Water Management Institute, Inc.
The Water Management District Review Commission
As presented on February 17, 1995
in Hollywood, Florida
The following recommendations are listed by category consistent with the Commission's
legislatively directed review duties.
A. Legal Responsibilities Assigned To Districts.
1. Propose revising the prefatory language in Section 373.042 relating to the
water management districts establishing minimum flows and levels to clearly state
that such authority is permissive and not mandatory.
Amend the language in the introductory paragraph of Section 373.042, Florida Statutes,
from the existing language of "...the governing board shall establish..." to "...the
governing board may establish...". While water management districts should have the
authority to set minimum flows and levels, it should be left to the discretion of the
districts to do so when deemed appropriate rather than requiring it in every instance.
2. Evaluate the time requirements imposed on districts by Section 120.60,
Florida Statutes, in Florida's Administrative Procedure Act for the purpose of
proposing changes to more effectively require the districts to quickly process
The Administrative Procedure Act in Section 120.60, in an attempt to require agencies
to promptly process applications, mandates that an agency notify an applicant within
thirty (30) days after receipt of an application of any apparent errors or omissions and
request any additional information the agency is permitted to require. When the districts
have a backlog of applications, it appears that the reviewers have a tendency to send
"thirty day letters" requesting additional information simply to toll the ninety (90) day
time clock imposed on agencies to approve or deny an application. It is not uncommon
for these "thirty day letters" to be followed by additional "thirty day letters" further
tolling the ninety (90) day clock.
3. Review the additional permitting criteria which have been imposed upon the
water management districts by passage of wetlands and endangered species
protection provisions and subsequent transfer to Chapter 373 and delete the
portions which are not directly related to water management or transfer such
provisions to other, more appropriate agencies. Delete Subparagraph
373.414(2)(b) since Subparagraph 373.414(lX(a)2. addresses the same subject.
Make it abundantly clear that the governing board should consider and balance the
prescribed criteria, as stated in the introductory portion of Paragraph
The additional permitting criteria imposed on water management districts by the wetlands
and endangered species protection provisions should be kept in proper perspective if the
governing boards are to carry out declared policy as set forth in Subsections 373.016(1)
and (2). Compare the Declaration of policy set forth in Subsections 373.016(1) and (2),
the language in Subsection 373.118(1), and the provisions in Subsection 373.413(1) with
the additional criteria prescribed in Subsections 373.414()(a) and (2)a) and (b). See
texts below. Emphasis added.
373.016 Declaration of policy.-
(1) The waters in the state are anong its basic resources. Suoh water 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 Leislature:
(a) To provide for the management of water and relate l ead rom
(b o promote the camservatioa, development, and proper utilization of surface and ground
(c) o develop and ruate da, impoundment, reservoirs, and other works and to provide
water storage for beneficial purposes,
(d) To prevent damage from floods, soil erosion, and excessive drinager
(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 ..403.0211
(h) To promote recreational development, protect public lands, and assist in maintaining the
navigability of rivers and harbors; and
(1) Otherwise to promote the health, safety, and general welfare of the people of this state.
373.118 General permits.-
(1) The governing board may adopt rules establishing a general permit system under this
chapter for project, or categories of projects, which have, either singly or oumulatively,
a minimum adverse impact on the water resources of the district. Such rules shall specify
desig or performance criteria which, it applied, would result in compliance with the
conditions for isuance of permits established in this chapter and district rules.
373.413 Permits for contruction or alteration.-
(1) xapt for the exception st forth herein, the governing board or the department may
require such permits and ilpos suh reasonable conditions a are necessary to asure that the
construction or alteration of any water management system, dam, impoundment, reservoir,
appurtenant work, or works will comply with the provisions of this part and applicable rules
promulgated thereto and will not be haraful to the water resources of the district. The
department or governing board may delineate areas within the district wherein permits may be
373.414 Additional criteria for activities in surface waters and wetlands.-
(1) As part of an applicant's demonstration that an activity regulated under this part will
not be beahlt to the wter resournes or will not be iacesittnt with th overall obeotives
of the district, the governing board or the department shall require the applicant to provide
reemoable am uasn tlw set water quality stmae applicable to wtrs as defied in a.
403.031(3) will net be violated and resonable amuraon that b activity I, n, o, or over
surface waters oM watl1an1, as delineated iAn 373.421(1), I*s aot Oemtary to the public
interest. However, if sagb an activity *igtoantly e or Is within an Outstanding
Florida water, provided by derprtmat rule, the appfl t provide reasonable sM1uraime
that the propoed activity will be clearly i the public interest.
(a) In determintg whether a activity, which is in, on, or over surface waters or wetlands,
as delineated in 5. 373.421(1), and is regulated under this part, is not contrary to the public
interest or Is clearly In the public interest, the governing board or the department hall
aoo-Ad- I]d the following criuterla
1. hMetn; l tW M vity will adversely affect the public health, sfety, yor welfare or the
property of others,
2. whether the activity will adversely affect the ooammrvation of fish and wildlife, including
endane.ed or thweamed species, or their habitats
3. wether the activity will adversely affect navigation or the flow of or cause hartul
erolson or sboalmgh
4. whether the tivity will adversely affect the fishing or recreational values or marine
prodletivity in the vicinity of the activity
5. Whether the activity will he of a te-porary or paraament nature,
a. Whether the activity will adversely affect or will enhance significant historical and
archaeological reeuma under the provision of s. 267.061; AND
7. The current condition and relative value of funmticas being performed by areas affreted
by the proposed activity.
(2) The governing board or the department is authorized to establish by rule specific
permitting criteria In addition to the other criteria la this part which provides
(a) One or more size thresolds of isolated wetlands below which ipacts on fish and wildlife
and their habitats will not be considered. These thaeshelds shall be be based on biological and
hydrological evidence that shown the fish and wildlife values of such areas to be animal.
(b) Criteria eor the prLtecon of threatened and endangered species n Isolated wetland
reardlsm of siz* and la ume.
B. Need for Districts and a System of Department of Environmental Protection District Offices.
4. Require the districts to standardize their procedural rules for the processing
of permit and license applications and administrative proceedings.
The procedural rules for processing permit and license applications and administrative
proceedings differ from district to district. This makes it unnecessarily complicated and
expensive for citizens and consultants to deal with different districts. There is no reason
why the vast majority of these procedural rules could not and should not be identical for
each district. Provision could be made for that rare circumstance when a particular
district has an unique procedural issue not common to the other districts to allow a
distinct procedural rule to deal with that issue.
B. Need for Districts and a System of Department of Environmental Protection
5. Revise Section 373.026, which sets forth the general powers and duties of
the Department of Envial Protection relating to the water management
districts, to eliminate duplication between DEP and the WMDs and
to more accurately reflect actual dties and responsibities. Clearly state that
duties of DP ae permissive Valess funded.
Many of the powers and duties relating to water management have been delegated to the
water management districts. Powers and duties which have been so delegated should be
clearly stated in the statutes. Other duties which are prescribed as mandatory for the
department and which have never been funded should either be properly funded or made
6. Revise the introductory paragraph of Section 373.103 to positively state that
the respective water management district governing boards have all the powers that
are specifically emmerated in the section and which have heretofore been
delegated to them. Delete the last sentence in Section 373.026(7) to eliminate dual
authority of DEP and the water m agemeat districts.
The powers enumerated in Section 373.103 which may be vested in the respective
governing boards have already been so vested by delegation. Much of this was done by
the governor and cabinet sitting as head of the Department of Natural Resources prior to
the formation of DER (DEP's predecessor). The statutes should reflect this clearly rather
than to imply that this delegation is done at DEP's discretion. Section 373.026(7) should
be amended to eliminate dual authority of DEP and the water management districts by
deleting the last sentence that authorizes DEP to exercise "any power herein authorized
to be exercised by a water management district."
i JAL-, -, A --
C. Planning and Management of District-Owned Lands.
7. Commend the water neent districts for the methods and practices that
have been developed for land acquisition and recommend that state agencies be
encouraged to adopt similar methods and practices rather than having the water
management districts provide d acquisition services to state agencies.
8. Encourage the water management districts to consider acquiring less-than-
fee interests in land when flowage easements, conservation easements and
development rights and similar property rights will suffice, rather than taking fee
9. Direct water management districts to develop programs which will expedite
use of mitigation banks for wetlands, including designaion, where appropriate, of
existing district water resource projects (such as Save-Our-Rivers and Surface
Water Improvement and Managemet (SWIM) programs and projects) as mitigation
D. Cost of Operating the Districts.
No recommendations at this time.
E. Fundin Mechanisms Available to Districts.
16. Propose a Costitutional amendment to Section 9 of Article VII to equalize
the ad valorem tax millage that may be levied throughout the state for water
Propose an amendment to Section 9 of Article VII of the Florida Constitution that will
equalize the maximum ad valorem tax village that may be levied for water management
purposes in the northwest portion of the state with the maximum tax that may be levied
in the remainder of the state. At present no more that .05 mill may be levied in the
northwest portion of te state. The proposed change should increase the ad valorem tax
village that may be levied in northwest Florida for water management purposes from .05
mill to 1 mill, the limitation that applies to the remainder of the state. The legislature
still must authorize the maximum ad valorem tax that may be levied by each district
within the constitutional limitation.
F. Ways to Improve Accountability.
11. Encourage greater utilization of impartial peer review by water management
Water management districts are often pressured to adopt new regulations or to launch new
environmental projects before adequate scientific research and evaluation can be
completed. Some districts are experiencing a shortage of competent, mature, senior
scientists to conduct adequate research and to complete necessary evaluation. There may
be bright, academically educated young staffers, but quite often they lack hands-on
experience and maturity. To offset this shortage or inadequacy, water management
boards and staffs should be encouraged to make greater use of a peer review process.
This will encourage "outside" cooperation and acceptance of District projects and
12. Encourage greater use of advisory committees, reporting directly to the
respective governing boards.
Advisory committees have served governing boards quite well in the past when utilized.
Governing boards should be encouraged to make greater use of such committees, and
advisory boards are more effective when they report directly to the respective governing
boards rather than to report through district staff members.
G. Alternatives to District Management of District Lands.
13. Restrict lad acquisition activities by water management districts to lands
necessary for flood control, water storage, water m agement, preservation of
wetlands, streams and lakes, and for the purpose of reducing water iato, or
drawing water frm, the uWderlying aquifer for storage or supply, as authorized
in Section 373.139(2) and (4).
Districts are being overloaded with this responsibility and should be given clear direction
that they should limit land acquisition and land ma en activities to property which
is specifically needed for water management purposes.
H. Need for Revision of Budget Development and Adoption Procedures.
14. Review and revise the TRIM provisions of Chapter 200 to provide for a
better informed public by authorizing inclusion of explanatory examples in TRIM
notices and advertisements.
As worthy as intentions may be, the TRIM provisions of Chapter 200 fall short of
providing for a well-informed public and for more meaningful public participation in the
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budgeting and taxing process. Allowing the inclusion of explanatory examples in TRIM
notices and advertisements will help toward better informing the public of proposed
I. Board Appointments.
15. Keep "appointive" governing board members rather than changing to
Water management in Florida requires a careful balance in managing different water
resources. Appointive Board Members can concentrate on managing these water
resources without being unduly swayed by constituent pressure; they can devote more
time to resource management and less to political careers; and the backgrounds of those
being chosen can be more carefully weighed to achieve a balance of views on the board.
A relatively large board of lay citizens, appointed by the governor, with its broad
spectrum of divergent interests, helps to ensure that the board members' opinions will,
in the end, lead to wise decisions and to a just consensus on where the public interest lies
in any given case. The Water Management Institute has previously distributed a paper
on this subject entitled: Florida Water Management District Governing Board
Membership: Appointive versus Elective, copy attached.
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16. Propose changing the terms of governing board members by amending
Sections 373.073 and 373.0735, Florida Statutes, so that the terms are staggered
\, in one year increments and that each board will have several members appointed
each year. This will provide greater continuity.
Presently, board members for all five districts are appointed for four-year terms.
Four of the districts have nine members each and Southwest Florida Water Management
District has eleven (11) members. In four of the districts (all except SWFWMD), five
members (a majority) are appointed for four-year terms commencing on March 2 of the
year in which the governor's term commences (1995). The remaining four members of
each of these four districts are appointed two years later on March 2 (1997). Section
373.073(1)(b)(5) provides that SWFWMD shall have eleven board members, but Section
373.075, which pertains only to SWFWMD, provides that the board members shall be
appointed for staggered four-year terms, expiring on June 30 of the respective years.
J. Legislative Oversight.
No recommendation at this time.
17. Urge greater use of "best management practices" in the permit process but
develop procedural rules and practices that will ensure that dae process is utilized
when developing, adopting, applying, and amending "best management practices".
Use of "best management practices" in permit decisions and in lieu of specific permit
criteria has been quite successful when applied to forestry practices. These BMP's were
developed and sponsored by the industry itself. However, other agricultural activities
may not be as well organized and standards of due process should be established for
developing, adopting, applying, and amending such standards so that, once adopted, they
truly represent the most current and best magement practice, and that they do not
hamper efforts to develop even better management practices.
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Water Management Review Commission Items to be discussed later
Please note: The following numbered paragraphs are from the earlier list distributed
in Vail at the 1995 seminar. These proposals will be held for further
consideration another day:
3. Allow governing boards to have discretion as to whether to hold a hearing on
an application for a consumptive use permit before the board or to refer it to a hearing
Repeal subparagraph 120.57(1)(b)14, Florida Statutes, which currently provides that
the water management district shall refer the matter to a hearing officer at the request
of the applicant.
8. Encourage greater use of the basin system. See Sections 373.0693-373.0698,
Florida Statutes. Consider authorizing district governing boards to delegate its
regulatory authority to basin boards so that regulatory decisions may be made on a
lower level of government, closer to the people.
Amend Section 373.103(8), Florida Statutes, to authorize delegation also to Basin
17. Add a provision to the Sunshine Law (Section 286.011, Florida Statutes) to
make it clear that individual governing members are not prohibited from speaking to
each other about water management district matters, provided, of course, that all
meetings shall be open to the public.
Board members have difficulty keeping informed and should be allowed to talk freely
to each other. This recommendation should not be construed as an effort to weaken
the Sunshine Law. Rather it is intended to enable individual members of collegial
boards to be better informed.
Note: It was agreed that WMI needs to prepare a white paper on this
6. Specifically prohibit the water management districts from making direct money
grants of funds raised through imposition of ad valorem tax levies.
Several districts are using proceeds from ad valorem taxation to make direct money
grants to local governments for various purposes. In spite of good intent, this practice
causes friction and resentment on the part of recipients and unsuccessful applicants for
10. Change the audit system to make it easier for governing boards to secure more
meaningful and timely audits.
See Section 373.079(4)(b)1 about hiring internal auditor. Make it clear that districts
should retain their own independent auditors so that timely, meaningful auditing can