Title: Water Supply Coalition's Draft Water Resources Legislation Dated February 20, 1997
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 Material Information
Title: Water Supply Coalition's Draft Water Resources Legislation Dated February 20, 1997
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Water Supply Coalition's Draft Water Resources Legislation Dated February 20, 1997 (JDV Box 39)
General Note: Box 29, Folder 6 ( Water Supply Coalition - 1996 ), Item 27
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004905
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text







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:


S-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


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


MEMORANDUM


RECEIVED


FEB 2 4 1997


Water Supply Coalition Members


Frank Matthews


Water Legislation


February 20, 1997


Caten Fields TallahasSe
J^ )n W-wn


Enclosed is the most recent version of the Water Supply Coalition's draft water resources
legislation. The only revision to this draft is on page 9, lines 20-21. If you have any questions,
feel free to contact me.























/kkm
Enclosure











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1 Section 1. Sections 373.036 and 373.039, Subsections (16) of Section 373.019,

2 (10) of Section 373.026, and (33) of Section 403.061, Florida Statutes, are repealed.

3 Section 2. Section 373.016, Florida Statutes, is amended to read:

4 373.016 Declaration of policy.--

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

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

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

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

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

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

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

12 development, and proper utilization of surface water and groundwater ground-water,

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

14 works and to provide water storage for beneficial purposes;

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

16 (le) To minimize degradation of water resources caused by the discharge of

17 stormwater,

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

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

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

21 maintaining the navigability of rivers and harbors; and

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

23 welfare of the people of this state.






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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 It is further declared to be the policy of the Legislature:

5 (a) Water resource development is a fundamental mission of water

6 management districts that must be implemented immediately and continually to ensure that

7 an adequate. safe. dependable and affordable supply of water is available for all existing

8 and projected reasonable-beneficial uses in the state.

9 bo) Water supply development is primarily the responsibility of counties.

10 municipalities. public water utilities, regional water supply authorities and special taxing

11 districts. Water management districts shall provide funding and other assistance to

12 entitles involved in water supply development in accordance with the provisions of s.

13 373.1961.

14 L(43) The Legislature recognizes that the water resource problems of the state

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

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

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

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

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

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

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

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

23 management district.





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1 (54) 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 3. 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 (9) "Water resource development" means the formulation and

9 implementation of regional water resource management strategies. including the collection

10 and evaluation of surface water and groundwater data: the development of regional water

11 resource implementation programs: and the construction. operation, and maintenance of

12 maior public works facilities to provide for flood control. surface and underground water

13 storage. groundwater recharge augmentation. water transmission and the capture of water

14 otherwise released to tide.

15 (2`1 "Water supply development" means the design. construction. operation

16 and maintenance of public and private facilities for the production. treatment.

17 transmission or distribution of water for sale. resale or direct use.

18 (21 "Public water utility" means a governmental or private entity duly

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

20 works systems. sewerage systems, sewage treatment works, reclaimed water systems. or

21 other public water-related facilities.

22 (22= "Natural system" means an ecological system supporting aquatic and

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

24 wildlife habitat.

25 Section 4. Section 373.038, Florida Statutes, is created to read:


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1 (1 The water management districts shall carry out water resource

2 development as defined in s. 373.019(19). Water resource development will use aquifers

3 and watersheds as the implementation areas.

4 (2 Such water resource development shall ensure water is available to

5 sustain all existing and projected reasonable-beneficial uses of water and to maintain the

6 functions of natural systems. The water management districts shall be responsible for the

7 development, implementation and funding of water resource development programs. This

8 program shall be developed in coordination with public water utilities and other use

9 grOups.

10 ) Water resource development must:

11 (l Identify safe. affordable and dependable sources of water for use by all

12 existing and projected reasonable-beneficial uses and for maintaining the functions of

13 natural systems by the creation and completion of an analysis of existing water sources

14 within the jurisdiction of each water management district. Such analyses shall be based

15 upon the best available data. identify and quantify available sources of water based upon

16 minimum flows and levels established pursuant to s. 373.042. Where the best available

17 information is insufficient to determine source availability, the water management districts

18 shall collect and evaluate additional surface or groundwater data.

19 Wm Ouantify the water needs necessary to maintain the functions of natural

20 systems. recognizing meteorological events, surface alterations. and long-term and

21 seasonal fluctuations of water levels within the natural systems and proposed reservation

22 of water under s. 373.223(3).

23 (W Compile water supply needs of all existing and projected reasonable-

24 beneficial uses. based on a twenty-year planning horizon and using best available

25 information. The level of certainty associated with identifying the water supply needs of


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DRAFT 2/20/97

1 existing and projected reasonable-beneficial uses shall be based on the assurance that

2 water is available to meet those needs for a 1-in-10 year drought event without imposition

3 of water shortage restrictions.

4 (dM Identify water resource development projects including capital

5 improvements and major public works facilities necessary to address the shortfalls.

6 Identify reliable sources of district funding to implement the regional water resource

7 implementation programs. including a defensible cash flow analysis identifying funding to

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

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

10 the initiative.

11 () Identify and correct existing district regulatory impediments to the

12 implementation of water resource development projects and propose corrective measures

13 for each identified impediment beyond the control of the district.

14 M14 Water resource development programs shall be adopted by the

15 Governing Board and shall be subject to review as an order under s. 120.59. Upon

16 adoption of the program. the water management district will initiate rulemaking pursuant

17 to ch. 120 to adopt necessary rules to implement the water resource development

18 program.

19 el Beginning on January 1. 1998 and each January 1 thereafter, the water

20 management districts shall report to the Governor and legislature on the progress they

21 have made in implementing the Water Resource Development program. Such report shall

22 address at a minimum, all of the elements set forth in this section.

23 M In addition to water resource development, the districts shall. if

24 requested. provide assistance to regional water supply authorities. counties.




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DRAFT 2/20/97

municipalities, public water utilities, special taxing districts or other units of local

government for water supply development activities as defined in s. 373.019(20).

Section 5. 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 e-eeology 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.

h-minimum-flew-i-diium-wa evela--sa-be-ealeolate-byhe-deptent-d

tho-govening-boerd-sing4he-best-formatieon-avalable.---WheB-eppropria-minimm

flew-nd-levels-may-be-ealeulated-to-efleet-seasnal-variatien The department and the

governing board shall also consider, and at their discretion may provide for, the

protection of nonconsumptive uses in the establishment of minimum flows and levels.

(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

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

other districts shall also develop priority lists and schedules for the establishment of

minimum flows and levels for surface watercourses, aquifers and surface waters in each

district The priority list shall be-base pon-the-importanee-othe-wate-to-the-state-or

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DRAFT 2/20/97

regie-ad-theexisteneof- peetentie -for-signiffetan*-h -theewter-rese-ee

eoelegy-of-the-sate-r-egienr-and-sha include those waters which are or may

reasonably be expected to experiencing adverse impacts and those waters which are

identified pursuant to s. 373.038 as possible new water supply sources proposing-te

withdraw of 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. Except as provided in subsection (3). the development of priority lists

and the compliance with the schedule for establishment of minimum flows and levels

pursuant to this section shall satisfy the requirements of subsection (1).

(3) Minimum flows and levels for priority waters in subseetiea-3) inrthe

counties of Hillsborough. Pasco and Pinellas 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-tehe-establishmeat-ofiaimu-flow f-levels-feF-wate

resourmes-amas-identifiedn-subsection-(2-and-psror4toe-fing-oyetition-for

admimstrtive-hear r-seien-ti.r-teehnioa-data d-methedetegiesg-if-idisputeshall

upon-written-request-t-th-goveming-b -by--esubsatia-eeed-pre-be-subject

te-dependet-seientfie-peer-rview---The-mel bers-of-te-peer-tview-panel-shl-be

seeete y-agreemem -tho&-paies-in-interesf-whi-60-day te-reeept-e e-request-

Ift4he-event--he-pan4lis-iet-sleetek-wthin-this-time,--the,-upowthe-agreemeaof-all

partiesr-the4ime-may-be-waived;-e-f e-waiver-oeeurs;-the-goveming-board-may


7


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DRAFT 2/20/97


"'tDING: Deletions are strieken; additions are underlined.


ptreeed-to-establish-theminimum-flews-nt~d-evl--n-hestef-the-eer-review-shall-be







fml-fepot-4--aegFverwnig-bead-ith4in-l -day.- ter-seleetio .---Upa-equesby-eal

mbefsf-the-pael- geemet-ef-the-prtieetie-fr-subttal- -be

tende-er-p-t-3 dditi l-day.-f-t vent-thfinalepert-s- -sbitted

witi--sfeh-tme-th~-goveming-boar4 ay-ppeeed-testabish-e-mifim -flows-and

levels-puF at-te -seetien--F g-o -equest-shaell-any-appliable-deadine- de

ehaptef-140;-or-ethef-law-efdistriet- runet,-t--days-followig-bsiinta-ef-th-ial

repet-Any-sueh-deadlnesshall-aseo-be-tled-or-6-days-foowingl-withdrwal-fhe

reque set-agreemetef-the-parties4hat-peer-feview--Ul-no-Alengee-pursuedr-er-faivlu

m -eeany-deadline-set-forth-i-this-subseetien---If-the-wleetien-f-he-pane-is-subje e

th-equtiemefmts-eokehapter-7-t4hen-the-panet-shal-submit-its-fimA-epo4o ahe

govefming-beard-within-1-20-days-aftee4he-eompletioe-of4e-preeeess-equed-purfsant-te

ehaptep-2V7---The-govenig-boar4-sha-give-significan-weight-4o4he-inal-Tpert-efthe

paneRi-establishing4the-minimum-flow-ef4eve-,-es-appropriate-.--Te-fia-eport may

also-benrtered-into-4he-Oeee-by-any-panry-t4he-pfeeeeding-t whieh4he-imniimum-flew

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

including all scientific and technical assumptions employed in each 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 fields of hydroloy,. hydrogeology, limnologyv. biology and other scientific

disciplines relevant to the establishment of the minimum flow or level. The department












DRAFT 2/20/97

1 or governing board shall give significant weight to the final report of the peer review

2 panel when establishing the minimum flow or level.

3 (5 Minimum levels shall not be established for isolated wetlands or surface

4 waterbodies less than 25 acres in areal extent.

5 (S(6) If a petition for administrative hearing is filed under chapter 120

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

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

8 administrative law iudge hearing-effoiee must render the final order within 120 days after

9 the filing of the petition. The time limit for rendering an the final order shall not be

10 extended except by agreement of all the parties. To the extent that the parties agree to

11 the findings of the peer review panel, they may stipulate that those findings be

12 incorporated as findings of fact in the final order.

13 Section 6. Section 373.0421, Florida Statutes, is created to read:

14 373.0421 Establishment and Implementation of Minimum Flows and Levels.

15 (1 When establishing a minimum flow or level, the department or

16 governing board shall recognize:

17 (a) Existing permitted and other existing and projected legal uses:

18 (A Existing uses of the land that cannot reasonably be altered:

19 (c) Hydrologic changes that have occurred as a result of alterations to

20 watersheds. surface watercourses, aquifers and surface waters. and the constraints posed

21 by such changes.

22 fd Natural. seasonal and long-term fluctuations in water flows and levels:

23 {(L Flood protection needs: and

24 (I Other uses made of the surface watercourse. aquifer or surface water.

25 including recreation in and on the water. navigation and other non-permitted legal uses.

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DRAFT 2/20/97

1 ) When a flow or level is below the minimum established pursuant to this

2 section and s. 373.042. the department or the district shall take action to achieve recovery

3 of the established minimum flow or level as soon as practicable. The water management

4 districts or the department shall offset any adverse impact to the water supply of an

5 existing permitted or other legal use caused by the adoption or implementation of a

6 minimum flow or level, or in the case of a managed surface water system by the adoption

7 or implementation of a change in source or operation. by developing and funding

8 sufficient water supply to offset any loss of consumptive use prior to the implementation

9 of the minimum flow or level or change in source or operation.

10 () The establishment of minimum flows and water levels shall not limit or

11 require enhancement or restoration of the natural system.

12 Section 7. Section 373.223, Florida Statutes, is amended to read:

13 (1) To obtain a permit pursuant to the provisions of this chapter, the

14 applicant must establish that the proposed use of water:

15 (a) Is a reasonable-beneficial use as defined in s. 373.019(4);

16 (b) Will not interfere with any presently existing legal use of water; and

17 (c) Is consistent with the public interest.

18 (2) The governing board or the department may authorize the holder of a

19 use permit to transport and use ground or surface water beyond overlying land, across

20 county boundaries, or outside the watershed from which it is taken if the governing board

21 or department determines that such transport and use is consistent with the public interest,

22 and no local government shall adopt or enforce any law, ordinance, rule, regulation or

23 order to the contrary.

24 (3) The governing board or the department, by regulation, may reserve from

25 use by permit applicants, water in such locations an quantities, and for such seasons of


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DRAFT 2/20/97

1 the year, as in its judgment may be required for the protection of fish and wildlife or the

2 public health and safety. Such reservations shall be subject to periodic review and

3 revision in light of changed conditions. However, all presently existing legal uses of

4 water shall be protected so long as such use is not contrary to the public interest. Th

5 governing board or the department shall offset any adverse impact to the water supply of

6 an existing permitted or other legal use caused by a reservation by developing and

7 funding sufficient water supply to offset any loss of consumptive use prior to

8 implementation of the reservation.






































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