Title: The Florida Water Resources Act of 1972 and Comprehensive Planning in the State of Florida
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 Material Information
Title: The Florida Water Resources Act of 1972 and Comprehensive Planning in the State of Florida
Physical Description: Book
Language: English
Publisher: South Florida Water Management District
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann Collection - The Florida Water Resources Act of 1972 and Comprehensive Planning in the State of Florida
General Note: Box 25, Folder 4 ( Fla. Water Resources Act of 1972 - February, 1989 ), Item 1
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004675
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text












THE FLORIDA WATER RESOURCES ACT OF 1972

AND

COMPREHENSIVE PLANNING IN THE STATE OF FLORIDA






Prepared for the

SOUTH FLORIDA WATER MANAGEMENT DISTRICT




FEBRUARY, 1989






SIEMON, LARSEN & PURDY

Dearborn Station
47 West Polk Street
Chicago, Illinois 60605-2030

Mizner Administration Building
2 East Camino Real
Boca Raton, Florida 33432


I










TABLE OF CONTENTS


INTRODUCTION 1

CHAPTER I: THE STATUTORY FRAMEWORK 3

A. CHAPTER 186 3

B. CHAPTER 187 4

C. CHAPTER 163 5

D. CHAPTER 373 .. 7

E. CHAPTER 380 11

F. A COMPOSITE OVERVIEW OF THE STATE'S PROGRAMS 12

CHAPTER II: EXISTING LAND USE AND RESOURCE PLANNING
AND MANAGEMENT PROGRAMS 14

A. THE WATER MANAGEMENT DISTRICTS ROLE IN
LAND AND WATER MANAGEMENT 14

1. THE DISTRICTS INVOLVEMENT IN PLANNING 14
2. DISTRICT STRUCTURES 19
3. DISTRICT PERMITTING 20
4. LAND ACQUISITION 21

B. LOCAL GOVERNMENT'S ROLE 22

1. PLAN PREPARATION AND AMENDMENT 23
2. LOCAL PLAN DEVELOPMENT REGULATIONS 24
a. ZONING 25
b. SUBDIVISION REGULATIONS AND PLAT
APPROVAL 25
c. PLANNED DEVELOPMENTS 26
d. SPECIAL EXCEPTION 28

C. CONFLICTS CREATED BY EXISTING PROGRAMS 29








THE DOCTRINE OF "CONSISTENCY"


A. THE CONSISTENCY DOCTRINE AS A THEORY
OF GOVERNANCE 32

B. THE "INACCORDANCE WITH" DOCTRINE 32

C. OTHER JUDICIAL RESPONSES: THE "FASANO" DOCTRINE. 34

D. LEGISLATIVE MANDATES FOR CONSISTENCY. 35

E. THE CONSISTENCY DOCTRINE IN FLORIDA 38

1. JUDICIAL CONSIDERATION OF THE CONSISTENCY DOCTRINE
IN FLORIDA 39
2. STATUTORY AUTHORITY OF THE DISTRICT IN REGARD
TO REQUIRING CONSISTENCY 40
3. CONSISTENCY RULES ARE REASONABLY RELATED TO
THE PURPOSES OF THE WATER RESOURCES ACT 42
4. CONSISTENCY RULES ARE NEITHER "ARBITRARY"
NOR "CAPRICIOUS". 47
5. SUMMARY 50


CHAPTER IV:


LAND USE AND RESOURCE PLANNING AND
MAMANGEMENT APPROACHES .


A. GENERAL CONSIDERATIONS

1. DATA COLLECTION.
2. POLICY MAKING .
3. FUTURE LAND USE MAP PLAN
4. LAND DEVELOPMENT REGULATIONS
5. COORDINATED PERMITTING
6. FISCAL IMPLICATIONS .

B. PLANNING ASSISTANCE .


MANDATED CONSISTENCY
SUPPORT OF LOCAL PLANNING.
a. INFORMATION
b. PLANNING PERSONNEL
c. TECHNICAL EXPERTISE
d. FINANCIAL ASSISTANCE


CHAPTER III:








3. REVIEW AND COMMENT .


C. COORDINATED PERMITTING 68

1. DELEGATIONS 69
a. EPA PERMITTING PROGRAMS AND
STATE PROGRAMS. 70
i. National Pollutant Discharge Elimination
System 72
ii. Resource Conservation and Recovery Act 75
iii. Underground Injection Control 76
iv. EPA Air Pollution Programs 78
b. UNITED STATES ARMY CORPS OF ENGINEERS 79
c. SUMMARY / DELEGATION 80
2. CONSOLIDATION 82
3. INTEGRATED PERMITTING 83
4. NON-JUDICIAL APPEALS 83



CHAPTER V: IMPLICATIONS OF MANAGEMENT APPROACHES 85

A. TURF 86

B. FISCAL 87

C. GOOD GOVERNMENT AND EFFICIENCY 88

D. SUMMARY 88


CHAPTER VI: ALTERNATIVE INSTITUTIONAL STRUCTURES FOR
COORDINATED WATER RESOURCE PLANNING AND MANAGEMENT
AND LAND USE PLANNING AND MANAGEMENT

A. INTRODUCTION 89

B. DELEGATION MODEL 93

C. COMPREHENSIVE PLAN CONSISTENCY REQUIREMENT 96

D. ADMINISTRATIVE APPEAL MODEL 99


E. REGIONAL PLANNING AND LAND USE CONTROL .


101








F. INTERAGENCY COORDINATING COMMITTEES


G. PLANNING SUPPORT


CHAPTER VII:


RECOMMENDATIONS


A. INTRODUCTION .

B. ENHANCED PLANNING .

1. BACKGROUND INFORMATION AND DATA
2. WATER RESOURCES POLICY PLAN
3. WATER RESOURCES LAND CAPABILITY MAP .

C. COORDINATED AND CONSISTENT PERMITTING

1. CONSISTENCY RULE .
2. COORDINATION AGREEMENTS .
3. DECENTRALIZED PERMITTING .
4. MODEL PERFORMANCE STANDARDS

D. ACTION PLAN .

1. A DEMONSTRATION PROGRAM FOR A
SUBDISTRICT OFFICE .

2. A DEMONSTRATION PROGRAM FOR COORDINATION
AGREEMENTS .


3. SUMMARY .


103

104


107

109

110
111
111


112


112
113
115
116

116


118


127

130










INTRODUCTION


For a number of reasons, not the least of which is the approaching deadline
for the preparation of local comprehensive plans and land development regulations under
the Local Government Comprehensive Planning and Land Development Regulation Act,'
(the "Omnibus Growth Management Act of 1985") and the adequate public facilities
standard established by the Act (the so-called "concurrency" requirement),2 the South
Florida Water Management District has undertaken an analysis of the opportunities and
constraints for improved coordination in the implementation of the Florida Water
Resources Act of 1972,3 the State and Regional Planning Act,4 the State Comprehensive
Plans and the Local Government Comprehensive Planning and Land Development
Regulation Act.6
The State of Florida has, through various planning and resource
management statutes, established a complex planning and land and water resource
management structure. A key element of that structure is that responsible planning is an
essential predicate to public action and that "no public and private development shall be
permitted except in conformity with comprehensive plans ...."7 In other words, the State
has established a resource planning and management structure to guide the future of the
entire state through the medium of state, regional and local planning and land
development regulations which are "consistent" with one another. Unfortunately the
statutes governing the linkage between the land use planning and management
component of the State's resource planning and management structure and the water
resources planning and management component do not clarify the responsibility of the
State's water management districts. Indeed the linkage is sufficiently obscure that the
Joint Administrative Procedures Committee of the Legislature of the State of Florida
formally requested that the South Florida Water Management District repeal a District


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rule requiring local plan consistency as a prerequisite to District permitting. Despite
serious doubts as to the legal correctness of the Committee's position, the South Florida
Water Management District repealed its "compatibility rules", and initiated this study to
examine the need for, appropriateness of and legal basis for consistency between land use
planning and management and water resource planning and management under Florida's
growth management structure. As a matter of good government and efficient
performance, the South Florida Water Management District would like to ensure that its
planning, permitting, capital improvement and land acquisition programs are carried out
so as to maximize the achievement of the goals and policies of the State's growth
management programs.
This study is directed at the interrelationships between the various resource
management programs created by Chapters 163, 186, 187, 373 and 380 of the Florida
Statutes and providing a critical analysis of ways in which implementation of the acts can
be made more efficient, effective and coordinated. The first chapter is a characterization
of the existing implementation framework and Chapter II sets forth a discussion of the
District's existing obligations and authority in regard to state, regional and local
comprehensive plans.8 Of particular importance in this chapter is the relationship
between the District's permitting activities and local government comprehensive plans.
Subsequent chapters describe the inter-relationships between local, regional and state
planning and land development regulation programs and analyze the nexus between the
District's responsibilities and local and regional programs. Chapters III, IV, V and VI
discuss alternative institutional structures for coordinating the District's programs, with
local and regional efforts presented and discussed in conjunction with an action plan for
improvement; and Chapter VII contains recommended reforms and an action plan for the
District.


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CHAPTER I


THE STATUTORY FRAMEWORK


In order to describe the role of the District in regard to local plan
compliance, it is necessary to review the goals, policies and objectives of the Florida
Water Resources Act,9 the statutory mandates of the State Comprehensive Plan,10 the
State and Regional Planning Act'" and the Local Government Comprehensive Planning and
Land Development Regulation Act.12


A.
CHAPTER 186
Sections 186.001 through 186.031 and 186.801 through 186.911 of the
Florida Statutes (the Florida State Comprehensive Planning Act of 1972) provided that
"li]t is necessary to establish an integrated planning system and to ensue coordinated
administration of government policies, especially those policies dealing with land use,
water resources, and transportation system development."13 The legislature directed the
Executive Office of the Governor to prepare a State Comprehensive Plan providing for the
"long-range guidance for the orderly social, economic, and physical growth of the state."
All state agencies would then be required to implement and enforce the State
Comprehensive Plan "consistent with their lawful responsibilities." Ultimately a proposed
State Comprehensive Plan was modified by the Legislature and adopted as Chapter 187
of the Florida Statutes in 1985.
Under the planning act, state agency functional plans are required to be
prepared so as to "effectively coordinate" the "orderly, positive management of growth
consistent with the public interest." Agency functional plans are required to set forth
"those objectives against which there shall be evaluated the achievement by the agency
of its policies and the goals and policies for the state comprehensive plan." The State


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Water Plan, the final draft of which was prepared in 1986, is the Department of
Environmental Regulation (DER)'s functional plan which is required to be consistent with
the State Comprehensive Plan.
Chapter 186.501 e sea., the Regional Planning Council Act, provides that
comprehensive regional policy plans "shall be consistent with and shall further, the state
comprehensive plan; and shall implement and accurately reflect the goals and policies of
the state comprehensive plan." Further, the regional plan shall address "significant
regional resources, infrastructure needs, or other issues of importance within the region."
Preparation of the comprehensive regional policy plan shall include an analysis of the
"problems, needs, and opportunities associated with growth and development in the
region, especially as those problems, needs, and opportunities relate to land use, water
resources, and transportation system development."


B.
CHAPTER 187
Chapter 187 of the Florida Statutes contains the State Comprehensive Plan
which, according to Section 187.101(1), provides "long-range policy guidance for the
orderly social, economic, and physical growth of the state." While the legislature
described the plan as a "direction-setting document", two important caveats were
included:
(2) ... Its policies may be implemented only to
the extent that financial resources are provided
pursuant to legislative appropriation or grants or
appropriations of any other public or private
entities. The plan does not create regulatory
authority or authorize the adoption of agency
rules, criteria, or standards not otherwise
authorized by law.

(3) The goals and policies contained in the State
Comprehensive Plan shall be reasonably applied
where they are economically and


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environmentally feasible, not contrary to the
public interest ....
Nevertheless, the State Comprehensive Plan is an important instrument that is intended
to "guide" policy throughout the State.


C.
CHAPTER 163
The Local Government Comprehensive Planning and Land Development
Regulation Act requires that all local governments develop comprehensive plans
containing a series of mandatory elements. The preparation of such plans is to be
coordinated with other municipal, county and regional governments and the plan is to
be "consistent" with regional policy plans and the State Comprehensive Plan. Chapter
163.3177(4)(a) provides:
Coordination of the local comprehensive plan
with the comprehensive plans of adjacent
municipalities, the county, adjacent counties, or
the region; with adopted rules pertaining to
designated areas of critical state concern; and
with the state comprehensive plan shall be a
major objective of the local comprehensive
planning process. To that end, in the
preparation of a comprehensive plan or element
thereof, and in the comprehensive plan or
element as adopted, the governing body shall
include a specific policy statement indicating the
relationship of the proposed development of the
area to the comprehensive plans of adjacent
municipalities, the county, adjacent counties, or
the region and to the state comprehensive
plan....

Once a local government comprehensive plan is adopted, all development orders and land
development regulations must be consistent with that plan. Section 163.3194(1)(a)
provides:
After a comprehensive plan, or element or


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portion thereof, has been adopted in conformity
with this act, all development undertaken by,
and all actions taken in regard to development
orders by, governmental agencies in regard to
land covered by such plan or element shall be
consistent with such plan or element as
adopted.14
The Act requires that a local comprehensive plan be prepared by a date
certain and that the plan be reviewed by the state land planning agency (the Department
of Community Affairs ("DCA")) for "compliance". The proposed plan is transmitted to the
DCA who in turn transmits the plan to various state agencies, the water management
districts and the regional planning councils for review and comment.I5 DCA then
evaluates the written comments of the reviewing entities and determines whether the
plan is "in compliance". "In compliance" is defined in the statute as "consistent with the
requirements of ss. 163.3177, 163.3178 and 163.3191, the appropriate regional policy
plan, and rule 9J-5 F.A.C., where such rule is not inconsistent with chapter 163, part
II."16 Section 163.3177 provides, inter alia:
The Legislature finds that in order for the
department to review local comprehensive plans,
it is necessary to define the term "consistency."
Therefore, for the purpose of determining
whether local comprehensive plans are consistent
with the state comprehensive plan and the
appropriate regional policy plan, a local plan
shall be consistent with such plans if the local
plan is "compatible with" and "furthers" such
plans. The term "compatible with" means that
the local plan is not in conflict with the state
comprehensive plan or appropriate regional
policy plan. The term "furthers" means to take
action in the direction of realizing goals or
policies of the state or regional plan. For the
purposes of determining consistency of the local
plan with the state comprehensive plan or the
appropriate regional policy plan, the state or
regional plan shall be construed as a whole and
no specific goal and policy shall be construed or


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applied in isolation from the other goals and
policies in the plans.17
The state land planning agency compiles the written comments from the various
reviewing agencies and transmits written comments and objections to the local
government.
After consideration of the written comments, the local government adopts
the comprehensive plan and transmits the final document to the state land planning
agency. The agency has 45 days to make a determination of "compliance". If the plan
is determined to be in compliance with the State Comprehensive Plan and the
appropriate regional policy plan, then the agency gives notice of intent to find the plan
to be in compliance and any affected person has 21 days to seek a section 120.57
proceeding in regard to the determination. If the agency finds that the plan is not in
compliance, a section 120.57 proceeding shall be initiated to determine if the submitted
plan is not in compliance. If the Administration Commission, after the 120.57
proceeding, determines that the plan is not in compliance, the Administration
Commission is empowered to specify the remedial actions required to bring the plan into
compliance. The Administration Commission can enforce its specification of remedial
actions by directing state agencies not to provide funds for capital facilities in the local
jurisdiction and by disqualifying the local government for eligibility for grants from the
Florida Small Cities Community Development Block Grant Program, The Florida
Recreation Development Assistance Program and revenue sharing.


D.
CHAPTER 373
The Florida Water Resources Act of 1972 (the "Water Resources Act") was
adopted, according to the legislative declaration of policy in the Act, because:
The waters of the state are among its basic
resources. Such waters have not heretofore been
conserved or fully controlled so as to realize
their full beneficial use.'8


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In particular, the Water Resources Act declares the state's policies to be:
(a) To provide for the management of water
and related land resources;

(b) To promote the conservation,
development, and proper utilization of surface
and ground water;

(c) To develop and regulate dams,
impoundments, reservoirs, and other works and
to provide water storage for beneficial purposes;

(d) To prevent damage from floods, soil
erosion, and excessive drainage;

(e) To preserve natural resources, fish, and
wildlife;

(f) To promote the public policy set forth in
sec.403.021;

(g) To promote recreational development,
protect public lands, and assist in maintaining
the navigability of rivers and harbors; and

(h) Otherwise to promote the health, safety,
and general welfare of the people of this state.19

It would be difficult to more broadly state the purposes of the water management
districts in regard to land and water resources, particularly in light of the cross reference
to a section of the Florida Air and Water Pollution Control Act which contains even
broader statements of public goals and policies regarding the protection of land and
water resources.
The Act created five water management districts as the primary instruments
of management for the State's water resources.20 Each district is governed by a
Governing Board comprised of nine gubernatorial appointees, subject to confirmation by


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the Senate. The residency of the members of the governing boards of each of the
districts is specified in the Act.21 The Water Resources Act contemplates that the
Department of Environmental Regulation and the water management districts will
implement the goals and policies of the Act. The framework for implementation, that is,
delegation to the water management districts, was noted favorably by the Florida
Supreme Court in a challenge to a water management district's authority:
Under the Act, the DER and five water
management districts are charged with the
responsibility of protecting and conserving
Florida's precious water resources. Although the
DER is vested with broad authority over
programs affecting these water resources, the
legislature has encouraged delegation of
appropriate powers to the five districts. See. g,
section 373.016(3), Fla. Stat. (1985).22
Section 373.016(3), cited by the Florida Supreme Court, clearly indicates the intent of
the legislature to encourage delegation to the districts:
The Legislature recognizes that the water
resource problems of the state vary from region
to region, both in magnitude and complexity.
It is therefore the intent of the Legislature to
vest in the Department of Environmental
Regulation or its successor agency the power
and responsibility to accomplish the
conservation, protection, management, and
control of the waters of the state and with
sufficient flexibility and discretion to accomplish
these ends through delegation of appropriate
powers to the various water management
districts. The department may exercise any
power herein authorized to be exercised by a
water management district; however, to the
greatest extent practicable, such power should
be delegated to the governing board of a water
management district.23


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The Florida Water Resources Act of 1972 grants a wide range of specific
and general authority to the water management districts. For example, section 373.044
of the Act provides authority for the adoption of rules and regulations by the governing
board of a water management district in very broad terms:
In administering this chapter, the governing
board of the district is authorized to make and
adopt reasonable rules, regulations, and orders
which are consistent with law ....4
Similarly, section 373.113 states that "[i]n administering the provisions of this chapter
the governing board shall adopt, promulgate, and enforce such regulations as may be
reasonably necessary to effectuate its powers, duties, and functions pursuant to the
provisions of [the Florida Administrative Procedures Act]."2 The authority of water
management districts to delegate their permitting responsibilities was clarified in a 1988
amendment to chapter 373, which provides for delegation of surface water management
permitting and stormwater permitting by water districts to local governments.26 In
addition, the Department of Environmental Regulation had delegated to the District the
authority to:
Exercise such additional power and authority
compatible with this chapter and other statutes
and federal laws affecting the district as may be
necessary to perform such duties and acts and
to decide such matters and dispose of the same
as are not specifically defined or covered by
statute.27
This delegation, in effect, confers upon the District any and all authority not otherwise
precluded by statute so long as the power is necessary to perform the duties and
responsibilities of the Act. In other words, the District has all power and authority
necessary to carry out the purposes of the Act.


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E.
CHAPTER 380
The Florida Environmental Land and Water Management Act of 1972 was
enacted during the same legislative session as the Water Resources Act of 1972 and
reflects a similar concern for the impact of uncontrolled growth on the natural resources
of the State. The Act, which is modeled after Article 7 of the American Law Institute's
A Model Land Development Code,28 has two programs -- the area of critical state concern
program and the development of regional impact process. Only the development of
regional impact process is directly relevant to the activities of the water management
districts.29 Under the development of regional impact ("DRI') process, an applicant for
development approval for developments that are of a size, location or character such that
the development would affect the citizens of more than one county is required to prepare
an application for development approval according to state requirements. Although the
ultimate decisionmaker is the local government with jurisdiction over the proposed
development, the decision as to whether the application is complete is made by the
regional planning council. When the regional planning council determines that an
application for development approval is sufficient, the appropriate local government gives
notice of the application at least 60 days prior to holding a public hearing on the
application. Within 50 days of receiving the notice of the local government public
hearing, the regional planning council prepares and submits a "report and
recommendation" to the local government. The regional planning councils are obligated
to forward the application for development approval for review and comment by the
water management districts in regard to water resource matters. In determining whether
to grant the application, the local government considers the extent to which:
(a) The development unreasonably interferes
with the achievement of the objectives of an
adopted state land development plan applicable
to the area;

(b) The development is consistent with the


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local comprehensive plan and local land
development regulations; and

(c) The development is consistent with the
report and recommendations of the regional
planning agency submitted pursuant to
subsection (12).
An applicant for a development of regional impact may, at his option, seek,
concurrently with an application for development approval for a development of regional
impact, "conceptual agency" approval for the development. Chapter 380 pre-empts other
permitting requirements and therefore the conceptual agency process offers the
opportunity for a developer to obtain conceptual approval from all agencies in a single
time frame. Among the other permitting activities for which a conceptual approval can
be secured is "management and storage of surface waters" and "construction and
operation of works" of a district, thereby involving the districts directly in a multi-
jurisdictional permitting program.


F.
A COMPOSITE OVERVIEW OF THE STATE'S PROGRAMS
Taken together, the State's planning and resource management programs
establish a vertically and horizontally integrated land use planning and permitting
program. Functional state agency plans are required to be consistent with the State
Comprehensive Plan. Regional policy plans are also required to be consistent with the
State Comprehensive Plan, though it is clear that the general nature of the state plan's
policies leave substantial room for widely differing interpretations by state agencies and
the regional planning councils. Local government plans and land development
regulations are required to be consistent with the State Comprehensive Plan and the
appropriate regional policy plan; however, there is no direct linkage between functional
state agency plans and local comprehensive plans and land development regulations, a
circumstance that may be problematic for the District.


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STATE OF FLORIDA
PLANNING CONSISTENCY REQUIREMENTS


Regional
Policy
Plan



V
V


Functional
Agency
Plans



V

Water ----------------------->
Availability
Inventory



V

Agency <
Permitting
Activity <


Local Gov't.
Permitting
Activity


KEY:

---> Consistency Requirement

----> Consideration Only

> Missing Linkage


FIGURE 1


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CHAPTER II
EXISTING LAND USE AND RESOURCE
PLANNING AND MANAGEMENT PROGRAMS


A.

THE WATER MANAGEMENT DISTRICTS' ROLE IN LAND
AND WATER MANAGEMENT
As indicated above, the "management acts" do not provide explicit direction
in terms of the water management districts' relationships to state, regional and local
planning and permitting programs. Although it is clear that the Water Resources
Management Act of 1972 was enacted in the context of a strong legislative mandate for
comprehensive planning and coordinated land and water management, linkages are not
articulated in any of the acts.
1.
THE DISTRICTS' INVOLVEMENT IN PLANNING
Under the Water Resources Act of 1972, the water management districts
have a number of important planning roles. The districts assisted in the preparation of
the State Water Use Plan and presumably have a role in future updates of that
instrument. In addition, the water management districts are responsible for the
preparation of "ground water basin resource availability inventories" which are provided
to local governments for consideration during the preparation or update of local
government comprehensive plans. The South Florida Water Management District has
special obligations for resource planning and management in the recharge area of the
Biscayne Aquifer, and the St. John's Water District is assigned similar responsibilities in
the Wekiva River Protection Act.
The districts also prepare capital improvements plans; however, the reality
is that the districts' capital improvements programs are more accurately described as
capital improvement budgets because of the short-term focus. The water management


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districts are not required to, and generally do not, prepare policy plans for water
resource planning or management; nor do the districts prepare long range plans for
water resource management and planning.
Nevertheless, the districts have been involved in a review and comment
mode during the preparation of the regional policy plans; and Rule 9J-20 requires that
the districts play a review and comment role during the state and regional review of
local government comprehensive plans.
Another important planning role of the South Florida Water Management
District is review and comment on proposed developments of regional impact. The
Resource Control Department is the regulatory department of the District. As such, the
Resource Control Department is responsible for land development reviews, including
DRIs.
Regional planning councils have primary responsibility for reviewing
proposed DRIs with regard to the effect of a proposed development on the environmental
and natural resources of a region and on water supply and waste disposal. In 1973, the
South Florida Water Management District began review and comment on proposed DRIs
under agreements entered into with the regional planning councils within its boundaries.
Revisions to Chapter 380 mandate the involvement of other state and regional agencies
in the DRI process and eliminate the need for agreements between the District and the
regional planning councils. As it did under the agreements, the District prepares detailed
reports on the water management aspects of all DRIs. In furtherance of its review and
comment duties, the Resource Control Department of the District has prepared the South
Florida Water Management District Guidebook for the Analysis of Developments of
Regional Impact. The Department's stated reason for compiling the guidebook is "to
explain the agency's Development of Regional Impact (DRI) review program and to
provide a framework for reviewing DRIs." The Department acknowledges that the
guidebook is primarily for internal use but states that it additionally "provides the
regional planning councils, local governments, development community and others with


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an overview of the District's perspective on and participation in the DRI review process."
In addition to performing its review and comment duties, the District has
approached the need for consideration of water resources in local planning by developing
programs to better coordinate District activities with the activities of local governments.
The District's Office of Resource Assistance focuses on cooperative efforts between the
District and local governments to achieve mutual goals. Both the Office of Resource
Assistance and the Resource Planning Department work with local governments in order
that their planning efforts reflect an understanding of water issues.
The mission of the Local Government Assistance Program, created in 1985
is "the creation, achievement and maintenance of effective partnerships between the
South Florida Water Management District and local governments in matching water
resource management efforts with local needs." In order to fulfill its mission, the Office
of Resource Assistance specifies the following activities:
Form partnerships within the District and with
local entities to accomplish priority District
programs.

Identify substantive water related, growth
management problems at the local level.

Promote understanding of the interrelationships
between water resources and land use.

Facilitate the exchange of reliable information
relevant to water resources and growth
management.

Implement innovative solutions to water resource
related problems through the use of managerial,
planning and organizational techniques.

Follow through on joint commitments to insure
program implementation.

Achieve a joint stewardship of water and related
land resources with local governments.


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Under the guidance of the Office of Resource Assistance, the District and
local governments have entered into a number of agreements to better coordinate their
water-related activities. The accomplishments of the Fort Myers Area Office of the Office
of Resource Assistance provide information regarding how far the Program has come in
realizing its goals, what types of activities the Program is pursuing, and what types of
activities are handled in an area office. The Area Office focused its attention on the
coordination of specific projects with local governments. Its accomplishments include:
coordinating District review of Ft. Myers Reuse Feasibility Study; coordinating District
review of Cape Coral WICC Program Plan; negotiating cost sharing agreement with Lee
County for Northshore Beautification Project; negotiating a contract with SCS for staff
support for Lee County Flood Plain Management Study; assisting the Fort Myers
Chamber with a Water Conference; and participating in the Leadership Lee County
Program.
The Resource Planning Department, like the Office of Resource Assistance,
is active in providing assistance to local governments, specifically assistance that will
help local governments to prepare comprehensive plans that consider water resources.
The Resource Planning Department focuses on the provision of data and expertise to
enhance the planning efforts of local governments. By contrast, the focus of the Office
of Resource Assistance is provision of services to local governments to achieve water
resource goals, in addition to comprehensive planning assistance.
The Resource Planning Department's activities have included the
distribution of data packages and data booklets to local governments. The Department
targeted a specific location in its Special Report "Martin County Water Resource
Assessment." Further activities centered on wells and wellfields. The Department has
provided support to the well abandonment programs of the east and west coasts;
executed a contract for the study of impacts of wellfields on wetlands, specifically
concerning the North Martin County Wellfield; and participated in technical committees
for wellfield protection in Palm Beach, Dade and Collier counties.


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In addition to its responsibility for DRIs, the Resource Control Department
contributes to the District planning effort in a number of ways. Much of the Resource
Control Department's involvement includes coordination with the Resource Planning
Department and its planning efforts. The Resource Control Department determines the
need for special technical studies and submits requests for such studies to the Resource
Planning Department. The Resource Control Department has prepared plan performance
standards for the Resource Planning Department's use. The Resource Control
Department's involvement with the Resource Planning Department led to its
recommendation that the Resource Planning Department create a task force to address
the Levels of Service issue prior to submission of plans. The Resource Control
Department has also provided expertise through representation on project management
committees for such projects as Loxahatchee River, Hillsboro Canal, Lake Istokpoga, and
Hurricane Preparedness. The Resource Control Department has developed a data base
of departmental plan issues to be applied in the review of land development codes.
In addition to the foregoing planning activities, the Resource Control
Department retains membership on local land development review committees, provides
review and comment to local governments on proposed land development codes, retains
membership on State one stop permitting committees, and retains membership on a
number of technical advisory committees, including committees of the Department of
Environmental Regulation and the United States Corps of Engineers.
A major setback to local government planning assistance found in the
Department's fourth quarter report for fiscal year 1986-87 was that the District policy
guidelines were not approved for planning assistance. The Department noted that the
reduction of personnel and the lack of approval of guidelines limited planning assistance
to local governments in preparing their comprehensive plans. The Department stated
that the result has been a refocusing of the Local Government Assistance program on
data packages, technical planning packages, comments on drafts of comprehensive plans
and policies in the regional policy plans.


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2.
DISTRICT STRUCTURES
The District currently has 172 flood control structures, 21 pump stations
and approximately 1400 miles of canal. The Department of Resource Operations is
primarily responsible for the construction and maintenance of District structures.
The Department has targeted District structures as one of several focus
areas. The current objectives of the Department are to identify and replace deteriorated
or damaged District structures. The new Department of Construction Management's
objectives are to identify and replace deteriorated or damages District structures. The
Department seeks to accomplish these objectives by developing construction schedules
and providing engineering and construction administrative support for replacement or
modification of deteriorated structures. In 1987, the Structure Replacement Program was
created. The purpose of the program is to provide interdepartmental support and
management for the replacement of critical flood control structures.
The Department's Operations/Maintenance Budget for FY 87-88 allocated
14 percent ($4,228,000) of its 31.3 million dollar budget to structure maintenance while
less than 1 percent ($69,000) was allocated to structure replacement. This indicates that
the District's current priority lies with maintenance and not new construction.
A focus area of the Department of Resource Operations is minor
construction. The Department encourages the use of District staff for minor construction
work when supported by a cost-benefit analysis. The Department has determined that
major construction work by District staff would not be economically feasible. Requests
for major repairs or modifications to systems facilities are directed to the Department's
new Engineering and Construction Division.
The District's new initiatives for FY 88-89 include a Service
Delivery/Construction Management Department. The District states that the initiative is
to provideie for the review, assessment and improvement of the District's flood control
and water supply system through the organization of a department which will manage


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the Capital Improvements Program and assist District-wide Major Program Management."
For the Department's first year, the District has allocated major resources
including 22 full time employees and $19,817,000 for design and construction contracts.
The Department's objectives include managing the construction of District projects and
its primary activities are the design, construction, permit acquisition, facilities planning,
coordination and management of the Inter-District Water Transfer Project.
3.
DISTRICT PERMITTING
The Florida Water Resources Act of 1972, Florida Statutes Chapter 373,
changed the name and boundaries of the District and expanded its responsibilities. That
legislation also provided for various permitting programs, including permitting programs
for the regulation of artificial recharge (Part I), consumptive use of water (Part II), well
construction (Part III), surface water management systems (Part IV), and utilization of
works or lands of the District (Part I).
The District has implemented by rule all permitting programs authorized by
the Water Resources Act. The South Florida Water Management District requires the
following permits unless an activity is exempt by law or District rule:
(1) An individual water use permit under Chapter 40E-2 or a
general water use permit under Chapter 40E-20 must be
obtained prior to use or withdrawal of water;

(2) A water well permit under Chapter 40E-3 must be obtained
prior to the construction, repair or abandonment of any well
within the District;

(3) An individual surface water management permit under Chapter
40E-4 or a general surface water management permit under
Chapter 40E-40 must be obtained prior to construction,
alteration, operation, or abandonment of any dam,
impoundment, reservoir, appurtenant work or works;

(4) An artificial recharge permit under Chapter 40E-5 must be
obtained prior to construction of any project involving artificial
recharge or the intentional introduction of water into any


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underground formation;


(5) A works of the district permit under Chapter 40E-6 must be
obtained prior to connecting with, placing structures in or
across, discharging into or making use of works of the District.
Water use permits and surface water management permits may be issued
in two forms: individual permits and general permits. General permits are issued for
projects that meet specific requirements found in the District's rules. General permits are
issued generally for smaller projects and projects that with less potential for adversely
impacting water resources. Since 1982, the District's surface water management program
has been the official state/regional stormwater regulatory program for south Florida. In
1985, the Florida Legislature passed legislation that officially placed responsibility for the
review of the groundwater discharge of stormwater in the District.30 The legislature
directed that "[u]pon adoption of such performance criteria by the district, the [DER]
shall not require a separate groundwater permit for permitted stormwater facilities within
[SFWMD]."31
The Surface Water Improvement and Management Act of 1987 (SWIM)
required the District to review its rules as they pertain to pollution of surface waters to
strengthen those rules to better protect surface waters. The result is a recent (February
12, 1988) report prepared by the District entitled "Review of the Rules and Enforcement
Programs of the South Florida Water Management District Pertaining to the Pollution of
Surface Waters." That document suggests periodic amendments to the District's surface
water management rules on a routine basis to reflect changing circumstances.
Specifically, it suggests a number of changes to be adopted immediately, including
changes in permitting criteria to reflect recent findings.
4.
LAND ACQUISITION
The Department of Land Management acquires land needed for works of the
District, acquires land under tha Save our Rivers program, and manages those properties.


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In addition to acquiring needed land, the Department of Land Management reviews
contracted title and appraisal work and processes releases of reservations and other
surplus interests. The Department is also responsible for providing basic land ownership
information to all the other departments of the District.
A program formalized during FY 87-88 provides support to the Department
of Land Management in its real estate dealings. The newly implemented Real Estate
program in the Office of Counsel is responsible for providing support for eminent
domain and right of way proceedings, providing contracts support and responding to
legal requests by the Department. The objective of the program is to initiate and
proceed with four eminent domain suits per year. The program considered and dismissed
the idea of increasing the number of eminent domain suits per year to eight. The
program expressed a preference for increasing efficiency and effectiveness at four suits
per year before increasing that number.


B.
LOCAL GOVERNMENTS ROLE
The local governments within the South Florida Water Management District
employ land use planning and management programs of generally similar character.
Local governments have adopted comprehensive plans -- most involving future land use
maps -- that are implemented by a variety of land development regulations usually
including zoning and subdivision codes. The land use regulatory programs of the local
governments include the following categories: subdivision regulations and plat approval,
planned (unit) developments, and special exceptions. Although the programs of the local
governments are not identical, they are sufficiently similar to allow a general profile that
will enable a regional agency, such as the South Florida Water Management District, to
coordinate its activities with those of the local governments within its borders.


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1.
PLAN PREPARATION AND AMENDMENT
The Local Government Comprehensive Planning and Land Development
Regulation Act establishes the basic framework for local planning in Florida, and the
local governments in the District have responded to the mandate of the Act and its
predecessor. Typically the Local Planning Agency is a planning and/or zoning
commission or board that acts in an advisory role to the governing body, though for
many years the staff of the Department of Building, Planning and Zoning was the "LPA"
for Monroe County. A professional staff, usually a department level agency, provides
staff support for the local planning program. In addition, many local governments have
advisory task forces that are involved in the development of comprehensive plans or plan
updates.




LOCAL PLANNING AGENCY


ADVISORY TASK -- STAFF
FORCE -


GOVERNING BODY



COMPREHENSIVE
PLAN


FIGURE 2


The sophistication of local planning capability varies widely, as does the
success of local planning programs. Several local governments in the District have
established national reputations for quality planning and plan implementation, while


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other local governments have gained equally notable, but less favorable, reputations.
2.
LOCAL LAND DEVELOPMENT REGULATIONS
Local land development regulations in the District are typical, in both
procedure and substance, for Florida and around the country. That is so even though the
Local Government Comprehensive Planning Act of 1975 and the Growth Management Act
of 1985, are among the most innovative reform enabling acts in the nation. Gone are
mandates for antiquated regulatory concepts like variances, special exceptions, boards of
appeal and/or adjustment, yet such regulations perpetuate themselves throughout the
District.
Most local land development regulatory programs involve zoning regulations
that control the location and intensity of land uses and a subdivision or platting code
that controls the layout of subdivisions. The existence of two, often duplicative sets of
land development regulations -- zoning and subdivision -- is an anachronism handed
down from the "Dillon's Rule" days when local governments did not have home rule
authority. In the early days of land development regulations, prior to the adoption of the
Standard State Zoning and Enabling Act in the late 20's, local government attempts to
regulate the use and intensity of land use were often successfully challenged as
unauthorized. In response, local governments turned to the subdivision process, which
was expressly enabled in order to encourage the transfer of land by reference to lots and
blocks rather than by metes and bounds, and engrafted what are in fact land use
regulations into platting regulations. Under the Local Government Comprehensive
Planning and Land Development Regulation Act, local governments need not maintain the
dual regulatory approach and could consider subdivision plats as a part of a generalized
set of land development regulations, so long as the development review process ensures
that approved plats meet the minimum requirements of Chapter 177 for recordation.


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a.
Zoning
Every local government within the District has a "zoning" ordinance that
controls the use, intensity and character of land use on a district basis. Zoning districts
enumerate permitted uses, densities and bulk regulations -- height, setback and parking
requirements. In most jurisdictions within the District, zoning is reactive in practice so
that major development proposals require approval of a rezoning from one zoning district
to another. Applications for rezoning are typically reviewed by the professional staff and
considered at a public hearing by the local planning agency. The local planning agency
makes a determination of consistency with the adopted comprehensive plan and submits
a recommendation to the governing body. The governing body then considers the
recommendation of the local planning agency and amends the zoning map to redistrict
the property. In Florida the zoning and rezoning process are recognized as 'legislative"
acts.
b.
Subdivision Regulations and Plat Approval
The subdivision regulations of the local governments within the South
Florida Water Management District contain similar procedures for plat approval. The
governments generally require that subdivision developers undergo a two-part process
consisting of a preliminary plat review and a final plat review. The local governments
provide subdivision applicants with an informal, preapplication review process. The
amount of involvement of the local legislative bodies in the decisionmaking process
depends somewhat on the size of the local government. Some local governments involve
their legislative bodies as early as the preliminary plat review;32 whereas, in Metropolitan
Dade County, the county commission has no involvement in the subdivision approval
process. Throughout the district, local governments place primary responsibility for the
evaluation of subdivision proposals with local government departments charged with
overseeing planning. Even those local governments that involve their legislative bodies


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throughout the process, allow for review and recommendation by a planning board.
A review of the procedures of the different local governments provides a
profile of what is required of subdivision developers who wish to develop land within the
area encompassed by the South Florida Water Management District. Initially, a developer
is strongly encouraged to seek preapplication review by the planning individual or entity
designated by the local government. The developer must next receive preliminary plat
approval. Such approval may,33 but generally does not, involve a public hearing.
Preliminary approval can be given, depending on the locality, by the local government's
plat division,34 the local planning board,35 the local planning commission,36 or the local
governing body.37 In those localities where the local governing body grants preliminary
approval, that approval follows review by a designated planning entity. As noted earlier,
in Metropolitan Dade County, the local governing body plays no direct role in the
individual plat approval process. Other local governments within the area included in the
South Florida Water Management District do require that the local governing body
approve the final plat. In Palm Beach Gardens and Miramar, local city council approval
precedes approval by the county governing boards.
c.
Planned Developments
The procedures implemented by each local government to monitor planned
developments differ from one another more than the procedures governing subdivisions.
Like the procedures that monitor the development of subdivisions, the various local
government codes provide for initial review and recommendations by an entity within the
local government with planning responsibilities. After the planning department or
commission has reviewed an application, the local government legislative body will reach
a decision. All of the local governments allow for a public hearing on the planned
development before the local legislative body. Most allow for a public hearing before the
local planning commission and a public hearing before the local legislative body.38 The
procedures in the City of Cape Coral and Palm Beach Gardens closely resemble the two-


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tier procedure that characterizes the method for subdivision approval within the district.
Preliminary review of an application involves review by the planning and zoning
commission and the city council. In the City of Cape Coral, the final review similarly
involves action by both the planning commission and the city council. Palm Beach
Gardens requires that only the city council act on the final plat. Palm Beach Gardens
also permits its city council, by ordinance, to authorize in any zoning district the location
and development of a planned unit development irrespective of specific requirements of
its zoning code.
The variety of procedures within the South Florida Water Management
District for approving planned developments makes the task of profiling the typical
procedure difficult. The inadequacy of a profile to fully describe the procedures in the
various localities should be recognized, and coordination with the individual local
governments should include an examination of each government's procedures. In full
recognition of the foregoing, the "typical" procedure for planned developments in the
district follows.
Procedurally, the first step in seeking planned development approval after
submitting an application39 is review by the designated local planning entity.40 In Palm
Beach Gardens and Lee County, the local codes recognize the effect of planned
developments on local agencies by expressly allowing for agency participation in the
planned development process. In Palm Beach Gardens that participation occurs at the
preapplication review. The local code requires that the planning and zoning commission
"shall invite, in writing, the City Council, City Engineer, City Attorney, City Manager,
Police Chief, Fire Chief, Public Works Director, Building Official, the Site Plan and
Appearance Review Committee, and any others they deem advisable." In Lee County, the
local code provides for agency participation at a prehearing conference with staff from
all relevant agencies that precedes the first of two public hearings and follows the initial
review. The next step for a developer seeking planned development approval is a public
hearing before the local planning commission.41 In Metropolitan Dade County, the


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planned development approval process entails only one public hearing, which is
conducted by the county commission. The planning commission makes recommendations
to the local legislative body, which then holds a public hearing.42 In Palm Beach
Gardens, the recommendation of the planning and zoning commission can only follow
approvals by the City Attorney, County Health Department, City Engineer, and all
appropriate regulatory agencies. Following its public hearing, the local governing body
approves or disapproves the application. The approved plan governs subsequent
development.43
d.
Special Exception
Local government special exception procedures, like subdivision and planned
development regulations, recognize the value of review by a government planning or
zoning entity prior to decisionmaking by the local legislative body. The recommendation
of this specialized group aids the local governing body in reaching its decision. As with
subdivision and planned development procedures, some local governments allow for two
public hearings: one before a local planning board or commission and one before the
local legislative body.44
The local government procedures for special exception approval in the
South Florida Water Management District not only vary across local governments, but the
procedures also differ within individual local governments, depending on the surrounding
circumstances and amount of property involved in the special exception sought.45 The
granting of a variance is a zoning procedure, and the zoning procedures of individual
local governments within the district differ more than the procedures for subdivision and
planned development approval.
If the procedures of the local governments were pared down to reveal a
constant process across localities, the result would be: the property owner requests a
special exception; he or she is allowed at least one public hearing; and a decision is
made. Those features of the process that are not constant across local governments


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include: who the application is submitted to;4 who reviews that application;47 who
conducts public hearings and the number of hearings held;4 and who is the ultimate
decisionmaker. The involvement of the local legislative body varies. In Miramar, Palm
Beach County, and Hendry County, the local governing body holds a public hearing, after
which it makes the final decision on the special exception. In Metropolitan Dade County,
although the zoning appeals board conducts the hearing and approves or disapproves a
special exception, the local code specifically allows for appeal to the county commission
within fourteen days. In Lee County, the local government body's involvement is limited
to applications for special exceptions that are also developments of county impact or are
submitted simultaneous with or heard in conjunction with a rezoning. In the City of
Cape Coral, it is the Board of Adjustment and Appeals that approves, denies, or approves
with conditions a special exception.


C.
CONFLICTS CREATED BY EXISTING PROGRAMS
Unfortunately, resource and planning issues rarely confine themselves to
the boundaries of an individual local government, a circumstance that is well-illustrated
by the water resources that are under the purview of the South Florida Water
Management District which underlays parts of 15 counties and dozens of municipalities.
Resources, water resources in particular, have a greater-than-local extent and importance,
and their management often involves complex technical matters and controversial issues
that raise value and philosophical differences. Political pressures further complicate local
government handling of technical matters that are generally beyond the expertise of the
local government. Put plainly, such resources do not lend themselves to "local"
management, a fact recognized by the Legislature in the Water Resources Act of 1972,
but apparently ignored in the Growth Management Act of 1985 which relies upon local
government as the primary manager of the State's land and water resources.
Of course the plans and actions of the water management districts, as


SOUTH FLORIDA WATER MANAGEMENT DISTRICT PAGE 29








functional state agencies, are also required to be "consistent" with the State
Comprehensive Plan but there is no linkage between the two parallel tracks of
"consistent" plans and regulations. Furthermore, the reality is that consistency is not a
precise term of coincidence and it is therefore very likely, given their disparate practical
and political origins, that the two parallel tracks of "consistent" plans and regulations will
deviate from one another. (See Figure 3). This is particularly true because resource
planning and management is not a precise science and the flexibility built into the
consistency doctrine means that substantially different programs might be consistent with
the State Comprehensive Plan, be equally attuned to water resources policy, and reflect
pursuit of legitimately different value preferences.
That is not to say that the districts have "nothing" to do with land and
water management at the local level. They do, through consumptive use permitting,
surface water permitting, DRI reviews, local plan sufficiency reviews and a range of
"support" programs that have been developed by the water management districts.
The South Florida Water Management District has been particularly
aggressive in the establishment of local planning support programs, and has been an
active participant, by way of technical support and review and comment, in the
development of regional policy plans by the regional planning councils. In addition the
District has, until recently, enforced a "compatibility" rule that required a demonstration
of compliance with local comprehensive plans and land use regulations as a prerequisite
to District permitting.49
The question is -- what is the most efficient and effective role that the
districts role could play in resource planning and management vis-a-vis the State's
vertically integrated growth management system?


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STATE COMPREHENSIVE PLAN







REGIONAL POLICY PLANS


STATE AGENCY PLANS
AND REGULATIONS


LOCAL GOVERNMENT
COMPREHENSIVE PLANS AND
LAND DEVELOPMENT REGULATIONS


INDIVIDUAL DEVELOPMENT --/ INDIVIDUAL DEVELOPMENT
DECISIONS DECISIONS


FIGURE 3


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CHAPTER Il
THE DOCTRINE OF "CONSISTENCY"
The essence of the State's vertically and horizontally integrated planning
structure is the idea that all public decisions should be "consistent" with previously
established policy. The theory is that "consistency" begets comprehensiveness,
predictability, certainty, efficiency, quality and equity.50


A.
THE CONSISTENCY DOCTRINE AS A THEORY OF GOVERNANCE
Consistency is a concept of governance that contemplates that public policy
should be made in the abstract on the basis of competent, comprehensive information
and that once made, these policies should guide or control decisions in regard to
individual interests. In the absence of a policy framework, individual decisions will be
subject to passions of the moment and all too often inequitable treatment. In other words
"consistency", as a process of governing, is a form of the basic concept of fundamental
fairness in the government's dealings with its citizens.


B.
THE "IN ACCORDANCE WITH" DOCTRINE
In the context of land use planning and resource management, consistency
as a "doctrine" of governance began to evolve in the early 60s when the relationship
between comprehensive plans and individual land use decisions became a subject of
serious attention and concern.5' Although the Standard State Zoning Enabling Act,52
published in 1924, mandated that zoning "shall be made in accordance with a
comprehensive plan," planning had been all but ignored by local governments and the
courts in the regulation of the use of land.53


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The logic of planning as a predicate for land use controls, however can
hardly be doubted. Norman Williams, a distinguished planning law commentator, notes
that:
If American land use controls are to work
effectively and fairly, they must be based upon
(a) an overall understanding of the needs for
land in the community, and (b) a sense of
direction -- that is to say, upon planning ....

Under a rational system of public action, the
basic policy decisions should be made first, on
a coordinated basis (planning); and then the
appropriate tools (including the various land use
controls) should be selected to carry out these
decisions."
Concern about the lack of an established policy framework for land use and
resource management began to evolve in the 1960s. In his classic law review article "In
Accordance with a Comprehensive Plan",55 Professor Charles Haar lamented the sad state
of contemporary land use regulations and the many perceived abuses of the police
power:
Zoning without planning lacks coherence and
discipline in the pursuit of goals of public
welfare which the whole municipal regulatory
process is supposed to serve.56
Haar, later to be one of the driving forces behind the Department of Housing and Urban
Development's effort to stimulate responsible local planning through the "701" program
of local planning grants, went on to observe:
It is difficult to see why zoning should not be
required, legislatively and judicially, to justify
itself by consonance with a master plan as well.
It might even be argued that any zoning done
before a formal master plan has been considered
and promulgated is per se unreasonable, because
of the failure to consider as a whole the complex
relationships between the various controls which
a municipality may seek to exercise over its


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inhabitants in furtherance of the general
welfare.57


C.
OTHER JUDICIAL RESPONSES: THE "FASANO" DOCTRINE
The logic of Haar's arguments was unassailable, and his arguments were
adopted by the Oregon Supreme Court in Baker v. City of Milwaukee.58 where the court
gave literal effect to the concept of "in accordance with a comprehensive plan" and held
that zoning without a comprehensive plan was invalid.59 At about the same time, the
New York Court of Appeals, held that:
[T]he mandate of the Village Law (sec. 188) is
not a mere technicality which serves only as an
obstacle course for public officials to overcome
in carrying out their duties. Rather, the
comprehensive plan is the essence of zoning.
Without it, there can be no rational allocation
of land use.6
In Fasano v. Board of County Commissioners of Washington County61 the Supreme Court
of Oregon summed up Haar's quest for rational policies in land use controls and
Babcock's lament against ad hocery:
The basic instrument for county or municipal
land use planning is the "comprehensive plan".
The Plan has been described as a general plan
to control and direct the use and development
of property in a municipality ...

The purpose of zoning ordinances, both under
our statute and the general law of land use
regulations, is to "carry out" or implement the
comprehensive plan. Although we are aware of
the analytical distinction between zoning and
planning, it is clear that under our statutes, the
plan adopted by the planning commission and
the zoning ordinances enacted by the county
governing body are closely related; both are
intended to be parts of a single integrated


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procedure for land use control. The plan
embodies policy determinations and guiding
principles; the zoning ordinances provide the
detailed means of giving effect to those
principles ...

With future cases in mind, it is appropriate to
add some brief remarks on questions of
procedure. Parties at the hearing before the
county governing body are entitled to an
opportunity to be heard, to an opportunity to
present and rebut evidence, to a tribunal which
is impartial in the matter i.e., having had no
prehearing or ex parte contacts concerning the
question at issue and to a record made and
adequate findings executed.62

Albeit slowly, judicial awareness of the role of the comprehensive plan in land use
control increased and a judicial requirement of "consistency" began to evolve.


D.
LEGISLATIVE MANDATES FOR CONSISTENCY
The courts were not the only place that consistency with a comprehensive
plan was evolving as a tenet of contemporary planning law. In states like California,
legislatures adopted consistency standards as a part of their general planning and land
use enabling legislation.63
In California, individual land use decisions are statutorily required to be
consistent with adopted general plans, and the courts have given substantial effect to the
requirement. The consistency requirements that comprise the California consistency
doctrine are found in several sections of the Government Code. The majority of these
requirements were adopted in 1973. The California requirements not only mandate that
municipalities adopt comprehensive plans,64 but municipalities are also statutorily
required to include a statement of policies and nine (9) elements in their plans: land use,
circulation, housing, conservation, open-space, seismic safety, noise, scenic highway, and


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safety.6 In addition, the elements of the general plan must comprise an integrated,
internally consistent and compatible statement of policies.66 The statute provides for
extensions of time for the preparation and adoption of one or more general plan
elements.67 During this extension, "the city or county is not subject to the requirement
that a complete and adequate general plan be adopted, the requirement that it be
adopted within a specific period of time, or the requirements of state law that its
decisions be consistent with those portions of the general plan for which an extension
has been granted."68 The number of amendments to the mandatory elements of the
general plan in any calendar year is limited to four (4).69 Charter cities are exempted
from the consistency statutes unless they adopt the requirements or fall within the
provisions of California Government Code Section 65860.70
California's local governments are statutorily required to assure that
acquisition, regulation, and any other actions of the local government related to open
space conform to the local open space plan.71 Similarly, building permits, subdivision
maps, and zoning ordinances affecting open space must be consistent with the open
space plan.72 Section 65860 generally requires that county or city zoning ordinances be
consistent with the general plan of the county or city and allows private citizens to bring
suit to enforce consistency of zoning with the general plan. Section 65860(a) requires
that zoning ordinances be consistent with the appropriate general plan and specifies what
consistency entails. Section 65860(c) requires that any ordinance which becomes
inconsistent with the general plan must be brought into conformity. Section 65860(b)
strengthens the consistency statutes by providing that "[any] resident or property owner
within a city or a county, as the case may be, may bring an action in superior court to
enforce compliance." Sections 66473 and 66474 of the California Government Code set
forth various requirements for attaining subdivision consistency with general and specific
plans. Section 66473.5 specifies that proposed subdivisions, together with the provisions
for their design and improvements, must be "consistent with the general plan."
Assistance in determining consistency is found in state planning agency


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guidelines which define consistency as follows: "an action program or project is
consistent with the general plan, if all aspects of the action program or project will not
inhibit or obstruct the attainment of those articulated policies.""7
The California courts have generally deferred to local governments in their
review of allegations that specific zoning decisions or other land development decisions
are inconsistent with the general plan. However, the courts have required that the
government body making the decision provide enough information formally, in the
content of its decision, or informally, in the minutes of its meeting, to enable the
reviewing court to make an informed decision.
In Woodland Hills Residents Association. Inc. v. City Council.74 the court
held that an "express finding that the proposed subdivision tract map was consistent was
required ... in order to support a decision approving the proposed map." The court
explained that failure by the city council and planning commission to make findings in
support of its ultimate decision "resulted in inability of a reviewing court to bridge the
analytic gap between the evidence and the ultimate decision of the council (and planning
commission)."75 In Topanga Association For A Scenic Community v. County of Los
Angeles,76 the California Supreme Court held that variance boards "must render findings
to support their ultimate ruling" and that reviewing courts must find that a ruling is
supported by substantial evidence because granting or denying a variance is a quasi-
judicial act.7
The court of appeals in McMillan v. American General Finance Corp.,78
applied the substantial evidence test and held that the findings and decision of the city
council regarding the conformity of a condominium complex with the city's general plan
was supported by substantial evidence.79 The court stated that when conflicting evidence
is present before a local government, "[i]t is for the agency to weigh the preponderance
of conflicting evidence. Courts may reverse the agency's decision only if, based on the
evidence before the agency, a reasonable person could not reach the conclusion reached
by the agency."80


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The California courts have also addressed the effect of the consistency
requirements on the issuance of permits. The courts' treatment of the effect of the
consistency requirements on conditional use permits has not been consistent; however,
the most recent pronouncement on the subject has held that a conditional use permit is
invalid if the general plan does not comply with the statutory criteria.81 In
Neighborhood Action Group For Fifth District v. County of Calaveras.82 the court
explained that "[t]he general plan is atop the hierarchy of local government law
regulating land use."83 California is only one example of legislative consistency
mandates. There are numerous others."


E.
THE CONSISTENCY DOCTRINE IN FLORIDA
The "consistency requirement", as it now exists in Florida, is a fundamental
element of a top-down system of managing state growth. The Growth Management Act
of 1985 amended three pieces of legislation: the Local Government Comprehensive
Planning Act, which it renamed the Local Government Comprehensive Planning and Land
Development Regulation Act, chapter 163, part II, Florida Statutes (1987), the Florida
State Comprehensive Planning Act of 1972, sections 186.001-186.031, 186.801-186.911,
Florida Statutes (1987), and the Florida Regional Planning Council Act, sections
186.501-186.513, Florida Statutes (1987). The result of these amendments is an
elaborate, vertically and horizontally integrated planning structure that mandates
consistency in planning and permitting. Functional state agency plans are to be
"consistent" with the State Comprehensive Plan,8s as are regional policy plans.86 In turn,
local government comprehensive plans are to be consistent with regional policy plans and
the State Comprehensive Plan, and individual development permits issued by local
government are to be consistent with local comprehensive plans.87


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1.
JUDICIAL CONSIDERATION OF THE CONSISTENCY
DOCTRINE IN FLORIDA
In the Local Government Comprehensive Planning Act of 1975 the
Legislature established a consistency requirement:
(1) After a comprehensive plan or element or
portion thereof has been adopted in conformity
with this act, all development undertaken by,
and all actions taken in regard to development
orders by, governmental agencies in regard to
land covered by such plan or element shall be
consistent with such plan or element as adopted.
All land development regulations enacted or
amended shall be consistent with the adopted
comprehensive plan or element or portion
thereof."
Notwithstanding the mandatory consistency standard in the Planning Act, the courts'
initial response to the consistency requirement was that a plan "is only a guide" and
strict compliance with a plan was not required.89
The Third, Fifth and Second Districts now appear to be imposing a higher
standard of compliance with the requirement of section 163.3194(3)(a), Florida Statutes
(1987) that a development order or land development regulation be consistent with the
comprehensive plan. The First and Fourth Districts continue to allow greater local
government discretion.
A recent Third District Court of Appeal decision indicates that the
consistency doctrine is evolving and that strict compliance with adopted plans is
becoming the rule of law in Florida. In Machado v. Musgrove9 the Third District held
that the correct standard of review of zoning actions alleged to be inconsistent with the
comprehensive plan is "strict scrutiny." The court explained that a local comprehensive
land use plan is "a statutorily mandated legislative plan to control and direct the use and
development of property within a county or municipality."91 The court noted the oft-
cited California court's analogy, likening the plan to a constitution for all future


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development within the governmental boundary." In Machado, the Third Circuit held

that a neighborhood area study, when adopted by ordinance, became part of the Dade

County land use plan and the county was bound by its designations.

And most recently in McGaw v. Metropolitan Dade County,93 the Third

District took its opinion in Machado one step further when it held that the county could

not rezone property to commercial that was designated in the land use plan as

residential in the absence of a neighborhood study:

"A neighborhood area study is a critical element
of Dade County's land use plan ...." ... Without
it there are no legislative standards indicating
the type and number of nonresidential uses
allowed in a residential zone.9

Based on the trend reflected in these cases, it can be and should be
assumed that the courts of the State will give great credence to the consistency doctrine
and that strict scrutiny will be the standard for testing governmental actions that are
challenged as inconsistent with approved plans.95
2.
STATUTORY AUTHORITY OF THE DISTRICT
IN REGARD TO REQUIRING CONSISTENCY

The South Florida Water Management District has adopted rules which
require permit applicants to demonstrate to the District that proposed land uses (which
will be served by the water resources activity sought to be permitted) are compatible
with local comprehensive plans and their implementing regulations by requiring that
applicants obtain local approvals as a pre-requisite to consideration and issuance of
District approvals.96 This rule was repealed due to concerns of the Joint Administrative
Procedures Committee of the Legislature.
Administrative agencies have only that authority which is authorized by


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legislative enactment." Any analysis of the statutory authority of the District to adopt
and enforce a "consistency" rule must commence with a reading, in pari material. of the
Act,98 in order to determine whether the District has statutory authority to implement a
consistency requirement.
All rulemaking by the water management districts is controlled by the
procedural requirements of the Administrative Procedures Act governing rulemaking.99
However, nothing in Chapter 120 in any way limits the substantive authority of the
District. Therefore, section 373.113 of the Water Resources Act provides, in effect, that
the governing board has the authority to adopt such regulations as are reasonably
necessary to effectuate the "powers, duties and functions" of the District.
In determining whether authority to adopt consistency rules is expressly or
necessarily implied, it is well-established that powers are implied if they are reasonably
necessary or appropriate to achieve the enumerated objectives of an act.100 And, it is not
difficult to illustrate that the subject matter of consistency rules is, at a minimum,
necessarily implicated by the provisions of the Water Resources Act. That fact is made
particularly evident by the provisions of the State Comprehensive Plan, the State and
Regional Planning Act and the Local Government Comprehensive Planning and Land
Development Regulations Act.
Moreover, the case law makes it clear that the District has the requisite
authority to promulgate consistency rules. In General Telephone Co. v. Florida Public
Services Commission.o01 the Florida Supreme Court considered a challenge to agency
authority and stated that broad statements of authority are to be given effect by the
courts as long as they are "reasonably related to the purposes of the enabling legislation,
and are not arbitrary or capricious."102
Where the empowering provisions of a statute
states simply than [sic] an agency may "make
such rules and regulations as may be necessary
to carry out the provisions of this Act," the
validity of the regulations promulgated
thereunder will be sustained as long as they are


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reasonably related to the purposes of the
enabling legislation, and are not arbitrary or
capricious.'03

Under this standard the District's rules are authorized.
In the 1988 legislative session, the legislature's own interpretation of a
water management district's authority to require consistency with the local
comprehensive plan prior to issuing a permit for development provides additional support
for that authority.
In legislation aimed at protection of the Wekiva River, the legislature
stated:
Nothing in this section shall affect the authority
of the water management districts created by
this chapter to decline to issue permits for
development which have not been determined to
be consistent with local comprehensive plans or
in compliance with land development regulations
in areas outside the Wekiva River Protection
Area.04

3.

CONSISTENCY RULES ARE REASONABLY
RELATED TO THE PURPOSES OF THE WATER RESOURCES ACT
The subject of consistency rules -- that is, consistency between land use
planning and regulation and water resources management -- is "reasonably related" to the
purposes of the Water Resources Act. To suggest that compatibility between District
actions and local government plans and regulations adopted under the Local Government
Comprehensive Planning and Land Development Regulation Act is not reasonably related
to the purposes of the Water Resources Act would ignore the plain language of the Act.
The first specific statement of legislative policy in the Act calls for the "management of
water and related land resources."'05 The last policy indicates a concern for the "health,
safety, and general welfare of the people" of the State of Florida.'06 Each of these


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policies represent a particular objective of the Local Government Comprehensive Planning
and Land Development Regulation Act.
It is the intent of this Act that its adoption is
necessary so that local governments can preserve
and enhance present advantages, encourage the
most appropriate use of land. water, and
resources, consistent with the public interest
107

At the simplest level, the integral relationship between land and water is
made clear by the fact that the Legislature of the State of Florida has defined 'land" to
include water.
"Land" means the earth, water, and air, above,
below, or on the surface, and includes any
improvements or structures customarily regarded
as land.108
A direct linkage is also evident in the Legislature's treatment of "ground water basin
resource availability inventory":
Upon completion, a copy of the ground water
basin availability inventory shall be submitted to
each affected municipality, county, and regional
planning agency. This inventory shall be
reviewed by the affected municipalities, counties,
and regional planning agencies for consistency
with the local government comprehensive plan
and shall be considered in future revisions of
such plan. It is the intent of the Legislature that
future growth and development planning reflect
the limitations of the available ground water or
other available water supplies.109
Another explicit legislative recognition of the integral nature of land and
water resources is found in the declaration of policy for land use law, the Florida
Environmental Land and Water Management Act of 1972 (signed into law on the same
day as the Florida Water Resources Act of 1972):
It is the legislative intent that, in order to
protect the natural resources and environment


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of this state as provided in s. 7, Art. II of the
State Constitution, insure a water management
system that will reverse the deterioration of
water.quality and provide optimum utilization of
our limited water resources, facilitate orderly
and well-planned development, and protect the
health, welfare, safety, and quality of life of the
residents of this state, it is necessary adequately
to plan for and guide growth and development
within this state."0
Obviously, the subjects of land use and water resources are not considered by the
Legislature to be divisible and unrelated subjects, a recognition that has been noted by
the courts.
Indeed, the interplay between land and water resources was considered by
the Second District Court of Appeal in Pinellas County v. Lake Padgett Pines."I a case
involving the fields of operation of Chapters 373 and 380. The court's decision in Lake
Padgett Pines is instructive in regard to whether land use is reasonably related to the
purpose of Chapter 373. The issue in Lake Padgett Pines was whether a regional well
field was a development of regional impact under section 380.06 Fla. Stat. (1985). The
state land planning agency had issued a binding letter indicating that the development
of the well field was not a development of regional impact ("DRI"). However, in
response to a declaratory and injunctive action seeking a judicial declaration that the
proposed well field development was a DRI, the trial court disagreed and held that the
well field development proposal affected the citizens "of more than one county""'2 and
therefore should be subject to the regional impact assessment process of the DRI
provisions. The appellate court reversed after an extensive analysis of Chapters 373 and
380 and an important discussion of the interrelationship of the two acts. The court
found that while the two acts were both adopted in furtherance of a common goal --
"protecting the environmental resources of the State""13-- the acts could be and should be
read harmoniously so that each had a distinct sphere of operation -- water resources for
Chapter 373 and land use for Chapter 380.


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They can and should be construed in harmony
with one another in their roles of protecting and
conserving our environmental resources and
promoting planned developments."4
Important to the court's reading of the two acts was Lake Padgett Pines' argument that
the proposed well field development should be subject to the DRI process because of the
need to fully assess non-water resource issues implicated by the proposal. This argument
was rejected by the court because of the court's conclusion that there was broad
authority to consider land use issues other than water resources under Chapter 373:
Lake Padgett and Pasco County contend
that a project of this magnitude will have an
impact on resources aside from water and that
the "multi-disciplinary scrutiny" contemplated by
Ch. 380 should be brought into play for the
protection of the public. However, Ch. 373 is
to be liberally construed for effectuating the
purposes described in the chapter and these
purposes clearly mandate consideration of the
total environment. Fla.Stat. sec. 373.6161. And,
given this statutory duty on the part of the
agencies to consider the environmental impacts
of any water withdrawal project, we think such
considerations can and should take into account
the entire effects of the project and not merely
be limited to the effects on a single resource."5
In other words the court held that it was unnecessary to require that the well field
proposal go through to the DRI process, because an evaluation of the "entire effects" of
the project was a proper and anticipated aspect of Ch. 373, when Ch. 373 is read
"liberally for effectuating the purposes described in the Chapter.""6 Simply put the court
recognized the broad authority of the districts to consider the "entire environment"
during their permitting activities.
It has been suggested that the effect of the Third District Court of Appeals
decision in Council of the Lower Keys v. Charley Toppino & Sons. Inc."7 is that a water
management district is not authorized to consider consistency with local plans when it


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makes permitting decisions. In Toppino. a Department of Environmental Regulation
permit was challenged on the grounds that DER had failed to consider consistency with
the local government comprehensive plan as a basis for permit denial. The Third District
held that DER was not obligated to consider local plan consistency, not because the
Department was not authorized to consider such matters by the Department's enabling
legislation, but because Section 163.3194(1), Florida Statutes (1981) is limited on its
face to local government decisions and the Department's rules, adopted under the
Department's enabling act, made no provision for such consideration.
We agree with the conclusions of the
Department of Environmental Regulation that it
is not required or authorized by Sec.
163.3194(1) Fla. Stat. (1981) to deny or modify
an air pollution permit, issued pursuant to Sec.
403.087, Fla. Stat. (1981) and Florida
Administrative Code Rules 17-2 and 17-4,
because of alleged non-compliance with local
zoning ordinances, land-use restrictions or long-
range development plans; and that the issuance
of such permit must be based solely on
compliance with applicable pollution control
standards and rules.
The question of statutory authorization under the Department's enabling legislation was
simply not considered in Toppino. and any suggestion to the contrary should be ignored.
Assuming then, that there is no real question that the subject of
compatibility of land use with local comprehensive plans is "reasonably related" to the
purposes of the Florida Water Resources Act of 1972, the only remaining question is
whether consistency rules are "arbitrary or capricious.""1
Whether the District has authority to impose a consistency program poses
a legal question that is interesting, but probably not worth the economic or political cost
involved in a court fight. The acknowledgement by the legislature in the Wekiva River
Protection Act, adopted in the 1988 legislature session, that the water management
districts do have authority to decline to issue permits when a development has been


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determined to be not in compliance with the local comprehensive plan appears to answer
the legal question. Clearly, the subject matter of a consistency program is within the
ambit of the District's statutory responsibilities but the District should pursue the most
facile solution to the authority issue.
4.
CONSISTENCY RULES ARE NEITHER "ARBITRARY' NOR "CAPRICIOUS"
The issue is whether consistency rules are arbitrary or capricious, that is
whether it is arbitrary or capricious for the District to require "consistency" between
District activities and local government plans and land development regulations. In the
face of the extremely broad language of the Florida Water Resources Act of 1972,119 it
cannot be seriously doubted that assuring the consistency of a proposed land and water
use activity with local comprehensive plans, land development regulations and
development orders are within the legislative intent of the Water Resources Act,
particularly in light of the consistency mandate of the "Florida State Comprehensive
Planning Act of 1972."120
It is necessary to establish an integrated
planning system and to ensure coordinated
administration of government policies, especially
those policies dealing with land use, water
resources, and transportation system
development.121
Indeed the linkage between Chapter 373 and Chapter 163, Part II is
obvious. In section 373.0395, Florida Statutes (1985), for example, the water
management districts are required to prepare a ground water basin availability inventory,
which is to be provided to municipal and county planning agencies so that "future
growth and development planning reflect the limitations of the available ground water
or other available water supplies."122 Further, it is very clearly stated in The Local
Government Comprehensive Planning and Land Development Regulation Act, Chapter
163, Part II that the public health, safety and general welfare of the State (one of the
enumerated objectives of the Act) is served by implementation of locally adopted


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comprehensive plans:
It is the intent of this act to encourage and
assure cooperation between and among
municipalities and counties and to encourage
and assure coordination of planning and
development activities of units of local
government with the planning activities of
regional agencies and state government in
accordance with applicable provisions of law.123

Moreover, section 163.3161 Fla. Stat. (1985) provides, in pertinent part, that:
It is the intent of this act that adopted
comprehensive plans shall have the legal status
set out in this act and that no public or private
development shall be permitted except in
conformity with comprehensive plans, or
elements or portions thereof, prepared and
adopted in conformity with the act.124
In other words no development, including the construction and operation of surface
water management systems, shall be permitted except in conformity with local
comprehensive plans; and that proscription is expressly applied to the actions of the
District in section 163.3194(1)(a):
After a comprehensive plan, or element or
portion thereof, has been adopted in conformity
with this act, all development undertaken by,
and all actions taken in regard to development
orders by. governmental agencies in regard to
land covered by such plan or element shall be
consistent with such plan or element as
adopted.12
It cannot be questioned that the District is a "governmental agency" under Chapter 163,
Part II,126 nor can it be doubted that authorization to construct or operate a surface
water management system is a "development order."'27
It should be noted, however, that the Supreme Court of the State of Florida
has construed the language of section 163.3194(1)(a) as not preempting the power of


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the Department of Transportation to plan and construct roads. In Department of
Transportation v. Lopez-Torres 1' the Supreme Court considered a challenge to a DOT
bridge location decision where the location was inconsistent with a local government
comprehensive plan. Opponents of the bridge argued that the Local Government
Comprehensive Planning and Land Development Regulation Act controlled and that DOT
decisions had to be consistent with locally adopted comprehensive plans. The Supreme
Court rejected the argument, reading the Planning Act in pari material with the express
authority of DOT to plan and construct roads throughout the State and concluded that
DOT had preemptive power in regard to roads:
A careful reading of the Act in pari material with
the [Florida Transportation Code] reflects that
local governments and the DOT should
cooperate and coordinate their transportation
planning efforts to the greatest extent possible;
but the Act does not divest DOT of its plenary
power to plan and construct state roads and
bridges. By virtue of its preemptive authority,
DOT may route a state road bridge through or
into a municipality by way of a corridor that
conflicts with the municipality's comprehensive
plan. If the DOT was bound to build the
proposed bridge at the existing location in
accordance with the comprehensive plan of
Ocean Ridge, then the construction site of the
bridge would be inconsistent with the
comprehensive plan of Boynton Beach. Without
this preemptive authority DOT would have no
way to resolve any conflict between the
comprehensive plans of neighboring communities
with respect to the location of state roads and
bridges.
How a court would view Chapter 373 is not clear from existing jurisprudence, however,
the holding of Lopez-Torres is sufficiently linked to the unique preemptive character of
the State Transportation Code to justify caution in assuming that consistency is not
implied for District activities.


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5.
SUMMARY
The unfortunate fact is that the existing "consistency" program invites
frustration of the goals and objectives of the State's planning and resource management
statutes. At the pinnacle of the State's planning and resource management structure is
the State Comprehensive Plan. Functional state agency plans, including the State water
use plan and programs implementing the plan, are required to be "consistent" with the
State Comprehensive Plan.129 That mandate does not however, mean that the activities
of the water management districts will necessarily be "consistent" with local government
planning and land development regulation. That is so because local comprehensive plans
and land development regulations are prepared independently of functional state agency
plans through linkage with regional policy plans. Consistency between the water
management districts' activities and local comprehensive plans and land development
regulations depends on cooperative work programs between the districts and local
government or "parallel evolution."'30 The likelihood that plans and programs derived
from the State Comprehensive Plan by two separate institutions, with disparate
procedural and substantive responsibilities, will coincide does not seem probable,
particularly in light of the fact that planning is not a precise science and the essence of
the State's planning structure is to allow substantial discretion in the implementation of
the State Comprehensive Plan.131
The State Comprehensive Plan is, as it should be, a general guide to
governmental action ("shall provide long-range policy guidance"132) that leaves a
substantial amount of judgment and discretion to state agency, regional planning agency
and local government planners. The development of specific planning policies and
implementation programs by two parallel efforts (state agency functional plans and
budget and program consistency versus regional policy plans and local government
comprehensive plans and land development regulations) invites "incompatible
consistency", a result that conflicts with the purpose and objectives of the various acts.


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Coordination, consistency and efficiency are the touchstones of the State's resource
management programs and a set of programs that have the possibility of evolving
incompatible programs contradicts the thrust of the legislation. Local planning is a
notoriously "judgmental" practice and it is predictable that the results of a more
technically-oriented program like the efforts of the Department of Environmental
Regulation and the water management districts will diverge from the more "practical"
efforts of local government.
What is needed is horizontal consistency between the water management
districts' planning and permitting activities and local government comprehensive plans
and land development regulations. If local government comprehensive plans were
required to be consistent with water management district policies, resource inventories
and other substantive programs, and permitting activities were required to be mutually
consistent with the substantive responsibilities of the entities, then coordination,
cooperation and efficiency could be truly achieved.
The South Florida Water Management District plays an active and
aggressive role in regional and local planning. The District has consistently made its
resources available to regional and local entities and has actively participated in
reviewing and commenting on the regional policy plans during their preparation. These
activities need to be founded on something more than the good offices of the District, in
order to impart efficiency and coordination to the process. It does no good for
community A to seek District assistance in planning, if adjacent communities with a
direct impact on water resources decline to follow a similar course. Moreover, the lack
of a definitive program frustrates consistent and efficient programs. In the ideal situation
the District would provide technical planning assistance and substantive input at three
points in the local planning process. The last of those is already provided for in the
Local Government Comprehensive Planning and Land Development Regulation Act, that
is that the water management districts review and comment on proposed comprehensive
plans. Unfortunately, this opportunity for assistance comes long after the structure and


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substance of the local plan has been established and the opportunity for adjustment is
limited. The water management districts' input should precede policy choices at the
local level in order to provide a substantive basis for informed decisionmaking. There is
a requirement in Chapter 373 that local governments consider the districts' ground water
basin availability inventory in developing comprehensive plans; however, a requirement
for consideration does not provide the necessary structure for a true consistency program.
There are three entry points in the local planning process that would
provide a more definitive consistency program. First, local government planners should
be able to depend on the water management districts for basic data in regard to water
resources. A pre-plan conference would be a facile way of ensuring that local
governments are fully aware of the districts' technical and data capabilities. The
foundation for such a conference has already been set by the activities of the Resource
Planning Department and Office of Resource Assistance, whose coordinating efforts with
local governments include providing them with water resource data. The second element
of a definitive consistency program would be the consideration of water management
district policy as a given in the preparation of the Plan. Ideally the districts' policy
would prevail over local predilections unless a substantial justification could be
marshalled. Finally, the districts should have a review and comment opportunity before
a local plan is finalized to the point of being transmitted to the Department of
Community Affairs. All of these could be established by intergovernmental agreements
or as a matter of statutory reform.
The South Florida Water Management District is responsible for permitting
activities that involve what will be "district works", surface water management permits,
and stormwater permits. In addition, the District provides review and comment on
proposed developments of regional impact. The linkage between these programs and
local government comprehensive plans and land development regulations is another key
element of coordination and efficiency. There are three aspects of "consistency" in the
permitting context. First, in order to "close" the loop between the two parallel consistent


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programs, it is necessary that there be a linkage between district programs and local
plans. Otherwise substantive conflicts between local plans and district policy will be
ignored during the permitting process and permitting decisions. One of the primary
objectives of the State's vertically and horizontally integrated planning and management
structure is to ensure consistency between policies. Without a permitting link between
the policy programs of the districts and local government, there is no practical way of
achieving consistency. Second, the districts do not have unlimited financial resources
and it makes no sense for permitting to proceed down separate tracks with the possibility
that a district permit action will turn out to be a nullity because the parallel local
permitting process disapproves of the proposal. Why, it can be asked, should a water
management district be required to expend financial and administrative resources to
review and issue a permit in advance of local government determination of compliance
with the local government comprehensive plan and land development regulations? Why
should the districts have to issue permits that are of such a "speculative" character?
Finally, the nature of the local government development review process creates the
opportunity for inconsistency where a putative developer obtains a water management
district approval in advance of local government approval and then uses the water
management district approval as "leverage" in the local government context to "imply"
the propriety of his proposal. If local government approvals were granted by technocrats
who fully understand the technical and legal implications of a district permit, then the
risk of inconsistency would not be significant. However, in that our system of local land
development regulations confers decisionmaking responsibility on lay elected and
appointed officials, the opportunity for conflict and unwarranted influence is great.
There are two aspects to developing a consistency program for permitting.
The first is the authority question, and the second is the practical implication of
integrating the District's relatively straight-forward permitting program into the diverse
local land development regulations that are in place in the various jurisdictions in the
District. Flow charts illustrating just a few of the development review programs in the


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district are set out in Appendix A. Whatever format the district chooses to pursue it is
important that the entry of the district into the permitting process dovetail with the local
process. Premature entry offers the possibility of an unwarranted implication that local
land use prerogatives should be influenced by district policy or permits; while an entry
too late in the process deprives the local government of the opportunity to benefit from
the District's extensive technical expertise.
One model would be a bifurcated local process that involves a
determination of consistency at the local level prior to the District's consideration of an
application, but deferral of final local action until after the District's requirements have
been satisfied. Consider for example the development review process from Palm Beach
County that is set forth in Appendix A. If District permits were deferred until after the
Board of County Commissioners approves the application for planned development
approval, but prior to review of the site plan review committee, the District would avoid
any implication of a substantive position in regard to local land use matters while
providing the District's technical assistance to the final local "technical" permitting
process.
The obvious question is what relationship should there be between the
District's permitting activities and the State's integrated planning program. Is it
appropriate for the District to condition permits on a demonstration of consistency with
local government plans and land development regulations? Or should permit applicants
be able to secure a District permit without regard to local comprehensive plans and land
development regulations, with the opportunity to "whipsaw" local proceedings with a
District permit?


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CHAPTER IV
LAND USE & RESOURCE PLANNING
AND MANAGEMENT APPROACHES


A.
GENERAL CONSIDERATIONS
The desirability of coordinating the District's planning and management
activities with those of local government is self-evident. The future of the State depends
on the continued integrity of the water resources of the State. Local government land
use decisions are profoundly affected by the availability of potable water, and vice-versa,
the water resources of the State can and are directly affected by local government land
use decisions. Yet the existing statutory planning structure as currently implemented
relegates the districts to an isolated and reactive status that excludes their technical
expertise and greater-than-local perspective from the formative phases of local planning
programs. What is needed, it has been suggested, is a more efficient and effective way
for the water management districts of the State to participate in the local planning
process and a more efficient and effective way of coordinating the permitting activities
of the districts and local government.
It is important to understand that planning is not a precise science that can
be depended upon to yield replicable results. Planning, at least as it is practiced in this
country in the context of public land use management, involves subjective, political
policy-making within the confines of assembled facts and a broad rule of reason. As a
result, effective technical support of local planning must be process oriented, sensitive to
those entry points in the process that will ensure that the required judgments will be
made in the context of competent and understandable information.
There are many potential "entry points" into the local planning and land
development regulation process that could be used to better coordinate resource and land
use management: data collection and analysis; policy making; preparation of the future


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land use map; preparation of land development regulations; and development permitting.
Additionally, the existing statutory planning structure may provide the water
management districts with opportunities for developing entry points into the local
process. In the Water Resources Act, the Florida Legislature specified that each water
management district develop a ground water basin resource availability inventory
covering those areas deemed appropriate by the governing board.'33 The inventory is to
be submitted to each affected municipality, county, and regional planning agency.134
Each of these local governments is to review the inventory for consistency with its local
comprehensive plan and consider the inventory in future revisions of the plan.1ss The
express legislative intent is that future growth and development planning reflect the
limitations of the available ground water or other available water supplies.136
Consideration of the requirements of the Water Resources Act, the legislative intent
expressed in that Act, and the requirement of the Local Government Comprehensive
Planning and Land Development Regulation Act that the preparation of comprehensive
plans by local governments be coordinated with other municipal, county and regional
governments suggests that the Florida legislature has provided a statutory framework
for coordinating some of the planning and management activities of the water
management districts with those of local government. If all municipalities and counties
within the South Florida Water Management District performed the required
coordination, the sum would overlay in a network of shared use that could quite
conceivably meet needs. The existing statutory planning structure provides one means
by which the District can utilize the various entry points discussed below.
1.
DATA COLLECTION
The competency and comprehensiveness of background data and
information collection and presentation can have a substantial affect on the outcome of
a planning process and the technical expertise of the districts could be a reliable and
supportive element of the data assembly phase of local planning. Assembly of water


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resources data is expensive and time-consuming for a local planning agency but an on-
going activity of the districts. Data mapping is another area of complex planning activity
that could be supported by the expertise and equipment of the water management
districts.
2.
POLCYMAKING
Policymaking involves the balancing of competing values and the districts'
greater-than-local perspective should be an important part of a competent, coordinated
land and water resource planning and management structure. Local policy in regard to
the use of land and water resource must reflect the technical expertise and substantive
programs of the districts if there is to be any coherency among land use and water
resource management and planning. Similarly, the districts should consider the
substantively broader perspective of local governments. Local governments can provide
a view that considers competing values and solutions that consider compatibility with
local concerns.
3.
FUTURE LAND USE PLAN MAP
Future land use mapping inevitably involves consideration of resource
values. The appropriate use and intensity of use of land is often dictated by the
existence or absence of particular resource values. The districts' highly developed
expertise in regard to the geophysical characteristics and distribution of the land makes
the districts' participation in future land use mapping another potential entry point for
assistance and coordination. Moreover complex mapping problems may be beyond the
financial reach of local governments alone but may be accessible through the resource
capabilities of the districts.
4.
LAND DEVELOPMENT REGULATIONS
Similarly, the districts have extensive experience with the development and


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enforcement of complex resource regulations and could provide additional guidance and
assistance to local government during the preparation of land development regulations.
Currently, the Resource Control Department of the South Florida Water Management
District retains membership on numerous local government land development review
committees. The Department, upon request from local governments, reviews and
comments on proposed land development codes. Preparation of model regulations and
review and comment in regard to proposed local land development regulations (prior to
formal local legislative proceedings) are two obvious ways the districts could participate
in the land development regulation preparation process without intruding on local
prerogatives.
5.
COORDINATED PERMITTING
Coordinated permitting would allow for more efficient integration of the
district programs with local planning and land development regulation. The existing dual
permitting approach offers innumerable opportunities for inconsistent decisionmaking and
the possibility that one permitting track may inappropriately influence the outcome of
the other permitting track. The experiences of federal and state agencies discussed in
Section IV.C.1. provide insight into the advantages and disadvantages of coordinated
permitting.
6.
FISCAL IMPLICATIONS
Of course the availability of "entry points" does not mean that it is
financially or practically feasible for the districts to "enter." The South Florida Water
Management District encompasses such a large number of counties and municipalities
that it is not practical to suggest that the District's professional staff can be actively
involved in local planning and land development regulation. On the other hand, from a
resource management perspective, it can be suggested that the State can not afford for
local government comprehensive plans and land development regulations to be prepared


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and implemented without the benefit of the districts' on-going programs in water
resource planning and management.


B.
PLANNING ASSISTANCE
There are a wide variety of planning assistance programs that could be
initiated in order to encourage horizontal consistency between water resources
management and local land use planning and control. Many of these have already been
undertaken by the District on a one by one basis. For example the District's active
support of and participation in the Florida Keys Area of Critical State Concern planning
process contributed to the timely completion of the effort. In addition, the District has
also recently moved to augment its support of local planning through its local
government comprehensive planning program. Those efforts are significant and
beneficial, however, the need for a more regularized program and in particular a more
consistent involvement from locality to locality is apparent.
There are many ways that the districts could contribute to local land use
planning and management ranging from legally mandated consistency to participatory
support.
1.
MANDATED CONSISTENCY
In an ideal world, a mandated departure point for local planning, in
addition to regional policy plans and the State Comprehensive Plan, would be a regional
water resources plan with which local government comprehensive planning and land
development regulation would have to be consistent. Going in to the planning process,
regional water resource perspectives would define the breadth and width of local
planning, at least to the extent that water resources are a limiting factor. Under this
model the districts would provide each local government with a set of regional and local
water management policies with which local comprehensive plans would be consistent


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and implemented by local plans and regulations. The planning process would provide
local government with an opportunity to demonstrate that alternative conditions apply
and that different or altered policies should apply in the particular jurisdiction, subject
to consistency with the applicable regional policy plan and the State Comprehensive
Plan. The burden, however, would be on the local government to demonstrate that the
alternative policies would be equally effective in achieving the goals, policies and
objectives of the State Comprehensive Plan. Unfortunately, regional water resource
perspectives are likely to impede local prerogatives in regard to the character, location
and magnitude of growth, making it difficult for local government to admit to such a
process.
The statutory structure for local and regional planning consistent with basin
inventories as developed by the districts provides a form of this model currently in effect.
Section 373.0395 of the Florida Statutes provides that once basin inventories have been
established they are to be transmitted to local governments, and each local governments
is required to "consider" the inventories during the next update of the its comprehensive
plan. "Consideration," of course, has no compulsory effect and experienced observers of
Florida local planning suggest that this provision has been honored far more often in the
breach than in compliance. Currently, few if any comprehensive plans use the basin
plans as points of departure. Despite the noncompulsory connotation of the word
"consider," an argument could be made that the legislature demonstrated the intent that
its directive to affected municipalities, counties and regional planning agencies be
mandatory by its use of "shall" and its statement of legislative intent that "future growth
and development planning reflect the limitations of the available ground water or other
available water supplies." Further evidence that the legislature intended that local
comprehensive plans reflect water inventories as developed by the water management
districts can be found in the directive of the Local Government Comprehensive Planning
and Land Development Regulation Act that preparation of comprehensive plans by local
governments be coordinated with other municipal, county and regional governments.


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While recognizing the weaknesses of the current structure, the South Florida Water
Management District should consider the possibility of effectively utilizing this current
structure.
There are examples of programs mandating consistency that have achieved
a measure of success, though such programs have involved relatively traumatic
relocations of power. The New Jersey Pinelands in southern New Jersey, a 1,000,000
acre undeveloped forest situate between Philadelphia and Atlantic City, has greater-than-
local planning and regulatory control over 7 counties and 52 municipalities. A
significant element of the regional agency's perspective is water resource planning and
management, and in fact water resource management was the controlling factor in the
development of land use policies and regulations. The Comprehensive Management Plan
for the "Pine Barrens," as the area is popularly known, provides a regional context for
local planning that controls land use in the Pines unless local government, acting under
the New Jersey Municipal Land Use Law, prepares and adopts local plans and
implementing regulations that are consistent with the Comprehensive Management Plan,
in which case permitting is "re-delegated" to the certified local government. Local plans
and regulations are submitted to the Pinelands Commission for certification. Forty-three
Pinelands municipalities have been certified as in conformance while the other 9
municipalities have been content with Commission permitting. Water quality and
quantity are critical limiting factors in the Pinelands and establish the general parameters
for local growth and development, and the result of the integration of water resources
planning and management and land use planning and management has produced a
coordinated set of local plans that do not exceed regional carrying capacities. Similar,
though less successful, programs are in place under the jurisdiction of the Adirondack
Park Agency in New York and the California Coastal Commission.
In Florida, the area of critical state concern process represents an "ad hoc"
use of the same concept. When an area is designated as an area of critical state concern,
the local planning process is "guided" by principles for guiding development. In this way


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coherency between state and local policies are mandated as local plans and regulations
are required to be consistent with the principles for guiding development. The difficulty
is that local governments do not like to be told what their policies in regard to land use
planning and management ought to be. Although the Florida Keys have been designated
as an area of critical state concern for more than 10 years, the "Conch Republic" is alive
and well and still resisting state direction through benign neglect and litigation. On the
other hand the Resource Management and Planning Committee for Hutchison Island
demonstrated that it is possible to "mandate" policy from a greater than local perspective
through direct and cooperative development of appropriate policies.
2.
SUPPORT OF LOCAL PLANNING
Alternatively, a measure of horizontal consistency can be achieved through
a "technical assistance" approach to planning. In other words, rather than use regional
water resource policies as a "given" for local planning, regional water resource
information and or professional planning assistance is provided to local governments on
a technical assistance basis with the anticipation that consistency with applicable regional
policy plans and the State Comprehensive Plan will ensure coordinated and consistent
planning judgments by individual municipalities. If, the theory goes, each municipality
is provided a complete body of data and the technical ability to analyze and use the
data, then individual municipal decisions will not significantly deviate from the greater-
than-local norm.
a.
Information
The least intrusive of the planning assistance approaches is the information
approach that depends on a theory of governance that competent decision-making can be
achieved if comprehensive and competent information is available to the decision maker.
In the context of coordinating water resources planning and management with local
government land use planning and management, this approach holds that providing local


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government with the requisite quantum and quality of information is one way of
achieving consistency. Unfortunately, this theory depends on the availability of local
expertise in resource management in order to manipulate, present, explain and use the
data in the policymaking and decisionmaking processes; and political courage to make
decisions on the basis of fact and not influence. Some local governments, such as
Metropolitan Dade County, have sophisticated resource management capabilities in place;
however, many local governments do not. Most, if not all local governments, find it
difficult to ignore the constituent pressure. The lack of ultimate success of the Local
Government Comprehensive Planning Act of 1975 is in large measure attributable to the
lack of adherence to plan principles in the face of constituent pressure.
More importantly the theory of "parallel evolution" or "coincident results"
is not supported by either anecdotal or empirical evidence. Indeed the literature is
strongly suggestive that "coincidental results" under this management model are more
fortuitous than anything else. The same theory is one of the underpinnings of the
National Environmental Policy Act which assumes that the availability of competent
information (generated through the medium of environmental impact statements) would
produce substantively correct and consistent results. Even a cursory review of the case
law involving the adequacy of environmental impact statements and the correctness of
decisions made in reliance on such statements reveals that the theory has been far less
successful than hoped.
The same theory supports the development of regional impact process. If,
the notion is, local government is provided with a more detailed application and the
recommendation of a greater-than-local perspective, then local government decisions in
regard to large scale developments will result. It is undoubtedly true that the
development of regional impact process has been effective in mitigating adverse impacts
from large scale developments, however, it is not so cear that vastly improved decisions
are the result of the process. Indeed, the approval of several large scale projects of
dubious quality, like Port Bougainville on North Key Largo, belie the theoretical


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advantages of a more informed decision maker.
There are, however, a number of aspects of state law that give hope to an
assistance model. First, the issue of the adequacy of public facilities to serve new
growth and development is subject to the so-called "concurrency" standard under the
Growth Management Act. As a result, local government's flexibility to deviate from
sound water resource management principles will be limited. No water -- no permit --
is what the Act says, and that mandate provides a powerful incentive for responsible and
coordinated decisionmaking. Second, the water management districts retain actual
control over potable water through consumptive use permits. If a local program conflicts
with district policy, then the local program runs the risk that consumptive use permits
will not be granted for needed water, though the Board of County Commissioners of
Monroe County saw fit to zone the County for more than 40,000 dwelling units even
though existing and projected water allocations indicate a carrying capacity of
approximately 24,000.137 Nevertheless, speculation as to the District's position in regard
to future consumptive use permits was a topic of serious deliberation during the Florida
Keys Area of Critical State Concern planning process and existing permit levels were
considered as a limiting factor.
In the final analysis, the regularized provision of information to local
planning programs in regard to water resource issues can not hurt and offers the
possibility of substantial improvement in the hands of a progressive, and responsive local
government. Moreover the fiscal implications of implementing a regularized data
generation program are relatively small, particularly in comparison to the cost of local
production of similar information.
b.
Planning Personnel
Another form of assistance involves planning assistance in the form of
assigned personnel. There are innumerable examples of intergovernmental programs
where a professional staff is assigned, part-time or temporarily, to another staff as a


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means of achieving better coordination. Such 'lend-lease" programs have been used
throughout Florida to encourage better planning. Unfortunately, the cost of such a
program for a district with dozens of local governments may be prohibitive. On the
other hand, a carefully managed local government assistance program might be well-
received, if the assistance were presented in a way that did not threaten local autonomy.
There is also the issue of agency loyalty and the question as to whether the lend-lease
technician can serve two masters. Experience indicates that the situation is more of an
issue than a problem; however, the circumstance clearly merits careful scrutiny.
Sarasota County has used the lend lease concept to encourage planning at
the local level and for many years provided personnel to serve as the professional staff
for a particular municipality that was unwilling to fund such a program. The produce
of the County's efforts are manifold -- better local programs, and most importantly in
regard to the issue of coordination, better coordination between the County and the
municipality. Another more recent example, albeit a small scale example, involves the
assignment of a professional planner from the City of Boca Raton Department of
Planning to the City's independent Community Redevelopment Agency. As a result a
very comfortable relationship developed between the two entities without threatening
either entity's autonomy. When the Community Redevelopment Agency decided to
pursue approval of a downtown development of regional impact for downtown Boca
Raton, the lend lease planner provided an important procedural and substantive bridge
between the City and the Community Redevelopment Agency that allowed the downtown
development of regional impact process to proceed to a successful and timely conclusion.
c.
Technical Expertise
One form of assistance that is particularly well-received is assistance with
complex tasks that exceed local substantive and financial capacities. For example,
computer managed information and mapping is beyond the technical and financial reach
of many local governments. If a water management district could provide technical


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assistance in the form of data management or mapping services, a substantive linkage
between water resources planning and management and land use planning and
management would result.
During the recent preparation of the Preliminary State Development and
Redevelopment Plan for the State of New Jersey, mapping assistance provided to the
Office of State Planning by the mapping experts of the Department of Environmental
Protection established a bridge between the Office of State Planning and the Department
of Environmental Protection that paved the way for cooperation in regard to substantive
programs.
d.
Financial Assistance
Two of the most important factors in achieving consistency between water
resource planning and management and land use planning and management is the
competency and scope of the local land use effort. Unfortunately, budget dictated those
factors. One way that the districts could achieve consistency would be to provide
financial assistance to qualifying local planning programs. If local government
demonstrates that it will use planning assistance funds to carry out a program within
specified parameters, then a planning assistance grant would be made.
In the New Jersey Pinelands, a program described above, financial
assistance to local governments committed to developing new plans and land
development regulations that were consistent with the Comprehensive Management Plan
was a major inducement toward the development of coordinated and consistent plans
and regulations. Similarly, it has been suggested that the reason the Monroe County
Board of County Commissioners were willing to implement far more reforms during the
most recent comprehensive planning effort is that the program was carried out with
financial assistance of the state. It is generally true that financial investment creates a
symbolic stake in the outcome and both parties to financial assistance agreement expect
that the investor will receive value for his investment.


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Again, the on-going state planning process in New Jersey offers
confirmation of the concepts presented. In order to encourage counties to become active
participants in the cross-acceptance process (a novel pre-plan process of ensuring
consistency between the state plan and individual local plans and regulations), planning
assistance grants will be made available to those counties that propose to participate in
the cross-acceptance process according to a set of minimum standards established by the
State Planning Commission. An obvious difficulty is that financial assistance depends
upon a source of funds, a circumstance that is not readily apparent.
3.
REVIEW AND COMMENT
An alternative approach to planning assistance is in the form of review and
comment during the plan preparation process. The theory is that if local planning efforts
are the subject of an advisory, technical review and comment from the substantive
perspective of the water management districts, prior to formal preparation of proposed
plans, then the perspectives of the districts will enhance the competency of the local
effort and promote consistency between local plans and district activities. The Local
Government Comprehensive Planning and Land Development Regulation Act provides for
district review of local government comprehensive plans prior to their final adoption;
however, the point in the planning process in which that review occurs makes it very
difficult for the districts to have meaningful input into the process, particularly in regard
to the policy aspects of the plan. Once a local plan has matured to the point of
statutory review, it is very difficult to influence the course and direction of the effort.
This is particularly true where advisory task forces are involved in policy making,
because those efforts are normally undertaken at the outset of a planning effort.
Experience with review and comment is not, however, encouraging. For
many years the federal government employed review and comment as a vehicle for
improving the quality of state and local decisionmaking, with little success. The review
and comment activities undertaken pursuant to the A-95 review program are not


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regarded as particularly successful efforts:
The A-95 process has provided a strengthened
communications network among local units of
government and between the various levels of
government. Technical expertise is generally
available from the clearinghouse to aid local
government units,and the A-95 process provides
a useful vehicle for the attachment of state, local
and public comments to environmental impact
statements under that National Environmental
Policy Act (NEPA).

However, the A-95 process does not provide for
reconciliation of conflicts between agencies of
government.138
Perhaps the best illustration of the limitations of the review and comment approach is
The Local Government Comprehensive Planning Act of 1975 which depended on a review
and comment process to ensure plan consistency. The Legislature's reform of the Act in
the Growth Management Act of 1985 is a strong affirmation of the position that advisory
review and comment processes are of limited utility.


C.
COORDINATED PERMITTING
A second major set of coordination approaches involve a linkage between
the permitting activities of the districts and local government. If, the idea is, the
permitting activities were coordinated, then a more efficient, consistent and potentially,
competent plan implementation program would be created. As indicated above, the
existing permitting structure, at least after the repeal of the compatibility rules, is
comprised of separate permit reviews that involve independent examination of different
aspects of the same project. The applicant goes to the local government for land use
approval and to the water management district for a surface water management permit.
Not only do separate reviews create an opportunity for inconsistent decisions, or


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conflicting conditions, the separate reviews are time-consuming and inefficient. Stories
abound in regard to applicants who agree to a particular condition in order to gain
approval for a project from one authority and then find out that another approving
entity objects to the very condition imposed by the first authority. Put plainly, it makes
little sense, subject only to the availability of needed expertise for technical reviews, to
make development review a perilous journey through the "narrows." There are a number
of alternative models for integrated and coordinated permitting that could provide a
linkage between water resource planning and management and land use planning and
management.
1.
DELEGATION
The most obvious form of integration is the delegation of the districts'
permitting authority to local governments for a particular class of development, provided
that the local government demonstrates the administrative capacity to implement the
delegation and provided that the local government's plan and regulations are
substantively acceptable to the delegating district. In the 1988 legislative session, the
Florida Legislature specifically provided for delegation of stormwater permitting or
surface water management by water management districts to local governments. The
legislature's clarification of the delegation authority of water management districts should
result in more delegation to local governments. Although delegation has long been
viewed as an important and potentially effective coordination technique, there is
relatively little specific experience with the concept.
The Environmental Protection Agency has adopted and implemented a
policy that allows for delegation of much of its permitting responsibilities to the states.139
Federal agencies responsible for land use and resource management increasingly
recognize the benefits of sharing regulations with and delegating authority to state
agencies and governmental bodies. In Florida, the Environmental Protection Agency and
the United States Army Corps of Engineers share responsibility for the management of


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Florida's environmental resources with the State, and in some instances with one
another. A survey of the different federal and state programs provides insight into the
forms that successful coordination can take. Examination of the successes and failures
of federal/state coordination, particularly the Environmental Protection Agency's
delegation of permitting responsibility to states, not only facilitates the formulation of
.alternative management approaches to coordinating the South Florida Water Management
District's programs with local, regional and state land use and resource management
programs, but also provides standards by which to evaluate those alternatives.
a.
EPA Permitting Programs and State Programs
The United States Environmental Protection Agency (EPA) recently has
formally recognized the benefits of delegating responsibility to the states. The term of
William Ruckelshaus as Administrator of EPA saw many changes in the involvement of
states in EPA permitting and monitoring activities. In 1970, EPA wrote regulations, set
standards, issued permits, and had primary responsibility for monitoring programs and
enforcing regulations. By 1984 the states had a major role in environmental protection.
The Administrator recognized the growing involvement of states in
environmental protection and in 1985 directed his Deputy, Alvin L. Aim, to study the
changes and propose ways for EPA to adapt to the changes. Mr. Aim formed a task
force entitled the Task Force on State/Federal Roles, whose members came from both
the EPA and individual states. Mr. Aim insisted that state program managers be
prominently involved in the task force. The task force concluded:
First, state/federal relations must change in
response to the clear fact of broad program
delegation. States have progressed so far in the
past thirteen years that they are now the
primary operational arm of a national network
for environmental protection. States should
concentrate on direct administration of
environmental programs, including permitting
and compliance activities. EPA should focus on


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national standards and research, technical
support and oversight for state programs, and
accountability to the President and the Congress
for national environmental progress. Of course,
EPA must stand ready to step in to support
states in essential areas like enforcement if
persistent problems keep the state from carrying
out its full responsibility.

Next, EPA must model its oversight of state
programs on that of other progressive,
decentralized organizations. Oversight is not
merely evaluation; its essence is constructive
cooperation to find workable solutions to
problems. We must realize that if state
programs do not work well, EPA cannot fulfill
its mission; oversight means doing what is
needed to make sure they work.140
Following the work by the task force, the Deputy Administrator made the
following observations regarding what EPA can do to create conditions in which states
can be most successful in their daily management of national environmental programs:
First, we must be explicit and concrete as to the
performance we expect, and hold states
accountable for actual progress. While doing
this we must respect their independence as to
the specifics of programs, and not "nit-pick"
individual decisions.

Second, we must expand our hands-on technical
assistance and oversight activities. We cannot
merely give states some sort of report card, then
leave them to muddle through. We must help
find ways to solve problems when deficiencies
occur, particularly when these problems follow
patterns that are detectable across a number of
states.

Third, we need to recognize that the relationship
between state and federal role changes as
programs mature. New programs, such as


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RCRA, will at first involve a much higher degree
of direct federal participation. As time passes,
states can assume responsibility for more and
more of the direct program operations, with the
goal of eventually taking full charge of the
program. Again, what is needed is a much
better focused system of oversight and technical
assistance to speed this maturation process. As
a working premise, EPA should leave the bulk
of program operations including permits,
inspections, and enforcement to the states.
Our role in direct operations should be
secondary, to back states up if and when they
need help.14
The observations and conclusions of the participants in the federal/state
task force can serve as guidelines for governments, agencies, or organizations that
delegate or share responsibility with other entities. The conclusions and observations of
the members of the task force are only suggestions, albeit well-informed suggestions, of
how state and federal governments can best coordinate their activities to protect our
environment from pollutants. Examining the individual EPA programs and discussing the
programs with those persons who administer them on the federal and state levels
provides a closer view of what works and what is problematic in the administration of
EPA programs.
L
National Pollutant Discharge Elimination System
The Clean Water Act provides for a National Pollutant Discharge
Elimination System (NPDES).142 The act provides for state NPDES programs. The
NPDES programs regulate discharges from three types of sources: stormwater point
sources, new sources and new dischargers, and nonprocess dischargers. The governor of
a state desiring to administer its own permit program is directed to submit to the
Administrator of EPA a full and complete description of the program it proposes to
establish and administer under state law or under an interstate compact.143 The statute


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also directs the state to submit a statement from its attorney general or the attorney for
those state water pollution control agencies which have independent legal counsel or
from the chief legal officer in the case of an interstate agency that the laws of the state
or interstate compact provide adequate authority to carry out the described program.144
The Administrator is directed to approve a submitted program unless he determines that
adequate authority does not exist.145
In the eight-state EPA Region 4, Florida is the only state that does not
administer the NPDES program. Administration of the NPDES program by the state must
be approved by the state legislature. The state Department of Environmental Regulation
(DER) has tried since approximately 1975 to get enabling legislation passed, and the
legislature passed legislation in 1988 that would allow state administration of the NPDES
program. The legislation allows DER until January 1989 to apply to EPA to administer
the NPDES program.
The effect of the Florida Legislature's failure to pass legislation enabling the
State to administer the NPDES program is that there are two programs in Florida that
issue permits and monitor pollutant discharges into navigable waters: the state program,
which is administered by DER, and the federal program, which is administered by EPA.
An individual seeking a permit must obtain both a DER permit and an EPA permit. The
Clean Water Act requires that EPA not issue a permit for an activity that DER refuses to
permit. EPA's administration of the NPDES program in Florida involves interaction with
DER. The requirement of the Clean Water Act necessitates that EPA work closely with
DER. EPA contacts the state agency to determine the status of permits and determine
whether or not a permit will be granted. EPA's decisions reflect those of the state
agency. The NPDES program relies heavily on self-monitoring. EPA monitors the
program through several methods, which include samples sent by permitees, inspections
by EPA, and the use of state-collected data. EPA issued 120 NPDES permits last year
and predicts that it will issue more this year. By the end of March of this year, EPA had
issued 30 permits.


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Despite the policy of EPA to delegate the responsibility for programs to the
state level when possible, EPA regional officials, who deal closely with the state agencies
that implement EPA programs and policies, cite problems with the delegation of EPA
programs to state agencies. Specifically, the Chief of the Permits Section of the Facilities
Performance Branch of Water Management at the Region 4 office of EPA asserted that
EPA's administration of the NPDES program takes less time in Florida, where EPA, not
the state, administers the program.46 He further asserted that EPA can run the NPDES
program as well as the states. He sees what he perceives as the nonpolitical nature of
EPA as an advantage of EPA administering the program. He explained that while states
are subject to political pressures as far as issuing permits (e.g., an important state
corporation seeks a permit), EPA is at a level of government where it is not subject to
those kinds of pressures.
Nationally, Florida is an exception in not administering the NPDES
program. There are thirty-eight (38) federally-delegated NPDES programs administered
nationwide. The thirty-eight (38) include programs administered by United States
territories. With regard to federally delegated NPDES programs, EPA provides substantial
funding to states through sec.106 grants. EPA assistance to states also includes training,
computer services, and when needed, physical help in the form of regional personnel.
Through sec.401 certification, state discharge requirements are incorporated into the
requirements of the NPDES program. As mentioned above, the state permit in Florida
is a separate application and involves a separate process from the NPDES program. In
Florida, permitting is handled in DER's six district offices. Permit information is relayed
from the district office to EPA. There appears to be some dissatisfaction in the DER
Tallahassee office handling pollutant discharge with the Florida system of having six DER
district offices handling permitting. The suggestion made by an individual in the
Tallahassee office was that in most states it is the state agency's headquarters that issue
permits.147 The individuals in DER's Tallahassee headquarters are involved in
implementing programs and training. The Tallahassee office provides the district office


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with information and provides coordination with other agencies, particularly EPA. The
district offices make the final decision regarding state permits.
ii
Resource Conservation and Recovery Act
The primary objective of the federal hazardous waste program under the Resource
Conservation and Recovery Act of 1976 (RCRA) is to establish a framework under which
hazardous waste is regulated from generation through transportation, storage, or
treatment to ultimate disposal. The act allows EPA to authorize a state to operate its
own hazardous waste program in lieu of the federal permitting program.148 When a
state receives Phase II authorization, which authorizes a state to administer a hazardous
waste permit program for transportation, storage and disposal (TSD) facilities, a facility
must meet the state technical, permitting, and interim status standards for hazardous
waste facilities. EPA has delegated to Florida responsibility for administration of the
primary permitting program authorized under RCRA, which involves the treatment,
storage and disposal of hazardous waste. Although the administration of the program is
delegated to the state, specifically DER, EPA always has oversight. EPA conducts
oversight inspections twice a year. EPA reports substantial interaction with DER.149
State programs are evaluated in the mid-year and end-of-year reports on the basis of an
EPA document called a program quality criteria document.
EPA reports that in Florida enforcement of permits is done by DER on the
district level.'50 EPA provides DER with an annual grant to run the program.
Withholding of grant money is one means that EPA uses to achieve conformance from
DER.
The state program is authorized under the Resource Conservation and
Recovery Act of 1976. The authority of DER in'administering the RCRA program
includes issuing permits and performing inspections. The program is directed from DER
in Tallahassee. The six district DER offices are charged with performing inspections,
enforcement, and issuing permits to facilities that treat or store hazardous waste. Unlike


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many other DER permitting programs, all permits are not issued out of the district
offices.151 This represents a recent change in procedure. A representative of the
Tallahassee DER office handling hazardous waste permitting explained that the hazardous
waste department has always allowed the Tallahassee office to have more input into
decisionmaking relative to district offices than other DER permitting agencies. The
Tallahassee office reviews and issues permits to facilities which engage in putting or
placing hazardous waste on land. The issues involved in issuing this type of permit are
more complex than the issues involved in permitting facilities that treat or -store
hazardous waste. Typically, it takes a couple of years to obtain a RCRA permit.
Currently, there are 130 permitted facilities in the state of Florida, which includes 46
land disposal facilities.
ii.
Underground Injection Control
The Safe Drinking Water Act provides for state Underground Injection
Control (UIC) programs.152 The act requires the Administrator of EPA to keep a current
list of those states where an underground injection control program may be necessary to
assure that underground injection will not endanger drinking water sources.153 If a state
fails to submit an application for a program that is acceptable to EPA within a specified
time period, the Administrator of EPA is directed to prescribe a program applicable to the
state.154 Florida is one of the states for which EPA requires a UIC program. In Florida,
the UIC program involves the permitting of Class 1 wells, which are major wells and
Class 5 wells, which are small wells. Although EPA works with the state, it is the state
that is primarily responsible for administering the program and issuing permits.'ss EPA
provides the state with funding for the UIC program and conducts biannual reviews of
the state program, which include taking samples of DER's work and visiting its offices.
EPA advises DER in writing of its findings and makes comments meant to improve the
program.
The Supervisor of the UIC Subsection in DER reports that the state program


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is successful.'56 He accounts for the success primarily on the basis of a review program
which provides information to persons seeking permit approval. The Technical Advisory
Committee (TAC) is chaired by a representative of the DER district office which governs
the proposed application. Other members of the committee can include representatives
from the DER Tallahassee office, EPA Region 4, United States Geological Survey, the
affected water management district, and local governmental programs. The Resource
Control Department of the South Florida Water Management District is currently a
member of the Committee. DER invites all affected agencies and programs to participate
in a review process that enables a permit applicant to come to one place and have
questions regarding his or her application answered. Not only does such a forum
provide an applicant with information that will enable the applicant to formulate a
proposal that will be acceptable to DER, but it also provides affected agencies with input
into the ultimate permitting decision made by DER. Although the issuance of permits
is done exclusively by the district offices, the district and Tallahassee offices handle other
aspects of permitting and monitoring of wells that have been permitted. Small wells
(Class 5) are the exclusive domain of district offices; whereas, details concerning major
wells (Class 1) are handled at the state level. The Supervisor of the UIC Subsection
noted that TAC review prevents many problems that would otherwise face DER
personnel. Currently, there are 87 major wells, in 38 facilities, permitted in Florida.
There are not many small wells. The supervisor noted that monitoring of wells is
minimal, because of a lack of resources.
The supervisor stated that although he generally believes that DER works
well with EPA, he has experienced some problems related to the fact that the UIC
program is a national program. He asserted that many of the national policies of EPA
regarding the UIC program are not suited to Florida, where the geology is much different
than elsewhere in the country.


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iv.
EPA Air Pollution Programs
In Florida, EPA has delegated responsibility for two of its air pollution
programs to DER.
The State Implementation Plan (SIP) program is concerned with
enforcement of the National Ambient Air Quality Standards (NAAQS). The Clean Air Act
requires each state to submit to the Administrator of EPA a plan which provides for
implementation, maintenance, and enforcement of the national primary and secondary
ambient air quality standards in each air quality control region within the state.1'7 If a
state fails to submit a plan that is acceptable to the Administrator of EPA within a
specified time period, the Administrator may prepare and publish regulations setting forth
an implementation plan.158 The regulations implementing a state plan are enforceable by
both the state and EPA.
Another program that EPA has delegated to the State is the Prevention of
Significant Deterioration (PSD) program. That program involves preconstruction review
requirements for new sources. The Clean Air Act requires that applicable implementation
plans shall contain emission limitations and such other measures as may be necessary to
prevent significant deterioration of air quality in each air quality control region.'59
Although EPA implemented the program originally, EPA now delegates responsibility to
states that prove that they have adequate resources to implement the program.160 EPA
delegation can be partial or full delegation. EPA still administers the PSD program in
some states; however, nationally, most states administer the program. In Florida, as in
other states, EPA receives copies of documents related to the issuance of a permit before
the permit is issued. The Clean Water Act requires that each state transmit to the
Administrator a copy of each permit application relating to a major emitting facility
received by the state and provide notice to the Administrator of every action related to
the consideration of such permit.161 EPA makes recommendations to the state. In
Region 4, the eight-state EPA region in which Florida is located, twenty-eight PSD


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permits have been issued. Two PSD permits have been issued in Florida. Total air
pollution permits for the region number 2000. Forty-three have been issued in Florida.
The EPA Team Leader for the New Source Team in Region 4 stated that
EPA delegation of programs to states makes evaluation of programs by EPA "very difficult
... legally and practically."62 As an example, she cited her experience with the SIP
program which the states administer. She noted that because each state has its own
regulations for administering the program, EPA must be familiar with many sets of
regulations and must evaluate each program in accordance with a different set of
regulations. She indicated a preference for state administered programs in which the
state administers the program in accordance with EPA promulgated regulations.
b.
United States Army Corps of Engineers
The Army Corps of Engineers administers the sec.404 dredge and fill
program. Ultimately, EPA could veto a Corps decision to grant a permit, but EPA has
exercised that veto power only ten times since 1972. The Corps, DER, and DNR have
developed a joint application for dredge, fill, and structure permits. A permit is
originally submitted to DER. DER then sends the application to the Corps. Generally,
DNR is the last agency to receive a copy of the permit application. DER must certify the
application before the Corps can consider it. If DER decides to deny a permit, the Corps
must also deny the permit. However, if DER decides to issue a permit, the Corps may
still deny the permit. The Corps, DER, and DNR are separately funded agencies. An
environmental specialist with DER cited a problem with the joint application process that
is in the process of being corrected.163 He noted that although the application process
works initially in distributing an application among the three agencies, there is no
process to ensure that all three agencies are aware of one another's subsequent contacts
with an applicant. Sharing of information is important if the process is to be efficient
and effective. He stated that the current "hit or miss" procedure has caused problems.
The South Florida Water Management District has been able to examine


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first-hand the sec.404 dredge and fill program. The Resource Control Department
reviews notices of the Corps' dredge and fill program. On problematic projects, the
Department and the Corps work together.
Examination of EPA's experience with delegation of permitting authority to
states would aid the District in successfully delegating permitting authority to local
governments. The South Florida Water Management District should also draw on its
own experiences as the recipient of delegated permitting authority. The District is one
of the two water management districts to which DER has delegated its responsibility for
monitoring the groundwater discharge of stormwater. DER's decision to approve
delegation to a specific district is based on the financial and technical capability of that
district.
c.
Summary / Delegation
If the District were to delegate surface water management permits, with or
without oversight responsibility, to local government where local government
demonstrates the establishment of a local program that ensures that applications for
surface water permits will be properly evaluated, then integration and coordination of
District and local government programs would be achieved. Under this approach, local
governments would be able to petition the District for delegation of surface water
permitting responsibilities. For those local governments concerned about development
review efficiency, the opportunity for delegated permitting authority would be very
attractive.
A difficulty is that many local governments do not have the staff capability
to carry out technical reviews and therefore will be unwilling or unable to take on a
permitting process that is beyond their technical reach. Other local governments will be
hesitant because of the additional cost involved in implementing delegated authority.
Local revenues are already stressed by the capital facilities crisis in Florida and the last
thing any local government wants to hear about is an opportunity to incur additional


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administrative costs.
One way that the districts could encourage participation in a delegation
program would be to provide funds for the reviews. For example, the South Florida
Water Management District could make available a pro-rated allocation of funds for
delegation programs that would allow local governments to employ the necessary
professionals to carry out delegated permitting. For local government, the opportunity
to hire additional professional expertise without resort to local revenues would be very
attractive, particularly in light of the fact that the additional expertise would be available
for non-district matters. In the New Jersey Pinelands, the availability of financial
assistance from the Pinelands Commission to locals was a major inducement to local
government participation in the certification program.
In order to carry out an effective delegation program, it would be necessary
for the District to first identify the minimum procedures and standards that would have
to be in effect in order to carry out the concept. Then the District would have to
establish a procedure for implementing the concept.
It is possible that the concept could be implemented on a voluntary,
existing authority basis. For example, it is possible that the District could enter into an
intergovernmental agreement with a local government under which the local government
undertakes to administer surface water permitting on a contract basis and the District
agrees to provide a specified amount of funding. On the other hand it may be necessary
to secure additional legislation to carry out such a program, particularly if widespread
delegation is the objective.
It is not necessary that delegation be an absolute abdication of authority.
It would be possible, for example, to delegate subject to a call up or an appeal to the
District. If no one, including the District objects to a local decision made pursuant to
delegated authority, then the local decision would become final. On the other hand if the
applicant or some other enumerated person were dissatisfied with the local decision a
call up or appeal process to the District could be invoked. The Pinelands Commission's


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certification of local plans and land development regulations is subject to the ability of
the Commission to call up local decisions that are considered to be inconsistent with the
Comprehensive Management Plan. It would be even possible to limit the appeal of local
decisions to a particular class of particular sensitive subjects.
2.
CONSOLIDATION
The converse of delegation is consolidation of permitting authority at the
water management districts. In other words development review, or at least review of
particular classes of development or of developments in particular areas such as sensitive
water resource areas, would be consolidated before the water management districts.
The obvious benefits to such an approach would be full integration of land use planning
and management and water resource planning and management at a greater-than-local
level and the allocation of such decisions to an entity with the most developed capability
of making such decisions.
The Metropolitan Council of Minneapolis-St. Paul, Minnesota provides an
example of successful resource planning at a greater-than-local level. The Minnesota
legislature established the Metropolitan Council to plan and coordinate specified public
services that were beyond the control of local governments. The Metropolitan Council
"allocates" capacity in regional systems to local governments in a process that involves
mutual bargaining. The total capacity is equated to total regional demand. Each
municipality can make a case for more than its historical growth share, but to do so, it
has to suggest where growth will be slower. This process is more of a management
adjustment to reality than a preconceived plan of use. The inclusion by water
management districts of such factors as regional capacities for ground water, surface
water handling, and water pollution in the ground water basin inventory component, as
described in Section 373.0395 of Florida Statutes, would facilitate the implementation of
a process similar to that of the Metropolitan Council.
The Power Plant Siting Act provides another example of a consolidated


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permitting process that achieves coordination by locating all development review
decisions under the purview of a single entity.
3.
INTEGRATED PERMITTING
Another approach to better linkage would be an integration of coordination
of district and local government permitting. Applications for development approval, or
a particular category of applications, would be submitted to the appropriate local
government and then referred to the appropriate district for evaluation. The local
government decision might not be bound by the district's evaluation; however, it could
be presumed that a cogent analysis would enhance the review of the application.
Implementation of an integrated or coordinated development review process would have
a number of advantages -- local government could avoid establishing duplicative water
resources expertise and the districts would have a vehicle for influencing the outcome of
decisions that affect the water resources of the district.
There is considerable reason to expect that the integration of permitting
processes would have a beneficial effect. First, the concept makes good sense. Second,
experience with such programs has been very positive. It can hardly be doubted that the
quality of large scale land use decisions by local government has been enhanced by the
availability of regional impact assessments and the review and comment of state
agencies. Finally the process does not threaten the "prerogatives" of the individual
entities. Experience suggests that programs that subjugate one authority to another are
not enthusiastically received, particularly by the subordinate entity.
4.
NON-JUDICIAL APPEALS
Another land management approach that could be employed would be a
structure that allows the water management districts or local governments to appeal each
others' decisions to a higher, non-judicial authority. The theory is that the availability
of such an appeal would stimulate greater attention to the relationship between water


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resources planning and management and land use planning and management.
An example of such an appeal is found in Chapter 380 involving appeals
from the local decisions in regard to developments of regional impact and areas of
critical state concern to the Florida Land and Water Adjudicatory Commission. Of
particular relevance is the role of appellate review in the area of critical state concern
process. Under the area of critical state concern process, the State establishes principles
for guiding development in the designated area of critical state concern and local
government is required to adhere to those principles until an approved comprehensive
plan and land development regulations are in place. If local government deviates from
the principles, then the state land planning agency may appeal the decision that is
believed to deviate from the principles to the Florida Land and Water Adjudicatory
Commission.
Similarly, a program could be developed that would allow the water
management districts and local governments to appeal each others decisions to an
adjudicatory body on the grounds that the decision is inconsistent with the appealing
body's plans. If local government issues a decision that is believed to be inconsistent
with a district's resource plans, then the district could appeal that decision to an
adjudicatory commission. On appeal the adjudicatory body would consider conflicts and
inconsistencies between local plans and regulations and district plans and regulations and
resolve the conflicts or inconsistencies by reference to the State Comprehensive Plan.
The advantages of such a program are manifold. First the program is not
"triggered" until there is an unresolved conflict. Second, a non-judicial appeal is a far
less expensive and time-consuming alternative to judicial review and finally, the
"opportunity" for appeal is a substantial deterrent for non-conforming action.


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CHAPTER V



IMPLICATIONS OF MANAGEMENT APPROACHES



Each of the techniques described in Chapter IV offer the possibility of

improved coordination and consistency between land use planning and management and

water resource planning and management. The success of those techniques that rely on

local government cooperation that is not legislatively mandated, such as district support

of local planning, depends on the expertise and political courage of the local government

involved. Similarly, the ease or difficulty of achieving mandatory enforcement depends

on how a technique is implemented. For example, the ability to enforce those techniques

whose purpose is coordinated permitting depends on whether the techniques are

implemented through legislation or through intergovernmental agreements.



AUTHORITY SHIFT DIFFICULTY OF ADDITIONAL PERMITTING MANDATORY OVERALL
IMPACT IMPLEMENTATION COST IMPACT ENFORCEMENT EFFECT
MANAGEMENT APPROACH ----------------------------------------- ..-----.....................
DISTRICT LOCAL GOVT ADMIN LEGIS DISTRICT LOCAL GOVT
-------= = ;-------------------------------------------------------
A. PLANNING ASSISTANCE
1. MANDATED CONSISTENCY + = + +
2. LOCAL PLANNING SUPPORT
a. INFORMATION = = + = + /+
b. PERSONNEL = = + = = + =/+
c. TECHNICAL EXPERTISE = = + = = + /
d. FINANCIAL = =/ + ++/ +
3. REVIEW AND COMMENT = = = =/
B. COORDINATED PERMITTING
1. DELEGATION + + + + +
2. CONSOLIDATION + + =/- + + +
3. INTEGRATED PERMITTING = = + =/+ + + ./. +
4. NON-JUDICIAL APPEALS -- = =


+ EASY TO ACHIEVE OR BENEFICIAL IMPACT
= NEUTRAL
DIFFICULT TO ACHIEVE OR NEGATIVE IMPACT


FIGURE 4


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A.
TURF
One of the most virulent of governmental afflictions is the defense of "turf'
and reform programs that impinge on an agency's turf are not well-received, no matter
how beneficial the reform. For example, reallocation of land use planning and
management from individual municipalities to a more effective level of governance, such
as a county, is almost impossible. Efforts to consolidate county and municipal
governments, what are duplicative and wasteful parallel local governments, routinely fail
even though the theory of consolidated governance is unassailable. Another example lies
in the efforts to eliminate the "variance" from local land development regulation. In
Florida, the practice of granting variances remains prevalent although the "variance" is
much maligned64 and no longer a requirement of the enabling legislation. The practice
is perpetuated by sitting public bodies with established preferences and practices, who
are reluctant to relinquish the flexibility and "power" of the variance process.
Many of the programs that would improve coordination and consistency
and better represent collective interests in water resources would impinge upon existing
agency prerogatives because meaningful reform, by definition, involves change and
change means a reallocation of authority. The most significant and controversial
reallocation of authority would be the consolidation of land use decisionmaking for
particular classes of development or for development located in particular areas in the
water management districts. Local governments would undoubtedly resist the perceived
loss of control, and in some locales, landowner/developer interests would protest the
perceived lack of political access that such a reallocation of authority would produce.
One of the most significant political "powers" extant in America is the power to regulate
land use and any reform program that proposes to reallocate that power, faces an
animated debate. The environmentalists will want the power where they have access
and the developers do not, and vice versa, the developers will want the power where
their access is the most direct.


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There are, however, examples of consolidation that have overcome
resistance to reform. The consolidation of land use planning and management in
Broward County through the 1974 Charter represented a major shift in control.
Although substantial local autonomy is maintained in the Broward County model, the
supremacy of the County over local prerogatives is unmistakable. Another example of
reallocation is Chapter 380, which impinged on local prerogatives in regard to
developments of regional impact and areas of critical state concern. And a third example
is the Legislature's decision to consolidate decisionmaking authority in regard to power
plants in the State. One question asks whether the prerogatives of local government are
so significant as to outweigh the advantages of districts using their expertise and
perspective to address land use decisions that have a significant potential impact on
water resources. A second question asks whether the broader framework of the districts
can represent the collective interest in water resources, which includes some land use
decisions, better than governments or agencies with narrower perspectives. A full
response to this question must examine whether related land use decisions are
legitimately the domain of the local government involved.


B.
FISCAL
Another significant factor in the "objective" consideration of management
approaches is the cost of implementing a particular program. Again good theory may
conflict with the budget implications of a particular program on one agency or another.
It is all well and good to suggest that applications for surface water permits be delegated
to local government, but the idea may not be well-received if the consequence is that
already financially stressed local governments have to employ more staff in order to do
the permitting. Similarly, active involvement in local planning, with its interminable
workshops and delays, would require a significant augmentation of district staff. Of
course almost none of the approaches described above are without additional cost,


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making the budget impact more of an issue than a problem.


C.
GOOD GOVERNMENT AND EFFICIENCY
One of the most unfortunate consequences of uncoordinated and
inconsistent governmental actions is the resultant loss of resources natural and
financial -- public and private. Uninformed, incompetent or inconsiderate decisions,
planning and development, squander precious resources, often irretrievably. Complex,
duplicative and time-consuming review processes impose unnecessary costs on applicants,
additional costs that must be made up by reduced amenities or increased density. The
advice of wizened counsel to one large scale developer that he should ask for twice the
development he really wanted because "they will cut you down no matter what you ask
for" and because "you will need to recoup more than you think because of the delay and
cost of the process", is not apocryphal.


D.
SUMMARY
Virtually all of the management approaches described above offer improved
conservation and use of natural and financial resources, even if they involve additional
public or private investment. Delegation, for example, allows for "one stop shopping"
that eliminates the need for permit review at both the local level and the water
management district. There are substantial opportunities for improved coordination and
consistency between land use planning and management and water resources planning
and management. The opportunities are not "free" but many of them are likely to be
cost effective in the context of the resource values that are at issue. The challenge is to
select a course that represent the optimal management approach within the fiscal and
political context of the District's capabilities.


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CHAPTER VI


ALTERNATIVE INSTITUTIONAL STRUCTURES
FOR COORDINATED WATER RESOURCE PLANNING AND
MANAGEMENT AND LAND USE PLANNING AND MANAGEMENT


A.
INTRODUCTION
The number of alternative institutional structures that could be used to
improve coordination between water resources planning and management and land use
planning and management programs is limited only by the imagination. Administrative,
political and financial considerations pare down the number of alternatives; however,
even within the more narrow range of practical options, there are still a large number of
alternative management structures that could be used to improve coordination and
consistency between water resource planning and management and land use planning
and management.
Six alternative institutional structures have been selected for analysis. These
six alternatives represent points along a continuum of management alternatives that
could be employed by the District to improve coordination and consistency between
water resources planning and management and land use planning and management. The
six selected alternatives should not be viewed as the only programs considered, but as
surrogates for the practical, legal, political and economic implications of alternative
programs of the continuum of alternatives. Table 1 summarizes the relative implications
of the six selected alternative programs in terms of each program's administrative,
political and economic costs. The programs have a variety of advantages and
disadvantages and it is apparent that no particular program is superior in every regard.
Indeed, there is a direct correlation between effectiveness and cost; the greater the
judged effectiveness -- the greater the public cost, at least in terms of the budgeting of
public revenues.


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The following figures demonstrate current and potential district/local

government relationships. Note in Figure 5 that although the District and local

governments are governed by the requirement of Florida Statutes Section 163.3161(5)

that no public or private development shall be permitted except in conformity with the

local comprehensive plan, there is no coordination between local government and District

permitting. Figure 6 allows for coordination between local government and district

permitting processes. Figure 6 also includes a Water Resources Plan and Map, which

would serve as a valuable resource to local governments and provide a linkage between

the district and local government.


ALTERNATIVE MANAGEMENT PREDICTED EXISTING NEW LEGIS. ADDITIONAL PUBLIC SOURCE OF PRIVATE
PROGRAMS EFFECTIVENESS AUTHORITY REQUIRED STAFF COSTS FUNDS COSTS

DELEGATION VERY HIGH YES NO LOCAL GOVT HIGH LOCAL TAXES MINOR -
COMP PLAN CONSISTENCY HIGH NO YES SFUMD MODEST SFUMD TAXES MINOR +
ADMINISTRATIVE APPEAL MODERATE NO YES SFWMD/L.GOVT HIGH LOCAL/SFMMD MAJOR +
TAXES
REG'L LAND USE CONTROL HIGH NO YES SFIMD MODEST PERMIT FEES/ MINOR +
SFWMD TAXES
INTERAGENCY COMMITTEE LOW YES NO NONE LOW LOCAL/SFWMD NO EFFECT
TAXES
PLANNING SUPPORT LOW YES NO SFWMD MODEST SFWMD TAXES MINOR +
TABLE I


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~


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WATER RESOURCES PLANNING AND MANAGEMENT


LOCAL GOVERNMENT
COMPREHENSIVE
PLAN

I
LOCAL GOVERNMENT
LAND DEVELOPMENT
REGULATIONS


LAND DISTRICT DISTRICT
ACQUISITION WORKS PERMITS


Figure 5


LAND USE PLANINNG AND MANAGEMENT











O




WATER RESOURCES PLANNING AND MANAGEMENT LAND USE PLANINNG AND MANAGEMENT


> STATE
COMPREHENSIVE
?PLAN
STATE
WATER
PLAN


REGIONAL COUNCIL -
D -POLICY PLAN
DISTRICT ICD
POLICY
PLAN
LOCAL GOVERNMENT
Q 1---- ( COMPREHENSIVE
PLAN
WATER RESOURCE P
LAND CAPABILITY
MAP

LOCAL GOVERNMENT
rI --.-- LAND DEVELOPMENT
REGULATIONS
LAND DISTRICT
ACQUISITION WORKS



DRI LOCAL
DEVELOPMENT DEVELOPMENT
ORDER ORDER
Figure 6 DISTRICT DISTRICT
PERMIT PERMIT





C)








B.
DELEGATION MODEL
The Delegation Model contemplates that District permitting responsibilities
(surface water management, water use, well construction, etc.) would be delegated to
qualifying local governments. Under this model the District would establish criteria that
would qualify a local government for delegation of all or a part of the District's
permitting responsibilities. Criteria could include the availability of qualified local staff,
the adequacy of adopted plans, and demonstrated commitment of applicable political
bodies. Individual permit decisions would be made by local government and, in the most
efficient form of delegation, would not be subject to appeal, except to court. The
advantage of delegated permitting is that a single decisionmaker is responsible for all
aspects of a proposed development enabling a more comprehensive consideration of the
proposal. Moreover, delegated permitting offers the opportunity for a more streamlined
approach by eliminating duplicative reviews and the "ping pong" effect as a developer
goes from one agency to another, satisfying the first, then the second, and then back to
the first because of changes the second agency required. However, it will be important,
if this model is used extensively, to establish an internal monitoring process for the
District to ensure district-wide consistency and to monitor the quality of delegated local
decisions. It is particularly important to ensure that local politics do not influence the
inherently technical nature of water resource planning and permitting.


Effectiveness
The Delegation Model is predicted to be very effective in achieving
coordination with other permitting and requiring agencies. Further, delegation can
accomplish a more consistent and efficient evaluation of an individual project.


Existing Authority
The Florida Legislature expressly provides in Chapter 373 of the Florida


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Statutes for delegation of stormwater permitting and surface water management by the
water management districts to local governments. Although the Legislature's
specification of two areas of water management district responsibility as areas of
permissible delegation implies that other areas are not delegable, the statutory provision
for interlocal agreements suggests that other responsibilities may not be precluded from
delegation.
The Legislature in the Regular 1988 Session expressly provided for
delegation of stormwater permitting or surface water management by water management
districts to local governments. Specifically, the new legislation provides:
In addition to the other powers and
duties allowed it by law, the governing board of
a water management district may be specifically
authorized by the department to:

Delegate to a local government, by rule
or agreement, the power and duty to administer
any of the statutes, rules, or regulations relating
to stormwater permitting or surface water
management which the district is authorized or
required to administer, including those delegated
by a state agency to the district, if the governing
board determines that such a delegation is
necessary or desirable. Such a delegation shall
be made only if the governing board determines
that the local government's program for
administering the delegated statute, rule or
regulation:

(a) Provides by ordinance, regulation, or
local law for requirements compatible with or
stricter or more extensive than those imposed by
the statute or the rules and regulations adopted
pursuant thereto;

(b) Provides for the enforcement of such
requirements by appropriate administrative and
judicial processes; and


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(c) Provides for administrative
organization, staff, and financial and other
resources necessary to effectively and efficiently
enforce such requirements....165

Although this new legislation can be interpreted as limiting permissible
delegation by delineating two areas of delegation, another possible basis exists for
delegation by a water management district. Part I of Chapter 163 provides for interlocal
agreements between any "public agency", which is defined to include political
subdivisions of the state, with any other public agency for the joint exercise of authority.
Assuming that a delegation agreement were crafted to provide for "joint" exercise of
authority, it seems that a delegation could be established by interlocal agreement.
If the District chooses to follow the Delegation Model, it should be attentive
to the legislature's implicit limitation on delegation and pursue delegation of those
permitting responsibilities for which delegation is expressly approved by Chapter 373.
Required New Legislation
Assuming that the District is comfortable with the general sources of
authority described above, new legislation would not be required to implement the
Delegation Model.
Additional Staff
The Delegation Model would not require additional District staff; however,
many, if not most, local governments would have to expand staff -- clerical and technical
-- in order to effectively carry out the responsibilities of the delegated authority. Of
course, the extent of the need for such additional staff would depend upon the extent of
delegation. The Delegation Model would require that a local government have the
administrative and technical capacity to effectively administer the program and where
staff capability does not exist, staff would have to be augmented.
Public Costs
In terms of budget, the Delegation Model would have little impact on the
District, once it was implemented. In terms of achieving better governance, the


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