Title: Recommendations to the WMD Review Commission
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00002786/00001
 Material Information
Title: Recommendations to the WMD Review Commission
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Recommendations to the WMD Review Commission
General Note: Box 11, Folder 2 ( 17th Annual Water Management Seminar - 1998 ), Item 23
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00002786
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text
01-14-1998 03:17PH FROM Higgins Eng., Inc. TO 919784767423 P.02


RecoaumendaO..I.oni TO The
Wd 1.0g: XmanaguiIaJnLint i iDj8Lc L ReView CoMisission

The oillow iflj :1r;c0ut11end L ioas adct .i.sted by caegjory conuiaLant
Wi Lh heL Ccnrustbi uoi n .a Lov.iCw duties:

A. I.f~ecl~ 'n;LI)!Yii~iI .1 1:1i 4~~~ij~jUjIaeq, to I ic St~it.

rJ ** Iojo.;(c ovising Ohe pre--fatory language inr Section
313.042 .'Ix-aLimn to the watLuc management districts establish-
ingy fb.infiut Liows and levels to clearly stale theat soic
atithurit.y is penrmissive and not mandatory.

~(yu~AA aond r .1u Juncjkia.je in the itL.roducLoiry paragraph of Sectioii
J1u 3 37042, Hondd StatuL,0, frome tlhe mx.isting language of
Govurnin Board shall esLabijsh...- "t .the
Govecninig Hiald may estabtisa.. ." While water management
distx.icLtu niwmld have the auLthority Lo set MinifutIM flows and
water *levu.ls, it should be 'IitfL to the discretion of the
dti t ic k.s Lo do so whken ducined appropriate rather than
requiring B. in every jnstanCe.

2. L~Evaltuiue the Lime requireumnts .impots&d on districts, by
SacLioia 120.60, Florida StaLut:es, in Floridal s AdjiniasLraive
LVrocodarC ACL rtoC 1h1 purLsU of pCopOsi ig cIVinges tlo sore
offfec t i vto rfo-u.i c ir h le di s.ricts u) quickly prexress pesim.L L
izppiiccr L i rr~

The Admjr~i~iLcLiV0 Procedure Act' in SecLion 120.60, in an
a tt*IkmpL I,) i-L-qu i..co atlje-nc0 LOB L) promp LIy process appLicaL ions,
mandates LOjaL; alt agency rotil'y ain applicant, WiLhin thirty (30)
dJays Aftoe re:*.:ipl of an applications of anyV apparent errors or
o1i sS iomonr; mud rccjkues L afuy additional inforntatioll the agency
is puriui Ltutd L.O Cj~fui.Ve. W1h0n Lite district's have a backlo4 of
appllic;La.iuis, it appears Lhat: LUiI reviewers have a tendency to
znund Dah i.;.y Pay Letters" Veq%1eSLrlg addition nal I f oiOation
as hbp. y Lu LoOl the ninety (90) day tiue clock imposed oil
ijgencJ.cm It) approve or' deny an alp icati On. IL is noL
unCoIjjjiw~n I%)y I..Iutse "Ti'it.ru 'y Duy T.ettcss" to be fo.1I owed by
ijdditioiul "Th.i.t'Ly Day LLors" further toL0ing Lh1 nifiety
(90) dlay clock.

(3 3. Rov i.jw lthe additional permitting criLOrCa which have been
) '.impoeSod upol t.Ihe water &umaeui(4%enL disLrijCLS by passage of
woe.l1and; and endangered spocio5 protuC.Lion provisions anti
0 LfSS siubsequoit- transfer eo Chapter 373 and delete the porLions
whiChi Ut're not, dir rely related to waLer managetukent. or transfer
ztuch provi -iloons to other, more appropriate agencies. D)eIete
Subparagjrnph 373.4.14(2)(b) since Subparagraph 373.414(i)(a)2

01-14-1998 83:18FM FROM Higgins Eng., inc.

919784767423 P.83

addresses the saae subject. Make it abundantly clear that the
governing board should consider and balance the prescrUfed
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
provi. .ions 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 Ln Subsection 373.118(1), and the provisions in
Subsection 373.413(1) with tlhe additional criteria prescribed
in Subsections 373.414(1)(a) iand (2)(a) and (b). See texts
below. Emluplisis added.

373.016 DeclaraLioni of policy.--
(1) Thlu wautcr- in the state are among its basic resourc-
es. Such waters have not heretofore been conserved or
fully conit.roled so as to realize their full beneficial
(2) It is urthaer declared to be the policy of the
Logisl at rIe.
(a) To provide for the management of water and related
land resou rces;
(b) To promote the conservation, development, and proper
uti.lization of surface and ground water;
(C) To develop and regulate dams, i.mpoundments, reser-
voirs, and other works and to provide water storage for
beneficial purposes;
(d) To prevent damage from floods, soil erosion, and
excessive dcainage;
(e) To mii.mi ze degradation of water resources caused by
the dischiarlli of stormwater;
(f) To .pru uve natural resources, fish, and wildlife;
(g) To prl:motLeo the public policy set forth in s.
(h) To pruiotl. recreational development, protect public
lands, and assist in maintaining the navigability of
rivers and harbors; and
(i) Ot.hl w.i.se to promote the health, safety, and general
welfare of the people of this state.

373.118 General permiLs.--
(1) 'The governing board may adopt rules establishing a
general puhimit system under this chapter for projects, or
categories of projects, which have, either singly or
cttuulativo.ly, a minimaL adverse impact on the water
resources of tho district. Such rules shall specify
design o,: ptirformtances criteria which, if applies, would
result: iln :omapl iance with Lthi1 conditions for issuance of
permil.sa ,isntabli slsed in this chapter and district rules.

81-14-1998 03:18PM FROM Higgins Eng., Inc. TO 919704767423 P.04

6. Whether thL activity will adversely affect or will
enhance signify icant historical and archaeological
resources under the provisions of s. 267.061.; and
7. The current condition and relative value of func-
tions being performed by areas affected by the proposed
(2) The governing board or the department is authorized
to establish by rule specific permitting criteria in
addition to t.he other criteria in this part which
(a) One or more size thresholds of isolated wetlands
below which impacts on fish and wildlife and their
habitats will not be considered. These thresholds shall
be based on biological and hydrological evidence that
shows the fish and wildlife values of such areas to be
,,minimal .
(b) CritL.ria for the protection of threatened and
endangered species in isolated wetlands reuardl~eg of
size and land use.

fJ 4. Require the districts to standardize their procedural
rules for the processing of permit and license applications
-tS 5 t&tW41a1d adminititrative proceedings.
The procedural rules for processing permit and license
applications and administrative proceedings differ from
1/OS E/* K district to district. This makes it unnecessarily complicated
and expensive for citizens and consultants to deal with
Tqa/i Sc4 different districts. There is no reason why the vast majority
4/ k/. of these procedural rules could not and should not be identi-
cal for each district. Provision could be madu for that rare
circumstance when a particular district has an unique proce-
dural .issuo not common to the other districts to allow a
distinct procedural rule to deal with that issue.

B. Need for D.Iisri;ts and a S.ytem of Department of Environmental
Protection District Offices.

5. Revise Section 373.026, which sets forth the general
powers and duties of the Department of Envi.ronmental Protec-
tion relating to the water management districts, to eliminate
duplication between DEP and the WHO's and to more accurately
reflect actual duties and responsibilities. Clearly state
that tie duties of DEP are permissive unless funded.

Many of the powers and duties relating to water management
have beon delegated to the water managements districts.
Powers and duties which have been so delegated should be
clearly stated in the staLutes. Other duties which are

01-14-1998 03:19PM FROM Higgins Eng., Inc. TO

prescribed as mandatory for the Department and which have
never been funded should either be properly funded or made

S6. Revise the introductory paragraph of Section 373.103 to
posiLively state that the respective water management district
,lca *6 governing boards have all the powers that are specifically
6 enumerated in the section and which have heretofore been
Sdelegated to them. Delete the last sentence in Section
p I373.026(7) to eli.ainate dual authority of DeP and the water
Ap A. ,u. management districts.
:-. powers enumerated in Section 373.103 which may be vested
tdf /CS "" in the respective governing boards have already been so vested
by dele(atiJin. Much of this was done by Lho Governor and
{ it i n Cabinet sitting as head of the Department of Natural Resources
APlA7 prior to the formation of DER (DEP's predecessor). The
i 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 r.he 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. laannin agm ~Manaqem an of 11i:.tict-Owned I.angs.
7. Commend the water management districts for the methods
51 and practices that have been developed for land acquisition
and recommend that other state agencies be encouraged to adopt
o'r similar methods and practices rather than having the water
[^. Af' rn ,t.anagement districts provide land acquisition services to
\ tt- JW' 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
title interests.

/ 9. Direct water management districts to develop programs
which will expedite use of mitigation banks for wetlands,
V including designation, where appropriate, of existing district
> ,FUN water resource projects (such as Save-Our-Rivers and Surface
15 Water Tmprovement and Management (SWIM) programs and projects)
'p y A{ ,T as mitigation banks.

BPy &k#

919704767423 P. 05

01-14-1996 03:19PM FROM Higgins Eng.' Inc. TO 919704767423 P.06

D. Cost of OLerating the Districts.

No recommendations at this time.

E. u rding Mochafni i Ani lable to Pis tr.i .

10. Propose a Constitutional amendment to Section 9 of
SArticle V11 to equalize the ad valorem tax mileage that may be
levied throughout the state for water management purposes.

'F V Propose an amendment to Section 9 of Article VII of the
Uy c& 4t Florida Constitution that will equalize the maximum ad valorem
tax nmillage that may be levied for water management purposes
-t-1w B in the northwest portion of the state with the maximum tax
n hat may be levied in the remainder of the state. At present
IV 4 07Ao moro than .05 mill may be levied in the northwest portion
Iof^Xf of the state. The proposed change should increase the ad
fc owe' O / valorem tax village that may be levied in northwest Florida
( for water management purposes from .05 mill to 1 mill, the
I limitation that applies to the remainder of the state. The
TnarSCLegitlature still must authorize the maximum ad valorem tax
SLthat may be levied by each district within the constitutional

F. Ways to Improve Accountability.
11. 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 experiencing a shortage of competent,
professionally mature, senior scientists to conduct adequate
research and to complete necessary evaluation. There may be
bright, academically educated young staffers, but understand-
ably they often lack hands-on experience and professional
maturity. To offset this circumstance, water management
boards and staffs should be encouraged to make greater use of
a peer review process. 'lhis will encourage "outside" coopera-
tion and acceptance of District projects and activities.

12. Encourage greater use of advisory commitLees, reporting
directly to the respective governing boards.

01-14-1998e 03:19PM

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. Advisory committees
are more effective when they report directly to the respective
governing boards rather than reporting through district staff.

G. Alternatives to District I naagement of District Lands.


Af GA)




13. 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.


M adH for nAvininn of Rndvnt nfvelonment and Adootion


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

Board ALpointments.
15. Keep "appointed" as opposed to "elected" governing
Water management in Florida requires a careful balance in
managing different water resources. Appointed 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 co achieve a balance of views on the board.

r.rr~- --~-, Ir~------~ ~c- --Y-~l C--- jLYC~LliYiL~e~-E~i;;~

FROM Higgtns Eng., Inc.

919i 767423 P.87

01-14-1998 03:20PM FROM Htggins Eng., Inc. TO 919794767423 P.88

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

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
\0i ~each board will have several members appointed each year.
This will provide greater continuiLy.
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 members. In four of the districts (all except SWPWMD),
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 313.075, which pertains
only to SWFWHD, 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 recommendations at this time.

K. Other. A-, I ,Zl*s vaade^ 7-
^\ --*--I-'"
17. Urge greater use of "best management practices" in the
permit process, but develop procedural rules and practices
that will ensure that due process is utilized when developing,
'Or d adopting, applying, and amending -best management practices".
Use of "best management practices" in permit decisions and in
4ZO1 8/)P lieu of specific permit criteria has been quite successful
when applied to forestry practices. These aMP's were
I developed and sponsored by the industry itself. However,
I other activities may not be as well organized and standards of
due process should be established for developing, adopting,

^ -y4 e"i V /8

81-14-199I 83:20PM FROK Higgins Eng., Inc.

919784767423 P.09

applying, and amending such standards so that, once adopted,
they truly represent the most current and best management
practice, and that they do not hamper efforts to develop even
better management practices.

81-14-1998 83:21PM FROM Higgins Eng., Inc.

Florida Water Management District Governing Board
Mcmbcrship; Appointive versus Elective

Abstract summary: Water management in F;krida requires a careful balance in managing
dilfercnt water resources; appointive members are not swayed by constituent pressure;
appointive members can devote more time to resource management and less to political careers;
the backgrounds of Ilhse chosen can be more carefully weighed to achieve a balance of views
on the board; a governing board must be composed of members with broad, divergent interests
in order to arrive at a just consensus on where the public interest lies in any given case.

Over the years the State of Plorida has developed a comprehensive, equitable and eminently
workable system for managing water. The system's success can be traced directly to certain key
elements. These crucial components are:

1. The state is divided into regional water management districts with district
boundaries that are non-political, being based on natural hydrologic basins.

2. Each district is controlled by a governing board of non-paid, lay citizens with die
ability to hire its own independent stalT and to retain its own consultants.

3. The governing boards are relatively large, independent, collegial boards whose
members are appointed by the Governor in compliance with statutorily mandated
residency requirements.

4. The districts are not state agencies, but rather are special, multi-county taxing
districts, each with an independent funding source.

5. Any areas within a district may be designated by the district governing board as
subdistricts or basins under control of basin boards appointed by the Governor.


In 1824, Territorial Florida enacted a law providing for the appointment of a group of citizens
to examine the expediency of opening a canal. Ever since, the territory, and then the state, has
been utilizing boards and commissions as a means for managing its water resources.

At times it has left these matters to its highest elected officials, the governor and
cabinet, but nmore often it has relied on lay citizens, appointed by the governor.
'The question of winh shall kdo this was specifically addressed by the legislature in
1949, 1961, 1972, 1983 and 1988. As the water management system in 1lorida

919704767423 P. 10

01-14-1996 03:21PM FROM Higgins Eng., Inc.

has evolved, a conscious effort has been maintained throughout to keep the system non-political,
in recognition that the water resources and related problems are not distributed throughout the
state in the same manner and proportion.as the population.

It is very difficult to establish a comprehensive system for managing the water resources in such
a large, flat, diverse state. The very subject of water is quite emotional ... and controversial.
Florida always seems to have too much, or too little, water. Too little lor some, while at the
same time, too much for others. Extremes often occur at the same time in different parts of the
state, or even within the same water management district, and can change overnight.

A mechanism for creating flood control districts was authorized by the legislature in 1949.
Chapter 25209, Laws of Florida. Governing boards for these districts were to consist of five,
non-paid, lay members, each appointed by the governor, subject to confine nation by the Senate,
for three-year, staggered terms.

A separate implementing act passed that same year specifically created Central and Southern
Florida Flood Control District, now known as South Florida Water Management District, as a
public corporation with a corporate life of ninety-nine years. See Chapters 25214 and 25270,
Laws of Florida (1949). The legislative act levied an ad valorem tax of 3/10 mill for the first
year of the district's existence and authorized the governing board to levy an annual tax
thereafter of not more than one mill. The Governor's appointive powers have continued through
the years although the board was enlarged to nine members in 1973.

A 1957 Water Resources Law gave the then existing State Board of Conservation (governor and
cabinet) greater powers and duties relating to water management activities. See Chapter 57-380,
Laws of Florida. The legislation created a water resources division within the Board of
Conservation and gave the division general powers and duties to authorize the capture, storage
and use of water, both ground and surface, under certain conditions.

In 1961 the Southwest Florida Water Management District was created by special act of the
legislature. Chapter 61-691, Laws of Florida. It provided that nine, non-paid, lay board
members should be appointed by the Governor for three-year staggered terms from specified
watersheds or river basins. It also provided that basins or sub-districts should be established and
be governed by separate basin loards, whose members were also to be appointed by the
governor, each for three year, staggered terms. The district board was given authority to levy
ad valorem taxes up to 3/10 mill and the basin boards could levy up to one mill.

The Water Resources Act of 1972

The Water Resources Act of 1972 preserved the two existing districts but provided that the entire
state would be divided into water management districts. See Chapter 72-299, Laws of Florida.
The law provided that each district was to have a nine-member governing board to be appointed
by die governor, subject to confirmation by the senate. Non-paid, lay board members were to
be appointed to four-year, staggered terms. A book published in 1972, entitled A MtdLWalcr
JCod by Maloney, Ausncss & Morriss, reported that the experience of the Central and Southern

919704767423 P. 11

81-14-1998 03:22P FROM Higgins Eng.r Inc. TO

Florida 'iood Control District with appointed, lay board members since 1949 had shown that
the system is basically sound.

General supervisory authority

The Legislature has recognized that water resource problems within the state vary front region
to region, xxth in magnitude and complexity. Although each water management district
governing board is an independent, collegial board with each member collectively sharing
responsibility for the board's decisions, a single state agency has responsibility for exercising
general supervisory authority over all the water management districts. Prior to 1974, this
supervisory authority was vested in the Division of Interior Resources of the Department of
Natural Resources, headed by the Governor and cabinet. When the Department of
Environmental Regulation was formed the general supervisory authority over the water
management districts was transferred to the new secretary of DER, although the Governor and
Cabinet, sitting as the Land and Water Adjudicatory Commission, retained authority to review
and rescind or modify any rule or order of a water management district governing board.

lay Citizens With Diverse Interests

It is essential that the boards be composed of lay citizens and that the boards be sufficiently large
to provide a wide diversity of interests. Both requirements contribute toward the statutory
mandate that the board, in consumptive use permit proceedings, ascertain consistency of the
proposed water use with ite public interest. See Section 373.223, Fla. Stat. The legislature has
given little guidance as to what is "consistent with the public interest" although this term is
prescribed as the standard to be applied. It is recognized that what may be consistent with the
public interest today, may not be so consistent tomorrow. This makes it essential that a
governing board have broad and divergent interests in order to nake these judgments.

If board members arc appointed to represent their respective interests as large agricultural or
industrial water users, as urban or rural dwellers, or as water suppliers, then the collegial board's
abilities to ascertain the "public interest" may be hampered or, at least, there will be a public
perception that the true public interest is not being discovered and protected.

Board members should be lay persons, not experts in the field of water management. There is
no requirement in the Florda Statutes that board members have any particular expertise. 'Ihe
boards have authority to hire executive directors to whom they can delegate portions of their
responsibilities, and they are empowered to employ professional staff members and to retain
expert consultants.

Ad valorem taxing

The appointed governing boards of each of the water management districts raise substantial
revenues each year by levying ad valorem taxes. The appointed South Florida Water
Management District Governing Board has levied ad valorem taxes for more than forty years,

9197047674232 P. 12

B La c ,-U .... -- -. ,.vaj ... t J.. C^.^^,a..I i 4 =L...-.--. -- jf

cvcr since it was lirt created as Central and Southern Florida Flood Cotro Digrik i 1949.
The rppoined Smtwcst forida Waer Mmagemm tIriet Govering Ded Wi mecpative
appoint t basin bands have levied ad val or luaes at year siB 1961. The pu of the
siac of Florida passed a co-sttiuiaml smement in 1975 I t emaK se d her appelated
goveain bauds to levy ad valorem takes, widWe y beam dine ach year smce. Thee are
anuamro odher board, c sisasi a ahuorites dhe wkh o m-ected hmant
which amlaBly levy ad valOia taxes.

Appoinive Boards

Appointing governing board members hdps to ehnsue the rl cprl cessary to
achieve a public ihar cocasems. The system bsewa nlia wia., as cam be see fram he
R aenorT n d rI lm5B -e m D s t m m~bary 2 19 3
Florida ien. of ep onP..d oCNatS S, aua 1 age Smnwhict m w* .
there was a air..y I bad) diaruitim o gcnring board qppial by occptm
of board shmbers during se pra leNo yea s 1974193. The w w li to goverani
boards of kwaer asmnaancse diktricu was reviewed exmidly oby SteL Ui ai 198
pArsa*m to SedwmI ml&d s I(dE. The S e of IappeS c eat" gseinaei g hoard
som eers s specirficlly reviewed by te st fforthe A. iM Sair r mId -l Co.ae ioa
caWiate M am itria f hl I fo Ma seeL pavy ai 'mPp.4 a19-Is. Thime sMfr
WAKBBBae, I Iapvvtt II US jBry, Ijw 1r%- jogl

rcc und-- than appoiMBd btask be rcaind, mafi OhS qpeslimet was fawrr d bica e

Smmbers are no swayed by constituet pessam, tal ore i can be
devoted to resource mwanentm aMnd s to 9polisst cmMas, a dlt Ste
backgrouns of those caem can be moorn caew-y vi to acdhe a bae
of views on do boards.

A rclativy large board appointed by the goverr, witk iL bua sp aaue iO rsss, heps
w emsurc dut s board maemeo' oploas will, Ia the ek, ead to wise dtcisi d to a jus
consensus oa where Ue public blerest lies in ay given case.


University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs