Title: Executive Summary of The Florida Water Resources Act of 1972 and Comprehensive Planning in the State of Florida
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Title: Executive Summary of The Florida Water Resources Act of 1972 and Comprehensive Planning in the State of Florida
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Language: English
Publisher: South Florida Water Management District
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Richard Hamann Collection - Executive Summary of 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 2
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004676
Volume ID: VID00001
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Full Text


I A,


EXECUTIVE SUMMARY OF

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


_ _








EXECUTIVE SUMMARY


This is a summary of a larger report that examines the role of the State's
water management districts in the State's planning and growth management scheme.
Chapter I examines the statutory framework within which the water management districts
operate. Chapter II discusses existing District and local government land use and resource
planning and management programs and identifies potential conflicts between those
programs. Chapter III analyzes the "Consistency" Doctrine as that concept has evolved
in Florida and other jurisdictions. That analysis supports the authority of water
management districts to enforce consistency rules. Chapter IV discusses different land use
and resource planning and management approaches with an eye towards identifying
"entry points" into the process for the District. Chapter V evaluates the various
management approaches. Chapter VI presents alternative institutional structures for
implementing the various management approaches identified earlier in the report.
Chapter VII assimilates the information presented in the earlier chapters and recommends
a course of action for the District that includes an Action Plan for implementing those
recommendations.


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,1 the statutory mandates of the State Comprehensive Plan,2 the State
and Regional Planning Act3 and the Local Government Comprehensive Planning and Land
Development Regulation Act.4


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CHAPTER 186.
Under the Florida State Planning Act of 1972, sections 186.001 through
186.031 and 186.801 through 186.911 of the Florida Statutes, 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 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 t 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."


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."


CHAPTER 163.
The Local Government Comprehensive Planning and Land Development
Regulation Act requires that all local governments develop comprehensive plans


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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. Once a
local government comprehensive plan is adopted, all development orders and land
development regulations must be consistent with that plan.


CHAPTER 373.
The Florida Water Resources Act of 1972 created five water management
districts as the primary instruments of management for the State's water resources.5 Each
district is governed by a Governing Board comprised of nine gubernatorial appointees,
subject to confirmation by the Senate. The residency of the members of the governing
boards of each of the districts is specified in the Act.6 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.


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 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.7 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. 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.


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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

1.

The Districts' Involvement in Planninn
The role of the water management districts in the State's comprehensive
planning scheme is unclear. 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.
The districts also prepare capital improvements programs that have a short
term focus. 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 planning role of the South Florida Water Management
District is review and comment on proposed developments of regional impact. 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


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maintenance of effective partnerships between this agency and local governments in
matching water resource management efforts with local needs." 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 Resource
Planning Department is active in providing assistance to local governments that will help
local governments to prepare comprehensive plans that consider water resources, through
provision of data and technical expertise to enhance the planning efforts of local
governments. The focus of the Office of Resource Assistance is the provision of services
to local governments to achieve water resource goals in addition to comprehensive
planning assistance.
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 new
Department of Construction Management's objectives are to identify and replace
deteriorated or damaged 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.
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


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permitting programs authorized by the Water Resources Act.
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.8 The legislature directed that
uponpn adoption of such performance criteria by the district, the [DER] shall not require
a separate groundwater permit for permitted stormwater facilities within [SFWMD]."9
4.
Land Acquisition
The Real Estate Division of the Department of Land Management acquires
land needed for works of the District, acquires land under the Save Our Rivers program,
and manages those properties. In addition to acquiring needed land, the Department
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.


B.
LOCAL GOVERNMENTS ROLE
1.
Plan Preparation and Amendment
The Local Government Comprehensive Planning and Land Development
Regulation Act establishes the basic framework for local planning in Florida. Typically
the Local Planning Agency is a planning and/or zoning commission or board that acts in
an advisory role to the governing body. A professional staff, usually a department level
agency, provides staff support for the local planning program. Many local governments
have advisory task forces that are involved in the development of comprehensive plans
or plan updates.


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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. Although 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, local
governments within the District enforce antiquated regulatory concepts like variances,
special exceptions, boards of appeal and/or adjustment.


C.
CONFLICTS CREATED BY EXISTING PROGRAMS
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. Although the plans and
actions of the water management districts, as functional state agencies, are required to
be "consistent" with the State Comprehensive Plan, there is no linkage between the two
parallel tracks of "consistent" plans and regulations.


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STATE OF FLORIDA
PLANNING CONSISTENCY REQUIREMENTS


Functional
Agency
Plans
I


Regional
Policy
Plan


V


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


Agency
Permitting
Activity


Local Gov't.
Permitting
Activity


KEY:
---> Consistency Requirement
----> Consideration Only
=--> Missing Linkage


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CHAPTER m
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.'0 Consistency is a concept of
governance that contemplates that public policy should be made on the basis of
competent, comprehensive information and that once made, these policies should guide
or control decisions in regard to individual interests.
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," as are regional policy plans.12 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.'3


A.
JUDICIAL CONSIDERATION OF THE CONSISTENCY
DOCTRINE IN FLORIDA
Notwithstanding the mandatory consistency standard in the Planning Act,
the Florida courts' initial response to the consistency requirement was that a plan "is only


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a guide" and strict compliance with a plan was not required.'4 A recent Third District
Court of Appeal decision indicates however, that the consistency doctrine is evolving and
that strict compliance with adopted plans is becoming the rule of law in Florida. In
Machado v. Musgrove's the Third District 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. Most recently in McGaw v. Metropolitan Dade County16 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.


B.
STATUTORY AUTHORITY OF THE DISTRICT
IN REGARD TO REQUIRING CONSISTENCY
Administrative agencies have only that authority which is authorized by
legislative enactment. The procedural requirements of the Administrative Procedures Act
governing rulemaking, which control all rulemaking by the water management districts,
do not limit the substantive authority of the District. 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. It is well-established that powers are implied if they are
reasonably necessary or appropriate to achieve the enumerated objectives of an act.17
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 provisions of the State Comprehensive Plan, the State and
Regional Planning Act and the Local Government Comprehensive Planning and Land
Development Regulations Act.
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


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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.18


C.

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, as evidenced by the plain language of the Act.
One of the Act's express intentions is to enable local governments to "encourage the most
appropriate use of land. water, and resources, consistent with the public interest ....19 At
the simplest level, the integral relationship between land and water is made cear by the
fact that the Legislature of the State of Florida has defined 'land" to include water.20 A
direct linkage is also evident in the Legislature's express intention that "future growth
and development planning reflect the limitations of the available ground water or other
available water supplies.21 Another explicit legislative recognition of the integral nature
of land and water resources is found in the declaration of policy for 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), which states that adequate planning of
growth and development is necessary to "provide optimum utilization of our limited
resources.'22 Assuming 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


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"arbitrary or capricious."2


D.
CONSISTENCY RULES ARE NEITHER "ARBITRARY" NOR "CAPRICIOUS"
Considering the extremely broad language of the Florida Water Resources
Act of 1972,2 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."25


CHAPTER IV
LAND USE & RESOURCE PLANNING
AND MANAGEMENT APPROACHES


A.
GENERAL CONSIDERATIONS
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
land use map; preparation of land development regulations; and development permitting.
The existing statutory planning structure may provide the water management districts
with additional opportunities for developing entry points into the local process.


1.
Data Collection
Local planning could benefit significantly from water resource data that is
a normal product of the districts, but would be expensive and time consuming for local


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governments to assemble. Data mapping is another area of complex planning activity
that could be supported by the expertise and equipment of the water management
districts.
2.
Policymakin
Policy making 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. Similarly, the districts
should consider the substantively broader perspective of local governments.
3.
Future Land Use Plan Map
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. The resource
capabilities of the districts may make complex mapping problems financially feasible for
local governments.
4.
Land Development Regulations
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 can participate in the land development
regulation preparation process without intruding on local prerogatives. The Resource
Control Department of the South Florida Water Management District retains membership
on numerous local government land review committees and, upon request, reviews and
comments on proposed land development codes.


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5.
Coordinated Permitting
Coordinated permitting would allow for more efficient integration of the
district programs with local planning and land development regulation.
6.
Fiscal Implications
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. However, 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 and implemented without the benefit of the districts' on-going
programs in water resource planning and management.


B.
PLANNING ASSISTANCE
There are many ways that the districts could contribute to local land use
planning and management ranging from legally mandated consistency to participatory
support. There are 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.


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1.
Mandated Consistency
Ideally, 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. 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 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 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.
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.
2.
Support of Local Plarming
A measure of horizontal consistency can be achieved through a "technical
assistance" approach to planning in which 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.


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a.
Information
The least intrusive of the planning assistance approaches is the "information
approach", which rlies on a theory of governance that competent decision-making can
be achieved if comprehensive and competent information is available to the decision
maker. This approach holds that providing local government with the requisite quantum
and quality of information is one way of achieving consistency. Unfortunately, this
theory depends on a level of local expertise that does not exist in most local
governments. An important drawback to this theory is that it relies on the theory of
"parallel evolution" or "coincident results," which is not supported by either anecdotal or
empirical evidence.
In the final analysis, the regularized provision of information to local
planning programs in regard to water resource issues 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. Although the cost of such a program for a district with dozens of
local governments may be prohibitive, 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.
c.
Technical Expertise
One form of assistance that is particularly well-received is assistance with
complex tasks that exceed local substantive and financial capacities, such as computer


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managed information and mapping.
d.
Financial Assistance
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. This process has
proved successful in New Jersey.
3.
Review and Comment
An alternative approach to planning assistance is in the form of review and
comment during the plan preparation process. 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. Experience with review and comment elsewhere is not encouraging. For many
years the federal government employed review and comment as a vehicle for improving
the quality of state and local decisionmaking through the A-95 review program, with
little success.


C.
COORDINATED PERMrITING
A second major set of coordination approaches involve a linkage between
the permitting activities of the districts and local government. 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.


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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. The principal report examines the
successes and failures of federal/state coordination, particularly the Environmental
Protection Agency's delegation of permitting responsibility to states and the role of the
Army Corps of Engineers, in order to facilitate 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.
In order to carry out an effective delegation program, it would be necessary for the
District to identify the minimum procedures and standards that would have to be in
effect in order to carry out the concept and 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.
2.
Consolidation
The converse of delegation is consolidation of permitting authority at the
water management districts, including development review, or at least review of
particular classes of development or of developments in particular areas such as sensitive
water resource areas. The obvious benefits to such an approach would be full


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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.
3.
Integrated Permittin
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 allow
local governments to 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.

4.
Non-Judicial Appeals
Another land management approach that could be employed would be a
structure that allows the water management districts or local government to appeal each
others' decisions to a higher, non-judicial authority on the grounds that the decision is
inconsistent with the appealing body's plans. The advantages of such a program are that
the program is not "triggered" until there is an unresolved conflict; a non-judicial appeal
is a far less expensive and time-consuming alternative to judicial review; and 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 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.
Virtually all of the management approaches described offer improved
conservation and use of natural and financial resources, even if they involve additional
public or private investment. There are substantial opportunities for improved
coordination and consistency between land use planning and management and water
resources planning and management. Although the opportunities are not "free," 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.


CHAPTER VI
ALTERNATIVE INSTITUTIONAL STRUCTURES
FOR COORDINATED WATER RESOURCE PLANNING AND
MANAGEMENT AND LAND USE PLANNING AND MANAGEMENT
Six alternative institutional structures were 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. There is
a direct correlation between effectiveness and cost; the greater the judged effectiveness -


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- the greater the public cost, at least in terms of the budgeting of public revenues.
1. The Delegation Model contemplates that District permitting
responsibilities (surface water management, water use, well construction, etc.) would be
delegated to qualifying local governments. In order to qualify a local government for
delegation of all or a part of the District's permitting responsibilities, the District would
establish criteria that 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.
2. The Comprehensive Plan Consistency Mandate Model is a program that
would require that local government comprehensive plans be consistent with a water
resources management plan. Just as local government comprehensive plans are required
to be consistent with the State Comprehensive Plan and regional policy plans, local
government comprehensive plans would be required to be consistent with established
plans of the District. In order to implement the Comprehensive Plan Consistency
Mandate Model, the District would have to prepare and adopt a specific management
plan with which local plans would have to be consistent and the District would have to
establish a local government comprehensive plan review process for a determination of
consistency.
3. The Administrative Appeal Model contemplates that the water
management districts and local governments would have a highhe' authority to appeal
to in the event of a disagreement in regard to a proposed development. The appeal
could be on the record prepared by the initial decisionmaker or could be based on a de
novo record compiled by a hearing officer pursuant to rules of procedure for
administrative hearings.
4. Under the Regional Planning and Land Use Control Model, primary
responsibility for water resources and land use planning and management would be
assigned to the water management districts. The districts would prepare comprehensive


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resource and land use management plans and would implement those plans through

capital investmentand development permitting. Local governments would not participate

in land use planning and management except where no greater-than-local resource is

involved, or where the local government comprehensive plans and land development

regulations are approved by the district as meeting minimum standards for approval.

5. Under the Interagency Coordinating Committee Model, a committee is

established with members from various governmental agencies. The committee meets

periodically to share information and discuss issues of common concern. Where conflicts

arise between agencies, the Committee can act as a conflict resolution panel, though

most such committees have no direct authority and serve only as a review and comment

authority.

6. The Planning Support Model contemplates that the planning expertise

of the District would be directed toward support of local government comprehensive

planning in one or more of the following ways: background data and information

supply, planning analysis assistance, professional staff assistance and review and

comment service.

The following chart summarizes the complete analysis of these institutional

models which is included in the principal report:

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


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CHAPTER VII
RECOMMENDATIONS
In developing the recommendations included in this report, a number of
assumptions were used:
1) In order to efficiently and effectively manage
water resources and land use within the District
it is necessary that water resources planning and
management and land use planning and
management be substantively consistent.

2) That land use planning and management
should be consistent with District water
resources policies.

3) That District permitting activities should be
consistent with local comprehensive plans.

4) That District water resources permitting
activity should be timed and coordinated so as
to not interfere with the integrity of local land
use decisionmaking, and to the extent possible,
the timing of District planning and permitting
activities should defer to local government
determinations as to whether a proposed
development is consistent with the local
government comprehensive plan.

5) To the extent possible, recommended
programs should be based on available authority.
Additional legislation should be viewed as a
remote opportunity in terms of time and
achievability.

6) Duplication of District staff technical
capability at the local government level is not
desirable, except insofar as the enhanced
expertise of the local governments decreases the
duties of the District staff.

7) Local prerogatives in regard to local land use
issues should be maintained.

SOUTH FLORIDA WATER MANAGEMENT DISTRICT: Executive Summary Page 23









8) Simplicity is a virtue.


A.
ENHANCED PLANNING
The District needs to better tailor its planning outputs in order to more
efficiently guide local planning and land use decisions. Planning outputs should be "user
friendly" to local government, both in terms of local government's ability to understand
and use the substance of the District's planning, and in terms of the ease with which
District plan elements can be incorporated in local government comprehensive plans. The
District should prepare and properly format background information and data and make
it available to local governments. The District should prepare a groundwater resources
policy plan and water resources land capability map.


B.
COORDINATED AND CONSISTENT PERMITTING
The second major "entry point" for improved coordination and consistency
between water resources planning and management and land use planning and
management occurs during development permitting. We recommend that the District
implement the following programs to improve coordination and consistency between
water resources planning and management and land use planning and management.
-- adopt a rule providing that applications for district permits shall not be
considered by the District until a local government has determined that the proposed
development that will be served by the activity sought to be permitted by the District
is consistent with the adopted local government comprehensive plan. If the District is
not comfortable with the adoption of a consistency rule under existing authority, the
proposed legislation that would amend either Chapter 163 or 373 to expressly authorize
consistency rules is included in the principal report.
-- negotiate individual "agreements" with each local government in the District in


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regard to coordinated permitting, tailoring the specific nature of the coordination to the
particular local government.
establish a series of subdistrict permitting offices.
-- prepare'a comprehensive set of water and related environmental resource
performance standards that local government can incorporate in local land development
regulations.


C.
ACTION PLAN
In order to effectively and efficiently implement the recommendations of
this Report, it is necessary for the District to implement an "action plan" of discrete steps
that will lead to realization of the objectives of the study -- coordinated water resource
and land use planning and management. The Action Plan for coordinated and consistent
water resource and land use planning and management is the parallel implementation of
each of the recommendations, subject to the fiscal and political realities of the District,
in the context of an on-going monitoring program that measures the achievement of
programs that are put in place. To the extent that the District must choose between the
recommendations, priority should be given to the planning recommendations.
Of critical importance is the refinement of the District's planning programs.
Land use must be based on water resources and the District needs to more clearly assess,
evaluate and plan for water use throughout its jurisdiction. The priority development of
land use capability maps, would result in a planning instrument that we believe could
serve as a guiding instrument for coordinated and consistent water resource and land
use planning and management. It is imperative that the District focus its considerable
talents on a comprehensive water resource planning instrument that can serve as a guide
not only to District actions but also to local government planning and regulatory actions.
In regard to the permitting programs, we recommend that the District give
priority to the cooperative efforts to coordinate permitting activities, and that the


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recommendations for compulsory programs of consistency be deferred, unless a propitious
opportunity for favorable legislation arises. In the face of legislation in the Weidva River
Act to the contrary, if the Joint Administrative Procedures Committee persists in denying
the District's authority, it is difficult not to recommend priority for establishing legislative
authority to implement consistency between District permitting and local government
comprehensive plans.
Beyond these suggestions, the District's Action Plan should be a
commitment to move forward on an immediate basis to implement all of the
recommendations. The present Fort Myers Area Office is well suited to the
implementation of the recommendation that the District operate its permitting out of
subdistrict permitting offices. The operation of a demonstration program for a subdistrict
office out of the Fort Myers office would enable the District to fine tune the program of
subdistrict offices before implementing it district-wide. Similarly, a demonstration
program for coordination agreements with the local governments located in Lee County
would provide the District with the opportunity to explore the program of coordination
agreements by entering into such agreements with diverse local governments. Both the
local governments that enter into coordination agreements and the District would benefit
from the improved access that a Fort Myers subdistrict office would provide.
Subdistrict Offices. Lee County is an appropriate place for a demonstration program to
implement the recommendation of a subdistrict permitting office. The County is an
unusually environmentally sensitive area, even by Florida standards. Within its
boundaries are a number of coastal aquatic preserves, the Pine Island and J.N. "Ding"
Darling National Wildlife Refuges, important national and state parks, the Six Mile
Slough, and the Flint Pen Strand and adjacent wetland areas. In addition, Lee County
faces severe water shortages given its very limited supply of groundwater and its
increasing population growth and accompanying development. The South Florida Water
Management District has long recognized the special needs of Lee County and has
accordingly targeted that county for special attention. A Lee County subdistrict office


SOUTH FLORIDA WATER MANAGEMENT DISTRICT: Executive Summary Page 26


-----~'








would enable the District to provide permit applicants in Lee County, which is relatively
remote from the District's offices in West Palm Beach, a more efficient permitting
process.
The most effective implementation of this recommendation would require
integrating the permitting office into the present District area office. The new location
of the area office, like the office's former location, is a few blocks from the County
offices. The District has already considered delegating review of surface water
management applications to area offices. In 1988, the Resource Control Department
recommended that the District wait and examine the area office permitting programs of
the St. Johns and Southwest Water Management Districts before implementing programs
of its own. This report recommends the implementation of subdistrict permitting offices
and that recommendation should not be delayed another year in order to observe the
experience of other districts. The presence of an area office in Fort Myers will facilitate
the implementation of subdistrict permitting and will support rapid integration of
permitting into the duties of that office. As discussed in the report, District permitting
at the local level will not only allow applicants better access to permitting decisions, but
the opportunity for informal and formal coordination between the District and local
governments is substantial.
An important issue that must be addressed concerns what permitting will
be handled in the subdistrict offices. The District requires the following permits unless
an activity is exempt by law or District rule: an individual or general water use permit,
a water well permit, an individual or general surface water management permit, an
artificial recharge permit, and a works of the district permit. Ultimately, all permitting
would best be handled in the area office, because all District permitting is interrelated
with local government permitting to varying degrees. Initially, however, the District
should implement a local surface water management permitting program. If the Fort
Myers Area Office were to handle all surface water management applications, there
would be a transfer of eight existing positions to Fort Myers and the addition of one to


SOUTH FLORIDA WATER MANAGEMENT DISTRICT: Executive Summary


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two clerical workers. Caution and minimal disruption of District personnel support
implementing a general permitting program for the first year of subdistrict permitting,
then including individual surface water management permitting and gradually increasing
the permitting functions handled in the area office.
By contrast, training considerations support placing all surface water
management permitting in the area office. Area office permitting involves the transfer
of existing positions, not the creation of new positions; therefore, although some staff
members may transfer to the area office, the transfer of existing positions from the
District office to the area office will mean that some staff members will opt to not follow
their positions to the area office and new personnel will have to be hired and trained.
The recent report by the District "Review of the Rules and Enforcement Programs of the
South Florida Water Management District Pertaining to the Pollution of Surface Waters"
was written in response to the Surface Water Improvement and Management Act of 1987
(SWIM), which requires the District to review its rules as they pertain to pollution of
surface waters to strengthen those rules to better protect surface waters. The District
report suggests a number of specific changes to be adopted immediately, including
changes in permitting criteria. Given the changes wrought by SWIM, a strong argument
could be made that this is the time to train all employees that will be handling surface
water permitting, and any change in personnel should precede training. The District
should decide the rate at which it will implement permitting in the area office based on
the competing factors discussed above. Whether or not all surface water management
permitting should immediately.be handled in the area office will depend to a degree on
an evaluation of the training issue by District staff.
One of the benefits of subdistrict offices is the ease with which District staff
could arrange joint permitting conferences. The permitting review program of the
Underground Injection Control Subsection of the Florida Department of Environmental
Resources provides an example of a program that has successfully implemented a
program of joint review. The program provides a review process that enables a permit


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applicant to come to one place and have questions regarding his or her application
answered. The process involves a mechanism called the Technical Advisory Committee.
The committee is chaired by a representative of the DER district office which governs the
proposed application. Other members of the committee are affected agencies and
governments, including affected water management districts. The benefits of this forum
are that it provides affected agencies and governments with necessary information
regarding one another's goals and standards. If the Lee County subdistrict permitting
office were to implement a similar review process, it should encourage the participation
of affected local governments. Other potentially affected agencies or governments are
the EPA, DER, and Army Corps of Engineers.
If District staff decide that even joint hearings would be logistically difficult
and time consuming, there are a number of alternatives. One alternative would be for
the various parties to communicate via written versus spoken word. The applicant would
submit its application to the subdistrict office, but before approving the application, the
District would solicit comments from the other governments and agencies involved,
primarily the local governments involved. Another alternative would be to limit hearings
or meetings to permits of a certain size.
The subdistrict office should establish rules of procedure that govern its
permitting activities. We recommend a procedures manual linked to the local programs
within the subdistrict area and that local permitting authorities be given an opportunity
to review and comment in regard to the rules of procedure prior to their adoption by the
District.
Coordination Agreements. An advantageous way to implement the coordination
agreement recommendation would be the establishment of a demonstration program in
which the District would enter into coordination agreements with appropriate local
governments in Lee County, as determined by the District. The establishment of such
a program would give the District the opportunity to work the bugs out of the process
prior to establishing formal rules for such agreements. The local governments found in


SOUTH FLORIDA WATER MANAGEMENT DISTRICT: Executive Summary


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Lee County range from rural to urban and resort to farming communities. That diversity
would provide the District with necessary experience in developing coordination
agreements that are best suited to the expertise and ability of the local government
involved. In addition, the existence of a demonstration program would allow the District
to "prove" that increased efficiency and effectiveness can be achieved through coordinated
permitting. Given the benefits of proven increased efficiency and effectiveness and
enhanced planning support, we are confident that most local governments would be
interested in participating, particularly as the District gets its computerized geographic
information system up and running. The establishment of a demonstration coordination
agreement program would be relatively easy to accomplish.
The first step in the process of establishing a demonstration program would
be for the District to prepare proposed coordination agreements for each local
government in Lee County for which the District determines that coordinated permitting
would be appropriate. Armed with a proposed agreement, the office of the chief
government official of the local government should be approached with the concept. The
predicate for the discussions should be the interrelated nature of water resource and land
use planning and management and the opportunity for increased effectiveness and
efficiency. We believe that it is important that the demonstration project for
coordination agreements provide enhanced planning and enhanced planning support of
the local governments' efforts. A commitment to priority mapping of Lee County as a
part of the District's commitment to improved, computerized geographic information
system should be a powerful incentive to local government participation.
A prerequisite to coordination agreements between the District and local
governments would be the adoption by the District of a rule specifying the procedure to
be followed in negotiating a coordinated permitting contract and the range of
coordinated permitting programs that can be employed. We recommend that the
coordination agreements be authorized so that opportunities for coordination range from
full delegation of most District permitting responsibilities to staff support in the review


SOUTH FLORIDA WATER MANAGEMENT DISTRICT: Executive Summary


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of applications for development review. Permitting for "Works of the District" should not
be delegated to a local government, because the District's rules emphasize the critical
importance of Works of the District and the need to retain all discretion regarding
permitting for use or connection to works or lands of the District. In addition, the
District should retain review and comment power over applications for developments of
regional impact. We assume that District permitting in regard to agricultural activities
should remain with the District, because the local governments have a limited role in
planning for and managing agricultural activities. Local government permitting decisions
would be subject to the substantive standards currently in effect for District permitting
decisions and an agreement would provide for the suspension of a local government's
delegated permitting authority if the District determined that the local government was
not adhering to the terms of the agreement. Each coordination agreement should
provide for the ability of the local government to refer any application for a permit to
the District for technical review. The location of the subdistrict office in Fort Myers will
facilitate such technical review.
The coordination agreements should be adopted as rules of the District.
Each agreement should contain, at a minimum, the following elements:
1) A preamble setting out the purposes of the agreement.
2) A statement of authority and authorization.
3) A statement of offer and acceptance constituting an enforceable
agreement.
4) Language describing agreed upon coordinated permitting.
5) Language describing the minimum permit review procedures to be
employed by the local government in the issuance of permits pursuant to the
agreement.
6) Specific standards, including cross-references to statutes and rules,
controlling permits to be issued by the local government.


SOUTH FLORIDA WATER MANAGEMENT DISTRICT: Executive Summary


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7) Language describing the legal status of permits issued by the local
government pursuant to the agreement.
8) Language requiring the local government to make periodic reports to
the District m regard to permits and compliance inspections in regard to permits
issued pursuant to this agreement.
9) Language providing for the suspension of the agreement in the event
the local government fails to adhere to the requirements of the agreement.
10) Language preserving the right of the District to seek judicial relief in
the event the local government acts contrary to the agreement or any provision of
law.
Ideally, the coordination agreements should refer to and mandate
conformance with water resources policies, level of service standards and water resources
land capability maps adopted by the District in accordance with the recommendations of
this Final Report and Recommendations. In the event that an agreement is negotiated
in advance of the District's implementation of these recommendations, then the
agreement should make provision for conformance with those programs when they
become effective. It is not recommended that a coordination agreement be deferred until
the other recommendations are implemented. If there are concerns in regard to the need
for coordinated implementation of all of the recommendations, then an incremental
program should be established by rule with the coordination agreement as a vehicle for
permit delegation.
3.
SUMMARY
The above demonstration programs present specific directions for
implementation of the recommendations found in this report. It should be remembered
that none of these recommendations stand alone. Both of these demonstration programs
should be implemented in conformance with the other recommendations of this report,
including water resource policies, level of service standards and water resource land
capability maps.


SOUTH FLORIDA WATER MANAGEMENT DISTRICT: Executive Summary


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1. Fla. Stat. Ch. 373 (1987).


2. Fla. Stat. Chapter 187 (1987).


3. Fla. Stat. Chapter 186 (1987).


4. Fla. Stat. secs.163.3161 et sea. (1987).


5. Section 373.069 of the Act, as amended, sets forth the five water management district boundaries, one
of which is the South Florida Water Management District.


6. See Water Management Districts, Chapter 88-242, sec.1 (1988)(to be codified at Fla. Stat.
sec.373.073(b).


7. The districts have participated in the area of critical state concern process on a district-initiative basis,
however, from the district's perspective the ACSC process is not significantly different from other local
government planning process.


8. Fla.Stat. sec.403.812(c) (1987).

9. d.

10. Bosselman, Feurer and Siemon, The Permit Explosion: Coordination of the Proliferation (U.LI.1975)


11. Fla. Stat. sec.186.022(2) (1987).


12. Fla. Stat. sec.186.508 (1987).

13. Fla. Stat. sec.163.3177(9)(c) (1987).


14. See City of Gainesville v. Cone, 365 So.2d 737 (Fla. 1st DCA 1979).


15. 519 So.2d 629 (Fla. 3d DCA 1987).

16. 13 FLW 1704 (Fla. 3d DCA July 19, 1988).

17. See General Telephone Co. of Florida v. Florida Public Service Commission. 446 So.2d 1063 (Fla.
1984).


SOUTH FLORIDA WATER MANAGEMENT DISTRICT: Executive Summary


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18. Wekiva .iver Protection Act, Chapter 88-121, sec.2 (1988)(to be codified at Fla. Stat.
sec.373.415(5)) (emphasis added).

19. Fla. Stat. sec.163.3161(3) (1987) (emphasis added).


20. Fla. Stat. sec.163.3164(10) (1987) (emphasis added).


21. Fla. Stat. sec.373.0395 (1987) (emphasis added).


22. Fla. Stat. sec.380.021 (1987) (emphasis added). The statute goes on to provide:

In order to accomplish these purposes, it is necessary that the state
establish land and water management policies to guide and coordinate
local decisions relating to growth and development; that such state land
and water management policies should, to the maximum possible extent,
be implemented by local governments through existing processes for the
guidance of growth and development ....


23. See General Telephone Co.. 446 So.2d at 1067.


24. See Surface Water Management Permit No. 50-01420-S. issued to Mr. Geor2e Michael Challancin and
Mr. James Richard Challancin. J-Mark Fishing Village by South Florida Water Management District v.
The Florida Land and Water Adiudicatory Commission and Florida Audubon Society and Audubon Society
and Audubon Society of the Everelades. 515 So.2d 1288 (Fla. 4th DCA, 1987).


25. It is no coincidence that the State Planning Act and the Water Resources Act were adopted in the
same year. See generally DeGrove, Land Growth and Politics, 106-116 (Washington, D.C. 1984).


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