Title: Copies of the Water Management District Review Commission's Preliminary Recommendations
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Title: Copies of the Water Management District Review Commission's Preliminary Recommendations
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Abstract: Jake Varn Collection - Copies of the Water Management District Review Commission's Preliminary Recommendations (JDV Box 39)
General Note: Box 29, Folder 9 ( Water Management District Review Commission - 1995 ), Item 2
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DECEMBER 15, 1995


TO: JAKE

FROM: JANET STEPHEN

Jake:

For your reference, attached is a copy of the Water Management
District Review Commission's preliminary recommendations.


Y#43091.1









CUMULATIVE PRELIMINARY RECOMMENDATIONS OF THE
WATER MANAGEMENT DISTRICT REVIEW COMMISSION
REGARDING DISTRICT RESPONSIBILITIES AND OPERATIONS
(INCLUDING BALANCING AND PRIORITIZATION)



In meetings of October 20, November 10, November 30 and December 1, 1995, the
Water Management District Review Commission adopted the following preliminary recom-
mendations regarding the statutory responsibilities and operations of Florida's water manage-
ment districts, including the balancing and prioritization of those responsibilities. While some
of the recommendations will require legislative action, others can be implemented by the dis-
tricts without additional statutory authority, and the Commission strongly encourages the
districts to do so. To implement recommendations requiring statutory modification, the
Commission will draft proposed legislation for consideration during the 1996 regular session
of the Florida Legislature. The Commission's recommendations resulted from testimony given
by the general public during statewide hearings, written comments to the Commission from
Florida citizens and interested parties, information received from state agencies and the water
management districts, the personal expertise and experience of individual Commission
members, extensive discussions among the participants in the proceedings of the District
Responsibilities & Operations Subcommittee and the deliberative meetings of the full
Commission. The actions of the Water Management District Review Commission with regard
to the proposals are noted in bold print following each recommendation.


1-A. BALANCING AND PRIORITIZATION OF DISTRICT RESPONSIBILITIES

In its discussions regarding the various responsibilities of the districts, e.g. water supply,
flood control, environmental resource permitting, aquatic weed control, land acquisition
and management, etc., the Commission determined that the necessary and appropriate
actions of water management districts in response to the exigencies of Florida's some-
times widely fluctuating water management issues and problems could best be directed
by the respective district governing boards. Accordingly, the Commission agreed that
it was not necessary to statutorily direct a prioritization among the many responsibili-
ties of the districts. The Commission does recommend, however, that the policy-setting
provision of Chapter 373 be modified to include the following "balancing" language:

RECOMMENDATION:

Amend Section 373.016, Florida Statutes, 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 o
(a) To provide for the management
land resources;
(b) To promote the conservation, det
utilization of surface and ground watei
(c) To develop and regulate di
reservoirs, and other works and to pro'
beneficial purposes;
(d) To prevent damage from floods, s
excessive drainage;
(e) To minimize degradation of '
caused by the discharge of stormwater;
(f) To preserve natural resources, fis
(g) To promote the public policy
403.021;'
(h) To promote recreational deveic
public lands, and assist in maintaining i
of rivers and harbors; and
(i) Otherwise -to promote the heal
general welfare of the people of this stc

In implementing this chapter, the det
governing board shall construe and ap
in this subsection as a whole. and no
shall be construed or applied in isolation;
policies in this subsection.


COMMISSION ACTION: UNANIMOUSLY A:









Section 403.021, Florida Statutes, sets forth the extensive state
pollution control.








1. WATER SUPPLY


Recommendation:

It is imperative to Florida's future that responsibility for the supply
of water be clearly delineated, just as the duties to provide adequate
transportation, sound education, and responsible insurance
regulation have been assigned to specific governmental agencies.

The Florida Legislature should emphasize that a primary mission
of the water management districts is regional water supply
planning, regulation, research, and water resource development. To
meet the current and future needs of Florida's citizens, businesses,
agriculture, and natural environment, the districts must maximize
the availability of water for all uses through economic and
regulatory incentives.

Those incentives must include efforts to promote conservation, water
reuse, and desalination, promote the wise use of surface and ground
waters, and promote the use of alternative water use.


COMMISSION ACTION: UNANIMOUSLY APPROVED.








2. CONSUMPTIVE USE OF WATER


Background:

Section 373.016, Florida Statutes, provides in pertinent part as follows:
(1) The waters of 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 for the management of water and related land resources;
(b) To promote the conservation, development, and proper utilization of
surface and ground water;

Section 373.023(1), Florida Statutes, provides:
(1) All waters in the state are subject to regulation under the provisions of this
chapter unless specifically exempted by general or special law.

Part II of Chapter 373, enacted in 1972, established an administrative regulatory system
to allocate the state's water resources, and each water management district has imple-
mented a consumptive use permitting program in accordance with those directives.

The Florida Supreme Court carefully reviewed state water law in Village of Tequesta v.
Jupiter Inlet Corporation.' Noting that Florida historically followed the common law
"reasonable use" doctrine, the court confirmed that a property owner has no constitu-
tionally protected property right in water beneath his property. The court further
explained that the administrative permitting system created by Chapter 373 in 19723
placed all waters in the state under the regulatory system implemented by the then
Department of Environmental Regulation or the districts, and that except for individual
domestic uses, only those uses of water permitted under the administrative process
enjoyed a protected "right" to the withdrawal and use of water.4

Recommendation:

Continue to recognize that water is considered a state resource, and
continue district regulation of consumptive uses of water.


COMMISSION ACTION: UNANIMOUSLY APPROVED.


2 371 So. 2d 663 (Fla. 1979).

S When enacted, Part II of Chapter 373 granted then-existing users a two-year grace period within which
to secure a permit, following which an unpermitted withdrawal of water could be sanctioned. The two-year
period has expired in each of the state's five water management districts.
S Tequesta at 670-71.








3. CONSUMPTIVE USE PERMIT DURATION


Background:

Section 373.236, Florida Statutes, provides that consumptive use permits may be issued
by a district for up to twenty years, or fifty years for governmental or public service
entities when the longer duration is needed for retirement of bonds issued for the con-
struction of waterworks and waste disposal facilities. However, most districts typically
issue shorter duration permits for various reasons, including: (i) a policy requiring cer-
tain types of permits to expire simultaneously; (ii) the desire to utilize a growing and
changing knowledge of water sources and their limitations; (iii) the ability to require
with permit renewal the implementation of better water conservation technologies; or
(iv) administrative convenience. Limited durations have the effect of making holders of
existing short-term permits repeatedly vulnerable to reduction in withdrawal allocation
or loss of permitted use at the time of renewal, often after considerable investment.


Recommendation:

Modify Section 373.236, Florida Statutes (duration of permits), as follows:

(1) Permits may be granted for any period of time not exceeding 20
years. The governing board or the department may base duration, of
permits on a reasonable system of classification according to source of
supply or type of use, or both.

(2) The governing board or the department may authorize a permit of
duration of up to 50 years in the case of a municipality or other
governmental body or of a public works or public service corporation
where such a period is required to provide for the retirement of bonds for
the construction of waterworks and waste disposal facilities.

(3) (a) The duration of a consumptive use permit shall be 20 years
for an applicant that implements technically, economically and
environmentally feasible alternatives to reduce water use or takes
advantage of alternative sources. To qualify for a 20-year duration
permit, the applicant must comply with the criteria contained in
section 373.223 and must provide reasonable assurance that:

L The applicant has implemented the water use reduction
alternatives: or








2 The permit contains a plan. approved by the district.
for the applicant's implementation of such water use
reduction or use of alternative sources in a timely manner.

(b) At any time during the duration of a permit issued pursuant
to paragraph (3)(a) above. the permitted may seek a modification of
the permit to further reduce water use through the implementation
of improved technologies or to take advantage of alternative
sources. A permit issued on the basis of any such modification shall
have a duration of 20 years.

(c) A permit issued pursuant to subparagraph (3)(a)2. above.
requiring the permitted's implementation ofan approved plan, shall
further direct the permitted to file progress reports with the district
at 5-year intervals from the date of permit issuance or until the plan
is fully implemented, whichever occurs first. If the district deter-
mines that the permitted has failed to properly implement the
approved plan. the permittee shall be so notified in writing and the
subject permit shall expire 2 years from the date of the district's
determination.


Modify Section 373.239, Florida Statutes (modification and renewal of
permit terms), as follows:

(1) A permitted may seek modification of any terms of an unexpired
permit.

(2) If the proposed modification involves water use of 100,000 gallons
or more per day, the application shall be treated under the provisions of
s. 373.229 in the same manner as the initial permit application.
Otherwise, the governing board or the department may at its discretion
approve the proposed modification without a hearing, provided the
permitted establishes that:

(a) A change in conditions has resulted in the water allowed
under the permit becoming inadequate for the permitted's need, or

(b) The proposed modification would result in a more efficient
utilization of water than is possible under the existing permit.








(3) (a) The governing board may modify a consumptive use permit
pursuant to the authority in subsection 373.171(3), after first
identifying and evaluating technologically, economically and envi-
ronmentally feasible alternatives such as conservation measures or
use of alternative sources to reduce or eliminate detrimental impacts
of the subject permit on other water users or the water resources of
the state. Prior to making any such modification, the governing
board shall consult with existing permitted users in the affected area
to develop a plan and schedule for implementing the modifications.
after which any such agreed-upon modifications shall be incorpo-
rated into existing permits.

(b) If modifications developed pursuant to paragraph (3)(a) are
not agreeable to an existing permitted, the governing board may
modify the permit to reduce water use or implement other measures
to reduce or eliminate the detrimental impacts in accordance with
subsection 373.171(3).

(4)0) All permit renewal applications shall be treated under this part in
the same manner as the initial permit application.


In addition to the foregoing recommendations, the Commission adopted the
following eight (8) principles to guide the development of a standard 20-year
consumptive use permit for all qualifying water users. Commission members
instructed its Executive Director to consult with the water management districts
and representative user groups and draft a legislative proposal to implement the
principles for Commission consideration during its meeting of January 30, 1996:


CONSUMPTIVE USE PERMIT DURATION PRINCIPLES
(TO GUIDE DEVELOPMENT OF LEGISLATION)

1. 20-Year consumptive use permit duration standard established in
statute with specified exceptions:

(a) Shorter duration needed or agreed upon by applicant;
(b) Need to review effectiveness of remedial action plan;
(c) Harm to water resources or to legally existing users projected;







(d) Need to reconsider feasibility of conservation or alternative
supply measures; or
(e) No assurance that source can meet proposed allocation.

2. Periodic submittal and agency review of "compliance report" (every
10 years) for purpose of assuring continued compliance with consumptive
use permit program rules and standards. Agency may modify permit at
this juncture to incorporate necessary measures to maintain compliance.
Does not open permit to competition.

3. Failure to submit compliance report is a basis for reduction of
permit duration.

4. During term ofpermit, permitted retains right to seek modification
to integrate additional conservation or alternative supply measures.
Could extend duration at this juncture.

5. Ability of agency to modify consumptive use permit if adverse
impacts to legal existing users or water resources found post-issuance.

6. Procedurally provide for adequate notice and due process to
applicant and other affected persons.

7. During 20-year consumptive use permit tenure, permitted not subject
to competing use review.

8. Existing permittees may avail themselves of20-year duration process
if comply with #1 above.


COMMISSION ACTION: APPROVED BY A 15-TO-1 VOTE.








4. PRIORITY AMONG COMPETING USES


Background:

Section 373.233, Florida Statutes, provides that issuance of consumptive use permits to
applicants competing for the allocation of a limited resource will be determined on the
following bases: (i) both uses must meet the standards and criteria for permit issuance;
(ii) the application which best serves the public interest should receive preference; and
(iii) if both permits equally serve the public interest, a renewal permit should be given
preference over a new use. There is no statutory methodology for determining "the
public interest."

In recognition of the financial commitments made by existing legal uses, the following
definition of "public interest" is proposed:


Recommendation:

Modify Section 373.233(1), Florida Statutes, as follows:

(1) If two or more applications which otherwise comply with the
provisions of this part are pending for a quantity of water that is
inadequate for both or all, or which for any other reason are in conflict,
the governing board or the department shall have the right to approve or
modify the application which best serves the public interest. In weighing
the public interest, substantial weight shall be given to an applicant
seeking renewal of a permit.


COMMISSION ACTION: UNANIMOUSLY APPROVED.








5. "LOCAL SOURCES FIRST" and REQUIREMENT FOR BALANCING
BY GOVERNING BOARDS WHEN RESERVING WATER RESOURCES

Background:

Applicants for consumptive use permits must establish that the proposed use of water
(i) is a reasonable-beneficial use; (ii) will not interfere with any existing legal use; and
(iii) is consistent with the public interest. The first two criteria do not address whether
local sources of water should or must be utilized prior to allowing the use of water
from more distant sources. The third criterion is sufficiently broad to encompass such
a requirement, and Chapter 373 does authorize the transportation of water across and
beyond overlying lands, ground and surface water basins, and county boundaries. The
statute does not, however, offer any guidance regarding a policy of "local sources first."
Significant testimony was given before the Commission on this issue, primarily empha-
sizing the commentators' collective opinion that the districts should require that: (i) all
alternative sources of water in a local area should be utilized prior to transporting water
across long distances; and (ii) effects of the use on the source area must be considered.

Recommendation:

Modify Section 373.223, Florida Statutes, as follows:

(1) To obtain a permit pursuant to the provision of this chapter, the
applicant must establish that the proposed use of water:

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

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

(c) Is consistent with the public interest.

(2) The governing board or the department may authorize the holder
of a use permit to transport and use ground or surface water beyond
overlying land, across county boundaries, or outside the watershed from
which it is taken if the governing board or department determines that
such transport and use is consistent with the public interest, and no local
government shall adopt or enforce any law, ordinance, rule, regulation,
or order to the contrary. Notwithstanding any policies contained in part
I of this chapter, when evaluating whether a potential interdistrict or
intradistrict transport of ground or surface water is consistent with the
public interest, the governing board or the department shall consider:








(a) the proximity of the proposed source of water to the area in
which it is to be used or applied, and

)b other economically and technically feasible alternatives to the
source being proposed, including but not limited to desalination.
reuse. stormwater. and aquifer storage and recovery.

(3) The governing board or the department, by regulation, may reserve
from use by permit applicants, water in such locations and quantities, and
for such seasons of the year, as in its judgment may be required for the
protection offish and wildlife or the public health and safety. In making
such reservation, the governing board or department shall balance the
needs of legal users of water, water supply, water quality protection and
flood control for the body of water or source. Such reservations shall be
subject to periodic review and revision in the light of changed conditions.
However, all presently existing legal uses of water shall be protected so
long as such use is not contrary to the public interest.

COMMISSION ACTION: UNANIMOUSLY APPROVED.


11 -








6. FLOOD PROTECTION WORKS


Background:

In accordance with 373.084-.086, Florida Statutes, water management districts own
and operate district works, and acquire and manage floodplain lands, for the purpose
of flood control and protection. In the South Florida and St. Johns River Water
Management Districts, most existing works were developed as part of the Central and
Southern Flood Control Project, designed and constructed in cooperation with the U.S.
Army Corps of Engineers. Management plans for operation of those project works are
also prescribed by the Corps. Other flood control works have been undertaken by dis-
tricts in response to regional water management concerns, e.g. Four Rivers Basin Project
(SWFWMD), Appalachicola River Project (NWFWMD) & Upper St. Johns River Basin
Project (SJRWMD). District floodplain acquisition has reduced the need for structural
flood protection works while providing other resource protection benefits. Works and
land acquisition projects have been undertaken at the direction of district governing
boards after consideration of the water management needs within each district.

In some areas, existing flood protection works are inadequate to provide the level of
protection required for today's population. Most flood protection works were designed
and constructed prior to 1970; Florida's population has doubled since that time.

Recommendations:

1. Water management districts should continue to construct, operate
and maintain multi-purpose regional flood protection works and
acquire lands for flood protection purposes.

2. Decisions regarding works construction and land acquisition should
be made by district governing boards within current statutory
framework.

3. The primary responsibility for works construction and operation, as
well as land acquisition programs, for local and private flood
protection should remain with general purpose local governments,
special districts, and private citizens.

4. Districts should investigate the advisability of contracting with
private entities to maintain flood protection works and manage
acquired floodplain lands, and implement such contracts if they are
cost-effective and achieve the stated goals of the project.

COMMISSION ACTION: UNANIMOUSLY APPROVED.









7. FLOOD PROTECTION (Water Quantity) REGULATION


Background:

The districts have promulgated flood protection rules pursuant to the authority granted
in 5 373.084-.086 and Part IV, Florida Statutes. Those rules regulate non-district water
management systems which may affect (i) flood protection offered by works of the
district, (ii) other property owners, and (iii) water resources. It is recognized that the
regulatory process is a dynamic one based upon changing development trends,
technologies, and resource information, district governing boards currently have the
authority to respond to the changes through modification of district rules.


Recommendations:

1. Maintain the current authority of districts to regulate potential
water quantity impacts of water management systems.

2. Maintain the ability of districts to modify their water quantity rules
in response to changing conditions.

3. Flood protection standards should be established regionally by each
district as appropriate to address regional variations in hydrologic
conditions.


COMMISSION ACTION: UNANIMOUSLY APPROVED.








8. AQUATIC PLANT CONTROL


Background:

The invasion of non-native aquatic plant species into Florida's waters has caused serious
water resource-related problems throughout the state. For example, infestations of
aquatic weeds have (i) reduced the recreational values of lakes and streams, (ii) seriously
impaired navigation, (iii) reduced valuable fishery habitats, (iv) adversely impacted water
quality, and (v) endangered the structural integrity of state-owned bridges.

The Department of Environmental Protection currently administers the state aquatic
plant control program, overseeing research on eradication methodologies and allocating
state and federal monies to the districts for implementation of control programs. The
districts currently undertake and fund aquatic weed control programs: (i) as components
of operating and maintaining district works under 373.086, Florida Statutes; (ii) as a
program contractor with the Department of Environmental Protection under S369.22;
and (iii) in partnership with local governments.

Currently, funding for aquatic and exotic weed control programs is derived from
federal government grants, gas taxes, Conservation and Recreation Lands funds, district
ad valorem taxes, and local government matching programs. Funding for the current
fiscal year is expected to be approximately $12 million from all sources, with $1-2.5
million coming from the federal government through matching grants. The federal
government has indicated an unwillingness to work with more than one agency in each
state, so it requires that all funding be coordinated by the Department of Environ-
mental Protection.

At the current level of funding, the districts can barely provide maintenance of the
status quo and are unable to get ahead of the state's serious aquatic plant infestation
problem which increases exponentially each year.


Recommendation:

The Legislature should increase funds from the Fuel Tax Collection Trust
Fund and other sources to provide the districts, through the Department
of Environmental Protection, a substantial increase in funding necessary
to more efficiently and effectively control invasive aquatic plants.


COMMISSION ACTION: APPROVED BY A 15-TO-1 VOTE.


14-








9. WATER QUALITY STANDARDS


Background:

Currently, the Environmental Regulation Commission (ERC) is the state standard-
setting body for the establishment of water quality criteria. In some instances the ERC
establishes "numeric" standards which prohibit discharge of a substance in certain
concentrations (e.g., 0.05 parts per billion); other standards are described by "narrative,"
which indicates that discharges to state waters will not cause certain identifiable harms
(e.g., substance concentrations that would be mutagenic). The districts and the
Department of Environmental Protection have adopted regulations that establish rebut-
table presumptions that water quality standards will be met through the implementation
of certain design criteria or Best Management Practices (BMPs).

In some instances, however, the design criteria and numeric standards are not applicable
to the situation, and the districts are often required to interpret the specific meaning of
the narrative standards when implementing regulatory programs that require compli-
ance with water quality standards. In those cases, the districts must conduct the
scientific analyses required to determine applicable site-specific numeric standards. One
recent court case upheld a district's ability to set such standards on a case-by-case basis,
but the ruling prohibited the district from establishing the standards for a particular
drainage basin.


Recommendation:

Except as otherwise provided by law, where the Environmental Regula-
tion Commission has established a narrative (non-numeric) standard for
a particular constituent in Chapter 62-302, Florida Administrative Code,
a water management district or the Department of Environmental Protec-
tion may apply the standard by calculating the constituent's maximum
load for a watercourse or water body, and may implement the maximum
load calculation through their permitting programs. Prior to implemen-
tation, however, the maximum load calculation shall be subject to peer
review and must be approved by the Secretary of the Department after
appropriate notice. The Secretary's approval shall constitute the sole
point of entry for an administrative challenge of the maximum load
calculation for that watercourse or water body.


COMMISSION ACTION: UNANIMOUSLY APPROVED.








10. LAND USE PLANNING


Background:

Currently, each local government prepares a comprehensive growth management plan
to guide future growth within that government's jurisdiction. Chapter 163, Florida
Statutes, establishes the minimum criteria that must be contained in each comprehensive
plan, including guidelines regarding the availability of public services. Based on
testimony before and discussion among Commission members, however, there remained
a serious concern that local governments do not adequately consider the availability of
water supply and the impact that future growth will have on water resources when
drafting or modifying their future land use plans. Accordingly, the following recom-
mendation would require local governments to consider such impacts in their growth
management decisions.

Recommendation:

Amend section 163.3177(6)(a), Florida Statutes, to read:

(6) In addition to the requirements of subsections (1)-(5), the compre-
hensive plan shall include the following elements:
(a) A future land use plan element designating proposed future
general distribution, location, and extent of the uses of land for
residential uses, commercial uses, industry, agriculture, recreation,
conservation, education, public buildings and grounds, other public
facilities, and other categories of the public and private uses of land.
The future land use plan shall include standards to be followed in
the control and distribution of population densities and building
and structure intensities. The proposed distribution, location, and
extent of the various categories of land use shall be shown on a land
use map or map series which shall be supplemented by goals,
policies, and measurable objectives. Each land use category shall
be defined in terms of the types of uses included and specific
standards for the density or intensity of use. The future land use
plan shall be based upon surveys, studies, and data regarding the
area, including the amount of land required to accommodate
anticipated growth, the projected population of the area, the
character of the undeveloped land, ground and surface water
resources and the present and future availability of water supply.
the availability of public services; and the need for redevelopment,
including the renewal of blighted areas and the elimination of
nonconforming uses which are inconsistent with the character of the








community. The future land use plan may designate areas for
future planned development use involving combinations of types of
uses for which special regulations may be necessary to ensure devel-
opment in accord with the principles and standards of the compre-
hensive plan and this act. The land use maps or map series shall
generally identify and depict historic district boundaries and shall
designate historically significant properties meriting protection.


COMMISSION ACTION: UNANIMOUSLY APPROVED.









11. MINIMUM FLOWS AND LEVELS


A. Establishment of Priority Water Bodies

Background:

Section 373.042, Florida Statutes, requires the Department of Environmental Protection
or district governing boards to establish:

(1) 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.

(2) Minimum water level. The minimum water level shall be the level of
ground water in an aquifer and the level of surface water at which further
withdrawals would be significantly harmful to the water resources of the area.

The establishment of minimum flows and levels would assist each district in responding
to potential water shortages or excesses, regulating consumptive uses of water, operating
district works, and other district programs.

Although the statute provides that minimum flows and levels are to be established
"within each section, or the water management district as a whole, ." it does not
direct a prioritization by which the minimum flows and levels should be developed.
Furthermore, while the statute provides no deadline by which minimum flows and
levels are to be established, at least one court has ruled that the statutory directive is
mandatory and that the tasks must be undertaken in a reasonable amount of time.

In a state such as Florida, with widely (and ofttimes wildly) fluctuating rainfall and
consequential significant natural fluctuations in surface and ground water flows and
levels, the establishment of specific minimum flows and levels at a precise point of
"significant harm" can be, in reality, a scientific challenge. Some water bodies naturally
experience significant yet temporary drawdowns which enhance the water resource and
environmental water quality. Additionally, some water bodies are in remote areas or
are protected through state ownership or other means, so that withdrawals which could
produce significant harm would not be possible.


Recommendation:

Amend Section 373.042, Florida Statutes, as follows:

373.042 Minimum flows and levels. Within each section, or the
wattnu meanagemdnt district as a who
(continued)


18 -








(1) In accordance with the provisions of this section, the department or
the governing board shall establish the following:
(1) (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.
(2) (b) Minimum water level. The minimum water level shall be the
level of ground water in an aquifer and the level of surface water
at which further withdrawals would be significantly harmful to the
water resources of the area.

(2) The minimum flow and minimum water level shall be calculated
by the department and the g morning boar using the best information
available. When appropriate, minimum flows and levels may be
calculated to reflect seasonal variations. 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.

(3) By November 15 of each year. the governing board of each district
shall prepare an inventory of surface and ground waters. in order of
priority. for which minimum flows and levels will be established within
the next calendar year. The inventory shall include a schedule of dates
by which the district anticipates establishing those minimum flows and
levels, as well as a plan listing the surface. and ground waters for which
minimum flows and levels will be established during the following five
years. The governing board shall submit the annual inventory, schedule
and five-year plan for review and comment to the department and the
chairs of legislative committees having substantive jurisdiction over water
resources and water management districts. The prioritization of surface
and ground waters shall be based on the importance of the waters to the
state or region and the potential for significant harm as set forth in
subsection (1).


COMMISSION ACTION: UNANIMOUSLY APPROVED.








MINIMUM FLOWS AND LEVELS (continued)


11. B. Scientific Peer Review

Background:

Pursuant to 373.042, Florida Statutes, the districts are required to establish minimum
levels below which further withdrawals will be significantly harmful to ground water
resources, as well as minimum flows and levels below which surface water withdrawals
will be significantly harmful to the water resource or ecology. As noted above,
however, in a state with naturally and widely fluctuating rainfall with consequent
variations in surface and ground water flows and levels, the establishment of designated
minimum flows and levels at the point of "significant harm" is often a scientific
challenge. The definition of "significant harm" involves the implementation of
policy and technology, both of which vary across the state depending on the particular
water resource and environmental situation within a particular district. Rule 62-40.473,
Florida Administrative Code, a portion of the State Water Policy, lists ten factors that
districts are to consider when establishing minimum flows and levels: (i) recreation in
and on the water; (ii) fish and wildlife habitats and the passage of fish; (iii) estuarine
resources; (iv) transfer of detrital material; (v) maintenance of freshwater storage and
supply; (vi) aesthetic and scenic attributes; (vii) filtration and absorption of nutrients
and other pollutants; (viii) sediment loads;. (ix) water quality; and (x) navigation.

In August, the Commission unanimously recommended the following: "There must be
enhanced, meaningful use of impartial peer review for new rules, water management
concepts, plans and other documents generated by districts." The Commission did not
direct this recommendation to be codified in statute, nor did it indicate how "impartial
peers" would be selected by each district. With regard to the establishment of
minimum flows and levels, the District Responsibilities & Operations Subcommittee
determined that the appropriate type of peer review to be employed should be technical
in nature, not a formal, "academic" review. Based on the subcommittee's determination
that the technical aspects of establishing minimum flows and levels were of significant
importance, the original peer review recommendation of the Commission was modified
to include a specific reference the establishment of minimum flows and levels.


Recommendation:

There must be enhanced, meaningful use of impartial peer review for new
rules, the establishment of minimum flows and levels, water management
concepts, plans and other documents generated by districts.


COMMISSION ACTION: UNANIMOUSLY APPROVED.


20-









MINIMUM FLOWS AND LEVELS (continued)


11. C. Definition of Significant Harm

Background:

Section 373.042, Florida Statutes, provides that districts shall establish minimum ground
water levels at the point below which further withdrawals would be "significantly
harmful" to the water resources, and establish minimum surface water flows and levels
at the point below which further withdrawals would be "significantly harmful" to the
water resources and ecology.

One of the difficulties in setting flows and levels is the determination of what consti-
tutes "significant harm." Currently, Rule 62-40.473, Florida Administrative Code, (the
State Water Policy provision governing establishment of minimum flows and levels),
lists the following factors to be considered: (i) recreation in and on the water; (ii) fish
and wildlife habitats and the passage of fish; (iii) estuarine resources; (iv) transfer of
detrital material; (v) maintenance of freshwater storage and supply; (vi) aesthetic and
scenic attributes; (vii) filtration and absorption of nutrients and other pollutants; (viii)
sediment loads; (ix) water quality; and (x) navigation.

The Commission recommends that the standards for determining "significant harm"
should be contained in statute and recommends the following language:


Recommendation:

Add the following new paragraphs (4) & (5) to 373.042; Florida Statutes:

(4) For purposes of establishing minimum flows and levels, the
determination of significant harm shall be based upon a balancing of:

(a) Water quality factors. including:

(4) filtration and absorption of nutrients and other
pollutants:

(ii) sediment loads: and

(iii) other water quality considerations:

b2) Environmental values associated with coastal. estuarine.
aquatic and wetlands ecology, including:


- 21-







(i) fish and wildlife habitats and the passage of fish:

(ii) estuarine resources: and

(iii) transfer of detrital material:

() Protection of water resources. including:

(i) maintenance of freshwater storage and supply:

(4) flood protection needs: and

(iii) maintenance of the designated uses of the water body or
aauifer:

(d) Natural seasonal fluctuations in water flows and levels:

(e) Permitted uses of the water body: and

(2 Other uses made of the water body. including:

(C) recreation in and on the water;

(4) aesthetic and scenic attributes:

4il) -navigation: and

iv) other non-permitted legal uses of the water source.

(5) Establishment of minimum flows and levels for a particular water
course, water body or aquifer shall not be presumed to require restoration
to historic or redevelopment conditions.


COMMISSION ACTION: UNANIMOUSLY APPROVED.


22-









12. ISSUANCE OF PERMITS BY DISTRICT STAFF


Background:

The districts have implemented permitting programs which result in governing boards
reviewing and issuing or denying hundreds of individual permits each month. The
number of permits reviewed by governing boards has increased over the years to the
point where routine permit consideration significantly impacts the time available to
boards for the determination of broader policy issues. The governing board review pro-
cess was extremely valuable during the early stages of permitting programs, when the
boards established through permit conditions the incipient policies that have since been
codified into district rules. With the adoption of detailed regulations which codify
governing board policy, however, the need for board involvement in the processing of
permits has diminished.

In accordance with 373.116, 373.118, 373.229, 373.413(3), 373.414(9) and 373.421(2),
Florida Statutes, districts have adopted general permitting programs for projects, or
categories of projects, that governing boards have found to either singly or cumulatively
have minimal adverse impacts on district water resources. The general permitting pro-
grams allow issuance of permits by the executive director or his designee, with the right
to appeal that decision to the governing board for reconsideration. Notice regarding
proposed issuance or denial of a general permit is provided to the general public in
accordance with 373.116 (regular noticing of intended agency action) and 5 373.118
(alternative noticing which considers the nature and scope of the proposed project and
its potential effect on others). Parties eligible to challenge the proposed agency action
are allowed an opportunity to be heard by the governing board. This process of staff-
issued permits has proved successful and efficient, while still providing an opportunity
for participation by substantially affected parties.

By authorizing district staff (instead of governing boards) to make routine permitting
decisions, permitting will become more efficient for both the district and the regulated
public, while providing the same level of resource protection and ensuring interested
third parties' right to participate. Projects and categories of projects which have not
been designated as "general permits" will still be considered "individual permits," with
noticing requirements specified in S5 373.116, 373.229, 373.413, 373.414 & 373.421,
Florida Statutes. General permits will remain eligible for alternative noticing under the
provisions of 5 373.118, FS.



(continued on next page)








Recommendation:


1. The permitting process at each district should be modified to allow
the executive director or his designee to issue all permits, except for
any permit for which the district has received a written request that
it be considered by the governing board.

2. This recommendation shall not be interpreted to affect or reduce
current statutory noticing provisions.

Amend Section 373.083, Florida Statutes, as follows:

373.083 General powers and duties of the governing board.-In addition
to other powers and duties allowed it by law, the governing board is
authorized to:

(1) Contract with public agencies, private corporations, or other
persons; sue and be sued; and appoint and remove agents and employees,
including specialists and consultants.

(2) Issue orders to implement or enforce any of the provisions of this
chapter or regulations thereunder.

(3) Make surveys and investigations of the water supply and resources
of the district and cooperate with other governmental agencies in similar
activities.

4) Delegate to its executive director or his designee the authority to
issue any permit authorized by this chapter, unless the district has
received a timely ivritten request that the permit be considered by the
governing board. In delegating such permit issuance authority., the
governing board shall prescribe with particularity the circumstances under
which such final agency action may be taken: provided, however, that
nothing herein shall be construed to modify the noticing requirements
otherwise required by this chapter or chapter 120. F.S.


COMMISSION ACTION: APPROVED BY A 14-TO-1 VOTE.
EDITORIAL NOTE: The statutory language adopted by the Commission on December 1,
1995, was edited for purposes of clarity and simplicity.








13. WETLANDS AND NATURAL SYSTEMS:
CLARIFICATION OF STATUTORY CRITERIA

Background:

A proposal was offered to the Commission by persons who expressed concern that
duplicative permitting criteria for wetlands and endangered species protection were
contained in 373.016(1)&(2), Florida Statutes. The districts and Department
responded that the standards and criteria were not duplicative, and that a statutory
change could result in further modifications to the recently implemented environmental
resource permitting program. After consultation among the interested parties, the
following compromise language was presented to the Commission.

Recommendation:

Amend 373.414(2) as follows:

(1) (a) In determining whether an activity, which is in, on, or over
surface waters or wetlands, as delineated in 373.421(1), and is
regulated under this part, is not contrary to the public interest or is
clearly in the public interest, the governing board or the department
shall consider and balance ... :
2. Whether the activity will adversely affect the
conservation of fish and wildlife, including endangered or
threatened species, or their habitats. ...

(2) The governing board or the department is authorized to establish
by rule specific permitting criteria in addition to the other criteria in this
part which provides:

(a) One or more size thresholds of isolated wetlands below which
impacts on fish and wildlife and their habitats will not be
considered. These thresholds shall be based on biological and
hydrological evidence and usage by threatened or endangered
species, that shows the fish and wildlife values of such areas to be
minimal.
(b) Critria for ACthe prteTOtion Mf thA tened and endangered
species in isolated wetands regardless of size and land Ase.


COMMISSION ACTION: UNANIMOUSLY APPROVED.


25 -








14. CONSISTENT PROCEDURAL RULES AMONG DISTRICTS

Background:

The procedural rules for processing permit and license applications, as well as for
initiating and pursuing administrative actions, differ from district to district. Members
of the public have testified that this makes it unnecessarily complicated and expensive
for citizens and consultants to deal with different districts. The commentators suggest
there is no reason why the vast majority of these procedural rules could not and should
not be identical for each district; "variance" provisions could be contained within other-
wise uniform procedural rules for those rare or unique district situations that would
require special procedures or safeguards.

Recommendation:

To the degree possible, the districts should modify their procedural rules
so that they are consistent among all five districts.


COMMISSION ACTION: UNANIMOUSLY APPROVED.
EDITORIAL NOTE: This recommendation was slightly edited for purposes of clarity.








15. DISTRICT SUPERVISION OF CHAPTER 298 DISTRICTS

Background:

Chapter 298, Florida Statutes, requires each water control district created thereunder
("298 District") to file its board of supervisors' meeting minutes and plans of reclama-
tion with the Department of Environmental Protection. In addition, the statute pro-
vides that supervisors of 298 District boards be appointed by the Department when the
then-existing board is unable to elect one (e.g., when a quorum is not present). Not all
298 Districts comply with the statutory requirements to file meeting minutes and plans
of reclamation, and the Department has advised the Commission that the minutes and
plans of reclamation are not useful to the Department. Additionally, the Department
has indicated that it is more removed physically and functionally from the 298 Districts
than are the local governments or water management districts.

The Department believes that the "plans of reclamation" should be renamed "water
management plans" and should be consistent with State Water Policy, the Florida Water
Plan, and the relevant District Water Management Plan. Also, the Department feels
that 298 Districts should be authorized to undertake environmental activities to
improve water quality. The Department noted that 298 Districts are authorized to raise
revenue by levying special assessments and may, pursuant to special act of the
Legislature subject to referendum approval, levy ad valorem taxes. Accordingly, it is the
Department's position that some 298 Districts may thus be able to provide funding for
water supply development, environmental restoration and water quality improvement.


Recommendations:

Modify Chapter 298 as follows:

(1) Change the requirement that 298 Districts file their water manage-
ment plans with the Department of Environmental Protection,
instead requiring the plans to be filed with the appropriate local
general purpose government and regional water management
district. The 298 District meeting minutes shall no longer be
required to be filed with the oversight agency unless so requested.

(2) When a 298 District is unable to fill a vacancy on its board of
supervisors (e.g. a quorum is not present at the annual landowners
meeting), the Governor should appoint a person to the vacancy.
The Governor should also be authorized to remove any 298 District
supervisor in the event of misfeasance, malfeasance, or neglect of
office.


27-








(3) Regarding 298 District "plans of reclamation":


(a) Rename as "water management plans" and require that they
be consistent with the regional water management district's
water management plan;

(b) Specify minimum contents of the 298 District water
management plans;

(c) Require consistency review of 298 District water management
plans at least every five years;

(d) Assign to the regional water management district the
responsibility for consistency review of 298 District water
management plans.

(4) Authorize the 298 Districts to undertake environmental activities to
improve water quality.


COMMISSION ACTION: UNANIMOUSLY APPROVED.


28 -









16. ALTERNATIVE DISPUTE RESOLUTION


Background:

Sections 120.57 and 403.412, Florida Statutes, establish procedures whereby substantially
affected parties and citizens of the state may request an administrative hearing to
determine whether a proposed district action complies with applicable law. 120.57(2),
Florida Statutes, provides for an informal hearing if there are no disputed issues of
material fact, meaning that only questions of law may be decided. If disputed issues of
material fact are involved, a trial-like formal administrative hearing must be held,
normally conducted by a hearing officer of the Division of Administrative Hearings.'
Formal administrative proceedings can be quite lengthy and expensive for the district,
the petitioner, the permit applicant and intervenors; districts divert valuable staff time
and resources from other programs to defend their agency actions.

Occasionally the issues over which administrative disputes develop could be resolved
through alternative dispute resolution. ADR is being used extensively to facilitate the
speedy resolution of court proceedings, and offers litigants a less expensive method by
which they can attempt to determine a mutually agreeable settlement short of litigation.
ADR could be utilized without removing the participants' right to proceed to adminis-
trative hearing if settlement is not achieved.

The Division of Administrative Hearings offers the services of its hearing officers to
serve as ADR mediators for administrative matters pending before the Division. The
current procedures provide that parties to an administrative action can request
mediation, and a hearing officer who is not familiar with the case will meet with the
parties to discuss possible grounds for settlement and otherwise assist in mediating the
issues. If mediation does not succeed, the parties proceed to an administrative hearing.

It has been suggested that an ADR process be developed that would provide for a rela-
tively short period of time in which ADR could be attempted prior to filing a petition
for an administrative hearing. This recommendation is not intended to replace or
interfere with the dispute resolution processes established by the Bert J. Harris, Jr.
Private Property Rights Protection Act.

Recommendation:

If a disagreement arises after issuance of a. staff report, proposed consent
order, or proposed agency action:
(continued)


S The entire district governing board or a member thereof can also act as the hearing officer in a formal
administrative proceeding, but in actual practice petitions for formal hearing are routinely referred to the Division
of Administrative Hearings for adjudication.







(a) The applicant, agency or third party may request mediation.
Written consent by the applicant, agency, and any third
party requesting mediation is required to initiate mediation.

(b) A timely written request for mediation or waiver by the
applicant, or an agreement among all mediation participants,
would toll the time for filing a Chapter 120 petition by parti-
cipants and would extend the 90-day clock for agency action.

(c) Unless otherwise agreed by the applicant, final action must
be taken on the application either (i) within sixty days or (ii)
by the second meeting of the governing board, following the
timely filing of a written request for mediation.

(d) During the 60-day period, mediation of the disputed issues
would occur. Participation in mediation shall be voluntary.

(e) The cost of mediation would be shared by all participants
including third parties and citizens if they initiated the
request for mediation.

(f) The applicant may request other interested persons to
participate without cost.

(g) In the event a mediated settlement is reached, the staff report,
proposed consent order or proposed agency action will be
revised and submitted to the agency head.

(h) This process shall not be presumed to require the use of a
professional mediator and may include any form of alterna-
tive dispute resolution agreed to by the participants.

On November 30, 1995, the Commission unanimously agreed that the
foregoing mediation process should also be available for challenges to proposed
and existing administrative rules. Accordingly, the Commission's legislative
package for implementation of its recommendations will include a similar
process, modified only to the extent necessary to be compatible and consistent
with the administrative processes of Chapter 120, Florida Statutes.

COMMISSION ACTION: UNANIMOUSLY APPROVED.


30 -








17. RULEMAKING: LEAST COST ALTERNATIVE


Background:

Districts' general rulemaking authority is contained in the following statutory provisions:

373.113 Adoption of regulations by the governing board.-In administering the
provisions of this chapter the governing board shall adopt, promulgate, and enforce
such regulations as may be reasonably necessary to effectuate its powers, duties, and
functions pursuant to the provisions of chapter 120.

373.171 Rules and regulations.-
(1) In order to obtain the most beneficial use of the water resources of the state and
to protect the public health, safety, and welfare and the interests of the water users
affected, governing boards, by action not inconsistent with the other provisions of this
law and without impairing property rights, may:
(a) Establish rules, regulations, or orders affecting the use of water....
(b) Regulate the use of water within the affected area by apportioning,
limiting, or rotating uses of water or by preventing those uses which the
governing board finds have ceased to be reasonable or beneficial.
(c) Make other rules, regulations, and orders necessary for the preservation of
the interests of the public and of affected water users.
(2) In promulgating rules and regulations and issuing orders under this law, the
governing board shall act with a view to full protection of the existing rights to water
in this state insofar as is consistent with the purpose of this law.
(3) No rule, regulation or order shall require any modification of existing use or dis-
position of water in the district unless it is shown that the use or disposition proposed
to be modified is detrimental to other water users or to the water resources of the state.


Recommendation:

Amend Section 373.113 as follows:

373.113 Adoption of regulations by the governing board.-In
administering the provisions of this chapter the governing board shall
adopt, promulgate, and enforce such regulations as may be reasonably
necessary to effectuate its powers, duties, and functions pursuant to the
provisions of chapter 120. All substantive rules adopted shall represent
the least cost alternative while accomplishing the goals of the statute being
implemented and taking into consideration the benefit to the public at
large and the cost to the regulated community.

(continued on next page)








In making this recommendation, the Commission makes an explicit find-
ing that the foregoing amendment to Section 373.113, F.S. is not intended
to prevent, prohibit or in any way limit the authority of the districts to
promulgate rules which include consideration of (i) the proximity ofa
proposed source of water to the area in which it is to be used or applied
and (ii) economically and technically feasible alternatives to the rooosed
source. such as desalination, reuse. stormwater and aquifer storage and
recover,. for those rules related to Part II of this Chaster which concern
transport of ground or surface waters.6


COMMISSION ACTION: UNANIMOUSLY APPROVED.




























6 See Recommendation No. 5 on page 10 of this document.


- 32 -








18. RULEMAKING: PRESUMPTION OF CORRECTNESS'


Background:

Currently water management district administrative rules are subject to challenge by
substantially affected persons, based upon an assertion that the rule is an invalid exercise
of delegated legislative authority. The challenger to the rule has the burden of
demonstrating that the rule is such an invalid exercise. The decision regarding a rule's
validity is made by a hearing officer from the Division of Administrative Hearings. In
making that decision, the hearing officer considers the agency's interpretation of the
statute being implemented to be correct unless it is not within the range of permissible
interpretation.

Members of the public recommend that this presumption of correctness in favor of the
agency (district) be removed.


Recommendation:

With regard to administrative rule challenge proceedings under Sections
120.54 and 120.56, Florida Statutes, the Commission heard significant
public comment regarding the presumption of validity currently afforded
an agency's interpretation of enabling legislation. While the Commission
has not been charged with reviewing and making recommendations
regarding rule challenge proceedings under Chapter 120, the level of
concern voiced by the public indicates that the Legislature should modify
the standard applied in rule challenge hearings to remove the presumption
of validity that currently exists in favor of the agency. In determining the
validity of administrative rules, a hearing officer shall consider the
agency's interpretation of the statute and the challenger's interpretation of
the statute on a "level playing field." The Commission recommends that
Chapter 120 be amended to implement such a concept.


COMMISSION ACTION: APPROVED BY A 10-TO-5 VOTE.





7 As long as an agency's interpretation of the statute being implemented is within the permissible range
of definitions, the agency's view will be sustained, "though other interpretations are possible and may
even seem preferable[.]" Department of Health & Rehabilitative Services v. Framat Realty, 407 So. 2d 238
(Fla. 1st DCA 1981).


33 -








19. BETTER COMMUNICATION WITH THE PUBLIC


Background:

Concerns were expressed and suggestions made regarding district communications with
the public. Commission members agreed that districts should respond to official com-
plaints of violations in a prompt and timely manner. It was suggested that implemen-
tation of an "800" telephone number or "hot line" would expedite citizen inquiries and
facilitate the complaint process,


Recommendation:

Districts should enhance communication with citizens by:

1. Responding promptly to citizen inquiries and complaints, and

2. Implementing toll-free numbers to expedite citizen inquiries and
facilitate handling of complaints.


COMMISSION ACTION: UNANIMOUSLY APPROVED.








20. MODIFICATIONS TO AGRICULTURAL PERMITTING


Background:
Currently agricultural interests must obtain a number of permits including surface
water, consumptive use, and in some instances dredge and fill and/or discharge permits.
The permits can be duplicative in the information needed and the analyses undertaken.

Recommendations:

1. The Legislature should direct the water management districts, the
Department of Environmental Protection, and the Department of
Agriculture and Consumer Services to jointly develop and imple-
ment voluntary, integrated "whole farm" or forestry management
programs that would include non-regulatory, incentive-based alter-
natives for agriculture and forestry activities which are directed to
more efficient or effective resource management on agricultural and
forestry lands and a net environmental benefit compared to conven-
tional regulatory programs. Examples of such programs include the
Suwannee River WaterManagement District's Forestry and Agricul-
ture Resource Management (FARM) Program and the Southwest
Florida Water Management District's Agricultural Ground and
Surface Water Management (AGSWM) Program. The development
and implementation of integrated programs will require the
coordination and cooperation with other governmental agencies to
identify all regulatory functions involved in agricultural activities,
including federal and local governmental entities, and should
include appropriate delegation of regulatory functions to achieve the
goals of consolidation and simplification of regulatory programs.

2. The Legislature should provide specific authority for the water man-
agement districts to procedurally consolidate separate permitting
actions for the same activity into a single authorization process.
The procedural consolidation shall not impose additional regulatory
criteria or guidelines.

3. The districts should train staff to have both practical and technical
knowledge of agricultural production practices within the district.


COMMISSION ACTION: UNANIMOUSLY APPROVED.







21. WATER SUPPLY DEVELOPMENT AND MANAGEMENT


Background:

The following proposals were submitted to the Commission in support of the premise
that as a prime directive for water supply development, the Legislature should create
a state regulatory and water supply program designed to assure there is an adequate sup-
ply of water for all users. The submitting commentator stated that the fact Florida
receives an average annual rainfall of 50-55 inches should make achievement of the
prime directive feasible, if surface and groundwater resources are used wisely.


Recommendation Modified or Rejected:

A. Direct water management district boards to develop adequate
sources of long term water supplies for all users. Restrict boards to
the wholesale allocation and/or delivery of water. The Legislature
should ensure appropriate funding mechanisms are available to the
water management districts to carry out their water supply
responsibilities.

COMMISSION ACTION ON RECOMMENDATION A: The first sentence
was addressed by the Commission in Recommendation 1-A on page 1 of this
document; the Commission UNANIMOUSLY REJECTED the second sen-
tence; and the third sentence was addressed by Commission recommendations
relating to financial structure and budgeting processes of the districts.


Recommendation:

B. Over time, ensure that the management plans for state and district
lands, parks and forests (other than submerged lands) consider
making these lands available for appropriate multiple uses that are
sustainable and compatible with the purposes for which the land
was acquired and which may include water supply.


COMMISSION ACTION: UNANIMOUSLY APPROVED.


36-









22. ENVIRONMENTAL PROTECTION ACT (403.412, F.S.)

Background:

Section 403.412, Florida Statutes, establishes a mechanism by which any citizen or politi-
cal subdivision of the state can file a legal action to compel a governmental agency
responsible for protecting the environment to enforce any law, rule or regulation "for
the protection of the air, water,.and other natural resources of the state." In addition,
the statute provides for a cause of action by any citizen to enjoin the violation of
environmental laws, as well as an opportunity to intervene in an administrative or
permitting proceeding. Some members of the Commission advised that this process was
being abused by persons who wanted to delay the issuance of any regulatory permit.
The Commission also received testimony that the statute was used by some to obtain
settlement fees from permit applicants who would rather pay the citizen and proceed
with permit issuance, rather than expend significant time and money to defend the
application in an administrative hearing. In addition, another Commissioner indicated
that the provision in 403.412, F.S., requiring the payment of attorney's fees to the
prevailing party, discouraged some citizens from filing potentially meritorious claims.
While the Commission agreed that these concerns should be investigated and suitable
remedies fashioned, members concluded that the legislative process was a more appro-
priate forum for the full and complete participation by persons subject to or interested
in the statutory provision.


Recommendation:

The Legislature should review the citizen suit mechanisms established by
Section 403.412, F.S., to ensure that the statute and current case law
effectively provide for responsible participation in the enforcement of
environmental laws and precludes misuse of the statute for purposes of
delay or monetary gain. The Legislature's investigation should include,
but not be limited to, the following issues:

A. Whether and to what extent the standing to file or intervene in a
judicial cause of action or administrative proceeding should be
based upon a direct or substantial relationship between the
claimant and the proposed project or agency action;

B. Whether the formulation of agency action should provide for and
encourage early participation by potentially interested parties, and
whether a missed opportunity to participate or provide factual or
scientific information would preclude later involvement;


37 -








C. Whether the present cost allocation among the permitted, agency
and third party participant is fair, including an evaluation of
whether all participants should pay a proportionate share of the cost
of judicial or administrative proceedings and if payment bonds
should be required;

D. Whether there should be a limitation on the number of times a
participant could formally object to and prevent a project from
proceeding OR a time certain by which such claims must be
pursued or thereafter barred, if such objections are primarily for the
purpose of delay; and

E. Whether the mandatory award of attorney's fees and costs to the
prevailing party under 403.412(2)(f), F.S., inhibits the filing of
potentially meritorious cases, and whether that provision should be
modified to give the judge or hearing officer the discretion to award
attorney's fees and costs.


COMMISSION ACTION: UNANIMOUSLY APPROVED.


















(D:\DATA\WP\WM\RECS\CMBALDRS.FNL)








CUMULATIVE PRELIMINARY RECOMMENDATIONS OF THE
WATER MANAGEMENT DISTRICT REVIEW COMMISSION
RELATING TO DISTRICT GOVERNANCE, OVERSIGHT,
FINANCIAL STRUCTURE AND BUDGETING


In public meetings of August 23-25, September 26-27, October 20, and December 1,
1995, the Water Management District Review Commission adopted the following preliminary
recommendations regarding governance, oversight, financial structure and budgeting processes
of Florida's water management districts. While some of the proposals will require legislative
action, others can be implemented by the districts, the Executive Office of the Governor and
the Legislature without additional statutory authority, and the Commission strongly
encourages those entities to do so. To implement recommendations requiring statutory
modification, the Commission will draft proposed legislation for consideration during the 1996
regular session of the Legislature. The Commission's recommendations resulted from testimony
given by the general public during statewide hearings, written comments to the Commission
from Florida citizens and interested parties, information received from state agencies and the
water management districts, the personal expertise and experience of individual Commission
members. Unless otherwise indicated, the vote on all recommendations was unanimous.


1. DISTRICT GOVERNING BOARDS

A. Current statutory provisions regarding gubernatorial appointment
of district governing board members should be retained, i.e.
members of district governing boards should not be elected and
nominating committees or councils are not necessary. In addition,
the current statutory provision whereby district governing board
chairmen are elected by members of their respective governing
boards should not be changed (see 373.079(2), Florida Statutes).

B. Appointments to district governing boards should be staggered so
that during each year of the Governor's four-year term of office, he
or she would appoint the indicated number of board members to
each water management district governing board (approved by a
15-to-2 margin):

Southwest Florida Northwest, Suwannee River,
Water Management District St. Johns River and South Florida

1st Year: 3 3
2nd Year: 3 2
3rd Year: 3 2
4th Year: 2 2


i







C. Each governing board should create a district ombudsman position
to respond to inquiries and complaints from or among permit
applicants, interested parties and citizens regarding district
regulatory policies and practices, budgeting issues and processes, and
general operational programs. The ombudsman would help citizens
understand the policies, practices and programs of the district, and
facilitate citizen-staff interactions to encourage the amicable
resolution of disputes or differences of opinion. The governing
board should hire the ombudsman based upon appropriate quali-
fications, or the position could be staffed by existing district
personnel on a part-time or full-time basis as needed.

D. Attorneys employed by water management districts should be hired
by, work for, and be accountable to the governing boards, not to the
district executive directors or general staff.






2. EXECUTIVE OVERSIGHT OF DISTRICTS


A. The Governor should approve or reject the annual budget of each
water management district.

B. The Executive Office of the Governor should establish permanent
positions) to review the financial and programmatic activities of
Florida's five water management districts. The positions) should
further serve as Executive Branch liaison to, and coordinate appro-
priate review deadlines and notices with, the legislative committees
having substantive and appropriation jurisdiction over water man-
agement districts.

B. The Commission makes no recommendation regarding the organiza-
tion, membership or mission of the Water Resources Coordination
Commission established by Executive Order No. 91-266.


-2-








3. LEGISLATIVE ADOPTION OF WATER POLICY AND PLAN


State water policy and the state water plan should be adopted by the
Legislature. The Florida Department of Environmental Protection and
the five water management districts should together draft the state water
policy and the state water plan and present them to the Legislature for
adoption.


4. LEGISLATIVE OVERSIGHT AND FUNDING OF DISTRICTS

The Commission's report to the Governor and Legislature will reflect that
the oversight capabilities currently reposed within the authority of the
Legislature have not been effectively used to constrain or guide the
districts in their budgetary and operational priorities. Although the
authority for legislative and executive oversight of water management
districts' financial activities clearly exists within the current statutory
framework, constructive application of those oversight prerogatives has
not been sufficient to address citizens' perception that districts are "out of
control." Accordingly, the Commission makes the following specific
recommendations:

A. Standing committees on water resources should be created in both
houses of the Florida Legislature, adequately staffed with persons
having suitable substantive expertise.'

B. The General Government Subcommittees of the Senate Ways &
Means Committee and the House ofRepresentatives Appropriations
Committee should annually review the districts' proposed budgets
and provide to each district specific comments regarding budget
questions or concerns. The districts should be required to respond
to each appropriation subcommittee comment in writing within a
time certain. The codification of this recommendation should
include a "reminder" that the Legislature currently has the statutory
authority to reduce district ad valorem millage.


The Commission recognizes, of course, that the President of the Senate and the Speaker of the House of
Representatives have full and sole statutory discretion to create committees that they individually determine
are necessary and appropriate.








C. The Legislature should consider whether it would be advisable to
modify the districts' fiscal years to facilitate legislative review and
adjust TRIM requirements accordingly.

D. The Legislature should provide a permanent and adequate source
of state funding for implementation of the Surface Water
Improvement and Management (SWIM) program.

E. The ad valorem taxing authority should be equal among all
districts, i.e. Northwest Florida Water Management District's
constitutional millage cap should be raised to the same level as that
of the remaining districts, i.e. from .05 mill to 1.0 mill (passed by
a 11-to-2 vote).

F. An alternative funding source should be provided by statute for the
Suwannee River and Northwest Florida Water Management
Districts in recognition of their limited ad valorem tax bases.

G. The Legislature should investigate alternative funding sources for
statewide water resource programs implemented by the water
management districts, including but not limited to a bondable
capital improvement fund for urban, agricultural and
environmental water supply capital improvements such as aquifer
storage and recovery, regional reservoirs and reuse infrastructure.
This task could be assigned to appropriate legislative committees or
the Legislature could create a 9-member commission, with three
members appointed by the Governor, three by the President of the
Senate, and three by the Speaker of the House of Representatives.
Proposals could be submitted for legislative consideration in the
1997 regular session.








5. FINANCIAL ACCOUNTABILITY AND BUDGETING

A. The governing boards of water management districts have the
prerogative and the responsibility to determine the priority and the
extent to which local funding is appropriate and available to
accommodate legislatively mandated statewide programs. The
Legislature shall affirm what it collectively determines are the
important policies and programs of the state by providing state
funding or other alternative revenue source funding to the districts
to implement those priorities. To the extent that new or expanded
water resource programs and regulatory responsibilities enacted by
the Legislature or delegated to the districts by the Department of
Environmental Protection are not accompanied by general
appropriation funding, the districts shall be exempt from
implementing the new or expanded programs.

Amend 373.501 as follows:

373.501 Appropriation of funds to water management
districts. -- The department may allocate to the water manage-
ment districts, from funds appropriated to the department,
such sums as may be deemed necessary to defray the costs of
the administrative, regulatory, and other activities of the
districts. The governing boards of the water management dis-
tricts have the prerogative and the responsibility to determine
the priority and the extent to which local funding is appro-
priate and available to accommodate legislatively mandated
statewide programs. The governing boards shall submit
annual budget requests for such purposes to the department,
and the department shall consider such budgets in preparing
its budget request for the Legislature. The Legislature shall
affirm what it collectively determines are the important poli-
cies and programs of the state by providing state funding or
alternative revenue source funding to the districts to imple-
ment those priorities. To the extent that new or expanded
water resource programs and regulatory responsibilities
enacted by the Legislature or delegated to the districts by the
department are not accompanied by state funding or other
alternative revenue source funding, the districts shall be
exempt from implementing the new or expanded programs.


-5-







B. Each district should provide a copy of its proposed budget, the past
year's expenditures, and its annual in-house financial audit to the
Governor, the President of the Senate, the Speaker of the House, the
chairs of all legislative committees and subcommittees with
substantive or appropriation jurisdiction over water management
districts, the Secretary of the Department of Environmental
Protection, and the governing body of each county in which the
district has jurisdiction or derives any funds for the operations of
the district ("the entities"). The districts shall respond in writing to
each comment received from any of the entities, and shall furnish
copies of those comments and written responses to all entities.

C. Truth-in-millage provisions within Chapter 200, Florida Statutes,
should be revised to permit more accurate noticing of district tax
rates to both property owners and the general public, and to allow
additional information where appropriate, e.g. explanatory phrases
or examples.

D. Budget advertising requirements should be expanded to include
notice of all budget workshops and hearings in newspapers of local
circulation.

E. Districts should collectively standardize their budget reporting
formats so that all districts' are fully comparable; fiscal and budget
policies and procedures should approximate those of state agencies
to the greatest extent practicable; and district operating expenses
(i.e. "overhead") should be accurately and proportionately allocated
among the various programs implemented by the districts.

F. Where possible, the districts should develop uniform permit applica-
tion fees and forms for statewide use, with possible exceptions for
geographic differences.







(D:\DATA\WP\WM\RECS\GOVERFSB.FNL)


-6-









PRELIMINARY RECOMMENDATIONS OF THE
WATER MANAGEMENT DISTRICT REVIEW COMMISSION
REGARDING DISTRICT LAND ACQUISITION,
PLANNING AND MANAGEMENT



In its final deliberative meeting of November 30 and December 1, 1995, the Water
Management District Review Commission adopted the following preliminary recommendations
regarding the land acquisition, planning and management programs of Florida's five water
management districts. While some of the recommendations will require legislative action,
others can be implemented by the districts without additional statutory authority, and the
Commission strongly encourages the districts to do so. To implement recommendations
requiring statutory modification, the Commission will draft proposed legislation for considera-
tion during the 1996 regular session of the Florida Legislature. The Commission's
recommendations resulted from consideration of testimony given by the general public during
statewide hearings, written comments to the Commission from Florida citizens and interested
parties, information received from state agencies and the water management districts, the
personal expertise and experience of individual Commission members, and extensive discussions
among the participants in the proceedings of the Land Acquisition, Planning & Management
Subcommittee. Unless otherwise indicated, the following recommendations were adopted by
unanimous agreement of the Commission. The final wording of each recommendation is sub-
ject to editorial modification for purposes of clarity and precision.


A. LAND ACQUISITION PROGRAMS

1. Ensure that state land acquisition programs do not subject landowners to
increased regulatory requirements. It is the intention of the Commission to
recommend the prohibition of such occurrence in order to complete the
necessary acquisition of lands.

2. Request the Legislature enact appropriate statutory amendments to ensure that
any maps, inventories, or any related graphic information prepared by any state
agency, water management district or regional planning council shall only be
used for the express purpose for which it was statutorily authorized and shall
not be used or incorporated by reference into any regulatory rules or programs.'

3. Require the Department of Environmental Protection to establish a procedure,
including public and private access, for data exchange between water
management districts and local governments and to create regional and state
repositories of conservation land data.


SThis recommendation was passed by a 15-to-1 vote of Commission members.








4. Authorize the Department of Environmental Protection to expand the use of
water management districts and their procedures for the acquisition of CARL
and other Preservation 2000 programs for which funding is available to include
lands purchased with 100 percent state funds, where requested by the water
management districts.

5. Encourage the fastest and fullest implementation of Chapter 94-240, Laws of
Florida (CS/HB 161) to facilitate acquisition of the necessary interests in lands
identified in state land acquisition programs.

6. Recommend that the Legislature enact statutory revisions to remove any
impediments to the state from fully participating in the above process.

7. Direct the water management districts to recognize and integrate into district
plans the water resource-related conservation and acquisition programs of local
governments within each district's jurisdiction.

8. Recommend that the Legislature continue funding of Preservation 2000 to its
completion.

9. Recommend that the Legislature direct appropriate state agencies to amend their
rules and procedures to efficiently implement their land acquisition programs to
utilize available funds and eliminate the existing backlog of money.

10. Require an annual report from the water management districts and appropriate
state agencies published and submitted to the Governor, President of the Senate
and Speaker of the House of Representatives, on progress achieved during that
year toward implementing state land acquisition programs.

11. Require the Department of Environmental Protection to coordinate and
establish a formalized integrated process to fully coordinate and integrate public
and not-for-profit land acquisition for conservation lands programs.

12. Require the Legislature to pass a resolution asking the Florida Congressional
Delegation to encourage Congress' cooperation with the state for conservation
of federal lands not currently protected for conservation purposes.

13. Direct the Department of Environmental Protection, the Department of
Community Affairs and the water management districts to complete an
economic analysis of the relative cost benefits of public conservation programs,
as compared to development in accordance with approved local government
comprehensive plans.









14. For land acquisition programs in effect on the date of this act, the responsible
agency shall, to the greatest extent practicable, notify the property owner of the
identification of the property in the acquisition program.

15. When a water management district or other state agency proposes to place real
property in a land acquisition program, the district or other state agency shall
notify the owner of the real property prior to including the land in the
program. Except for those land acquisition programs or projects for which the
statutory power of eminent domain exists, if the owner of the property does not
consent to inclusion of the property in the acquisition program, the land shall
not be included in the land acquisition program.

16. Direct the water management districts, in coordination with the Department of
Environmental Protection and the Department of Agriculture and Consumer
Services, to meet with representatives from agriculture, forestry and conservation
interests, and regulated industries to identify and develop non-regulatory,
voluntary, incentive-based programs to encourage participation in state land
acquisition programs.

17. Direct the water management districts, in coordination with the Department of
Environmental Protection, to evaluate existing tax law to identify existing
incentives, and develop and seek implementation of alternative state and local
tax incentives for landowners participating in state land acquisition programs.

18. Direct the Department of Environmental Protection to coordinate with the
Office of the Auditor General regarding land acquisition procedures to identify
and implement more effective land acquisition programs.


B. LESS-THAN-FEE ACQUISITION

1. Specific provisions should be included in Chapter 373, Florida Statutes, to:

A. Clarify that public recreation is encouraged but not mandated on lands
for which a less-than-fee interest is acquired;
B. Require that access be afforded to the districts adequate enough to
enforce the provisions of the less-than-fee interest;
C. Ensure that no outstanding interests in properties (such as mineral
interest or mortgages) continue or are superior to the less-than-fee
interest acquired which could compromise the purpose for which the
less-than-fee is acquired; and
D. Require the lead acquisition agency perform a baseline inventory, at their
expense, on each property prior to acquisition of a conservation
easement.









2. Require the water management districts to modify their Water Management
District Land Trust Fund acquisition programs as follows:

A. By March 1997, any lands included in state land acquisition programs
which require a full fee interest to achieve water management goals shall
be identified.

B. For those lands pursued for acquisition not requiring full fee interest, and
for which the landowner is willing to sell a less-than-fee interest which
meets the district's objectives, a cost/benefit analysis shall be completed
between fee and less-than-fee which includes: acquisition, management,
impact to the tax revenue of the local government, and revenue potential
from the land compatible revenue-generating activities. In general, the
option which is the least present value/cost should be pursued;
exceptions to this shall be required to include a justification.

3. The water management districts and the Department of Environmental Protec-
tion shall include in the annual state land acquisition programs reports published
and submitted to the Governor, President of the Senate and Speaker of the
House of Representatives, an annual report on less-than-fee acquisitions, obsta-
cles encountered to its use and suggested resolutions, including recommended
statutory amendments.

4. Request the Legislature to direct the appropriate state agencies to adopt and
implement the same criteria and procedures defined above for the maximized
utilization of less-than-fee acquisition programs.

5. Direct the water management districts and the Department of Environmental
Protection to complete an inventory of their current lands by October 1, 1996,
which may be better utilized to provide economic, as well as environmental
benefit. Some of the possible alternatives may include: sale of surplus lands,
land leases for compatible land use activities and/or sale of lands with
restrictions to ensure original purposes of acquisition are met.

6. Direct the water management districts and the Department of Environmental
Protection to review and evaluate current appraisal methodologies. Such review
shall identify current opportunities and impediments, and propose amendments
to fairly utilize less-than-fee techniques.


C. LAND MANAGEMENT

1. Recommend the Legislature maintain the integrity of the Water Management
Lands Trust Fund to ensure a reliable and ongoing funding source for water
management district land management activities.


-4-









2. Direct the Department of Environmental Protection, in coordination with the
water management districts, to: investigate the feasibility of restructuring the
current limitations on Preservation 2000 bond issues to reduce limitations on
private resource management activities on P2000 lands; retain expert advice on
the evaluation of current restrictions of activities/uses of public conservation
lands purchased with P2000 funds; and prepare recommendations for
amendments to future bond documents to allow more effective and productive
use of these lands, which are consistent with the primary purpose for which the
interests in such lands were acquired.

3. By March 1, 1997, the state land management agencies and the water
management districts shall complete and submit a full report on the long-term
management costs, inclusive of funding sources, of currently-owned lands, using
consistent management cost criteria, formulas and reporting formats. The spe-
cific identification of the cost of restoration and any capital project shortfalls
shall be included, as well as the sources of funding and revenue necessary to
implement and complete such projects within this report.

4. Prior to final acquisition, the water management districts shall complete a
conceptual management plan, which shall address management, exotics,
restoration, preliminary long-term management costs and projected funding
sources necessary to achieve the management plan.

5. No later than one year from the date of final acquisition of an adequate portion
of the project area to substantially meet the management goals contained within
the conceptual land management plan, the water management districts shall
prepare a final management plan, and where applicable, restoration plan,
including specific schedules, funding sources and a budget consistent with the
conceptual management plan, for review and approval by the governing board.

6. Direct the water management districts, in coordination with the Department of
Environmental Protection, to identify and evaluate any statutory requirements
for public access on water management district and state lands for amendment
to allow compatible uses.

7. Direct the water management districts and the state to prepare exotic species
management plans for all currently-owned lands. These plans shall include
implementation schedules, proposed budgets and identified needs and sources of
funding, and are to be completed by March 1, 1997.

8. The water management districts, in coordination with the Department of Envi-
ronmental Protection, shall establish and adopt uniform criteria and reporting
formats for management prospectuses and plans by March 1, 1997.


-5-








D. MITIGATION


1. The water management districts and the Department, in coordination with the
appropriate local governments, shall identify all public lands within each water-
shed or ecosystem management area which would be eligible for mitigation
projects or mitigation banks to be established by public, private, or not-for-profit
entities. This determination of eligibility could be performed for any private
lands whose owners request such determination. The purpose of this process is
to provide advance notice of areas within each watershed or ecosystem
management area which have existing or potential resource values for offsetting
the loss of wetland function. This is to be accomplished by March 1, 1997.2

2. The water management districts and the Department shall include in the annual
state land acquisition programs report, published and submitted to the Governor,
President of the Senate and Speaker of the House of Representatives, an update
of which lands they have acquired or conserved which are eligible for district
endorsed mitigation projects or mitigation banks by January 15th of each year.

3. The water management districts and Department shall establish procedures to
assist permit applicants in addressing mitigation requirements for proposed
wetland impacts. These procedures shall result in an expedited mechanism which
increases the level of certainty for permit applicants.

4. Where a water management district or the Department operates a mitigation bank
or implements a mitigation project, the aforementioned procedure shall specify
S that where a water management district or the Department operates a mitigation
bank or accepts cash contributions for district-endorsed mitigation projects, the
amount charged to permit applicants who utilize such bank.or project shall be no
less than the full cost of the mitigation bank activities or the project to the
district or the Department. These costs shall include all direct and indirect
expenses for land acquisition, land management, and capital and other costs for
restoration and enhancement activities.

5. Direct the water management districts and the Department to establish separate
accounts for funds received from mitigation projects so that those funds are
identified to be used for acquisition and restoration projects, which will offset the
impacts identified.

6. Direct the water management districts and the Department to cooperate with pri-
vate and nonprofit entities, local governments and other state agencies for the
establishment of mitigation projects and banks on district or state lands where
possible, and voluntarily on private lands when appropriate.
(D:\DATA\WP\WM\RECS\LAN)ACQI.DFT)


2 This recommendation was passed by a 16-to-2 vote of Commission members.









PRELIMINARY RECOMMENDATIONS OF THE
WATER MANAGEMENT DISTRICT REVIEW COMMISSION
REGARDING DISTRICT LAND ACQUISITION,
PLANNING AND MANAGEMENT



In its final deliberative meeting of November 30' and December 1, 1995, the Water
Management District Review Commission adopted the following preliminary recommendations
regarding the land acquisition, planning and management programs of Florida's five water
management districts. While some of the recommendations will require legislative action,
others can be implemented by the districts without additional statutory authority, and the
Commission strongly encourages the districts to do so. To implement recommendations
requiring statutory modification, the Commission will draft proposed legislation for considera-
tion during the 1996 regular session of the Florida Legislature. The Commission's
recommendations resulted from consideration of testimony given by the general public during
statewide hearings, written comments to the Commission from Florida citizens and interested
parties, information received from state agencies and the water management districts, the
personal expertise and experience of individual Commission members, and extensive discussions.
among the participants in the proceedings of the Land Acquisition, Planning & Management
Subcommittee. Unless otherwise indicated, the following recommendations were adopted by
unanimous agreement of the Commission. The final wording of each recommendation is sub-
ject to editorial modification for purposes of clarity and precision.


A. LAND ACQUISITION PROGRAMS

1. Ensure that state land acquisition programs do not subject landowners to
increased regulatory requirements. It is the intention of the Commission to
recommend the prohibition of such occurrence in order to complete the
necessary acquisition of lands.

2. Request the Legislature enact appropriate statutory amendments to ensure that
any maps, inventories, or any related graphic information prepared by any state
agency, water management district or regional planning council shall only be
used for the express purpose for which it was statutorily authorized and shall
not be used or incorporated by reference into any regulatory rules or programs.1

3. Require the Department of Environmental Protection to establish a procedure,
including public and private access, for data exchange between water
management districts and local governments and to create regional and state
repositories of conservation land data.


1 This recommendation was passed by a 15-to-1 vote of Commission members.









4. Authorize the Department of Environmental Protection to expand the use of
water management districts and their procedures for the acquisition of CARL
and other Preservation 2000 programs for which funding is available to include
lands purchased with 100 percent state funds, where requested by the water
management districts.

5. Encourage the fastest and fullest implementation of Chapter 94-240, Laws of
Florida (CS/HB 161) to facilitate acquisition of the necessary interests in lands
identified in state land acquisition programs.

6. Recommend that the Legislature enact statutory revisions to remove any
impediments to the state from fully participating in the above process.

7. Direct the water management districts to recognize and integrate into district
plans the water resource-related conservation and acquisition programs of local
governments within each district's jurisdiction.

8. Recommend that the Legislature continue funding of Preservation 2000 to its
completion.

9. Recommend that the Legislature direct appropriate state agencies to amend their
rules and procedures to efficiently implement their land acquisition programs to
utilize available funds and eliminate the existing backlog of money.

10. Require an annual report from the water management districts and appropriate
state agencies published and submitted to the Governor, President of the Senate
and Speaker of the House of Representatives, on progress achieved during that
year toward implementing state land acquisition programs.

11. Require the Department of Environmental Protection to coordinate and
establish a formalized integrated process to fully coordinate and integrate public
and not-for-profit land acquisition for conservation lands programs.

12. Require the Legislature to pass a resolution asking the Florida Congressional
Delegation to encourage Congress' cooperation with the state for conservation
of federal lands not currently protected for conservation purposes.

13. Direct the Department of Environmental Protection, the Department of
Community Affairs and the water management districts to complete an
economic analysis of the relative cost benefits of public conservation programs,
as compared to development in accordance with approved local government
comprehensive plans.


-2-









14. For land acquisition programs in effect on the date of this act, the responsible
agency shall, to the greatest extent practicable, notify the property owner of the
identification of the property in the acquisition program.

15. When a water management district or other state agency proposes to place real
property in a land acquisition program, the district or other state agency shall
notify the owner of the real property prior to including the land in the
program. Except for those land acquisition programs or projects for which the
statutory power of eminent domain exists, if the owner of the property does not
consent to inclusion of the property in the acquisition program, the land shall
not be included in the land acquisition program.

16. Direct the water management districts, in coordination with the Department of
Environmental Protection and the Department of Agriculture and Consumer
Services, to meet with representatives from agriculture, forestry and conservation
interests, and regulated industries to identify and develop non-regulatory,
voluntary, incentive-based programs to encourage participation in state land
acquisition programs.

17. Direct the water management districts, in coordination with the Department of"
Environmental Protection, to evaluate existing tax law to identify existing
incentives, and develop and seek implementation of alternative state and local
tax incentives for landowners participating in state land acquisition programs.

18. Direct the Department of Environmental Protection to coordinate with the
Office of the Auditor General regarding land acquisition procedures to identify
and implement more effective land acquisition programs.


B. LESS-THAN-FEE ACQUISITION

1. Specific provisions should be included in Chapter 373, Florida Statutes, to:

A.- Clarify that public recreation is encouraged but not mandated on lands
for which a less-than-fee interest is acquired;
B. Require that access be afforded to the districts adequate enough to
enforce the provisions of the less-than-fee interest;
C. Ensure that no outstanding interests in properties (such as mineral
interest or mortgages) continue or are superior to the less-than-fee
interest acquired which could compromise the purpose for which the
less-than-fee is acquired; and
D. Require the lead acquisition agency perform a baseline inventory, at their,
expense, on each property prior to acquisition of a conservation
easement.









2. Require the water management districts to modify their Water Management
District Land Trust Fund acquisition programs as follows:

A. By March 1997, any lands included in state land acquisition programs
which require a full fee interest to achieve water management goals shall
be identified.

B. For those lands pursued for acquisition not requiring full fee interest, and
for which the landowner is willing to sell a less-than-fee interest which
meets the district's objectives, a cost/benefit analysis shall be completed
between fee and less-than-fee which includes: acquisition, management,
impact to the tax revenue of the local government, and revenue potential
from the land compatible revenue-generating activities. In general, the
option which is the least present value/cost should be pursued;
exceptions to this shall be required to include a justification.

3. The water management districts and the Department of Environmental Protec-
tion shall include in the annual state land acquisition programs reports published
and submitted to the Governor, President of the Senate and Speaker of the
House of Representatives, an annual report on less-than-fee acquisitions, obsta-.
cles encountered to its use and suggested resolutions, including recommended
statutory amendments.

4. Request the Legislature to direct the appropriate state agencies to adopt and
implement the same criteria and procedures defined above for the maximized
utilization of less-than-fee acquisition programs.

5. Direct the water management districts and the Department of Environmental
Protection to complete an inventory of their current lands by October 1, 1996,
which may be better utilized to provide economic, as well as environmental
benefit. Some of the possible alternatives may include: sale of surplus lands,
land leases for compatible land use activities and/or sale of lands with
restrictions to ensure original purposes of acquisition are met.

6. Direct the water management districts and the Department of Environmental
Protection to review and evaluate current appraisal methodologies. Such review
shall identify current opportunities and impediments, and propose amendments
to fairly utilize less-than-fee techniques.


C. LAND MANAGEMENT

1. Recommend the Legislature maintain the integrity of the Water Management
Lands Trust Fund to ensure a reliable and ongoing funding source for water
management district land management activities.









2. Direct the Department of Environmental Protection, in coordination with the
water management districts, to: investigate the feasibility of restructuring the
current limitations on Preservation 2000 bond issues to reduce limitations on
private resource management activities on P2000 lands; retain expert advice on
the evaluation of current restrictions of activities/uses of public conservation
lands purchased with P2000 funds; and prepare recommendations for
amendments to future bond documents to allow more effective and productive
use of these lands, which are consistent with the primary purpose for which the
interests in such lands were acquired.

3. By March 1, 1997, the state land management agencies and the water
management districts shall complete and submit a full report on the long-term
management costs, inclusive of funding sources, of currently-owned lands, using
consistent management cost criteria, formulas and reporting formats. The spe-
cific identification of the cost of restoration and any capital project shortfalls
shall be included, as well as the sources of funding and revenue necessary to
implement and complete such projects within this report.

4. Prior to final acquisition, the water management districts shall complete a
conceptual management plan, which shall address management, exotics,
restoration, preliminary long-term management costs and projected funding
sources necessary to achieve the management plan.

5. No later than one year from the date of final acquisition of an adequate portion
of the project area to substantially meet the management goals contained within
the conceptual land management plan, the water management districts shall
prepare a final management plan, and where applicable, restoration plan,
including specific schedules, funding sources and a budget consistent with the
conceptual management plan, for review and approval by the governing board.

6. Direct the water management districts, in coordination with the Department of
Environmental Protection, to identify and evaluate any statutory requirements
for public access on water management district and state lands for amendment
to allow compatible uses.

7. Direct the water management districts and the state to prepare exotic species
management plans for all currently-owned lands. These plans shall include
implementation schedules, proposed budgets and identified needs and sources of
funding, and are to be completed by March 1, 1997.

8. The water management districts, in coordination with the Department of Envi-
ronmental Protection, shall establish and adopt uniform criteria and reporting,
formats for management prospectuses and plans by March 1, 1997.


-5-


^ I










D. MITIGATION


1. The water management districts and the Department, in coordination with the
appropriate local governments, shall identify all public lands within each water-
shed or ecosystem management area which would be eligible for mitigation
projects or mitigation banks to be established by public, private, or not-for-profit
entities. This determination of eligibility could be performed for any private
lands whose owners request such determination. The purpose of this process is
to provide advance notice of areas within each watershed or ecosystem
management area which have existing or potential resource values for offsetting
the loss of wetland function. This is to be accomplished by March 1, 1997.2

2. The water management districts and the Department shall include in the annual
state land acquisition programs report, published and submitted to the Governor,
President of the Senate and Speaker of the House of Representatives, an update
of which lands they have acquired or conserved which are eligible for district
endorsed mitigation projects or mitigation banks by January 15th of each year.

3. The water management districts and Department shall establish procedures to
assist permit applicants in addressing mitigation requirements for proposed
wetland impacts. These procedures shall result in an expedited mechanism which
increases the level of certainty for permit applicants.

4. Where a water management district or the Department operates a mitigation bank
or implements a mitigation project, the aforementioned procedure shall specify
that where a water management district or the Department operates a mitigation
bank or accepts cash contributions for district-endorsed mitigation projects, the
amount charged to permit applicants who utilize such bank or project shall be no
less than the full cost of the mitigation bank activities or the project to the
district or the Department. These costs shall include all direct and indirect
expenses for land acquisition, land management, and capital and other costs for
restoration and enhancement activities.

5. Direct the water management districts and the Department to establish separate
accounts for funds received from mitigation projects so that those funds are
identified to be used for acquisition and restoration projects, which will offset the
impacts identified.

6. Direct the water management districts and the Department to cooperate with pri-
vate and nonprofit entities, local governments and other state agencies for the
establishment of mitigation projects and banks on district or state lands where
possible, and voluntarily on private lands when appropriate.
(D:\DATA\WP\WM\RECS\LANDACQ1.DFT)


SThis recommendation was passed by a 16-to-2 vote of Commission members.


-6-








CUMULATIVE PRELIMINARY RECOMMENDATIONS OF THE
WATER MANAGEMENT DISTRICT REVIEW COMMISSION
RELATING TO DISTRICT GOVERNANCE, OVERSIGHT,
FINANCIAL STRUCTURE AND BUDGETING


In public meetings of August 23-25, September 26-27, October 20, and December 1,
1995, the Water Management District Review Commission adopted the following preliminary
recommendations regarding governance, oversight, financial structure and budgeting processes
of Florida's water management districts. While some of the proposals will require legislative
action, others can be implemented by the districts, the Executive Office of the Governor and
the Legislature without additional statutory authority, and the Commission strongly
encourages those entities to do so. To implement recommendations requiring statutory
modification, the Commission will draft proposed legislation for consideration during the 1996
regular session of the Legislature. The Commission's recommendations resulted from testimony
given by the general public during statewide hearings, written comments to the Commission
from Florida citizens and interested parties, information received from state agencies and the
water management districts, the personal expertise and experience of individual Commission
members. Unless otherwise indicated, the vote on all recommendations was unanimous.


1. DISTRICT GOVERNING BOARDS

A. Current statutory provisions regarding gubernatorial appointment
of district governing board members should be retained, i.e.
members of district governing boards should not be elected and
nominating committees or councils are not necessary. In addition,
the current statutory provision whereby district governing board
chairmen are elected by members of their respective governing
boards should not be changed (see 373.079(2), Florida Statutes).

B. Appointments to district governing boards should be staggered so
that during each year of the Governor's four-year term of office, he
or she would appoint the indicated number of board members to
each water management district governing board (approved by a
15-to-2 margin):

Southwest Florida Northwest, Suwannee River,
Water Management District St. Johns River and South Florida

1st Year: 3 3
2nd Year: 3 2
3rd Year: 3 2
4th Year: 2 2








C. Each governing board should create a district ombudsman position
to respond to inquiries and complaints from or among permit
applicants, interested parties and citizens regarding district
regulatory policies and practices, budgeting issues and processes, and
general operational programs. The ombudsman would help citizens
understand the policies, practices and programs of the district, and
facilitate citizen-staff interactions to encourage the amicable
resolution of disputes or differences of opinion. The governing
board should hire the ombudsman based upon appropriate quali-
fications, or the position could be staffed by existing district
personnel on a part-time or full-time basis as needed.

D. Attorneys employed by water management districts should be hired
by, work for, and be accountable to the governing boards, not to the
district executive directors or general staff.






2. EXECUTIVE OVERSIGHT OF DISTRICTS


A. The Governor should approve or reject the annual budget of each
water management district.

B. The Executive Office of the Governor should establish permanent
positions) to review the financial and programmatic activities of
Florida's five water management districts. The positions) should
further serve as Executive Branch liaison to, and coordinate appro-
priate review deadlines and notices with, the legislative committees
having substantive and appropriation jurisdiction over water man-
agement districts.

B. The Commission makes no recommendation regarding the organiza-
tion, membership or mission of the Water Resources Coordination
Commission established by Executive Order No. 91-266.


-2-








3. LEGISLATIVE ADOPTION OF WATER POLICY AND PLAN


State water policy and the state water plan should be adopted by the
Legislature. The Florida Department of Environmental Protection and
the five water management districts should together draft the state water
policy and the state water plan and present them to the Legislature for
adoption.


4. LEGISLATIVE OVERSIGHT AND FUNDING OF DISTRICTS

The Commission's report to the Governor and Legislature will reflect that
the oversight capabilities currently reposed within the authority of the
Legislature have not been effectively used to constrain or guide the
districts in their budgetary and operational priorities. Although the
authority for legislative and executive oversight of water management
districts' financial activities clearly exists within the current statutory
framework, constructive application of those oversight prerogatives has
not been sufficient to address citizens' perception that districts are "out of
control." Accordingly, the Commission makes the following specific
recommendations:

A. Standing committees on water resources should be created in both
houses of the Florida Legislature, adequately staffed with persons
having suitable substantive expertise.1

B. The General Government Subcommittees of the Senate Ways &
Means Committee and the House of Representatives Appropriations
Committee should annually review the districts' proposed budgets
and provide to each district specific comments regarding budget
questions or concerns. The districts should be required to respond
to each appropriation subcommittee comment in writing within a
time certain. The codification of this recommendation should
include a "reminder" that the Legislature currently has the statutory
authority to reduce district ad valorem millage.


The Commission recognizes, of course, that the President of the Senate and the Speaker of the House of
Representatives have full and sole statutory discretion to create committees that they individually determine
are necessary and appropriate.








C. The Legislature should consider whether it would be advisable to
modify the districts' fiscal years to facilitate legislative review and
adjust TRIM requirements accordingly.

D. The Legislature should provide a permanent and adequate source
of state funding for implementation of the Surface Water
Improvement and Management (SWIM) program.

E. The ad valorem taxing authority should be equal among all
districts, i.e. Northwest Florida Water Management District's
constitutional millage cap should be raised to the same level as that
of the remaining districts, i.e. from .05 mill to 1.0 mill (passed by
a 11-to-2 vote).

F. An alternative funding source should be provided by statute for the
Suwannee River and Northwest Florida Water Management
Districts in recognition of their limited ad valorem tax bases.

G. The Legislature should investigate alternative funding sources for
statewide water resource programs implemented by the water
management districts, including but not limited to a bondable
capital improvement fund for urban, agricultural and
environmental water supply capital improvements such as aquifer
storage and recovery, regional reservoirs and reuse infrastructure.
This task could be assigned to appropriate legislative committees or
the Legislature could create a 9-member commission, with three
members appointed by the Governor, three by the President of the
Senate, and three by the Speaker of the House of Representatives.
Proposals could be submitted for legislative consideration in the
1997 regular session.








5. FINANCIAL ACCOUNTABILITY AND BUDGETING

A. The governing boards of water management districts have the
prerogative and the responsibility to determine the priority and the
extent to which local funding is appropriate and available to
accommodate legislatively mandated statewide programs. The
Legislature shall affirm what it collectively determines are the
important policies and programs of the state by providing state
funding or other alternative revenue source funding to the districts
to implement those priorities. To the extent that new or expanded
water resource programs and regulatory responsibilities enacted by
the Legislature or delegated to the districts by the Department of
Environmental Protection are not accompanied by general
appropriation funding, the districts shall be exempt from
implementing the new or expanded programs.

Amend 373.501 as follows:

373.501 Appropriation of funds to water management
districts. -- The department may allocate to the water manage-
ment districts, from funds appropriated to the department,
such sums as may be deemed necessary to defray the costs of
the administrative, regulatory, and other activities of the
districts. The governing boards of the water management dis-
tricts have the prerogative and the responsibility to determine
the priority and the extent to which local funding is appro-
priate and available to accommodate legislatively mandated
statewide programs. The governing boards shall submit
annual budget requests for such purposes to the department,
and the department shall consider such budgets in preparing
its budget request for the Legislature. The Legislature shall
affirm what it collectively determines are the important poli-
cies and programs of the state by providing state funding or
alternative revenue source funding to the districts to imple-
ment those priorities. To the extent that new or expanded
water resource programs and regulatory responsibilities
enacted by the Legislature or delegated to the districts by the
department are not accompanied by state funding or other
alternative revenue source funding, the districts shall be
exempt from implementing the new or expanded programs.


-5-








B. Each district should provide a copy of its proposed budget, the past
year's expenditures, and its annual in-house financial audit to the
Governor, the President of the Senate, the Speaker of the House, the
chairs of all legislative committees and subcommittees with
substantive or appropriation jurisdiction over water management
districts, the Secretary of the Department of Environmental
Protection, and the governing body of each county in which the
district has jurisdiction or derives any funds for the operations of
the district ("the entities"). The districts shall respond in writing to
each comment received from any of the entities, and shall furnish
copies of those comments and written responses to all entities.

C. Truth-in-millage provisions within Chapter 200, Florida Statutes,
should be revised to permit more accurate noticing of district tax
rates to both property owners and the general public, and to allow
additional information where appropriate, e.g. explanatory phrases
or examples.

D. Budget advertising requirements should be expanded to include
notice of all budget workshops and hearings in newspapers of local
circulation.

E. Districts should collectively standardize their budget reporting
formats so that all districts' are fully comparable; fiscal and budget
policies and procedures should approximate those of state agencies
to the greatest extent practicable; and district operating expenses
(i.e. "overhead") should be accurately and proportionately allocated
among the various programs implemented by the districts.

F. Where possible, the districts should develop uniform permit applica-
tion fees and forms for statewide use, with possible exceptions for
geographic differences.







(D:\DATA\WP\WM\RECS\GOVERFSB.FNL)


-6-








CUMULATIVE PRELIMINARY RECOMMENDATIONS OF THE
WATER MANAGEMENT DISTRICT REVIEW COMMISSION
REGARDING DISTRICT RESPONSIBILITIES AND OPERATIONS
(INCLUDING BALANCING AND PRIORITIZATION)



In meetings of October 20, November 10, November 30 and December 1, 1995, the
Water Management District Review Commission adopted the following preliminary recom-
mendations regarding the statutory responsibilities and operations of Florida's water manage-
ment districts, including the balancing and prioritization of those responsibilities. While some
of the recommendations will require legislative action, others can be implemented by the dis-
tricts without additional statutory authority, and the Commission strongly encourages the
districts to do so. To implement recommendations requiring statutory modification, the
Commission will draft proposed legislation for consideration during the 1996 regular session
of the Florida Legislature. The Commission's recommendations resulted from testimony given
by the general public during statewide hearings, written comments to the Commission from
Florida citizens and interested parties, information received from state agencies and the water
management districts, the personal expertise and experience of individual Commission
members, extensive discussions among the participants in the proceedings of the District
Responsibilities & Operations Subcommittee and the deliberative meetings of the full
Commission. The actions of the Water Management District Review Commission with regard
to the proposals are noted in bold print following each recommendation.


1-A. BALANCING AND PRIORITIZATION OF DISTRICT RESPONSIBILITIES

In its discussions regarding the various responsibilities of the districts, e.g. water supply,
flood control, environmental resource permitting, aquatic weed control, land acquisition
and management, etc., the Commission determined that the necessary and appropriate
actions of water management districts in response to the exigencies of Florida's some-
times widely fluctuating water management issues and problems could best be directed
by the respective district governing boards. Accordingly, the Commission agreed that
it was not necessary to statutorily direct a prioritization among the many responsibili-
ties of the districts. The Commission does recommend, however, that the policy-setting
provision of Chapter 373 be modified to include the following "balancing" language:

RECOMMENDATION:

Amend Section 373.016, Florida Statutes, 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 for the management of water and related
land resources;
(b) To promote the conservation, development, and proper
utilization of surface and ground water;
(c) To develop and regulate dams, impoundments,
reservoirs, and other works and to provide water storage for
beneficial purposes;
(d) To prevent damage from floods, soil erosion, and
excessive drainage;
(e) To minimize degradation of water resources
caused by the discharge of stormwater;
(f) To preserve natural resources, fish, and wildlife;
(g) To promote the public policy set forth in s.
403.021;1
(h) To promote recreational development, protect
public lands, and assist in maintaining the navigability
of rivers and harbors; and
(i) Otherwise to promote the health, safety, and
general welfare of the people of this state.

In implementing this chapter, the department or the
governing board shall construe and apply the policies
in this subsection as a whole, and no specific policy
shall be construed or applied in isolation from the other
policies in this subsection.


COMMISSION ACTION: UNANIMOUSLY APPROVED.









Section 403.021, Florida Statutes, sets forth the extensive state public policy regarding air and water
pollution control.








1. WATER SUPPLY


Recommendation:

It is imperative to Florida's future that responsibility for the supply
of water be clearly delineated, just as the duties to provide adequate
transportation, sound education, and responsible insurance
regulation have been assigned to specific governmental agencies.

The Florida Legislature should emphasize that a primary mission
of the water management districts is regional water supply
planning, regulation, research, and water resource development. To
meet the current and future needs of Florida's citizens, businesses,
agriculture, and natural environment, the districts must maximize
the availability of water for all uses through economic and
regulatory incentives.

Those incentives must include efforts to promote conservation, water
reuse, and desalination, promote the wise use of surface and ground
waters, and promote the use of alternative water use.


COMMISSION ACTION: UNANIMOUSLY APPROVED.









2. CONSUMPTIVE USE OF WATER

Background:

Section 373.016, Florida Statutes, provides in pertinent part as follows:
(1) The waters of 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 for the management of water and related land resources;
(b) To promote the conservation, development, and proper utilization of
surface and ground water;

Section 373.023(1), Florida Statutes, provides:
(1) All waters in the state are subject to regulation under the provisions of this
chapter unless specifically exempted by general or special law.

Part II of Chapter 373, enacted in 1972, established an administrative regulatory system
to allocate the state's water resources, and each water management district has imple-
mented a consumptive use permitting program in accordance with those directives.

The Florida Supreme Court carefully reviewed state water law in Village of Tequesta v.
Jupiter Inlet Corporation.2 Noting that Florida historically followed the common law
"reasonable use" doctrine, the court confirmed that a property owner has no constitu-
tionally protected property right in water beneath his property. The court further
explained that the administrative permitting system created by Chapter 373 in 19723
placed all waters in the state under the regulatory system implemented by the then
Department of Environmental Regulation or the districts, and that except for individual
domestic uses, only those uses of water permitted under the administrative process
enjoyed a protected "right" to the withdrawal and use of water.4

Recommendation:

Continue to recognize that water is considered a state resource, and
continue district regulation of consumptive uses of water.


COMMISSION ACTION: UNANIMOUSLY APPROVED.


2 371 So. 2d 663 (Fla. 1979).

3 When enacted, Part II of Chapter 373 granted then-existing users a two-year grace period within which
to secure a permit, following which an unpermitted withdrawal of water could be sanctioned. The two-year
period has expired in each of the state's five water management districts.

Tequesta at 670-71.


4-








3. CONSUMPTIVE USE PERMIT DURATION


Background:

Section 373.236, Florida Statutes, provides that consumptive use permits may be issued
by a district for up to twenty years, or fifty years for governmental or public service
entities when the longer duration is needed for retirement of bonds issued for the con-
struction of waterworks and waste disposal facilities. However, most districts typically
issue shorter duration permits for various reasons, including: (i) a policy requiring cer-
tain types of permits to expire simultaneously; (ii) the desire to utilize a growing and
changing knowledge of water sources and their limitations; (iii) the ability to require
with permit renewal the implementation of better water conservation technologies; or
(iv) administrative convenience. Limited durations have the effect of making holders of
existing short-term permits repeatedly vulnerable to reduction in withdrawal allocation
or loss of permitted use at the time of renewal, often after considerable investment.


Recommendation:

Modify Section 373.236, Florida Statutes (duration of permits), as follows:

(1) Permits may be granted for any period of time not exceeding 20
years. The governing board or the department may base duration of
permits on a reasonable system of classification according to source of
supply or type of use, or both.

(2) The governing board or the department may authorize a permit of
duration of up to 50 years in the case of a municipality or other
governmental body or of a public works or public service corporation
where such a period is required to provide for the retirement of bonds for
the construction of waterworks and waste disposal facilities.

(3) (a) The duration of a consumptive use permit shall be 20 years
for an applicant that implements technically, economically and
environmentally feasible alternatives to reduce water use or takes
advantage of alternative sources. To qualify for a 20-year duration
permit, the applicant must comply with the criteria contained in
section 373.223 and must provide reasonable assurance that:

L The applicant has implemented the water use reduction
alternatives: or








2. The permit contains a plan, approved by the district,
for the applicant's implementation of such water use
reduction or use of alternative sources in a timely manner.

(b) At any time during the duration of a permit issued pursuant
to paragraph (3)(a) above, the permittee may seek a modification of
the permit to further reduce water use through the implementation
of improved technologies or to take advantage of alternative
sources. A permit issued on the basis of any such modification shall
have a duration of 20 years.

(c) A permit issued pursuant to subparagraph (3)(a)2. above.
requiring the permitted's implementation of an approved plan. shall
further direct the permitted to file progress reports with the district
at 5-year intervals from the date of permit issuance or until the plan
is fully implemented, whichever occurs first. If the district deter-
mines that the permitted has failed to properly implement the
approved plan, the permittee shall be so notified in writing and the
subject permit shall expire 2 years from the date of the district's
determination.


Modify Section 373.239, Florida Statutes (modification and renewal of
permit terms), as follows:

(1) A permitted may seek modification of any terms of an unexpired
permit.

(2) If the proposed modification involves water use of 100,000 gallons
or more per day, the application shall be treated under the provisions of
s. 373.229 in the same manner as the initial permit application.
Otherwise, the governing board or the department may at its discretion
approve the proposed modification without a hearing, provided the
permitted establishes that:

(a) A change in conditions has resulted in the water allowed
under the permit becoming inadequate for the permitted's need, or

(b) The proposed modification would result in a more efficient
utilization of water than is possible under the existing permit.








(3) (a) The governing board may modify a consumptive use permit
pursuant to the authority in subsection 373.171(3). after first
identifying and evaluating technologically. economically and envi-
ronmentally feasible alternatives such as conservation measures or
use of alternative sources to reduce or eliminate detrimental impacts
of the subject permit on other water users or the water resources of
the state. Prior to making any such modification, the governing
board shall consult with existing permitted users in the affected area
to develop a plan and schedule for implementing the modifications.
after which any such agreed-upon modifications shall be incorpo-
rated into existing permits.

()2 If modifications developed pursuant to paragraph (3)(a) are
not agreeable to an existing permitted, the governing board may
modify the permit to reduce water use or implement other measures
to reduce or eliminate the detrimental impacts in accordance with
subsection 373.171(3).

(4)3) All permit renewal applications shall be treated under this part in
the same manner as the initial permit application.


In addition to the foregoing recommendations, the Commission adopted the
following eight (8) principles to guide the development of a standard 20-year
consumptive use permit for all qualifying water users. Commission members
instructed its Executive Director to consult with the water management districts
and representative user groups and draft a legislative proposal to implement the
principles for Commission consideration during its meeting of anuary 30, 1996:


CONSUMPTIVE USE PERMIT DURATION PRINCIPLES
(TO GUIDE DEVELOPMENT OF LEGISLATION)

1. 20-Year consumptive use permit duration standard established in
statute with specified exceptions:

(a) Shorter duration needed or agreed upon by applicant;
(b) Need to review effectiveness of remedial action plan;
(c) Harm to water resources or to legally existing users projected;








(d) Need to reconsider feasibility of conservation or alternative
supply measures; or
(e) No assurance that source can meet proposed allocation.

2. Periodic submittal and agency review of "compliance report" (every
10 years) for purpose of assuring continued compliance with consumptive
use permit program rules and standards. Agency may modify permit at
this juncture to incorporate necessary measures to maintain compliance.
Does not open permit to competition.

3. Failure to submit compliance report is a basis for reduction of
permit duration.

4. During term of permit, permitted retains right to seek modification
to integrate additional conservation or alternative supply measures.
Could extend duration at this juncture.

5. Ability of agency to modify consumptive use permit if adverse
impacts to legal existing users or water resources found post-issuance.

6. Procedurally provide for adequate notice and due process to
applicant and other affected persons.

7. During 20-year consumptive use permit tenure, permitted not subject
to competing use review.

8. Existing permittees may avail themselves of20-year duration process
if comply with #1 above.


COMMISSION ACTION: APPROVED BY A 15-TO-1 VOTE.








4. PRIORITY AMONG COMPETING USES


Background:

Section 373.233, Florida Statutes, provides that issuance of consumptive use permits to
applicants competing for the allocation of a limited resource will be determined on the
following bases: (i) both uses must meet the standards and criteria for permit issuance;
(ii) the application which best serves the public interest should receive preference; and
(iii) if both permits equally serve the public interest, a renewal permit should be given
preference over a new use. There is no statutory methodology for determining "the
public interest."

In recognition of the financial commitments made by existing legal uses, the following
definition of "public interest" is proposed:


Recommendation:

Modify Section 373.233(1), Florida Statutes, as follows:

(1) If two or more applications which otherwise comply with the
provisions of this part are pending for a quantity of water that is
inadequate for both or all, or which for any other reason are in conflict,
the governing board or the department shall have the right to approve or
modify the application which best serves the public interest. In weighing
the public interest, substantial weight shall be given to an applicant
seeking renewal of a permit.


COMMISSION ACTION: UNANIMOUSLY APPROVED.








5. "LOCAL SOURCES FIRST" and REQUIREMENT FOR BALANCING
BY GOVERNING BOARDS WHEN RESERVING WATER RESOURCES

Background:

Applicants for consumptive use permits must establish that the proposed use of water
(i) is a reasonable-beneficial use; (ii) will not interfere with any existing legal use; and
(iii) is consistent with the public interest. The first two criteria do not address whether
local sources of water should or must be utilized prior to allowing the use of water
from more distant sources. The third criterion is sufficiently broad to encompass such
a requirement, and Chapter 373 does authorize the transportation of water across and
beyond overlying lands, ground and surface water basins, and county boundaries. The
statute does not, however, offer any guidance regarding a policy of "local sources first."
Significant testimony was given before the Commission on this issue, primarily empha-
sizing the commentators' collective opinion that the districts should require that: (i) all
alternative sources of water in a local area should be utilized prior to transporting water
across long distances; and (ii) effects of the use on the source area must be considered.

Recommendation:

Modify Section 373.223, Florida Statutes, as follows:

(1) To obtain a permit pursuant to the provision of this chapter, the
applicant must establish that the proposed use of water:

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

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

(c) Is consistent with the public interest.

(2) The governing board or the department may authorize the holder
of a use permit to transport and use ground or surface water beyond
overlying land, across county boundaries, or outside the watershed from
which it is taken if the governing board or department determines that
such transport and use is consistent with the public interest, and no local
government shall adopt or enforce any law, ordinance, rule, regulation,
or order to the contrary. Notwithstanding any policies contained in par
I of this chapter, when evaluating whether a potential interdistrict or
intradistrict transport of ground or surface water is consistent with the
public interest, the governing board or the department shall consider:








(a) the proximity of the proposed source of water to the area in
which it is to be used or applied, and

(h_) other economically and technically feasible alternatives to the
source being proposed, including but not limited to desalination,
reuse, stormwater, and aquifer storage and recovery.

(3) The governing board or the department, by regulation, may reserve
from use by permit applicants, water in such locations and quantities, and
for such seasons of the year, as in its judgment may be required for the
protection offish and wildlife or the public health and safety. In making
such reservation, the governing board or department shall balance the
needs of legal users of water, water supply, water quality protection and
flood control for the body of water or source. Such reservations shall be
subject to periodic review and revision in the light of changed conditions.
However, all presently existing legal uses of water shall be protected so
long as such use is not contrary to the public interest.

COMMISSION ACTION: UNANIMOUSLY APPROVED.








6. FLOOD PROTECTION WORKS


Background:

In accordance with 5 373.084-.086, Florida Statutes, water management districts own
and operate district works, and acquire and manage floodplain lands, for the purpose
of flood control and protection. In the South Florida and St. Johns River Water
Management Districts, most existing works were developed as part of the Central and
Southern Flood Control Project, designed and constructed in cooperation with the U.S.
Army Corps of Engineers. Management plans for operation of those project works are
also prescribed by the Corps. Other flood control works have been undertaken by dis-
tricts in response to regional water management concerns, e.g. Four Rivers Basin Project
(SWFWMD), Appalachicola River Project (NWFWMD) & Upper St. Johns River Basin
Project (SJRWMD). District floodplain acquisition has reduced the need for structural
flood protection works while providing other resource protection benefits. Works and
land acquisition projects have been undertaken at the direction of district governing
boards after consideration of the water management needs within each district.

In some areas, existing flood protection works are inadequate to provide the level of
protection required for today's population. Most flood protection works were designed
and constructed prior to 1970; Florida's population has doubled since that time.

Recommendations:

1. Water management districts should continue to construct, operate
and maintain multi-purpose regional flood protection works and
acquire lands for flood protection purposes.

2. Decisions regarding works construction and land acquisition should
be made by district governing boards within current statutory
framework.

3. The primary responsibility for works construction and operation, as
well as land acquisition programs, for local and private flood
protection should remain with general purpose local governments,
special districts, and private citizens.

4. Districts should investigate the advisability of contracting with
private entities to maintain flood protection works and manage
acquired floodplain lands, and implement such contracts if they are
cost-effective and achieve the stated goals of the project.

COMMISSION ACTION: UNANIMOUSLY APPROVED.








7. FLOOD PROTECTION (Water Quantity) REGULATION


Background:

The districts have promulgated flood protection rules pursuant to the authority granted
in 373.084-.086 and Part IV, Florida Statutes. Those rules regulate non-district water
management systems which may affect (i) flood protection offered by works of the
district, (ii) other property owners, and (iii) water resources. It is recognized that the
regulatory process is a dynamic one based upon changing development trends,
technologies, and resource information, district governing boards currently have the
authority to respond to the changes through modification of district rules.


Recommendations:

1. Maintain the current authority of districts to regulate potential
water quantity impacts of water management systems.

2. Maintain the ability of districts to modify their water quantity rules
in response to changing conditions.

3. Flood protection standards should be established regionally by each
district as appropriate to address regional variations in hydrologic
conditions.


COMMISSION ACTION: UNANIMOUSLY APPROVED.


13 -








8. AQUATIC PLANT CONTROL


Background:

The invasion of non-native aquatic plant species into Florida's waters has caused serious
water resource-related problems throughout the state. For example, infestations of
aquatic weeds have (i) reduced the recreational values of lakes and streams, (ii) seriously
impaired navigation, (iii) reduced valuable fishery habitats, (iv) adversely impacted water
quality, and (v) endangered the structural integrity of state-owned bridges.

The Department of Environmental Protection currently administers the state aquatic
plant control program, overseeing research on eradication methodologies and allocating
state and federal monies to the districts for implementation of control programs. The
districts currently undertake and fund aquatic weed control programs: (i) as components
of operating and maintaining district works under 373.086, Florida Statutes; (ii) as a
program contractor with the Department of Environmental Protection under 369.22;
and (iii) in partnership with local governments.

Currently, funding for aquatic and exotic weed control programs is derived from
federal government grants, gas taxes, Conservation and Recreation Lands funds, district
ad valorem taxes, and local government matching programs. Funding for the current
fiscal year is expected to be approximately $12 million from all sources, with $1-2.5
million coming from the federal government through matching grants. The federal
government has indicated an unwillingness to work with more than one agency in each
state, so it requires that all funding be coordinated by the Department of Environ-
mental Protection.

At the current level of funding, the districts can barely provide maintenance of the
status quo and are unable to get ahead of the state's serious aquatic plant infestation
problem which increases exponentially each year.


Recommendation:

The Legislature should increase funds from the Fuel Tax Collection Trust
Fund and other sources to provide the districts, through the Department
of Environmental Protection, a substantial increase in funding necessary
to more efficiently and effectively control invasive aquatic plants.


COMMISSION ACTION: APPROVED BY A 15-TO-1 VOTE.








9. WATER QUALITY STANDARDS


Background:

Currently, the Environmental Regulation Commission (ERC) is the state standard-
setting body for the establishment of water quality criteria. In some instances the ERC
establishes "numeric" standards which prohibit discharge of a substance in certain
concentrations (e.g., 0.05 parts per billion); other standards are described by "narrative,"
which indicates that discharges to state waters will not cause certain identifiable harms
(e.g., substance concentrations that would be mutagenic). The districts and the
Department of Environmental Protection have adopted regulations that establish rebut-
table presumptions that water quality standards will be met through the implementation
of certain design criteria or Best Management Practices (BMPs).

In some instances, however, the design criteria and numeric standards are not applicable
to the situation, and the districts are often required to interpret the specific meaning of
the narrative standards when implementing regulatory programs that require compli-
ance with water quality standards. In those cases, the districts must conduct the
scientific analyses required to determine applicable site-specific numeric standards. One
recent court case upheld a district's ability to set such standards on a case-by-case basis,
but the ruling prohibited the district from establishing the standards for a particular
drainage basin.


Recommendation:

Except as otherwise provided by law, where the Environmental Regula-
tion Commission has established a narrative (non-numeric) standard for
a particular constituent in Chapter 62-302, Florida Administrative Code,
a water management district or the Department ofEnvironmental Protec-
tion may apply the standard by calculating the constituent's maximum
load for a watercourse or water body, and may implement the maximum
load calculation through their permitting programs. Prior to implemen-
tation, however, the maximum load calculation shall be subject to peer
review and must be approved by the Secretary of the Department after
appropriate notice. The Secretary's approval shall constitute the sole
point of entry for an administrative challenge of the maximum load
calculation for that watercourse or water body.


COMMISSION ACTION: UNANIMOUSLY APPROVED.








10. LAND USE PLANNING


Background:

Currently, each local government prepares a comprehensive growth management plan
to guide future growth within that government's jurisdiction. Chapter 163, Florida
Statutes, establishes the minimum criteria that must be contained in each comprehensive
plan, including guidelines regarding the availability of public services. Based on
testimony before and discussion among Commission members, however, there remained
a serious concern that local governments do not adequately consider the availability of
water supply and the impact that future growth will have on water resources when
drafting or modifying their future land use plans. Accordingly, the following recom-
mendation would require local governments to consider such impacts in their growth
management decisions.

Recommendation:

Amend section 163.3177(6)(a), Florida Statutes, to read:

(6) In addition to the requirements of subsections (1)-(5), the compre-
hensive plan shall include the following elements:
(a) A future land use plan element designating proposed future
general distribution, location, and extent of the uses of land for
residential uses, commercial uses, industry, agriculture, recreation,
conservation, education, public buildings and grounds, other public
facilities, and other categories of the public and private uses of land.
The future land use plan shall include standards to be followed in
the control and distribution of population densities and building
and structure intensities. The proposed distribution, location, and
extent of the various categories of land use shall be shown on a land
use map or map series which shall be supplemented by goals,
policies, and measurable objectives. Each land use category shall
be defined in terms of the types of uses included and specific
standards for the density or intensity of use. The future land use
plan shall be based upon surveys, studies, and data regarding the
area, including the amount of land required to accommodate
anticipated growth, the projected population of the area, the
character of the undeveloped land, ground and surface water
resources and the present and future availability of water supply
the availability of public services; and the need for redevelopment,
including the renewal of blighted areas and the elimination of
nonconforming uses which are inconsistent with the character of the








community. The future land use plan may designate areas for
future planned development use involving combinations of types of
uses for which special regulations may be necessary to ensure devel-
opment in accord with the principles and standards of the compre-
hensive plan and this act. The land use maps or map series shall
generally identify and depict historic district boundaries and shall
designate historically significant properties meriting protection.


COMMISSION ACTION: UNANIMOUSLY APPROVED.








11. MINIMUM FLOWS AND LEVELS


A. Establishment of Priority Water Bodies

Background:

Section 373.042, Florida Statutes, requires the Department of Environmental Protection
or district governing boards to establish:

(1) 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.

(2) Minimum water level. The minimum water level shall be the level of
ground water in an aquifer and the level of surface water at which further
withdrawals would be significantly harmful to the water resources of the area.

The establishment of minimum flows and levels would assist each district in responding
to potential water shortages or excesses, regulating consumptive uses of water, operating
district works, and other district programs.

Although the statute provides that minimum flows and levels are to be established
"within each section, or the water management district as a whole, ..." it does not
direct a prioritization by which the minimum flows and levels should be developed.
Furthermore, while the statute provides no deadline by which minimum flows and
levels are to be established, at least one court has ruled that the statutory directive is
mandatory and that the tasks must be undertaken in a reasonable amount of time.

In a state such as Florida, with widely (and ofttimes wildly) fluctuating rainfall and
consequential significant natural fluctuations in surface and ground water flows and
levels, the establishment of specific minimum flows and levels at a precise point of
"significant harm" can be, in reality, a scientific challenge. Some water bodies naturally
experience significant yet temporary drawdowns which enhance the water resource and
environmental water quality. Additionally, some water bodies are in remote areas or
are protected through state ownership or other means, so that withdrawals which could
produce significant harm would not be possible.


Recommendation:

Amend Section 373.042, Florida Statutes, as follows:

373.042 Minimum flows and levels. Within each section, or the
(conwater management disd)t as a w
(continued)


18 -








(1) In accordance with the provisions of this section, the department or
the governing board shall establish the following:
(4) (a) Minimum flow for all surface watercourses in theaea. 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.
(2) (b) Minimum water level. The minimum water level shall be the
level of ground water in an aquifer and the level of surface water
at which further withdrawals would be significantly harmful to the
water resources of the area.

(2) The minimum flow and minimum water level shall be calculated
by the department and the governing boad using the best information
available. When appropriate, minimum flows and levels may be
calculated to reflect seasonal variations. 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.

(3) By November 15 of each year, the governing board of each district
shall prepare an inventory of surface and ground waters, in order of
priority, for which minimum flows and levels will be established within
the next calendar year. The inventory shall include a schedule of dates
by which the district anticipates establishing those minimum flows and
levels, as well as a plan listing the surface. and ground waters for which
minimum flows and levels will be established during the following five
years. The governing board shall submit the annual inventory, schedule
and five-year plan for review and comment to the department and the
chairs of legislative committees having substantive jurisdiction over water
resources and water management districts. The prioritization of surface
and ground waters shall be based on the importance of the waters to the
state or region and the potential for significant harm as set forth in
subsection (1).


COMMISSION ACTION: UNANIMOUSLY APPROVED.









MINIMUM FLOWS AND LEVELS (continued)


11. B. Scientific Peer Review

Background:

Pursuant to 373.042, Florida Statutes, the districts are required to establish minimum
levels below which further withdrawals will be significantly harmful to ground water
resources, as well as minimum flows and levels below which surface water withdrawals
will be significantly harmful to the water resource or ecology. As noted above,
however, in a state with naturally and widely fluctuating rainfall with consequent
variations in surface and ground water flows and levels, the establishment of designated
minimum flows and levels at the point of "significant harm" is often a scientific
challenge. The definition of "significant harm" involves the implementation of
policy and technology, both of which vary across the state depending on the particular
water resource and environmental situation within a particular district. Rule 62-40.473,
Florida Administrative Code, a portion of the State Water Policy, lists ten factors that
districts are to consider when establishing minimum flows and levels: (i) recreation in
and on the water; (ii) fish and wildlife habitats and the passage of fish; (iii) estuarine
resources; (iv) transfer of detrital material; (v) maintenance of freshwater storage and
supply; (vi) aesthetic and scenic attributes; (vii) filtration and absorption of nutrients
and other pollutants; (viii) sediment loads; (ix) water quality; and (x) navigation.

In August, the Commission unanimously recommended the following: "There must be
enhanced, meaningful use of impartial peer review for new rules, water management
concepts, plans and other documents generated by districts." The Commission did not
direct this recommendation to be codified in statute, nor did it indicate how "impartial
peers" would be selected by each district. With regard to the establishment of
minimum flows and levels, the District Responsibilities & Operations Subcommittee
determined that the appropriate type of peer review to be employed should be technical
in nature, not a formal, "academic" review. Based on the subcommittee's determination
that the technical aspects of establishing minimum flows and levels were of significant
importance, the original peer review recommendation of the Commission was modified
to include a specific reference the establishment of minimum flows and levels.


Recommendation:

There must be enhanced, meaningful use of impartial peer review for new
rules, the establishment of minimum flows and levels, water management
concepts, plans and other documents generated by districts.


COMMISSION ACTION: UNANIMOUSLY APPROVED.


20-








MINIMUM FLOWS AND LEVELS (continued)


11. C. Definition of Significant Harm

Background:

Section 373.042, Florida Statutes, provides that districts shall establish minimum ground
water levels at the point below which further withdrawals would be "significantly
harmful" to the water resources, and establish minimum surface water flows and levels
at the point below which further withdrawals would be "significantly harmful" to the
water resources and ecology.

One of the difficulties in setting flows and levels is the determination of what consti-
tutes "significant harm." Currently, Rule 62-40.473, Florida Administrative Code, (the
State Water Policy provision governing establishment of minimum flows and levels),
lists the following factors to be considered: (i) recreation in and on the water; (ii) fish
and wildlife habitats and the passage of fish; (iii) estuarine resources; (iv) transfer of
detrital material; (v) maintenance of freshwater storage and supply; (vi) aesthetic and
scenic attributes; (vii) filtration and absorption of nutrients and other pollutants; (viii)
sediment loads; (ix) water quality; and (x) navigation.

The Commission recommends that the standards for determining "significant harm"
should be contained in statute and recommends the following language:


Recommendation:

Add the following new paragraphs (4) & (5) to 373.042, Florida Statutes:

(4) For purposes of establishing minimum flows and levels, the
determination of significant harm shall be based upon a balancing of:

(a) Water quality factors, including:

()4 filtration and absorption of nutrients and other
pollutants;

(i) sediment loads: and

(iii) other water quality considerations;

b) Environmental values associated with coastal, estuarine.
aquatic and wetlands ecology, including:


21-







(4) fish and wildlife habitats and the passage of fish

4(4i estuarine resources; and

(iii) transfer of detrital material:

(c) Protection of water resources, including:

(i) maintenance of freshwater storage and supply:

(i) flood protection needs: and

(iii) maintenance of the designated uses of the water body or
aquifer:

(d) Natural seasonal fluctuations in water flows and levels:

(e) Permitted uses of the water body: and

() Other uses made of the water body. including:

(1) recreation in and on the water;

(4- aesthetic and scenic attributes:

(iii) navigation; and

(iv) other non-permitted legal uses of the water source.

(5) Establishment of minimum flows and levels for a particular water
course, water body or aquifer shall not be presumed to require restoration
to historic or redevelopment conditions.

COMMISSION ACTION: UNANIMOUSLY APPROVED.









12. ISSUANCE OF PERMITS BY DISTRICT STAFF


Background:

The districts have implemented permitting programs which result in governing boards
reviewing and issuing or denying hundreds of individual permits each month. The
number of permits reviewed by governing boards has increased over the years to the
point where routine permit consideration significantly impacts the time available to
boards for the determination of broader policy issues. The governing board review pro-
cess was extremely valuable during the early stages of permitting programs, when the
boards established through permit conditions the incipient policies that have since been
codified into district rules. With the adoption of detailed regulations which codify
governing board policy, however, the need for board involvement in the processing of
permits has diminished.

In accordance with 373.116, 373.118, 373.229, 373.413(3), 373.414(9) and 373.421(2),
Florida Statutes, districts have adopted general permitting programs for projects, or
categories of projects, that governing boards have found to either singly or cumulatively
have minimal adverse impacts on district water resources. The general permitting pro-
grams allow issuance of permits by the executive director or his designee, with the right
to appeal that decision to the governing board for reconsideration. Notice regarding
proposed issuance or denial of a general permit is provided to the general public in
accordance with 5 373.116 (regular noticing of intended agency action) and S 373.118
(alternative noticing which considers the nature and scope of the proposed project and
its potential effect on others). Parties eligible to challenge the proposed agency action
are allowed an opportunity to be heard by the governing board. This process of staff-
issued permits has proved successful and efficient, while still providing an opportunity
for participation by substantially affected parties.

By authorizing district staff (instead of governing boards) to make routine permitting
decisions, permitting will become more efficient for both the district and the regulated
public, while providing the same level of resource protection and ensuring interested
third parties' right to participate. Projects and categories of projects which have not
been designated as "general permits" will still be considered "individual permits," with
noticing requirements specified in S 373.116, 373.229, 373.413, 373.414 & 373.421,
Florida Statutes. General permits will remain eligible for alternative noticing under the
provisions of S 373.118, FS.



(continued on next page)


23 -








Recommendation:


1. The permitting process at each district should be modified to allow
the executive director or his designee to issue all permits, except for
any permit for which the district has received a written request that
it be considered by the governing board.

2. This recommendation shall not be interpreted to affect or reduce
current statutory noticing provisions.

Amend Section 373.083, Florida Statutes, as follows:

373.083 General powers and duties of the governing board.--In addition
to other powers and duties allowed it by law, the governing board is
authorized to:

(1) Contract with public agencies, private corporations, or other
persons; sue and be sued; and appoint and remove agents and employees,
including specialists and consultants.

(2) Issue orders to implement or enforce any of the provisions of this
chapter or regulations thereunder.

(3) Make surveys and investigations of the water supply and resources
of the district and cooperate with other governmental agencies in similar
activities.

(4) Delegate to its executive director or his designee the authority to
issue any permit authorized by this chapter, unless the district has
received a timely written request that the permit be considered by the
governing board. In delegating such permit issuance authority, the
governing board shall prescribe with particularity the circumstances under
which such final agency action may be taken; provided, however, that
nothing herein shall be construed to modify the noticing requirements
otherwise required by this chapter or chapter 120, F.S.


COMMISSION ACTION: APPROVED BY A 14-TO-1 VOTE.
EDITORIAL NOTE: The statutory language adopted by the Commission on December 1,
1995, was edited for purposes of clarity and simplicity.


24-








13. WETLANDS AND NATURAL SYSTEMS:
CLARIFICATION OF STATUTORY CRITERIA

Background:

A proposal was offered to the Commission by persons who expressed concern that
duplicative permitting criteria for wetlands and endangered species protection were
contained in 373.016(1)&(2), Florida Statutes. The districts and Department
responded that the standards and criteria were not duplicative, and that a statutory
change could result in further modifications to the recently implemented environmental
resource permitting program. After consultation among the interested parties, the
following compromise language was presented to the Commission.

Recommendation:

Amend 373.414(2) as follows:

(1) (a) In determining whether an activity, which is in, on, or over
surface waters or wetlands, as delineated in 373.421(1), and is
regulated under this part, is not contrary to the public interest or is
clearly in the public interest, the governing board or the department
shall consider and balance .. .
2. Whether the activity will adversely affect the
conservation of fish and wildlife, including endangered or
threatened species, or their habitats. ...

(2) The governing board or the department is authorized to establish
by rule specific permitting criteria in addition to the other criteria in this
part which provides:

(a) One or more size thresholds of isolated wetlands below which
impacts on fish and wildlife and their habitats will not be
considered. These thresholds shall be based on biological and
hydrological evidence and usage by threatened or endangered
species, that shows the fish and wildlife values of such areas to be
minimal.
)C N ACrteria for: he pro tection of threatened and endangered
species in isolated wetlands regardless of size and land use.


COMMISSION ACTION: UNANIMOUSLY APPROVED.








14. CONSISTENT PROCEDURAL RULES AMONG DISTRICTS

Background:

The procedural rules for processing permit and license applications, as well as for
initiating and pursuing administrative actions, differ from district to district. Members
of the public have testified that this makes it unnecessarily complicated and expensive
for citizens and consultants to deal with different districts. The commentators suggest
there is no reason why the vast majority of these procedural rules could not and should
not be identical for each district; "variance" provisions could be contained within other-
wise uniform procedural rules for those rare or unique district situations that would
require special procedures or safeguards.

Recommendation:

To the degree possible, the districts should modify their procedural rules
so that they are consistent among all five districts.


COMMISSION ACTION: UNANIMOUSLY APPROVED.
EDITORIAL NOTE: This recommendation was slightly edited for purposes of clarity.


26-








15. DISTRICT SUPERVISION OF CHAPTER 298 DISTRICTS

Background:

Chapter 298, Florida Statutes, requires each water control district created thereunder
("298 District") to file its board of supervisors' meeting minutes and plans of reclama-
tion with the Department of Environmental Protection. In addition, the statute pro-
vides that supervisors of 298 District boards be appointed by the Department when the
then-existing board is unable to elect one (e.g., when a quorum is not present). Not all
298 Districts comply with the statutory requirements to file meeting minutes and plans
of reclamation, and the Department has advised the Commission that the minutes and
plans of reclamation are not useful to the Department. Additionally, the Department
has indicated that it is more removed physically and functionally from the 298 Districts
than are the local governments or water management districts.

The Department believes that the "plans of reclamation" should be renamed "water
management plans" and should be consistent with State Water Policy, the Florida Water
Plan, and the relevant District Water Management Plan. Also, the Department feels
that 298 Districts should be authorized to undertake environmental activities to
improve water quality. The Department noted that 298 Districts are authorized to raise
revenue by levying special, assessments and may, pursuant to special act of the
Legislature subject to referendum approval, levy ad valorem taxes. Accordingly, it is the
Department's position that some 298 Districts may thus be able to provide funding for
water supply development, environmental restoration and water quality improvement.


Recommendations:

Modify Chapter 298 as follows:

(1) Change the requirement that 298 Districts file their water manage-
ment plans with the Department of Environmental Protection,
instead requiring the plans to be filed with the appropriate local
general purpose government and regional water management
district. The 298 District meeting minutes shall no longer be
required to be filed with the oversight agency unless so requested.

(2) When a 298 District is unable to fill a vacancy on its board of
supervisors (e.g. a quorum is not present at the annual landowners
meeting), the Governor should appoint a person to the vacancy.
The Governor should also be authorized to remove any 298 District
supervisor in the event of misfeasance, malfeasance, or neglect of
office.


27-








(3) Regarding 298 District "plans of reclamation":


(a) Rename as "water management plans" and require that they
be consistent with the regional water management district's
water management plan;

(b) Specify minimum contents of the 298 District water
management plans;

(c) Require consistency review of298 District water management
plans at least every five years;

(d) Assign to the regional water management district the
responsibility for consistency review of 298 District water
management plans.

(4) Authorize the 298 Districts to undertake environmental activities to
improve water quality.


COMMISSION ACTION: UNANIMOUSLY APPROVED.









16. ALTERNATIVE DISPUTE RESOLUTION


Background:

Sections 120.57 and 403.412, Florida Statutes, establish procedures whereby substantially
affected parties and citizens of the state may request an administrative hearing to
determine whether a proposed district action complies with applicable law. 120.57(2),
Florida Statutes, provides for an informal hearing if there are no disputed issues of
material fact, meaning that only questions of law may be decided. If disputed issues of
material fact are involved, a trial-like formal administrative hearing must be held,
normally conducted by a hearing officer of the Division of Administrative Hearings.s
Formal administrative proceedings can be quite lengthy and expensive for the district,
the petitioner, the permit applicant and intervenors; districts divert valuable staff time
and resources from other programs to defend their agency actions.

Occasionally the issues over which administrative disputes develop could be resolved
through alternative dispute resolution. ADR is being used extensively to facilitate the
speedy resolution of court proceedings, and offers litigants a less expensive method by
which they can attempt to determine a mutually agreeable settlement short of litigation.
ADR could be utilized without removing the participants' right to proceed to adminis-
trative hearing if settlement is not achieved.

The Division of Administrative Hearings offers the services of its hearing officers to
serve as ADR mediators for administrative matters pending before the Division. The
current procedures provide that parties to an administrative action can request
mediation, and a hearing officer who is not familiar with the case will meet with the
parties to discuss possible grounds for settlement and otherwise assist in mediating the
issues. If mediation does not succeed, the parties proceed to an administrative hearing.

It has been suggested that an ADR process be developed that would provide for a rela-
tively short period of time in which ADR could be attempted prior to filing a petition
for an administrative hearing. This recommendation is not intended to replace or
interfere with the dispute resolution processes established by the Bert J. Harris, Jr.
Private Property Rights Protection Act.

Recommendation:

If a disagreement arises after issuance of a. staff report, proposed consent
order, or proposed agency action:
(continued)


5 The entire district governing board or a member thereof can also act as the hearing officer in a formal
administrative proceeding, but in actual practice petitions for formal hearing are routinely referred to the Division
of Administrative Hearings for adjudication.


29-








(a) The applicant, agency or third party may request mediation.
Written consent by the applicant, agency, and any 'third
party requesting mediation is required to initiate mediation.

(b) A timely written request for mediation or waiver by the
applicant, or an agreement among all mediation participants,
would toll the time for filing a Chapter 120 petition by parti-
cipants and would extend the 90-day clock for agency action.

(c) Unless otherwise agreed by the applicant, final action must
be taken on the application either (i) within sixty days or (ii)
by the second meeting of the governing board, following the
timely filing of a written request for mediation.

(d) During the 60-day period, mediation of the disputed issues
would occur. Participation in mediation shall be voluntary.

(e) The cost of mediation would be shared by all participants
including third parties and citizens if they initiated the
request for mediation.

(f) The applicant may request other interested persons to
participate without cost.

(g) In the event a mediated settlement is reached, the staff report,
proposed consent order or proposed agency action will be
revised and submitted to the agency head.

(h) This process shall not be presumed to require the use of a
professional mediator and may include any form of alterna-
tive dispute resolution agreed to by the participants.

On November 30, 1995, the Commission unanimously agreed that the
foregoing mediation process should also be available for challenges to proposed
and existing administrative rules. Accordingly, the Commission's legislative
package for implementation of its recommendations will include a similar
process, modified only to the extent necessary to be compatible and consistent
with the administrative processes of Chapter 120, Florida Statutes.

COMMISSION ACTION: UNANIMOUSLY APPROVED.









17. RULEMAKING: LEAST COST ALTERNATIVE


Background:

Districts' general rulemaking authority is contained in the following statutory provisions:

373.113 Adoption of regulations by the governing board.--In administering the
provisions of this chapter the governing board shall adopt, promulgate, and enforce
such regulations as may be reasonably necessary to effectuate its powers, duties, and
functions pursuant to the provisions of chapter 120.

373.171 Rules and regulations.--
(1) In order to obtain the most beneficial use of the water resources of the state and
to protect the public health, safety, and welfare and the interests of the water users
affected, governing boards, by action not inconsistent with the other provisions of this
law and without impairing property rights, may:
(a) Establish rules, regulations, or orders affecting the use of water....
(b) Regulate the use of water within the affected area by apportioning,
limiting, or rotating uses of water or by preventing those uses which the
governing board finds have ceased to be reasonable or beneficial.
(c) Make other rules, regulations, and orders necessary for the preservation of
the interests of the public and of affected water users.
(2) In promulgating rules and regulations and issuing orders under this law, the
governing board shall act with a view to full protection of the existing rights to water
in this state insofar as is consistent with the purpose of this law.
(3) No rule, regulation or order shall require any modification of existing use or dis-
position of water in the district unless it is shown that the use or disposition proposed
to be modified is detrimental to other water users or to the water resources of the state.


Recommendation:

Amend Section 373.113 as follows:

373.113 Adoption of regulations by the governing board.-In
administering the provisions of this chapter the governing board shall
adopt, promulgate, and enforce such regulations as may be reasonably
necessary to effectuate its powers, duties, and functions pursuant to the
provisions of chapter 120. All substantive rules adopted shall represent
the least cost alternative while accomplishing the goals of the statute being
implemented and taking into consideration the benefit to the public at
large and the cost to the regulated community.

(continued on next page)


31-









In making this recommendation, the Commission makes an explicit tfnd-
in' that the foreoin amendment to Section 373.113. F.S. is not intended
to prevent, prohibit or in any way limit the authority of the districts to
promulgate rules which include consideration of: i) the oroximitv of a
proposed source of water to the area in which it is to be used or applied
and fii) economically and technically feasible alternatives to the proposed
source. such as desalination, reuse, stormwater and aquifer storage and
recovery. for those rules related to Part II of this Chaster which concern
transport of around or surface waters.6


COMMISSION ACTION: UNANIMOUSLY APPROVED.



























6 See Recommendation No. 5 on page 10 of this document.


- 32-








18. RULEMAKING: PRESUMPTION OF CORRECTNESS7


Background:

Currently water management district administrative rules are subject to challenge by
substantially affected persons, based upon an assertion that the rule is an invalid exercise
of delegated legislative authority. The challenger to the rule has the burden of
demonstrating that the rule is such an invalid exercise. The decision regarding a rule's
validity is made by a hearing officer from the Division of Administrative Hearings. In
making that decision, the hearing officer considers the agency's interpretation of the
statute being implemented to be correct unless it is not within the range of permissible
interpretation.

Members of the public recommend that this presumption of correctness in favor of the
agency (district) be removed.


Recommendation:

With regard to administrative rule challenge proceedings under Sections
120.54 and 120.56, Florida Statutes, the Commission heard significant
public comment regarding the presumption of validity currently afforded
an agency's interpretation of enabling legislation. While the Commission
has not been charged with reviewing and making recommendations
regarding rule challenge proceedings under Chapter 120, the level of
concern voiced by the public indicates that the Legislature should modify
the standard applied in rule challenge hearings to remove the presumption
of validity that currently exists in favor of the agency. In determining the
validity of administrative rules, a hearing officer shall consider the
agency's interpretation of the statute and the challenger's interpretation of
the statute on a "level playing field." The Commission recommends that
Chapter 120 be amended to implement such a concept.


COMMISSION ACTION: APPROVED BY A 10-TO-5 VOTE.





SAs long as an agency's interpretation of the statute being implemented is within the permissible range
of definitions, the agency's view will be sustained, "though other interpretations are possible and may
even seem preferable[.]" Department of Health & Rehabilitative Services v. Framat Realty, 407 So. 2d 238
(Fla. 1st DCA 1981).








19. BETTER COMMUNICATION WITH THE PUBLIC


Background:

Concerns were expressed and suggestions made regarding district communications with
the public. Commission members agreed that districts should respond to official com-
plaints of violations in a prompt and timely manner. It was suggested that implemen-
tation of an "800" telephone number or "hot line" would expedite citizen inquiries and
facilitate the complaint process.


Recommendation:

Districts should enhance communication with citizens by:

1. Responding promptly to citizen inquiries and complaints, and

2. Implementing toll-free numbers to expedite citizen inquiries and
facilitate handling of complaints.


COMMISSION ACTION: UNANIMOUSLY APPROVED.


34-








20. MODIFICATIONS TO AGRICULTURAL PERMITTING


Background:
Currently agricultural interests must obtain a number of permits including surface
water, consumptive use, and in some instances dredge and fill and/or discharge permits.
The permits can be duplicative in the information needed and the analyses undertaken.

Recommendations:

1. The Legislature should direct the water management districts, the
Department of Environmental Protection, and the Department of
Agriculture and Consumer Services to jointly develop and imple-
ment voluntary, integrated "whole farm" or forestry management
programs that would include non-regulatory, incentive-based alter-
natives for agriculture and forestry activities which are directed to
more efficient or effective resource management on agricultural and
forestry lands and a net environmental benefit compared to conven-
tional regulatory programs. Examples of such programs include the
Suwannee River Water Management District's Forestry and Agricul-
ture Resource Management (FARM) Program and the Southwest
Florida Water Management District's Agricultural Ground and
Surface Water Management (AGSWM) Program. The development
and implementation of integrated programs will require the
coordination and cooperation with other governmental agencies to
identify all regulatory functions involved in agricultural activities,
including federal and local governmental entities, and should
include appropriate delegation of regulatory functions to achieve the
goals of consolidation and simplification of regulatory programs.

2. The Legislature should provide specific authority for the water man-
agement districts to procedurally consolidate separate permitting
actions for the same activity into a single authorization process.
The procedural consolidation shall not impose additional regulatory
criteria or guidelines.

3. The districts should train staff to have both practical and technical
knowledge of agricultural production practices within the district.


COMMISSION ACTION: UNANIMOUSLY APPROVED.


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21. WATER SUPPLY DEVELOPMENT AND MANAGEMENT


Background:

The following proposals were submitted to the Commission in support of the premise
that as a prime directive for water supply development, the Legislature should create
a state regulatory and water supply program designed to assure there is an adequate sup-
ply of water for all users. The submitting commentator stated that the fact Florida
receives an average annual rainfall of 50-55 inches should make achievement of the
prime directive feasible, if surface and groundwater resources are used wisely.


Recommendation Modified or Rejected:

A. Direct water management district boards to develop adequate
sources of long term water supplies for all users. Restrict boards to
the wholesale allocation and/or delivery of water. The Legislature
should ensure appropriate funding mechanisms are available to the
water management districts to carry out their water supply
responsibilities. .

COMMISSION ACTION ON RECOMMENDATION A: The first sentence
was addressed by the Commission in Recommendation 1-A on page 1 of this
document; the Commission UNANIMOUSLY REJECTED the second sen-
tence; and the third sentence was addressed by Commission recommendations
relating to financial structure and budgeting processes of the districts.


Recommendation:

B. Over time, ensure that the management plans for state and district
lands, parks and forests (other than submerged lands) consider
making these lands available for appropriate multiple uses that are
sustainable and compatible with the purposes for which the land
was acquired and which may include water supply.


COMMISSION ACTION: UNANIMOUSLY APPROVED.








22. ENVIRONMENTAL PROTECTION ACT (403.412, F.S.)

Background:

Section 403.412, Florida Statutes, establishes a mechanism by which any citizen or politi-
cal subdivision of the state can file a legal action to compel a governmental agency
responsible for protecting the environment to enforce any law, rule or regulation "for
the protection of the air, water, and other natural resources of the state." In addition,
the statute provides for a cause of action by any citizen to enjoin the violation of
environmental laws, as well as an opportunity to intervene in an administrative or
permitting proceeding. Some members of the Commission advised that this process was
being abused by persons who wanted to delay the issuance of any regulatory permit.
The Commission also received testimony that the statute was used by some to obtain
settlement fees from permit applicants who would rather pay the citizen and proceed
with permit issuance, rather than expend significant time and money to defend the
application in an administrative hearing. In addition, another Commissioner indicated
that the provision in g 403.412, F.S., requiring the payment of attorney's fees to the
prevailing party, discouraged some citizens from filing potentially meritorious claims.
While the Commission agreed that these concerns should be investigated and suitable
remedies fashioned, members concluded that the legislative process was a more appro-
priate forum for the full andccomplete participation by persons subject to or interested
in the statutory provision.


Recommendation:

The Legislature should review the citizen suit mechanisms established by
Section 403.412, F.S., to ensure that the statute and current case law
effectively provide for responsible participation in the enforcement of
environmental laws and precludes misuse of the statute for purposes of
delay or monetary gain. The Legislature's investigation should include,
but not be limited to, the following issues:

A. Whether and to what extent the standing to file or intervene in a
judicial cause of action or administrative proceeding should be
based upon a direct or substantial relationship between the
claimant and the proposed project or agency action;

B. Whether the formulation of agency action should provide for and
encourage early participation by potentially interested parties, and
whether a missed opportunity to participate or provide factual or
scientific information would preclude later involvement;


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