protection and enhancement, and the
acquisition and management of ecologically sensitive lands. The Commission's intensive
15-month study included examination of the myriad aspects of districts' budgeting and
operational programs, as well as the constitutional and statutory authority of districts to
manage regional water resources.

To investigate the various regional concerns of Florida's citizenry, the Commission
conducted seventeen (17) public hearings across the state to receive public comment
regarding the specific programs and operations administered by water management
districts.' Meeting agenda included detailed overviews of area-wide district responsibilities
and functions, Commission subcommittee meetings, open-mike public hearings, and
formal presentations by scientists, engineers and scholars, as well as representatives of
federal, state and local governments, regulated entities, environmental concerns, and
agricultural and industrial interests.

The following subcommittees were established within the Commission to conduct
detailed reviews of the itemized topics, as described in the enabling legislation:

Financial Structure and Budgeting: District operating costs; funding
mechanisms available to the districts to carry out their responsibilities; ways
to improve district financial accountability; and the need to revise district
budget development and adoption procedures, as well as ad valorem taxing
authority and notice requirements of Chapters 200 & 373, Florida Statutes.

District Responsibilities and Operations: Legal responsibilities assigned to
water management districts, whether those duties should be modified, and
ways to improve district operations and programmatic accountability.

Land Acquisition. Planning and Management: Ways to improve planning
and management of district-owned lands, including the potential for reorgan-
izing and integrating the programs and responsibilities of the districts,
regional planning councils, Departments of Environmental Protection and
Community Affairs, federal and local governments, and not-for-profit entities.


S 1 Commission meetings were convened in Tallahassee, Tampa, Orlando, Jacksonville, Lecanto,
Ft. Lauderdale, Live Oak, Clewiston, Pensacola and Sarasota.


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The subcommittees addressed issues within the particular subject areas assigned
and made preliminary recommendations that were considered by the full Commission
during its final deliberative meetings. As a whole, the Commission reviewed district
governance issues, such as whether to appoint or elect governing board members, or
perhaps select candidates in a manner similar to that of the judicial nominating
commission or the Public Service Commission Nominating Council. In addition,
Commission members studied the feasibility of creating new committees, subcommittees
or joint committees of the Senate and House of Representatives to provide active
legislative oversight of water resource management in Florida.

Chapter 94-270, Laws of Florida,2 directed the Commission to report its recom-
mendations to the Governor, President of the Senate and Speaker of the House of
Representatives by January 1, 1996. At the direction of Commissioners, this report has
been designed to provide the Governor and Legislature with specific, detailed recom-
mendations for improving water management districts. Historical perspectives on state
water resource regulation, descriptions of the various proposals discussed, and explana-
tions of Commission members' reasoning have been intentionally omitted from the report
to facilitate efficient review. By February 1996, the Commission will draft legislation to
implement its recommendations for consideration during the 1996 regular session of the
Florida Legislature, following which a comprehensive report detailing the Commission's
work and resulting legislative action will be published.

The Commission's recommendations resulted from consideration of testimony given
by the general public during statewide hearings, written comments to the Commission
from Florida citizens and interested parties, information received from state agencies and
the water management districts, the personal expertise and experience of individual
Commission members, and extensive discussions among the participants in proceedings
of the subcommittees and full Commission. Unless otherwise indicated, the recommenda-
tions were adopted by unanimous agreement of the Commission.

In recognition of the precatory nature of Commission's report, the phrasing of some
recommendations was edited to omit words of mandatory direction, e.g. "shall" or "must."
Where the language adopted by Commissioners was imperative, however, the words
have been included in brackets [ ] to clarify the members' collective intent. Proposed
statutory revisions include appropriately phrased directives.










2 As amended by Chapter 95-171, Laws of Florida (1995).


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DISTRICT GOVERNANCE, OVERSIGHT,
FINANCIAL STRUCTURE AND BUDGETING

To tax and to please, no more than to love
and to be wise, is not given to men.3


The Florida Constitution authorizes water management districts to levy ad valorem
taxes upon the assessed value of real property within each district's jurisdiction, with
Section 373.503(3)(a), Florida Statutes (1995), further limiting the millage that districts can
levy to support regional resource protection and management programs authorized by
law.4 When districts were created in 1972, the Legislature reasoned that appointed gov-
erning board members from across a district's jurisdiction would better manage regional
resources for the collective benefit of all area residents, since each member would not be
elected by and represent a discrete constituency. While some district critics assert that
appointed governing boards result in "taxation without representation," Commissioners
concluded that the Legislature's authority to adjust districts' statutory millage caps remains
an effective check on ad valorem taxation for water management purposes.

Closely related to the criticism of appointed-boards-with-taxing-authority is the issue
of "accountability." With the Florida Department of Environmental Protection exercising
general supervisory authority over the water management districts," some complain that
S one appointed governmental body is merely watching another (since the Governor also
appoints the Secretary of the Department). Although state elected officials remain
ultimately responsible for district activities through the modification and enforcement of
law, it became evident from testimony before the Commission that districts' accountability
could be strengthened through enhanced oversight by both executive and legislative
representatives. Accordingly, Commissioners recommend that the annual budgets of
districts be approved or rejected by the Governor, and that standing legislative commit-
tees on water resources be established as additional checks and balances on district
operations and budgeting processes. In addition, the Commission endorses legislative
adoption of the state's water policy and plan, state funding of legislatively mandated
statewide programs that are implemented by districts, and equalization of constitutional
millage caps among all water management districts.


3 EDMUND BURKE, On American Taxation (1775).

4 The Northwest Florida Water Management District has a constitutional millage cap of .05 mill, with
the remaining four districts of the state limited to 1.0 mill. FLA. CONST. art. VII, 9(b). The statu-
tory millage caps imposed by the Legislature further restrict district taxing authority to the following
rates: Northwest Florida Water Management District (.05 mill); Suwannee River Water Manage-
ment District (.75 mill); St. Johns River Water Management District (.6 mill); Southwest Florida
Water Management District (1.0 mill); and South Florida Water Management District (.8 mill).

P5 See FLA. STAT. 373.026(7) (1995).
-4-


w4








S 1. APPOINTED DISTRICT GOVERNING BOARDS

Current statutory provisions regarding gubernatorial appointment of district
governing board members should be retained, i.e. members of district governing
boards should not be elected, and the creation of nominating committees or
councils is not recommended. In addition, the current statutory provision whereby
district governing board chairmen are elected by members of their respective
governing boards should not be changed (see Section 373.079(2), Florida Statutes
(1995)).




2. STAGGERED APPOINTMENT OF GOVERNING BOARD MEMBERS

Appointments to district governing boards should be staggered so that during each
year of the Governor's four-year term of office, he or she would appoint the indi-
cated number of board members to each water management district governing
board:6


Southwest Florida Northwest, Suwannee River,
Water Management District St. Johns River and South Florida

1st Year: 3 3
2nd Year: 3 2
3rd Year: 3 2
4th Year: 2 2




3. DISTRICT OMBUDSMAN

Each governing board should create a district ombudsman position to respond to
inquiries and complaints from or among permit applicants, interested parties and
citizens regarding district regulatory policies and practices, budgeting issues and
processes, and general operational programs. The ombudsman would help
citizens understand the policies, practices and programs of the district, and
facilitate citizen-staff interactions to encourage the amicable resolution of disputes
or differences of opinion. The governing board should hire the ombudsman based
upon appropriate qualifications, or the position could be staffed by existing district
personnel on a part-time or full-time basis as needed.


6 This recommendation was passed by a 15-to-2 vote of Commission members.










4. EMPLOYMENT OF ATTORNEYS

Attorneys employed by water management districts should be hired by, work for,
and be accountable to the governing boards, not to the district executive directors
or general staff.




5. EXECUTIVE APPROVAL OF DISTRICT BUDGETS

The Governor should approve or reject the annual budget of each water
management district.




6. EXECUTIVE REVIEW OF DISTRICT ACTIVITIES

The Executive Office of the Governor should establish permanent positions) to
review the financial and programmatic activities of Florida's five water management
districts. The positions) should further serve as Executive Branch liaison to, and
coordinate appropriate review deadlines and notices with, the legislative
committees having substantive and appropriation jurisdiction over water manage-
ment districts.


INFORMATIONAL NOTE: The Commission makes no recommendation regarding
the organization, membership or mission of the Water Resources Coordination
Commission established by Executive Order No. 91-266.




7. LEGISLATIVE ADOPTION OF WATER POLICY AND PLAN

State water policy and the state water plan should be adopted by the Legislature.
The Florida Department of Environmental Protection and the five water
management districts should together draft the state water policy and the state
water plan and present them to the Legislature for adoption.






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~CIIIII~II









8. LEGISLATIVE COMMITTEE OVERSIGHT


Water management district oversight capabilities currently reposed within the
authority of the Legislature have not been effectively used to constrain or guide the
districts in their budgetary and operational priorities. Although the authority for
legislative and executive oversight of water management districts' financial activi-
ties clearly exists within the current statutory framework, constructive application
of those oversight prerogatives has not been sufficient to address citizens'
perception that districts are "out of control." Accordingly, the Commission recom-
mends the following:

A. Standing committees on water resources should be created in both houses
of the Florida Legislature, adequately staffed with persons having suitable
substantive expertise.7

B. The General Government Subcommittees of the Senate Ways & Means
Committee and the House of Representatives Appropriations Committee
should annually review the districts' proposed budgets and provide to each
district specific comments regarding budget questions or concerns. The
districts should be required to respond to each appropriation subcommittee
comment in writing within a time certain. The codification of this recommen-
dation should include a "reminder" that the Legislature currently has the
statutory authority to modify district ad valorem millage within the confines
of Constitutional parameters.



9. DISTRICT FISCAL YEAR

The Legislature should consider whether it would be advisable to modify the
districts' fiscal years to facilitate legislative review and adjust TRIM requirements
accordingly.



10. EQUALIZING CONSTITUTIONAL MILLAGE CAPS

The ad valorem taxing authority should be equal among all districts, i.e. Northwest
Florida Water Management District's constitutional millage cap should be raised to
the same level as that of the remaining districts, i.e. from .05 mill to 1.0 mill.8


7 The Commission recognizes, of course, that the President of the Senate and the Speaker of the
House of Representatives have exclusive statutory discretion to create committees that they individ-
ually determine are necessary and appropriate.
8 This recommendation was passed by a 11-to-2 vote of Commission members.


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11. SUPPLEMENTAL FUNDING FOR LIMITED TAX BASES OF DISTRICTS

An alternative funding source should be provided by statute for the Suwannee
River and Northwest Florida Water Management Districts in recognition of their
limited ad valorem tax bases.




12. STATE FUNDING FOR SWIM PROGRAM

The Legislature should provide a permanent and adequate source of state funding
for implementation of the Surface Water Improvement and Management (SWIM)
program.




13. ALTERNATIVE FUNDING SOURCES FOR STATEWIDE PROGRAMS

The Legislature should investigate alternative funding sources for statewide water
resource programs implemented by the water management districts, including but
not limited to a bondable capital improvement fund for urban, agricultural and
environmental water supply capital improvements such as aquifer storage and
recovery, regional reservoirs and reuse infrastructure. This task could be assigned
to appropriate legislative committees, or the Legislature could create a 9-member
commission for the project, with three members appointed by the Governor, three
by the President of the Senate, and three by the Speaker of the House of
Representatives. Proposals could be submitted for legislative consideration in the
1997 regular session.




14. USE OF LOCAL FUNDING FOR STATEWIDE PROGRAMS

The governing boards of water management districts have the prerogative and the
responsibility to determine the priority and extent to which local funding is appropri-
ate and available to accommodate legislatively mandated statewide programs. The
Legislature should [shall] affirm what it collectively determines are the important
policies and programs of the state by providing state funding or other alternative
revenue source funding to the districts to implement those priorities. To the extent
new or expanded water resource programs and regulatory responsibilities enacted
by the Legislature or delegated to the districts by the Department of Environmental
Protection are not accompanied by general appropriation funding, the districts
should [shall] be exempt from implementing the new or expanded programs.


-8-








Amend 373.501 as follows:


373.501 Appropriation of funds to water management districts. -- The department
may allocate to the water management districts, from funds appropriated to the
department, such sums as may be deemed necessary to defray the costs of the
administrative, regulatory, and other activities of the districts. The governing
boards of the water management districts have the prerogative and the
responsibility to determine the priority and the extent to which local funding is
appropriate and available to accommodate legislatively mandated statewide
programs. The governing boards shall submit annual budget requests for such
purposes to the department, and the department shall consider such budgets in
preparing its budget request for the Legislature. The Legislature shall affirm what
it collectively determines are the important policies and programs of the state by
providing state funding or alternative revenue source funding to the districts to
implement those priorities. To the extent that new or expanded water resource
programs and regulatory responsibilities enacted by the Legislature or delegated
to the districts by the department are not accompanied by state funding or other 7
alternative revenue source funding. the districts shall be exempt from implementing
the new or expanded programs.




15. DISTRICT BUDGET PROCESSES9

Each district should provide a copy of its proposed budget, the past year's expen-
ditures, and its annual in-house financial audit to the Governor, the President of the
Senate, the Speaker of the House, the chairs of all legislative committees and sub-
committees with substantive or appropriation jurisdiction over water management
districts, the Secretary of the Department of Environmental Protection, and the
governing body of each county in which the district has jurisdiction or derives any
funds for the operations of the district ("the entities"). The districts should [shall]
respond in writing to each comment received from any of the entities, and should
[shall] furnish copies of those comments and written responses to all entities.




16. TRUTH-IN-MILLAGE ADJUSTMENTS

Truth-in-millage provisions within Chapter 200, Florida Statutes, should be revised
to permit more accurate noticing of district tax rates to both property owners and
the general public, and to allow additional information where appropriate, e.g.
explanatory phrases or examples.

9 This recommendation expands the lists of items and addressees currently required by statute.








17. DISTRICT BUDGET ADVERTISING


Budget advertising requirements should be expanded to include notice of all
budget workshops and hearings in newspapers of local circulation.




18. BUDGET FORMATS AND ALLOCATIONS

Districts should collectively standardize their budget reporting formats so that all
districts' are fully comparable; fiscal and budget policies and procedures should
approximate those of state agencies to the greatest extent practicable; and district
operating expenses (i.e. "overhead") should be accurately and proportionately
allocated among the various programs implemented by the districts.




19. UNIFORM PERMIT APPLICATIONS AND FEES

Where possible, the districts should develop uniform permit application fees and
forms for statewide use, with possible exceptions for geographic differences.

























10-




I


DISTRICT RESPONSIBILITIES AND OPERATIONS

Do not let your chances like sunbeams pass you by,
For you never miss the water till the well runs dry.10


In the first public hearing of the Water Management District Review Commission,"
citizens of Pasco, Hernando and Polk counties bore witness to the environmental
consequences of the area's extended drought and increased wellfield pumping.
Representatives of the Southwest Florida Water Management District, the regional water
supply authority, hydrologists and farmers alike provided explanations for the physical
impacts and proposed solutions. Since that time the rains have returned, but the
controversy lingers over the authority of the district to modify consumptive use permits
and mandate a "local sources first" concept in water supply. The ongoing Tampa Bay
area "water wars" have provided the Commission, and now the Legislature, with a
snapshot of what other areas in the state will face in the growth years of the future
without implementation of appropriate water supply planning.

While early water management district responsibilities and operations were
focused almost exclusively on flood protection, the districts today exercise direct or
delegated authority for consumptive use permitting, water supply planning and develop-
ment, aquatic plant management and control, water quality regulation, environmental
resource permitting, and acquisition and management of environmentally sensitive lands.
Although directed by the Legislature to perform the additional tasks, the districts have not
always been separately funded by that body to accomplish the extra assignments, and
district governing boards have, of necessity, made the difficult decisions to split the local-
revenue pie in response to Legislators' directives.

The Commission was urged to prioritize the important responsibilities that districts
should accomplish. Yet, the very reason that Florida's system of water management was
established on hydrologic rather than political boundaries, i.e. the significantly different
resources and management needs from one region to another, convinced Commission
members that district governing boards were best situated to handle an area's water man-
agement issues and problems. Statewide concerns, however, were addressed by
recommendations designed to facilitate district-public interaction and understanding,
streamline permitting through the use of district ombudsmen and consistent rules, extend
permit duration by encouraging water conservation and the use of alternative sources,
fund an aggressive war on invasive exotic plant species, and provide an opportunity for
mediation prior to formal administrative proceedings under Chapter 120, Florida Statutes.
Although firmly committed to the integration of land use planning and future water supply
availability, the precise measures necessary to accomplish that synthesis were left to the
discretion of substantive legislative committees.


10 ROWLAND HOWARD, You Never Miss the Water (1876).

SThe Commission's initial open-mike public meeting was convened in Tampa, December 1-2, 1994.
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20. BALANCING AND PRIORITIZATION OF DISTRICT RESPONSIBILITIES

In its discussions regarding the various responsibilities of the districts, e.g. water
supply, flood control, environmental resource permitting, aquatic weed control, land
acquisition and management, etc., the Commission determined that the necessary
and appropriate actions of water management districts in response to the
exigencies of Florida's sometimes widely fluctuating water management issues and
problems could best be directed by the respective district governing boards.
Accordingly, Commission members agreed that it was not necessary to statutorily
direct a prioritization among the many responsibilities of the districts. The
Commission does recommend, however, that the following policy-setting provision
of Chapter 373 be modified to include the underlined "balancing" language:

1. Amend Section 373.016, Florida Statutes, to read:

373.016 Declaration of policy.--
(1) The waters in the state are among its basic resources. Such waters
have not heretofore been conserved or fully controlled so as to realize their
full beneficial use.
(2) It is further declared to be the policy of the Legislature:
(a) To provide for the management of water and related land
resources;
(b) To promote the conservation, development, and proper
utilization of surface and ground water;
(c) To develop and regulate dams, impoundments, reservoirs, and
other works and to provide water storage for beneficial purposes;
(d) To prevent damage from floods, soil erosion, and
excessive drainage;
(e) To minimize degradation of water resources caused by
the discharge of stormwater;
(f) To preserve natural resources, fish, and wildlife;
(g) To promote the public policy set forth in s. 403.021;12
(h) To promote recreational development, protect public
lands, and assist in maintaining the navigability of rivers and
harbors; and
(i) Otherwise to promote the health, safety, and general
welfare of the people of this state.

In implementing this chapter, the department or the governing
board shall construe and apply the policies in this subsection
as a whole, and no specific policy shall be construed or
applied in isolation from the other policies in this subsection.


12 Section 403.021, Florida Statutes (1995), sets forth the extensive state public policy regarding air
and water pollution control.


- 12-


ii








21. BALANCING BY GOVERNING BOARD WHEN RESERVING WATER

Modify Subsection 373.223(3), Florida Statutes, as follows:

(3) The governing board or the department, by regulation, may reserve
from use by permit applicants, water in such locations and quantities, and
for such seasons of the year, as in its judgment may be required for the
protection of fish and wildlife or the public health and safety. In making
such reservation, the governing board or department shall balance the
needs of legal users of water, water supply, water quality protection and
flood control for the body of water or source. Such reservations shall be
subject to periodic review and revision in the light of changed conditions.
However, all presently existing legal uses of water shall be protected so
long as such use is not contrary to the public interest.




22. WATER SUPPLY

It is imperative to Florida's future that responsibility for the supply of water be
clearly delineated, just as the duties to provide adequate transportation, sound
education, and responsible insurance regulation have been assigned to specific
governmental agencies. The Florida Legislature should emphasize that a primary
mission of the water management districts is regional water supply planning,
regulation, research, and water resource development. To meet the current and
future needs of Florida's citizens, businesses, agriculture, and natural environment,
the districts must maximize the availability of water for all uses through economic
and regulatory incentives. Those incentives must include efforts to promote con-
servation, water reuse, and desalination, promote the wise use of surface and
ground waters, and promote the use of alternative water supplies.


23. WATER SUPPLY DEVELOPMENT ON PUBLIC LANDS

Over time, ensure that the management plans for state and district lands, parks
and forests (other than submerged lands) consider making these lands available
for appropriate multiple uses that are sustainable and compatible with the purposes
for which the land was acquired and which may include water supply.







13-


~-~--~------F~ _


r


i








24. CONSUMPTIVE USE OF WATER


Florida should continue to recognize that water is considered a state resource, and
water management districts should continue to regulate consumptive uses of water.




25. CONSUMPTIVE USE PERMIT DURATION Al

Modify Section 373.236, Florida Statutes (duration of permits), as follows:

(1) Permits may be granted for any period of time not exceeding 20 years. The
governing board or the department may base duration of permits on a reasonable
system of classification according to source of supply or type of use, or both.

(2) The governing board or the department may authorize a permit of duration
of up to 50 years in the case of a municipality or other governmental body or of a
public works or public service corporation where such a period is required to
provide for the retirement of bonds for the construction of waterworks and waste
disposal facilities.

3.) a) The duration of a consumptive use permit shall be 20 years for an
applicant that implements technically. economically and environmentally
feasible alternatives to reduce water use or takes advantage of alternative
sources. To qualify for a 20-year duration permit. the applicant must comply
with the criteria contained in section 373.223 and must provide reasonable
assurance that:

1 The applicant has implemented the water use reduction
alternatives: or

2. The permit contains a plan. approved by the district, for the
applicant's implementation of such water use reduction or use of
alternative sources in a timely manner.

b} At any time during the duration of a permit issued pursuant to
paragraph (3)(a) above, the permitted may seek a modification of the permit
to further reduce water use through the implementation of improved
technologies or to take advantage of alternative sources. A permit issued
on the basis of any such modification shall have a duration of 20 years.

(M) A permit issued pursuant to subparagraph (3)(a)2. above, requiring
the permitted's implementation of an approved plan. shall further direct the
permitted to file progress reports with the district at 5-year intervals from the
date of permit issuance or until the plan is fully implemented. whichever


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MEN--w








occurs first. If the district determines that the permitted has failed to
properly implement the approved plan. the permitted shall be so notified in
writing and the subject permit shall expire 2 years from the date of the
district's determination.


Modify Section 373.239, Florida Statutes (modification and renewal of permit
terms), as follows:

(1) A permitted may seek modification of any terms of an unexpired permit.

(2) If the proposed modification involves water use of 100,000 gallons or more
per day, the application shall be treated under the provisions of s. 373.229 in the
same manner as the initial permit application. Otherwise, the governing board or
the department may at its discretion approve the proposed modification without a
hearing, provided the permitted establishes that:

(a) A change in conditions has resulted in the water allowed under the
permit becoming inadequate for the permitted's need, or

(b) The proposed modification would result in a more efficient utilization
of water than is possible under the existing permit.

(3) (a) The governing board may modify a consumptive use permit pursuant
to the authority in subsection 373.171(3). after first identifying and evalu-
ating technologically, economically and environmentally feasible alternatives
such as conservation measures or use of alternative sources to reduce or
eliminate detrimental impacts of the subject permit on other water users or
the water resources of the state. Prior to making any such modification. the
governing board shall consult with existing permitted users in the affected
area to develop a plan and schedule for implementing the modifications.
after which any such agreed-upon modifications shall be incorporated into
existing permits.

(b) If modifications developed pursuant to paragraph (3)(a) are not
agreeable to an existing permitted. the governing board may modify the
permit to reduce water use or implement other measures to reduce or
eliminate the detrimental impacts in accordance with subsection 373.171(3).

(4(3) All permit renewal applications shall be treated under this part in the same
manner as the initial permit application.


(continued)



-15-


Wl,..-1








In addition to the foregoing recommendations, the Commission later adopted the
following eight (8) principles to guide the development of a standard 20-year consumptive
use permit for all qualifying water users.13 Commission members instructed its Executive
Director to consult with the water management districts and representative user groups
and then draft a legislative proposal to implement the eight principles for Commission
consideration during its meeting of January 30, 1996:

CONSUMPTIVE USE PERMIT DURATION PRINCIPLES
(TO GUIDE DEVELOPMENT OF LEGISLATION)

I. 20-Year consumptive use permit duration standard established in statute
with specified exceptions:

(a) Shorter duration needed or agreed upon by applicant;
(b) Need to review effectiveness of remedial action plan;
(c) Harm to water resources or to legally existing users projected;
(d) Need to reconsider feasibility of conservation or alternative supply
measures; or
(e) No assurance that source can meet proposed allocation.

II. Periodic submittal and agency review of "compliance report" (every 10
years) for purpose of assuring continued compliance with consumptive use permit
program rules and standards. Agency may modify permit at this juncture to
incorporate necessary measures to maintain compliance. Does not open permit
to competition.

III. Failure to submit compliance report is a basis for reduction of permit
duration.

IV. During term of permit, permitted retains right to seek modification to
integrate additional conservation or alternative supply measures. Could extend
duration at this juncture.

V. Ability of agency to modify consumptive use permit if adverse impacts to
legal existing users or water resources found post-issuance.

VI. Procedurally provide for adequate notice and due process to applicant and
other affected persons.

VII. During 20-year consumptive use permit tenure, permitted not subject to
competing use review.

VIII. Existing permittees may avail themselves of 20-year duration process if
comply with I above.

13 This recommendation was passed by a 15-to-1 vote of Commission members.


-16-








26. PRIORITY AMONG COMPETING USES

Modify Section 373.233(1), Florida Statutes, as follows:

(1) If two or more applications which otherwise comply with the provisions of this
part are pending for a quantity of water that is inadequate for both or all, or which
for any other reason are in conflict, the governing board or the department shall
have the right to approve or modify the application which best serves the public
interest. In weighing the public interest, substantial weight shall be given to an
applicant seeking renewal of a permit.




27. CONCEPT OF "LOCAL SOURCES FIRST"

Modify Section 373.223, Florida Statutes, as follows:

(1) To obtain a permit pursuant to the provisions of this chapter, the applicant
must establish that the proposed use of water:

(a) Is a reasonable-beneficial use as defined in s. 373.019(4);

(b) Will not interfere with any presently existing legal use of water; and

(c) Is consistent with the public interest.

(2) The governing board or the department may authorize the holder of a use
permit to transport and use ground or surface water beyond overlying land, across
county boundaries, or outside the watershed from which it is taken if the governing
board or department determines that such transport and use is consistent with the
public interest, and no local government shall adopt or enforce any law, ordinance,
rule, regulation, or order to the contrary. Notwithstanding any policies contained
in part I of this chapter.14 when evaluating whether a potential interdistrict or intra-
district transport of around or surface water is consistent with the public interest.
the governing board or the department shall consider:

(a) the proximity of the proposed source of water to the area in which it
is to be used or applied, and

(b) other economically and technically feasible alternatives to the source
being proposed. including but not limited to desalination, reuse, stormwater.
and aquifer storage and recovery.


14 See Recommendation #39 on page 26 of this document.


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7








28. FLOOD PROTECTION WORKS


A. Water management districts should continue to construct, operate and
maintain multi-purpose regional flood protection works and acquire lands for
flood protection purposes.

B. Decisions regarding works construction and land acquisition should be
made by district governing boards within current statutory framework.

C. The primary responsibility for works construction and operation, as well as
land acquisition programs, for local and private flood protection should
remain with general purpose local governments, special districts, and private
citizens.

D. Districts should investigate the advisability of contracting with private entities
to maintain flood protection works and manage acquired floodplain lands,
and implement such contracts if they are cost-effective and achieve the
stated goals of the project.




29. FLOOD PROTECTION (Water Quantity) REGULATION

A. Maintain the current authority of districts to regulate potential water quantity
impacts of water management systems.

B. Maintain the ability of districts to modify their water quantity rules in
response to changing conditions.

C. Flood protection standards should be established regionally by each district
as appropriate to address regional variations in hydrologic conditions.




30. AQUATIC PLANT CONTROL

The Legislature should increase funds from the Fuel Tax Collection Trust Fund and
other sources to provide the districts, through the Department of Environmental
Protection, a substantial increase in funding necessary to more efficiently and
effectively control invasive aquatic plants.15




15 This recommendation was passed by a 15-to-1 vote of Commission members.


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31. WATER QUALITY STANDARDS

Except as 'otherwise provided by law, where the Environmental Regulation
Commission has established a narrative (non-numeric) standard for a particular
constituent in Chapter 62-302, Florida Administrative Code, a water management
district or the Department of Environmental Protection may apply the standard by
calculating the constituent's maximum load for a watercourse or water body, and
may implement the maximum load calculation in their permitting programs. Prior
to implementation, however, the maximumload calculation should [shall] be subject
to peer review and must be approved by the Secretary of the Department after
appropriate notice. The Secretary's approval should [shall] constitute the sole point
of entry for an administrative challenge of the maximum load calculation for that
watercourse or water body.




32. LAND USE PLANNING

Amend section 163.3177(6)(a), Florida Statutes, to read:

(6) In addition to the requirements of subsections (1)-(5), the comprehensive
plan shall include the following elements:

(a) A future land use plan element designating proposed future general
distribution, location, and extent of the uses of land for residential uses,
commercial uses, industry, agriculture, recreation, conservation, education,
public buildings and grounds, other public facilities, and other categories of
the public and private uses of land. The future land use plan shall include
standards to be followed in the control and distribution of population
densities and building and structure intensities. The proposed distribution,
location, and extent of the various categories of land use shall be shown on
a land use map or map series which shall be supplemented by goals,
policies, and measurable objectives. Each land use category shall be
defined in terms of the types of uses included and specific standards for the
density or intensity of use. The future land use plan shall be based upon
surveys, studies, and data regarding the area, including the amount of land
required to accommodate anticipated growth, the projected population of the
area, the character of the undeveloped land, ground and surface water
resources and the present and future availability of water supply. the
availability of public services; and the need for redevelopment, including the
renewal of blighted areas and the elimination of nonconforming uses which
are inconsistent with the character of the community. The future land use
plan may designate areas for future planned development use involving
combinations of types of uses for which special regulations may be
necessary to ensure development in accord with the principles and


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ICs~=;;~31~1








standards of the comprehensive plan and this act. The land use maps or
map series shall generally identify and depict historic district boundaries and
shall designate historically significant properties meriting protection. The
future land use element must clearly identify the land use categories in
which public schools are an allowable use. When delineating the land use
categories in which public schools are an allowable use, a local government
shall include in the categories sufficient land proximate to residential devel-
opment to meet the projected needs for schools in coordination with public
school boards and may establish differing criteria for schools of different
type or size. Each local government shall include lands contiguous to exist-
ing school sites, to the maximum extent possible, within the land use cate-
gories in which public schools are an allowable use. All comprehensive
plans must comply with this paragraph no later than October 1, 1996. An
amendment proposed by a local government for purposes of identifying the
land use categories in which public schools are an allowable use is exempt
from the limitation on the frequency of plan amendments contained in s.
163.3187.



33. MINIMUM FLOWS AND LEVELS

A. Establishment of Priority Water Bodies

Amend Section 373.042, Florida Statutes, as follows:

373.042 Minimum flows and levels.- Within cach section, or the water
management district as a whole,

(.1 In accordance with the provisions of this section, the department or the
governing board shall establish the following:

(4) (a) Minimum flow for all surface watercourses i-nthe-ara. The minimum
flow for a given watercourse shall be the limit at which further withdrawals
would be significantly harmful to the water resources or ecology of the area.

(2) () Minimum water level. The minimum water level shall be the level of
ground water in an aquifer and the level of surface water at which further
withdrawals would be significantly harmful to the water resources of the
area.

(2) The minimum flow and minimum water level shall be calculated by-the
department and the governing board using the best information available. When
appropriate, minimum flows and levels may be calculated to reflect seasonal
variations. The department and the governing board shall also consider, and at
their discretion may provide for, the protection of nonconsumptive uses in the
establishment of minimum flows and levels.

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__









(3) By November 15 of each year. the governing board of each district shall
prepare an inventory of surface and ground waters, in order of priority, for which
minimum flows and levels will be established within the next calendar year. The
inventory shall include a schedule of dates by which the district anticipates
establishing those minimum flows and levels, as well as a plan listing the surface
and around waters for which minimum flows and levels will be established during


the fnillowinci five vears. The aoverninn hard shall submit the annual inventory.


schedule and five-year plan for review and comment to the department and the
chairs of legislative committees having substantive jurisdiction over water
resources and water management districts. The prioritization of surface and
ground waters shall be based on the importance of the waters to the state or


rpninn InrI thA


Dotenitial for significant harm as set forth, in subsection (1'.


B. Scientific Peer Review

There must be enhanced, meaningful use of impartial peer review for new rules,
the establishment of minimum flows and levels, water management concepts,
plans and other documents generated by districts.


C. Definition of Significant Harm

Add the following new paragraphs (4) & (5) to 373.042, Florida Statutes:


(4) For purposes of establishing minimum flows and
of significant harm shall be based upon a balancing of:


levels, the determination


Water quality factors, including:


filtration and absorption of nutrients and other pollutants:


{i sediment loads: and

(iii) other water quality considerations:


(bW Environmental values
wetlands ecology, including:


associated with coastal. estuarine. aquatic and


fish and wildlife habitats and the oassaae of fish:


estuarine resources: and

transfer of detrital material:


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raninn nrl thi


bii~iilC~33~


1








Protection of water resources. including:


{L) maintenance of freshwater storage and supply:

( flood protection needs: and

(ii)j maintenance of the designated uses of the water body or
aquifer:

(d) Natural seasonal fluctuations in water flows and levels:

(e Permitted uses of the water body: and

(fl Other uses made of the water body. including:

(1 recreation in and on the water:

i aesthetic and scenic attributes:

(iii) navigation: and

(iy) other non-permitted legal uses of the water source.

(S) Establishment of minimum flows and levels for a particular water course.
water body or aquifer shall not be presumed to require restoration to historic or
redevelopment conditions.




34. ISSUANCE OF PERMITS BY DISTRICT STAFF

The permitting process at each district should be modified to allow the executive
director or his designee to issue all permits, except for any permit for which the
district has received a written request that it be considered by the governing board.
This recommendation should [shall] not be interpreted to affect or reduce current
statutory noticing provisions.

Amend Section 373.083, Florida Statutes, as follows:

373.083 General powers and duties of the governing board.--In addition to other
powers and duties allowed it by law, the governing board is authorized to:

(1) Contract with public agencies, private corporations, or other persons; sue
and be sued; and appoint and remove agents and employees, including specialists
and consultants.


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II
























I


(2) Issue orders to implement or enforce any of the provisions of this chapter
or regulations thereunder.
(3) Make surveys and investigations of the water supply and resources of the
district and cooperate with other governmental agencies in similar activities.
(4) Delegate to its executive director or his designee the authority to issue any -
permit authorized by this chapter. unless the district has received a timely written
request that the permit be considered by the governing board. In delegating such
permit issuance authority, the governing board shall prescribe with particularity the
circumstances under which such final agency action may be taken: provided.
however, that nothing herein shall be construed to modify the noticing requirements
otherwise required by this chapter or chapter 120. F.S.16

35. WETLANDS AND NATURAL SYSTEMS:
CLARIFICATION OF STATUTORY CRITERIA
Amend 373.414(2), Florida Statutes, as follows:
(1) (a) In determining whether an activity, which is in, on, or over surface
waters or wetlands, as delineated in 373.421(1), and is regulated under
this part, is not contrary to the public interest or is clearly in the public inter- '
est, the governing board or the department shall consider a~d balance the
following criteria [existing subparagraphs 1 and 3-7 omitted due to length]:
2. Whether the activity will adversely affect the conservation of
fish and wildlife, including endangered or threatened species, or their
habitats;
(2) The governing board or the department is authorized to establish by rule
specific permitting criteria in addition to the other criteria ir this part which
provides:
(a) One or more size thresholds of isolated wetlands below which
impacts on fish and wildlife and their habitats will not be considered: These
thresholds shall be based on biological and hydrological evidence and
usage by threatened or endangered species, that shows the fish iHd wildlife
values of such areas to be minimal.
(b) Criteria for the protection of threatened and endangered species in
slated wetlano regardless of size and land use.
6 This recommendation was passed by a 14-to-1 vote of Commission members.
-23-








36. CONSISTENT PROCEDURAL RULES AMONG DISTRICTS

To the degree possible, the districts should modify their procedural rules so that
they are consistent among all five districts.




37. DISTRICT SUPERVISION OF CHAPTER 298 DISTRICTS

Modify Chapter 298 as follows:

A. Change the requirement that 298 Districts file their water management plans
with the Department of Environmental Protection, instead requiring the plans
to be filed with the appropriate local general purpose government and
regional water management district. The 298 District meeting minutes
should [shall] no longer be required to be filed with the oversight agency
unless so requested.

B. When a 298 District isunable to fill a vacancy on its board of supervisors
(e.g. a quorum is not present at the annual landowners meeting), the
Governor should appoint a person to the vacancy. The Governor should
also be authorized to remove any 298 District supervisor in the event of
misfeasance, malfeasance, or neglect of office.

C. Regarding 298 District "plans of reclamation":

i. Rename as "water management plans" and require that they be
consistent with the regional water management district's water
management plan;

ii. Specify minimum contents of 298 District water management plans;

iii. Require consistency review of 298 District water management plans
at least every five years;

iv. Assign to the regional water management district the responsibility
for consistency review of 298 District water management plans.

D. Authorize the 298 Districts to undertake environmental activities to improve
water quality.


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38. ALTERNATIVE DISPUTE RESOLUTION

If a disagreement arises after issuance of a staff report, proposed consent order,
or proposed agency action:

A. The applicant, agency or third party may request mediation. Written
consent by the applicant, agency, and any third party requesting mediation
is required to initiate mediation.

B. A timely written request for mediation or waiver by the applicant, or an
agreement among all mediation participants, would toll the time for filing a
Chapter 120 petition by participants and would extend the 90-day clock for
agency action.

C. Unless otherwise agreed by the applicant, final action must be taken on the
application either (i) within sixty days or (ii) by the second meeting of the
governing board, following the timely filing of a written request for mediation.

D. During the 60-day period, mediation of the disputed issues would occur.
Participation in mediation should [shall] be voluntary.

E. The cost of mediation would be shared by all participants including third
parties and citizens if they initiated the request for mediation. ()

F. The applicant may ask other interested persons to participate without cost.

G. In the event a mediated settlement is reached, the staff report, proposed
consent order or proposed agency action will be revised and submitted to
the agency head.

H. This process should [shall] not be presumed to require the use of a
professional mediator and may include any form of alternative dispute
resolution agreed to by the participants.


On November 30,1995, Commissioners unanimously agreed that the foregoing mediation
process should also be available for challenges to proposed and existing administrative
rules. Accordingly, the Commission's legislative package for implementation of its recom-
mendations will include a similar process, modified only to the extent necessary to be
compatible and consistent with administrative processes in Chapter 120, Florida Statutes.




A i


-25-







RULEMAKING: LEAST COST ALTERNATIVE


Amend Section 373.113 as follows:

373.113 Adoption of regulations by the governing board.--In administering the
provisions of this chapter the governing board shall adopt, promulgate, and enforce
such regulations as may be reasonably necessary to effectuate its powers, duties,
and functions pursuant to the provisions of chapter 120. All substantive, rules
adopted shall represent the least cost alternative while accomplishing the goals of 7
the statute being implemented and taking into consideration the benefit to the
public at large and the cost to the regulated community.

In making this recommendation, the Commission makes an explicit finding that the
foregoing amendment to Section 373.113, F.S. is not intended to prevent, prohibit
or in any way limit the authority of the districts to promulgate rules which include
consideration of: (i) the proximity of a proposed source of water to the area in
which it is to be used or applied and (ii) economically and technically feasible
alternatives to the proposed source, such as desalination, reuse, stormwater and
aquifer storage and recovery, for those rules related to Part II of this Chapter which
concern transport of ground or surface waters.17




40. RULEMAKING: PRESUMPTION OF CORRECTNESS18

With regard to administrative rule challenge proceedings under Sections 120.54
and 120.56, Florida Statutes, the Commission heard significant public comment
regarding the presumption of validity currently afforded an agency's interpretation
of enabling legislation. While the Commission has not been charged with
reviewing and making recommendations regarding rule challenge proceedings
under Chapter 120, the level of concern voiced by the public indicates that the
Legislature should modify the standard applied in rule challenge hearings to
remove the presumption of validity that currently exists in favor of the agency. In
determining the validity of administrative rules, a hearing officer should [shall]
consider the agency's interpretation of the statute and the challenger's
interpretation of the statute on a "level playing field." The Commission recommends
that Chapter 120 be amended to implement such a concept.19


17 See Recommendation #27 on page 17 of this document.

18 As long as an agency's interpretation of the statute being implemented is within the permissible
range of definitions, the agency's view will be sustained, "though other interpretations are possible
and may even seem preferable[.]" Department of Health & Rehabilitative Services v. Framat
Realty, 407 So. 2d 238 (Fla. 1st DCA 1981).

19 This recommendation was passed by a 10-to-5 vote of Commission members.

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43. ENVIRONMENTAL PROTECTION ACT (403.412, F.S.)

The Legislature should review the citizen suit mechanisms established by Section
403.412, F.S., to ensure that the statute and current case law effectively provide
for responsible participation in the enforcement of environmental laws and
precludes misuse of the statute for purposes of delay or monetary gain. The
Legislature's investigation should include, but not be limited to, the following issues:

A. Whether and to what extent the standing to file or intervene in a judicial or
administrative proceeding should be based upon a direct or substantial rela-
tionship between the claimant and the proposed project or agency action;

B. Whether the formulation of agency action should provide for and encourage
early participation by potentially interested parties, and whether a missed
opportunity to participate or provide factual or scientific information would
preclude later involvement;

C. Whether the present cost allocation among the permitted, agency and third
party participant is fair, including an evaluation of whether all participants
should pay a proportionate share of the cost of judicial or administrative
proceedings and if payment bonds should be required;

D. Whether there should be a limitation on the number of times a participant
could formally object to and prevent a project from proceeding OR a time
certain by which such claims must be pursued or thereafter barred, if such
objections are primarily for the purpose of delay; and

E. Whether the mandatory award of attorney's fees and costs to the prevailing
party under 403.412(2)(f), F.S., inhibits the filing of potentially meritorious
cases, and whether that provision should be modified to give the judge or
hearing officer the discretion to award attorney's fees and costs.


















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LAND ACQUISITION, PLANNING AND MANAGEMENT

Do you mean to tell me, Katie Scarlett O'Hara, that Tara -
that land doesn't mean anything to you? Why, land is the
only thing in the world worth working for, worth fighting for,
worth dying for because it's the only thing that lasts.20


Early water managers in Florida recognized the value of land. In fact, both the
federal grant of swamp and overflowed lands to the state and the Central and Southern
Florida Flood Control Project were designed and completed to create dry land by draining
nearly nine million acres of wetlands in South Florida. Thousands of miles of canals and
levees and hundreds of water control structures protect and enhance the land upon which
millions of Floridians currently live, work and play. Over the last twenty years, however,
citizens and governments alike have recognized the environmental value of many areas
in the state, and several land acquisition and management programs have been created
to protect and conserve the valuable resources existing within those properties.

In the "Florida Water Resources Act of 1972" that created water management
districts, the Legislature authorized district acquisition of fee simple title to real property
(or easements) for "flood control, water storage, water management, and preservation of
wetlands, streams and lakes."21 Since that time, additional statewide land acquisition and
management programs have been established, e.g. the "Conservation and Recreation
Lands Program" (CARL) in 1979, "Save Our Rivers" (SOR) in 1981, and the "Preservation
2000 Act" (P-2000) in 1990. Through the growth management process, some local gov-
ernments have also developed plans to acquire or otherwise protect endangered areas
within their jurisdictions.

While qualifying criteria, procedures and funding mechanisms vary among existing
land acquisition programs, the collective goals generally support comprehensive protection
of ecological systems to provide water recharge, preservation of fish and wildlife habitat
and compatible recreational uses. Concerns regarding the coordination of existing land
acquisition programs fueled legislators' charge that the Commission investigate ways to
improve the planning and management activities for land owned by the districts, as well
as consider a reorganization and integration of land management responsibilities of the
districts and other governmental entities. Through testimony and information presented,
the Commission discovered a lack of coordination and integration of the various land
acquisition programs within the state. Also, with other high-priority state programs
potentially limiting the availability of land acquisition capital in the future, Commissioners
recognized the need for implementation of alternative resource protection methods, such
as less-than-fee acquisition, conservation easements or public-private partnerships to
enhance state land acquisition programs.


20 Gone With The Wind (Selznick International Pictures, Inc. 1939; renewed Metro-Goldwyn-Mayer,
Inc. (1967).
21 FLA. STAT. 373.139(2) (1995).


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STATE LAND ACQUISITION PROGRAMS


44. NO INCREASED REGULATION

Florida law should ensure that state land acquisition programs do not subject
landowners to increased regulatory requirements. The Commission recommends
the prohibition of heightened regulation on private lands that have been identified
in state land acquisition programs.




45. RESTRICTION ON USE OF MAPS

The Legislature should enact appropriate statutory provisions to ensure that any
map, inventory or related graphic information prepared by any state agency, water
management district or regional planning council is [shall be] used only for the
express purpose for which it was statutorily authorized and [shall] not [be] used or
incorporated by reference into any regulatory rule or program unless specifically
prescribed by law.22




46. NOTICE TO PROPERTY OWNERS

For each land acquisition program in effect on the date of this report, the agency
responsible for implementation of the program should [shall], to the maximum
extent practicable, provide affected property owners with written notice that their
property has been identified in the acquisition program.




47. VOLUNTARY NATURE OF PARTICIPATION

When a water management district or other state agency proposes to place real
property in a land acquisition program, the district or other state agency should
[shall] notify the owner of the real property prior to including the land in the
program. Except for those land acquisition programs or projects for which the
statutory power of eminent domain exists, if the owner of the property does not
consent to inclusion of the property in the acquisition program, the land should
[shall] not be included in the land acquisition program.


22 This recommendation was passed by a 15-to-1 vote of Commission members.


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48. VOLUNTARY, INCENTIVE-BASED ACQUISITION PROGRAMS

The Legislature should direct the water management districts, in coordination with
the Department of Environmental Protection and the Department of Agriculture and
Consumer Services, to meet with representatives of agriculture, forestry, conserva-
tion and regulated industries to identify and develop voluntary, non-regulatory,
incentive-based programs to encourage participation in state land acquisition pro-
grams.



49. ALTERNATIVE TAX INCENTIVES

The water management districts and Department of Environmental Protection
should (a) evaluate existing tax law to identify current incentives and (b) develop
and seek implementation of alternative state and local tax incentives for land-
owners who participate in state land acquisition programs.




50. DATA BASE FOR PUBLIC LANDS

The Legislature should direct the Department of Environmental Protection to
establish a procedure for the exchange and compilation of conservation land data
from state agencies, water management districts and local governments. The
comprehensive statewide data base should be further catalogued by region, and
should be readily accessible by both public and private interests.




51. INTEGRATION OF LOCAL GOVERNMENT PROGRAMS

The Legislature should direct the water management districts to recognize and
integrate into district plans the water resource-related conservation and land
acquisition programs of local governments within each district's jurisdiction.




52. COORDINATION OF ACQUISITION PROGRAMS

The Legislature should direct the Department of Environmental Protection to estab-
lish a formal process that would fully coordinate and integrate the land acquisition
programs implemented by public and private, not-for-profit entities.


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I.








53. STREAMLINED ACQUISITION PROCEDURES

The Commission encourages the complete and expeditious implementation of
Chapter 94-240, Laws of Florida, to facilitate the acquisition of appropriate interests
in lands identified in state land acquisition programs.23




54. MODIFY RULES TO FACILITATE PROGRAM IMPLEMENTATION

To maximize the utilization of available funding and eliminate the accumulation of
unencumbered land acquisition trust funds, the Legislature should direct
appropriate state agencies to amend their rules and procedures to facilitate the
efficient implementation of land acquisition programs.




55. CONTINUATION OF P-2000 FUNDING

The Commission recommends continued funding for the acquisition of public lands
under the Florida Preservation 2000 Act until completion of the program.




56. ADMINISTRATION OF P-2000 AND CARL PROGRAMS

The Department of Environmental Protection should be empowered to delegate to
the water management districts the responsibility for administering the land
acquisition projects funded solely by the Preservation 2000 Trust Fund or the
Conservation and Recreation Lands Trust Fund, when delegation is requested by
the water management districtss.






23 Chapter 94-240, Laws of Florida, provided flexible and streamlined acquisition procedures for lands
purchased for preservation, conservation and recreation by the Board of Trustees of the Internal
Improvement Trust Fund. In addition, its provisions sought "to improve the stewardship of state-
owned lands and to raise the level of accountability within the land-management process by
requiring earlier management and budgetary planning." Staff of Fla. H.R. Comm. on Nat.
Resources, CS for HB 161 (1994) Staff Analysis 1 (final May 2, 1994)(on file with committee).


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57. IMPLEMENTATION OF MORE. EFFICIENT PROCEDURES

With regard to state land acquisition programs, the Legislature should direct the
Department of Environmental Protection and the Officeef the Auditor General to
cooperatively identify and seek to implement more efficient land acquisition
procedures.




58. ANNUAL REPORT ON ACQUISITION PROGRAMS

The water management districts and other state agencies involvedin the acquisi-
tioh of public lands should prepare and submit tertbe Govemor PRasident of the
Senate and Speaker of the House of Representatives, an annu rpefrt.detailing
the progress achieved by each agency in the implementation and administration
of public land acquisition programs during the past year.




59. FEDERAL COOPERATION

The Legislature should enact a joint resolution requesting Florida'sCongressional
Delegation to develop legislation which encourages federal cooperation with states
to protect federal lands not currently designated for conservation purposes.




60. COSTIBENEFIT ANALYSIS OF CONSERVATION PROGRAMS

The water management districts, Department of Environmental Protection and
Department of Community Affairs should jointly prepare an economic analysis that
compares the costs and benefits of public conservation programs with the costs
and benefits of development anticipated by approved local government comprehen-
sive plans.4







SSee, e.g., Yingling, Land Conservation Economic Impact Literature Review and Research
Recommendations Report to the Land Acquisition, Planning* and. MCagement Subcommittee of
the Water Management District Review Commission (November 1995)(on file with Commission).


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El


I I _









ACQUISITION OF LESS-THAN-FEE INTERESTS IN LAND


61. LESS-THAN-FEE SIMPLE INTERESTS IN LAND25

Specific provisions should be included in Chapter 373, Florida Statutes, to:

A. Clarify that public recreation is encouraged but not mandated on
lands for which a less-than-fee interest is acquired;

B. Require less-than-fee conveyances to provide the acquiring govern-
mental entity with physical access to the property sufficient to
properly enforce the interest acquired;

C. Ensure that title to the real property providing the basis for a less-
than-fee acquisition reflects no outstanding exception that could com-
promise the purpose for which the interest is to be acquired;

D. Prior to acquisition of a less-than-fee interest in real property, require
the preparation of a physical inventory of the subject property at the
expense of the lead acquisition agency.




62. DISTRICT ACQUISITION PROGRAMS

Water Management Lands Trust Fund (WMLTF) acquisition programs should be
modified as follows:

A. Require an identification of lands included in WMLTF land acquisition
programs that will necessitate the purchase of fee simple interests
to achieve water management goals by March 1997.

B. For each proposed less-than-fee acquisition of land that would meet
water management goals and for which the landowner is willing to
sell a less-than-fee interest, require preparation of a cost/benefit
analysis between acquisition of a fee simple interest and the
proposed less-than-fee interest that would include the following:
acquisition costs, management expenses, impacts to tax revenues


25 In December 1995, the St. Johns River Water Management District purchased from the Georgia-
Pacific Corporation conservation easements covering 16,994 acres (26.553 square miles) adjacent
to Lake Lochloosa in Alachua County; additional easements covering 14,358 acres (22.434 square
miles) in Tiger Bay State Forest, Volusia County, should be executed in early 1996.


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I









of the local government, and income potential from compatible
revenue-generating activities on the property. In general, the option
which is supported by the lowest present value/cost ratio should be
pursued; any exception would require appropriate justification.




63. UTILIZATION OF LESS-THAN-FEE ALTERNATIVES

The Legislature should direct all state agencies involved in the acquisition of public
lands to adopt criteria and implement procedures substantively similar to those of
the water management districts to maximize utilization of less-than-fee acquisition
alternatives.




64. REVIEW OF APPRAISAL METHODOLOGIES

The Legislature should direct the water management districts and Department of
Environmental Protection to review and evaluate current appraisal methodologies
utilized in state land acquisition programs. The review should [shall] identify with
specificity the impediments in current appraisal practices that discourage or prohibit
the appropriate use of less-than-fee acquisition by governmental entities and
propose amendments to current methodologies that would facilitate the equitable
utilization of less-than-fee acquisition techniques.




65. INVENTORY OF PUBLIC LANDS

The Legislature should direct the water management districts and Department of
Environmental Protection to inventory all lands in which they hold an interest by
October 1, 1996, to determine whether any lands could provide better economic
or environmental benefits to the state. Alternatives that could be utilized to provide
positive economic or environmental benefits include, but are not limited to, the
following: sale of surplus lands; leasing of land for uses compatible with the pur-
poses for which the interest in the land was acquired; and conveyance of interests
in land with restrictions sufficient to ensure the protection of the interest retained.


-35-








66. ANNUAL REPORT ON LESS-THAN-FEE ACQUISITIONS


The annual report to be submitted to the Governor, President of the Senate and
Speaker of the House of Representatives by the water management districts and
other state agencies involved in the acquisition of public lands (see Recom-
mendation #58) should [shall] include information on less-than-fee acquisitions,
describe obstacles to the use of less-than-fee acquisition alternatives encountered
by the reporting entity, and offer proposals for resolving such impediments, includ-
ing appropriate recommendations for statutory modification.




67. PUBLIC ACCESS TO STATE AND DISTRICT LANDS

The Legislature should direct the water management districts and Department of
Environmental Protection to jointly identify and evaluate statutory limitations on
public access to and use of state lands and water management district lands. The
agencies should also propose statutory modifications that would describe and auth-
orize specific uses compatible with the purposes) for which lands were acquired.


- 36 -



















I


68. PRIVATE MANAGEMENT OF PUBLIC LANDS
The Legislature should direct the water management districts and Department of
Environmental Protection to investigate the feasibility of restructuring current limita-
tions in Preservation 2000 (P-2000) revenue bonds to expand private resource
management activities on lands acquired with funds generated by the bonds. The
districts and Department should also be directed to obtain expert evaluation of cur-
rent restrictions that limit the use of and activities on public conservation lands pur-
chased with P-2000 funds, and propose recommendations for modification of future
revenue bond documents to allow compatible yet more productive use of the lands.
69. FUNDING FOR DISTRICT LAND MANAGEMENT
The Legislature should maintain the integrity of the Water Management Lands
Trust Fund to ensure a reliable and ongoing funding source for the land manage-
ment activities administered by water management districts.
70. CONCEPTUAL MANAGEMENT PLANS
Prior to closing each land acquisition, the water management districts should [shall]
complete a conceptual management plan that describes at a minimum proposed
management activities, control of exotics, necessary restoration, preliminary long-
term management costs and projected funding sources for achievement of the
conceptual management plan.


71. FINAL MANAGEMENT PLANS
Not more than one year from the date that a district acquires an adequate portion
of a land acquisition project area to substantially meet the management goals con-
tained within the conceptual land management plan for that project, the water
management district should [shall] prepare a final management plan (and
restoration plan, where applicable) that includes specific schedules, funding
sources and a budget consistent with the conceptual management plan, for review
and approval by the governing board.
-37-


II


MANAGEMENT OF STATE AND DISTRICT LANDS








72. UNIFORM CRITERIA AND FORMATS


By March 1, 1997, the water management districts and Department of Environmen-
tal Protection should [shall] adopt uniform criteria and reporting formats for
conceptual and final land management plans.




73. EXOTIC SPECIES MANAGEMENT PLANS

The Legislature should direct the water management districts and state land
management agencies to prepare exotic species management plans for lands
owned by each entity. The plans, which should be completed by March 1, 1997,
should [shall] include management implementation schedules, proposed budgets
and identified sources of funding.




74. LONG-TERM MANAGEMENT COSTS

By March 1, 1997, the water management districts and state land management
agencies and should [shall] complete and submit to the Governor, President of the
Senate and Speaker of the House a report detailing the long-term management
costs for public conservation lands owned by each entity, together with an
identification of funding sources for the management activities described. The
reports should [shall] specify restoration expenses and capital project shortfalls,
identify the sources of funding necessary to implement and complete restoration and
capital projects, and employ consistent management cost criteria, formulas and
reporting formats.


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MITIGATION BANKING


75. ESTABLISHMENT OF MITIGATION BANKS2

The Legislature should require the water management districts and Department of
Environmental Protection to cooperate with private and nonprofit entities, local
governments and other state agencies to establish mitigation banks and projects on
district or state lands where possible, and on appropriate private lands voluntarily
designated for mitigation banks or projects.




76. IDENTIFICATION OF MITIGATION BANK LANDS

To provide advance notice of areas within each watershed or ecosystem manage-
ment area that could be available to offset the loss of wetland function, the
Legislature should direct the water management districts and Department of
Environmental Protection to coordinate with appropriate local governments to identify
all public lands within each watershed or ecosystem management area that may be
eligible for mitigation projects or mitigation banks to be established by public,
private, or not-for-profit entities. A similar determination of eligibility could be per-
formed for any private land upon request of the property owner. The identification
process should be accomplished by March 1, 1997.27




77. ANNUAL REPORT OF ELIGIBLE MITIGATION BANK LANDS

The water management districts and the Department of Environmental Protection
should [shall] include in the annual state land acquisition programs reports published
and submitted to the Governor, President of the Senate and Speaker of the House
of Representatives, a list of acquired lands (or interests therein) eligible for district-
endorsed mitigation projects or mitigation banks.28



26 See FLA. STAT. 373.4135 (1995).

27 This recommendation was passed by a 16-to-2 vote of Commission members.

28 The preliminary proposal adopted by the Commission included a January 15 deadline for
submission of the list of mitigation-eligible lands. The date was omitted from the final recommenda-
tion, however, because submission deadlines were not included in Recommendations #58 and #66, O
which described other elements of the annual report on land acquisition programs.


-39-








78. EXPEDITED CONSIDERATION OF MITIGATION ALTERNATIVES

The water management districts and Department of Environmental Protection should
[shall] establish procedures to assist permit applicants in addressing mitigation
requirements for proposed wetland impacts. The procedures should [shall] expedite
the agency's consideration of mitigation alternatives and increase the level of
certainty for permit applicants.




79. COST OF MITIGATION ACTIVITY

Where a water management district or the Department of Environmental Protection
operates a mitigation bank or accepts cash contributions for district-endorsed
mitigation projects, the amount charged to permit applicants who utilize such bank
or project should [shall] be no less than the full cost of the mitigation bank activity
or project to the district or Department. Costs associated with mitigation bank
activities or project should [shall] include, but not be limited to, all direct and indirect
expenses for land acquisition, land management, restoration and enhancement
activities.




80. MITIGATION FUND ACCOUNTS

The Legislature should direct the water management districts and Department of
Environmental Protection to establish separate accounts for mitigation bank or
project funds received from permit applicants and utilize those funds for acquisition
and restoration projects that will offset the impacts mitigated.


-40-




31n~--~`- ~ "~'~'~*`~P""~"-- ,-- ~-r ru~l~-- ~ ~--'"-x-----' ; --... C---~~tr ; P-- --a -- u nll lT n --* ~-. -


WIlliam M. Bishop
Senator Charles Bronson
Rosse D. Cordova
Thomas H. Dyer
John M. Finlayson
Richard J. Greseo
Joe Marlin Hilliard
Mary A. Kumpe
Representative John Laurent
Joha R. Maloy


THE FLORIDA LEGISLATURE


WATER MANAGEMENT DISTRICT
REVIEW COMMISSION


Phillip D. Lewis, Chairman


Mimi K. MeAndrews
Senator John McKay
Mayor Carol Jaudon McQueen
Robert E. Nedley
Thomas E. Oakley
Representative Vernon Peeples
Howard L. Searcy
Commissioner Samuel Taylor
Commissioner Patti B. Webster
Sanford N. Young


ERRATA



The Table of Contents of the Commission's report, Bridge Over
Troubled Water: Recommendations of the Water Management District
Review Commission, dated December 29, 1995, contained two errors.
The titles of Recommendations #13 and #14 contained on page "i" of
the Table of Contents were inaccurate; the correct titles are as follows:


Page


13. Alternative Funding for Statewide Programs
.Funding SouLnrceas for Statewide Programs

14. Use of Local Funding for Statewide Programs
Financial Accountability; and Budgeting


The titles and text of the recommendations stated within the
report remain accurate; only the titles reflected in the Table of Contents
contained the errors. Corrected copies of the report are being printed.
If you wish to obtain a replacement copy of the report initially printed,
please contact Commission offices.








Sally Bond Mann, Executive Director
600 South Calhoun Street, Suite 237 Holland Building, Tallahassee, Florida 32399-1400
Telephone: (904) 922-0981 SUNCOM: 292-0981 Fax: (904) 921-8007




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