Title: Recommendations to WMD Review Commission
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Title: Recommendations to WMD Review Commission
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Recommendations to WMD Review Commission, Feb 9, 1995
General Note: Box 9, Folder 14 ( SF-WMD REview Commission - 1995-1996 ), Item 34
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00001937
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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Water Management Institute, Inc.
Recommendations To
The Water Management District Review Commission

February 9, 1995

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.

Change the language in the introductory paragraph of Section 373.042 from "the
governing board shall establish" to "the governing board may establish. ." Water
management districts need the authority to be able to set these levels only where
appropriate and therefore should clearly be permissive rather than mandatory.


2. Study the Administrative Procedure Act (Chapter 120) and propose changes
specifically for permit procedures before large, collegial boards which meet
monthly such as the water management district boards.

The mandatory time limits of the Administrative Procedures Act, rather than hastening
the permitting process, tend to prolong them. Initial review for completeness of the
applications should be completed within a week. Where there is a backlog, it often
appears that reviewers, in order to toll the time clock, have a tendency to send "thirty day
letters" requesting additional information. Often these are followed by second and third
"thirty day letters" sometimes asking for information in later letters that had not
previously been requested, giving two and three extra "bites-of-the-apple."


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(l)a)2. addresses the same subject.
Make it abundantly clear that the governing board should consider ad balance the
prescribed criteria, as stated in the introductory portion of Paragraph
373.413(1)(a).

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




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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(1)(a) and (2)(a) and (b). See
texts below. Emphasis added.

373.016 Declaration of policy.--
(1) The waters In the state are among its baio reouroes. Such water have not heretofore
been conserved or fully controlled so as to realism their efll beItmicrl use.
(2) It is further declared to be the policy of the Islature:
(a) To provide for the nageent of iwatr and rel t lad IreemaI es
(b) To promote the ooneervation, development, and proper utilizatAio of surface and ground
water;
(c) To develop and reulate dams, impoundments, reservoirs, and other works and to provide
water storage for beneficial purpoeess
(d) To prevent damage fro floods, soil erosion, and excess ve drainages
(e) To minimize degradation of water resources caned by the discharge of storamater:
(f) To preserve natural reeouroes, fish, and wildlife
(9) To promote the public policy set forth In a..403.031?
(h) To promote recreational development, protect public land, and assist in maintaining the
navigability of rivers and harbors, and
(i) Otherwise to promote the health, safety, and general weltar of the people of this state.
373.118 General parmits.--
(1) The govring board ay dopt rules establishing a general permit system under this
chapter for projects, or categories of project, which have, either singly or cumlatively,
a miniamu adverse impact on the water resources of the district. Such rules shall specify
design or performance criteria which, it applied, would result in compliance with the
conditions for issuance of permits established in this chapter and district rules.
373.413 Permits for onotruootio or alteratlos.-
(1) Exoept for the exemptions set forth herein, the governing board or the department ay
require such permits and mlpose such reasonable condition s are necessary to assure that the
construction or alteration of any water management syste da, imoundmnt, reservoir,
appurtenant work, or works will comply with the provisalm O tcht prt and applicable rules
promulgated thereto and will not be baxRul to a-re art~raes tbh district. The
deparmnt or governing board may delineate areas ithit the ditriot berein permits may be
required.
373.414 Additional oritaria for activities in surai watae and watland.---
(1) As part of an applicant's demonstration that an activity regulated under this part will
not be harmTul to the watr raerwao or ill ot b l ith overall Objectives
of the district, the goverlang board or the departme lnta rm r the applicant to provide
reasonable acslanr e that ta water gtlty Istdm a Le.. to ters as defined in a.
403.031(3) will Sat be violated and eomemaable aam- ea activity in, on, or over
surface maters or watlands, as delineated in 37T.aM(l), s aost ea rary to the public
interest. however, i e a cm tvity uqcLhtlflt. or witin tl m Outstalning
Florida water, as provided by deprmnt rule, the aii S mt prvd reasonable amuranc
that the proposed activity will be early In the laLo Iata .
(a) In determining whether ba activity, which is l, o, or over surace waters or wetlands,
as delineated in a. 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 shall
_-.a ., the bolle wi criterIlas
1. ai vity will adversely affect the pamlio health, safety, or w Ifaer or the
property of others,
2. wether the activity will adversely affect the oaemsevtiso of fiah and wildlife, including
endaored or throtamed species, or thIr hablitatAy
3. her the activity ill adversely afft naviatlo o the floe of water or cause bhartul
eroslao or shearing"
4. whether the activity will adversely affect the fishing or rereational values or marine
productivity in the vicinity of the activity
S. r etbr the activity will be of a temporary or pmaranain natures
6. Whether the activity will adversely attect or will emance sigmiticant historical and
archaeological r-orwea under e provision of s. 637.001t AM
7. The current condition and relative value of Mraitle being pearoraed by area affected
by the proposed activity.
(2) The governing board or the department is autholarle to etablish by rule specific
permitting criteria la additi to the oth w criteria I this prt bla provdoms
(a) One or more sise thr mholde of Isolated wotlan d elow impact on fish and wildlife
and their habitat* will not be ooneildaed. Thnm thresholds sall based on biological and
hydrological evidence that shows the fis and wildlife values of such aras to be minimal.
(b) Criteria fort f he protect on thremtm ed -emlaped-d O pe oie i isolated wetlands
regardless of sie and land ue.



b) Need for Districts and a system of Department of Environmental Protection district offices.


4. Propose revising Section 373.026 which sets forth the general powers and
duties of the Department of Environ mental Protection relating to the water
management districts to eliminate duplication between DEP and the WMD's and
to more accurately reflect actual duties and responsibilities. Clearly state that









duties of DEP are permissive unless 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
permissive.


5. Propose revising 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 enumerated in the section and which have heretofore
been delegated to them. Delete the last senaece in Section 373.026(7) to
eliminate dual authority of DEP and the water management 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."


c) Planning and management of District owned lands.

6. Commend the water management districts for the methods and practices that
have been developed for land acqnisition and recommend that state agencies be
encouraged to adopt similar methods and practices rather than having the water
management districts provide lad acquisition services to state agencies.


7. 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
title interests.


8. Direct water management districts to develop programs which will expedite
use of mitigation banks for wetlands, including designation, where appropriate, of
existing district water resource projects (such as Save-Our-Rivers and Surface
Water Improvement and Manmagement (SWIM) programs and projects) as
mitigation banks.


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d) Cost of operating the Districts.

No recommendations at this time.


e) Funding mechanisms available to Districts.

9. Propose a Constitutional amendment to Section 9 of Article VII to equalize
the ad valorem tax millage that may be levied throughout the state for water
management purposes.

Propose an amendment to Section 9 of Article VII of the Florida Constitution that will
equalize the maximum ad valorem tax millage 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 the state. The proposed change should increase the ad valorem tax
mileage 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.

10. Encourage greater utilization of impartial peer review by water management
districts.

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 experiencig 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
activities.


11. 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.


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g) Alternatives to District management of district lands.

12. Restrict land acquisition activities by water management districts to lands
necessary for flood control, water storage, water management, preservation of
wetlands, streams and lakes, and for the purpose of introducing water into, or
drawing water from, the underlying 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 management activities to property which
is specifically needed for water management purposes.


h) Need for revision of budget development and adoption procedures.

13. 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
budgeting and taxing process. Allowing the inclusion of explanatory examples in TRIM
notices and advertisements will help toward better informing the public of proposed
taxation.


i) Board Appointments.

14. Keep "appointive" governing board members rather than changing to
"elective" members.

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 constitunt 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 Mangement District Governing Board
Membership: Appointive versus Elective, copy attached.


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15. 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) and the remaining four members
of each of these four districts are appointed two years later. SWFWMD's eleven board
members currently are appointed for staggered four-year terms with two or three board
members being appointed each year. See Sections 373.073 and 373.0735.


i) Legislative oversite.

No recommendation at this time.


k) Other.

16. Urge greater use of "best management practices" in the permit process but
develop procedural rules and practices that will e re that due process is utilized
when developing, adopting, applying, and ame g 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 managemet practice, and that they do not
hamper efforts to develop even better manager t practices.




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