Title: Responsibilities Committee Proposed Recommendations
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Title: Responsibilities Committee Proposed Recommendations
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Responsibilities Committee Proposed Recommendations
General Note: Box 9, Folder 14 ( SF-WMD REview Commission - 1995-1996 ), Item 17
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ResDonsibilities Committee
Proposed Recommendations



I. Water Use Issues

A. Local Sources First

B. Minimum Flows and Levels: Establishment of Priority Water
Bodies

C. Minimum Flows and Levels: Scientific Peer Review

D. Minimum Flows and Levels: Definition of Significant Harm

II. Flood Protection Issues

A. Prohibit Uses in Diked Areas

B. Aquatic Plant Control

III. Administrative Issues

A. Supervision of 298 Districts

B. Alternative Dispute Resolution

C. Rule Making: Least Cost Alternative

D. Rulemaking: Presumption of Correctness

E. Co-Location of Permitting Offices

IV. Water Quality Issues

A. Water Quality Standard Setting

V. Additional Recommendations


I




l. 11 .


I. Water Use Issues

A. Local Sources First

Background:

In issuing consumptive use permits the Districts are required
to consider three criteria: (i) whether the use is
reasonable-beneficial; (ii) whether the use will cause harm to
existing legal uses of water; and (iii) whether the use is in
the public interest. The first two criteria do not deal with
the issue of whether the use of local sources of water should
be required prior to allowing the use of water from more
distant sources. The third criterion is broad enough to
encompass such a requirement, and the statute allows that
water may be transported across and beyond overlying lands,
ground and surface water basins, and county boundaries.
However, no guidance is given as to whether such a "local
sources first" policy is required or even desirable. Much
testimony has been given to the Commission regarding this
issue, primarily with regard to a perceived need by some
commentors that the Districts should require that: (i) all
alternative sources of water in the local area should be
utilized prior to the ability to transport water across long
distances; and (ii) the effects of the use on the source area
must be considered.

At the September Committee meeting, the Committee requested
that staff from the Districts prepare a recommendation for
consideration with regard to local sources first. In the
event that the Commission determines that a policy regarding
"local sources first" needs to be adopted, staff from the
Water Management Districts and the Department of Environmental
Protection offer the following amendment to Chapter 373 to
provide guidance to the Districts in reviewing requests for
long-distance transfers of water.

Recommendation:

Amend Section 373.223 as follows:

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

(a) Is a reasonable-beneficial use as defined in S373.019(4);

(b) Will not interfere with any presently existing 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 ground or surface water
boundaries, or outside the watershed from which it is taken if
the governing board or department determines that such
transport and use is consistency with the public interest, and
no local government shall adopt or enforce any law, ordinance,
rule, regulation, or order to the contrary. When determining
whether a DroDosed transDort of around or surface water is
consistent with the public interest, the aovernina board may
consider the effects associated with the DroDosed withdrawal
as compared to the effects associated with the use of
alternative water sources, including sources in closer
proximity to the Droposed use. .


- 2 -










I. Water Use Issues


B. Minimum Flows and Levels: Establishment of Priority Water
Bodies

Background:

Pursuant to S 373.042, Florida Statutes, the Districts are
required to establish minimum levels below which further
withdrawals will be significantly harmful to ground water
resources and minimum flows and levels below which surface
water withdrawals will be significantly harmful to the water
resource or ecology. The establishment of minimum flows and
levels will assist each District in regulating consumptive
uses of water, water shortage response, operating District
works, and other District programs.

Section 373.042 provides that the District Governing Boards
shall determine minimum flows and levels "within each section,
or the water management district as a whole ." and leaves
to each District the ability to establish the priorities for
establishing minimum flows and levels. Also, while there is
no statutory time deadline for establishing minimum flows and
levels, at least one court has ruled that the establishment of
minimum flows and levels is mandatory and must be undertaken
in a reasonable amount of time.

However, in a state with naturally widely fluctuating rainfall
with consequent natural fluctuations in surface and ground
water flows and levels, the establishment of designated
minimum flows and levels at a point of "significant harm" is
often a scientific challenge. Some water bodies naturally
experience significant temporary drawdowns which enhance the
water resource and environmental water quality. Additionally,
some water bodies are in remote areas or are protected through
State ownership or other means, so that withdrawals which
could produce significant harm would not be possible.

At the August Committee meeting the Committee tentatively
determined that priorities should be established by each
District for establishing minimum flows and levels, and that
Districts should be held to a time schedule for such
establishment. Discussions at the September meeting were
tabled, with a request that the Districts present a
recommendation. The following recommendation presented by
staff of the Districts and the Department would require annual
consideration and listing of priority water bodies for
establishing minimum flows and levels and for establishing a
time schedule for the establishment of minimum flows and
levels.


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Recommendation:


Amend Section 373.042 to read:

Within ach aaction,-or th- wat r manag-mznt district a a
whole,

(1) In accordance with the provisions of subsection (3), the
department or the governing board shall establish the
following:

-(- (a)- Minimum flow for ael surface watercourses i the
reaE. 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.

-- f2b) Minimum water levels. 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- th department and thce governing bard 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.

(3) By November 15 of each year the governing board shall
prepare a priority list and a five year plan, with a schedule,
for establishing minimum flows and levels. The governing
board shall submit the list and plan and any changes thereto
to the department for review and comment. The priority list
shall be based on the importance of waters to the state or
region and the potential for significant harm as set forth in
subsection (1).


S4 -




J I I I .i i


I. Water Use Issues

C. Minimum Flows and Levels: Scientific Peer Review

Background:

Pursuant to S 373.042, Florida Statutes, the Districts are
required to establish minimum levels below which further
withdrawals will be significantly harmful to ground water
resources and minimum flows and levels below which surface
water withdrawals will be significantly harmful to the water
resource or ecology. The establishment of minimum flows and
levels will assist each District in regulating consumptive
uses of water, water shortage response, operation of District
works, and other District programs.

However, in a state with naturally widely fluctuating rainfall
with consequent natural fluctuations in surface and ground
water flows and levels, the establishment of designated
minimum flows and levels at a point of "significant harm" is
often a scientific challenge. The definition of "significant
harm" needed for determination of where minimum flows and
levels should be established is a combined policy and
technical issue, which varies across the state, depending on
the particular water resource and environmental situation of
each District. Section 62-40.473, Florida Administrative
Code, a portion of the State Water Policy, lists 10 factors
that are to be considered in establishing minimum flows and
levels: (i) recreation in and on the water; (ii) fish and
wildlife habitats and the passage of fish; (iii) estuarine
resources; (iv) transfer of detrital material; (iv)
maintenance of freshwater storage and supply; (v) maintenance
of freshwater storage and supply; (vi) aesthetic and scenic
attributes; (vii) filtration and absorption of nutrients and
other pollutants; (viii) sediment loads; (ix) water quality;
and (x) navigation.

The full Commission has voted to recommend that "there must be
enhanced, meaningful use of impartial peer review for new
rules, water management concepts, plans and other documents
generated by Districts." This recommendation is not intended
to be codified in statute. Each District is to select the
impartial peers, and there would be no recourse if a District
does not implement this strong recommendation.

With regard to this specific type of peer review, the
Committee has determined that the peer review is to be offered
for technical advice and not a formal, academic-type peer
review. The question remains as to whether a specific
recommendation for minimum flows and levels peer review is
desired in addition to the general recommendation from the
full Commission or whether specific reference should be made


- 5 -









to minimum flows and level in the full Commission
recommendation.


Recommendation:

Alternative 1

Add to the full Commission recommendation regarding peer
review a reference minimum flows and levels.

Alternative 2

Prior to establishment of minimum flows and levels for a
particular surface or ground water body, each District should
subject proposed minimum flows and levels to a scientific peer
review process for the technical aspects of the rules. The
peer review process should provide for technical review and
comment to the appropriate Governing Board for its
consideration in establishing the minimum flows and levels for
technical issues.

Note:

The Districts recommend that if a statutory modification is
recommended, that a requirement for peer review be
accomplished through an amendment to Chapter 120 rather than
through amendment to an individual statutory provision.


-6-









I. Water Use Issues


D. Minimum Flows and Levels: Definition of Significant Harm

Background:

Section 373.042, Florida Statutes, provides that the Districts
shall establish minimum ground water levels at the point below
which further withdrawals would be "significantly harmful" to
the water resources and establish minimum surface water flows
and levels at the point below which further withdrawals would
be "significantly harmful" to the water resources and ecology.

One of the difficulties in setting such flows and levels is
the determination of what is "significant harm." Currently,
S 62-40.473, Florida Administrative Code, the State Water
Policy provision directing the establishment of minimum flows
and levels, lists the following factors to be considered: (i)
recreation in and on the water; (ii) fish and wildlife
habitats and the passage of fish; (iii) estuarine resources;
(iv) transfer of detrital material; (iv) maintenance of
freshwater storage and supply; (v) maintenance of freshwater
storage and supply; (vi) aesthetic and scenic attributes;
(vii) filtration and absorption of nutrients and, other
pollutants; (viii) sediment loads; (ix) water quality; and (x)
navigation.

The following recommendation was considered at the September
meeting of the Committee, but was tabled with a request to the
Districts to provide advice on how to establish a methodology
for determining minimum flows and levels. District staff have
replied that no amendment to the statute is needed, and
therefore the recommendation is unneeded. They believe their
rules, State Water Policy and the Administrative Procedures
Act (Chapter 120) already address the environmental and
economic issues to be considered when establishing minimum
flows and levels. They believe the addition of scientific
peer review and prioritization of waters should adequately
address the issue of significant harm by providing for
impartial scientific review and by limiting consideration to
waters which are important to the region or the state.

Recommendation:

"For purposes of establishing minimum flows and levels,
determination of significant harm shall be based upon a
balanced consideration of (i) water quality and related
environmental protection; (ii) water supply and flood
protection; (iii) conditions necessary to protect the basic
natural functions and designated uses of the water body or
aquifer; and (iv) the rights of legal users and the general
public. This definition shall not be interpreted to mean


- 7 -










restoration of a water body or aquifer to a theoretical, pre-
development condition or to establish the primacy of any
single factor utilized in determining significant harm."


-8-









II. Flood Protection Issues


B. Prohibit Uses in Diked Areas

Background:

The District flood protection regulations contain standards
and criteria that must be met before surface water permits can
be issued. The criteria are resource-based, requiring that
the flood conveyance capabilities of streams and other water
courses not be adversely affected and that off-site properties
not be subjected to increased likelihood of flooding.
However, the standards do not address the types of land use
that may be allowed. For example, if an applicant can
demonstrate that project will not cause adverse off-site water
quantity impacts and that the project will provide adequate
on-site flood protection (e.g. houses will not be flooded
during the 100-year storm), then the issue of whether the
project is for residential or agricultural development is
irrelevant.


The Sierra Club recommends that the Districts should prohibit
pumping from diked areas for any land use other than
agriculture. They believe that no permits should be issued
for habitable structures in diked or pumped areas, or at any
low floodplain elevations. They believe this will prevent
disasters like the Mississippi River flooding of recent years,
and the flooding in Georgia and northwestern Florida last
year.

The following recommendation was considered by the Committee
at its September meeting. The recommendation was deferred for
further discussion and for suggestions by the Districts. The
Districts staffs respond that flood protection criteria are
considered in the Environmental Resource Permitting process,
and therefore do not believe that such a regulation is needed.


Recommendation:

1. Prohibit pumping from diked areas for any land use other
than agriculture.

2. Do not issue permits for habitable structures in diked or
pumped areas, or at low floodplain elevations.


-9-









II. Flood Protection Issues


A. Aquatic Plant Control

Background:

The influx of non-native aquatic plant species has caused
serious water resource-related problems throughout the state.
For example, the build-up of aquatic weeds (i) reduced
recreational value of many of the state's lakes and streams,
(ii) impaired navigation, (iii) reduced valuable fishery
habitats, (iv) adversely impacted water quality, (v)
endangered the structural integrity of state-owned bridges,
and (vi) otherwise provided environmental harm.

The Department of Environmental Protection currently
administers the state aquatic weed control program, overseeing
research on methodologies to eradicate the weeds, and
allocating state and federal monies to the Districts for
implementation of eradication programs. The Districts
currently undertake and fund aquatic weed control programs:
(i) as components of operating and maintaining District works
implemented pursuant to S373.086, Florida Statutes; (ii) as a
contracted program from the State Department of Environmental
Protection, pursuant to S369.22; and (iii) in partnership with
local governments.

Current funding for the aquatic and exotic weed control
programs are derived from the federal government, gas taxes,
CARL, District ad valorem taxes, and local government match
programs. Funding for this year is expected to be
approximately $12 million from all sources; with about $1 -
2.5 million coming from the federal government through
matching grants. The federal government has indicated an
unwillingness to work with more than one agency in a state, so
they require that all funding be coordinated by DEP.

At the current level of funding the Districts are barely able
to provide a maintenance of the status quo, but are unable to
get ahead of the serious problem which is increasing
exponentially each year.

The recommendation considered last month was deferred, with a
request to have the Department of Environmental Protection
submit a revised recommendation, which is included below.

Recommendation:

The Legislature should increase funds from the Fuel Tax
Collection Trust Fund to provide the Districts, through DEP,


- 10 -










with a substantial increase in funds necessary to more
efficiently and effectively control aquatic weeds.


- 11 -









III. Administrative Issues

A. Supervision of 298 Districts

Background:

Chapter 298, Florida Statutes, requires each 298 water control
district ("298 District") to file with the department its
board meeting minutes and plans of reclamation. The DEP
appoints supervisors to the 298 District boards when the board
of supervisors is unable to elect one (e.g. when a quorum is
not present).

Not all 298 Districts comply with the requirements to file
minutes and plans of reclamation, and the DEP states that the
minutes and plans of reclamation are not useful to DEP. The
DEP also states that it is more removed physically and
functionally from the 298 Districts than are the local
governments or WMDs.

DEP believes that the "plans of reclamation" should be renamed
to be "water management plans" and be consistent with State
Water Policy, the Florida Water Plan, and the relevant WMD
Water Management Plan.

DEP believes that the 298 Districts should be authorized to
undertake environmental activities to improve water quality.

DEP points out that 298 Districts are authorized to raise
revenue by levying special assessments and may, pursuant to
special act of the Legislature subject to referendum approval,
levy ad valorem taxes. DEP believes some of the Districts may
be appropriate for providing funding for water supply
development, environmental restoration and water quality
improvement. DEP offers the following recommendation to
improve oversight of the 298 Districts


- 12 -









Recommendation:


Modify Chapter 298 to provide:

(1) Change the requirement that 298 Districts file their
plans with the Department of Environmental Protection to
a requirement that the plans be filed with the
appropriate local general purpose government and the
appropriate water management district.

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

(3) Replace 298 District "plans of reclamation" with
"water management plans" and require that the water
management plans be consistent with the appropriate water
management district Water Management Plan.

(a) Minimum contents of the water management plans
shall be specified.

(b) The water management plans shall be reviewed
and updated at least every 5 years.

(c) Assign the responsibility for review of
consistency of the plans to the appropriate water
management district.

(4) Authorize the 298 Districts to undertake
environmental activities to improve water quality.


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III. Administrative Issues

B. Alternative Dispute Resolution

Background:

Sections 120.57 and 403.412, Florida Statutes, establish
procedures whereby substantially affected parties and citizens
of the state may request an administrative hearing on whether
a proposed District action complies with applicable law. In
accordance with S 120.57(2), Florida Statutes, a less-time-
consuming and less-expensive informal hearing may be held if
there are no disputed issues of material fact, meaning that
only questions of law are to be decided. If disputed issues
of material fact are presented, then the affected District
must hold a formal administrative hearing, presided over by a
State Administrative Hearing Officer or someone appointed by
the Governing Board. These formal administrative hearings are
costly to the petitioners, the permit applicants, and the
Districts. The Districts divert valuable staff time and
resources from other efforts to defend agency actions.

Occasionally the issues over which administrative hearing
matters develop are issues which could be resolved through
some alternative dispute resolution (ADR) process. ADR is
being used extensively in court proceedings, and is serving to
offer litigants a less expensive method to try to achieve
mutually- agreeable settlements short of litigation. ADR can
be utilized without removing the possibility of proceeding to
an administrative hearing if a mutually-agreeable settlement
is not achieved.


The Division of Administrative Hearings offers the services of
Hearing Officers to serve as mediators in ADR for
administrative matters pending before the Division. The
current procedures provide for parties to an administrative
action to request a mediation, whereby a Hearing Officer who
is not familiar with the case meets with the parties to
discuss possible grounds for settlement and to assist in
settling .the case if possible. If the mediation does not
succeed, then the parties proceed to administrative hearing.

It has been suggested that an ADR procedure be developed to
provide for a relatively short period of time in which ADR can
be tried prior to filing a petition for administrative hearing
with the Division. Such a suggestion was considered at the
September meeting, with a decision to defer a decision until
amendments could be made to the recommendation. An amended
recommendation (Alternative 1) which specifies an mediation
process which would precede the administrative hearing process
is presented. As an alternative, attorneys from the three





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largest districts have submitted another recommendation for
consideration (Alternative 2).

Attorneys from one of the Districts have raised the point that
a comprehensive dispute resolution scheme was created by the
1995 legislature. The Florida Environmental and Land Use
Dispute Resolution Act of 1995 (FLEDRA) has been implemented.
the attorneys point out that if another dispute resolution
process were to be mandated, they would be subject to "three
bites of the apple" whereby applicants would have three
processes in which to raise disputes (FLEDRA, 120 hearings,
and mediation suggested below). Therefore, they would
recommend that if the mediation suggested below is accepted,
that it be recommended to replace FLEDRA.


Recommendation:
Alternative 1


If there is a disagreement after the issuance of the staff
report, consent order or agency action:

(a) The applicant, third party or agency may request
mediation. The applicant must concur if mediation is
requested by a third party or the agency.

(b) The request for mediation, or agreement by the
application would toll the time for filing a Chapter 120
petition by participants and would extend the 90 day
clock for agency action.

(c) Unless agreed otherwise by the applicant, final action
must be taken on the application within 60 days, or by
the second governing board meeting following the request
for mediation.

(d) During the 60 day period, mediation would occur.
Mediation is voluntary.

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

(f) The applicant may request other interested persons to
participate without cost.

(g) In the event a mediated settlement is reached, the staff
report or other document will be revised and submitted to
the agency head.


, I W .;,





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Note: Once a Chapter 120 Petition for Administrative Hearing
has been filed, the DOAH hearing officer should have the
authority to order mediation, much like the authority provided
to triers of fact in circuit court.

Alternative 2

If, after the agency implementing permitting programs under
Chapter 373, Florida Statutes, issues its notice of intended
agency action on an application for such a permit, the
applicant disagrees with recommendation of the agency staff on
whether to approve or deny the application, or on any
condition placed on a recommendation to approve the
application, the applicant may request that the disagreement
be submitted to a qualified mediator for mediation. A request
for mediation must be made within 14 days of receipt by-the
applicant of the agency's notice of intended action on the
application. During the pendency of the mediation process,
the time limitations for agency action provided by Section
120.60, Florida Statutes, are tolled for the agency. The
applicant has the option to take the dispute on the
application out of the mediation process at any time by filing
a petition for administrative hearing, or by filing a written
notice that the applicant desires that mediation be terminated
and the application submitted to the agency head for final
action on the notice of intended agency action. Any
applicable time frames provided by Section 120.60, Florida
Statutes, would recommence upon the applicant filing a notice
of termination of mediation.









III. Administrative Issues


C. Rule Making: Least Cost Alternative

Background:

Currently, the Districts rulemaking authority is contained in
SS373.113 and 373.171, which state:

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. S373.113.

(1) In order to obtain the most beneficial use of the
water resources of the state and to protect the public
health, safety, and welfare and the interests of the
water users affected, governing boards, by action not
inconsistent with the other provisions of this law and
without impairing property rights, may:

(a) Establish rules, regulations, or orders
affecting the use of water .

(b) Regulate the use of water within the affected
area by apportioning, limiting, or rotating uses of
water or by preventing those uses which the
governing board finds have ceased to be reasonable
or beneficial.

(c) Make other rules, regulations, and orders
necessary for the preservation of the interests of
the public and of affected water users.

(2) In promulgating rules and regulations and issuing
orders under this law, the governing board shall act with
a view to full protection of the existing rights to water
in this state insofar as is consistent with the purpose
of the law.

(3) No rule, regulation or order shall require any
modification of existing use or disposition of water in
the district unless it is shown that the use or
disposition proposed to be modified is detrimental to
other water users or to the water resources of the state.
S373.171.


Terry Lewis and Steve Walker recommend that substantive rules
should represent the least cost to the regulated community.


- 17 -









The Florida Fruit and Vegetable Association and Commissioner
Crawford offered similar suggestions (see Alternative 2).
The following recommendations (Alternative 1) were deferred at
the September Committee meeting for further consideration. An
alternative recommendation was offered by Richard Grosso
(Alternative 3). For further information, a copy of relevant
portions of SB 536 from the 1995 session is attached. That
bill was adopted by both houses but vetoed by the Governor.


Recommendation:

Alternative 1

Amend S 373.113 to add:

(3) Each adopted substantive rule shall rePresent the
least cost to the regulated community.

Amend S 373.171 to add:

(5) Each adopted substantive rule shall represent the
least cost to the regulated community.

Alternative 2

Florida Fruit & Vegetable Association offers the following
similar amendment to S373.113:

In administering the provision 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
provision of chapter 120. All rules and programs based
on using or incorDoratina scientific analysis, method or
conclusions shall undergo the scientific peer review
process prior to DUblication of the proposed rules. All
rules or policies adopted shall be the least cost
alternative while accomplishina the aoals of the statute
being implemented.

Commissioner Crawford agrees with such a concept.


- 18 -










Alternative 3

Amend S373.171 to add:

(5) Each adopted substantive rule shall consider the cost to
the regulated community and the economic benefit to the public
at large.


- 19 -










SB 536, Section 6


Section 120.54, Florida Statutes, is amended to read:

120.54 Rulemaking, adoption procedure.--

(1).) -(4 Prior to the adoption, amendment, or repeal of any
rule not described in subsection (9), an agency, upon approval of
the agency head. shall give notice of its intended action, setting
forth a short and plain explanation of the purpose and effect of
the proposed rule, and the specific legal authority under which its
adoption is authorized, the full text of the proposed rule or
amendment. and a summary thereof. The notice must include a
summary of the aaencv's statement of the estimated reaulatorv
costs, based on the factors set forth in paraaraph (2) (c and a
statement that any person who wishes to provide the agency with
information .reaardina the statement of estimated reaulatory costs.
or to provide any proposal for a lower cost regulatory alternative
as provided in paraoraph (12)(b). must do so in writing within 21
days of the notice ..

(2) (a) Each agency. before the adoption. amendment. or repeal
of a rule. must consider the impact of the rule on small businesses
. and the impact of the rule on small counties or small cities
S. Whenever practicable. an agency must tier its rules to
reduce disproportionate impacts on small businesses and small
counties or small cities to avoid regulatina small businesses.
small counties, or small cities that do not contribute
significantly to the problem the rule is designed to address...

(c) All statements of estimated regulatory costs The- ooeee ei
impact stateomnt must include:

1. A good-faith estimate of the number of individuals and
entities likely to be required to comply with the rule, together
with a general description of what types of individuals the rule is
likely to affect:
2.4- A good-faith An estimate of the cost to the agency, and
to any other state or local government entities, of implementing
and enforcing the proposed rule action, including the e-timated
amount of paperwork, and any anticipated effect on state or local
revenues;

3,.- A good-faith estimate of the transactional costs likely
to be incurred by individuals and entities. including local
governments, required to comply with the requirements of the rule
a. n eotimate of the ooot or the coonmio benef it to all
pcrocno dire-tly affected by the propoocd action.


- 20 -









4. An analysis of the impact on small businesses. .and an
analysis of the impact on small counties and small cities. .

5. Any additional information that the aaencv determines may
be useful in informing the public of the costs or benefits of
comDlvinc with the proposed rule.. .; and

6.- A aood-faith description of any reasonable alternative
methods, including any proposals submitted under paraarah (12) (b)
where- ppliable, for achieving the purposed rule which were
considered by the agency, and a statement for the reasons for
rejecting those alternatives in favor of the proposed rule. .

(d) If Preparation of a statement of estimated reaslatorv
costs is required failure to provide a statement of estimated
regulatory costs that comllies with paraaraph (c) is a material
error and rounds for holding a rule invalid: however, no rule
shall be declared invalid based on a challenge to the agency's
statement of estimated reaulatorv costs co------ impact -ta ent
for the rule unless

1. This the issue is raised in an administrative proceeding
within 1 year of the effective date of the rule to which the
statement applies: T

2. The Person challenaina the statement of estimated
reaulatorv costs has N" person s.all have ta-- in- to -ha l...g. an

"imac.t t Ment ... -ndr-P -- (2) (b) 2, and provided the
agency with information sufficient to make the agency aware of
specific concerns regarding the estimated regulatory costs .

(12) (b) In adopting rules, all agencies must, among the
alternative approaches to any regulatory objective and, to the
extent allowed by law, choose the alternative that imposes the
lowest ae" cost on the regulated person, county. or municipality to
.eeeey based upon the factors listed in paragraph (2) (c), or
provide a statement of the reasons for rejecting that alternative
in favor of the proposed rule. If .an affected person provides an
aaencv with a written proposal for a lower cost regulatory
alternative to a proposed rule. including an alternative of not
adoDtina any rule. which substantially acco'mlishes the statutory
ob ectives, the aaencv must either adopt the alternative apDroach
or provide a written explanation of its reasons for reiectina the
alternative. An agency required to provide a written explanation
must prepare the explanation and make it available to the Person
who filed a written proposal and to the public prior to filing the
rule for adoption. This paragraph ohall not pr vide a ba-iO for
challenging a rule.


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SB 536, Section 9

Subsection (1) and paragraph (a) of subsection (2) of section
120.545, Florida Statutes, are amended and subsection (9) is
added to said section, to read:

120.545 Committee review of agency rules.--

(1) As a legislative check on legislatively created
authority, the [Joint Administrative Procedures] committee shall
examine each proposed rule for the purpose of determining
whether. .

(k) The rule imposes the lowest cost on those regulated while
still substantially accomplishina statutory objectives. refleste
the approach to the rveglatery odbjecttive involving the loc"t notV
soot to oooi*t' to the degree sonsiotent with the provisione of -ae
hiohA03 *;3% rul ial3cb3


- 22 -


fe









III. Administrative Issues


D. Rulemaking: Presumption of Correctness

Background:

Currently District rules are subject to challenge by
substantially affected persons, based upon an assertion that
the rule is an invalid exercise of legislatively delegated
authority. The challenger to the rule has the burden of
demonstrating that the rule is an invalid exercise. The
decision as to whether a rule is invalid is left to a Division
of Administrative Hearings hearing officer. In making his
decision, the hearing officer will consider the agency's
interpretation of the implemented statute to be valid unless
the interpretation is not within the range of valid
interpretations.

The Florida Agricultural Coalition recommends that the
presumption of correctness in favor of the Districts should be
removed. The recommendation was discussed at the September
Committee, with a request by the Committee to draft a
recommendation which puts the District and the rule challenger
on a "level playing field." The following recommendation
deals with this subject, and was contained in SB 536 (Section
12), which was adopted by the 1995 Legislature, but vetoed by
the Governor.

Recommendation:

S120.56 Administrative determination of rule by hearing
officer.--

(6) When any substantially affected person seeks
determination of the invalidity of a rule pursuant to this
section, the rule is not presumed to be valid or invalid.


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I









III. Administrative Issues

E. Co-Location of Permitting Offices

Background:

Florida Fruit & Vegetable Association states that many
Districts' permits require concurrent review with DEP and
other state or federal agencies. The Association recommends
that DEP and District offices should be co-located to the
maximum extent practicable and that team permitting should be
required when both agencies require applications for a
facility or activity. They add that in the future, any
concurrent permitting should be reviewed by the Legislature,
who should designate a responsible agency to eliminate
overlap.

The Association's recommendation (Alternative 1) was
considered during the September Committee meeting. A decision
was deferred until more information could be obtained from the
Association and from the Districts.

The Department of Environmental Protection responds as
follows:

Historically, there was significant overlap between
the Management and Storage of Surface Waters (MSSW)
permitting program administered by the Districts
and the Wetland Resource (Dredge and Fill)
permitting program administered by the Department.
However, significant progress has been made in
eliminating the duplication of effort.

Applications for the newly enacted Environmental
Resource Permit (ERP) program, as well as for
projects qualifying for MSSW and Dredge and Fill
grandfatheringg," are now handled by a single
agency. Through an Operating Agreement, the DEP
and Districts have established an "activity-based"
split of permitting responsibilities. Depending on
the type of activity for which a permit is sought,
either the District or the DEP will be responsible
for processing the application. The Legislature,
through the 1993 streamlining legislation ratified
the division of permitting responsibilities between
the agencies.

Although the Operating Agreement addresses only
ERP, MSSW and Dredge and Fill applications, the
activity-based split was established in part based
on the understanding that certain types of projects
need other types of regulatory authorization from


- 24 -









DEP (e.g. industrial discharge permits, hazardous
waste permits, etc.). Since projects such as
landfills, wastewater treatment facilities, power
plants, etc. may need several other permits from
DEP, the Operating Agreement assigns the
responsibility for any other needed ERP, MSSW or
Dredge and Fill permits for these types of projects
to DEP. This type of activity-based split helps to
reduce the number of agencies involved in the
review of a project and should help facilitate the
team review of the overall project.

The Department adds that as part of the 1995 appropriations
bill the Department was required to report to the Legislature
the feasibility Department regulatory boundaries with the
Districts. That report is being prepared at this time.

Therefore, the Department recommends that no further action be
taken on this issue, and offers Alternative 2.

Proposed Recommendation:

Alternative 1

DEP and District offices should be co-located to the maximum
extent practicable. Team permitting should be required when
both agencies require applications for a facility or activity.
In the future, any concurrent permitting should be reviewed by
the Legislature, who should designate a responsible agency to
eliminate overlap.

Alternative 2

The Districts should continue efforts to streamline the
permitting process by participating in the ongoing ecosystem
management pilot projects and seeking opportunities to
facilitate team permitting (coordinated, concurrent review) of
projects needing multiple regulatory authorization.


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IV. Water Quality Issues


A. Water Quality Standard Setting

Background:

Currently, the Environmental Regulation Commission (ERC) is
the state standard-setting body for establishing water quality
standards. In some instances the ERC establishes "numeric"
standards which prohibit discharge of a substance in certain
concentrations (e.g. 0.05 parts per million), other standards
are established as "narrative" standards which state that
discharges to state waters will not cause certain harms (e.g.
that a discharge not contain a substance in concentrations
which would be mutagenic). The Districts and the DEP have
adopted regulations which establish rebuttable presumptions
that water quality standards will be met through the
implementation of certain design criteria or Best Management
Practices (BMPs).

However, in some instances the design criteria and numeric
standards are not applicable and, because the Districts
implement works and regulatory programs which necessitate
compliance with water quality standards, they are often
required to interpret the specific meaning of the narrative
standards. In those instances the Districts must conduct the
scientific analyses required to determine the site-specific
numeric standards to be applied. One court has upheld one
District's ability to set such standards on a case-by-case
basis, but held that a District may not set such standards for
a particular drainage basin.

Possible recommendations regarding water quality standard
setting have been considered at the August and September
meetings of the Committee. There are at least four options
available for setting numeric water quality standards to add
specificity to narrative standards set by the ERC (see
attached options list). At the September meeting, the
Committee requested that the Districts prepare a
recommendation, which follows.

Recommendation:

The Environmental Regulation Commission (ERC) will continue to
have the authority to establish statewide water quality
standards. Where the ERC has established a narrative (non-
numeric) standard for a particular constituent, the Districts,
in exercising their regulatory authority, may interpret and
implement the narrative standard for a basin, watercourse or
waterbody by establishing a numeric equivalent of the
narrative standard for that basin, watercourse or water
bodies.


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Various Options Available Related to the Relationship between
Districts and DEP with Regard to Water Quality Standard Setting

Note: These options relate only to establishment of numeric
standards which interpret narrative standards already set by
the ERC. Where the ERC has established numeric standards,
those will prevail. The question is how narrative standards
are to be interpreted. Currently the DEP and WMDs interpret
the narrative standards on a permit-by-permit basis, with no
opportunity for either the DEP or the WMD to adopt prospective
interpretive numeric standards for a particular hydrologic
unit.


ERC establishes statewide narrative standards, with the
Districts and the DEP staff interpreting what those standards
mean on a Dermit-bv-.ermit basis. (status auo option)

Advantages: Responsibility is vested in one agency.

Disadvantages: No advance notice of the numeric standards
to be applied to a particular permit.

DEP and each of the Districts may
interpret the narrative standard differently,
leading to inconsistent results.

2. ERC establishes statewide narrative standards. and the
ERC establishes numeric basin standards as the information is
developed by DEP: in the interim, the narrative standards are
applied on a Dermit-bv-permit basis as is now the case.

Advantages: Vests oversight in one agency.

Allows for ERC to determine if basin-wide
interpretation of the narrative standard is appropriate.

Provides permit applicants with
prospective water quality standards.
Provides for consistency among basin
determinations, since all determinations by the DEP and
Districts will be held to that standard.

Disadvantages: Does not provide for experience of WMDs in
the process.
Significant delays in establishing basin-
wide numeric standards.

3_ ERC establishes statewide narrative standards, and the
Districts adopt by rule basin interDretative numeric standards


- 28 -


--Mno









as the information is develoDed: in the interim, the narrative
standards are aPplied on a Dermit-bv-Dermit basis.

Advantages: Continues ERC statewide standard-setting.

Allows for ERC to determine if basin-wide
interpretation of the narrative standard is
appropriate.
Provides for basin-wide evaluations more
quickly.

Provides for District input on regional
issues and data.

Provides permit applicants with
prospective water quality standards.


Disadvantages: No direct ERC review of numeric standards;
review of District rules is by DEP staff.

DEP permit decisions would not be bound by
District rules, hence there could be an inconsistency in
interpretation of the narrative standard (i.e. DEP staff
and District rule).

4. ERC establishes statewide narrative standards. the
Districts adopt by rule basin interpretative numeric standards
as the information is develoDed. and the ERC ratifies the
basin numeric standards before the rule becomes effective.

Advantages: Allows for ERC to determine if basin-wide
interpretation of the narrative standard is appropriate.

Provides for basin-wide evaluations more
quickly.

Provides for District input on regional
issues and data.

Provides permit applicants with
prospective water quality standards.

Direct ERC review of numeric standards.

ERC could establish that the District-
established numeric standard would bind DEP staff
decisions for permits issued by that agency, leading to
consistency of interpretation of the narrative standard.


- 29 -










Disadvantages: Time consuming.


Potential for DEP to direct Districts to
undertake another unfunded mandate, i.e. establishing
basin-wide numeric water quality standards.


- 30 -









Additional Recommendations


The following additional recommendations were submitted by
Wade Hopping, and Chairman Lewis has asked that the
Responsibilities Committee consider them. Mr. Hopping offers that
the prime directive for the water supply should be that the Florida
Legislature should create a state regulatory and water supply
program designed to assure there is more than an adequate supply of
water for all users. The fact that Florida receives an annual
rainfall of 50 to 55 inches should make achievement of the prime
directive feasible if we wisely use our surface and groundwater
resources.

Recommendations:

1. Direct water management district boards to develop
adequate sources of long term water supplies for all users.
Restrict boards to the wholesale allocation and/or delivery of
water. The Legislature should ensure appropriate funding
mechanisms are available to the water management districts to
carry out their water supply responsibilities.

Note: The Districts are currently authorized by statute to
act as wholesale suppliers of water, and are not allowed to
serve as retailers of water.

2. Over time, streamline the regulatory process by
consolidating Environmental Resource Permitting within DEP and
removing all regulatory from water management districts except
Part II (consumptive use) and Part IV (works of district)
permits.

3. Until recommendation #2 is implemented, relieve water
management district governing boards of the responsibility for
issuing Environmental Resource Permits by authorizing water
management district executive directors to issue all permits
under delegated authority of DEP except consumptive use
permits under Part II of 373 and Works of the District permits
under Part IV. During the interim period maintain the
activity based permitting split between DEP and water
management districts.

Note: The Committee has voted to recommend that staff be
authorized to issue all permits, except for those permits for
which someone has requested in writing that the permit be
heard by the governing board.

4. Transfer rule adoption responsibilities, except those
under Part II of 373 (consumptive use) and Works of the
District under Part IV, from water management district
governing boards to a reconstituted and more balanced


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I I









Environmental Regulation Commission. Transfer corresponding
permit appeal responsibilities to the Secretary of DEP.

5. Establish a legal mechanism for a water management
district to process and issue the consumptive use permit for
a water supply development project of the district pursuant to
district rules with final issuance of permit subject to
approval by the Secretary of DEP.

6. The water management districts should develop a
legislatively approved package of economic and regulatory
incentives designed to reduce reliance on groundwater as the
principal water source. These incentives should include
efforts to promote conservation, water reuse, desalination,
and utilization of surface waters, particularly flood waters
and other high water sources.

7. Over time, ensure that the management plans for state
lands (other than submerged lands), state parks, state forests
make these lands available for multiple uses including water
supply.

8. How to address state and regional water planning should
be revisited by the 1996 Legislature. In particular the
proposed "Florida Water Plan" and any state water policy
should not been adopted or implemented until the legislators
have acted on the report and recommendations of the Water
Management District Review Commission and any legislative
proposals of the appropriate House and Senate committees.

Note: The full Commission has voted to recommend that the
Florida Water Plan and the State Water Policy must be adopted
by the Legislature.


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I I


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