Title: Water Mangement Reform: Mission Impossible?
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00001904/00001
 Material Information
Title: Water Mangement Reform: Mission Impossible?
Physical Description: Book
Language: English
Publisher: Florida Bar Journal
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Water Mangement Reform: Mission Impossible?, by Marcia Penman Parker and Sally Bond Mann, 1994 Regular Session of the Florida Legislature, October 1996
General Note: Box 9, Folder 14 ( SF-WMD REview Commission - 1995-1996 ), Item 1
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001904
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text
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Water Managenut BReform

M Mission inposuibie?


by Marcia Penman Parker
andSally Bond Mann


The Tape Recorder
Date: 1994 Regular Session of the Florida Legislature
Situation: Unconfirmed reports indicate that the state's premier natural resource is being manip-
ulated by regional agents, funded by ad valorem teaes imp~ed by nonel)cted.iadiyjhals Accu-
sations of improper resource management may be supported by limited geophysical evidence, yet
the reported problems appear inconsistent statewide. Citizen representatives aee demand in-
creased governmental surellance of the agents' expenditure and operations. Ac)dhagly, the
F-leoriaa ia bsktuthas directed that a peial task fore be mpaneled to investigate pgat
of improper appropriations and activities by the regional agencies.
; OeaiqvTbe mitiion oft 1 is -to r jie.
legal efd rog procsses 0r., a' water n
briutm ag t*resiwtf report MtR fi6n01ain rrm e al f 4Watutol- mtfif fo Ote
Goveura kai gisleatue. Ofcotree,. aplaftbledwecr iurnighbrga tbsly M
the auoaig asm t may badisarvo e at the discretion of polbciq mak The re mw p o
self-dstruct on June 30, 1996. Good luck.


he- structure of Florida's cur-
S- -I -ren- t system of water regula-
.i. '-.tie was established by The
W .-Fle'ida Water Resources Act
of l979. Irir tp peaage ofthat legia
lesbinabovermui oaous rtn mental
mtaie amwP ddtbe. stat.kwater T o-

4"6li40 Vre ageot6aek &-A State

fr.coeael water reaaredatea
and the coordination of multipurpose
flood control and water management
diasricts.' aingle-purpose drainage,
water suply, oeaquito control and aq-
aQ sBdirtietag;tmided, and in many
instances stWj fanisb& particular wa-
terrelated services for local citizens,
businesses, and governments?
Prior to the 1972 act, only two re-
gional multipurpose water manage-
ment agencies were in operation: the
Central and Southern Florida Flood
Control District (C&FFCD), which
was established in 1949 and covemd all
or.paq o i~~. counties, including
Brmerard, Broward Dae.. Lee,
Okeechobee, and Orange, and the


Southwest Florida Water Management
District (SWFWMD), created in 1961
and covering all or parts of 15 counties
from Marion to Manatee.' Both districts
were reatedin response to. atastephic
cycles of drought and flood .th-ate.
curred across the state frem 1w Sto
1960, and served as the-requisiteloal
"sBponsbrsjd operators ffededl fied
protection and water controprqjects.9
Although thepimr responsibilities
of the early were to maSgard
people and property frm inandaMti
and provide them with a safeandufi-
cient water supply, the dist mntweren
also charged with arresting stwater
intrusion, encouraging urban and ag-
ricultu deveopment, and suetaining
fish and-wildlif&e
By the early 1970's, the coalescence
of state.papulation growth, environ-
mentalawaeness," ad succeiivearid
seasons ipenedthe issue ~ifempehe
sim statewide water manageoest for
public and poetieal debatao IA Sdptem-
ber 19871?,eear ubinAskewassembled
amiunengal t~d lea tat.*ak
aureseapIertes les-a a PR aNdiLtix6sd


to examine reuArid r etat wtere w t
lems, and th re hatlWagit a!WM it mil -
ommenBA~amBie patildtatfth iatefl~f
legislative action." Basedp M AI
A Modela li1t rCbdh' a rti Q-
pertedby GwrAibsen IM 19A2etsaUA
nominal opposition throughout dthi#l

Sb nbourage a ailitate eourte-
based dees la : .fid.r eratio, th
1972 act esthabl itedb gieal watW
mnafngemeatdstrikcts osiHg etrSife
water hptbeaic bohandwits rathWr
than political periloetor~ s ad. pfe-
vided fordistriet dueisiotsek-
ing by gowniinnguinemd, with healed s
appointed by the Governor an*d kM-
finned -ry the SM~te.a Th fl act
envisioned fiveprimary program areas
of water management district fune-
tions: 1) ednstrction and operation of
district works; 2plmnning for, manage-
ment, and pernittla of ie numptive
uses of water; 8)asupervision of water
well comtruetion; 4) regulation of sys-
tems thaf maige or store eurfite wa-
tMgt)rMiulani -t-gatadtlh
and s i tNS6urr e6 wirifs tWe Afilp


1986


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maxim: If it ain't broke don't fix it, and something on behalf of their clients,"
it ain't broke." Kogan said. "I felt this in a lot of ways
detracted from what the legal profes-


Good Lawyers
But that doesn't mean there isn't
room for imprciif .oni san
voiced strong sup ,t'het efforts to-
improve professionalss; lpuncled ky
immediate past Bar Pr'si 01o1i
DeVault and current Prsid n on
Frost.
The whole legal system, he said, is
dependent on judges who are not afraid
to do what's right, and lawyers who are
willing to represent their clients vigor-
ously, but also professionally.
As a judge, "I saw that there were
some lawyers who would literally ad-
vocate absolute foolishness, specious ar-
guments, things that were not logically
connected, just for the sake of saying


ments," Kogan said.
The court is being asked by the Bar
to reconsider the rule that requires law-


sion is all about. years to report annually the amount of
"I'm not talking about something pro beno they have performed. Because
.at-fr et.y debail n- itis under cenuie atjji; t 0mn could
gage in ftish rheto .*h* were nOt discuss that specific rule. But he
some lawyers that if t*y said it was offered his giew on pro bono:
Eakii pde, you, ildd p and thibk%1at pro bono performed by
go Iobk Be~qse yoiuluti 't trust every lawyer--and we only asked for 20
them." hours a year--can be one of the great-
It's especially important for judges est things that we can do to help restore
te work +tf-good lawyg;rs 1 added. public confidence in the legal profes-
"Tha woro.nightmre of the judge is to sion. If those people out there see that
have incompetent lawyers argum g the lawyers are not a greedy bunch ofindi-
case. No matter how difficult the case, viduals, I think that's a great public
how complex, if you've got good lawyers relations move on the part of the Bar."
on both sides then you've got everything
in place for being close to making the-,-? : -- :!
right decision. You kniow t 'ye re-, Gary Blankeship is an associate edi-
searched it and they've got good argu- tor of The Florida Bar News.


"In too many ways our society has yet
to confront a serious probtlm.arising from
women who are forced into prostitution
at a young age," Kogan wrote. "Such
women typically enter into restitution as
the only possible mnns o'f escaping an
abusive home environment. The tragic
result is that early victimization leads to
even greater victimization. And once the
girl becomes an adult prostitute, she is
labeled criminal and often is forced into
ever~more crime, as the only means of
supporting. herself. Few escape the vi-
cious cycle.
."Alen WIMomor.obviously isan ex-
treme case, but-her general life history
itself is not rare...."
In In re TA.C.R, 609 So. 2d 588 (Fla.
1992), the court faced one of its most
wrenching cases. The parents of an in-
fant girl bom only with a brain stem, a
condition known as anencephaly and
which is always fatal within a few days or
weeks at the most, soughtto donate her
organs. If they waited untH the infant
"died" naturally, the organs would be un-
usable. .
Although the infant had died by the
time the court got the case, the justices
acted on it because of the likelihood the
issue would ariseIagain. The question
was whether Ithfltay, with most of the
brain missing andwith no consciousness
or cognitive abilities, was "dead" legally
so her qCgns could be transplanted.
Not surprisingly, the court got a wide
varletylyiadvce from briefs of the par-
ties and amici curiae, rangingfrom the


transplants should be allowed touch an
action would amount to euthanasia and
was ethically wrong.
Kogan wrote the unanimous opinion
for th irt. Itfound that medical authori-
ties were splion the usefulines of trans-
planta as well as the ethical questions
raised. On the legal side, thestate had a
statute which stated that in cass where
a patient's heartbeat and respiration were
artfically supported, then totaleassation
oftbrain activity would constiate death.
But he court found no other statutory
or common law definition ofdeath.
1 The court then adopted cessation of
heartbeatas the standard for determin-
ing death, with the statutory exception of
whole israin-death in cases of artificial
oaediopuminnary maintenance. *'-
The next issue was whether that deos
nition should be expanded to include
anencephallcs, who failed to meet the
definition of either cessation of heartbeat
or-omplete tack of brain activity.
"tWaonotpersuadedthata public
necessity exist to justify this action, in
light of the other factors in this ease-
althoughwe acknowledge muoh ambiva-
lence about this particular.question. We
have been deeply touched by the altru-
iamand unquestioned motivesofLhe par-
eats ofTAC.P. The parents have shown
greathwnanty, compasseonrand concem
for eIhae,Tbe problem we asa- court
must face, however, is that the medical
literatue shows unresolved dontrvery
over bhe:extent to which anencephalic
organs ,can or should be used in trans-


.plants. .
"We express no opinion today about
who is right and who is wrong on these
issues-if any 'right'or 'wrong' can be
found here. Tih salient point is that no
consensus exit .'as to: (a) the utility of
organ transplants of the type at issue
here; (b) the ethical issues involved; or
(c) the legal and constitutional problems
implicated.
"Accordingly, we fiat no basis to ex-
pand the common law'to equate 6aen-
cephaly with deah. We acknowledgathe
possibility that some-infants' livesiitght
be saved by using? organs from
anencephalics who do not meet the tra-
ditional definition oi 'death' we reaffirm
today. But weighed against this is the ut-
ter lack of consensus and the questions
about the overall uftfliof such'drgan do-
nations. The scales olearly tip infavor of
not extending the cotihroh law in this in-
It may not take any effort, really, to
reconolle Gerald KoganWe two Gemini
sides. Again, its wife Irene who provides
the answer. She noted she asked her
husband alew years ago how he would
like to be remembered.
"HWea itihe wobd lklto be remem-
bered as a man of .%lon, an advocate
for the rights of individuals, and one who
respectdd the dignity-of iltellow human
beldgs wit deep undestanding of the
human condition," he said. "He always
says you cannot be a gbod lawyer or a
good judge unless you understand the
hdman condition."


THE FLORIDA BAR JOURNAL/OCTOBER 1996 19


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tript." Over the 20-something years
siainitial m plmentation of the 1972
act, the legisature has assigned (or ex-
ecutive agendie have delegated to) the
districts verm additional responsibili-
ties, including the development of
grtundwater basin resource availabil-
ityinPs ories, environmental resource
- rfa

Ds y._ ,:-^ .. .-' ../..' .*
aztledp idad bpt

-aid'Pot







plaaeri.da
atairelWvet

mostafthe powe









on yte Water Ottf C W f'uCaii^H^P7


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-- .. ,
Commission (WOC), established by initial implementation of the 19s ait
GoCv. tod.C iles. A t to cosa4pl inta eg
District actions or op-
Legislatre cmratel
a) theSurfatceWaterJ M' 4pd theT i iSee
Management Trus j Commission" Compised of 21 mem-
tively appropriated de- bers andrepresentingabreadsopsectra
apartment; c) permit ai; d) of citizens, legislators, and public inter-


isions limit the ad valo-
a~ of water management
r districts derive their pri-
sng from those assessments;
g authority of the fifth dis-
a Northwest Florida Water
lent District-is severely re-


fil
di
ax


mwascharged
prehensive ..
nal system, oft .-
'lb facilitate

as suhboarnit-
ing areas: 1)
Sbudgeting 2)
md operations;
planning, and
*A' l S-


rations


mipiuifng that the statutory re-
e al bwiities of water manager ent is-
tiwa had increased significantly since


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"..Pa~B~`.~ ..;.~i -;t ~-: :.: -?
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Ta, mp",
Orlando, nve, Lecanto, Pt.
Lauderda l ive Oak, Clewiston,
MPeaa SaE ta. Its final re-
port, it '80 ',if
was sub to Aby iverne r, the
President of the Senate, and the
Speaker of the Boose of iepr'sent.-'
tives on December 2% 1996. The af-
lowing discussion summarl es a _r
commission recommendations
of the four primary topics.

District Goverance

of ad valo-
rem ta b water management
district governing boards, major criti-
cisms have i ltdd thB lack of specific
experience or expertise as a require-
ment for governing board members, as
well as the so-called "taxation without
representation" argument-the author-
ity of appointed, noaelected governing
boards to levy ad valorem taxes." The
commission received considerable tes-
timony regarding the current appoint-
ment and confirmation process, and
debated several alternatives: 1) ap-
pointment of members with expertise
in certain water-related categories, e.g
engineering, environmentallaw or util-
ity construction, financing, and opera-
'11*1,tt i toarxif eletedeofmcials
to serve on governing boards; 3) direct
election of governing board members;
or 4) selection ofgovernin qbgead


4-..~


22 TH" ILdLIbA BAR JOURNALIOCTOBER 1996






S


Art by Joe McFadden
.,- '.i -3.


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or public service commissioners
Noting for taxation-without
sentation critics that the elected
lature controls the statutory mill
for each district, the commissi
Sfirmed. nted governing
mer a district'
di age region
benefit
area rcmHR fG members
not be el yand be expe
represent a discrete constituel
though the commission ultimate
eluded that the current appoil
and confarmatio process should
tained,31 commissioners recoms
that the annual gubernatorial a
meats be state ered. fm more cor
and efficient water manage
decisi mnalng.Y=
With regard to the approprial
sigM of water fmangMnt diat
tivities, the commission review
general supervisory authority
department and the roles of tl
ernor ind le)1ta~ i in provide
ecutive and statutory direction
districts. One of the most contr
propeaals made by commission


: S h ...l it ifgation support for
wrs sesmd.nor consultants with
boabinisanon allows us to furnish
bel*h loping#m. pls ma4 theories of recovery
an..saofnass discovery strategy and in
cTyp miml S ie cldWy custom and practice; bad
... i. ag..ote liability; premium comro-
verseii tsecontroverted claims; and cov-
Our counsel 4po- rrs because we actively
celt with out B b matters of property and
liabilityms atc, life insurance. Therefore. our
analyses and opiaiar ornt astin lperience.
We suggest that ea ad y-r ii~iFwi "Wl.u to include Siver in the ininal
evaluation of any insurance case. Ffdis&wusMiji .5i*swions offered without charge.
For information contact:
Edward W. Siver, CPCU, CLU or
Jim Maishal JD. CPCU. ARM
:- 1 9400 Fourit Sreet North
SL. Peteraburg, Florida 33702
., ..sipa 3) 577-2780 race Consultants
-. ::Naile: <83) 379-8692


'24 THEFLF MDABA I
: .


the NortlvSt Florida Water Manage-
ment istEittWa muit cap of .06 amil
should be increased to the 1.0 mill au-
tAoiedfor thbothe four districts; 2)
the legislature should provide a perma-
nent souree of tate finding obr imple-
mentation of the Surface Water Im-
provement and-.lsru~i~~at(SWIM)
program; 3) budget advertising and for-
mat requiremtents s ould be modified
to facilitate the public's understanding
of district bdeete; and 4) the following
sentence should be appended to F.S.
373.501:

To the extent that new or expanded water
resource programs and regulatory respon-
sibilities enacted by the Legislature or del-
egated to the districts by the Department
are not accompanied by state funding
or other alternative revenue source funding,
the districts sb4 l be exempt from
.: implementing oe ne or ea*andea pro-
grams."


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In deferencedaa to morr.deat Yodeffig sayhedul well get right


guaranteedspon-time liverm Dpsions as UPS. Whether that meansdii
getting your meetacuge packe across the c ^ounJtry.in hours, or
across anB ocean by breulast. Or if it means getrtiginventory o./ S
unilthe day after omoro. You ,ig say we can offers










a timely response.gpseypry critical deadline; Assuining dri i'.' i *
that these days, therii 4s any other kind. Lpok fA
on the laternet at http://puww.ups.com ot call
-o'r-PICK-UPs. M GV1i SPE" f BUSIN
- 'rr i 7.2 ^ ^ r-, -4 :

In deference to youT deadt-defyia schedule, we'll get right te'$
point. Here and ioumad the world; body can dfeW* you as ma
guaranteed" on-tigwdtivery options as UPS. Whether that meanss
getting your moet urgent package across the country nm hours, or, *>
across an ocean by beanflfagt. Or if it meansgetting mventory out,,"h,,
of your warehouse today, even if your customer can't takg.deliveryK
until the day after tomorrow. You might say we can offer .
a timely response,.yo.pry critical deadline.Assuming nikvtd 1
that these days, therd .s any other kind. Lpok fqg VS ':
on the Internet at http.://pew'wups.com o0 call .t-'
I-800-PICK-UPS. MOVIWGaithe SPEED FBUSINE$_ 2




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9.r 69fe fts *i-


ror eaaam
wars" in j

i raised the

ne.n.cesm




the state
From watei
Sbelow,how
,OMBUaendat


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Pcand is.-at r .Pd n-avor- one *uaTe w' B ofat -i permiaing
i e ti aiti rtftr con-r"
buse t- m iepeasdly











g--- _aw sku_ +a,.nd_. Qi i, pet- ,palimats, in.tmsw.wz ad u+ni-



among etmg a i pm mpl- of -dis +t -_fj. o. .. w"ea__e
water. Considerable discussion beforeeate
that













the commission focused on refining dis- respect precisely historical average mini- be able to use the less costly (but often
availability water for all uses, i -ws and lvelsat habitants of the
ing the water needs of natur t inS antig of g aie residents of dry,i
Sasaaer- m






For example, the conumptiw Ijudicial ad ainiatr neias who would rather
poleie spitolr t sad vetDavor one., fdaiethr4 A *drce area,






latory program authorizes a district tie decisions have held that e stab- transport the peniv water than
One of w^ Issues e iqi tp the


.d mi and6is levels le- Pewn ,_irebsteic s pro-


amof, efg laa i* die" of v-6l+ear4ta at+ of Am = raaeouc.e ease
water, Considerable discussion before le-AtvBt if4 siWikh-alectisiniyi' of the conwtorsy is this: Who should
the commission focused on refining dis- efledt precisely historical average mini- be able to use the less costly (but often
tricttechniues forenuring flows and levels. Rthat each dini- distant) for ater-the natural ys-
availability of water for all uses, Os and levels ack t9 $ inhabitants of the
ing the water needs of natural SY ia of ihe" e residents of dry,
For example, the consumptiveAgu rlp-W Ad -dedI:t.1u judicial and administra. as who would rather
latory program authorizes a district tive decisions have held that the estab- transport the inexpensive water than

d iaOd&Wild is amsatory and that each distril equary forallatia reasiews?
life orK4ssj BaEed eonat Laneed with setting the flows d The onnaissidf ncal Tfirt"
26 THE FLOflDA MAR 1JX9UAL8A)CrER ofS


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28 THE PLORIDA BAR JOURNAUOGaTOa 119O
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30 THE FLORIDA BA j uRi ~C :6


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