Title: Governor's Water Supply Development and Funding Work Group Pursuant to Executive Order 96-297 Final Report, Feb. 4, 1997 Draft
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Title: Governor's Water Supply Development and Funding Work Group Pursuant to Executive Order 96-297 Final Report, Feb. 4, 1997 Draft
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Governor's Water Supply Development and Funding Work Group Pursuant to Executive Order 96-297 Final Report, Feb. 4, 1997 Draft (JDV Box 39)
General Note: Box 29, Folder 3 ( Water Supply Funding & Development - 1997 ), Item 22
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004798
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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CARLTON FIELDS
ATTORNEYS AT LAW


215 SOUTH MONROE STREET, SUITE 500
TALLAHASSEE. FLORIDA 32301-1866
TEL (904) 224-1585 FAX (904) 222-0398


MAILING ADDRESS:
POST OFFICE DRAWER 190
TALLAHASSEE, FL 32302-0190


February 7, 1997


VIA TELECOPY

MEMORANDUM


TO:

FROM:

RE:


Terry Pride and Paula Allen

Jake Varn ,J C

Water Recommendations


Attached is a copy of our recommendations in a new format.
This format reconfigures the recommendations on a state,
regional, local and other format. I have not made any
substantive changes. Please review and see if this reads better.

JDV:dgb
Attachment




































CARLTON, FIELDS, WARD. EMMANUEL. SMITH & CUTLER. P.A.
TAMPA ORLANDO PENSACOLA TALLAHASSEE WE S PALM BEACH ST PETERSBURG













GOVERNOR'S
WATER SUPPLY DEVELOPMENT AND FUNDING WORK GROUP
Pursuant to Executive Order 96-297
Final Report
February 4, 1997 DRAFT


I. INTRODUCTION


Issues Background
Executive Order Charges
Formation of Committees
Problem statement/guiding principles
Acronym list


1 II. FINDINGS
2
3 The Work Group made two fundamental, related findings:
4
5 1. Lack of regional planning for water supply development and water
6 resource development is not the primary problem, lack of plan
7 implementation is the primary problem.
8
9 2. There is significant existing revenue-raising authority for water
10 projects at local, regional, and state levels. However, present and
11 projected water demands, limited natural systems, and growing
12 competition among water users suggest that additional revenue
13 sources are needed to address existing and potential problem areas
14 where supplies are or soon will be insufficient.
15
16 Two additional findings address complications in specific regions of the state:
17
18 3. The constitution caps the taxing authority of the Northwest Florida
19 Water Management District at 0.05 mills, which is one twentieth of
20 the taxing authority of the other water management districts. This
21 financial constraint seriously limits the district's ability to undertake
22 the development and implementation of regional water supply plans,
23 minimum flows and levels, and water resource development projects.


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1 4. The complexity and interdependency of water resource development,
2 water supply development, and the need for environmental protection
3 and restoration in the Lower East Coast are of such magnitude relative
4 to other areas in the state that this area may require special funding
5 sources and a different combination of sources than other areas.
6
7 II. RECOMMENDATIONS
8
9 The following Work Group recommendations are for both administrative and
10 legislative actions. Unless a recommendation specifically refers to legislative
11 enactment, it is intended to be implemented administratively.
12
13 STATE
14
15 Planning
16
17 1. There is a need for simplification and clarification of the statutory
18 water planning framework. We recommend that the Legislature
19 update Chapter 373, F.S., at a minimum to provide for one water plan
20 at the state level (rather than two). The following statutory
21 framework is proposed:
22
23 Revise section 373.036, F.S., to remove reference to the state water
24 use plan and to provide for:
25
26 a. Florida Water Plan--This would be the one state-level water
27 resources plan, addressing four areas of responsibility (water
28 quality, water supply, flood protection, and natural systems).
29 The Florida Water Plan would contain both Department of
30 Environmental Protection and Water Management District
31 objectives and strategies. The District Water Management
32 Plans would play a big role in the development of the FWP.
33 The FWP would include, among other things:
34
35 1) The State Water Policy rule (which should be renamed
36 the "Water Resources rule")
37
38 2) State water quality standards
39


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1 3) Report on the status of water supply planning (From Ex.
2 Order 96-297)
3
4 b. District Water Management Plans--These are detailed regional
5 water resources plans covering the four areas of responsibility.
6 DWMPs would include, among other things:
7
8 1) Needs and sources assessments and other technical data
9
10 2) Established minimum flows and levels
11
12 3) Regional water supply plans
13
14 2. There should be more guidance with regard to water supply
15 development and water resource development in state-level planning
16 than currently exists; not hands-on involvement, but adequate
17 guidance, based on statutory water policy. Specifically, water supply
18 development and water resource development should be addressed
19 more adequately in the Florida Water Plan and the State Water Policy
20 rule.
21
22 Development
23
24 3. We recommend that the Legislature amend s. 373.016, F.S., to
25 include a policy that the state assure protection of water resources on
26 state lands.
27
28 4. The state could enhance the acquisition of lands for recharge.
29
30 5. Florida should promote reuse to replace the use of limited supplies.
31
32
33 Regulation
34
35 6. We recommend that the Legislature establish by statute a
36 presumption of correctness or prudence by the Public Service
37 commission if DEP "approves" an improvement by a utility.
38
39 7. DEP and the PSC should consider developing a list of qualified reuse
40 and other equipment.


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1 8. We recommend that the Legislature direct the PSC, DEP, and the
2 WMDs by statute to coordinate their timeframes for cost recovery and
3 compliance with regulatory rules (especially for reuse); and direct the
4 PSC to allow a reasonable time for cost recovery (length of planning
5 period on which to base a calculation of prudent costs).
6
7 9. DEP and the WMDs must eliminate inconsistencies in their feasibility
8 requirements and criteria for reuse. (The Reuse Coordinating Council
9 meets regularly to address such issues.)
10
11 10. DEP, the WMDs, and the Department of Health must eliminate
12 inconsistencies in their reuse criteria and coordinate their efforts. We
13 recommend that the Governor's Office direct these agencies to do so
14 through executive order or other appropriate means.
15
16 11. DEP and the WMDs should explore the use of the new Administrative
17 Procedures Act waiver and variance provisions to keep up with
18 changes in technology.
19
20 12. DEP and the WMDs should work with the Environmental Protection
21 Agency and others to solve technical and related legal obstacles to
22 aquifer storage and recovery, etc.
23
24 Funding
25
26 13. The water resource problems and water supply development needs
27 vary so widely across the state that a mandatory set aside from
28 existing funding sources is not recommended.
29
30
31 14. It is in the long-term best interest of Florida for the Legislature to
32 adopt enabling legislation and to appropriate the required 20%
33 matching funds to allow the use of a revolving loan fund through
34 access to new moneys available under the 1996 amendments to the
35 federal Safe Drinking Water Act. The following is the total amount of
36 funding under this program that is available to Florida:
37
38 a. State appropriation of $8.8 million for federal fiscal year 1997
39 generates a total of $57 million.
40


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1 b. State appropriation of $6.9 million for federal fiscal year 1998
2 generates a total of $41 million.
3
4 c. Future allocations for each state will be based on a needs
5 assessment, which will likely increase the available funding for
6 Florida.
7
8 15. There should be additional funding to allow the districts or state to
9 assist in funding projects which contribute to the greater public good.
10 To be of "greater public good", a project must be of regional or
11 statewide significance, must be found to be consistent with the
12 relevant regional water supply plan and must:
13
14 a. Support establishment of a dependable, sustainable supply of
15 water which is not otherwise financially feasible;
16
17 b. Be environmentally superior to other available alternatives in
18 preventing or limiting adverse water resource impacts, but
19 requires funding assistance to make the alternative
20 economically competitive to other options; or
21
22 c. Significantly implement reuse, storage or conservation of water
23 in a manner which contributes to the sustainability of regional
24 water sources.
25
26
27 REGIONAL
28
29 Planning
30
31 16. The WMDs should conduct regional water supply planning in an open
32 public process, in coordination and cooperation with local
33 governments, private suppliers, self suppliers, and other affected and
34 interested parties. We recommend that the Legislature direct the
35 WMDs by statute to develop regional water supply plans, through a
36 public process, and require RWSPs to include, among other things:
37
38 a. Water supply development needs and water sources for local
39 government and water supply decision makers; a menu of
40 options for water supply development from which to choose.


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1 b. Needs of self suppliers, including projected future uses.
2
3 c. Identification of water resource development projects, action-
4 oriented steps for their implementation, and means of
5 implementing nonregulatory parts of plans. This includes who
6 will implement various projects, how they will be implemented,
7 and implementation schedules.
8
9 d. A financial section which includes an estimate of funding
10 needs, potential sources of funding, and the identification of
11 funding shortfalls for water supply development and water
12 resource development. When this involves multiple water
13 supply development options for local government and water
14 utilities, the WMD need only identify an estimated range of
15 funding needs, potential sources of funding, and funding
16 shortfalls.
17
18 e. Consideration of how the option or options presented will save
19 costs overall through avoiding the loss of natural resources or
20 avoiding greater future expenditures for higher-cost water
21 resource development or water supply development projects.
22
23 17. We recommend that the Legislature require the WMDs to adopt
24 portions of RWSPs by rule or order or develop or amend rules, if
25 necessary to implement the plan, to the extent of the WMDs'
26 statutory authorities. It should be made clear that a RWSP does not
27 confer authority, but reflects strategies to be implemented under
28 existing authorities.
29
30 18. We recommend that the Legislature establish a linkage between
31 regional water supply planning and water regulation. For instance, a
32 proposed consumptive use would have to be consistent (or not
33 inconsistent) with the rule-adopted portions of the plan in order to be
34 permittable.
35
36 19. With allowance for regional variations, there should be some
37 consistency in process and format among the water management
38 districts in developing their regional water supply plans and needs and
39 sources assessments. DEP and the WMDs should form a working
40 group, to reach consensus on how to achieve this consistency where


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1 practicable. DEP, through its general supervisory authority, should also
2 oversee this process, with guidance from the Governor's office (See
3 Executive Order 96-297; this process is being initiated by DEP).
4
5
6 Development
7
8 20. For purposes of this report we define and recommend that the
9 Legislature define, "water resource development" and "water supply
10 development" as follows:
11
12 "Water resource development" means the formulation and
13 implementation of regional water resource management strategies,
14 including the collection and evaluation of surface water and
15 groundwater data; non-structural programs to protect and manage
16 water resources; the development of regional water resource
17 implementation programs; the construction, operation, and
18 maintenance of major public works facilities to provide for flood
19 control, surface and underground water storage, and groundwater
20 recharge augmentation; and related technical assistance to local
21 governments and water utilities.
22
23 "Water supply development" means the planning, design,
24 construction, operation, and maintenance of public or private facilities
25 for water collection, treatment, transmission, and distribution for sale,
26 resale or end use.
27
28 21. Water resource development should support water supply
29 development and should be conducted in a manner to help ensure the
30 sustainability of water resources and of all existing and projected
31 reasonable-beneficial uses of water.
32
33 22. Water resource development should be based on aquifers and
34 watershed basins, whenever practicable.
35
36 23. Water supply development should be conducted in coordination with
37 WMD regional water supply planning and water resource
38 development.
39
40


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1 24. Water management districts are not primarily in the water supply
2 development business. We recommend the Legislature establish by
3 statute that the proper WMD role in water supply is primarily planning
4 and water resource development, but that this does not preclude them
5 from providing assistance with water supply development.
6
7 25. We recommend that the Legislature direct the water management
8 districts by statute to account for cumulative impacts on water
9 resources and manage those resources in a manner to ensure their
10 sustainability.
11
12 26. The water management districts should consider making district lands
13 available for water supply, where not inconsistent with the purposes
14 for which the land was acquired.
15
16 Regulation
17
18
19 27. In addition to the considerations for priority establishment of MFLs set
20 out in Executive Order 96-297, establishment of MFLs should be
21 directed to areas where water is being or will be developed.
22
23 28. MFLS should be made a part of District Water Management Plans.
24 They should be accompanied by plans for their implementation and
25 should be implemented in coordination with water resource
26 development and water supply development. (See also
27 recommendation 1)
28
29 29. One function of MFLs should be to help us understand what is
30 happening to the resource in sufficient time to develop water supplies
31 which will provide adequate water for all reasonable-beneficial uses
32 and prevent harm to water resources.
33
34 30. We recommend the Legislature direct by statute that:
35
36 a. If an existing flow or level in a water body is below, or is
37 projected to fall below, an established minimum flow or level,
38 DEP or the WMD shall immediately implement a recovery or
39 prevention strategy, that includes water resource development
40 and other actions consistent with their existing authorities,


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1 which will: achieve recovery to the established minimum flow
2 or level as soon as practicable; or prevent the existing flow or
3 level from falling below the established minimum flow or level.
4 b. The recovery or prevention strategy shall include phasing or a
5 timetable that will allow for water resource development and
6 water supply development, including new traditional or
7 alternative water supplies, and implementation of conservation
8 and other efficiency measures, in coordination with, and to the
9 extent practicable concurrent with, any reductions in permitted
10 allocations or withdrawals. (This is not intended to prohibit or
11 require reductions in permitted allocations or withdrawals.)
12
13 c. When establishing minimum flows and levels, DEP or the
14 WMDs shall consider alterations to surface waters which were
15 authorized by a permit issued under parts I or IV of Chapter
16 373, F.S., which are exempt from permitting under those
17 provisions, or which existed prior to those provisions, and any
18 effects such alterations have had, including any constraints
19 they have placed, on the hydrology of water courses, surface
20 water bodies, or groundwaters. This provision does not limit or
21 require water resource restoration.
22
23 31. We recommend that the Legislature authorize the WMDs to designate
24 through interagency agreement, with the concurrence of the affected
25 local government, a single affected WMD to implement under its rules
26 all or part of the applicable regulatory responsibilities under Chapter
27 373, in local governments which cross water management district
28 boundaries. We recommend the Legislature also confer this authority,
29 without requiring additional consent, where a WMD project crosses
30 WMD boundaries. We recommend the Legislature provide reasonable
31 exceptions to sections 70.001 and 373.2295, F.S., for the
32 application of this authority.
33
34
35 32. We recommend the Legislature provide by statute that, when reliable
36 data exists ensuring water supplies are sufficient for a 20-year period,
37 a permit shall be issued for that duration; that permits with a duration
38 of 10 years or more are subject to a recurring five-year review which
39 gives the public the opportunity to seek limited review to address
40 unanticipated adverse impacts on existing legal users or water


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1 resources; and that permit modifications to 20-year permits are not
2 subject to competing applications if there is no increase in the
3 permitted allocation or permit duration.
4
5 Alternative Language for Consideration: We recommend the
6 Legislature direct by statute that 20-year consumptive use permits
7 shall be issued when there is sufficient data to provide reasonable
8 assurance that the conditions for permit issuance will be met for the
9 duration of the permit. We recommend also that the Legislature
10 provide for reasonable review and any needed modification of these
11 long-term permits to ensure that permit conditions are being met, and
12 provide that modifications to these permits are not subject to
13 competing applications if there is no increase in the permitted
14 allocation or permit duration.
15
16
17 Funding
18
19 33. Generally, direct beneficiaries of water supply development projects
20 should pay the costs of the projects from which they benefit.
21
22 34. Water management districts should take the lead in identifying and
23 implementing water resource development projects; they should be
24 responsible for securing necessary funding for regionally significant
25 water resource development projects.
26
27 35. Regionally significant water supply projects serving a greater public
28 good may be funded from sources in addition to local water users and
29 other local funding sources.
30
31 36. We have preliminarily identified several potential dedicated and
32 recurring sources of funding for water resource development which
33 are candidates for future consideration. These potential funding
34 sources require analysis and assessment in conjunction with the
35 RWSPs. The unmet funding needs for water resource development
36 projects should be identified in the RWSPs pursuant to
37 recommendation 3. When the nature and scope of these unmet needs
38 have been determined, additional funding alternatives should be
39 considered based on justification presented by the requesting entity.
40


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1 The following table sets forth funding options for future consideration,
2 to be used primarily for water resource development:
3
POTENTIAL WATER RESOURCE DEVELOPMENT FUNDING OPTIONS (TABLE 1)

Option Who Who Pays? Who Spends? Estimated Amount Requirements
Collects
Allocate County Tax Real estate & loan Legislature 96/97 total = 826M Legislative
portion of doc Collector to financing 188.6M to Gen Rev authorization
stamp DOR customers potentially available for
water resource
development
Statewide State (DOR) Public (end WMDs Not yet determined Legislative
removal of consumers and authorization
sales tax water users)
exemption on
bottled water
Increase County tax Property owners in WMDs $87.5M/yr for all 5 No legislative
WMD ad collector to the district districts based on authorization
valorem tax WMDs legislative cap. needed
statutory **
caps
$101.6M state wide in
*NWFWMD addition to 87.5M above .Required
constitutional based on const cap legislative
cap limit authorization to
(0.05mil) constit. cap.
New Ad County tax Property owners in WMDs and/or To be determined Constitutional
Valorem tax collectors to WMD local govt. amendment
WMDs
and/or local
govt
Water Use WMDs Consumptive use WMDs Depends on rate per Legislative
fee permit holders 1000 gal. Assessed e.g. authorization
$.25/1000 gal if all dist
levied generates
$266.9M/yr for public
supply
Water use
fees
unmetered


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Option Who Who Pays? Who Spends? Estimated Amount Requirements
Collects
Statewide State (DOR) Public (end WMDs 270/M/yr (est at 6%) Legislative
removal of sales consumers and authorization
tax exemption water uses)
on wells and
utilities water
sales
State wide gross State (DOR) Utility- is passed WMDs Depends on rate. If Legislative
receipts tax on on to customers 2.5% is used, could authority
water be 11OM/yr.
Regulatory fees State or Co. Permit recipient State or Co. Estimated amount Legislative
minimal authorization
and/or county
ordinance
Franchise fees State or Franchise passed State or local To be determined Legislative
local govt. to customer govt. authorization
and/or contract
agreement
New taxes DOR Citizens Legislature To be determined Legislative
general revenue, authorization and
approp.
Congressional
appropriation
Congressional IRS Citizens of the State / WMD To be determined Congressional
appropriation U.S. could be substantial authorization and
approp.



37. The RWSPs could affect the existing water supply development projects of local
governments and private utilities. The RWSP should quantify these impacts and
identify unmet funding needs. These impacts which are determined to be for the
"greater public good" should be eligible for district or state assistance either from
existing funding sources or from the potential Water Resource Development Funding
sources listed in Recommendation 46. Staff suggests that this recommendation be
clarified.

38. If a water supply development project is not considered under a RWSP to be of
"greater public good," the local government or water utility may elect to use local-
option funding to cover the project costs.


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LOCAL

Planning

39. The LGCP infrastructure element (general sanitary sewer, solid waste, drainage,
potable water, and natural groundwater aquifer recharge element) should indicate
sources of water, based on the relevant RWSP or other best available data.

40. Local governments should be encouraged to use water supply sources identified in the
relevant RWSP.

41. DEP, the WMDs, DCA, local governments, and others should increase communication
and provide early technical assistance--and financial assistance where possible--to
ensure that local comprehensive plans and local government actions are coordinated
with WMD needs and sources assessments and regional water supply plans.

42. Data for local water supply planning should come from the WMDs, unless better data
is available. The WMD should be the primary source of data, but this would not
preclude a local government from using more accurate data.

43. In its review of local government comprehensive plans, DCA should rely, at a
minimum, on the WMDs for evaluation of identified water supply sources.


Development


44. We recommend the Legislature establish by statute that the proper local role (including
local governments, regional water supply authorities, and private utilities) in water
supply is primarily water supply development, but that this does not preclude local
assistance in water resource development.


Regulation


45. Wellhead protection should be encouraged, in order to protect existing and future
water supplies and public health.


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Funding


46. Local governments and water utilities should take the lead in implementing water
supply development projects. Regionally significant water supply development
projects should continue to be paid for through local water users and other local
funding sources.

47. The unmet funding needs for water supply development projects have largely been
identified in local comprehensive plans and water utility plans. While we made no
attempt to quantify the total unmet funding needs, consideration should be given to
providing local governments and water utilities additional revenue-raising options to
meet planned needs which are not inconsistent with the RWSPs.

48. We recognize that local governments already have authority for setting conservation
rates. We recommend that the Legislature give the PSC clear authority to set
conservation rates for investor-owned utilities. In addition, the DEP, WMDs, and PSC
should work in conjunction with investor-owned utilities to implement conservation
rate structures which provide incentives to customers to use less water and which do
not work as a disincentive to the utility to promote conservation.

49. We recommend that either of the two local-option funding sources identified in the
table below be further considered by the legislature to fund water supply development
requirements in local government comprehensive plans and water utility plans, as may
be requested by local government.

50. While we recommend that local referenda requirements not be attached to any
additional authority provided to local governments, we do recommend that the
Legislature establish the following policies to provide accountability and equity:

a. Local governments should expressly articulate the public policy considerations for
selecting the new funding source, how the money will be spent, and the
relationship to other existing sources of funding for water supply.

b. Local governments may use the new money on projects of primarily local benefit,
but if the project will have inter-jurisdictional impacts, it must serve a regional
purpose and be a joint project of the affected public and private jurisdictions.


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c. Where customers of private utilities and government-owned utilities contribute to
local option funding sources designated for water supply development, the
utilities serving these customers shall be entitled to share equitably in the
proceeds of the funds.

d. These new funds must not be used to replace, supplant, or support the diversion
of existing funding for water projects for use on projects or activities unrelated to
water supply development, treatment, retreatment or distribution.

51. We identified several potential new dedicated and recurring local sources of funding
for water supply development. The following table sets forth funding options for
future consideration, to be used primarily for water supply development:

POTENTIAL WATER SUPPLY DEVELOPMENT FUNDING OPTIONS (TABLE 2)

Option Who Collects Who Pays? Who Spends? Estimated Amount Requirements
Water Utilities with Utility customer Local govt./ Could be designed Legislative authority
conversation state utilities to generate any to PSC for Investor
Rate Structure oversight targeted $$ amount owned utilities.
needed Local ordinance by
governing body for
implementation
Statewide State (DOR) Public (end WMDs Not yet determined Legislative
removal of sales consumers and authorization
tax exemption water users)
on bottled water
Local option State (DOR) Public (end Local govt./ $270 M/yr (est.) At Legislative repeal
removal of sales consumer) utilities 6% (statewide. exemption from 6%
tax exemption local amounts sales tax on water,
on wells and would vary based bottled water and
utilities water on local utility provided water
sales. implementation)
Local option State (DOR) Utility is passed Local govt & Depends on rate. If Legislative
gross receipts on to customers utilities 2.5% is used, could authorization
tax on water be 110M/yr
Private Investor Private investors IOUs and unlimited
investment owner utilities or private/public partners
partners
Special Local govt. Property owners Local govt. To be determined Local
Assessments in affected area ordinance/referendum


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52. When implementing a water resource development project would be more
economically or environmentally sound than implementing one or more water supply
development projects, the local government or water utility may elect to provide local-
option funds for support of water resource development.

OTHER

53. There should be accelerated research by WMDs, Universities, and others (cooperative
efforts where possible) to remove technical obstacles to the development of
alternative sources.


54. There should be early scientific peer review for water supply-related research and
development, water supply planning, establishment of MFLs, and other technical
processes.


IV. CONTINUING ISSUES





V. APPENDICES


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