WATER POLICY UPDATE -- SEBC 1996
The issue that FHBA faced this past year including this past
session was distribution of water supply -- how can water in
Florida be allocated so that both an adequate and affordable supply
is maintained for all users? Stated differently, how will the
supply of water be distributed so as to allow (by not depleting the
resource) continued growth along the coasts without affecting
growth in the inland areas, and accommodating the needs of
residential, commercial, agricultural, industrial and others?
This past session, the W.M.D.s proposed a "regulatory,"
"scaracity," "no-growth" approach to solving the water supply
problem instead of focusing on producing enough water to address
all needs. New "planning" mandates were proposed without funding
This was counter to FHBA policies and FHBA successfully
opposed any new planning mandates without funding. FHBA argued
successfully that we were deceived once in the mid-l180s when we.
were promised infrastructure funding in exchange for growth
management but all we ended up with was new planning mandates with
On the other hand, this past session FHBA and the development
community supported a recurring dedicated source of funds being
made available to local governments in the form of up to .25 of
existing W.M.D. millage for alternative water supply infrastructure
development. Yet, the W.M.D.s, while supporting "new" planning
mandates opposed allocating any funds for water supply development,
even from existing sources. The end-of-session result: no bill
passed which significantly addressed the water supply issue from a
statewide perspective. The bulk of the water management district
study commission recommendations, which got caught up in water
planning issues, also did not pass.
The only water-related legislation which passed during the
1996 legislative was CS/CS/HB 2385/2399 dealing with the
Hillsborough, Pasco & Pinellas problems. That bill dealt with
minimum flows and levels affecting those counties but significantly
provided for independent scientific peer review regarding the
establishment of MF&L where they're considered by any W.M.D. and
also significantly provided the Governor's Office with line-item
veto authority over all five W.M.D. budgets.
It is still too early to tell where the Governor's Office will
fall-out on the water supply issue for the 1997 legislative
session. If the Governor's Office does not push a water agenda, it
is not likely that there will be a bill. On the other hand, FHBA
will continue to take the approach that it cannot support any new
planning requirements or new powers given to the W.M.D.s without
new funding for water supply alternatives. In fact, we'll need to
continue reigning in W.M.D. authority.
FLORIDA HOME BUILDERS ASSOCIATION (FHBA) WATER SUPPLY POLICY
FOR THE 1996 LEGISLATIVE SESSION (Approved 2/26/96)
THE PRIME DIRECTIVE
With its abundant rainfall Florida has more than an adequate supply
of water to meet the demands of man and the natural systems. While
different areas of the state from time to time experience water
supply shortages, the provision of water is a matter of cost. The
Florida Legislature should create a public water supply program ?
designed to assure there is an adequate, affordable and .consisteni
supply of water for all present and future users in all parts of
Florida. This public water supply program, together with any
private water suppliers, should implement and provide necessary
water to accommodate growth projected in local comprehensive plans.
FHBA PUBLIC WATER SUPPLY POLICIES
1. There should be a locally/regionally based long range plan for
future public water supplies. This planning process should avoid
any unnecessary cumbersome bureaucratic review process, minimize
state involvement and oversight, rely on a system of citizen and
interested/affected person-entity involvement and enforcement and
enhance predictability in the issuance of permits.
2. While recognizing the viability and propriety of private water
supply providers and other water users, statutory changes should be
made to provide that local governments or, where created by local
governments, regional water supply authorities (RWSAs) have primary
responsibility for planning public water supply alternatives or
options and facilitating water supply development. Incentives
should be provided to encourage local governments to create RWSAs
to plan and develop regional water supplies. All local or zagional
water supply plans should have common review dates established by
the appropriate water management district (WMD). A process for
mediating and resolving conflicts between plans shall be
established and the appropriate WMD shall be a necessary party.
3. There should be a recurring dedicated source of revenues for
use by local governments and RWSAs for planning and developing long
term public water supplies. For example, FHBA supports dedicating
a portion of the water management district (WMD) millage for water
supply capital facilities expenditures.
4. The long term public water supply plans should be developed
separate from the local government comprehensive plan process. In
the meantime, the legislature should amend chapter 163, F.S., so
that local governments will not be required to base a potable water
concurrency decision on water supply availability. After
completion and approval of WMD district water management plans and
local water supply plans, the legislature should determine whether
and how these plans should be integrated with the local government
5. WMDs' primary responsibility should be to remain a regulatory
body to protect and equitably allocate our water resources. WMDs
should provide water resources information and data to local
governments and RWSAs for use in water supply planning.
6. Chapter 373, F.S., should be amended to require that each WMD
prepare a District Water Management Plan (DWMP) containing water
supply resource information and data. Chapter 373 should clearly
set forth the requirements of the DWMP, including requiring the
adoption of those parts of the DWMP that impact third parties to be
adopted as a rule.
7. In permitting consumptive water use pursuant to chapter 373,
F.S., the chapter should be amended to consider and balance, as
part of the public interest criteria, the proximity of the proposed
source of water to the area in which it is to be used and other
economically and technically feasible alternatives to the proposed
source, including conservation, desalinization, reuse, stormwater
and aquifer storage and recovery. The policy of local sources
first should be encouraged and not mandated.
8. There should be economic and regulatory incentives to promote
economically and technically feasible alternatives such as
conservation, water reuse, desalinization and the use of surface
9. Where appropriate, public lands, such as parks, forests and
recreational areas, should be made available for multiple uses
including water supply.
10. The term of water use permits should be as long as possible,
but consistent with the amount of water available to use and the
11. FHBA supports the present authority in chapter 373, F.S., to
reallocate water in Florida based on the reasonable-beneficial use
standard and opposes any policies, proposals or concepts which will
weaken the standard.
12. Accountability of WMDs should-be strengthened through enhanced
oversight by both the executive and legislative branch. In
particular, the Legislature should review and approve state water
Outline -- General Comments and Points on House Water Policy Select
Committee Bill, 3/13/96
1. In general, the FRAMEWORK for water resources planning and the
building block approach is interesting but somewhat convoluted. We
do need to develop data and establish minimum flows & levels as a
matter of public policy.
2. We should absolutely not link land use with water planning,
yet. Not even the Tshinkle Commission got delved into the details
of that task. Until we obtain information and develop some supply
plans, linkages are premature and potentially devastating.
3. Florida Water Plan should be review by legislature.
4. The bill doesn't do anything to clarify the responsibilities
that local governments currently have for water supply planning, or
more importantly, doesn't encourage any local water supply planning
and development, through economic or regulatory incentives.
5. Water management district role in water supply planning should
be supplying data and information to locals and mediating clear
conflicts in plans. This bill doesn't provide for that.
HOME BUILDER, REALTOR AND COMMUNITY DEVELOPER LEGISLATIVE ALERT
WATER SUPPLY ISSUE
-- THE FLORIDA HOME BUILDERS, REALTORS AND COMMUNITY DEVELOPERS
OPPOSE NEW PLANNING MANDATES TO RESOLVE WATER SUPPLY
PROBLEMS/SHORTAGES. WE SIMPLY CANNOT SOLVE THE CURRENT PROBLEMS
AND PERIODIC SHORTAGES IN VARIOUS AREAS OF THE STATE FROM TIME TO
TIME BY SOLELY PLANNING OUR WAY OUT.
THE ABOVE WATER BILL DOES NOTHING TO PRODUCE ONE NEW DROP OF
WATER YET, LOCAL GOVERNMENTS HAVE THE RESPONSIBILITY FOR
THE FLORIDA HOME BUILDERS AND THE DEVELOPMENT COMMUNITY HAS
SUPPORTED A RECURRING DEDICATED SOURCE OF FUNDS BEING MADE
AVAILABLE TO LOCAL GOVERNMENTS IN THE FORM OF UP TO .25 OF EXISTING
W.M.D. VILLAGE FOR ALTERNATIVE WATER SUPPLY INFRASTRUCTURE
DEVELOPMENT -- YET THE W.M.D.s, WHO APPARENTLY HAVE THE LT.
GOVERNOR'S EAR, OPPOSE ANY FUNDS, EVEN FROM EXISTING SOURCES, FOR
WATER SUPPLY DEVELOPMENT.
THE W.M.D.s PROPOSE A "REGULATORY," "SCARCITY," "NO-GROWTH"
APPROACH TO SOLVING THE WATER SUPPLY PROBLEM INSTEAD OF FOCUSING ON
PRODUCING ENOUGH WATER TO ADDRESS ALL NEEDS.
UNLESS THERE IS FUNDING TO IMPLEMENT "NEW" PLANNING
REQUIREMENTS, THERE SHOULD BE NO "NEW" PLANNING REQUIREMENTS.
CS/HB 2713 CONTAINS "NEW" PLANNING MANDATES WITHOUT FUNDING.
BECAUSE LOCAL GOVERNMENTS UNDER THE GROWTH MANAGEMENT ACT ARE
GIVEN THE RESPONSIBILITY FOR WATER SUPPLY DEVELOPMENT AND
CONCURRENCY, WMDS SHOULD NOT BE GIVEN MORE POWER AND RESPONSIBILITY
FOR SUPPLY DEVELOPMENT. BECAUSE WMDS ARE THE REGULATOR, PUTTING
THEM IN CHARGE OF THE SUPPLY SIDE IS LIKE THE "FOX IN CHARGE OF THE
HEN HOUSE." CS/HB 2713 PUTS THE WMDS IN CHARGE.
-- HOME BUILDERS AND THE DEVELOPMENT COMMUNITY WERE DECEIVED ONCE
IN THE MID- 1980'S WHEN WE WERE PROMISED INFRASTURCTURE FUNDING IN
EXCHANGE FOR GROWTH MANAGEMENT; BUT, ALL WE ENDED UP WITH WAS
PLANNING MANDATES WITH NO FUNDING. WE WILL NOT BE DECEIVED TWICE.
OPPOSE CS/HB 2713 WHICH CONTAINS "NEW" PLANNING MANDATES WITHOUT
FUNDING AND WHICH CONTAINS THE WMD'S "SCARCITY," "MORATORIA"
APPROACH TO ADDRESSING THE WATER SUPPLY PROBLEM IN FLORIDA.
WATER, WATER EVERYWHERE: NOT A DROP TO DRINK,
IRRIGATE OR PROCESS
Frank E. Matthews
Hopping Green Sams & Smith, P.A.
Over the last 24 months, everyone has suggested that water supply legislation would
dominate the 1996 legislative session. It was expected that the results of the Water Management
District Review Commission (WMDRC) and the controversy created by the water shortages in
the Southwest Florida Water Management District (SWFWMD) would create an impetus for
significant legislative revision to Florida's legislative water code. As is always true in
Tallahassee, the expected did not happen.
Regulated interests throughout the state breathed a collective sigh of relief when the only
water legislation that passed the 1996 legislative session was the CS/CS/HB 2385, which dealt
specifically with Hillsborough, Pasco and Pinellas Counties. This relatively modest legislation
provides for the priority scheduling of minimum flows aad levels for water bodies within
Hillsborough, Pasco and Pinellas Counties, culminating in the establishment of minimum flows
and levels for priority waters within those 3 counties by October 1, 1997. The bill further
provides that independent scientific peer review may be required if the facts underlying the
establishment of those minimum flows and levels are subject to dispute. Fortunately, this section
of the bill was not limited to the three counties in SWFWMD and should be applicable
statewide. On another statewide implication, it is noteworthy that the legislation authorized the
Governor to approve or disapprove, in whole or in part, the budgets of all 5 water management
The failure of either the House or Senate Select Committees on Water Policy to develop
omnibus water legislation can be attributed to the overall lack of consensus on what, if any,
action the state should take in attempting to more equitably provide and distribute its water
resources. Most regulated interests argue vehemently against the politics of water shortage.
Few, in the water consuming public, agree that legislation needs to be foisted upon the state,
based on the underlying premise that a true water shortage exist. Admittedly, certain areas of
the state have periodic water shortages and certain parts of the state have mismanaged the
volume of fresh water which is available to them. Nevertheless, the notion that rollbacks of
existing water withdrawals are necessary in order to insure a sustainable quality of life and a
vital natural system simply isn't true\ The 2 most common themes which plagued the regulated
community during the water debates was the absence of any dedicated funding to implement
water supply plans or innovations and the overall notion that the establishment of minimum
flows and levels was a euphemism for the reservation of water for natural systems at the expense
of existing and future consumptive use permit holders.
Unfortunately, 20 or more of the WMDRC's recommendations which would have
reformed the water management districts, became hostages in the water policy legislation.
Senator Charles Bronson put forth a valiant fight to incorporate WMDRC recommendations into
legislation which would establish priority schedules for the establishment of minimum flows and
levels and try-to develop incentives for the development of alternative water supplies. (See
CS/SB 1728.) This effort failed, however, due to attempts to amend the legislation with
significantly more controversial issues.
Throughout the 1996 legislative session, the simplest criticism of the draft water bills,
was the absence of additional water. In other words, nothing in the legislation would have
resulted in additional water being made available for public supply, irrigation, industrial
consumption or natural system utilization. Rather than focusing on this relatively simply
objective, which is the creation and distribution of more water for all appropriate users, the draft
legislation attempted to set forth a growth management-like planning process which could have
resulted in water being the tail which wagged the land use decision-making dog. The lesson of
growth management since 1985 has been that the implementation of a planning and regulatory
infrastructure, which is based upon unfunded capital improvements is a diagram towards
disaster. Many felt the House proposed committee bill would have added water to the existing
impediments to growth and economic development in Florida. Additionally, the Governor's
office repeatedly fought the idea that the water policy rule approved by the DEP needed
legislative ratification. Each time this subject was brought up in Committee, the idea passed,
yet each time the House leadership prepared a strike-everything amendment, the issue
disappeared. Beyond planning, funding and legislative ratification, a number of lesser issues
were generally agreed upon as reflected in CS/SB 1728. However, no significant constituency
emerged willing to advocate passage of the legislation.
The future is uncertain. Hillsborough, Pasco and Pinellas Counties will go forth pursuant
to HB 2385, but that area should not be a testing ground. Those circumstances don't exist
statewide and neither the Southern Water Use Caution Area or the Lower East Coast of South
Florida should be used as a model for water policy and supply legislation for the state. We all
benefit by more water and better water management and that should be the goal. Let's not focus
on allocation schemes based on assumptions of dwindling supply until we at least make a good
faith effort to fully supply man and nature. Alternative water supply development should not
be the exclusive domain of agriculture and industry and that seems to be the dangerous trend.
If allocation of a finite supply is the focus of legislation or regulation, that will pit urban versus
rural, public supply versus non-potable users, water rich versus water poor, coastal versus inland
and man versus nature.
Currently, miniilium flows and levels may be set ignoring the realities of existing and
future users. The existing section 373.042, F.S., provides virtually no guidance on the
establishment of minimum flows and levels and that lack of guidance was the strongest argument
in favor of passing legislation. The thought being, that some guidance is better than none. The
stronger sentiment however, was that case-by-case decisions can be administratively and legally
adjudicated and greater damage could result if flawed legislative direction was provided. For
example, it was repeatedly stated that minimum flows and levels must serve nature and be based
on "pure" science. That flawed logic, ignores the reality that science is dependent on facts.
Consequently, no minimum flow or level should be established ignoring the facts associated with
existing withdrawals or future growth demands. If man's utilization of water isn't part of the
minimum flow and level determinations, the litigation will be endless and the opportunity to
improve this issue, lost. Next year may be better, but I doubt it.
Section 373.537, Florida Statutes, is created to read:
373.537 Cap on millage.--Notwithstanding any provisions in
general or special law to the contrary, and subject to the
provisions of s. 373.503 and s. 9(b), Art. VII of the State
Constitution, the maximum total millage rate for district and
basin purposes beginning in the tax year 1996 shall be the
"rolled-back rate" as computed in s. 200.065(1). Further, within
the "rolled-back rate" the St. Johns River Water Management
District, Southwest Florida Water Management District and South
Florida Water Management District are directed to provide in
their respective annual budgets and to expend annually a minimum
of the equivalent of 0.10 mill on all taxable property within the
limits of the district on the construction of alternative water
supply projects and the implementation of water conservation
projects. Said funds shall be provided by the districts to local
governments and regional water supply authorities for said
373.1967 FinancialAssistance --
Notwithstanding any provisions in general or special law to
the contrary, and subject to the provisions of s. 373.503 and s.
9(b), Article VII of the State Constitution, the Southwest
Florida Water Management District, South Florida Water Management
District and St. Johns Water Management District are each
directed to provide in their respective annual budget and expend
annually on the projects described herein a minimum of the
equivalent of 0.10 mill on all taxable property within the limits
of the district. Said funds shall be available to local
governments and regional water supply authorities in a manner to
be determined by the districts. Said funds shall be available
only for the construction of alternative water supply projects
and implementation water conservation projects.
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