JAMES S. ALVES
BRIAN H. BIBEAU
KATHLEEN BLIZZARD
ELIZABETH C. BOWMAN
RICHARD S. BRIGHTMAN
PETER C. CUNNINGHAM
RALPH A. DeMEO
THOMAS M. DcROSE
WILLIAM H. GREEN
WADE L. HOPPING
FRANK E. MATTHEWS
RICHARD D. MELSON
MICHAEL P. PETROVICH
DAVID L. POWELL
WILLIAM D. PRESTON
CAROLYN S. RAEPPLE
DOUGLAS S. ROBERTS
GARY P. SAMS
ROBERT P. SMITH
CHERYL G. STUART




TO:


FROM:


RE:


DATE:


. PPING GREEN SAMS & SMITH
PROFESSIONAL ASSOCIATION
ATTORNEYS AND COUNSELORS
123 SOUTH CALHOUN STREET
POST OFFICE BOX 6526
TALLAHASSEE, FLORIDA 32314
(904) 222-7500
FAX (904) 224-8551
FAX (904) 425-3415


MEMORANDUM


Water Supply Coalition Members


GARY K. HUNTER, JR.
JONATHAN T. JOHNSON
ROBERT A. MANNING
ANGELA R. MORRISON
GARY V. PERKO
KAREN M. PETERSON
R. SCOTT RUTH
W. STEVE SYKES
T. KENT WETHERELL, II
OF COUNSEL
W. ROBERT FOKES


RECEIVED


JAN 13 1997

Carton Fields Talahassee
.I-9,, rn. V*n


Frank Matthews


Water Legislation


January 10, 1997


For your information, I have attached a copy of the latest version of the draft water
legislation for the Water Supply Coalition meeting scheduled for Tuesday, January 14. If you
have any questions, please don't hesitate to call.















/kkm
Attachment














DRAFT 1/10/97

1 Section 1. Section 367.021, Florida Statutes, is amended by adding new

2 subsection (14):

3 (14) "Environmentally required costs" means all reasonable expenses and a fair

4 return on the investments required to comply with federal, state, and local environmental

5 laws and regulations. The commission shall be bound by the determinations, permitting,

6 and enforcement decisions of the United States Environmental Protection Agency, the

7 Department of Environmental Protection or a Water Management District, or other entity

8 with jurisdiction to require compliance, as to (a) the need for, capacity of, and type of

9 facilities, including land and processes, required for compliance, and (b) the need for,

10 capacity of, and type of facilities, including land and processes, to be included as part of

11 any reuse system or project.

12 Section 2. Subsection (10) is added to section 367.022, Florida Statutes, to

13 read:

14 367.022 Exemptions.--The following are not subject to regulation by the

15 commission as a utility nor are they subject to the provisions of this chapter, except as

16 expressly provided:

17 (10) Any person providing only non-potable water for irrigation purposes in a

18 geographic area where potable water service is available from a governmental utility and

19 who has provided such irrigation service continually since January 1. 1985.

20 Section 3. Section 367.081(2), Florida Statutes, is amended to read:

21 367.081 Rates; procedure for fixing and changing.-

22 (2)(a) The commission shall, either upon request or upon its own motion, fix

23 rates which are just, reasonable, compensatory, and not unfairly discriminatory. In every

24 such proceeding, the commission shall consider the value and quality of the service and

25 the cost of providing the service, which shall include, but not be limited to, debt interest;


1


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DRAFT 1/10/97

the requirements of the utility for working capital; maintenance, depreciation, tax, and

operating expenses incurred in the operation of all property used and useful in the public

service; and a fair return on the investment of the utility in property used and useful in

the public service. However, the commission shall not allow the inclusion of

contributions-in-aid-of-construction in the rate base of any utility during a rate

proceeding; and accumulated depreciation on such contributions-in-aid-of-construction

shall not be used to reduce the rate base, nor shall depreciation on such contributed assets

be considered a cost of providing utility service. Thoeemmissien-shal klse-eonsider-the

investment-tfhe-utility-ita-ad-aequikl-er-faeiities-eenstuetede-te-bpee&nstefeted-i

th-pablie-hiterestwithi&a-easosble-time-a4s e-ftrer,-net-teo-xeed,-lres-enteaded

by-h-eemmissiern -24-menths-fm4-the-end- he-lstorieal-test-periedsed-to-etAfinal

rates.

L For purposes of such proceeding. to determine whether utility property

is "used and useful in the public service." the commission shall apply the following:

a. All utility property needed to serve current customers shall be

considered fully used and useful in the public service.

b. All utility property needed to serve future customers no later than 5

years from the commission's final action on a rate request as provided in paragraph (6)

below shall be considered fully used and useful in the public service.

c. All utility property needed to serve future customers 5 to 10 years from

the commission's final action on a rate request as provided in paragraph (6) below shall

be rebuttably presumed to be used and useful in the public service.

S All utility property needed to serve future customers 10 to 15 years from

the commission's final action on a rate request as provided in pararaph (6) below shall

be rebuttably presumed not to be used and useful in the public service.


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DRAFT 1/10/97

1 e All utility property needed to serve future customers 15 or more years

2 after the commission's final action on a rate request as provided in Maraeraoh (6) below

3 shall not be considered used and useful in the public service for purposes of such

4 proceeding.

5 2, Notwithstanding the provisions of sub-naraeraph 1. above, the

6 commission shall approve rates for service that allow a utility to recover the full amount

7 of environmentally required costs from current customers.

8 (b) In establishing initial rates for a utility, the commission may project the financial

9 and operational data as set out in paragraph (a) to a point in time when the utility is

10 expected to be operating at a reasonable level of capacity.

11 Section 4. Sections 367.0817(2) and (3), Florida Statutes, are amended to

12 read:

13 (2) The commission shall review the utility's reuse project plan and shall

14 determine whether the projected costs are prudent and the proposed rates are reasonable

15 and in the public interest. The commission shall issue a proposed agency action order to

16 approve or disapprove the utility's reuse project plan. The commission shall enter its

17 vote on the proposed agency action within 5 months of the date of filing. If the

18 commission's proposed agency action is protested, the final decision shall be rendered

19 within 8 months of the date the protest is filed. Any proceeding conducted to consider

20 the utility's reuse project plan under this section shall be a limited proceeding in

21 accordance with s. 367.0822 and shall only consider matters related to the utility's

22 proposed reuse project.

23 (3) All prudent costs of a reuse project shall be recovered in rates for service

24 from current customers in this limited proceeding. The Legislature finds that reuse

25 benefits water, wastewater, and reuse customers. The commission shall allow a utility to

3


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DRAFT 1/10/97

1 recover the full costs of a reuse project from the utility's curnt water, wastewater, or

2 reuse customers or any combination thereof as-deemedappepriate-by-thoeemmissien in

3 the instant proceeding.

4 Section 5. Section 367.171(6), Florida Statutes, is amended to read:

5 (6) Any county in which utilities as herein defined were regulated by the

6 commission on or after January 1, 1980, which subsequently cease to be so regulated,

7 shall, within 90 days of the cessation of commission regulation or the effective date of

8 this act, adopt and follow as minimum standards of regulation the provisions of sections

9 367.021. section 367.081, except for paragraph (4)(a), section 367.0817. and section

10 367.082, except that the word "commission" shall be read as "the governing body of such

11 county" when the context implies or admits. The authorized rate of return shall be no

12 less than the weighted cost of the capital of the utility, including debt and equity.

13 Section 6. Section 367.171(8), Florida Statutes, is amended to read:

14 (8) Each county which is excluded from the provisions of this chapter shall

15 regulate the rates of all utilities in that county which would otherwise be subject to

16 regulation by the commission pursuant to sections 367.021 and 367.0817 and section

17 367.081(1), (2), (3), and (6). The county shall not regulate the rates or charges of any

18 system or facility which would otherwise be exempt from commission regulation pursuant

19 to section 367.022(2). For this purpose the county or its agency shall proceed as though

20 the county or agency is the commission.

21 Section 7.

22 Real property owned or controlled by the state or a water management district

23 may be used for permittable water supply purposes. including water production and

24 transmission.



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DRAFT 1/10/97

Section 8. Sections 373.036 and 373.039, Subsections (16) of Section 373.019,

(10) of Section 373.026, and (33) of Section 403.061, Florida Statutes, are repealed.

Section 9. Section 373.016, Florida Statutes, is amended to read:

373.016 Declaration of policy.-

(1) The waters in the state are among its basic resources. Such waters have

not heretofore been conserved or fully controlled so as to realize their full beneficial use.

(2) It is further declared to be the policy of the Legislature:

(a) To provide an adequate. safe. dependable and affordable supply of water

for all existing and projected reasonable-beneficial uses in the state:

(bf(a) To provide for the management of water and related land resources;

f)(b) To promote the conservation, replenishment. recapturing. enhancement.

development, and proper utilization of surface wate and groundwater ground-water;

(d(e) To develop and regulate dams, impoundments, reservoirs, and other

works and to provide water storage for beneficial purposes;

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

gfl(e) To minimize degradation of water resources caused by the discharge of

stormwater,

(g)(f) To preserve natural resources, fish, and wildlife;

l)(g) To promote the public policy set forth in s. 403.021;

(i(h) To promote recreational development, protect public lands, and assist in

maintaining the navigability of rivers and harbors; and

(j(i) To otherwise Otherwise-te promote the health, safety, and general

welfare of the people of this state.





5


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DRAFT 1/10/97

1 In implementing this chapter. the department and the governing board shall construe and

2 apply the policies specified in this subsection as a whole, and no specific policy is to be

3 construed or applied in isolation from the other policies in this subsection.

4 (3) The Legislature recognizes that the water resource problems of the state

5 vary from region to region, both in magnitude and complexity. It is therefore the intent

6 of the Legislature to vest in the Department of Environmental Protection or its successor

7 agency the power and responsibility to accomplish the conservation, protection,

8 management, and control of the waters of the state and with sufficient flexibility and

9 discretion to accomplish these ends through delegation of appropriate powers to the

10 various water management districts. The department may exercise any power herein

11 authorized to be exercised by a water management district; however, to the greatest

12 extent practicable, such power should be delegated to the governing board of a water

13 management district.

14 (4) To ensure that an adequate. safe. dependable and affordable supply of

15 water is available for all existing and projected reasonable-beneficial uses in the state. It

16 is further declared the policy of the Legislature that:

17 W(a Water resource development is a primary mission of water management

18 district: and that

19 (bW Water management districts shall provide assistance to regional water

20 supply authorities. counties. municipalities, public water utilities. special taxing districts

21 or other units of local government for water supply development activities. Each water

22 management district shall exercise these responsibilities in accordance with the provisions

23 of s. 373.0831.






6


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DRAFT 1/10/97

1 ff(4) It is further declared the policy of the Legislature that each water

2 management district, to the extent consistent with effective management practices, shall

3 approximate its fiscal and budget policies and procedures to those of the state.

4 Section 12. Section 373.019, Florida Statutes, is created to read:

5 373.019 Definitions.-When appearing in this chapter or in any rule,

6 regulation, or order adopted pursuant thereto, the following words shall, unless the

7 context clearly indicates otherwise, mean:

8 0 "Water resource development" means the development and

9 implementation of integrated water resource management strategies using aquifers and

10 watershed basins as the implementation areas and including the following: collection and

11 evaluation of surface water and groundwater data: development of regional water resource

12 implementation programs: construction. operation and maintenance of maior public works

13 facilities to provide flood control. surface and underground water storage. groundwater

14 recharge augmentation, sustainability of all existing and projected reasonable-beneficial

15 uses of water, and supportive interaction with private and public water users and water

16 suppliers.

17 L "Water supply development" means the design, construction. operation

18 and maintenance of public and private facilities for the extraction of water from surface

19 waters or aquifers for treatment. transmission or distribution for sale or resale.

20 LI "Public water utility" means a governmental or private entity duly

21 authorized under state law to construct or operate public water supply systems. water

22 works systems. sewerage systems. sewage treatment works. reclaimed water systems. or

23 other public water-related facilities.





7


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DRAFT 1/10197


1 L) "Natural systems" means an ecological system supporting aquatic and

2 wetland-dependent natural resources. including fish and aquatic and wetland-dependent

3 wildlife habitat.

4 L) "Government-Owned Water Utility" means a public water utility owned.

5 operated. managed. or controlled by a regional water supply authority, county.

6 municipality. special taxing district or other unit of local government.

7 0 "Privately-owned water utility" means a public water utility owned.

8 managed. or controlled by an entity other than a regional water supply authority, county.

9 municipality. special taxing district or other unit of local government. The term

10 "privately-owned water utility" includes, but is not limited to: private utilities. investor-

11 owned private utilities, and public works corporations and public service corporations that

12 are public water utilities.

13 Section 11. Section 373.037, Florida Statutes, is created to read:

14 373.037 Needs and Sources Analysis.--

15 JU By July 1. 1997. each water management district shall delineate within

16 its jurisdictional boundaries one or more water resource implementation program areas

17 which together encompass all lands subject to the water management district's authority.

18 (2) By July 1. 1999. each water management district shall complete and

19 adopt an analysis of water needs and sources for each water resource implementation

20 area. except that the Southwest Florida Water Management District shall complete and

21 adopt its needs and sources analysis for the area described in section 373.042(2) by

22 October 1. 1997. Each analysis shall include a water resource evaluation that quantifies

23 and describes the water needs for both humans and natural systems within the designated

24 area.




8


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DRAFT 1/10/97

1 02 The water resource evaluation of the water needs of the natural systems

2 shall include:

3 (a A technical evaluation of functions and values of the existing natural

4 system components. including a verification of water needs based on seasonal

5 fluctuations:

6 (b A determination of the minimum flows and levels for the existing natural

7 systems. not including isolated wetlands. in accordance with 373.042: and

8 W A determination of the restoration needs for the area's natural systems.

9 if any. If necessary. a determination of the functions and values for the proposed

10 restoration. Based upon the proposed restoration functions and values, a determination

11 the water needs for the proposed restored natural environment.

12 41 The water resource evaluation of the water needs for humans shall

13 include:

14 faY The existing and projected needs of all human users based on 20-year

15 planning horizons and using best available information. The term "all human users" shall

16 include. but not be limited to: individual domestic use. public water supply. agriculture.

17 commerce, industry, power generation, recreation and other classes that may be

18 developed by the water management district in cooperation with representatives from

19 these user groups: and

20 (b The level of certainty associated with meeting the water needs of

21 existing and projected human users shall be a 1-on-10 year drought event.

22 (1 The water management district's shall complete an analysis of existing

23 water sources which shall:

24 a Be based on an evaluation of all best available data in the region:



9


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DRAFT 1/10/97

1 ()l Identify and propose methods for ascertaining any essential resource

2 information that may not be available: and

3 l Identify any water supply-related resource limitations: such as salt water

4 intrusion: upcoming of connate water: aquifer mining, and water quality restrictions.

5 () The water management district shall complete the needs and sources

6 analysis and shall determine whether the existing and projected needs for humans and

7 natural systems exceed existing water sources in the designated area. Each analysis shall

8 be adopted by the governing board as an order subject to review under Chapter 120.

9 (7} If a needs and source analysis indicates that needs exceeds sources in a

10 designated area. the water management district shall proceed with development and

11 implementation of

12 a A regional water resource implementation program for the designated

13 area in accordance with the provisions of 373.038. F.S.: and

14 Mhi Interim measures and remedial actions to protect the legally existing

15 water users. which shall be based on a balancing of:

16 L Existing permitted or otherwise legal uses. which uses affect the aquifer

17 or surface water body.

18 2, Existing land uses which cannot reasonably be altered.

19 3. Future water needs reasonably expected to occur in the regional water

20 supply planning horizon in the region, to the extent consistent with recovery of the

21 established minimum flow or level.

22 4 Protection of water resources, including maintenance of freshwater

23 storage and supply and maintenance of the designated uses of the aquifer, water body or

24 watercourse.

25 5. Flood protection needs.

10

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DRAFT 1/10/97

1 6. Water quality factors. including filtration and absorption of nutrients and

2 other pollutants. sediment loads, and other water quality considerations.

3 2, Functions and values of natural systems associated with coastal.

4 estuarine. aquatic. and wetlands. resources. including fish and wildlife habitats and the

5 passage of fish. estuarine resources. and the transfer of detrital material.

6 & Natural seasonal and long-term fluctuations in water flows and levels.

7 9. Other uses made of the water body. including recreation in and on the

8 water, aesthetic and scenic attributes. navigation. and other non-permitted legal uses of

9 the water source.

10 1,. Benefits and harm that will result from the interim measures or remedial

1 actions.

12 (81 If the needs and source analysis reflects that needs do not exceed sources

13 in a designated area. the water management district is authorized to:

14 (a Adopt minimum flows and levels in accordance with s. 373.042:

15 (2) Adopt reservations of water in accordance with s. 373.223(3):

16 ( Provide funding to public water utilities under s. 373.1961(2):

17 dl Provide funding to water users for the development of water resources:

18 and

19 (e) Designate certain sources for specific uses which, because of the nature

20 of the activity or the amount of water required. would result in an enhancement or

21 improvement of the water resources of the area. Such uses shall be preferred over other

22 uses in the event of competing applications under the permitting systems authorized by

23 this chapter.

24 I9) Each needs and sources analysis must be reviewed and updated by the

25 responsible water management district once every 10 years.

11


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DRAFT 1/10/97

1 MQQ Following the adoption of a needs and sources analysis that indicates that

2 a particular source is available during a 1 in 10 year drought. a consumptive use permit

3 applicant need not provide additional information to the water management district

4 regarding the availability of the source under 373.229 or any water management district

5 administrative rule or policy.

6 Section 12. Section 373.038, Florida Statutes, is created to read:

7 373.038 Regional Water Resource Implementation Proram.-

8 (1 Water management districts shall undertake a program to implement

9 water resource development. This program shall be developed in coordination with

10 public water utilities, other user groups. the department and other affected and interested

11 sons.

12 (2) The purpose of each regional water resource implementation program

13 shall be to provide for water resource development at a regional level to meet the water

14 needs of all existing and projected reasonable-beneficial users. and the natural systems

15 and groups to provide adequate. safe. and dependable supplies of water consistent with

16 the provisions of this Chapter by:

17 (a Identification of safe. affordable. and dependable sources of water for

18 use by all existing and projected reasonable-beneficial users and the natural systems:

19 fh Identification of water resource development alternatives including

20 capital improvements or facilities incentive programs: and

21 (&) Identification of reliable sources of district funding to implement the

22 regional water resource implementation programs.

23 )} The water management district shall develop water resource

24 development solutions by:




12

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DRAFT 1/10/97

1 a) Identification of surface and ground water resources suitable for water

2 resource development within each water resource implementation progrm areas based

3 upon the needs and sources developed under section 373.037:

4 l Identification of alternative regional water resources within each

5 program area including. but not limited to reuse of reclaimed water. desalination, aquifer

6 storage and recovery, surface water storage. and recapturing water which is released to

7 tideand

8 (c Identification of water resource development solutions. If existing

9 regulatory programs create barriers to implementation of solutions. those barriers shall be

10 identified and corrected or identified to the appropriate agency or the legislature.

11 f4) The governing board shall select an alternative or alternatives which

12 shall become the adopted water resource development program. The selected alternative

13 or alternatives must include an:

14 (a Estimation of water users needs for the 20 year horizon for all existing

15 and projected reasonable-beneficial use classes including natural systems. public supply.

16 agriculture. commercial or industrial. power generation. recreation and other reasonable-

17 beneficial classes which may be established by the water management district or the

18 department:

19 bal Description of the future sources of water for all needs by users class.

20 including natural systems

21 (d Description of the capital facilities necessary to implement the regional

22 water resource implementation program initiative including any necessary lands or

23 property interests:

24 fd Estimation of the funding to implement the regional water resource

25 implementation program. including a defensible cash flow analysis identifying funding to


13


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DRAFT 1/10/97

1 implement the land acquisition. construction and operation of capital facilities or

2 alternative sources if identified and funding to implement the non-capital components of

3 the initiative:

4 () Description of any cost-shared agreements if anticipated:

5 (t Identification of incentive programs:

6 (g Identification of the proposed minimum flows and levels:

7 hi Identification of any reservation of water from use by permit applicants

8 for the protection of fish and wildlife or public health and safety as provided in s.

9 373.23(3):

10 f) Identification of any use prohibitions. restrictions or designations for

11 water bodies or sources within the regional areas: and

12 fj An assessment of the preliminary costs and benefits for each proposed

13 water resource development solution and identification of the proposed funding sources.

14 The assessment of costs and funding source shall be based on whether the solution is for

15 restoration of the natural systems. future water supply for people. water supply to meet

16 minimum flows and levels of existing systems or water suoply to meet existing human

17 demands.

18 il All scientific or technical data. methodologies, and models. including all

19 assumptions employed in the model. utilized to establish an alternative shall be subject to

20 independent scientific peer review and technical validation.

21 (6) Upon adoption, the regional water resource implementation program

22 shall be subject to review as an order under s. 120.59.

23 I72 Within 90 days of a final order, the water management districts are

24 authorized to:



14

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DRAFT 1/10/97

1 (a Initiate rulemaking pursuant to ch. 120 to adopt necessary minimum

2 flows and levels described in s. 373.041:

3 n) Initiate rulemaking pursuant to ch. 120 to adopt necessary rules to

4 implement the regional water resource implementation program. except that the water

5 management districts cannot reduce the 1 in 10 year drought event level of certainty.

6 (l Initiate rulemaking to adopt reservation of water in accordance with

7 section 373.223(3): or

8 f Designate certain sources for specific uses which. because of the nature

9 of the activity or the amount of water required. would result in an enhancement or

10 improvement of the water resources of the area. Such uses shall be preferred over other

11 uses in the event of competing applications under the permitting systems authorized by

12 this chapter.

13 (8) As part of the next fiscal year's budget development and each year

14 thereafter as appropriate. the water management district shall include funding proposals

15 sufficient to implement the identified water management districts share of the program

16 including providing assistance to funding public water utilities under section 373.1961(2)

17 and providing funding. assistance or matching funds to water users to develop sources.

18 and to otherwise provide funding to implement the water resource implementation

19 program.

20 21 Within 90 days. the department will initiate rulemaking pursuant to

21 chapter 120 to adopt necessary rules to remove any identified and agreed upon regulatory

22 barrier.

23 1Q~ The water management districts shall mitigate the adverse impacts to

24 legally existing users caused by the adoption or implementation of the district water



15


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1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25


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DRAFT 1/10/97

supply program by funding the development of alternative water supply sources to offset

any loss of consumptive use.

(1J The water management district shall publish notice of the adopted

regional water resource implementation program in the Florida Administrative Code and

make copies of the regional water resource implementation program available at its

headquarters and regional offices at no charge to the public.

Section 13. Section 373.042, Florida Statutes, is amended to read:

373.042 Minimum Flows and Levels.-

(1) Within each section, or the water management district as a whole, the

department or the governing board shall establish the following:

(a) Minimum flow for all surface watercourses in the area. The minimum

flow for a given watercourse shall be the limit at which further withdrawals would be

significantly harmful to the water resources or ecology of the area.

(b) Minimum water level. The minimum water level shall be the level of

groundwater in an aquifer and the level of surface water at which further withdrawals

would be significantly harmful to the water resources of the area.



Theminimum-flow-e. d-minimum-watereveshall-be-eaeulated he-depatmnand

th-govemringbeard-sing4he-best-hiformation-availabl.--Wheft-repp iate--minimum

flow d~4eve a ealelated-toflee-ss -vriatie ---Thdepartmet-ndhe

goveriang-board-shll-a -eosider--and-at-theif-dis io--mayrovider-the

preteetief-eneoesumptive-uses-i4he-es-tabliset--flew-nmd-leve

(2) By July 1, 1996, the Southwest Florida Water Management District shall

amend and submit to the department for review and approval its priority list for the

establishment of minimum flows and levels and delineating the order in which the


16














DRAFT 1/10/97

governing board shall establish the minimum flows and levels for surface watercourses,

aquifers, and surface water in the counties of Hillsborough, Pasco, and Pinellas. The

priority list shall be based upon the importance of the waters to the state or region and

the existence of or potential for significant harm to the water resources or ecology of the

state or region, and shall include those waters which are or may be experiencing adverse

impacts and those waters which are identified as possible new water supply sources

proposing to withdraw 5 million gallons or more per day in the future. The development

of the priority list shall not constitute a point of entry to an administrative proceeding

pursuant to chapter 120.

(3) Minimum flows and levels for priority waters in subsection (2) shall be

established by October 1, 1997. Where a minimum flow or level for the priority waters

has not been established by the applicable deadline, the secretary of the department shall,

if requested by the governing body of any local government within whose jurisdiction the

affected waters are located, establish the minimum flows and levels in accordance with

the procedures established by this section. The department's reasonable costs in

establishing a minimum flow or level shall, upon request of the secretary, be reimbursed

by the applicable district.

(4) Prier-tethe-estabishment-oCi-nmum-fle- r-levels-fe-water

resoums-aeas-idetfie-an-sbseetico- -)r-ad-prioe-o-filing-eypetiti
a A- .* i -_ *_ *_ *f __* _* a- -- a I*! *- f -*--, I- Il-l


administative-hearing,--seientificer-teehaicablata-end-methedelegiess-if-in-disputershally

upon-written-sequest4e-thogoverning-board-by-esabstantiaByefSeeted-perseny-be-subject

te-independenteeientifispeeseview-.---Themembers-ofthe-peer-seview-panet-shell-be

seleete&4y-egreementef-the-parties-in-interest-within-60-days-ofter-receiptesthe-reqmms.-

In-the-event-the-peneMs-net-seleeted-within-this-time,-4hee,-spen-the-agreemensefall

parties--thetimonay-bewaivedy-es,-40seweiver-eecursy-the-governing+eerd-may


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DRAFT 1/10/97

preeeed-tesh-ta ini-m um-flewsd4evet.---The-eost-ef-he-peer-review-sha

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of4leve-is-applieable All scientific or technical data. methodologies, and models.

including all assumptions employed in the model. utilized to establish a minimum flow or

level shall be subject to independent scientific peer review. Independent scientific peer

review means review by a panel of independent. recognized experts in the field of

hydrology. hydrogeology. limnology. biology and other scientific disciplines relevant to

the discipline. The governing board shall give significant weight to the final report of the

peer review panel when establishing the minimum flow or level.


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F













DRAFT 1/10/97

1 (5 Minimum flows and levels shall be based upon a balancing of:

2 Wa Existing legal uses. where such uses significantly affect the surface

3 watercourse or aauifer.

4 &(b Hydrologic changes that have occurred as a result of alterations to

5 surface watercourses or aquifers which were authorized by permit issued pursuant to parts

6 I. I. or IV of this chapter, which are exempt from permitting under those provisions or

7 which existed prior to the enactment of those provisions, and the constraints such

8 alterations have had on the hydrology of the affected surface watercourse or aquifer.

9 ( Natural seasonal and long-term fluctuations in water flows and levels.

10 d) Flood protection needs.

S(l Protection of water resources. including maintenance of fresh water

12 storage and supply and maintenance of the designated uses of the surface watercourse or

13 aguifer

14 (f Other uses made of the surface watercourse or aquifer. including

15 recreation in and on the water, aesthetic and scenic attributes, navigation and other non-

16 permitted legal uses.

17 () Environmental values associated with coastal. estuarine. aquatic and

18 wetland systems. including fish and wildlife habitat.

19 (6 l Minimum flows or levels shall be based upon conditions in effect on the

20 date the department or governing board gives notice of its intent to adopt as a rule

21 pursuant to s. 120.54(3V(a) a proposed minimum flow or level.

22 7) Any minimum flows or levels established prior to the effective date of

23 this act shall be reestablished in accordance with the procedures and criteria set forth in

24 this section no later than October 1. 1999.



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DRAFT 1/10/97

1 (5)() If a petition for administrative hearing is filed under chapter 120

2 challenging the establishment of the minimum flows or levels, the report of the

3 independent scientific peer review is admissible as evidence in the final hearing, and the

4 hearing officer must render the order within 120 days after the filing of the petition. The

5 time limit for rendering an order shall not be extended except by agreement of all the

6 parties. To the extent that the parties agree to the findings of the peer review, they may

7 stipulate that those findings be incorporated as findings of fact in the final order.

8 Section 14. Section 373.0421, Florida Statutes, is created to read:

9 373.0421 Implementation of Minimum Flows and Levels.

10 LU When the governing board determines that minimum flow or level is

11 reasonably expected to be violated within 5 years, the department or governing board

12 shall immediately commence development of additional water supplies and may

13 implement interim measures and remedial actions based on a balancing of the criteria set

14 forth in subsection (3) to prevent the violation of established minimum flows or levels.

15 f2 When. at the time a minimum flow and level is established, the existing

16 water flow or level is below the limits established pursuant to s. 373.042. the department

17 or the governing board shall immediately take action to develop and implement a water

18 supply development plan which will achieve recovery of the established minimum flow

19 and level as soon as practicable and shall implement interim measures and remedial

20 actions based on a balancing of the criteria set forth in subsection (3) until such time as

21 the water supply development plan can be implemented.

22 L3 Interim measures and remedial actions pursuant to subsections (1) and

23 (2) for areas that are in violation of an established minimum flow and level or are

24 reasonably expected to be in violation of an established minimum flow and level within 5

25 years shall be based on a balancing of:

20


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DRAFT 1/10/97

1 (a Existing permitted or otherwise legal uses. which uses affect the aquifer

2 or surface water body.

3 b) Hydrologic changes that have occurred as a result of alterations to

4 surface waters or groundwaters which were authorized by a permit issued to parts I. I.

5 or IV of this chapter. which are exempt from permitting under those provisions or which

6 existed prior to the enactment of those provisions, and the constraints such alterations

7 have had on the hydrology of an affected surface water body or aquifer.

8 (c) Future demands reasonably expected to occur in a 5 year planning

9 horizon. to the extent consistent with recovery of the established minimum flow or level.

10 d) Protection of water resources, including maintenance of fresh water

11 storage and supply and maintenance of the designated uses of the water body or aquifer.

12 (al Flood protection needs.

13 (f Natural seasonal long-term fluctuations in water flows and levels.

14 (ge Other uses made of the water body. including recreation in and on the

15 water, aesthetic and scenic attributes. navigation. and other non-permitted legal uses of

16 the water body.

17 () Environmental values associated with coastal. estuarine. aquatic and

18 wetlands systems, including fish and wildlife habitats.

19 fi The geographic extent of any violations of an established minimum flow

20 or level.

21 Section 15. Section 373.0831, Florida Statutes, is created to read:

22 373.0831Water resource development: legislative direction to governin

23 boards.--To make a sufficient supply of water available for all reasonable and beneficial

24 uses and to avoid the adverse effects of competition for water suDplies, the governing

25 board of each water management district shall exercise the following responsibilities for


21


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DRAFT 1/10/97

1 water resource development, consistent with sections 373.0695. 373.087. 373.106.

2 373.196 and 373.1961:

3 in Provide an adequate. safe. dependable and affordable water resources to

4 serve all regions of the district:

5 I21 Provide for the replenishment. recapturing and enhancement of

6 groundwater and surface water resources of the district to augment available water

7 supplies:

8 () Encourage and promote the development of new technologies to fully

9 utilize all groundwater and surface water resources for water supply development

10 consistent with law:

11 (41 Collect data and conduct research studies to expand and improve the use

12 of groundwater and surface water resources for water supply purposes:

13 ( Conduct demonstration or pilot projects that embody innovative

14 technologies for the use of groundwater or surface water sources for water supply

15 purposes: and

16 ( Cooperative with and assist public and private water utilities in the

17 development of water supply delivery systems.

18 Section 16. Section 373.2231, Florida Statutes, is created to read:

19 373.2231 Mitigation.-

20 (1) If a public water supply applicant for a consumptive use permit renewal or

21 modification in excess of mgd cannot provide reasonable assurance that the proposed

22 use will meet the criteria for the issuance of permits under s. 373.223. the water

23 management district shall consider, and may issue the permit based upon measures

24 proposed or acceptable to the applicant to mitigate the impacts which cause the proposed

25 use not to meet the permitting criteria. Mitigation measures to be considered include, but


22


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DRAFT 1/10/97

are not limited to. wetland creation. enhancement and preservation: aauifer recharge with

water of acceptable quality and improvement to withdrawal systems associated with

existing uses. If the owner does not agree to allow the mitigation on the site or agrees

that the mitigation can be implemented on other property. the water management district

shall consider mitigation proposed on other property that will offset the expected impacts.

Section 17. Section 373.236, Florida Statutes, is amended to read:

373.236 Duration of permits.-

(1) If the criteria set forth in 6 373.223 are met. permits shall be granted for a

period of 20 years. except as otherwise provided by law. The governing board or the

department may. however, issue permits for shorter durations if requested by the

applicant or if the applicant's adherence to a remedial action plan requires periodic

evaluation. Penaits-may-be-gmnted-fer-efy-perod-of-ime-not-exeeding-20-yea.---The

goveing-board-er-the-depaeFent-may-base- tion-of-permitt --ea-se nable-ystem

eofelassifieatien-aeeerdingto-sour-eef-supy-r-typef-ser-r-et7.

(2)

(a) Any permit issued for a duration of 20 years may include a condition

requiring the permittees to submit an interim report every 10 years to establish continued

compliance with the rules of the consumptive use permitting program in effect on the date

the permit was issued. The filing of such interim report. and the governing board's or

department's consideration of it. does not expose the permit to a competing use evaluation

under 6 373.233.

(b) The governing board or department shall provide written notice to the

permitted of the requirement for filing an interim report and the data that the report is

due. If the permitted fails to submit the interim report within 60 days after receipt of


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DRAFT 1/10/97

1 notice or the due date. whichever is later, the permit will expire 1 year from the date that

2 the interim report was due.

3 (3) At any time throughout the duration of a permit. the permitted may seek

4 modification or renewal of the permit to implement conservation measures or to reduce

5 consumption by using alternative water supplies. on the basis of an existing or proposed

6 plan approved by the district. To encourage and reward water conservation efforts and the

7 use of alternative water supplies, the duration of a permit so modified or renewed will be

8 20 years from the date of modification or renewal.

9 (2)141 The governing board or the department may authorize a permit of

10 duration of up to 50 years in the case of a municipality or other governmental body or of

11 a public works or public service corporation when that where-sueb-a period is required to

12 provide for the retirement of bonds for the construction of waterworks and waste disposal

13 facilities.

14 Section 18. Subsection (1) and paragraph (a) of subsection (3) of section

15 373.59, Florida Statutes, are amended to read:

16 373.59 Water Management Lands Trust Fund.-

17 (1) There is established within the Department of Environmental Protection the Water

18 Management Lands Trust Fund to be used as a nonlapsing fund for the purposes of this

19 section. The moneys in this fund are hereby continually appropriated for the purposes of

20 land acquisition, management, maintenance, capital improvements, payments in lieu of

21 taxes, and administration of the fund in accordance with the provisions of this section. In

22 addition, ferfiseal-year-99995-1969 moneys in the fund that are not revenues from the

23 sale of any bonds and that are not required for debt service for any bond issue may be

24 used to fund activities authorized under the Surface Water Improvement and Management

25 Act, pursuant to ss. 373.451-373.4595, and for the control of aquatic weeds pursuant to

24


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DRAFT 1/10/97

1 part I of chapter 369. Up to 25 percent of the moneys in the fund may be allocated

2 annually to the districts for management, maintenance, and capital improvements pursuant

3 to subsection (7).

4 (3)(a) Moneys from the Water Management Lands Trust Fund shall be used for

5 acquiring the fee or other interest in lands necessary for water management, water

6 supply, and the conservation and protection of water resources;-e*eep-4hat-sueh-meneys

7 shal-eet-be-used-or-the-equisition -ff-rights-ef-way-feFeanls -r-pipeines. Such

8 moneys shall also be used for management, maintenance, and capital improvements.

9 Interests in real property acquired by the districts under this section may be used for

10 water supply purposes, including water production and transmission, if the uses are

11 sustainable and compatible with the purposes for which the interests were acquired.

12 Lands acquired with moneys from the fund shall be managed and maintained in an

13 environmentally acceptable manner and, to the extent practicable, in such a way as to

14 restore and protect their natural state and condition.

15 Section 19. Subsection (4), paragraph (a) of subsection (9), and paragraph (d)

16 of subsection (11) of section 259.032, Florida Statutes, are amended to read:

17 259.032 Conservation and Recreation Lands Trust Fund; purpose.-

18 (4) Lands acquired under this section shall be for use as state-designated

19 parks, recreation areas, preserves, reserves, historic or archaeological sites, geologic or

20 botanical sites, recreational trails, forests, wilderness areas, wildlife management areas,

21 or other state-designated recreation or conservation lands; or they shall qualify for such

22 state designation and use if they are to be managed by other governmental agencies or

23 nonstate entities as provided for in this section. Lands acquired under this section may be

24 used for permittable water supply purposes. including water production and transmission.

25 (9)(a) All lands managed under this section shall be:


25

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DRAFT 1/10/97


1 1. Managed in a manner that will provide the greatest combination of

2 benefits to the public and to the resources.

3 2. Managed for public outdoor recreation which is compatible with the

4 conservation and protection of public lands.

5 3. Managed for the purposes for which the lands were acquired, consistent

6 with paragraph (ll)(a).

7 These lands may also be managed for permittable water supply purposes. which may

8 include water production and transmission. Management may include the following

9 public uses: fishing, hunting, camping, bicycling, hiking, nature study, swimming,

10 boating, canoeing, horseback riding, diving, birding, sailing, jogging, and other related

11 outdoor activities.

12 Section 20. This act shall take effect July 1, 1997.



























26


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