Title: Water Task Force Report Meeting Materials for March 28, 1983
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 Material Information
Title: Water Task Force Report Meeting Materials for March 28, 1983
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Water Task Force Report Meeting Materials for March 28, 1983 (JDV Box 43)
General Note: Box 18, Folder 3 ( Treatments of Water - 1983 ), Item 32
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004209
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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Full Text












March 23, 1983


MEMORANDUM

TO: WATER TASK FORCE MEMBERS

FROM: WILLIAM E. SADOWSKI, CHAIRMAN
TASK FORCE ON WATER ISSUES

RE: MATERIAL FOR MEETING ON MARCH 28, 1983



Enclosed for your information and study in conjunction
with the Water Task Force meeting on March 28, 1983 are
the following articles:

1. Agenda

2. Draft copy of a press release explaining
proposed areas of inquiry by the Task
Force;

3. Journal article entitled "Interbasin
Transfers of Water in Florida" by
Deborah J. Kemp;

4. Remarks by Polk County Commissioner Jack
Simmers made to the Task Force December 2,
1982, in Jacksonville, relating to the
transport of water between counties;

5. Rough Draft by John DeGrove relating to
State Integrated Policy Framework;

6. Rough Draft by John DeGrove relating to
Strengthening the Regional Capacity for
Growth Management; and

7. Excerpts from the 1980 Report to Governor
Bob Graham from the Resource Management
Task Force.

















AGENDA

WATER TASK FORCE

March 28, 1983
9:00 a.m.-5:00 p.m.


I. Presentation by Richard Hamann on issues relating to
property rights and transport between political
jurisdictions.

II. Presentation by John DeGrove on issues relating to
growth, organizational structure, comprehensive
plans and integration of land and water resource
management.

III. Discussion







DRAFT PRESS RELEASE


Speaker H. Lee Moffitt requested the Task Force on Water
to examine water quality and water quantity issues in the
state, particularly with respect to our ability to protect
this valuable resource, in view of the growth expected over
the next quarter century. In the course of its
deliberations, it became evident that this original concern
as to whether the quantity and quality of our water would be
sufficient to support future growth and to preserve our
natural ecosystems was completely overshadowed by the
immediate and critical danger which groundwater
contamination presents to the public health. Hence, in
preparing its first report, the Task Force concentrated on
groundwater contamination, deferring other important issues
regarding water quantity, growth, and organizational
considerations to the second phase of its work.

Now that the first report has been presented to the
Speaker, the Task Force will begin deliberations on some of
these other issues. One area of inquiry will be the
transport of water across county and water management
district boundaries. Most urban areas which have a high,
concentrated need for water are clustered along Florida's
coastline, areas where water supplies are least plentiful
and most vulnerable to saltwater intrusion and contamination
of the surficial aquifer. At issue is how to meet these
communities' needs for adequate amounts of water of
sufficient quality without inhibiting the growth potential
of other areas and adversely iff n4g-j Jheh natural
ecosystems of the state. Consideration will also be given
to meeting the high, but usually seasonal, water needs of
agriculture while, at the same time, insuring adequate water
for nonagricultural areas.

A second area for Task Force consideration will be the
development of policy statements for all of the elements
required in the local government comprehensive plans. The
goal would be the development of a set of comprehensive
policy statements which are reflective of the growth
expected over the next quarter century and provide a
framework within which all local comprehensive plans would
be developed and reviewed.

A third area of inquiry is the organizational structure
at place at the regional level to insure that activities
such as local planning, zoning, transportation, consumptive
use permitting, and developments of regional impact are
coordinated and are consistent with state policies. The
Task Force reported that, on the whole, the organizational
structure established in Florida to directly manage its
water resources appears to be satisfactory and, for this
reason, no recommendations for comprehensive reorganization










were made in the first report. However, the Task Force also
believes that this state will face problems as a result of
future growth which will probably not be solved without a
change ultimately in the organizational structure at least
as it relates to integrating land, and water resource
management decisions at the regional level. The Task Force
will begin to examine these organizational issues by
reviewing the Development of Regional Impact process, the
role and responsibilities of the Regional Planning Councils,
local government comprehensive plans, and the decision-
making process in land use planning, zoning and
transportation to determine whether any changes in the
organizational structure are needed to better coordinate
these processes and to insure that they are occurring in a
manner which is consistent with state policies.


-2-









































Wafe2r -esources Ac


This article is an abridged
version of the first place
winner of the 1981 Frank
E. Maloney Environ-
mental Law Writing
Award. Sponsored by
The Florida Bar's Envi-
ronmental Law Section,
the award is given for the
best article on environ-
mental law submitted by
students of Florida law
schools.

Florida appears to be a water para-
diSe. blesed with an abundannce of
lakes. rivers, springs and ocean
lshtrcline. Unfortunately, water
p,) Oblelms loom on the horizon. South
Flirida has experienced a tremen-
c'"'' ~ipulation increase; St.
S!rt. Sar:sota and Fort Niyers
a: i: f; l tile fastest growiniii cities
:i a: i.ht iini. I'lhes( Illlicipal larleas
; f. 'l ;tare flacing \\ater slOorta.e
!r 'i i::!' in the near future. North
1l:1ridct( on the other hand. has not
experitencedt such a rapid growth in


population, and has seemingly abun-
dant supplies of ground and surface
water.
The possibility of diverting water
from northern Florida to supply
municipalities in southern Florida
has been a recent topic of heated dis-
cussion among administrative
agencies, local municipal planners
and private conservation groups.
This paper will examine the legal
mechanisms that regulate inter-basin
diversions of water. Although
Florida is a riparian state, it has adop-
ted legislation to more efficiently
manage water. While inter-basin
transfers are common within some of
the districts, large-scale transfers
have not yet been attempted between
districts. The possibility, however, is
being given consideration. South-
west Florida Water Management
District (SWFWMDI)) sponsored a
study examining, among other al-
ternatives, diversion of water from
the Suiwannee River, in the Siwannee
Siver \VMI) to tle T;amipa l3 y area.'
That idea will serve as an example
during the following discussion of
the means by which inter-basin trans-


I.O






U By Deborah J. Kemp


fers will be accomplished, or not, in
Florida.
Common law
Florida and most other riparian'
states have adopted the reasonable
use doctrine3 as concerns water use.
The doctrine utilizes a comparative
approach to determine which uses
are reasonable under the circumstan-
ces. The amount consumed, purpose
for which used, and impact upon the
other riparian owner's uses are
factors considered in allocating
water between competing users of a
given water body.' The most recent
statement of the nile by the Florida
Supreme Court was in Village of
Tcquesta v. Jupiter Inlet Corp.,s a
case concerned with rights to use of
ground water:
A lindowncer, \w ho, in the core of using his
o)\vn land. owihtruicts, diverts. or reino\ (% .
.water to iht. injiur of his vm'itlilh r ... ilmust iw
[ ,akingii a reasonable exerri>w ot his proprie-
t;ari rilui t. i... is.li (.1 e ercisv a, l In \ be rtei-
soiti.ilsIIl .e ua\ for,; llioci isfuil or Iie' tici:al
pirlpM ', iten,-rall[ I, lating to tht' land iln
\iihchd the al'ers are fomid."
A primary objective of the reason-
able use rule is to promote full


In fetbxctana tnasj-es ef


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beneficial7 use of a w
riparian and overlying
amount of land owned
not determinative of tl
water he may use.8 Eac
are equal9 and subject
tion should other use
infringed. Hence, appl
doctrine of reasonable
inquiry into factual issi
sions are necessarily ma
by-case basis.10
Application of the co
the Suwannee River ex
two issues which have
fronted in Florida to the
as other riparian jurisd
Tampa Bay is not a rip
and as such, may have n
the water. Purchase of a
of riparian land may


Deborah 1. Kemp graduate
versity of Florida Law School
a candidate for admission to
She was on Law Review and
for legal wcritin' and appellate
'~ gratefully acknowledges th
Richiard Ilanmann. director o
Law- Project of thr ('nirt evi
connrtrtHin tcith this colnt's
puhli\ilwd nr lichalf of Th
Enrironitrintil iand ( Land i r
Gerald Reryniol\. chairman.


ater body by
owners; the
by the user is
he amount of
h user's rights
to modifica-
rs' rights be
ication of the
use requires
ues and deci-


barrier, but some courts have held
that municipalities owning riparian
lands do not have riparian rights, if
the water is not used to benefit ripari-
an land." Second, under the common
law, water use is a private right;
therefore a municipality or other
public entity may not have a right to
use water for a public purpose.'2


ide on a case- Riparian: the watershed limitation
Riparian, while literally referring
mmon law to to the banks of a river,3 has come to
ample raises mean land bordering on any body of
ot been con- surface water, including lakes and
e same extent oceans. 1 Courts have necessarily had
actions. First, to determine how far land could lie
oarian owner, from the water body and still be con-
o right to use sidered riparian. Of two competing
small parcel definitions," the most used and least
remove the restrictive is the unity of title con-
cept.6 According to this concept, all
contiguous land owned by a single
riparian, regardless of when each
tract was purchased, may be watered
by the water body." If the unity of
-: : title concept were interpreted literal-
ly, a 120-mile strip of land running
from the Suwannee River to Tampa
Bay could be purchased, allowing
the purchaser to be considered a
riparian.
However, the unity of title concept
of riparianism is subject to two re-
lated restrictions. First, the amount
of water removed must be reason-
able with respect to any adverse ef-
ed from the Uni- fects on other riparian uses. 8 Second,
rane1981. and is the watershed restriction dictates
The Florida Bar. that water drawn from one water-
e advcac!i Shon body may not be used to water lands
e assistance of which drain into another water-
f Eastern Water shedl.19
/' of Florida. in The rationale is that water used
t. This alper i
r Florida Pir'sv Iupon land within the watershed will
Icw Sction. II. drain back into the original water
body, thereby protecting other ripar-
ians' rights by forcing return of the
water for future use. Implicit in this


.~t~e WA




C;E


tio
ri.
'I'
rI't


rationale is the principle that the right
to use is not limited to existing uses,
but includes future uses also.20 The
watershed restriction is a vestige of
the natural flow doctrine,2? in that it
protects the rights of the downstream
riparians to a flow undiminished in
quantity. The natural flow doctrine
was rejected by American courts,
which adopted the reasonable use
rule instead.
In many riparian states the trend is
to permit inter-basin diversions of
water absent a showing of injury to
the other riparian lands or to the right"
to use of other riparians." Under the
reasonable use rule, it is likely that
transfer of water outside the water-
shed, i.e., nonriparian use, would
merely be a factor to consider in de-
termining whether a use is
reasonable.24

Public use
Generally, at common law, diver-
sion of water by a municipality or
other public entity is not considered
reasonable." Two principles support
these decisions: first, that a city with
many inhabitants is not a riparian
owner, -since it is not a private en-
tity;26 and second, that use of water
by nonriparians is unlawful per se.2"
Courts have tended to be unsym-
pathetic to the needs of municipali-
ties when they have gone beyond
their boundaries to take water. If the
municipality's activity caused harm
to a riparian owner's use, the city
would be enjoined from further use.
It would then have to condemn the
injured riparian's water right and pay
compensation, or would have to pay
damages for the injury caused.
Public interest has not been a con-
sideration in riparian law of reason-
able use.2" Courts have invalidated
municipal ordinances that prohibited
exercise of private rights to use of
water, including recreational rights
and other nonconsumptive uses,
when the water body is being used
for a municipal supply. The statutes
have been held unconstitutional as
takings of private property.29 Addi-
tionally, municipalities and water
districts may lack standing to com-
plain of injury because they are not
considered riparian owners.30
A municipality may obtain the
right to use water by purchase, prc-l~
scription. ,rant or eminent domain.3
If it purchases the right, it is con-,
sidercd derivative, and inferior to their
reasonable uses of other riparians.3
If the right is obtained by prescrisp-


3sterbasin transfers of water


nii

die
fai
Co.
tht
at

111(
en;

Fic
I
wvit
nat,
anci
Ils\e
fact
cliff
rit-"

'on;

A
the
bee!
%whi
the
for
tribal
Flor
wetl
v as
the
dive
N(

co
a te
pre\:
Flori(
may
evolve
hene'
are f,
Flori

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einnt;

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Flor
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AM!, TIC.








Stion. the use becomes lawful over
time, perhaps as an absolute right to a
Quantity of water,33 oras a transferred
right, subject to other riparians'
claims.34 If the right to use is obtained
by eminent domain or grant, the
power must have been delegated by
the legislature.as
A few states, however, have recog-
nized a right to supply water to muni-
cipalities and courts have upheld
diversions on the basis that the use
falls within the domestic use cate-
gory, giving it high priority,36 or on
the basis that public uses of water
are superior to private uses." Lastly,
by common law, if no injury can be
shown, the municipality will not be
enjoined from using the water."

Florida common law
Florida courts have been consistent
with most other riparian states. The
natural flow doctrine was considered
and rejected. The rule of reasonable
use has been adopted for both sur-
face and ground water. Some
differences in treatment of water
rights have occurred, however, be-
cause each riparian state defines rea-
sonable use according to its own sys-
temn of values and priorities.
Although not specifically rejected.
the watershed restriction has not
been applied by Florida courts.
while public and private entities in
the state have been diverting water
for some time. This is perhaps at-
tributable to the conditions in South
Florida when it was being settled; the
wetlands were so vast that drainage
was necessary for economic use of
the land. Florida courts permitted
diversion of water even in the ab-
sence of legislative authorization."3
\Notwithstanding this failure of the
courts to adhere to the common law
1 v.-watershed restriction in the past. the
f previously quoted statement by the
's Florida Supreme Court in Tequesta
inia\ cause the restriction to be in-
d \ olvxed. The water should be used to
's benefit "the land in which the waters
is are found."40 In the early years of
- IFlorida's land development. diver-
'r ion of water beyond the overlying or
'- riparian land was believed to be
)t Ibeneficial to the land; todlay. uncon-
tiolliI-d drainage is known to be detri-
1 ,,, ntal to the land. A court imay in-
\ ,i lthei w\aterslied restriction to
S .1W 1.i injunction when the riparian
,. inuI hlII(lmo\l ner pro-\ ( ,ic-
Sr' i to hits rtightl of 1I,..41
S lI ollida declined to give preferetn-
i" Ia trl t;atlment to \iwatr tused for a
I'


public purpose in Tampa Water
Works Co. v. Cline4, and later in
Koch v. Wick.43 In Tampa Water
Works the plaintiff was a private sup-
ply company under contract with the
city to provide its inhabitants with
water; the underground water sup-
ply being utilized was within the
municipality's corporate limits. Be-
cause the water supply company
could not show that it would be
damaged by the defendant's acts,
which exposed the ground supply to
the surface, the company was denied
injunctive relief."


In Koch v. Wick, a municipality
was drawing water from beneath
leased property in the county and
transporting it to the municipality.
The Florida Supreme Court reitera-
ted the holding of Tampa Water
Works that no preference is to be
given a use which supplies a public
need.5 Further, the court established
that the test of right to use requires
considering the reasonable and bene-
ficial use of the land. It was implied
that if the landowner could show
actual injury through impingement


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'nterbasin transfers of water


of his right to use of the water to
benefit his land, the municipal use
would be deemed unreasonable,
since it was of no benefit to the over-
lying land.46
At common law, any legal use of
water is equal to any other legal use
with the exception of domestic use.47
In Florida, where nonconsumptive
uses such as recreation and fishing
may compete with consumptive
uses, this concept of correlative
S rights4" has had significant applica-
tions.
In Taylor v. Tampa Coal Co.49 the
right to use a body of water for recre-
ational purposes created a cause of
action in the riparian landowner for
another riparian's damage to the na-
tural condition of the waterbody
through consumption of the water
for irrigation purposes.
[The plaintiffs] use of the lake is no different
from the use of the waters of so many lakes in
this vicinity by horderingi owners, and al-
though such use is to a large extent in the nature
of recreation, it. nevertheless. is entitled to the
samue protection from (IamaMi and destruction
as that of the defendant .. in his atzricuiltural
pursuits.5

In view of Taylor r. Tampa Coal
Co. and Koch v. Wick, a public use
may be unreasonable if it impacts on
any other uses of the water body by
the riparian owners. Riparians need
not be using the water for consump-
tive purposes.
In the Suwannee River example.
there is evidence that the water table
at the diversion site would be low-
ered, this affecting the water supply
of the riparians ;nd owners of over-
lying lands.5s Since reml oving water
from the river x would not constitute a
physical invasion of the land. anld it is
unlikely that tl.e affected l.ind would
he rendered useless, the act of divert-
ing water from the Suwannee
ariabThl\v would not constitute a


public taking of private property.
The appropriator, however, could be
liable for intentional invasion if a
court finds unreasonable conduct un-
der the circumstances. The owners of
overlying lands would have to show
that an injury resulted from the low-
ered water table. The resulting injury
could be diminished water quantity
or quality.
In addition, there is evidence that
diversion of water from the Suwan-
nee would cause the delta area to
-have increased salinity which would
reduce the supply of marine and
freshwater life that spawns there.
Fishermen who are injured may also
have a cause of action for intentional
invasion. They, however, may be
challenged on their standing to sue if
they are not riparians nor owners of
affected lands.32
It appears that a public entity
shares the same right to use water as
any private party would. If the public
entity's use interferes with an al-
ready existing use that is reasonable
and benefits the surrounding land,
the public entity's withdrawal of
water from the area may be found to
be unreasonable under the circumn-
stances."3 In Tcquesta the Florida
Supreme Court suggested factors to
consider in determining reasonable-
ness: the reasonable demands of
other users, the quantity of water
available for use, and considerations
of public policy.54
In Tcquesta the court's definition
of reasonable use did not purport to
be inclusive. The Recstatlcmcnt 2d of
Torts has isolated nine factors (con-
sidered 1by riparian law states in de-
ternmining whether a use is reasonable(
with respect to other e\istiln ii s s ts
the waterbody: (1) purpose. (2) suit-
ability of the use. (3) economilic value.
(4) social value. (5) extent of harm,
(6) ability to av oid harm. (7) aidjustin,_


the quantity, (8) protection of exist-
ing values, and (9) compensation.s3
Some have not been pertinent
considerations by Florida courts.
while others are among the factors
considered.
The Suwannee River example may
be analyzed by application of the
above factors. First, as was pre-
viously mentioned, all legal uses are
considered reasonable: but when
they become competing uses a court-
will consider reasonableness of a use
under the circumstances. Each state
has its own value system: Florida
appears to put a high value on pre-
serving recreational uses and on
preservation of the environment.
The latter is mentioned in Article II,
Section 7 of the Florida Constitu-
tion56 and the former was given pri-





Florida appears to put a
high value on preserving
recreational uses and on
preservation of the
environment




ority over irrigation in Taylor c.
Tampa Coal Co."
The next three factors on the list
and the eighth one are consistent
with these priorities. Tourism is a
major industry in Florida:5" hence
there is great economic value in pre-
serving scenic beauty and maintain-
ing the availability of recreational
activities.5" A water body whose
primary use is for recreation and
scenic attraction would not be Suit-
able for a consumptive use that could
damage the already existing uses. .
Public policy would dictate that new
uses he compatible with the current
uses.
Consideration of social value or
public interest"0 would present the
full gamut of ethical and territorial
arguments between the two districts.
Should northern Florida be deprived
of the opportunity to protect it,;
water resources from depletion ;andl
misuse because southern Florida:
alli-s unrestricted gurox, th though it
Ihs inad(leqitle' water siipplius.? Thi -
factor may incorporate con'sidera- *
tions of conservation and protection 4
of natural environments as provided
in l"lorid(i's C(onstitution. Prior cnst '.


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dealt primarily with public interests
as opposed to the interests of private
developers hoping to make a profit
h\ building living units in southern
1-lorida. In contrast, the Suwannee
River example presents two com-
peting "public" interests: the interest
in ensuring a public suply of water,
against the interest in preserving
Florida's natural environment, its
public trust lands.61
Finally, the extent of the harm
would seem to be considered only in
deciding whether to grant an injunc-
tion or merely to force an offender to
pay damages. Neither the ability to
avoid harm nor adjusting the quanti-
ty has been considered by Florida
courts in water allocation issues.
These concepts are interrelated fac-
tors: if one can avoid harm by adjust-
ing the quantity of water to
he consumed, then the use may be
found to be reasonable. Compensa-
tion. the final consideration, was dis-
cussed by the Florida Supreme Court
in Tequesta.6" Remedies include
damages, forced condemnation with
compensation for governmental
taking. and injunctive relief.
The major problem with use of the
Common law to decide whether to
permit an inter-district transfer of
water is not the prejudice against
S notriiparian uses incorporated into
the riparian system; this prejudice
evaporates in situations of need for
the sake of expedience. The draw-
h.ick is an inherent quality of the
in!dicial system itself; courts can only
decide when a use is reasonable or
unreasonable when litigation arises.
The complainant must show loss of.
or injury to, a private right he holds
in order to have standing before a
c :rt.r1 It is conceivable that under
S thfe common law system, the entire
priiwt of dredging. pipelines and
S p':7imping could be executed without
aw. interested person having a cause
of action mnder common law doc-
t trfint. In short, planning anld policy
ar- needed, and the courts are not
, req pped nor constitutionally em-
, p 'v.red to asslume this burden.
The Florida Water Resources Act:
Part I
I I nplementation of a permit
:. '.m1i1 under Part IT of the FWRA
: v*,hId replace the coimnon la\w.6'
t I SIuwanee Water ManaglieLctnt
SI is utirreutlyv making pilas to
i c(onstrnmptive use permits as is
S, .I S\\F\.IMD and St. John's W\NID.65


To an extent, however, Part I of the
FWRA has already modified the
common law. For instance, the
districts are authorized to establish
rules and regulations to protect the
public interest and the affected
water users," provided such rules are
consistent with the purposes of the
FWRA. They are empowered to
forbid the construction of new
diversion facilities.67 Further, the
districts may bring suits to enforce
their rules and orders, to enforce the
provisions of the FWRA, and "to
protect and preserve the water


resources of the state."" Presumably,
rules may be filed and enforced
under Part I of the FWRA, without
implementation of a Part II CUP
system or Part IV water works
regulation.
Moreover, the districts are
required to establish minimum flows
and levels for surface and ground
waters, taking into consideration
protection of nonconsumptive uses
and seasonal variations.'9 The
minimum flow is defined as the level
"at which further withdrawals would
be significantly harmful to the water


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Tallaha,,ve IZ102 111301


I:























Intirbasin transfers of water


resources or ecology of the area."70
Once established, the minimum flow
or level could be enforced by district
rules.
The vagueness of the statutory
definition, however, would allow a
needful party to challenge the
accuracy of the flow level
established by a district, if that party
would be precluded from
withdrawing water. The Suwannee
River example demonstrates this
-'"atutory interpretation problem. To
determine how much water can
safely be withdrawn from a
watercourse, hydrologists have
relied upon the concept of excess
flow. It is the amount of water that
exceeds the minimum flow. The
United States Army Corps of
Engineers determined the Suwannee
River's excess flow by subtracting its
lowest average monthly flow from its
overall average flow.71
Lse of this method to calculate
excess flow for the Suwannee River
fails to recognize the ecology of the
delta area at the river's mouth. The
Suwannee River's low flat delta area
is the richest estuary in the
northeastern Gulf of Mexico."7 A
study sponsored by Suwannee W'MD
revealed that small reductions in the
amount of water flow two miles from
the river's mouth would result'in a
significant increase in the salinity of
the estuary area.73 While the wildlife
and fauna in the delta area can adjust
temporarily to more saline water
during periods of low flow and to use
-'",linei water during flood periods,
;,oloutged periods of high salinity
\would kill the plants and animals.:4
The reduction in tiuantity of fish
spalwnimt in the estuary could have
an ,adverse impact on the fishing in-
dustry in the northern Culf of Mexico.
Therefore, the F\WVA's dictate


that the best available information be
used to establish the minimum flow
of a water course is subject to a
factual determination, as is its term
"significantly harmful to the water
resources or ecology."5 If the
minimum flow as established by the
Suwannee WMD is based upon
scientific data that measured the
impact of a withdrawal on the
ecology of the river's estuary, a
hearing officer or court might find
the established level consistent with
the policy of the FWRA, since one of
its objectives is to "preserve natural
resources, fish and wildlife."76
Additionally, the districts have
been delegated authority to draft
water use plans for their various
hydrologic areas. Originally all five
district plans were to be
incorporated as parts of the State
Water Use Plan provided for in the
FWRA.77 At present, the plans do not
have the force of law, but provide
policy guidelines for district
decisionmaking. Suwannee W\'MD
could pursue a policy of retaining
water courses in their natural state
with their natural flows,78 since the
FWRA's declaration of policy
includes recognition of regional
variation in water resource problems
and expresses a legislative intent to
vest the power to manage, protect,
conserve and control waters in the
districts.7'
SFurther, Part I contains a provision
allowing local government
ordinances, concerning water use, if
filed with the DER, to be valid.80
MInicipalities are given broad
authority to govern their territories
under the Florida Constituticon" and
the Municipal lHome Hrule 1'oV ,wers
Act." Through other statutes, local
governments may manage local wa-
ters in a variety of ways. including


constructing sewers, drains and local
water supply systems, as well as
making and enforcing ordinances to
zone the floodplains and regulate
water related activities.83 In addition,
the legislative policy places some
water management discretion in
local governments." However, local
governments are precluded from
enforcing ordinances that would
forbid a party holding a CUP issued
by the district from transporting
water beyond the watershed." In the
absence of a CUP system, a needful
appropriator may be able to acquire
water directly from a municipality
located in the donor district, without
seeking permission from the district.
Finally, the districts have statutory
authority to acquire land for
purposes of providing, conserving
and protecting water.8" They may
also sell or lease land.8 And they may
assist local governments in supplying
the needs of the people, including
authorization to build transmission
facilities, upon request of the local
government." The powers granted
_1


Districts have not yet
attempted selling water,
but some believe the
practice will be
implemented within the
next 20 years


to districts under these provisions of
the FWRA have been interpreted to
permit districts to engage in
wholesaling water.19 Districts have
not yet attempted selling water, but
some authorities believe the practice
will be implemented within the next
20 years.'0 Problems will then arise
concerning, among other things,
conflicts of interest among districts
and interpretations of how the
FWRA has affected the concept of
ownership of water.91
Part II: Permit system
The FWHA's CI'P system creates
water use administration guidelines
from a synthesis of the common law \
riparian doctrine of reasonable use
and the prior appropriation system's
beneficial use.9" Once a system is im-
pleniented by a district, pursuant to


'Ir C-C


pub!
the -
ance
FWF
cant
is re:
terfe
and
teres:
defin
of w,
sary ;
izatio
whicl
ent v
ditior
rules
with
this P
stand
estab.
Bec
deper
vidua
and }
anion:
flictin
lature
achie'
wide
quality.
minin
require
establ
drafted
upon
F\\VRt
tral st
minist
The E
pose
draft r
ing to
In
policy
specific
reason
tators
should
ing w
consid
use.99
The
nine f;
ment
others:
will ha
not o\\
od an,
w\heth
being ;
e re-;
tY can

safe :i
whethc
water (










l


public hearings and authorization by
the DER.93 the conditions for issu-
ance of a permit, as established in the
F\\RA, must be satisfied. The appli-
cant must show that its proposed use
is reasonably beneficial, will not in-
terfere with presently existing uses,
and is consistent with the public in-
terest.4 Reasonably beneficial is
defined by the legislature as "the use
of water in such quantity as is neces-
sary for economic and efficient util-
ization for a purpose and in a manner
which is both reasonable and consist-
ent with the public interest."95 Ad-
ditionally, the districts must adopt
rules consistent with the FWRA and
with their own water plans. Through
this process, specific guidelines and
standards for granting CUPs are
established.
Because the districts function in-
dependently according to their indi-
vidual water use plans, the standards
and guidelines for issuing permits
among the districts will contain con-
flicting interpretations of the legis-
lature's general criteria. In order to
achieve a balance between state-
wide uniformity and district individ-
uality, minimum criteria for deter-
mining when a use meets the
requirements of the FWRA should be
established on a state level. The
drafters of the Model Water Code,"
upon which Parts I and II of the
FWRA are based, envisioned a cen-
tral state agency which would ad-
minister the Act on a statewide basis.
The DER was created for this pur-
pose and has been attempting to
draft a state water use plan,97 accord-
ing to the dictates of the FWRA.
In its recently adopted water
policyv9 the DER has provided
specific factors to be considered as to
reasonable/beneficial use. Commen-
tators have suggested the term
should have its common law mean-
ing with the additional factor of
considering the public good of the
use.99
The DER's water policy lists the
nine factors stated in the Restate-
ment 2d of Torts,1' plus several
others: (1) whether the withdrawal
will have an adverse impact on lands
not owned by t he user, (2) the meth-
od and efficiency of the use, (3)
whether r consem-ation measures are
Iinu taken. (,1) whether water can
he re-uised or water of a poorer quali-
S t c;an be used(. (5) the future de-
nan(1d.s of coumnptinn uise'rs, (6) the
S -.('Ae yield of the water hody, and (7)
whether the use would degtrade the
| w water quality. 101


In addition, specific emphasis is
put upon harm to the society, ecolo-
gy and environment.'0' The effect
the DER's water policy will have on
the actions of the districts is not yet
known. The water policy rule calls
for review of the district water plans
and, if necessary, alteration so that
they comply with other provisions
of the DER's water policy.103
Further, the term public interest
should be addressed. When the
districts are considering public in-
terest while determining whether to
grant a CUP or not, they may have
to weigh the benefit against the detri-
ment to public interests; they must
also consider that the public may be
split in their interests. In the Suwan-
nee River example, the public interest
served by Suwannee W'MD may be
in conflict with the public interest
served by SWFWMD. At common
law, public interest was not a con-
sideration. In order to bring suit to
protect the environment, a party
would have to show special dama-
ges,104 otherwise he lacked standing
to sue. Florida has removed this re-
striction by statute. Under the En-
vironmental Protection Act,s05 both
public entities and private citizens
may bring actions to force a party to


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comply with environmental regula-
tions. The plaintiff only need show a
direct interest in the suit's result.'"
A permit system functioning in
conjunction with a district water use
plan creates a potential for regional
environmental zoning.107 For in-
stance, under Part II the district's
CUPs must specify the use to be
made of the water, the source from
which it is drawn, and the manner of
withdrawal.1'0 The three categories
may be ranked to develop a system
of priorities. In addition, under Part
I, certain water uses from a particular
water source may be forbidden, de-
pending on the nature of the activity
or the quantity of water to be con-
sumed.'09
At present, the districts use their
own discretion in interpreting and
implementing the FWRA. The legal-
itv of some of their interpretations
has come into question. For example,
in City of St. Petersburg v. South-
west Florida Water Managcmnent
District,"1 the city claimed that
SWFWMD acted in contravention of
the FWRA's policy of making the
maximum reasonable/beneficial use
of the water by its use of the water
crop theory"' to determine a quanti-
fiable amount of water allowed to be


1f
to
in

-tit
ce
Xt
ise
s, "
*ts
lie
of


~n~;;5~:k;?~Zjl;r~-Islr~s~~u~~~p3r~au T~ ~rr, i Yil..;rrr;~,~py~~.-iyl ~L-~IUfY :-LL-__L;PLUY I~-_i -~----L-C~U~ --_ __i ----C .y j


^".- A h i? DAD Int 10MAl 'Takll I&MV 1001) IF




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biterbasin transfers of water


withdrawn from well fields for the
city's use. The court declined to
pass on SWF\WMD's rule, finding
that SWFWIMD did not actually ap-
ply the water crop theory. St. Peters-
burg had shown no injury and had re-
ceived a sufficient volume of water
to satisfy its reasonable/beneficial
needs.
Subsequently, Pinellas County and
the West Coast Regional W'ater Sup-
ply Authority took administrative
appeals"2 to have SWFWMD's rule
dictating use of the water crop
theory"3 invalidated. The hearing
officer concluded
that the challenged water crop rule is invalid
in that it exceeds SWFWMOD's statutory autho-
rity;: it inpernmissibly conflicts with Chapter
373. Florida Statutes: it creates property rights
to water contrary to Chapter.373 and the deci-
sion of \Village of Tclquesta c. Jupiter Inlet
Coirp.. :371 So.2d i66 (Fla. 1979): and it is hyv-
droloically unsound and accordingly arbi-
trary and capriciouis in nature.."
A statewide policy defining mini-
mum criteria for compliance with the
FWRA would subdue claims that the
districts are engaging in legislation,
that their decisionmaking is arbitrary
and capricious, and that the delega-
tion of powers to them is unconstitu-
tionally overbroad."' A clearer
definition of the terms reasonable/
beneficial and public interest would
aid the districts in their implemen-
tation of district water plans.
Legislative intent has placed
maximum decisionmaking authority
in the districts. The districts function
as independent agencies."6 Due to
their independence, problems may
arise when a third party or other
district desires to obtain water from
a donor district. Each district would
use its own \\ ;atr plans and rules to
accomplish the transfer. The state
level agency whose task would be to
oversee the inter-district relations,


presently lacks sufficient resources
and political authority over the
districts. Although the DER has
supervisory powers over the dis-
tricts,"' it has no authority to rescind
their rules for non-compliance with
DER's rules. The Governor and
Cabinet, as the Land and Water
Adjudicatory Commission, have the
exclusive power to review, modify
and rescind rules, regulations and
orders of the districts."8
The DER's water policy provides
guidelines for inter-district trans-
fers of water when both districts
have implemented permit pro-
grams."9 Both districts must approve
the transfer, and the public interest
must be satisfied. The districts would
have to consider: (1) whether con-
servation and re-use programs have
been implemented in the donee's
needful area, (2) the costs, benefits
and environmental impacts on both
districts, (3) whether the use and
method are environmentally and
economically acceptable, (4) the
donor district's present and projec-
ted water needs and whether they
can still be met if the transport occurs,
(5) interconnection of water supply
sources, and (6) whether the trans-
port is consistent with the public
interest.120
There is no mention of arbitration
if the districts are in dispute. The
decision would be made by the Land
and Water Adjudicatory Commis-
sion; the extent to which the Water
Policy guidelines would be relied
upon is unknown. The Governor and
Cabinet have not yet had to consider
the water needs of a larze municipal
area against ideals of preserving tlhe
ecology as well as thie ritht of a dis-
trict to save its resources for future
development. There is at present a
need for a stronger procedural
mechanism to ensure that the water


policy will guide the districts in their
interactions.
The DER could become involved
in the inter-district transfer through
applicability of other statutes it
administers. For instance, if the
water quality'21 may decline by with-
drawal, the DER must conduct
biological surveys, economic studies
and hydrographic surveys to deter-
mine the proposed withdrawal's
effect on the environment.1?' In the
Suwannee River example, it is
apparent that the ground water
table will drop at the diversion
point and that the water will become
more saline at the mouth of the
river.'" Salinity is not, however, a
water quality parameter regulated
by DER in its pollution control ad-
ministration, which focuses on other
pollutants.'24 Salt water intrusion is
handled by the districts.
The construction of a diversion
system would involve dredge and fill
activities,'1 for which the DER
grants permits. F.S. Chapter 253 re-
stricts dredge and fill activities in or
adjacent to state waters, requiring
ecological studies of the impact upon
natural resources.'26 The DER's pol-
lution control )povwrs set forth in Part
I of the Environmental Control Act,
F.S. Chapter 403,127 also give author-
itv to the DER to study the ecological
impact and to withhold a dredge and
fill permit if it is determined that
excessive environmental harm will
result."2
Finally, the Federal Government
has jurisdiction to require federal
permits for activities which affect
navigable waters or interstate com-
merce. The Army Corps of En-
gineers prepares environmental im-
pact statements prior to the issuance
of a federal permit.'29 In order to
avoid overlapping studies which re-
sult in excess paper work with no
additional environmental protec-
tions, the A-95 review process has
been initiated for state agencies
granting permits.'30 A proposed
inter-district transfer of water could
be halted by inability to mitigate en-
vironmental damage; it is unlikely
that a diversion could be forced to
occur by allowing FWRA considera-
tionti to override the requirements of
these other statutes.
The D)EH's water policy provision
coll(l he interpreted to apph' only
wihei both districts have CL'P sis-
tems." .' and its provision that both
involved districts approve any inter-
district water transportt3 may be







ineffective in the absence of imple-
mented CUP systems. Presently Su-
wannee WMD has not implemented
a CUP system. It is possible that a
municipal or regional water supply
could accomplish a diversion by
dealing with the local government
at the diversion site.
In the event such action is attempt-
ed, both districts would appear to
have the right to intervene if the pro-
posed diversion can be shown to
violate any of either of the district's
rules or water plans.'1 If common
law doctrines, however, are strictly
applied to determine the legality of a
diversion, it is possible that the dis-
tricts would not have standing as
parties, if they are not riparian land
owners. The districts could bring suit
under the Environmental Protection
Act,134 as was previously mentioned
for private citizens.

Appeal process
The decision of the board is re-
viewable by the Land and Water


Adjudicatory Commission.'13 The
review process may be initiated by
the Governor and Cabinet, by the
secretary of the DER, by the Envir-
onmental Regulation Commission
(the adjudicatory body of the DER),
or by any interested person who is
aggrieved by the district's action. Ju-
dicial review of a district's rule or
order may be sought in a district
court of appeal, pursuant to the
Florida Administrative Procedure
Act, after administrative remedies
have been exhausted. The same re-
view is available as concerns a deci-
sion by the Land and Water Adjudi-
catory Commission.'36
Even in the absence of Suwannee
WMD not having implemented a
CUP system, the complexity of
Florida's permit system would re-
quire close cooperation among
regional, state and federal agencies,
to accomplish an inter-district diver-
sion of water.
The DER has progressed toward
an authoritative relationship with the


districts by adopting its water policy.
Recognition of the DER's authority
and attempts to coordinate the
FRWA on a statewide level could be
facilitated by procedural changes in
the appeal process. The drafters of
the Model Water Code, upon which
the FWRA is based,'1 envisioned a
state water resources board which
would have adjudicatory powers
intermediate to the Land and Water
Adjudicatory Commission, and
whose function would be to review,
modify or rescind actions of the
districts. This intermediate board
could determine if the districts are
complying with both the FWRA and
with the DER's water policy. In this
manner the state water policy would
be authoritative over district rules
and decisions, hence the DER would
become the state level coordinator
for competing or conflicting district
interactions.
In the alternative, the legislature
should provide more specific guide-
lines for state level administration of


- -- Water Management Districts
x Diversion Site on Suwannee River


:1a






.1











.I


'9 ~


THE FLORIDA BAR JOURNAL/JANUARY 1982 17


South
Florida








Interbasin transfers
of water



water management to regulate dis-
trict interactions. A state water use
plan, which would have performed
the task, has yet to be adopted and
implemented.

Conclusion
Inter-district transfers of water in
Florida will occur in the near future.
Presently there is a need to establish
authoritative guidelines concerning
who will make the decision and upon
what uniform criteria. Common law
doctrines do not adequately deal
with this problem because they do
not contemplate management of
water by public agencies, as
established in Florida statutory law.
Courts are only able to deal with
situations after they have occurred,
when an injury to a private right has
been alleged.
Florida's legislative policies, ex-
pressed in a myriad of statutes, con-
flict with one another. Numerous
state, regional and local agencies
Administering the legislation pursue
distinct paths to deal with the same
situation, unable to adequately coor-
dinate their activities to confront the
situation in a uniform manner. The
FWRA has provided a foundation
upon which waters in the state may
be satisfactorily managed. But the
administering agencies have not de-
veloped into the two-tiered structure
contemplated by the drafters of the
FWRA.
Diversion of the Suwannee River
was chosen as an example, not be-
cause it is the most likely water
source to be tapped for inter-district
transfers, but because the subject il-
lustrates some problems with the
FWRA's general provisions.
SW\FWMD and Suwannee WMD
have developed contrasting priorities
concerning territorial water manage-
ment. The authority for WMDs to
establish their own systems of water
use priorities is granted by the
FWRA. State level coordination con-
templated by the FWRA has not yet
been achieved.
There is a need for the establish-
m(ent of an authoritative priority sys-
tent to deal with inter-district inter-
actions.'39 The policy of protecting
environinentailly sensitive areas has
been legislatively acknowledged,
bit when that policy will prevail over


competing demands, especially
municipal need for water, has not
been addressed.
Inter-district transfers of water are
inevitable; the population of South
Florida continues to increase rapidly,
while the water resources in North
Florida continue to be abundant. Cri-
teria for management of waters on
the state level is necessary to prevent
breakdown of the developing system
and consequent water battles. The
price paid for the battles may be
the destruction of important environ-
mental areas, when such damage
would not have been necessary. o

'See U.S. Army Corps of Engineers, FoUR
RIVER BASINS PanoJcr, FLORIDA: WATER RE-
SOURCv MANAGEMENT STUDY (1979). The study
examined river basins that drain into the Gulf
of Mexico north of Tampa Bay, calculating
excess flow which could be diverted from a
river or a spring that feeds the river.
Considerations of yield potential, proximity to
the demand area, and conveyance costs deter-
mined which diversion sites would be pre-
ferred. The Corps also did environmental
impact analyses on the areas examined. The
Suwannee River was chosen by the Corps as
the best source, though substantial environ-
mental damage would result not only to the
Suwannee, but also to the regions along the
western portion of Florida between the sites.
When SWFVNWMD considered the Corps'
study, however, the Suwannee River was not
chosen as a favorable water source, because it
was too far from Tampa Bay (120 miles).
'Riparian literally refers to the banks of a
river. BLACx's LAW DICTIONARY 1490 (rev. 4th
ed. 1968). The riparian system developed
during the Industrial Revolution when mills
and factories were being built along the river
banks of England, harnessing the energy in the
flowing water for manufacturing. Until this
time water had been plentiful, so there had
been no need to consider who had superior
rights to use water.
'MALONEY, PLAcER, AUSNESS & CANTER,
FLORIDA \ATER LAW 1980 (Water Resources
Research Center, U. of Fla., Public. =50) 20-21
(1981). The doctrine stems from the English
case of Acton v. Blundell, 12 .Mees. and \. 324,
152 Eng. Rep. 1223 (Exch. 1843). By this time
riparian rights to surface water were well
established. "[Elach proprietor of the land has
a right to the advantage of the stream flowing
in its natural course over his land, to use the
same as he pleases, for any purposes of his own
not inconsistent with a similar right in the pro-
prietors of the land above or below; so that,
neither can any proprietor above diminish the
quantity or injure the quality of the water
which would otherwise naturally descend, nor
can any proprietor below throw back the
water without the license or the grant of the
proprietor above ."
The rule became known as the natural flow
doctrine. The rule for ground water was
wholly different. 'lle owner of the land owned
all the earth below the surface. ". IThe
person who owns the surface may dig therein.
and apply all that is there found to his own
purlX)ses at his free will and pleasure; and that
if, in the exercise of such right, he intercepts or
drains off the water collected from under-


ground springs in his neighbour's well, this
inconvenience to his neighbour falls within the
description of damnum absque injuria, which
cannot become the ground of an action."
Until human and industrial development
made it impossible, the law was that each
riparian owner was entitled to have the river
flow by his land in undiminished quantity and
quality. He also had an obligation to return
water he withdrew in the same amount and
quality. This rule did not apply to under-
ground water reached by digging wells. Such
water was deemed to belong to the owner of
the overlying land. Unfortunately, nature
refused to conform to English common law; it
became apparent that when large amounts of
ground water were appropriated, nearby
rivers were affected. The narrow law of ripar-
ian rights had to expand to encompass use and
manipulation of all waters. The common law
as adopted in the eastern United States was
more flexible, requiring that all uses be rea-
sonable in relation to the surrounding uses.
The concept of riparian rights continued, but
expanded to include lakes and ocean shores.
Under this system an owner could use water in
a manner that was reasonable when consid-
ered with the needs and uses of other riparians.
All legal rights to a reasonable use of water are
equal or correlative.
4R. Hamann, Common Law Water Rights
and the Florida Water Resources Act of 1972.
in ENVIRONMENTAL REGULATION AND
LITInATION IN FLORIDA 9.8 (C. Schulman ed.
1981) (a publication of The Florida Bar con-
tinuing legal education department).
s371 So.2d 663 (Fla. 1979). Although the
reasonable use rule was held to apply to
ground water as well assurface water in Koch
v. Wick, 87 So.2d 47 (Fla. 1956) (see text
accompanying notes 42-45, infra), there has
been different treatment of the two water
sources. As concerns ground water, a use that
benefits the overlying land and is reasonable,
may be permitted even if it does injure other
nearby water users. Generally as concerns
surface water, a use that interferes with other
existing uses of a water source would be unrea-
sonable and not permitted. See, R. Hamann,
supra note 4, at 9.27. However, the Florida
Supreme Court in Village of Tequesta v.
Jupiter Inlet Corp., recognized that ground
and surface waters are "interrelated parts of
the hydrologic cycle." This may indicate the
breakdown of the dual sets of rules applied to
water depending on its source.
*371 So.2d at 667. [Quoting Finley v. Teeter
Stone, Inc., 251 Md. 428, 435, 248 A. 2d 106.
111-12 (Md. App. 1968)1.
'See F. Maloney, L. Capehart and R.
lloffman, Florida's "Reasonable-Beneficial"
Water Use Standard: Have East and West
Met? 31 U. FLA. L. REV. 253 (1979). Confusion
has been caused by courts using the same
terms for differing purposes. Beneficial as
used by riparian jurisdictions refers to benefit-
ting the overlying or riparian land; it means the
use of the water should enhance the land and
not be transported beyond the water basin.
Beneficial use as applied by the prior appro-
priation system and now the FWRA, refers to
serving the public interest, to benefitting
society.
SFLOHtDA WATEI LAW 1980, supra note 3, at
12.
Florida's recognition that all rights to use
water are equal should be distinguished from
California's doctrine of correlative rights. The
latter has been used to support a policy of i
allotting water according to the amount of


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hundred sixty-five thousand (365,000) gallons
per year per acre.) (7) Another subsection of
Rule 16J-2.11 provides that the governing
board of SWFWIMD may grant an exception
to the water crop rule. Subsection (5) of Rule
16J-2.11 provides that (5) The Board for good
cause shown may grant exceptions to the pro-
visions of paragraphs (2), (3), (4), and (10) of
this rule when after consideration of all data
presented, including economic information, it
finds that it is consistent with the public
interest.
"'See Pinellas County v. SWFWMD, supra
note 112, at 17.
s'J. Wershow, Legal Implications of Water
Management in Florida's Future, 54 FLA. B. J.
526, 529 (1980).
s" FLORIDA WATER LAW 1980, supra note 3, at
210. "The independence of these districts from
one another permits diverse approaches to
management of water resources."
n FLA. STAT. 9373.103 (1979).
"FL.A. STAT. 373.114 (1979). See'FLORIDA
afterE R LAW 1980, supra note 3, at 218. "In fact,
DER has limited power to implement
anything that is inconsistent with the policies
of the water management districts. Although
Chapter 373 gives DER 'general supervisory


for
ced
ital
ige
Sis
its
-he
Ity


\.te
-333


.ate
in,
]so
ite
Vital
-hat
ted
to
the


authority' over the water management
districts, this power is largely illusory since the
Governor and Cabinet are exclusively
empowered to 'review and rescind or
modify, any rule or order of a water manage-
ment district.. .'"
"'FLA. ADMIN. CODE ch 17-40.05 (May 5,
1981).
'*ld. See also F.A. STAT. 373.223(2) (1979).
This section provides for transfers of water
within districts. It would have to be satisfied
for inter-district diversions also. "The govern-
ing board of the department may authorize the
holder of a use permit .to transport and use
ground or surface water beyond overlying
land, across county boundaries, or outside the
watershed from which it is taken if the govern-
ing board or department determines that such
transport and use is consistent with the public
interest, and no local government shall adopt
or enforce any law, ordinance, rule, regulation,
or order to the contrary."
'1 FLA. STAT. 403.001-.4153 (1979).
'1FLA. STAT. 253.001-.785 (1979). See aLso
FLORIDA WATER LAW 1980, supra note 3, at 108.
'UC. Leadon, supra note 51, at 135. "Very
small reductions in the average water level of
the lower Suwannee River near the town of


THE FLORIDA BAR JOURNAL/JANUARY 1982 21


Suwannee, about two miles upriver from the
Gulf of Mexico, would allow large increases in
the extent of salinity intrusion into the coastal
aquifer of the subbasin. A reduction of three
inches in the average level of the lower
Suwannee River near the town of Suwannee
would allow salt water to rise approximately
10 feet closer to the ground surface beneath
the town of Suwannee ..."
'1 FLA. ADMIN. CODE ch. 17-3.05; 3.071-3.121.
'"FLA. AD.IN. CODE ch. 17-4.28.
"*FLA. STAT. 253.123, 253.124, 253.1241
(1979).
'"FuA. STAT. 403.011-4153 (1979).
'"FLA. ADMIN. CODE ch. 17-4. the specific
authority for these rules is Chapter 403 of the
FLA. STAT. (1979).
'2ISee FLORIDA WATER LAW 1980, supra note
3, at 108-09. It is a joint permit system. The
application goes to DER which fonvards a
copy to the Corps. Both must approve the
permit.
'"See F. Maloney and R. Hamann, Integrat-
ing Land and Water Management, 108-109,
Water Resources Research Center,
Publication No. 54 (College of Law, Center
for Governmental Responsibility, University
of Florida); F. ANDERSON, NEPA IN THE
COURTS, A LEGAL ANALYSIS OF THE NATIONAL
ENVIRONMENTAL POLICY Acr, text accompany-
ing note 39 (Environmental Law Institute
1973).
"31 See FLA. ADMIN. CODE ch. 1740.05 (May 5,
1981). "Water Transport. The following shall
apply to the transfers of water where such
transfers are regulated pursuant to Part II of
Chapter 373, Florida Statutes. ..."
ld. at 17-40.05(1).
'3See FLA. STAT. 373.129 (1979).
'13FLA. STAT. 403.412 (1979).
'35FLA. STA'i. 373.114 (1979).
'"FLA. STAT. 120.68 (1979).
"'See S. Walker, Florida Water Resources
Act of 1972, in ENVIRONMENTAL REGULATION
AND LITIGATION IN FLORIDA 10.4 (C. Schulman
ed. 1981) (A publication of The Florida Bar
continuing legal education department).
'"See FLA. STAT. 373.036 (1979) (providing
for creation of a comprehensive State Water
Use Plan). See notes 19 and 20 supra.
1"196. See F. Maloney and 11. llmann,
Common Law Water Rights and the Florida
Water Resources Act of 1972, in
ENVIRONMENTAL REGULATION AND LITIGATION
IN FLORIDA, 323 (1980), at 340, and MODEL
WATER CODE, supra note 92, at 92-93. Both the
House Natural Resources Connittee and the
MODEL WATER CODE proposed creation oif a
State Water Resources Board. The legislature's
proposed board would consist of the chairmen
of the five WMID's, the chairmen of the eleven
regional planning councils, and the secretary
of )ER. That proposed by the MODEL WATER
CODE would consist of five appointees of the
Governor; one attorney, one hydrologist, one
farmer, and two laymen. The WMD's are
opposed to the legislature's proposal because
they could be out-voted by the regional plan-
ning council members. The advantages of the
MonDL \WATEH CODE proposal are the small size
and the fact that the menlbers would be dis-
interested in promoting special interests of the
individual districts and regions. See also
FILOHIDA W\AT : LAw 190,. supra note 3, at 117-
18. The Environmenital Regulatory
(:Co Uiissioin sets DI) 's water quality
standards and acts asi the appeals board for
final actions taken 1)> D1E'lt. The State waterr
Iesorces IardI could i do the same for water
(niantity regulation bIy DEl.


hd missed my appointment. Who.cares. I don't have a doctor. I feel fine. I missed the bus.
ours. I forgot. I had to get a haircut. The kids wanted ice cream first. The traffic was terrible
d. I'm not sick, ever. I don't have the money right now. If cancer's in the stars, it's in
day. I went to the wrong doctor's. Maybe next week I'll make it. It's against my religion. I'm
too busy right now. The office would fall apart without me. My father never went to the doc
So think about it. Nothing's t e anyway. Mv doctor's fingers are too cold. I'm t
care. I thought only rich peo. and fix dinner. I never hear
,ivay. There vas a great saleryL I h. r had a funny rattle. No one
Cancer. I lost a button that y. By the time they find it, it
-aven't been sick a day in my l Cancer ofthe wh jtors are boring. In my business
couldn't ca- _-s r Tst .at 0II bri .r.b met that
:Ogot to c h Ion. My tl
ni to talk ab why. If I hal
Ion't want t JIMold me not
he goldfish needed feeding. nni I'd ge way. Ic
e;. I don't have a doctor. I fei ^ l. y got out so I chased it arc
The kids wanted ice cream first ;' weather was great so I played g(
m'r.ney right now. If cancer's in i s l I !S} j ent to the doctor's on the w
.ext week I'11 make it. It's a i mir re on. '- cared. I need to lose a few pounds first.
kar without me. My father never t de (z n"d he lived until he was 90. I don'
me anyway. !.My doctor's fingers are I to worry about cancer. I'm too ol
'.ave to stay home and fix dinner. ev he' boss wouldn't give me the day
:uldn't miss. The car had a fun mily ever had cancer. I'm not
:ss a football game on. By the time he find .it. it: pr-baby, be too late. I was doing laun
: :f the wharf? Doctors are "1 ur I can get. If I die tomor
.':ays exercisir.. I forgot br8P tor's oflce is too far away.
.ad to find :*. It was hun t'. I feel great. It upsets
e apart if I wert out. I don L know w I haven't cer by now I'll never get it. I
S.er had cancer anyway. My husband told me not to wo ., was going to go but I rememb
S:.t, and I was afraid I'd get sick on the way. I overslept and missed my'appointment. Wt
.:o:-S the bus The canary got out so I chased it around for hours. I forgot. I had to get a h
:: wa3 ter.-:be. The weather was great so I played golf instead. I'm not sick, ever. I don'
:s;, it's r. :..e s'ar. I went to the doctor's on the w-rong day. I went to the wrong doctor
'" :i.lr:. i':. sc. e. I need to lose a few pounds f:r:. I'm too busy right now. The office
':-.: :t t rhe clr'"'s and he lived until he was 90. I don't like to think about it. Nothing's
_: ]i I'::. o'mng to worry' about cancer. I'm t:c old to care. I 'hought. ol riv ,

i American Cancer Society


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injure the public's rights to use of waters held
in public trust. See, F. MALONEY, R. AUSNEss
AND S. MonRRs, A MODEL WATER CODE, at 81
(1972). The intent of the proposed legislation
that became the FWRA Was to apply the
public trust doctrine to all the waters of the
state.
"371 So.2d at 669, 670. See also, Koch v.
Wick, 87 So.2d 47 (Fla. 1956).
uSee e.g., Kinnebunk, Kinnebunkport and
Wells Water District v. Maine Turnpike
Authority, 147 Me. 149, 84 A.2d 433 (1951).
The water district lacked standing to sue
because as a nonriparian it had no right to use
the water.
Village of Tequesta v. Jupiter Inlet Corp.,
371 So.2d 663, 671 (Fla. 1979). "The Water
Resources Act of 1972 recognizes a right to use
water under the common law as separate from
the right to use water under a permit granted
pursuant to the act." F. Maloney & R. Hamann,
Common Law Water Rights and the Florida
Water Resources Act of 1972, Environmental
Regulation and Litigation in Florida, 380
(1980); FLORIDA WATER LAW 1980, supra note
3, at 9 and 222; and R. Hamann, supra, note 4,
at 9.26. Currently the South Florida WMD and
SWFWMD are more developed, already
having implemented consumptive use per-
mitting. South Florida WMD was created in
1961 and also had multi-purpose authority.
Both were created in the wakes of devastating
hurricanes which had damaged the areas; the
need for better flood control measures was the
impetus. They are financially independent,
since they did not receive the taxing restric-
tions the newer three WMDs are subjected to.
See F. Maloney & R. Hamann, supra at 332 and
339; and R. Hamann, supra note 3, at 9.10. In
fact, underfunding accounts for many of the
problems the newer districts have encountered
in administering the FWRA. See Governor's
Resource Management Task Force, supra note
19.
"Conversation with Kirk Webster, Director,
Suwannee River W'ater Management District
(May. 1981).
"FLA. STAT. 373.171 (1979).
FLA. STAT. 373.171(l)(a) (1979).
"FLA. STAT. 373.129(3) (1979).
FLA. STAT. 373.042 (1979). "The
minimum flow and minimum water level shall
be calculated by the department and the
governing board using the best information
available. When appropriate, minimum flows
and levels may be calculated to reflect
seasonal variations. The department and the
governing board shall also consider, and at
their discretion may provide for, the protec-
tion of nonconsumptive uses in the establish-
ment of minimum flows and levels."
"FLA. STAT. 373.042(1) (1979). "The
minimum flow for a given watercourse shall
he the limit at which further withdrawals
would be significantly harmful to the water
resources or ecology of the area."
Trouble on tihe St uianrier, in ENF)O, a
publication of th- Fhlorida Conservation
Foundation (edited by the Environmental
Information Center).
:"C. Leadon, supra note 51.
"hd.


1"d. at 141; and ENFO, supra note 71, at 4.
"See note 70, supra.
"FLA. STAT. 9373.016(2)(e) (1979). "It is
further declared to be the policy of the
Legislature: (e) To preserve natural re-
sources, fish and wildlife...."
"GOVERNOR'S RESOURCE .lAsNACGIENT TASK
FoRCE, COMMITTEE SEVEN, INTECRATINV
PLANNING AND POLICY FOR WATER RESOURCES,
APPENDIX C, FINAL STAFF DRAFT (Oct. 10,
1979). "In 1974, the Governor and Cabinet,
acting as head of the [Department of Natural
Resources (DNR)], delegated certain parts of
Chapter373 to the water management districts
(WMD's), including sections dealing with the
responsibility for the development of the
(State Water Use Plan] and the Florida Water
Plan (FWP). However, specifically withheld
from delegation was Section 373.026, which
gave the DNR general supervisory authority
over all WMD's along with the responsibility
to exercise any powers authorized to the
WMD's by the Act."
"In fact Suwannee WMD's stated policy
promotes maintaining its waters in their
natural state. For instance, nonstructural tech-
niques to control flooding are preferred, as is
maintenance of natural habitats and of the
balance of the hydrologic system. See
Suwannee River Water Management Goals
and Objectives (adopted by the Governing
Board on August 16, 1979).
"FLA. STAT. 373.016(3) (1979).
"FLA. STAT. 373.023 (1979).
"FLA. CoNsT. Art. VIII, 2(b) (1968).
"FLA. STAT. 166.011-.043 (1979).
UFLA. STAT. 125.001-.59 (1979) and FLA.
STAT. 170.01-.21 (1979).
- "See e.g., FLA. STAT. {373.191-.1962
(1979). The approach envisioned by the
legislature is one of cooperation among
municipalities, counties, regional water supply
authorities, water management districts, and
DER.
"FLA. STAT. 373.223(2) (1979).
""FLA. STAT. 373.139 and .1961(7) (1979).
"FLA. STAT. 1373.089, and .093, (1979).
"FLA. STAT. 373.1961 (1979).
"Conversations with Lee \\orshom,
attorney for the governing board of St. Johns
'WMD, Sept. 16, 1981.
"Conversations with James S. Wershow,
attorney for Suwannee River WMD, Sept. 14,
1981.
"Conversations with Lee Worshom, supra
note 89.
"F. MALONEY, R. AUSNESS AND S. MORIUS,
MODEL \\ATER CODE, at 79 (1972). Three
advantages of a permit system over the
common law are: first, the agency makes the
decision before the dispute erupts into litiga-
tion; second, the agency makes its decision
with consideration given to all water uses and
users, and can consider the public interest; and
third, the members of the decision-making
body are experts on water, so can make deci-
sions with long-range plans in mind.
"3FLA. STAT. 373.216 (1979).
2"FA. STAT. 373.22`1(1) (1979).
"sFLA. STAT. 373.016 (1979).
"FLA. STAT. 373.012-617 (1979); F.
MAL.oN.., It. AUs.Nss .ANDS. MORHI. A. \MootI.
W\oATER Co:K (1972). Parts I and II of the
"F\\VIA are froinl this code. The collniinllitaries
therein may be used to interpret the pro isions
of thle h'\ i(A. For a briel history ofit de\ elop- -
nlent of w after law inl the eastern states.
providing know ledge of tlhe con.ditiolnu that
led to the creation of model acts ad l the
FWIIA, sec, I. ilamiann, .iluro note 4, at 9.6-


.A: ~ ~ ~ -~


9.9; and S. Walker, Florida Water Resources
Act of 1972, in ENVIRONMENTAL REGULATION
AND LITIGATION IN FLORIDA 10.4 (C. Schulman
ed. 1981) (a publication of The Florida Bar
continuing legal education department).
"FLA. STAT. 373.036 (1979). See note 77,
supra.
SFLA. ADMIN. CODE ch. 17-40 (May 5, 1981).
"REASONABLE-BENEFICIAL USE, supra, note
7, at 264.
'"See text accompanying note 55, supra.
101 FLA. ADMIN. CODE ch. 17-40.04(2) (May 5,
1981).
'"See FLA. ADMIN. CoDE ch. 17-40.04(3)
(May 5, 1981).
'"FLA. ADMIN. CODE ch. 17-40.10(2)-(4)
(May 5, 1981).
'"Special damages is a requirement for
bringing a nuisance action. This may be used
as an alternative to using the Environmental
Protection Act, infra note 106. The advantage
of using the common law nuisance action is
that a plaintiff need not exhaust its
administrative remedies prior to using the
judicial system. See Town of Surfside v. City
Line Land Co., 340 So.2d 1287 (Fla. 3d D.C.A.
1977); Wet'zel v. A. Duda & Sons, 306 So.2d 533
(Fla. 4th D.C.A. 1975).
'"FLA. STAT. 403.413 (1979).
'"Florida Wildlife Federation v. State
Department of Environmental Regulation, |
390 So.2d 64 (Fla. 1980). The case also
affirmed that a corporation was a private
citizen for purposes of the Environmental
Protection Act. In that case, the fact that
members of the Federation used the affected
water body for recreation was sufficient to
constitute a direct interest in the result of the 4
case.
',FLORIDA WATER LAW 1980, supra note 3, at
234.
''FL.A. STAT. 373.229 (1979).
o9 FLA. STAT. 373.036(8) (1979). See FLORIDA
WATER LAW 1980, supra note 3, at 234.
"0355 So.2d 796 (Fla. 2nd D.C.A. 1976).
"' Id. at 797. "The water crop is the amount
of rainfall less the amount lost by evaporation
and plant use evapotranspirationn)." See
FLORIDA WATER LAW 1980, supra note3, at 239-
40. This commentator believes it is a step
backward to the correlative rights system. The
practice developed in California and was
intended to apply to agricultural areas. Each
landowner would be allotted a proportional
amount of the total water crop of an area.
based on the amount of land he owned.
Obviously the theory is worthless when the
user is a nmunicipality, not a fanimer. I lowe er,
when the Iunicipality is transporting its water : L
from an agricultural area, aas ws Itne in the
case at hand, the water crop theory may
protect the existing uses, i.e., the agricultural
uses.
'"Pinellas County v. Southwest Florida
Water Management District, Case no. 79-
2325R, and West Coast Regional water r Siupply
Authority v. Southwest Florida Water
Management District, Case no. 79-2393R
(Dept. of Admin. April 9. 1980) (Diane D.
Tremor, lHearing Officer with the Div. of .
Admin. Hearings) .
"' FLA. AniDIN. Cooe ch. 16J-2.11(3). Condi-
lions for a Cos(,mlmptive L'se Permit: Issuance -
of a perm it will le denied if the anioulnt of .
%water consumptive lyt used will sce'ed the
water crop of lamid, owned. l.ased or oti'er-
wise controlled lb the applicant. (EK\xcept
where determined other ise,. thle water crop t
(preuipitation ls\s evaporation] throughoiit t
the District will Ie assuiined to be three '


_









Slaiid one owns. This interpretation of correla-
ti e rights leads to water cropping, the practice
of harvesting water in a given region based
upon the amount of yearly rainfall. Although
thel doctrine may adequately serve agricultural
areas. it has an adverse impact on users who
itn'cd water, but do not need land. Florida
courts have applied the correlative rights
doctrine in light of surroundingcircumstances.
R. llamann, supra note 4. at 9.27. See aLso,
Ta' lor v. Tampa Coal Co.. 46 So.2d 392, 394
(Fl.t. 1950); Tampa Water Works Co. v. Cline.
37 Fla. 586,20 So. 780. S4 (Fla. 1896); and text
accompanying notes 42-45, infra.
Ft.oRIDA WATEr LAW 1980, supra note 3,
at 12.
SId., at 22 See Pernell v. Henderson, 220
N.C. 79, 16 S.E. 2d 449 (N.C. 1941), Town of
Purcellville v. Potts, 179 Va. 514, 19 S.E. 2d 700
(Va. 1924), and Webster v. Harris, III Tenn.
668. 69 S.W. 782 (Tenn. 1902).
: Koch v. Wick, 87 So.2d 47 (Fla. 1956) and
Tampa Waterworks Co. v. Cline, 37 Fla. 586,
20 So. 780 (Fla. 1896).
Consideration of riparian rights developed
during the Industrial Revolution when mills
and factories were built along the riverbanks,
harnessing the energy in the flowing water for
manufacturing. See alo. notes 2 and 3, supra.
llamann, supra note 4. at 9.4.
FLOHIDA WATER LAW 1980, supra note 3, at
17. The source of title rule of riparian land
retricts use to the smallest riparian parcel
purchased. Parcels of land purchased subse-
quently, if not riparian. receive no right to use.
It tlhe original parcel is split and sold, the non-
riparian section will lose its right to use of
%.tear. Under the unity of title rule, any con-
ti.uous, parcels of land, no matter when
prchlased, that are owned by a riparian re-
ctivc the right to use of water. Thus, the
a:iount of land watered by a source may
IilC'rease.
:'hl., at 19.
Id.
':h(.

'Johnson & Knippa. Trunsbasin Dic) rsion
r M 'uater, 43 Ttx. L. REv. 1035, 1040 (1965).
Id., at 1036. "According to traditional
riparian doctrine, stream water may be used
only upon riparian land, and riparian land is
dieirted as embracing only land within the
v. tcrshed. This is consistent with the principle
i tit a riparian owner's rights to use stream
w..tter are not limited to his existing uses, but
iincllde future uses a., well. In other words, the
rc;irian right is not lost by nonuse and the
frir.prian niay coIOmmence new water uses at any
triun and in any amount, as long as he does not
utnrcasonablv interfere with uses by other
rt;iarians. The watershed limitation is thus
inurely a means of protecting the riparian
limits' of others, hy tending to make return
flIIo available if needed in the future."
SNote, Linitatioln on Dicersions from the
'~t irtrshed: Riparianu Roadblock to Beneficial
1',. S.C. L. REV. 43 (1971). See u/l. note 3,
'ir;iril.
,2 Se( not' 3, lupra..
S-'lihnson & Knippa. supra note 19. at 1037.
:"\\aite, BeHrricidl I('v of Water in a
I. :'lmuuln Juridlia tun. 1969 Was. L. Rh-v. 86-1,
"'.So Iti a., \';iter diversins-, do not
', ;h're \ith i pr'-hrrtd water tuses, and the
S :i.r ns thln s ., tie prio)rit to sich
r 'r ed water r ,ii,. thlti wioill as'ein proper
Satvr iscs,, i,.uud it'raso al)e' nod r tinl
t iparian riults A contrira. %.'w" is
i. "r"td in It. Il.imnn. iisupra )not.' ;at 9.25.
Si 4i.t writer concludlis that thli rule pIreventing


transport of surface or ground water beyond
the riparian or overlying lands constitutes
unreasonable use per se. However, although
injunctive relief was declared available in
Koch v. Wick, 87 So.2d 47 (Fla. 1956). the
removal and transport of the water from the
overlying land was not declared unreasonable
per se. Only if a party owning overlying (or
riparian) land, or otherwise making a reason-
able use of the water, suffers damage, will the
court consider whether the transporting use is
Reasonable under the circumstances. In
addition, public interest and public policy are
increasingly being considered when
determining whether a use is reasonable. See
Village of Tequesta v. Jupiter Inlet Corp., 371
So.2d 663,670 (1979). "The reasonableness of a
given use depends upon many variables such
as: the reasonable demands of other users; the
quantity of water available for use; the consid-
eration of public policy." Further, in that case,
the Village of Tequesta had withdrawn and
transported water beyond the overlying land.
371 So.2d at 665. No mention is made of such
use being unreasonable per se at common law.
It is more likely that there is no doctrine of
unreasonable use per se in Florida, all uses
being reasonable until actual injury to
another's right to use is shown, then the less
valued use may be found unreasonable under
the circumstances. If public policy and public
interest are factors of reasonableness, it is
possible that a municipality's transport of
water beyond the overlying or riparian land
may be found to be reasonable under the
circumstances.
Y FLORmIDA WATER LAW 1980, supra note 3, at
22.
2Ziegler, Acquisition and Protection of
Water Supplies by AMunicipalities, 57 Mino. L.
REV. 349, 357 (1954).
: FLORIDA WATER LAW 1980, supra note 3, at
22.
""'Reasonable-Beneficial" U.se. supra, note
7.
"Note, supra note 21, at 57-5S.
0 Id.
1 Kennebunk, Kennebunkport and Wells
Water District v. Maine Turnpike Authority.
147 Me. 149. 84 A. 2d 433 (1951).
SFLORIDA \'WATEn LAW 1980. supra note 3, at
21.
"2Id. at 23; Johnson & Knippa. supra note 19.
at 103'; Buescher, Appropriation W'ater Late
Elements in Riparian Doctrine States. 10
BUFFALO L. REV. 448, 452 (1961).
"1 FLORInA N ATER LAW 1980. supra note 3. at
21 and 24.
"Ziegler, supra note 26. at 351 and .3.59.
"Canton v. Shock, 66 Ohio St. 19, 63 N.E.
600 (1902).
St. Anthony Falls Water powerr Co. v. St.
Pautl Water Commissioners. 56 Minn. 485, 58
N.W. 33 (1894).
"Ziegler, supra note 26, at 3.5.
"4 I lamnann, supra note 4. at 9.28.
'"371 So. 2d at 666. See text accompanying
note 6, supra, a(nd note 2.1, supra.
"S'ee Koch v. Wick, 87 So.2d 47 (1956).
2202 So. 780 (Fla. 1896).
&aS7 So.2d 47 (Fla. 1956).
"20 So. at 78 6.
"87 So.2d at 48. "It seeins that in judging the
merits of this controversy, the appellee't are
not ill a fav orable position sni|)plN bet.icaset tlt'l
water drawn is to be furnished the public."
"'Id at 4S. The appallr' Pinella.s Cmuiint.
(\\ it k) had h'ase'd 3.6.' .tcr,. had suntk -\ell,
and had bet'gu ptiiiping \v atr to (Clua watei'
and other iaiminicipalities iln tiht cominty. The


court adopted the nile of percolating ground
water, that the right to use is "bounded by
reasonableness and beneficial use of the land."
The court found that removing the water from
the land was not a beneficial use of the land.
The reasonableness issue was not decided.
The appellees contended that "'the reasonable
use rule' does not per se prohibit extraction of
percolating water for distribution and sale off
the premises," relying on a New Jersey case.
The court distinguished the New Jersey
opinion and reinstated appellant's complaint
to try the issue of whether extracting "so much
water" is reasonable. The appellant could get
an injunction before his land had been
irreparably injured.
S"Village of Tequesta v. Jupiter Inlet Corp.,
371 So.2d 663, 670 (Fla. 1979) (the rule as to
percolating ground water); Taylor v. Tampa
Coal Co., 46 So.2d 392 (Fla. 1950) (the rule as
to nonnavigable surface waters); and Tampa
Waterworks Co. v. Cline, 37 Fla. 586, 20 So.
780, 786 (Fla. 1896).
"Correlative rights as the term is used by
the Florida courts means simply equal rights to
use water below one's land. See note 9, supra.
'46 So.2d 392 (Fla. 1950). The water body
was a nonnavigable lake. The doctrine of
correlative rights is bounded by
reasonableness requirements in all water
bodies. This is not quite the same as the
doctrine of correlative rights as applied in the
West. There it means that the amount of land
one owns determines the amount of water he is
entitled to use.
l6d. at 39.3 [quoting the circuit court].
s"C. Leadon, E.%IRONMENTrAL EFFECTS OF
RivER FLOWS AND LEVELS IN THIE SUWANNEE
RIVER SuRBASIN BELOW WILCOX AND THE
SUWANNEE RIVER ESTUARY (Suwannee River
Water Management District).
5"See text accompanying notes 105-107,
infra.
"The Florida Supreme Court's adopted
rule of reasonable use indicates that a
preference will be given to a use that benefits
the land overlying the water body.
s'371 So.2d at 670.
SRESrATsEMENT (SECOND) OF TORTS Section
850A (1977). See "Reasonable-Beneficial" Use,
supra note 7.
-FLA. Co.ST. Art. II, 7. "Natural resources
and scenic beauty. It shall be the policy of the
State to conserve and protect its natural
resources and scenic beauty. Adequate provi-
sion shall be made by law for the abatement of
air and water pollution and of excessive and
unnecessary noise.
s4-6 So.2d 392 (Fla. 1950).
s FLORIDA W\ATER LAW 190S, supra note 3, at
205. "The State's three major sources of
income, tourism, agriculture, and phosphate
miining, are heavily dependent on abundant
supplies of water."
"On the other hand, the state's policy is to
promote industry and corporate development
in Florida by providing economic incentives in
the form of taxing policies.
"Consideration of public interest is rela-
tively recent among riparian jurisdictions,
traditionally not being a factor considered in
determining reasonable use. See generally.
"'Reasonrlalr'-Beniiciia" L'se, supra note 7.
"Cr.hulan v\. Estuary Properties, Inc., No.
5..4S5 (April 16. 1981). The case recently
adopted the public trust doctrine of Just v.
Marinmtte County, 56 Wis.2d 7, 201 N.W. 2d
761 )72" that drenil of alandrower's right to
alter the natural state of has land is not a taking
for public purposes if the alteration would


THE FLORIDA BAR JOURNAL/JANUARY 1982 19


'J;Zarr"---L~IC-- ---











WATER MANAGEMENT ISSUES AND LOCAL GOVERNMENT
to be presented to

WATER TASK FORCE

On behalf of the Board of County Commissioners of Imperial Polk
County, I want to express my appreciation for the opportunity to
appear before this Task Force and discuss some of the concerns of
local government regarding water management.

At the last meeting of this Task Force in West Palm Beach,
November 11, 1982, one speaker made an interesting comment.

The topic under discussion was the disposal of hazardous wastes.
The speaker observed that Florida was not environmentally
equipped to safely dispose of all the various types of hazardous
wastes we produce. It was their recommendation that we (Florida)
determine which of these waste products we could safely handle
and send the remainder out-of-state for disposal. They noted
that Alabama was the closest disposal site and further said that
if Alabama would not accept these waste materials the people of
Florida would just have to learn to live without them. The most
interesting point of this is what the speaker did NOT say. They
did NOT say that the people of Florida should go to Alabama and
say: "Look folks we have all this hazardous waste material that
we produce here in Florida, but our environment is not suitable
for its disposal. But we need to keep generating this stuff in
order to maintain the lifestyle to which we've become accustomed,
and since you have a place for it, you are just going to have to
take it whether you like it or not."

They did NOT say that, because, one state does not have the right
to make this type of demand on another state. Yet within the
State of Florida there are many groups going to the
non-metropolitan inland counties and saying, in effect, "Folks,
we've used up all our local water supplies (due to salt water
intrusion through over use) and we need more water to continue to
grow ana maintain the lifestyle to which we've become accustomed,
and since you have more water than we think you need, we're just
going to take what we think we need, whether you like it or not."
This philosophy seems to make one of two assumptions: (first)
the water supply of the inland counties is unlimited or at least
sufficient to sustain unlimited growth in both the coastal ana
inlana counties; or (second) that it is quite all right to cap
the growth of the inland counties because the coastal counties
are unwilling to cap their own growth and neither the state nor
the water management districts are willing to do it for them. We
don't know how much water we have but we know its not unlimited
and thus will not support unlimited growth. The second
possibility, in the final analysis is just another way of saying
"might makes right."











Polk County does not presume to speak for any County other than
Polk County. However, we have evidence that several other inland
Counties generally share the concerns which I want to discuss
with you during the next few minutes.


1. The inland counties are experiencing population growth
which will require the development of additional water
supplies. They also have vast agricultural needs,
including citrus, vegetables and cattle, as well as
industrial needs, including phosphate and other
extractive industries, the manufacture of fertilizers,
and food processing. These activities are important to
the economic well being of not only Florida, but to the
nation. They must be assured continued adequate water
supply.

Non-urban, inland counties believe that, under Chapter
373, Florida Statutes, as presently written, a very
real possibility exists for their future growth
potential to be capped by the appropriation and export
of indigenous water supplies. It is our belief that
inland counties would be far less reluctant to share
their water if they knew the water would be available
to them, should the time come that they needed it.

We think that Section 373.1961(5) F.S. should be
amended to assure that each county has preferential
use, both present and future, to its indigenous water
supply.

We should note that the coastal counties have vast
amounts of brackish and saline water available. The
technology exists to convert this to potable water.
Several plants are currently in operation, and it is
our understanding that technological advancements are
reducing the costs. Once the inland counties' water is
fully appropriated, I suppose they could go to the
coast and oipe salt water inland and treat it. That,
however, does not seem to make a whole lot of sense to
me.

2. Each County is presently required to prepare and adopt
a Local Government Comprehensive Plan which must
include several water related elements and subelements
(land use, conservation, solid waste, sanitary sewer,
potable water and drainage). While an adopted plan has
the status of an ordinance, we believe the possibility
exists that water management districts, in making water
management decisions, may completely ignore the
provisions of an adopted Comprehensive Plan. It is











recognized that water management districts have the
responsibility for managing the water resources of the
state and to advise local government of the limitations
of their water resource base. It is also recognized
that it is the responsibility of local government to
engage in land use planning and growth management and
that an adequate water supply is fundamental to all
forms of growth.

We, therefore, urge that chapter 373 F.S. be amended as
appropriate to require that

a. Water management district decisions within a county
be in concert with adopted local government
comprehensive plans.

b. That counties and water management districts be
full and equal partners in making water management
decisions affecting the vital interests of the
local government.

c. That no county be deprived of indigenous water
resources because of transfer of water to other
counties who have outgrown their own indigenous
supplies.

3. We believe that the continued concentration of people
in coastal areas creates many problems, both state and
local, and that the state's long-term interests may be
better served by promoting more growth in those areas
with developable water resources (there are other
factors to be considered, of course). State policy
should support continued inland growth in those areas
where it is appropriate and to the extent these areas
can support that growth without incurring unacceptable
adverse affects. State policy should also provide for
retention of sufficient inland water resources to
adequately support that growth.

4. Finally, at a more work-a-day level, Polk County is the
only County in Florida with the "honor and privilege"
of working with three water management districts. Polk
County recognizes the important role of the water
management districts, and we recognize that regional
differences require different approaches in problem
solving. However, when one county, in developing a
master drainage plan, a surface water management
ordinance or a county water supply system, has to
simultaneously deal with three differing sets of rules,
criteria, procedures and priorities, it could get a
little exasperating.










We hear a lot of talk about preventing the recurrence of the
"water wars" of a few years ago, and this is certainly desirable.
But, it is unrealistic to expect the inland counties to stand
there saying "Here is my water, come and get it," and get nothing
in return. It is neither immoral nor illegal for a County to
protect its vital interests.

In conclusion let me say that Imperial Polk County is fully
cognizant of the fact that our economic well-being and quality of
life is closely linked to that of the State as a whole and to our
larger metropolitan neighbors. Polk County is in the center of
the Central Florida growth area. While we do not covet a "Miami"
or a "Tampa/St. Petersburg" in the center of our County, we do
expect and desire additional, properly managed growth. This
growth will require that Polk County develop more of its water
resource base for its own needs. Polk County is willing to share
our excess water with our needy neighbors just as we share our
phosphate and our orange juice. We will even work cooperatively
to this end as long as Polk County is guaranteed sufficient water
to meet its future growth needs. Let us not forget that
cooperation is a two -way street.










MEMORANDUM

TO: Representative Ray Liberti, Chair
Select Committee on Growth Management
FROM: John M. DeGrove, Director
Joint Center for Environmental and Urban Problems
SUBJECT: State Integrated Policy Framework

Background

There is no subject on which there is more agreement than the

need for a top to bottom and bottom'to top integrated policy framework

that will provide the key guideposts for plan review and implementation

at the state, regional, and local levels. The failure to develop such a

policy framework to date rivals the anemic monitoring and enforcement

system as the most important weakness in the state's growth management

system. The past 10 years has seen many efforts, but little success,

in putting a workable policy framework in place within which all other

components of the state's growth management system can function.

A brief review of the status of developing plans and policies

at each level of government highlights the problem At the local level,

the LGCPA was enacted in 1975, and all but a handful of the state's

cities and counties now have plans in place. However, it is widely

agreed that these plans vary greatly in quality before there are no

clear regional or state substantive standards against which to review

the plans, nor does the law allow the ability to mandate the modification

of such plans even if such standards were in place. A first step has

been made, but a complete local system calls for review and approval of

local plans by the state (or regional) level for consistency with standards

drawn from regional and state plans and policies.










At the regional level, the failure to develop the comprehensive

regional policy plans mandated by the 1980 legislative session has meant

that there are no clear and directive regional standards adopted by rule

against which to review DRIs under Chapter 380, assess local comprehensive

plans, guide participation in critical area planning and management

efforts, and guide "A-95 type" reviews. Partly as a result of the failure

to develop CRP Plans, RPCs have found it hard, if not impossible, to

confine their DRI reviews to regional as opposed to local issues. The

development of CRP Plans and the standards that must come from those

plans will compliment the strengthening of Regional Planning Councils

recommended in another memo.

At the state level, the failure to develop plans, policies, and

standards to drive the state's growth management system is perhaps most

serious of all. Without standards at the state level, neither the

adequacy nor consistency of regional and local plans and policies can

be assured. The Mayor of Tampa noted in his testimony to the ELMS II

meeting in Tampa, February 23-24, 1983, that he did not feel that

Tampa's or any other local comprehensive plan meant very much because

they were not developed within the framework of state plans and policies

that were clear and directive. The State Comprehensive Plan completed

in 1978 certainly did not produce the policies from which standards could

be derived to direct the state, regional and local components of Florida's

growth management system. The current effort by the Office of Planning

and Budgeting to update the State Comprehensive Plan in the form of Policy

Guides will help, but will not be sufficient to provide the state component

of Florida's growth management system. To assure the development of state

goals, and the policies and standards that must be derived from those

goals to frame state, regional and local growth management decision making,









the following actions must be taken:

1. The legislature should adopt goals and objectives similar

in content and length to those proposed by Stroud and Abrams for the

Governor's Office in 1981. The proposals being developed by the Select

Committee on Growth Management are aimed at fulfilling this need.

2. A New State Structure

Stroud and Abrams reviewed a number of "models" that

might be used to implement the policy framework for Florida's growth

management system. The "civic model" described in their report seems

best suited to direct the further development of state policies and

standards, and to assure their reflection in regional and local policies

and plans. This approach would involve legislative authorization for a

State Growth Management Commission made up of citizen members appointed

by the Governor, with the Chair named by the Governor. It's location in

the state administrative structure for housekeeping purposes and its

staffing need to be decided. The primary function of such a Commission

would be to take the goals and objectives adopted by the legislature,

and flesh them out in the form of policy statements adopted by rule.

These policies would then be used to review and approve Comorehensive

Regional Policy Plans and Local Goverment Comprehensive Plans, the latter

directly or through Regional Planning Councils. The development of

policies to further the legislatively approved goals and objectives

might or might not be subject to further legislative review. An

appropriate link to the Governor's Office of Planning and Budgeting would
be needed. This model is a version of the approach used successfully

by California, Oregon, Vermont, and North Carolina. It has been less

successful in Hawaii, and not at all successful in Colorado. It has the







4



important advantage of highlighting and pinpointing responsibility for

the on-going development and implementation of the state's integrated

policy framework as the key component of its growth management system.










MEM RANDUM

TO: Representative Ray Liberti, Chair
Select Committee on Growth Management
FROM: John M. DeGrove, Director
Joint Center for Environmental and Urban Problems
SUBJECT: Strengthening the Regional Capacity for Growth Management

Background

The Environmental Land and Water Management Act (Chapter 380) and

The Water Resources Act (Chapter 373) both involve a very important role

for the regional level in carrying out their purposes. In the case of the

Water Resources Act the Water Management Districts authorized by

Chapter 373 seem to be working very well, although some funding issues

remain to be resolved. The same cannot be said for the regional agencies

that have the lead responsibility for the regional assessments required by

Chapter 380. In his presentation at the first meeting of the ELMS II

Committee, Allan Milledge, Chairman of the first ELMS Committee, said that

his greatest surprise at how Chapter 380 has been implemented was the

(get the exact quote of what he said about RPCs)." The view that

Regional Planning Councils as presently constituted cannot and will not

serve adequately to protect and assure efficient use of the state's

regional resources is widely shared by observers and practioners alike.

In a decade of close observation and some systematic research into this

issue, I have come to the conclusion that substantial changes need to be

made in order to assure a creditable regional level in Florida's growth

management system. The Governor's Task Force on Resource Management started

this process in 1979-1980, but not all of its recommendations were approved

(e.g. mandatory membership for counties). Furthermore, I have concluded










that while the Task Force recommendations and subsequent action by the legislature

were in the right direction, they did not go nearly far enough in strength-

ening the regional level in Florida's growth management system. To correct

this weak link in the system, I propose the following further changes, all

of which would require legislative action:

1. Mandatory Membership

Membership in Regional Planning Councils should be mandatory

for counties. Cities would be required to participate in the

RPC in which their county was required to be a part.

Reason:

RPC's need to make important regional resource decisions

that inevitably will seem not in the interest of one county

or another at one time or another. Voluntary membership is

not conducive to rational and comprehensive regional resource

management. The Resource Management Task Force recommendation

for mandatory membership for counties should be adopted by the

legislature.

2. Composition of Regional Planning Councils

RPC members should all be appointed by the Governor, with

one-third of the members elected officials, and two-thirds

citizen members. The Governor should appoint the Chairman.

Elected members would be appointed from lists presented to the

Governor by the League of Cities and the State Association of

Counties. No Council could have less than 9 or more than 21

members. There should be a mandated degree of overlap between

Regional Planning Council and Water Management District Board

Members.









Reason:

The present system in which at least two-thirds of RPC

membership is made up of elected local officials is subversive

of regional planning and management. Local elected official

input is desirable, but should not be the dominant force on

the Councils. Appointment of the Chair by the Governor would

be a recognition that RPC's have an important role to play in

planning and implementing the regional component of the state's

growth management system,including the protection and efficient

utilization of key regional and state resources. The very large

(up to ) Councils in some areas of the state are unwieldy,

and do not allow an efficient decision making process. There

is no need, indeed it is not desirable, to have direct repre-

sentation by all local governments by elected local officials

on RPCs. The overlapping membership with Water Management

District Boards is a recognition of the close relationship

between land and water management. The recommendation is

related to the boundary changes proposed below.


3. Funding of Regional Planning Councils

The funding system should be mandated by the legislature,

and should include a mandatory local government assessment; state

funding; and authorization for appropriate fees and other charges.

Funding should be sufficient to assure a competent professional

staff able to carry out the wide range of responsibilities that

will be assigned to the new RPCs in a timely and efficient manner.

However, it should be made clear that RPCs should not staff up

in areas that involve a direct duplication with other regional

agencies, e.g. Water Management Districts.








Reason:

Stable and adequate funding is essential to the effective

functioning of the regional level in the state's growth manage-

ment system. The exact level of funding needed will depend on

the range of functions assigned to the new RPCs, and is related

to the sub-state district recommendation that follows. The

funding and the allocation of responsibility for

that funding to the local, regional or state lvel requires

further assessment, but it is clear that the present level of

funding is not adequate.


4. Added Functions Assianed to The New RPCs

A number of other functions which involve the regional level

should be "folded in" to the RPCs immediately, and the long

range goal should be to devise a system in which almost all

regional agencies are either merged into RPCs or are linked closely

to them, e.g. Water Management Districts. MPOs, regional Health

Planning agencies, and regional Criminal Justice agencies are

examples of regional agencies that should be merged with RPCs.

No doubt there are many others who are ripe for a similar merger.

The aim would be to move toward common sub-state district

boundaries for most state functions.

Reason:

The present bewildering pattern of regional agency boundaries

cannot be justified on any rational grounds. It is wasteful in

a dollar sense, and it does not support the kind of integrated

regional decision making process needed to serve the nation's

fastest growing large State. It is far past the time when the

legislature should grasp this nettle and make the tough decisions







5

that will assure an effective regional level for Florida's

growth management system.


5. Water Manacement District/Regional Planning Council Boundaries

Water Management District Boundaries should be conformed to

county boundaries, and all RPCs boundaries should fit within a

Water Management District.

Reason:

The present practice of drawing WMD boundaries strictly

according to ground or surface water patterns is confusing,

makes close RPCWMD coordination and communication harder, and

is not necessary to the effective planning and management of

the state's water resources. Conforming the WMD boundaries to

county lines is an important and needed step in linking land

and water planning and management much more closely.


6. Regional Comorehensive Policy Plans

These plans were mandated by the 1980 legislature, but

their preparation has not been funded, and no RPC has a plan

in place that has been reviewed for conformance with state

standards. Approval of the Governor's budget request for funds

to assure that the plans are completed should be supported, but

it is equally important that state standards be developed as the

measure for the adequacy of the regional plans. The need for

such plans, and the state standards against which to review and

approve them, will increase greatly as the responsibilities of

the new RPCs are broadened.












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: :::' :i: qFinal Report to Governor Bob Graham








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.-'* :- Section One

~~ .-: An Integrated Policy Framework for Land and Water Management
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Recommendations

1. Comprehensive resource management policies are prerequisite to the

effective management of land and water resources at all levels of govern-

ment. Activities of the various resource management agencies need a

clear direction within an integrated policy framework that promotes con-

sistency between government agencies.-

2. The state should formally adopt state resource management policies

that concisely express policy direction for the management of state

resources and the inherent problems of growth. These policies should

have the necessary legal effect of guiding state agency activities,

including planning, research, regulation and service delivery, toward

a common set of goals. They should also guide the policies and activi-

ties of regional and local agencies insofar as these activities affect

state resources. Specific state goals should include, but not be

limited to a state water policy, coastal management policy, and agri-

cultural lands policy, as described in later recommendations in this

report.

3. Florida's regional planning councils should formally adopt by rule

comprehensive regional resource management policies which are a concise

statement of policy direction for the management of regional resources.

They should be more detailed than state policies, but not as site


2_




























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specific as a local comprehensive plan. Regional policies should be


consistent with state policies, and be certified as such by the state


planning agency.


4. Local government comprehensive planning is currently the basic tool


for growth management in Florida. The hopes and aspirations which led


to the passage of the Local Government Comprehensive Planning Act of


1975 have not been achieved. It is vital that local government compre-


hensive planning be improved and integrated with other state and regional


resource management. After the adoption of state and regional resource


management policies, and when the required five year review of local


government comprehensive plans occurs, local .comprehensive plans should


be certified by both the region and the state for local conformance to


state and regional policies. Subsequent local government plan amendments


should also be so certified. This should not change already-approved


development decisions made by local governments.


5. In order to encourage local governments to prepare, update, and


implement their comprehensive plans promptly and acceptably, a broad


system of workable incentives should be available, and a system of dis-


incentives should be developed and invoked where there is prolonged


delay and/or non-compliance. Incentives should include both technical


assistance and financial assistance that assists effective performance


by local governments.



Explanation of Intent


The intent of these recommendations is to provide a resource


management policy framework to guide and coordinate the decisions of



12


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the various state, regional and local resource managers. The policy


framework should be different than the present state and regional plan-


ning efforts in three important ways. First, policies should have more


than advisory effect over the planning and activities of other agencies;


rather, these agencies should be made to conform to state policies in

their state-related activities. Second, policies should be concise and


easily understood, while being broad in scope. A detailed planning docu-


ment is not envisioned. Third, the policies, once adopted, would be the


basis for state and regional certification of local government comprehen-


sive plans in their state and regional implications.

Policies developed by different management levels should fit, or


"nest" together in an integrated way. State policy would guide the


development of regional policies, which in turn would guide the five-year


review and certification of local comprehensive plans. At the same time,


each level of policy making should primarily attend to the management of


resources at that level. Thus, state policy should be concerned with


resources that are of state importance, and with resolving inter-regional


conflicts. Regional policies should be concerned with regional resources


and should conform to state policy in aspects of greater-than-regional


interest. They should also not infringe on issues that are of purely


local interest. Regional policies should become the standards by which


applications of Developments of Regional Impact are reviewed by regional


agencies. Local plans would be reviewed and certified by regional and


state planning agencies only in their respective regional and state


aspects.


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Because the policies are to have legal effect, they should be

developed with maximum participation of those who will be affected by

the policies, including citizens, all government agencies, and particu-

larly affected groups. The particular vehicle for adoption of state

policy could be the legislature, the Administration Commission, the

Governor, the state land planning agency, or whatever vehicle achieves

the intent of the recommendation in the most timely and effective way.

The regional policies should be adopted by the regional planning councils.

It is vitally important that the quality of local government com-

prehensive planning be improved. Local governments are vested with

primary responsibility for development decisions and other decisions

that affect community resources. The state should increase its effort

to provide technical and financial assistance to local governments in

their planning and implementation efforts. This assistance should be

based on the performance of local governments, while recognizing the

responsibility of local governments to plan effectively regardless of

state assistance.

The state should also initiate a serious new effort to review

and approve local plans for their conformance to state and regional

policies. This will require the immediate development of state and

regional policies. After those policies are adopted, by a target date

of 1984, local plans should begin to be certified. A certified plan

should carry great weight in state and regional decisions, including

priority in the use of state and regional funds. However, it is not

the intent of this recommendation to alter local government approvals

made under existing local plans in effect prior to the proposed

14


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certification.

An integrated policy framework is key to the successful use of

existing management tools in Florida, and underlies all of the Task

Force recommendations that follow. For this reason, it is placed first

~ of all the recommendations.


-4-~








- "-









Section Two

Regional Resource Managemen


It


- I..-_


Recommendations

1. The regional diversity of the state of Florida makes effective re-

source management a necessity, and not a luxury to the state. Regional

resources do not respect local or political boundaries, and thus cannot

be effectively managed solely at a local level. At the same time, cen-

tralized management at the state level cannot always provide for the

significant natural and social diversity found in different regions of

the state. Regional management can accommodate the diversity throughout

the state and bring management closer to the people who use and enjoy

the resources. There now exists a fragmented regional level of resource

management, but this management effort needs to be coordinated and the

ability of regional agencies to manage regional resources needs to be

strengthened.

2. Regional planning councils should be strengthened in two important

ways. Regional policies, as described in Section One, should be developed

to have more than advisory effect on issues of regional resource manage-

ment. Second, regional planning councils should be restructured by:

1) reviewing the existing boundaries of regional planning

councils and fixing them in a logical pattern;

2) mandating county membership in the regional planning

council encompassing the county, and encouraging other

local government participation;



17


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3) basing voter participation by the members of regional


planning councils on a proportional formula;


4) including a less-than-majority of the regional planning


council to be appointed by the Governor;


5) increasing state funding.


If the constitutional restriction on dual office holding is held to


apply, local government membership on the council should be appointed


by elected officials of the member governments.


3. Developments of Regional Impact review responsibilities should be


retained in the strengthened regional planning council. However, in


the event that, within a reasonable period of time, the legislative


session fails to act to strengthen the regional planning council as


recommended, then the Governor should consider designating another


regional agency as the reviewing agency.


4. The Task Force recommends to the Governor that, to the greatest


extent possible, planning for and regulation of both water quality and


water quantity be consolidated at the regional or district level. This


process should continue on a selective basis, with delegation occurring


under standards and guidelines established by the state, to those


regional or district agencies which have or can develop the financial


and technical capabilities to carry out both functions. Selected water


quality functions that can most expeditiously be consolidated with


water quantity functions should be delegated consistent with federal


and state law. A five year target date should be established for


regions or districts to assume these appropriate functions.


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However, where water management districts construct, operate or

maintain works affecting the quality and quantity of state waters, such

activities should be regulated by the Florida Department of Environ-

.-'- mental Regulation under rules adopted by the Environmental Regulation

Commission. Likewise, the DER and ERC should retain power to establish

statewide quality standards, and should exercise oversight of the water

management district activities to assure needed consistency with state

planning and standards in the operation of the water management districts.

(See also Section Four.)

5. A long range goal of the state should be the consolidation of the

many regional agencies into one regional land and water resource manage-

ment agency. This regional agency should be responsible for planning,

regulation, and the delivery of services in those limited issues and

service problems that require regional solutions. The Task Force recom-

mends that any immediate steps in strengthening regional agencies be

considered in light of this long range goal.


Explanation of Intent

The Task Force recognizes that regional agencies have an important

role in resource management and should be strengthened in their ability

to carry out that role. Where regional agencies are capable of assuming

related duties and where that assumption would eliminate administrative

duplication and provide better management, the agencies should assume

those duties.

The recognition of the vital necessity for a more effective


-- 19








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regional planning and service entity is not a call for the creation of

another level of government bureaucracy. A fragmented and largely in-

effective layer of region management already exists in Florida. Rather,

recommendations seek to coordinate and give policy direction to the

existing regional management agencies.

The recommendations include the strengthening of regional plan-

ning councils to enable the councils to assume a greater responsibility

in developing regional policies, providing regional services, and re-

viewing developments of regional 'impact. Regional planning councils

are presently the only agencies that plan for and review a wide range

of resource management activities, and therefore are appropriate lead

agencies for regional policy development. However, the present struc-

ture of the councils does not adequately encourage a regional perspec-

tive by members. If councils are to be more than advisory agencies

on regional matters, the regional perspective must be built into the

structure of the councils. Thus, membership by counties should be

mandatory, not voluntary, and regional boundaries should be fixed in

a logical pattern. Gubernatorial appointment of a minority of council

officers can encourage service by persons with regional, rather than

local, constituencies. To assume a greater role, the councils must

receive greater financial support.

It is felt by the Task Force that the review of developments of

regional impact could significantly be improved in a strengthened

regional planning council. However, if councils are not so strengthened,

the Task Force is not totally satisfied with the ability of presently


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constituted regional planning councils to retain review responsibility.

Therefore, consideration should be given to an alternate agency if

councils cannot be strengthened in the near future.

Careful consolidation of water quality and quantity functions

in a single regional agency in each region is a specific recommendation

for using the regional agency to its best advantage in integrating

resource management. The recommendation does not single out either

water management districts or regional offices of the Department of

Environmental Regulation as the most appropriate agencies for this

consolidation. This is because these agencies show different strengths

in each region of the state. The Task Force recommends that the Governor

carefully evaluate these strengths before consolidating water quality and

quantity functions in either agency. Transfer of specific water quality

and quantity responsibilities to regional agencies should also be eval-

uated in light of legal, fiscal or administrative constraints.

In consideration of the value of regional resource management,

the Task Force recommends that a long range goal should be the establish-

ment of a single regional resource management agency. Consolidation of

functions in a single agency could facilitate the sharing of expertise,

could better integrate the related concerns of land and water management,

and could help to consolidate permitting procedures. This would also

make more efficient use of state funds. The agency could provide

regional services for the specific needs that are most efficiently

addressed at the regional level.


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Section Three

Improvements in the Developments of Regi(

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onal Impact Process


Recommendations

1. The Developments of Regional Impact Process contained in Chapter 380

of the Florida Statutes is relatively effective but at times has been

unnecessarily burdensome and complicated. However, it is basically a

valuable process and should not be abandoned or replaced by other exist-

ing review or permitting processes. Rather, the process should be im-

proved to fulfill its statutory purpose and should be better integrated

with other planning and permitting to eliminate processing delays and

provide more knowledgeable review. The Task Force recommendations

build primarily upon the existing process.

2. In the immediate future, Chapter 380 should be amended to permit

more responsive revision of the guidelines and standards that determine

which developments may be considered to be of regional impact. Specifi-

cally, the legislature should statutorily define the categories of

development which may be considered developments of regional impact.

Changes in the present guidelines and standards should be made through

rule-making by the Administration Commission, with such changes to

become effective upon the conclusion of the following session of the

legislature, if not rejected by the legislature.

3. Chapter 380 should also be amended to state that guidelines and

standards adopted by rule are presumed to be determinative as to

whether a development is a DRI, and that the presumption shall be over-


__ __






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-4


come only by clear and convincing evidence.

4. New guidelines and standards should be developed by thorough profes-

sional study for adoption by the Administration Commission. The guide-

lines and standards should incorporate qualitative criteria, taking

into consideration the character, location, and magnitude of development,

as well as quantitative criteria. New criteria should ensure that

developments are reviewed for only regional, and not local, issues. The

regional planning council should be permitted to comment on issues of a

local nature for information, but such issues should not be the basis

for appeal of a development order. Electrical transmission lines should

not be required to be reviewed as a DRI, but a review program similar to

the Power Plant Siting Certification Program should be established for

electrical transmission lines, and administered by the Department of

Environmental Regulation.

5. Both the development of state and regional policies and the strength-

ening of regional planning councils will provide significant improvement

to the Developments of Regional Impact process. Upon the completion of

an integrated policy framework as described in Section One, the Task

Force would endorse and encourage the promotion of a local government

DRI review option. Such an option should be established first on an

experimental basis to test its effectiveness. The option would permit

local governments to assume the responsibility for administering the

review of a DRI application. The regional planning agency, and the

state land planning agency, would retain a right to appeal a local

government development order to the Governor and Cabinet.


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-Such an option would be avai.

-" after it: a) incorporates state ai

* policies within its adopted local g(

adopts site-specific impact review

-'adequately address regional as well

that adequate staff and funds are ai


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able to a local government only

nd regional resource management

government comprehensive plan; b)

and assessment procedures which

as local issues; c) demonstrates

available to administer the process;


d) develops adequate multi-jurisdictional review and appeal mechanisms;

and e) agrees to a state or regionally supervised monitoring and annual

certification system.

6. Other specific means for improving the DRI process which should be

adopted include (by stage of process):

Binding Letter Stage

a. Amend Section 380.06, F.S., to grant regional planning
agencies (RPA's) standing to intervene in binding letter
determinations made by the State Land Planning Agency.

b. Amend Section 380.06, F.S., to reduce the time during
which the State Land Planning Agency must make a binding
letter determination from "60 days" to "30 days from
receipt of a sufficient application."

c. Provide information and assistance to developers
through prebinding letter submission conferences, infor-
mation workshops and responses to specific information
requests.

Preapplication Stage

d. Improve the DRI Application (ADA) by eliminating
requests for non-regional information, standardizing
information requirements statewide, and producing a
consolidated regulatory and planning review packet for
use by developers in coordinating with other planning
and regulatory processes and initiating concurrent
project approval processing.

e. Establish procedures allowing RPAs to identify
issues as (1) local, (2) possibly regional, or (3)


25


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prclearly regional, and giving RPAs authority toainin
unnecessary information requirements for specify
^ proposals.

.1
f. Require RPAs to develop and maintain an infc
base, including application data and pertinent ;
for use by developers at their option; and to de
* procedures for assisting developers in obtaining
-- mation from other sources.


raive
'c DRI


)rma tion
plans ,
.velop
infor-


g. Establish mandatory preapplication conferences in
order to save time and reduce costs.

h. Establish procedures allowing developers to select
the most appropriate type of DRI review option: for
example, "regional impact only;" "regional impact and
local approvals;" "regional impact and state permits;"
or "all of the above."


Regional Review and Public Hearing Stage


i. At the option of the developer, require state,
regional and local agenices to use the DRI process as
a vehicle for coordinating planning and permitting
requirements. This includes requiring agency partici-
pation in preapplication conferences and subsequent
meetings, and establishing procedures to allow concurrent
processing of DRI, environmental permitting and other
planning/regulatory requirements.

j. At the option of the developer, require state
agencies, including water management districts to parti-
cipate in regional reviews for topics clearly within
their jurisdiction. State agency DRI review comments
should be binding on the RPA staff making the review,
and incorporated verbatim in the regional DRI report.
RPA staffs should be authorized to attach dissenting
views.

k. At the option of the developer, require state agen-
cies to use the DRI process for permitting reviews,
where information and timing requirements are compatible;
and (2) for conceptual planning reviews, where DRI
reviews are not sufficient for permitting purposes.
At the conceptual review level, state agencies should
specify those problems that could later constitute
grounds for permit denial or a major modification of a
proposed development. A failure to identify such grounds
at the conceptual review stage should preclude the state


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agency from raising such issues/concerns during later
permitting. This constraint should not apply when the
agency could demonstrate that adequate and accurate
information was not available at the time of review or
that conditions have changed. (See q below.)

1. Prohibit RPAs from requiring additional information
from developers after it has once been determined that
a DRI application is "sufficient for further review."

m. Develop and adopt by rule, a system for determining
and granting development credits which can be used to
counterbalance a project's negative regional impacts.

n. Local governments should continue to use zoning-type
development order hearings, but should be required to
(1) tape record hearing proceedings, making such record-
ings available for transcription at the expense of any
interested party; and (2) specify in the notice of local
development order hearing where and how DRI reports and
information can be obtained.

Development Order Stage


o. Amend Section 380.06(7), F.S., to require local
governments to complete public hearings and issue
development orders not more than 120 days from the date
the local government meets to set the public hearing,
unless the time period is extended at the developer's
request. Failure to complete this process within the
120-day time limit, or to obtain an extension, should
result in automatic approval of the project.

p. Development orders (D.O.) should specify the proce-
dures and the local government officials) responsible
for monitoring the DRI for compliance with the D.O..
D.O.s should specify the types of information to be
included in any reports required of developers. D.O.
expiration dates should be established to allow
developers a time certain to commence physical devel-
opment or otherwise comply with D.O. conditions and
phasing requirements.

q. Require all parties to review proposed D.O.s on
master Application Approvals; to ensure that anticipated
impacts have been adequately addressed and that future
review requirements for subsequent incremental applica-
tions are clearly defined. In the D.O. for master appli-
cations, specify those concepts agreed upon and those
potential problems that can result in the denial of


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incremental applications. Local and regional z
incremental applications should be restricted t
problems that were identified in the master ap;
and any development plans inconsistent with the
conceptual approval. Issues reviewed and apprc
-_ ..4 both master and incremental application proceed
D.O.s should be considered settled and not subj
T"-' further review in later incremental application
..- unless either substantial changes occur in cond
underlying the D.O., or the D.O. is shown to ha
based on inaccurate information of a substantial

r. Upon the developer's request, require local
----.4
ments to issue the D.O. concurrently with appro
related local approvals (e.g., zoning) and loca
amendments.

-": Appeals Stage

s. After an appeal is filed, parties involved
D.O. dispute should be required to meet within
(30) days in an effort to resolve the dispute.

t. The composition of the Florida Land and Wat
catory Commission (Governor and Cabinet) should
"- changed.

u. The list of parties eligible to appeal loca
ment development orders should not be expanded


present statutory four:
the state land planning


Development Order Revision and Enforcement Stage

v. Amend Chapter 380, F.S., to clarify that the Develop-
ment Order runs with the land and is assignable in the
event of foreclosure, bankruptcy, or sale of all or part
of the property.

w. Change the "substantial deviation" determination to:

Specify by rule and in local development orders that
developers must present all proposed DRI changes to
the local government for a substantial deviation
determination;

Require that local governments make a substantial
deviation determination on any changes to an approved
DRI;


*eviews of
:o those
locationn
Previous
ved in
rings and
ect to
hearings
itions
ve been
1 nature.

govern-
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not be


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the property owner, the developer,
agency, or the appropriate RPA.


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Clarify that the local government must notify the i i
RPA and state land planning agency of their proposed
changes and findings when local review is completed;

Clarify that any finding regarding proposed changes
made by the local government is a D.O. subject to
-:-' ~appeal provisions of Section 380.07, F.S.

x. During the progress of development, improve monitoring
and enforcement of the terms of D.O.s by requiring devel-
opers to prepare brief annual reports on each DRI, indi-
cating the status of the development and any modifications
that may have occurred. The report should be submitted to
the RPA. Failure to submit the report could result in the
RPA or State Land Planning Agency calling a hearing to
require the developer to show cause as to why the report
had not been filed. Failure to show cause could result in
a temporary suspension of the D.O.

y. Amend Chapter 380, F.S., to clarify that the local
government issuing the D.O. is responsible for enforcing
its provisions, with oversight responsibility remaining
with the RPA and the State Land Planning Agency.

.". -z. Prohibit local governments from issuing permits or I
approvals or providing services if the developer fails to
.. att in substantial compliance with the conditions of the
*.. "D.O.


Explanation of Intent

Recommendations regarding improvement of the Developments of '

Regional Impact process result from a comprehensive study of the process,

assisted by developers, regional planning councils, state agencies and

local governments. The Task Force recommendations include a number of

Si significant administrative improvements in the DRI process. The Task

Force finds that proposed alternatives to the DRI process, such as exist-

ing state permitting or federal environmental impact statements, are

not sufficient or appropriate in themselves to accomplish the purposes

of the DRI review. Instead, internal improvements in the process are

recommended that will (1) increase education and information assistance

29


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for all DRI participants, (2) improve coordination and communication

among DRI participants and permitting agencies, clarify ambiguities

and increase uniformity in the DRI process, (3) decrease the time

required to review and approve DRI applications and to appeal DRI

development orders, (4) increase the accountability of state, regional

and local governments for DRI review and approval, and (5) provide in-

centives for developers to better use the DRI process. These are

improvements that can be made in the short run to build upon a valuable

and unique management tool.

The Task Force looks forward to a time when development of any

magnitude will receive appropriate and sufficient review for its

approval at the local level. It is believed that local government

comprehensive plans that adequately address regional and state issues

might be the basis for such a system. The local DRI review option


described in this recommendation should be considered in the future,

after the adoption of an integrated policy framework and an experimental

program.


-













Section Four

Management of Water Resources


-;.'. Recommendations

1. The Task Force recommends that the state develop and adopt by rule

State water policy. The policy should be developed through the com-

. .- ~ bined efforts of the water management districts and the Department of "

Environmental Regulation, with the aid of regulated industries and the

Public. The policy should be policy should a "mid-range" policy, that is of more

specificity than the water policies expressed in the Florida statutes,

but broad enough to guide the development of more specific plans by the

water management districts. The policy should be a part of the inte-

grated policy framework described in Section One, and should be formally

'- adopted as a state rule under the Administrative Procedure Act. Both

the State water Use plan and the State Water Quality plan should be made A'

consistent with the adopted state water policy.

2. The Task Force recommends to the Governor that, to the greatest i

extent possible, planning for and regulation of both water quality and F

water quantity be consolidated at the regional or district level. This

process should continue on a selective basis, with delegation occurring

( ~ under standards and guidelines established by the state, to those

regional or district agencies which have or can develop the financial

and technical capabilities to carry out both functions. Selected water

quality functions that can most expeditiously be consolidated with '

water quantity functions should be delegated consistent with federal

and state law. A five year target date should be established for


31





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regions or districts to assume these appropriate functions.


However, where water management districts construct, operate or


maintain works affecting the quality and quantity of state waters, such


activities should be regulated by the Florida Department of Environmental


Regulation under rules to be adopted by the Environmental Regulatory


Commission. Likewise, the DER and ERC should retain power to establish


statewide quality standards, and should exercise oversight of the water


management district activities to assure needed consistency with state


planning and standards in the operation of the water management districts.


(See also Section One, Recommendations.)


3. Water management districts should be given statutory authority to


develop regional water supply systems within their districts, and to


implement regional water supply systems where local governments and


private utility companies have failed to do so on a reasonable basis.


Regional Water Supply Authorities now authorized by statute should be


absorbed by their respective water management districts, and new regional


water supply authorities should not be permitted to form separate from


water management district control. Local governments and private util-


ities should continue to establish local and regional water supply systems


under the regional planning umbrella of the water management districts.


Water management district ad valorem funds should be authorized to assist


local governments in the development of regionally responsible water


supply systems.


4. The delegation of specific water quality tasks from DER to local


governments should be continued on a limited basis. In particular,


ministerial tasks by local governments that are supportive of regional


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-- programs should be delegated, with ultimate permitting responsibility

retained at the state or regional level. Local programs with exceptional

staff capability should be delegated limited permitting authority, sub-

SLam ject to state or regional program supervision.


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Explanation of Intent

Florida's present water management system is predicated on a

sound legislative and administrative base. The Task Force recommenda-

tions recognize this base, and build upon it.

The Task Force recommendation for a "mid range" state water

policy is a response to the management need to bridge the gap between

broad legislative policy and the "defacto" policies that arise from

regulatory activities. The state has taken the first steps to develop

such a policy, and is encouraged to continue development, in coordina-

tion with all interested parties, particularly the water management

districts. Water policy development should be consistent with the

parallel development of broader state resource management policies,

described in Section One. The policy should be flexible enough to

provide for regional variations, but should resolve interregional con-

flicts and provide guidance to regional and local water planning and

actions. Both water quality and quantity issues should be addressed.

Adoption under Chapter 120 is necessary so that the policy will have

legal force. In addition, adequate public input is assured, and com-

pliance with and implementation of the policy can be governed by Chapter

120 appeals processes.

Consolidating management of water quality and quantity is dis-


33









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cussed in Section Two in regard to the advantages of managing water

resources at the regional level. Consolidating the management of

these aspects in one agency, regardless of the level of government,

is recommended because the management of one is so closely related

to the management of the other. One agency with the full responsi-

bility for water resources will be better equipped to deal with this

relationship in its water quality and quantity decisions. Administra-

tive duplication of data and manpower should be reduced by the con-

solidation. The recommendation carries forward the trend toward

consolidation of these functions begun in the Environmental Reorganiza-

tion of 1975, with emphasis on the regional agency management under DER

supervision. The specific regional agency most capable of assuming

both quality and quantity responsibilities may vary by region. That

determination is deliberately left to the Governor, in order to give

him the greatest flexibility possible. However, if water management

districts assume the responsibility, it is recommended that their con-

struction activities be regulated directly at the state level to avoid

a conflict of interest by the water management districts.

Water management would be improved by giving water management

districts authority to plan for and implement regional water supply

systems where local governments are incapable of doing do. This

practice would make use of the water management district expertise in

water matters and would be consistent with their regional water respon-

sibilities. The present authority which permits the formation of

regional water supply authorities encourages administrative duplication


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and the "defensive" establishment of region

-. Regional supply duties in the water manageme

can help resolve often bitter interlocal dis

*-"-I-- available regional assistance to local gove

tion encourages local and private supply sys

under the supervisory regional umbrella.

Local responsibilities for water qual

courage by the recommendation for careful d

tasks to local governments. Local government

ability can provide more timely permitting an

ability in permitting decisions, while relie

management burdens.


1 supply authorities.

nt districts, however,

putes, and can also make

rnments. The recommenda-

tems where feasible,



ity regulation are en-

elegation of specific

ts with sufficient capa-

d better public account-

ving regional or state


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STATE OF FLORIDA
VOUCHER FOR REIMBURSEMENT
OF TRAVELING EXPENSES


PAYEE
HEADQUARTERS


Check: 0 Official


0 Temporary


SOCIAL SECURITY NO._
APPROPRIATION
DEPARTMENT


Hour of Incidental
Travel Performed Purpose or Reason Departure Per Diem Map Vicinity Expenses
Date From Point of Origin (Name of Conference) And Hour of or Mileage Mileage
To Destination Return Meals Claimed Claimed Amount Type
M $
M
M
M
M
M
M
M
M
M
M
M
M
M
M
M
M
M
M
M
M
M
M
M
M
M
M
M
M
M
M
I hereby certify or affirm that above expenses were actually incurred by me as necessary traveling expenses in the performance Mi.
of my official duties; attendance at a conference or convention was directly related to official duties of the agency; any meals orTOTAL
lodging included in a conference or convention registration fee have been deducted from this travel claim; and that this claim is @ i TOTAL
true and correct in every material matter and same conforms in every respect with the requirements of Section 112.061, Florida $ $ $ $
Statutes. (FOR AGENCY USE)
PAYEE SIGNATURE: Per Diem Allowance $
DATE PREPARED: TITLE: Mileage Allowance $ d mile
Pursuant to Section 112.061 (3) (a), Florida Statutes, I hereby certify or affirm that to the best of my knowledge the above Meals as Shown initial )
travel was on official business of the State of.9Elorida =d.d yvapgf;ogry-f.frtLegaPPS ssi2sta %Lo0~e, -W f v.
Title
SUPERVISOR SIGNATURE: EXECUTE REVERSE SIDE IF COMMON CARRIER OR Form C 676
SUPERVISOR TITLE: STATE VEHICLE WAS USED Rev. 10/73
Statutes. (FOR AGENCY USE)







SUPERVISOR TITLE: __________________________ _________________ __ STATE VEHICLE WAS USED _____ Rev 10/73 .




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