Title: Water, Water Everywhere: Not A Drop To Drink, Irrigate or Process
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Permanent Link: http://ufdc.ufl.edu/WL00004570/00001
 Material Information
Title: Water, Water Everywhere: Not A Drop To Drink, Irrigate or Process
Physical Description: Book
Language: English
Publisher: Frank E. Matthews, Hopping Green Sams & Smith, P.A.
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Water, Water Everywhere: Not A Drop To Drink, Irrigate or Process (JDV Box 90)
General Note: Box 24, Folder 1 ( Governmental Rules, Regulations, Legislation and Administrative Laws - 1996 ), Item 24
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004570
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

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WATER, WATER EVERYWHERE: NOT A DROP TO DRINK,
IRRIGATE OR PROCESS

Frank E. Matthews
Hopping Green Sams & Smith, P.A.


Over the last 24 months, everyone has suggested that water supply legislation would

dominate the 1996 legislative session. It was expected that the results of the Water Management

District Review Commission (WMDRC) and the controversy created by the water shortages in

the Southwest Florida Water Management District (SWFWMD) would create an impetus for

significant legislative revision to Florida's legislative water code. As is always true in

Tallahassee, the expected did not happen.



Regulated interests throughout the state breathed a collective sigh of relief when the only

water legislation that passed the 1996 legislative session was the CS/CS/HB 2385, which dealt

specifically with Hillsborough, Pasco and Pinellas Counties, This relatively modest legislation

provides for the priority scheduling of minimum flows and levels for water bodies within

Hillsborough, Pasco and Pinellas Counties, culminating in the establishment of minimum flows

and levels for priority waters within those 3 counties by October 1, 1997. The bill further

provides that independent scientific peer review may be required if the facts underlying the

establishment of those minimum flows and levels are subject to dispute. Fortunately, this section

of the bill was not limited to the three counties in SWFWMD and should be applicable

statewide. On another statewide implication, it is noteworthy that the legislation authorized the

Governor to approve or disapprove, in whole or in part, the budgets of all 5 water management

districts.


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The Failure of either the House or Senate Select Committees on Water Policy to develop

omnibus water legislation can be attributed to the overall lack of consensus on what, if any,

action the state should take in attempting to more equitably provide and distribute its water

resources. Most regulated interests argue vehemently against the politics of water shortage.

Few, in the water consuming public, agree that legislation needs to be foisted upon the state,

based on the underlying premise that a true water shortage exist. Admittedly, certain areas of

the state have periodic water shortages and certain parts of the state have mismanaged the

volume of fresh water which is available to them. Nevertheless, the notion that rollbacks of

existing water withdrawals are necessary in order to insure a sustainable quality of life and a

vital natural system simply isn't true\ The 2 most common themes which plagued the regulated

community during the water debates was the absence of any dedicated funding to implement

water supply plans or innovations and the overall notion that the establishment of minimum

flows and levels was a euphemism for the reservation of water for natural systems at the expense

of existing and future consumptive use permit holders.



Unfortunately, 20 or more of the WMDRC's recommendations which would have

reformed the water management districts, became hostages in the water policy legislation.

Senator Charles Bronson put forth a valiant fight to incorporate WMDRC recommendations into

legislation which would establish priority schedules for the establishment of minimum flows and

levels and try-to develop incentives for the development of alternative water supplies. (See

CS/SB 1728.) This effort failed, however, due to attempts to amend the legislation with

significantly more controversial issues,


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Throughout the 1996 legislative session, the simplest criticism of the draft water bills,

was the absence of additional water. In other words, nothing in the legislation would have

resulted in additional water being made available for public supply, irrigation, industrial

consumption or natural system utilization. Rather than focusing on this relatively simply

objective, which is the creation and distribution of more water for al appropriate users, the draft

legislation attempted to set forth a growth management-like planning process which could have

resulted in water being the tail which wagged the land use decision-making dog. The lesson of

growth management since 1985 has been that the implementation of a planning and regulatory

infrastructure, which is based upon unfunded capital improvements is a diagram towards

disaster. Many felt the House proposed committee bill would have added water to the existing

impediments to growth and economic development in Florida. Additionally, the Governor's

office repeatedly fought the idea that the water. policy rule approved by the DEP needed

legislative ratification. Each time this subject was brought up in Committee, the idea passed,

yet each time the House leadership prepared a strike-everything amendment, the issue

disappeared. Beyond planning, funding and legislative ratification, a number of lesser issues

were generally agreed upon as reflected in CS/SB 1728. However, no significant constituency

emerged willing to advocate passage of the legislation,



The future is uncertain. Hillsborough, Pasco and Pinellas Counties will go forth pursuant

to HB 2385, but that area should not be a testing ground. Those circumstances don't exist

statewide and neither the Southern Water Use Caution Area or the Lower East Coast of South

Florida should be used as a model for water policy and supply legislation for the state. We all


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benefit by more water and better water management and that should be the goal. Let's not focus

on allocation schemes based on assumptions of dwindling supply until we at least make a good

faith effort to fully supply man and nature. Alternative water supply development should not

be the exclusive domain of agriculture and industry and that seems to be the dangerous trend.

If allocation of a finite supply is the focus of legislation or regulation, that will pit urban versus

rural, public supply versus non-potable users, water rich versus water poor, coastal versus inland

and man versus nature.



Currently, minir;um flows and levels may be set ignoring the realities of existing and

future users. The existing section 373,042, F.S., provides virtually no guidance on the

establishment of minimum flows and levels and that lack of guidance was the strongest argument

in favor of passing legislation. The thought being, that some guidance is better than none. The

stronger sentiment however, was that case-by-case decisions can be administratively and legally

adjudicated and greater damage could result if flawed legislative direction was provided. For

example, it was repeatedly stated that minimum flows and levels must serve nature and be based

on "pure" science. That flawed logic, ignores the reality that science is dependent on facts.

Consequently, no minimum flow or level should be established ignoring the facts associated with

existing withdrawals or future growth demands. If man's utilization of water isn't part of the

minimum flow and level determinations, the litigation will be endless and the opportunity to

improve this issue, lost. Next year may be better, but I doubt it.






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