WATER, WATER EVERYWHERE: NOT A DROP TO DRINK,
IRRIGATE OR PROCESS
Frank E. Matthews
Hopping Green Sams & Smith, P.A.
Over the last 24 months, everyone has suggested that water supply legislation would
dominate the 1996 legislative session. It was expected that the results of the Water Management
District Review Commission (WMDRC) and the controversy created by the water shortages in
the Southwest Florida Water Management District (SWFWMD) would create an impetus for
significant legislative revision to Florida's legislative water code. As is always true in
Tallahassee, the expected did not happen.
Regulated interests throughout the state breathed a collective sigh of relief when the only
water legislation that passed the 1996 legislative session was the CS/CS/HB 2385, which dealt
specifically with Hillsborough, Pasco and Pinellas Counties. This relatively modest legislation
provides for the priority scheduling of minimum flows and levels for water bodies within
Hillsborough, Pasco and Pinellas Counties, culminating in the establishment of minimum flows
and levels for priority waters within those 3 counties by October 1, 1997. The bill further
provides that independent scientific peer review may be required if the facts underlying the
establishment of those minimum flows and levels are subject to dispute. Fortunately, this section
of the bill was nt limited to the three counties in SWFWMD and should be applicable
statewide. On another statewide implication, it is noteworthy that the legislation authorized the
Governor to approve or disapprove, in whole or in part, the budgets of all 5 water management
The failure of either the House or Senate Select Committees on Water Policy to develop
omnibus water legislation can be attributed to the overall lack of consensus on what, if any,
action the state should take in attempting to more equitably provide and distribute its water
resources. Most regulated interests argue vehemently against the politics of water shortage.
Few, in the water consuming public, agree that legislation needs to be foisted upon the state,
based on the underlying premise that a true water shortage exist. Admittedly, certain areas of
the state have periodic water shortages and certain parts of the state have mismanaged the
volume of fresh water which is available to them. Nevertheless, the notion that rollbacks of
existing water withdrawals are necessary in order to insure a sustainable quality of life and a
vital natural system simply isn't true., The 2 most common themes which plagued the regulated
community during the water debates was the absence of any dedicated funding to implement
water supply plans or innovations and the overall notion that the establishment of minimum
flows and levels was a euphemism for the reservation of water for natural systems at theexpense
of existing and future consumptive use permit holders.
Unfortunately, 20 or more of the WMDRC's recommendations which would have
reformed the water management districts, became hostages in the water policy legislation.
Senator CharleJBrenson put forth a valiant fight to incorporate WMDRC recommendations into
legislation which would establish priority schedules for the establishment of minimum flows and
levels and try to- develop incentives for the development of alternative water supplies. (See
CS/SB 1728.) This effort failed, however, due to attempts to amend the legislation with
significantly more controversial issues.
Throughout the 1996 legislative session, the simplest criticism of the draft water bills,
was the absence of additional water. In other words, nothing in the legislation would have
resulted in additional water being made available for public supply, irrigation, industrial
consumption or natural system utilization. Rather than focusing on this relatively simply
objective, which is the creation and distribution of more water for all appropriate users, the draft
legislation attempted to set forth a growth management-like planning process which could have
resulted in water being the tail which wagged the land use decision-making dog. The lesson of
growth management since 1985 has been that the implementation of a planning and regulatory
infrastructure, which is based upon unfunded capital improvements is a diagram towards
disaster. Many felt the House proposed committee bill would have added water to the existing
impediments to growth and economic development in Florida. Additionally, the Governor's
office repeatedly fought the idea that the water policy rule approved by the DEP needed
legislative ratification. Each time this subject was brought up in Committee, the idea passed,
yet each time the House leadership prepared a strike-everything amendment, the issue
disappeared. Beyond planning, funding and legislative ratification, a number of lesser issues
were generally agreed upon as reflected in CS/SB 1728. However, no significant constituency
emerged willing to advocate passage of the legislation.
The future is uncertain. Hillsborough, Pasco and Pinellas Counties will go forth pursuant
to HB 2385, but that area should not be a testing ground. Those circumstances don't exist
statewide and neither the Southern Water Use Caution Area or the Lower East Coast of South
Florida should be used as a model for water policy and supply legislation for the state. We all
benefit by more water and better water management and that should be the goal. Let's not focus
on allocation schemes based on assumptions of dwindling supply until we at least make a good
faith effort to fully supply man and nature. Alternative water supply development should not
be the exclusive domain of agriculture and industry and that seems to be the dangerous trend.
If allocation of a finite supply is the focus of legislation or regulation, that will pit urban versus
rural, public supply versus non-potable users, water rich versus water poor, coastal versus inland
and man versus nature.
Currently, minimum flows and levels may be set ignoring the realities of existing and
future users. The existing section 373.042, F.S., provides virtually no guidance on the
establishment of minimum flows and levels and that lack of guidance was the strongest argument
in favor of passing legislation. The thought being, that some guidance is better than none. The
Stronger sentiment however, was that case-by-case decisions can be administratively and legally
adjudicated and greater damage could result if flawed legislative direction was provided. For
example, it was repeatedly stated that minimum flows and levels must serve nature and be based
on "pure" science. That flawed logic, ignores the reality that science is dependent on facts.
Consequently, no minimum flow or level should be established ignoring the facts associated with
existing withdrawais or future growth demands. If man's utilization of water isn't part of the
minimum flow and level determinations, the litigation will be endless and the opportunity to
improve this issue; lst. Next year may be better, but I doubt it.