Title: Article Summarizing 1997 FL Legislation and Recent Major Case Law: 'More Than a Drop in the Bucket: FL Water Resources Act II'
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Title: Article Summarizing 1997 FL Legislation and Recent Major Case Law: 'More Than a Drop in the Bucket: FL Water Resources Act II'
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Abstract: Article Summarizing 1997 FL Legislation and Recent Major Case Law: 'More Than a Drop in the Bucket: FL Water Resources Act II'
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2. ARTICLE SUMMARIZING 1997 FLORIDA LEGISLATION AND RECENT MAJOR
CASE LAW


5.-7.














More Than a Drop in the Bucket:
Florida Water Resources Act H


T he twenty-fifth anniversary
of the Florida Water Re-
sources Act of 1972 was
marked by significant legis-
lative modification of the statutory
framework that governs the protection
and regulation of the state's most valu-
able resource. In addressing many of
the criticisms leveled at water manage-
ment districts' authority and operations
in recent years, the widely-supported
legislation clarified existing law and re-
ordered the priorities of districts in an
attempt to ensure the availability of
adequate, dependable, and sustainable
supplies of water for all existing and
future reasonable-beneficial uses.
Also during the spring of 1997, two
precedent-setting administrative or-
ders addressed ongoing water supply
and permitting issues in the Southwest
Florida Water Management District
(Swiftmud). In a major rule challenge
proceeding, Judge J. Stephen Menton
rendered a 652-page final order invali-
dating several proposed and existing
rules of the district.' Two months later,
Judge William F Quattlebaum's recom-
mended order repudiated Swiftmud's
refusal to renew water use permits for
wellields owned and operated by local
government water suppliers.' Individu-
ally, the decisions analysed the districts
regulatory authority and scientific ba-
sis for restricting groundwater with-
drawals; collectively, they exposed the
inadequacies of water managers and
users to plan for, fund and implement
the development of additional water
sources to ensure an adequate supply
within the region.
Scene 1: Setting the Stage
^for Change
SfBy 1992 changes in the topography
and hydrogeology of west central
Florida evidenced something more than
normal cyclical drought-related condi-


The legislation
clarified existing law
and reordered the
priorities of districts
in an attempt to
ensure the
availability of
adequate,
dependable, and
sustainable supplies
of water



by Sally Bond Mann

tions. Lakes and wetlands in the north-
ern Thmpa Bay region and along the
Highlands Ridge atrophied, and the
saltwater-freshwater interface crept
inland along Gulfcoastal counties from
Hilsborough southward to Charlotte.
In response, Swfmud designated large
portions of the district as "water use
caution areas" and imposed area-wide
water use restrictions, including reduc-
tions in amounts that public suppliers
coul4 withdraw from wellfields-the
major source of potable water for mil-
lions of area residents.
Between 1992 and 1994, Tampa Bay
water suppliers fled applications (with
the district) for the renewal of existing
wellfield permits originally issued in
the late 1970s.' While the renewal ap-
plications were pending before
Swiftmud, the district proposed the


adoption of new administrative rules
for water use permitting, which in-
cluded a moratorium on the issuance
of new water use permits in certain re-
gions and the establishment of a mini-
mum aquifer level in the Southern
Water Use Caution Area (SWUCA).
Several local governments and private
interests challenged the proposed
"SWUCA Rules," and an administrative
hearing on the rule challenge was con-
ducted from February to November
1996. Regarding the wellfleld permit
renewal applications, the district indi-
cated in February 1995 that it would
issue the renewal permits, but for one
year only (rather than the "normal" 10-
year period). Predictably, water suppli-
ers filed administrative appeals, and a
hearing was scheduled for July 1996.
During the same period of time that
Swiftmud was juggling water shortage
orders, proposed rules, and wellfield
permit applications, the legislatively
created Water Management District
Review Commission was conducting an
independent examination of the five
regional water-managing agencies. The
review commission conducted 17 pub-
lic hearings across the state from Sep-
tember 1994 through November 1995,
thereafter issuing its recommenda-
tions4 and drafting proposed legislation
for introduction during the 1996 legis-
lative session.

Scene 2: Directions From
Stage Lft and Stage Right
Legislators, executive agency repre-
sentatives, and interest groups antici-
pated the passage of water manage-
ment reform during the 1996 regular
session. After all, the review
commission's study of district opera-
tions was complete and both House and
Senate Select Committees on Water
Policy were concluding their two-year


30 THE FLORIDA BAR JOURNA/NOVEMBER 1997










programs. Attempts to craft a consen-
sus water bill, however, were frustrated
Sby marathon and increasingly rancor-
ous drafting sessions that focused on
four major issues: 1) water supply plan-
ning; 2) establishment of minimum
flows and levels; 3) water transport
(e.g., the concept of local sources first");
and 4) protection of existing users.s
Strongly supported by the Governor's
Office, Department of Environmental
Protection (DEP), and representatives
of the environmental community, the
committee bill proposed by Represen-
tative John Rayson (chair of the House
Select Committee on Water Policy)-
which would have required extensive
state and regional "water planning'"-
failed to gain the support of other com-
mittee members. Of greater concern to
the latter were questions about district
governance and accountability, method-
ologies for setting minimum flows and
levels, and aggressive water supply
development and funding.
Joined by Lieutenant Governor
Buddy MacKay and environmentalists,
Representative Rayson argued that
minimum flows and levels must be
based on "pure science," without regard
to physical alterations to surrounding
land and social or economic impacts-
a position many believed would result
in development moratoria and manda-
tory restoration of altered systems.
With regard to the bill's emphasis on
planning, Representative John Laurent
(vice chair of the select committee and
review commission member) repeatedly
noted during committee hearings that
the creation of several detailed plans
would not provide a single, additional
gallon of water for current and future
users.
In the upper chamber, Senator
Charlie Bronson (vice chair of the Sen-
ate Natural Resources Committee)
sponsored several bills that reflected
recommendations of the review com-
mission (on which he served), while
Senator Jack Latvala (chair of the Sen-
ate Select Committee on Water Policy)
brought Tampa Bay interests together
in an attempt to resolve the area's on-
going water supply problems and to
restructure the West Coast Regional
Water Supply Authority. Ultimately,
however, the lack of consensus in the
Souse undermined passage of major
water legislation, and the sole water
bill passed by the 1996 Legislature di-
rected Swiftmud to establish minimum


flows and levels in Hillsborough, Pasco,
and Pinellas counties by October 1,
1997; created a scientific peer review
process for evaluating those determi-
nations; and authorized the Executive
Office of the Governor to approve or
disapprove districts' budgets.'

Intermission
The months following the 1996 ses-
sion witnessed continuing efforts to
wrestle with the complicated water
management issues raised by the re-
port of the review commission and the
work of the select committees. Recog-
nizing that the key to state economic
growth depended upon increasing
Florida's "water pie," a group of public
and private interests began meeting in
June to discuss and draft legislation to
specifically address statewide water
resource development. Although the
"Florida Water Coalition" membership
included entities that historically
battled one another over water rights-
e.g., agriculture, development, public
supply, business and industry, local gov-
ernment and electric utilities-the com-


mon need for additional, sustainable
sources of water brought the diverse
interests together.
Meanwhile, to provide guidance to
DEP and water management districts
on water issues raised-but not re-
solved-during the 1996 session, Gov-
ernor Chiles issued Executive Order
No. 96-297 in September 1996. The or-
der addressed district establishment of
minimum flows and levels, regional
water supply planning, implementation
of review commission recommenda-
tions, and creation of a public group and
process that would continue to work on
water supply initiatives.
On September 30, the Executive Of-
fice of the Governor convened the
Governor's Water Supply Development
and Funding Work Group, which met
throughout the fall and winter of 1996-
97 to formulate consensus recommen-
dations for directing the development
of additional water sources. Many
members of the Florida Water Coalition
also participated in the Governor's fa-
cilitated discussions, and as described
in the work group's Report on Recom-


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517.3


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mendations dated February 21, 1997,
substantial consensus was reached on
( number of topics. Some of the thornier
issues, however, e.g., minimum flows
and levels and local sources first, re-
mained unresolved as the next regular
session of the Florida Legislature be-
gan on March 4, 1997.

Scene 3: New Players and
Revised Scripts
The reverberating smack!! of the
Speaker's gavel ushered in more than
a new legislative session. The vibra-
tions began on November 5,1996, when
Republicans won a majority of seats in
the Florida House of Representatives
for the first time since Reconstruction
(they had gained a majority in the
Florida Senate in 1994).Although some
of the issues that remained on the table
from prior sessions might have looked
the same, the manner in which the
House addressed them became notice-
ably different-politically, structurally,
and procedurally-the rules were in-
deed different in Florida now. With [Re-
publican] President Toni Jennings lead-
ing a relatively bipartisan Senate, the
o.obrecast for the 1997 regular session
Included strong leadership, fiscal re-
straint, Innovative economic develop-
ment, and timely adjournment.
In recent sessions, the Governor's
Office had enjoyed comfortable work-
ing relationships with fellow Demo-
cratic speakers. The symbiotic liaisons
frequently greased the proverbial
wheels of the process, thus providing
the Governor with additional leverage
on legislation. Although the relation-
ship between Governor Chiles and
House Speaker Peter Webster was emi-
nently respectful, the former was no
longer assured of the Speaker's support
on issues. Take water legislation, for ex-
ample. With the environmental activ-
ism of Lieutenant Governor MacKay
and the support of Democratic Speaker
Peter Rudy Wallace during the 1996
session, the Governor's Office main-
tained a strong position throughout
negotiations on House water bills.
By contrast, during the 1997 session,
Speaker Webster appointed John
Laurent-considered by many the most
knowledgeable legislator on water is-
f'Nrues-as chair of the House Water and
Sesource Management Committee, and
the Governor had to negotiate his posi-
tion through the committee proves like
everyone else. As a result of the exem-


The 1997 legislative
process molded a
sensible blueprint
for the protection
and management
of Florida's water
resources into the
next century






plary leadership of Chairperson
Laurent and the relatively equal bar-
gaining positions of all interested par-
ties, the 1997 legislative process
molded a sensible blueprint for the pro-
tection and management of Florida's
water resources into the next century.
Initially, several substantial water
proposals were filed in both legislative
houses. The primary focus of the
"Governor's bill" was state, district, and
regional water supply planning, as well
as other recommendations of the work
group.' The main bill drafted by mem-
bers of the Florida Water Coalition
stressed aggressive water resource de-
velopment by districts and the
establishment and implementation of
minimum flows and levels that recog-
nised existing legal uses and hydrologic
alterations The legislative proposal by
Florida's Commissioner of Agriculture
Bob Crawford addressed all of the fore-
going issues plus 20-year consumptive
use permits and several other district
governance and budget recommenda-
tions of the review commission.*
In addition to the foregoing bills,
Senator Latvala (chair of the Senate
Natural Resources Committee) was
also dealing with brownfields legisla-
tion, confirmation of several controver-
sial appointments, reorganization of
the West Coast Regional Water Supply
Authority, and clarification of the on-
going net-ban controversy. Initially fo-
cused on the latter measures, Senator
Latvala monitored progress ofthe three
major water proposals in the House.
Through the committee hearing and


amendment process, Chairperson
Laurent (who had also served on the re-
view commission) began to weave the
House water bills into a large committee
substitute that garnered consensus on
most, but not all, major points. The envi-
ronmental community unequivocally re-
jected the idea that lands purchased by
the state through the Preservation 2000
and Conservation and Recreation Lands
programs should be made available for
water supply purposes. Pasco and
Hillsborough counties' attempts to cir-
cumvent application of the bill's new
minimum flows and levels provisions to
theirjurisdictions were deactivated only
after the Governor's Office pressed them
for semantic specificity
Emotion-charged arguments between
representatives of "water-rich" and "wa-
ter-poor" counties brought the issue of
local sources first to the forefront of com-
mittee meetings, as well as later floor
debate. In fact, Senate floor debate on
local sources first amendments threat-
ened to scuttle the bill, until Commis-
sioner of Agriculture Bob Crawford-a
former Senate President-effectively
lobbied senators for passage. At the end
of the day, however, words were either
written or eaten, as legislators sorted
out and signed off on the most signifi-
cant statutory changes to Florida wa-
ter law in 25 years.

Scene 4: The Playbill Revealed
The 1997 "water bill"-Committee
Substitute for House Bills 715, 1249,
1321, and 1339u (HB 715)-addressed
portions of F.S. Ch. 373 that had proven
problematic for both water manage-
ment districts and regulated interests
for years. The bill included new defini-
tions and directives for developing state
and regional water plans; introduced
distinctions between water resource
development and water supply devel-
opment; created new requirements for
district establishment and implemen-
tation of minimum flows and levels;
modified district budget and governing
board appointment provisions; and
amended certain marine fisheries pro-
visions to clari application of the 1996
net-ban amendment.
The most notable recurring theme
throughout HB 715 is that water man-
agement districts must give "priority
attention"" to assuring an adequate
supply of water for all users. As stated
in new F.S. 9373.0831:
(2) It is the intent ofthe Legislature that


32 THE FLORIDA BAR JOURNAL/NOVEMBER 1997











(a) Sufficient water be available for
all existing and future reasonable-beneficial
"usea and the natural systems, and that the
diverse effects of competition fer water sup-
plies be avoided.
(b) Water management districts take
the lead in identifying and implementing
water resource development projects, and
be responsible for securing necessary fund-
ing for regionally significant water resource
development projects.
(3) The water management districts
shall fund and implement water resource
development as defined in s. 373.019.* Each
governing board shall include in its annual
budget the amount needed for the fiscal year
to implement water resource development
projects, as prioritized in its regional water
supply plans."1
The dual concepts of water resource
development" and water supply devel-
opment" introduced by HB 715 clearly
delineate the respective responsibilities
of water management districts and
water suppliers. The districts must not
only give priority attention to identify-
ing potential water sources, they must
also develop regional implementation
programs to bring them on line. By defi-
nition, "water resource development"
pcludes district "construction, opera-
(')n, and maintenance of major public
Sdorks facilities to provide for flood con-
trol, surface and underground water
storage, and groundwater recharge
augmentation."" By further requiring
that district annual budgets-which
the Governor can "approve or disap-
prove, in whole or in part"'-include
funding allocations necessary to imple-
ment priority resource development
programs, the legislation provides some
measure of district oversight heretofore
missing in statute.
lb get the ball rolling, districts must
complete district-wide water supply
assessments for each planning region
by July 1, 1998, that determine
existingg legal uses, reasonably antici-
pated future needs, and existing and
reasonably anticipated sources of wa-
ter."1 For anyregion where ustainable
water sources are not sufficient to meet
existing and future uses for a 20-year
planning period, the district must ini-
tiate water supply planning in an open,
public process, in coordination and co-
operation with local governments, re.
peal water supply authorities, gov-
( nent-owned and privately owned
water utilities, self-suppliers, and other
affected and interested parties."* Each
regional water supply plan must in-


clude a water supply development com-
ponent, a water resource development
component, and recovery, prevention,
and funding strategies to implement
identified projects.21 While governing
board approval of a regional water sup-
ply plan need not be accomplished
through rulemaking, any portion of a
plan that affects the substantial inter-
ests of a party will be subject to F.S.
120.569 (Supp. 1996)."
Throughout the 1997 session, the
most intense negotiations on the water
bill focused on F.S. Ch. 373's provisions
regarding minimum flows and levels.
While there was little effort to change
the "significantly harmful" standard of
existing F.S. $873.042, the section was
modified to require districts to annu-
ally update and publish priority lists
and schedules for establishing mini-
mum flows and levels, and to provide a
scientific peer review process for vali-
dating the data, methodologies, and
models employed by the districts."
One of the most important parts of
the water bill, however, is contained in


new F.S. 8373.0421,2 which details lim-
iting criteria that districts must con-
sider when establishing or implement-
ing the minimum flow or level of a
water body. The new section describes
three categories of water bodies for
which districts are not required to set
minimum flows or levels: 1) a surface
water body of less than 25 acres, un-
less it has significant economic,
environmental, or hydrologic value; 2)
water bodies that no longer serve his-
torical hydrologic functions and for
which recovery is not economically or
technically feasible, or which could
cause adverse environmental impacts;
and 3) a surface water body constructed
prior to permit requirements or pursu-
ant to an exemption, permit, or recla-
mation plan, unless it is of significant
hydrologic value or an essential ele-
ment of the area's water resources.5
In an attempt to mandate districts'
recognition of physical changes that
have occurred in and around water re-
sources throughout the state, new F.S.
373.0421(1Xa) provides that when es-


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tablishing a minimum flow or level, the
hm4istrict must "consider changes and
Structural alterations to watersheds,
surface waters, and aquifers and the
effects such changes or alterations have
had, and the constraints such changes
or alterations have placed, on the hy-
drology of an affected watershed, sur-
face water, or aquifer."" To reassure
those who expressed concern that ex-
isting damage caused by wellfield
pumping could be grandfathered under
the foregoing language, the following
stipulation was added to the new lan-
guage: "provided that nothing in this
paragraph shall allow significant harm
as provided by s. 373.042(1) caused by
withdrawals.""
Linking the establishment of mini-
mum flows and levels with the require-
ment that districts prioritize water re-
source development, ES. 373.0421(2)
provides that if an existing flow or level
is below the minimum established (or
is expected to fall below it within the
20-year planning period), the district
must "expeditiously implement a recov-
ery or prevention strategy, which in-
cludes the development of additional
C% a ter supplies" to achieve recovery of
r prevent falling below) the estab-
lished minimum.*
The recovery or prevention strategy shall
include phasing or a timetable which will
allow for the provision of sufficient water
supplies for all existing and projected rea-
sonable-beneflcial uses, including develop-
ment of additional water supplies and imple-
mentation of conservation and ether
efficiency measures concurrent with to the
extent practical, and to offset, reductions in
permitted withdrawals, consistent with the
provisions of this chapter."
Arguably the most important provi-
sion in the entire bill to entities affected
by water shortages, the foregoingpra-
graph requires districts to simulta-
neously bring new sources on line when
they institute cutbacks in permitted
withdrawal quantities. For those wa-
ter bodies in Hillsborough, Pasco, and
Pinellas counties with existing flows or
levels below established minimums,
the foregoing concurrency requirement
could be modified by statutory and case
law existing immediately prior to the
effectivedate of the new act."As a prac-
tical matter, however, while the new
ection contains specific legislative di-
rection to districts regarding implemen-
tation of recovery strategies, the law in
existence prior to July 1, 1997 (the ef-
fective date of the act), also provides


Swiftmud with authorization to imple-
ment similar recovery activities.31
Several sections of HB 715 modified
governance and budgeting provisions
contained in F.S. Ch. 373. To facilitate
consistent and efficient decision-
making, the number of governing board
appointments to be made each year will
be staggered throughout the Governor's
term of office (rather than a majority
appointed the first year), and candi-
dates must have significantt experi-
ence" in agriculture, development, lo-
cal government, water utilities, law,
civil engineering, environmental sci-
ence, hydrology, or accounting." Gov-
erning board appointment of an execu-
tive director will be subject to the
Governor's approval, and the appoint-
ment will have to be confirmed by the
Senate upon employment and recon-
firmed during the second regular session
following a gubernatorial election.
With regard to district budgeting,
notice of all budget workshops and
hearings must be published locally;
administrative and operating expenses
must be identified and allocated among
district programs; and budget program
areas must include separate entries for
lobbying and advertising expenditures,
as well as a five-year water resource
development work program that de-
scribes the district's implementation
strategy for resource development
within each water supply planning re-
gion.3 The Governor's budget review
must analyze the "adequacy of district
expenditures related to water supply
including water resource development
projects identified in the district's re-
gional water supply plans," and inter-
ested parties must be afforded an op-
portunity to provide written comments
on proposed work progPams."
Most of the statutory changes sought
by the Department of Ariculture and
Consumer Services were included in
HB 715, although not without modifi-
cation. F.S. 373.236, was amended to
mandate district issuance of 20-year
permits if sufficientdata exists "to pro-
vide reasonable assurance that the con-
ditions for permit issuance will be met
for the duration of the permit," and.
two sections dealing with district-ac-
quired lands were amended to allow
multiple uses such as agriculture, sil-
viculture, and water supply under cer-
tain conditions."
Tb more accurately reflect that the
legislature is responsible for adopting


state water policy and that DEP and
the districts implement that policy, HB
715 renamed and redefined the prior
"state water policy" as the "water re-
source implementation rule [that] sets
forth goals, objectives, and guidance for
the development and review of pro-
grams, rules, and plans relating to wa-
ter resources, based on statutory poli-
cies and directives."' Additional
legislative oversight is provided in re-
visions to F.S: 373.036(1Xd), which
provides in pertinent part as follows:
Amendments to the water resource imple-
mentation rule must be adopted by the sec-
retary of the department and be submitted
to the President of the Senate and the
Speaker of the House of Representatives
within 7 days afterpublication in the Florida
Administrative Weekly. Amendments shall
not become effective until the conclusion of
the next regular session of the Legislature
following their adoption."
One of the 1997 legislative priorities
of Senator Latvala was reorganization
of the West Coast Regional Water Sup-
plyAuthority. Although HB 715 did not
impose a specific member-government
structure on the authority, it did amend
F.S. 9373.1962(3) to clarify that the
authority could, either by itself or
jointly with Swiftmud, develop and op-
erate alternative sources of potable
water (eg., a desalination plant), or the
authority and district could pledge and
contribute their funds to reduce the
wholesale cost of alternative source
water developed by a private entity.4
In addition, the legislation revised F.S.
$373.1963(1), to reflect the terms of a
reorganizational structure that the au-
thority and its member governments
have been discussing since the fall of
1996. By December 31, 1997, the au-
thority and Swiftmud must either en-
ter into a written agreement detailing
the development of alternative potable
water sources (as directed in the sec-
tion) or they must prepare and submit
to the legislature a report detailing why
not.1
Senator John McKay's ongoing con-
cerns about district employment and
spending practices resulted in the adop-
tion of bill amendments that 1) prohibit
the expenditure of district funds for
severance pay except under certain con-
ditions, and 2) require a study of dis-
trict employee compensation plans, to
confirm the existence of actual or per-
ceived discrepancies between the sala-
ries of district employees and those of
state or other general purpose local


34 THE FLORIDA BAR JOURNAUNOVEMBER 1997









government employees
Other sections of HB 715 that do not
directly relate to the protection and
management of Florida's water re-
sources under F.S. Ch. 373 include the
availability of subsidies or filters for
potable water wells under
376.307(1Xe);" submerged land lease
extensions under S253.03(7Xc);# modi-
fications to F.S. Ch. 370 ("Saltwater
Fisheries") that address special activ-
ity licensing for anadromous sturgeon,
the transport of proscribed nets, the il-
legal use of certain nets, crawfish re-
porting requirements, and a three-year
pilot program in a six-county area along
the Panhandle Gulf coast;" and the
modification of F.S. Ch. 403 ("Environ-
mental Control") to permit a small wa-
ter utility to discharge demineralized
concentrate from reverse osmosis or
membrane processes as a potable wa-
ter byproduct rather than as an indus-
trial wastewater."

Scene 5: Welting In the Wings
As HB 715 was being readied for its
first committee hearing on March 31,
1997, the final order in the SWUCA rule
Challenge proceeding was rendered by
Administrative Law Judge J. Stephen
Menton.7 Although the finality of the
decision will not be known for several
months, three significant conclusions
warrant mention, particularly in light
of ongoing debates regarding 1) the ex-
tent to which physical and economic
realities should be considered when
establishing minimum flows and lev-
els; 2) whether existing permitted us-
ers should be afforded preferential
treatment at the time of permit re-
newal; and 3) who should fund the de-
velopment of alternative water sup-
plies.
While Swiftmud's scientifice analysis
of saltwater intrusion problems in the
SWUCA area was thorough and [Ital
proposed methodology ifr calculating
the minimum [aquifer] level is reason-
able and scientifically sound," the
district's preferential treatment of ex-
isting users and proposed reallocation
provisions was found to exceed its
statutory authority under F.S. Ch.
373.*Although the decision's validation
of Swiftmud's scientific data and meth-
~ odologies may be hailed by some dis-
tricts and environmentalist as confir-
mation that a minimum flow or level
must be based on "pure science," the
order also upheld the district's decision


to balance protection of the resource
with socio-economic factors in its selec-
tion of the minimum aquifer level."
Although HB 715 included a list of
physical realities that districts must
consider when setting a minimum flow
or level," the legislation did not address
the consideration of social or economic
impacts in the establishment process.
Appellate review of the final order may
encourage additional legislation on the
issue next year.
The order's invalidation of
Swiftmud's proposed reallocation pro-
cess and exemption of permit renewals
from minimum level restrictions reaf-
firmed that F.S. Ch. 373 grants no pref-
erential treatment to existing water
users outside the competing application
process of 6373.233." Thus faced with
increasing resource demands and a
statutory framework that does not rec-
ognize prior appropriation or other
water "rights," HB 715's emphasis on
aggressive water resource development
is rather timely.
Finally, the SWUCA ruling repudi-


ated Swiftmud's requirement that cer-
tain applicants must investigate and
implement the use of alternative
sources when the district decides it is
"economically, environmentally, and
technically feasible."" As stated in the
order:
1528. While the District can appropri-
ately require a WUP applicant, including a
public utility seeking potable water, to uti-
lizse reclaimed water in accordance with
Section 373.250(2Xb), the WUP program is
not the proper vehicle for imposing the ma-
jor capital expenditures involved in devel-
oping the infrastructure for a reuse system
on certain entities or users.
1549. [T]he District's current and pro-
posed desalination provisions are unaccept-
ably vague and vest the District with un-
bridled discretionl] There is no delineation
of the factors or criteria that the District
will consider in determining whether the
feasibility study is acceptable and/or
whether or when an applicant would be re-
quired to implement desalination..
1536. Without question, there is a need
for long term planning, inrasct in-
vestment and development of alternative
sources of water. aa. Section 7 of Chapter
95-323, Laws of Florida. While these mat-


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ters should be coordinated with the permit-
ting program, Chapter 373 does not pres-
ently allow these responsibilities to simply
be shifted to certain classes of users based
upon the District's assessment of who can
best afford it."
Although the SWUCA decision ad-
dressed proposed district rules, therec-
ommended order entered by Adminis-
trative Law Judge William F.
Quattlebaum in the wellfield permit-
ting case" dealt with Swiftmud's denial
of renewal applications for existing
wellfields in the northern Tampa Bay
region. Although a final order is not
expected from the district governing
board for several months, several find-
ings merit discussion. Essentially, the
order recommended that Swiftmud
grant 10-year water use permits for the
wellfields at average daily quantities
currently being withdrawn at each site.
Finding that the renewal applications
met the three-prong test for permit is-
suance, Judge Quattlebaum stated:
173. As to the quantity of water cur-
rently being withdrawn from the wellfields,
the evidence establishes that the proposed
use of water is a reasonable-benefcial use,
the proposed use will not interfere with ny
presently existing legal use of water, and
Sthe proposed use is consistent with the pub-
lic interest.

179. The provision of potable water to
the customers of the water utility systems
which receive water from the authority is a
reasonable and beneficial use of the re-
source. There is no evidence that the exist-
ing potable water requirements of the end
users may be met by any other currently
available water resource.

212. The evidence establishes that the
potable water being withdrawn from the
subject wellfelds constitutes utiisation of
local resources to the greatest extent prac-
ticable. There is no credible evidence that a
sufficient potable water supply is located
more proximately to the St. Petersburg
water users."
While the foregoing statements are
clear, one must ask whether (and the
extent to which) they might be modi-
fied if the proposed use of the resource
was not public supply. Theoretically
perhaps, a large agricultural operation
or light industrial plant could qualify
for renewal permits under the same
conditions, but one strongly suspects
that the judge's findings are exception-
ally narrow and limited to the potable
water supply applicants in the instant
case.
With regard to drawdowns in the sur-
face water table caused by withdraw-


als from the wellfields, the recom-
mended order provided:
177. Despite the existing adverse im-
pacts, there is no credible evidence that
impacted areas would return to prepumpi
conditions even ifpumping were halted from
the subject wellfelds.
296. Adverse environmental impacts
which have resulted from water pumping
in the subject wellfields occurred via water
withdrawals permitted by the District with
knowledge that the adverse impacts would
occur. There is no evidence that any adverse
environmental impacts have been caused by
any unpermitted water pumping activities
at the subject wellfelds."
Without question, Swiftmud's gov-
erning board must carefully weigh the
ramifications of its final order in the
wellfield permitting case with its pend-
ing appeal of the SWUCA order and
eminent adoption of minimum flows
and levels in Hillsborough, Pasco, and
Pinellas counties. Clearly, all govern-
mental entities in the Tampa Bay re
gion must work together in a coopera-
tive effort to solve the area's water
supply problems. If funds and energies
currently spent on public relation cam-
paigns, litigation, and general finger-
pointing were channeled into a commit-
ment to solve the problems quickly and
equitably the area could become a shin-
ing example for future resource devel-
opment programs instead of the prob-
lem child it is today.
The'manner in which the region ad-
dresses resolution of ongoing water
wars will be closely monitored over the
next several months by other districts,
governments, environnentalists, agri-
cultural and development interests,
and legislators. Whether the curtain
goes down on litigation or legislation
remains to be seen.0


I Charlotte County Southwest Florida
Water Maagement Dist., DOAH No. 94-
5742P (Mar. 26, 1991appeal docketed,
No. 97-1626 (Fla. 2d D.CA. Apr. 22, 1997).
Wes C ast Rquien Wter Supply Au-
thority a Southwest Florida Waser Ma4age-
ment District, DOAH Nos. 95-1520. etc.
(May 29, 1997) (governing board should is-
sue final order in the faU of 1997).
SAlthough the wellfelds were first per-
mitted by the district in the 1970's (follow-
ing implementation of the Water Resources
Act of 1972), one had been operating since
the 1930, another since 1968, and a third
since 1973. The welleld permits had been
renewed by Swiftmud during the 1980's. d.
at 8-11.
See Bams Ovn TaDUBuD WATsm Rac-


ouaMMrATIONS Or THE WATER MANAGEMENT
Drsmuct Rtvi w CommIssoN (Dec. 29, 1996)
(on file with the author and available at Fla.
Legi., Jt. Legis. Mgt. Comm., Div. of Lgis.
Library Serve., Tallahassee, Fla.). For
analysis of the Commission's findings, see
Parker and Mann, Water Management Re-
form: Mission Imposible? 70 FA. BJ. 20
(Oct. 199).
For an excellent analysis of the major
topics, see Canter and Holtz, Water Law in
Transition: Debates That Could Shape
Florida's Future, 70 FLA .77 (Nov. 1996).
Ch. 96-339, 1996 Fla Laws 1952 (codi-
fied at FLu. Swr. 5373.042, .536(5)).
See la. HB 1339, sponsored by Repre-
sentatives Goode and Horan, and Fla. SB
1388 and SB 1428, sponsored by Senators
Dyer and Latala (respectively). Although
moet work group participants agreed on the
wording of and supported the recommenda-
tions contained in its report, the Governor's
water bill was not drafted by the entire


Sally Bond Mann is managing attor-
ney for the Tallahassee office of
Maguire, Voorhis & Wells, where her
practice includes governmental af-
fInr, administrative law, and envi-
ronmental and land use law. Mrs.
Man served as the ewcutive direc-
tor and general counsel of the Water
Management District review Corn
mission, and drtedportions of sev-
eral water bills negotiated during
recent lgilative season. An honors
graduate ofth Florida State Univer-
sity College of Law, she currently
serve on the editorial board of The
Florida Bar Journal, and has previ-
ously published articles on property
rights, upland habitat regulation,
APA reform, and water management.
This column is submitted on be-
half of the Enironmental and Land
Use Law Section, Robert W. Wells Jr.,
chair and SidF Ansbacher, editor.

N


36 THE FLORIDA BAR JOURNAL/NOVEMBER 1997









group; accordingly, there was not consensus
among all work group members regarding
the statutory language that was drafted to
implement the recommendations.
SSee Fla. HB 1321 and HB 1249, spon-
sored by Representatives Bitner and Boyd
(respectively), and Fla. SB 1428 sponsored
by Senator Latvala.
See Fla. HB 715, sponsored by Represen-
tative Laurent, and Fla. SB 1562 sponsored
by Senator Bronson.
o1 See Ch. 97-160, 28, 1997 Fla. Laws
3 3031.
Ch. 91-160, 1997 Fla. Laws 3002 (to be
c i ed at various provisions of FLA. STAT.
c s. 186, 253, 370, 373 & 403).
d. 011, 1997 Fla. Laws 3002, 3022 (to
codified at FLA. STAT. $373.0831(lXc)).
SFLA. STAT. 373.019(19) provides the fol-
g definition: "Water resource develop-
ent" means the formulation and imple-
entation of regional water resource
agement strategies, including the col-
I ton and evaluation of surface water and
g oundwater data; structural and
n structural programs to protect and man-
e water resources; the development of
r gional water resource implementation
p s; the construction, operation, and
maintenance of major public works facili-
Sto provide for flood control, surface and
derground water storage, and groundwa-
t r recharge augmentation; and related
hnical assistance to local governments
d to government-owned and privately
o ed water utilities." Id. $2, 1997 Fla.
ws 3002, 3005.
I d. 11, 1997 Fla. Laws 3002, 3022 (em-
p added).
FLA. STAT. $373.019(19).
*Water supply development" means the
p ig, design, construction, operation,
d maintenance of public or private facili-
es for water collection, production, treat-
ent, transmission, or distribution for sale,
r sale, or end use." Ch. 97-160, $2,1997 Fa.
ws 3002,3005 (to be codified at FLA. STr.
$ 73.019(21)).
FLA. STAT. 0373.019(19).
SFLA. STAT. I 373.538(5Xa) (Supp. 1996).
Ch. 97-160, 03, 1997 Fla. Laws 3002,
07 (to be codified at FLA. STAT.
0 73.036(2Xb)4.a.).
Id. 4, 1997 Fla. Laws 3002, 3010 (to be
Sed d at FLA. STAT. 0373.0361(1)).
Id. (to be codified at FLA. STAT.
73.0361(2)).
Id. (to be codified at FLA. STAT.
73.0361(4)).
Id 5, 1997 Fla. Laws 3002,3012 (to be
S at FA. STA. $373.042(4)). The sed
ti peer review process created by HB
15 was based on similar procedures re-
ted by Chapter 96-339, 1996 Fla. Laws
952 (codified at FLA. STAT. $373.042(4)
(upp. 1996)), which applied only to mini-
um flows and levels established by
wiftmud in Hillsborough, Pasco, and
counties. The 1996 process will still
pplyto those counties, with the new scien-
per review procedure applying else
here in the state. See Id. $28, 1997 Fla.
w 3002, 8031.
SId. 6, 1997 Fla. Laws 3002, 3015.
SId., (to be codified at FLA. STAT.
373.0421(1Xb)).


" Id. (to be codified at FLA. STAT.
373.0421(lXa)).
SId.
SId. (to be codified at FLA. STAT.
1373.0421(2)).
"Id.
SSee id. 28, 1997 Fla. Laws 3002, 3031.
3, See, eg., FLA. STAT. 10373.083(2), .103,
.106(3), .113, .171, .1961, .616 & .6161
(1995).
32 Ch. 97-160, 09, 1997 Fla. Laws 3002,
3017 (to be codified at FLA. STAT.
$373.073(1Xb), (2)).
" Id. 010, 1997 Fla. Laws 3002, 3021 (to
be codified at FLA. STAT. 373.079(4Xa)).
' Id. 016, 1997 Fla. Laws 3002, 3025 (to
be codified at FLA. STAT. 0373.536(1), (5Xe).
1 Id. 16, 1997 Fla. Laws 3002, 3025 (to
be codified at Fu. STAT. 373.536(5Xa), (c)).
SId. 013, 1997 Fla. Laws 3002, 3023 (to
be codified at FLA. STAT. 1373.236(1)).
' Id. 1112, 17, 1997 Fla. Laws 3002, 3023,
3028 (to be codified at FLA. STAT.
$0373.139(5), .59(4Xa)).
ar Id. 2, 1997 Fla. Laws 3002, 300 (to be
codified at FLA. STAT. 0373.019(20)) (empha-
sis added).
" Id. 03, 1997 Fla. Laws 3002, 3007.
SId. 129, 1997 Fla. Laws 3002, 3032.
41 Id. 30, 1997 Fla. Laws 3002, 3032 (to


be codified at Fu. STAT. 0373.1963(1f)).
" Id. SS33, 34, 1997 Fla. Laws 3002, 3037,
3038.
" Id. 131, 1997 Fla. Laws 3002, 3034.
" Id. 036, 1997 Fla. Laws 3002, 3039.
4 Id. 037-42, 1997 Fla. Laws 3002, 3039-
3045 (to be codified at FLA. STAT.

00370.06(4Xb); .092(3), (4); .093; .14(8);
.1405)).
* Id. 43, 1997 Fla. Laws 3002, 3045 (to
be codified at FLA. STAT. $403.0882).
47 Charlotte County u. Southwest Florida
Water Management District, DOAH No. 94-
5742RP (Mar. 26, 1997), appeal docketed,
No. 97-1626 (Fla. 2d D.C.A. Apr. 22, 1997).
SId. at 489.
* Id. at 505-510, 517-519.
* Id at 492-500.
5" See Ch. 97-160, 6, 1997 Fla. Laws 3002,
3015 (to be codified at FLA. STAT.
$373.0421(1)).
" Supra, note 49.
" Supra, note 47, at 583-596.
" Id at 586, 595, 589.
SWest Coast Regional Water Supply Au.
thority u. Southwest Florida Water Manage.
meant District, DOAH Nos. 95-1520, etc.
(May 29, 1997).
" Id. at 39-40, 46 (emphasis added).
' Id. at 39-40, 61 (emphasis added).


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