Title: "Water Management; The Future of Florida Legal Implications" By James S. Wershow
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 Material Information
Title: "Water Management; The Future of Florida Legal Implications" By James S. Wershow
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Language: English
Publisher: The Florida Bar Journal
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - "Water Management; The Future of Florida Legal Implications" By James S. Wershow (JDV Box 43)
General Note: Box 18, Folder 1 ( Water Task Force - 1983 ), Item 19
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Full Text










WERSHOW


James S. Wershow, in addition to being a
member of Wershow, Burwell, Carroll &
Wershow in Gainesville, is a consultant in
land use planning at the University of
Florida and a visiting professor of
agricultural law at the Institute of Food and
Agricultural Sciences at the University of
Florida. He has served as vice chairman of
the Agri-Business Law Committee and past
chairman of the Tax Section of The Florida
Bar, as well as a director of the Farm Bureau
Federation and a member of the Tobacco
Advisory Committee, USDA.
He is the author of numerous articles on
land taxation published in the University of
Florida Law Review.


6


THE

FUTURE

OF

FLORIDA

LEGAL

IMPLICATIONS

BY JAMES S. WERSHOW


A Though the importance of adequate
and clean water resources cannot be
overestimated, water is an especially critical
natural resource in Florida. In addition to
the necessity of water for basic life
functions, water is particularly important in
Florida agriculture, industry, and
recreation. Also Florida's geography and
topography surrounded on three sides by
water, lowlying, and dotted with numerous
lakes and rivers pose unique problems in
the control and management of the
available water.
The degree of regulation of Florida's
water resources in terms of availability, use,
quality, and quantity is commensurate with
its importance in Florida. Important to
lawyers is knowledge of broad regulatory
framework imposed on Florida's water
resources and recent state regulatory efforts
to direct the future of Florida water, most
particularly the Florida Environmental
Reorganization Act of 1975. This article will
also identify areas of conflict arising from
the recent legislative changes, the initial
responses to them by involved agencies, and
the need for further reform or rethinking of
the problems identified.
Regulatory Overview
Initially, it will be useful to briefly sketch
the broad regulatory framework governing
Florida waters. State regulation, of course,
is the more pervasive, but federal law has
both direct and indirect impacts. On a direct
level, the U.S. Corps of Engineers has
jurisdiction over the navigable waters of the
state and can control certain activities
affecting such waters;' this control will
usually bring the Corps into cooperation


THE FLORIDA BAR JOURNAL V






















with various state agencies that have
overlapping responsibilities in the area."
Less direct, but perhaps more important, is
the impact of the Federal Environmental
Protection Agency and its governing
legislation, the National Environmental
Protection Act (NEPA).3 Heightened
environmental interest in recent years has
led to federal legislation in areas of
environmental concern such as air and
water.4 Resulting federal legislation
contains provisions delegating to the states
primary responsibility for the
administration of the federal environmental
programs."
On the state level, the regulatory picture is
characterized by the overlapping
responsibilities of entities reflecting
different interests and purposes in the
control of water. Also, a trend may be
discerned in Florida from localized
responsibility and control of water quantity
and quality to greater centralization of the
regulatory function, particularly the
centralization dictated by federal
delegation in the area of water quality.'
Occupying a central position in the Florida
regulatory scheme are the various "special
districts" to which powers have been
delegated by the state to regulate or control
water in some way; these include the soil
and water conservation districts,' the
drainage districts,8 and the water
management districts.* Although different
in purposes and scope of powers, these
special districts have in common an
autonomous legal existence, local
participation and control, and substantial
authority to effect rules and regulations to
implement their statutory powers.


Centralized state regulation is in the
Department of Environmeutal Regulation
after the enactment of the Florida
Environmental Reorganization Act of
1975." The Department of Health and
Rehabilitative Services, through the
Division of Health, now has substantial
delegated powers in the water quality
area." Discussion of the larger state
agencies will be deferred until a discussion
of the Florida Environmental
Reorganization Act, which will follow an
outline of the special districts mentioned
above.
Soil and Water Conservation Districts
Numerous soil and water conservation
districts have been created pursuant to
statutory authorization."1 Initial enabling
legislation for the districts was passed in
1937 with the intent "to control or prevent
soil erosion and prevent floodwater and
sediment damages, and further the
conservation, development and utilization
of soil and water resources and the disposal
of water."" Although this legislative
purpose is broadly phrased, the individual
districts have generally limited themselves
to the soil and water conservation problems
of individual farmers." Individual districts
generally follow county lines in terms of
jurisdiction and nearly all Florida counties
are within some soil and water conservation
district; three exceptions are Monroe,
Collier, and Dade counties."1 All the
established districts are currently active,
although the level of activity varies
depending on the intensity of agricultural
development within the district.16
Additional legislation in 1969 authorized
the creation of watershed improvement


VOLUME 51 NUMBER 3, MARCH 1977


i 'I
'II





WATER MANAGEMENT
LEGAL IMPLICATIONS


districts as subdivisions of soil and
water conservation districts."1
There are currently 20 watershed
improvement districts approved
for operation in Florida.'1 The
watershed improvement districts
are primarily concerned with
localized flooding problems19 and
may cover areas in more than one
soil and water conservation
district.20 The watershed
improvement districts, and not the
soil and water conservation districts
themselves, have ad valorem taxing
authority.21
In summary, the soil and water
conservation districts are
concerned with water management
as it relates to the needs and
conservation of agricultural
resources. Although the legislative
authority is more broadly phrased,
the districts have concentrated on
this agricultural purpose. The
districts are legally autonomous,


number in excess of 50, and exist in
all but three counties of Florida.
Drainage Districts
Drainage districts in Florida, like
other special districts, are formed
by local landowners, a majority of
whom agree and make proper
application to establish a
district.22 The general purpose of
such districts, as outlined by the
statutes, is "preserving and
protecting water resources, for
sanitary or agricultural purposes, or
when the same may be conducive
to the public health, convenience or
welfare, or of public utility or
benefit, by drainage, irrigation, or
water management,"23 The districts
are managed by a locally elected
board of supervisors,24 which is
given detailed powers to effect the
drainage, protection and
reclamation of land within the
district.25 The districts are
empowered by statute to levy
taxes26 and issue bonds to finance
the works of the district.27
In addition to formation by local
landowners, drainage districts may


NORTHWEST V- .1
DISTRICT SUWANEE RIVER
DISTRICT -

SOUTHWEST
DISTRICT


STATE OF FLORIDA
WATER MANAGEMENT DISTRICTS
FINAL PLAN
effective January 1, 1977


ST. JOHNS RIVER
DISTRICT


be formed on petition of the
Department of Environmental
Regulation (DER).28 Also, annual
reports of district operation and
water management plans must be
filed with the DER, which at least
once every five years must review
the district's water management
plans and suggest appropriate
modifications.29 In general
summary, the established drainage
districts are concerned with the
reclamation of wet or overflowed
lands and the protection of lands
subject to overflow.
Water Management Districts
The most important and
potentially the most powerful
water regulatory bodies in Florida
are the water management districts,
which were reorganized into five
districts on January 1, 1977.30 Due to
the critical importance of the state's
water resources and the broad
statutory powers given to these
bodies to control Florida water, a
more detailed outline of their basic
structure is required.
In 1972, the legislature passed the
Florida Water Resources Act,31
which, among other things,
established six water management
districts in a new statutory
structure.32 Two of these districts,
the Central and Southern Florida
Flood Control District and the
Southwest Florida Water
Management District, had been
previously established by the
legislature in 1949 and 1961
respectively.33 In enacting the
Florida Water Resources Act, the
legislature sought to provide even
greater protection and control of
water resources than had
previously existed. In this
legislation, the legislature expressed
a comprehensive policy for the
management of Florida water.34
While the initial authority over
water management activities was
vested in the Department of
Natural Resources (now in the
DER),35 it was the intent of the
legislature that the department
delegate such authority to the
localized governing boards of the
water management districts.36
Recent legislation resulted in
reorganization of the six existing
districts into five districts as of
January 1, 1977. The Lower Gulf
Coast Water Management District
was abolished, and territory within
its jurisdiction was transferred to


THE FLORIDA BAR JOURNAL







the Southwest Florida Water
Management District and the
Central and Southern Florida Flood
Control District, which were
renamed the South Florida Water
Management District. Also, an area
currently within the jurisdiction of
the Southwest Florida Water
Management District was
transferred to the St. Johns River
Water Management District.37
Each water management district
is controlled by a governing board
comprised of nine members who
reside within the district.38 The
board members serve four-year
terms after appointment by the
Governor and confirmation by the
senate.39 The board members elect
a secretary and a chairman who
serve two-year terms.40 The
chairman and other board
members receive no compensation
for their services.41 The board in
turn is authorized to employ an
executive director, other technical
staff, and a legal staff.42
The governing board of the
water management district may
establish subdivisions, or basin
boards, within the district. The


basin boards must have a minimum
of three members, and a member of
the water management district's
board serves as chairman. In
general, the basin boards have
responsibility for discharging the
district's water management
responsibility on a localized level.43
The governing boards are given
substantial powers to effectuate
their broad statutory responsibili-
ties. The statute authorizes the
water management district
governing boards to
clean out, straighten, enlarge or change the
course of any waterway ... to provide such
canals, levees, dikes, dams, sluiceways,
reservoirs, holding basins, floodways,
pumping stations, bridges, highways and
other works and facilities which the board
may deem necessary, establish, maintain and
regulate water levels in all canals, lakes,
rivers, channels, streams or other bodies of
water owned or maintained by the district...
to hold, control and acquire by donation,
lease or purchase, or to condemn any land,
public or private, needed for rights-of-way
or other purposes ...."
Clearly, these are broad powers. To
finance the activities, the water
management districts derive their
funding from four sources: (1)
direct state appropriations from the


General Revenue Fund, (2) permit
application fees, (3) ad valorem
taxes, and (4) issuance of bonds.
The state appropriation is intended
to defray administrative and
regulatory expenses of the district.45
On the other hand, district
programs of more direct benefit to
a limited segment of the
population, as opposed to state
taxpayers in general, are financed
through the more direct means of
permit fees46 and property taxes.47
Finally, the districts have statutory
authority to issue bonds subject to
certain limitations.48
The most significant source of
funding is the districts' ad valorem
taxing authority. On March 9, 1976,
Florida voters approved a
constitutional amendment which
provides specific millage caps on
ad valorem taxation for water
management purposes. In general,
the constitution as amended sets a
1.0 mill ceiling for most of the state
and a 0.05 ceiling for the panhandle
area.49 Beginning in the taxing year
of 1977, the following limits have
been established by the
legislature:50


VOLUME 51, NUMBER 3, MARCH 1977





WATER MANAGEMENT
LEGAL IMPLICATIONS



Northwest Florida Water
Management District 0.05 mill
Suwannee River Water Manage-
ment District 0.75 mill
St. Johns River Water
Management District 0.375 mill
Southwest Florida Water
Management District 1.0 mill
South Florida Water Manage-
ment District 0.80 mill
Recent statutory amendments
also provide that the water
management districts are the sole
governmental units which can levy
ad valorem taxes for water
management purposes pursuant to
the state constitution."5 The
amendments also prohibit any laws
which would divert the funds so
raised by the water management
district to any other governmental
unit for water management
purposes.52 These recent
constitutional and statutory
amendments reflect the importance
of ad valorem taxing authority to
the operation of the individual
water management districts.
An important feature of the water
management districts is their
independence and diversity in
viewpoints regarding water
management. This diversity
mirrors the different types and
complexities of water management
problems with which they must
deal in their geographical region.
Also, the variables of experience of
technical staff, the basic water
management philosophy of the
governing board and its technical
staff, and the pressures of
competing interests within the


district all have an impact on the
individual districts' water
management programs.53
In executing their broad water
management functions, the
governing boards are empowered
by statute to adopt rules and
regulations affecting the use of
waters within the district and are
given authority to enforce such
rules and regulations in any court of
competent jurisdiction."4 The most
significant aspect of the water
management districts' regulatory
power is their consumptive use
permitting authority:
The governing board or the department may
require such permits for consumptive use of
water and may impose such reasonable
conditions as are necessary to assure that
such is consistent with the overall objectives
of the district or department and is not
harmful to the water resources of the area."
In order to obtain a consumptive
use permit, the applicant must
establish that the proposed use: (1)
is a "reasonable beneficial" use, (2)
"will not interfere with any
presently existing legal use of
water," and (3) is consistent with
the public interest." Should the
supply of water be inadequate for
each of two competing uses, the
governing board or department can
approve or modify the application
which best serves the public
interest."57 The legislature in 1976
expressly provided that the water
management district's statutory
authority over consumptive use
permitting was exclusive,
providing that any conflicting laws,
rules or regulations were
superseded.58 Clearly, this power to
decide who can utilize the available
water and to what extent, although
subject to statutory standards, is an
extensive power, particularly in


areas of the state where there is an
ever-increasing demand for water.
Also, as opposed to the water
management districts' less
obtrusive role of planning and
water management, the permitting
power brings the districts into close
contact with citizens and property
interests who must obtain the
governing board's approval, via the
permit, to implement some planned
use of their private property.
Additional permitting authority is
conferred on the water manage-
ment districts in the areas of
artificial recharge projects,59
projects related to the management
and storage of surface waters
(dams), 60 the use of district works
or land,61 the construction, repair
and abandonment of water wells,62
and registration of well drillers.63
The Water Management Districts
and the Florida Environmental
Reorganization Act of 1975
In 1975, the legislature enacted
the Florida Environmental
Reorganization Act.64 The primary
motivation for the Act's passage
was the desire to centralize
authority for the numerous
environmental programs previous-
ly administered by different state
agencies.65 In addition to
streamlining and greater
accountability, a major goal was
making environmental permitting
systems comprehensible, respon-
sive, and efficient in serving the
needs of the state's citizens.66
In broad outline, the Act created
the Department of Environmental
Regulation (DER) as the
centralized permitting agency to
implement the state's various
environmentally related programs,
including the management of the
state's water resources.67 This
centralization was effected by the
transfer of individual agencies'
environmental authority to the
newly created DER. In the area of
water control, the water
management authority of the
Department of Natural Resources
was transferred to the DER.6s The
drinking water supply authority of
the Division of Health of the
Department of Health and
Rehabilitative Services was also
transferred to the DER.69
Although authority over
environmental programs was
centralized in the DER, the Act
required the subsequent delegation


THE FLORIDA BAR JOURNAL


L







of as much authority as possible to
newly created "environmental
districts."70 This delegation is
particularly significant to the water
management districts, since the
statute provided that
The environmental districts shall be
collocated with the water management
districts to the maximum extent
practicable."
And that
Under the supervision of the Division of
Environmental Permitting, all field services
and inspections required in support of the
decisions of the department relating to the
issuance of permits...shall be accomplished
at the environmental district center level to
the maximum extent practicable."7
Thus, with few exceptions, the
processing of all applications for
permits is to be handled at the
district center level.
This aspect of the reorganization
has resulted in overlap and
confusion in responsibilities due to
the unclear statutory responsibility
of the water management districts
in the area of water quality
regulation. As noted earlier, in
executing its responsibilities in the
area of consumptive use
permitting, the water management
district must determine that the
permitted use not only is consistent
with the overall objectives of the
district, but also is "not harmful to
the water resources of the area.""
The various functions transferred to
the DER by the Department of
Pollution Control and other
agencies relate to the protection of
the quality, or the prevention of
pollution of Florida's water, as
opposed to control of the supply or
quantity of water. As previously
discussed, the management of
water quantity and flow is the
responsibility of the water
management districts.74
The statutory bifurcation of
function DER's water quality
control and the water management
districts' water quantity and flow
control-overlooks the fact that
such functions are not always
mutually exclusive.75 Overlaps are
common, resulting in duplication of
effort, confusion among potential
permit seekers, and wasted time
and expenditures. Confusion as to
the scope of the districts' water
quality authority in evaluating use
permits dealing primarily with
water quantity but having a
potentially adverse impact on the
quality of the affected water has
been expressed by those charged

VOLUME 51, NUMBER 3, MARCH 1977


with implementing the permitting
process.76 Should the district also
pass on the quality aspect of the
requested use, or approve or reject
the application solely on the basis of
quantity evaluative criteria,
thereby leaving the applicant to
seek his water quality approval
from the DER under a separate
permit?
Thus, not only has the FERA's
intention to eliminate confusion and
duplication of function in
permitting not been realized but it
has resulted in a negative impact in
the area of water use permitting.
Now a citizen seeking a permit
relating to water use may
potentially face the dual
requirements of two bodies-the
DER's environmental district office
and the water management district
office who may have different
application procedures and
evaluatory criteria, but who also
may be collocatedd."
The DER and concerned water
management districts have reacted
to this problem in individual and
joint efforts to clarify responsibili-
ties in water use permitting and


develop working relationships to
eliminate duplication of effort and
confusion to applicants. Initially,
the Central and South Florida
Flood Control District obtained an
opinion from the Attorney General
clarifying the district's water
quality authority under Florida
Statutes Chapter 373.77 The
Attorney General determined that
the district's authority under the
statute could not be properly
discharged without evaluating the
impact of a proposed water use on
water quality.78 Recognizing the
potential conflicts with the
Department of Pollution Control's
(now DER's) more explicit control
over water quality, the opinion
recommended that the Department
of Pollution Control (now DER)
delegate part of its water quality
jurisdiction to the water
management district.79
Subsequently, the staffs of the
DER and the water management
districts engaged in a comprehen-
sive effort to identify the numerous
instances of overlap in responsibili-
ties. The study identified those
areas in which there was a


II


~







WATER MANAGEMENT
LEGAL IMPLICATIONS


duplication of permits at the
present time, or a potential future
duplication when the water
management district has fully
adopted rules relating to that
particular function.80 In those
instances of present or future
permitting redundancy, the study
sought to identify whether there
was a further overlap in the
evaluatory criteria used by the two
agencies in reviewing permit
applications.81
The extent of the permitting and
evaluatory criteria redundancy2
with the DER requirements varies
among the different water
management districts, depending
upon the level of their activity, the
nature of the water management
problems faced by the district, and
the extent to which the individual
districts have promulgated rules


implementing their statutory
permitting authority. For example,
the Central and South Florida
Flood Control District, which has
been in operation for 27 years and
which faces a broad range of water
management problems, has a
highly developed set of rules.83 In
this district, there are substantial
permitting and evaluatory criteria
redundancies in the areas in which
the district's artificial recharge
authority84 overlaps with the DER's
authority over sewage and
discharges into state waters.85
There is a similar permitting and
evaluatory criteria redundancy
resulting from the overlap of the
district's "surface water
management storage" authority86
and the DER's dredge and fill
authority."7 On the other hand,
where the district's "use of project
works"88 authority intersects with
several areas of DER authority,89 a
permitting redundancy exists, but
there is no overlap in the evaluatory
criteria used in deciding on the
permits.90 Finally, in those areas in
which the district's authority to
regulate wells9" overlaps with the
various areas of DER's authority,92
there is a potential permitting
redundancy if the district fully
implements its statutory authority
by developing permitting rules, but
there will be no evaluatory criteria
redundancy.
In resolving the identified
duplication and approaching the
goal of "one-stop" permitting, a
potential approach has been
suggested in negotiations between
the DER and the water
management districts. Basically,
this approach is to identify a
primary agency with total authority


in a specific permitting area; the
primary agency would receive
input from the secondary agency.
Therefore, an applicant would
apply to the primary agency,
which, under the terms and
conditions of the interagency
agreement between DER and the
water management district, would
evaluate the application; the
primary agency would then obtain
guidance from the secondary
agency in the event of an evaluatory
criteria overlap.
After reviewing the existing
permitting and evaluatory criteria
redundancies in the water
management districts, the DER
initially proposed that permitting
responsibilities under the
delegation approach outlined
above be divided between the DER
and the water management districts
as follows:93
Areas in which the DER is the
Primary Agency
1. Applications for public water supply
systems, including potable water supply
wells. In cases in which the water supply
project required more than 100,000 gpd of
water, the DER would secure a water use
allocation from the water management
district."
2. Applications for projects requiring the
disposal of domestic or industrial waste by
means of artificial recharge. The water
management district would provide
appropriate input.95
3. Applications for the construction or
alteration of docks, piers, seawalls and
dredge and fill operation, not involving
discharges. The water management district
would provide appropriate input."
4. Applications for the construction or
alteration of works involving the surface
discharge of domestic or industrial waste.
The water management district would
provide appropriate input."
Areas in which the Water
Management Distrist is in the
Primary Agency
1. Applications for consumptive uses
(other than the authority granted to the DER
in #1 above, and consumptive use by
discharge). The DER would provide
appropriate input."
2. Applications involving artificial
recharge (other than the disposal of
domestic or industrial waste, where the
authority is extended to the DER under #2
above). The DER would provide
appropriate input."
3. Applications for the construction or
alteration of dams, impoundments,
reservoirs, or appurtenant works. The DER
would provide appropriate input.'"1
4. Applications for the construction or
alteration of district works involving
nondomestic and nonindustrial surface
discharges."1'
5. Applications for the use of district works
not involving district rights-of-way, or
discharges.


THE FLORIDA BAR JOURNAL


I







Such a program would be
consonant with the general
statutory intent to promote
delegation of responsibilities and
interagency cooperation, 02 and
appears to be the only rational
approach to the permitting
redundancy problem under the
present statutory framework.
Nevertheless, the program is not a
panacea-potential problems must
be worked out. For example, how is
an applicant to know which one of
the agencies-DER or the water
management district-is the
"primary" agency to which he
should apply? Can the district and
the environmental district center
coordinate their "inputs" within an
appropriate time frame for permit
approval or rejection? Collocation
of the environmental district
centers with the water management
districts would alleviate this
problem somewhat, but early
indications were that collocation
was being hindered by funding
problems. One of the goals of the
FERA was to pinpoint responsibili-
ty for decisions. Which agency is
"responsible" for decisions when in
many instances one will rely heavily
on the "input" of the other agency?
How will the individual water
management districts react to
eventual collocation and close
cooperation with DER's environ-
mental district centers on
permitting matters? The proposed
interagency arrangement necessar-
ily is premised on a close working
relationship and would be
completely frustrated if interagen-
cy conflicts developed.
The director of the DER has
indicated that the department is
reviewing the current situation with
an eye toward further statutory
changes.103 The scope and direction
of such potential changes are not
presently known. But in light of the
water management districts' critical
role in the control of the state's most
precious natural resource, any
changes must be carefully assessed
in light of their impact on the water
management districts.
Future
Harmon Shields, director of the
Department of Natural Resources,
recently observed:
Water Management in Florida has and will
continue to be a major determining factor in
the state's growth rate. If water supplies
cannot be provided adequately, the state's
growth will be limited or virtually stopped.

VOLUME 51, NUMBER 3, MARCH 1977


The water management districts' authority,
responsibility and source of funding will
continue to be a factor of much discussion
before future sessions of the state
legislature.'"
The current levels of power
possessed by the water manage-
ment districts will increase as
growth and consequent increased
demands for water make wise
allocation policies of even more
critical concern. Is the concept of7
localized control and decision
making that the current district
structure represents still valid in
view of their increasing power in an
area that is of total state concern?
Should the DER seek even greater
statutory authority over the
district's quantitative water control
activities, or will the recently
reorganized structure provide
sufficient administrative oversight?
Which type of legal structure will
best serve all the people of Florida?
The problems in this area are a
unique confluence of law, science,
and politics, the resolution of which
will have a substantial impact on
Florida's future. The complexity of
the problem is matched only by its
importance, and must receive close
attention from legislators and all
concerned interests. o


FOOTNOTES:


I The Corps of Engineers, under the
Federal Water Pollution Control Act of 1972
(FWPCA), 31 U.S.C. 1344(a) (Supp. II,
1972), has authority to administer a
permitting system over dredge and fill
operations in "the waters of the United
States." The Corps has issued regulations
defining its jurisdiction beyond the previous
limitation to "navigable waters of the United
States." The expanded jurisdiction
contained in the FWPCA and the Corps
regulations extends federal regulation over
dredge and fill activities to a greater degree
than before, giving the Corps a greater role
in water quality control. For an excellent
discussion of the Corps' new jurisdiction, see
Commentary, Federal Control over
Wetland Areas: The Corps of Engineers
Expands Its Jurisdiction, 28 U. FLA. L. REV.
(1976).
2 The FWPCA does not preempt state
water quality control. A state water quality
certification is required before the Corps
may issue a permit. 33 U.S.C. 1313 (Supp.
II, 1972). Where both a state and Corps
permits are required for the same activity,
the Corps may not grant the permit after the
state has denied theirs. If the state permit is
issued, however, the Corps may not refuse
its permit absent overriding national
concerns. Corps of Engineers Reg. 209.120-
(f) (e) (iii), 40 Fed. Reg. 31,327 (1975).
3 42 U.S.C. 4321 et seq (1972).
SClean Air Act, 42 U.S.C. 1857 et seq
(Supp. II, 1972). Federal Water Pollution








WATER MANAGEMENT
LEGAL IMPLICATIONS



Control Act. 33 U.S.C. 1344(a) et seq
(Supp. II, 1972).
5 Under the Clean Air Act, see 42 U.S.C.
1857c-5 (Supp. II, 1972) for provisions
relating to state implementation of air
quality standards through state
promulgation of standards for approval by
the Environmental Protection Agency.
Under the FWPCA, see 33 U.S.C. 1313
(Supp. II, 1972) for provisions relating to the
development of state water quality control
programs and interrelationship of state
agencies and control with the federal
agency.
6 The FWPCA requires the states to: (1)
Promulgate state water quality standards;
(2) periodically review these standards
under the supervision of the Governor or the
state water pollution control agency; (3)
identify areas of the state where water
quality control is lacking; and (4) engage in a
continuing planning process. See 33 U.S.C.
1313(a)-(c) (Supp. II, 1972). These state
responsibilities require centralized authority
for efficient state-federal cooperation.
SFLA. STAT. ch. 582 (1975). See text
accompanying notes 12-21 infra.
8 Id. ch 298. See text accompanying notes
22-29 infra.
Id. ch. 373. See text accompanying notes
30-63 infra.
'o Fla. Laws 1975, ch. 75-22.
Section 381.031(g)(3) of the Florida
statutes gives the Division of Health
authority to "adopt, promulgate, repeal, and
amend rules and regulations" relating to
sanitaryay practices relating to drinking
water made accessible to the public;
watersheds used for public water supplies;
disposal of excreta, sewerage, and other
wastes ..." The Florida Environmental
Reorganization Act of 1975, Fla. Laws 1975,
75-22, 9, transferred the Division of Health's
public drinking water authority to the
Department of Environmental Regulation
(DER). DER in turn delegated this function
to the Division of Health. Id.


12 FLA. STAT. ch. 582 (1975). The state
legislation, originally enacted in 1937, was in
response to federal legislation known as the
Federal Soil Conservation and Domestic
Allotment Act, 16 U.S.C.A. 590 et seq
(1972). While the state's soil and water
conservation districts are locally managed,
under administrative control of the
Department of Agriculture and Consumer
Services, federal input is provided through
the Soil Conservation Service.
13 In addition, the Soil and Water
Conservation Districts were established to
preserve natural resources, control floods,
prevent impairment of dams and reservoirs,
assist in maintaining the navigability of rivers
and harbors, preserve wildlife, protect the
tax base, [and] protect public lands," FLA.
STAT. 582.05, to conduct surveys and
investigations relating to soil erosion and
proper utilization of soil and water
resources, Id. 582.20(1), to carry out
preventive and control measures for flood
prevention, development, and utilization of
soil and water resources, methods of
cultivation, and changes in the use of land,
Id. 582.20(3), and to adopt and enforce
land-use regulations for the district, Id.
582.21 et seq.
14 Interview with Jesse Livingston of the
Soil Conservation Service, Gainesville, Fla.,
July 9, 1976.
15 Id.
'" Id.
7 FLA. STAT. 582.331 (1975).
Is Livingston interview, supra note 14.
'1 Id.
2o FLA. STAT. 582.39 (1975).
21 "The watershed improvement district
shall have all the powers of such soil and
water conservation district and in addition
thereto shall have authority to levy a tax... to
be used for purposes of the watershed
improvement district." FLA. STAT. 582.43
(1975). This taxing power is limited to a
maximum of 3 mills of assessed valuation,
"or such rate as may be approved by the
qualified electors of such district." Id.
582.44.
22 FLA STAT. ch. 298 (1975).
23 Id. 298.01.
24 Id. 298.12.
I5 See FLA. STAT. 298.15-.23 (1975). In
particular, 298.22 outlines the powers of the
supervisors to effect land reclamation.
26 FLA. STAT. 298.29 et seq. (1975).
27 Id. 298.47-.52.
2 Id. 298.01. This authority was
previously in the Department of Natural
Resources, but pursuant to the provisions of
the Florida Environmental Reorganization
Act of 1975, Fla. Laws 1975, ch. 75-22, the
powers of the Department of Natural
Resources were transferred to the newly
created Department of Environmental
Regulation.
9 FLA. STAT. 298.26 (1975). In 1976, the
legislature gave the six water management
districts a role in review of the drainage
district's operation. Notice of application to
form a drainage district under ch. 298 of the
Florida Statutes must now be served on the
water management district in which the
drainage district would be situated. Fla.
Laws 1976, ch. 76-187, 3. In addition,
notices regarding changes in the boundaries
of the drainage district or in their water
management plan must now be served on
the district. Id. 4. Finally, the drainage
district commissioner's report is now


required to be served on the involved water
management district. Id. 1.
30 The Northwest Florida Water
Management District, the Suwannee River
Water Management District, the St. John's
Water Management District, the Southwest
Florida Water Management District, the
Central and Southern Florida Flood Control
District, and the Ridge and Lower Gulf
Coast Water Management District. FLA.
STAT. 373.069 (1975).
31 FLA. STAT. ch.373 (1975).
32 See note 30 supra.
33 For a brief outline of the history of
water management district legislation prior
to the enactment of the Florida Water
Resources Act, see Wershow, Agriculture
and Changing Legal Concepts in an
Urbanized Society, 27 U. FLA. L. REV. 78,81
n.23 (1974).
34 FLA. STAT. 373.016 (1975).
35 Under the initial legislation
administrative control was vested in the
Department of Natural Resources.
However, pursuant of the provisions of the
Florida Environmental Reorganization Act
of 1975, such authority was transferred to the
newly created Department of Environmen-
tal Regulations. See text accompanying note
68 infra.
36 "The department may exercise any
power herein authorized to be exercised by a
water management district; however, to the
greatest extent practicable, such power
should be delegated to the governing board
of the water management district." FLA.
STAT. 373.016(3) (1975).
37 Until the reorganization of the water
management districts took effect on January
1, 1977 some governing board members
served on two boards. For example, one
member of the Lower Gulf Coast Water
Management District representing the area
transferred from that district served on the
Central and Southern Florida Flood Control
District (renamed South Florida
Management District). A member of the
Southwest Florida Water Management
District served on the St. Johns River Water
Management District representing the area
transferred to that district. On January 1,
1977, those members were no longer on the
governing boards of their original districts.
Fla. Laws 1976, ch. 76-243, 4. The recent
legislation also provides more detailed
residency requirements, relating the
membership to specific basin areas within
the district in order to assure more balanced
representation. Fla. Laws 1976, ch. 76-243, 6.
38 The statute provides for nine members,
but during the transition period caused by
the reorganization, three of the districts had
an extra member. See note 37 supra.
39 FLA. STAT. 373.073 (1975).
40 Id. 373.079.(2)
4 Id. 373.079(3)
42 Id. 373.079(4)-(5)
43 See FLA. STAT. 373.0693-.0697 (1975).
44 FLA. STAT. 373.086 (1975).
'4 Id. 373.501.
46 Id. 373.503(1) For discussion of the
water management districts' permitting
authority, see text accompanying notes 55-63
infra.
4' FLA. STAT. 373.503 (1975).
48 Id. 373.563.
F FLA. CONST. Art. VII, 9(b) now reads:
"Ad valorem taxes, exclusive of taxes levied
for the payment of bonds and taxes levied


THE FLORIDA BAR JOURNAL







for periods not longer than two years when
authorized by vote of the electors who are
the owners of freeholds therein not wholly
exempt from taxation, shall not be levied in
excess of the following millages upon the
assessed value of real estate and tangible
personal property: for all county purposes,
ten mills; for all municipal purposes, ten
mills; for all school purposes, ten mills; for
water management purposes for the
northwest portion of the state lying west of
the line between range two or three east, 0.05
mill; for water management purposes for the
remaining portions of the state, 1.0 mill..."
[The italicized provisions indicate the
addition made by the constitutional
amendment.]
5s Fla. Laws 1976, ch. 76-243, 12.
5' Id. This restriction of ad valorem taxing
authority for water management purposes to
the water management districts should not
impair the authority of the watershed
improvement districts (subdivisions of the
Soil and Water Conservation Districts) to
levy ad valorem taxes. Although the
watershed improvements districts are
involved in handling localized flooding
problems as they relate to the districts' soil
conservation efforts, they do not assess the
ad valorem taxes for "water management
purposes.
52 Id.
53 Livingston interview, supra note 14.
54 FLA. STAT. 373.043, 373.044 (1975).
5 FLA. STAT. 373219(1) (1975).
"Domestic use ", which is exempted from the
permit requirement, refers to water usage
for individual personal needs or household
purposes such as drinking, bathing, heating,
cooking, or sanitation. Id.373.019(7) (1975).
6 FLA. STAT. 373.223 (1975). A
"reasonable-beneficial use" is defined as "the
use of water in such quantity as is necessary
for economic and efficient utilization for a
purpose and in a manner which is both
reasonable and consistent with the public
interest." Id.373.019 (5).
FLA. STAT. 373.233(1) (1975). If the two
competing applications are equally
qualified, the governing board must prefer a
renewal application over an initial
application. Id. 373.233(2).
Fla. Laws 1976, ch. 76-243, 9. The
apparent intent of the legislature in this new
legislation is to eliminate any consumptive
use permitting programs adopted by
governmental units other than the DER and
the water management districts who have
exclusive consumptive use permitting
authority. The new legislation is a further
attempt to reduce the duplication of permit
requirements that confront an applicant due
to the overlapping involvement of
governmental entities in water control.
59 FLA. STAT. 373.106 (1975).
Id. 373.409(1).
61 Id. 373.085(1). Written consent by the
governing board is required to connect to or
make any use of the district works. District
works are the structures or improvements of
waterways or other bodies of water that
have been undertaken or completed by the
district for water management purposes. See
FLA. STAT. 373.086 (1975).
62 FLA. STAT. 373.313(1) (1975).
63 Id. 373.323.
Fla. Laws 1975, ch. 75-22.
5 It is the intent of the legislature to
promote the efficient, effective, and
economical operation of certain

VOLUME 51, NUMBER 3, MARCH 1977


environmental agencies by centralizing
authority over, and pinpointing
responsibility for the management of the
environment by authorizing the delegation
of substantial decision making authority to
the district level and by consolidating
compatible administrative, planning,
permitting, enforcement and operational
activitiess" FLA. STAT. 403.802 (1975).
66 See Barron, Environmental
Reorganization Act- The Legislative
Perspective, 50 FLA. B.J. 264 (1976).
67 Fla. Laws 1975, ch. 75-22, 4. Under the
Florida Environmental Reorganization Act,
(FERA) the Department of Environmental
Regulation is divided into three divisions: (1)
the Division of Administrative Services, FLA.


STAT. 403.806 (1975); (2) the Division of
Environmental Programs, Id. 403.807; and
(3) the Division of Environmental
Permitting, Id. 403.808.

The FERA also created the Environmental
Regulation Commission to replace the
former Pollution Control Board. FLA. STAT.
403.804 (1975). The commission serves as
"the exclusive standard-setting authority of
the department," and with certain
exceptions, functions as "the adjudicatory
body for final actions taken by the
department." Id.

68 Fla. Laws 1975, ch. 75-22, 11. This
included the Department of Natural







WATER MANAGEMENT
LEGAL IMPLICATIONS


Resources' authority over the water
management districts.
6" Fla. Laws 1975, ch. 75-22, 9(2). The
drinking water supply functions were then
delegated by the Department of
Environmental Regulation to the Division of
Health, to be performed on behalf of the
DER pursuant to interagency agreements.
In addition to the powers and duties of the
Department of Natural Resources and the
Department of Health and Rehabilitative
Services, transfers from the Board of
Trustees of the Internal Improvement Trust
Fund, Fla. Laws 1975, ch. 75-22, 10, and the
Department of Pollution Control, Fla. Laws
1975, ch. 75-22, 8, to the DER were also
made.
These transfers centralized the various water
quality functions of the individual agencies
to the DER. Administrative control of the
water management districts was transferred
from the Department of Natural Resources
to DER but the water management districts
are still primarily responsible for the control
of water quantity. See text accompanying
notes 54-63 supra.
70 FLA. STAT. 403.809 (1975).
71 Id.403.809(1).
72 Id. 403.809(3)(a).
73 Id. 373.219.(1). See text accompanying
note 55 supra.
74 See text accompanying notes 30-63
supra.
75 See text accompanying notes 77-101
infra.
76 Letter from John H. Wheeler, attorney
for the Central and Southern Florida Flood
Control District, to James S. Wershow, April
7, 1976.
7 Op. Att'y Gen. Fla. 075-16 (1975). The
question presented to the Attorney General
was: "What authority and responsibility does
the Central and Southern Florida Flood
Control District have in the area of water
quality in its operation under Chapter 373,
Fla. Stat...?"
78 "The District ... is required by statute to
grant permits only when, for consumptive
use of water, it would not be harmful to the
water resources of the area. Section
373.219(1), Florida Statutes .... Since it is
axiomatic that lowering water quality would
be harmful to the water resources of the
District, it is clear that the District's
permitting procedures must take into
consideration water quality. This is
especially true when considering the general
policy of creation of the water management
district under the Florida Water Resources
Act of 1972, and the fact that the statute is to
be liberally construed for effectuating those
purposes. Section 373.616(1), Florida
Statutes." Id.
9 The opinion recommended that the
water management district "obtain authority
to act as agent for the Florida Department of
Pollution Control (now DER) in matters in
which a proposed activity would affect both
water quality and quantity." Id. See text
accompanying notes 92-101 infra.
The attorney general's opinion suggested as
an alternate recommendation that the water
management district "either require some


type of water quality permit or certification
be submitted to you along with any permit
application, pursuant to Chapter 373,
Florida Statutes, so that the Florida
Department of Pollution Control's (now
DER) permission is granted either prior to
consideration of your permit or concurrent
with that consideration..." Id. This
suggestion, of course, would frustrate the
"one-step" permitting procedure
reorganization efforts. See text
accompanying 93-101 infra.
so Letter from Dan F. Farley, Director,
Division of Environmental Permitting, to
John R. Maloy, Executive Director, Central
and Southern Florida Flood Control District,
February 4, 1976. The following information
has been abstracted from information
compiled by the DER and attached to this
letter which was furnished to James S.
Wershow.
s8 Id.
81 A "permitting redundancy" exists when
an applicant would be required to obtain a
permit from the Department of
Environmental Regulation and from the
individual water management district for the
same activity.
An "evaluatory criteria redundancy" exists
when the DER and the water management
district apply the same or essentially the
same standards in approving or
disapproving the permit.
"3 See Rules of the Central and Southern
Florida Flood Control District.
8 FLA. STAT. 373.106 (1975). In the
Central and Southern Florida Flood Control
District, rules regarding permitting have
been promulgated for activities such as
injection wells, drainage wells, percolating
ponds, and sanitary landfills, among others.
8 Id. 403.087(1). The DER's permitting
authority in this area includes discharge of
industrial wastes into surface water, the deep
well injection of industrial wastes,
percolating ponds, spray irrigation, and land
spreading.
86 Id.373.409(1). The Central and
Southern Florida Flood Control District has
promulgated rules under this authority
requiring permits for dredge and fill
activities. The other water management
districts, at the time of the DER study had
not yet promulgated rules in the area of
dredging and filling.
87 Id. 403.087(1), 403.088(3)(a). The
DER has implemented this authority by
promulgating permitting rules in the areas of
dredging, canal construction, maintenance
dredging, filling, seawalls, jetties and dams,
and the construction piers, bridges, and
overhead utility cables.
Id. 373.409(1). The Central and
Southern Florida Flood Control District has
promulgated permitting requirements
related to the connection with or placement
of structures in or across the works or lands
of the district.
89 For example, the DER's authority in the
areas of public water supply, sewage, and
discharge into state waters.
9 For example, for the construction of a
water supply well serving more than 25
people, an applicant would need a permit
from DER (under its public water supply
authority), and a permit from the Central


and Southern Florida Flood Control District
(under its "use of project works" authority),
but the two bodies would apply different
standards in deciding upon their respective
permits.
'9 FLA. STAT. 373.313(1), 373.323 (1975).
91 For example, drainage wells, deep well
injections of industrial wastes, and "well
drilling and use" authority under FLA. STAT.
403.087(1) (1975).
'3 Letter from Dan E. Farley, Director,
Division of Environmental Permitting, to
John Maloy, Executive Director, Central
and Southern Florida Flood Control District,
February 4, 1976. See note 80 supra.
4 This resolves the conflict between
DER's public water supply authority, which
is closely related to water quality concerns,
and the district's consumptive use permitting
authority. The applicant would seek one
permit from DER which would be
responsible for securing a water use
allocation from the district for uses in excess
of 100,000 gallons per day.
9 This resolves the conflict between
DER's sewage and discharge authority and
the water management district's artificial
recharge authority, placing primary
authority in DER, the water quality agency.
96 This resolves the conflict between the
DER's dredge and fill and construction
authority and the water management
district's surface water storage authority,
again placing primary responsibility in the
water quality authority.
9 This resolves a conflict between the
DER's discharge authority and the water
management district's artificial recharge and
surface water storage authority in favor of
the water quality authority.
98 With the exceptions of consumptive
uses by discharge and public water supply
systems, which authority is vested in the
DER, this provision of the agreement
appropriately vests most consumptive use
permitting authority with the water
management district, the water quantity
authority.
9 This provision of the agreement
preserves the primary authority of the water
quantity authority over artificial recharges
except those recharges such as the disposal
of domestic or industrial wastes which
involve more direct threats to water quality
and which are vested in the DER.
10 This provision appropriately grants to
the water management district authority
over these activities which directly affect the
flow and quantity of water.
1O' This provision preserves the district's
authority over its own works, except for
construction or alteration activities
producing discharges of industrial or
domestic wastes, where DER has the
primary responsibility.
102 See FLA. STAT. 403.802 (1975). See text
accompanying notes 64-66 supra.
103 Landers, Functions of the Department
of Environmental Regulation, 50 FLA. B.J.
269 (1976).
1' Shields, How Reorganization Affected
the Department of Natural Resources, 50
FLA. B.J. 266, 267 (1976).


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