CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, R A.
ATTORNEYS AT LAW
ONE HARBOUR PLACE FIRSTATE TOWER HARBOURVIEW BUILDING FIRST FLORIDA BANK BUILDING ESPERANTE BARNETT TOWER
P.O. BOX 3239 P O. BOX 1171 P O. BOX 12426 P.O. DRAWER 190 P.O. BOX 150 P.O. BOX 2861
TAMPA. FLORIDA 33601 ORLANDO, FLORIDA 32802 PENSACOLA. FLORIDA 32582 TALLAHASSEE, FLORIDA 32302 WEST PALM BEACH. FLORIDA 33402 ST PETERSBURG, FLORIDA 33731
(813) 223-7000 (407) 849-0300 (904) 434-0142 (904) 224-1585 (407) 6597070 (813) 821-7000
FAX (813) 229-4133 FAX (407) 6489099 FAX 904) 434-5366 FAX (904) 222-0398 FAX (407) 659-7368 FAX (813) 822-3768
PLEASE REPLY TO :
VIA HAND DELIVERY Tallahassee
February 7, 1996
TO: Pete Dunbar
FROM: Jake Varn
RE: Water Supply Outline
Set out below are my initial comments observations and
concerns with the Outline.
l.a. Why do you want to protect the WMD's "needs and
sources" plan with a Chapter 163 shield? I thought Senator
Latvala only wanted to protect the RWSA's plan. Remember the WMD
"needs and sources" plan may contain the minimum flows and
levels. The WMD's "needs and sources" plan needs to identify all
potential water supplies within the WMD.
Also, I would recommend that the WMD's "needs and
sources" plan needs to be approved as a rule. Why do you want
the Secretary of DEP to approve the plan? Do you want the "needs
and sources" plan to be appealable, pursuant to s. 373.114, F.S.,
to the Governor and Cabinet as all other WMD decisions?
1.b. Good concept.
l.c. It is my opinion that minimum flows and levels are most
important when you have large water withdrawals. A withdrawal of
5 mgd or more is major. I question if you can establish
meaningful minimum flows and levels in the "needs and sources"
plan. The data is very generalized. The WMD and applicants have
to consider more data when a permit application is being
reviewed. That is why I believe that minimum flows and levels
needs to be set in conjunction with permitting as opposed to
being done as part of the "needs and sources" plan.
1.d. The peer review will be of the scientific data that is
used in the determination of minimum flows and levels. The
governing board's decision as to the minimum flow or level is a
subjective one and is not appropriate for peer review. You may
want to consider defining what data or process will be used for
establishing minimum flows and levels.
February 7, 1996
l.e. If a RWSA seeks a permit pursuant to a water supply
plan approved by the WMD, the burden of proof should be on the
WMD as to why a permit should not be approved. Long term permits
for RWSA would be appropriate if nearby properties have
assurances of future supply for reasonable-beneficial purposes.
1.f. Good concept.
2. Do you mean to make the RWSA the "exclusive provider of
potable water?" I do not believe that you can make this work.
2.a. Do you want the appeal to go to the DEP Secretary or
the Governor and Cabinet? Can other parties appeal to RWSA's
plan? If there is an appeal, it should be a quick and simple
appeal on the record.
2.b. This might be appropriate for West Coast RWSA, but this
will create a problem for other RWSAs.
2.d. Again, this might be appropriate for West Coast RWSA,
but is probably not appropriate in all RWSAs.
2.e. Why don't you make provision for the appeal of WMD's
emergency orders and stay the effectiveness of the emergency
orders if appealed?
2.f. See previous comments on minimum flows of levels (l.c.
Senator Latvala wanted to amend the current statutory
provisions governing interdistrict transfers of water.
Generally, I would suggest the following:
1. Each WMD through its "needs and sources" plan should
identify all potential water supplies within the WMD. Each local
government and RWSA should be provided with these potential
sources along with all technical data.
2. Each local government and RWSA would then determine
what sources it would like to utilize. Each local government and
RWSA would prepare a long term water supply plan. These plans
are for public water supply and would have no impact on private
water users. The RWSA plan would be adopted based on the sources
selected by the RWSA (the sources must include sources not
identified by the WMD). The RWSA plan would then be reviewed by
February 7, 1996
WMD for consistency with WMD "needs and sources" plan and to make
sure that there is no conflict with other water supply plans.
Once RWSA plan is approved by WMD, RWSA should be presumed to be
entitled to permit for sources approved in plan provided water
has not been permitted for use by another party.
The foregoing should identify conflicts in the planning
process rather than the permitting process. Both the WMD "needs
and sources" plan and the RWSA's water supply plan need to be
reviewed and updated every five years.
OUTLINE Working Copy
1. Each WMD is responsible for preparing a "needs and sources"
plan for available water:
a) The plan would be adopted by rule and the process would be
protected by a shield in the rulemaking process similar to
that extended under Ch. 163 to the comp. plan process. The
Secretary of DEP shall approve the plan and each eligible WSA
within the WMD district shall be a substantially effected
party in the approval process which shall include the right to
appeal the plan or any element thereof to the DEP.
b) The plan would undergo a mandatory review every 5 years.
c) Any minimum flows and levels under the plan must be
established on a site specific basis for defined water bodies
within the defined vicinity of a well permitted to produce
5mgd or more.
d) Minimum flows and levels shall be establish by the WMD
upon scientific evidence consistent with a peer review. The
final decision of the WMD shall be appealable to the Secretary
of DEP by any eligible WSA if the decision of the WMD is
inconsistent with the peer review.
e) The CUP application of an eligible water supply authority
under the plan shall be presumed correct. (The WSA may also be
eligible for a permit of extended duration.)
f) Each eligible WSA operating within the WMD consistent with
the plan shall receive .25 mills of the WMD millage from
within the geopraphical boundaries of the Authority to carry
outs its functions.
2. Once a regional Water Supply Authority has been created and
complies with the established criteria, it shall be the exclusive,
wholesale provider of potable water for its members. The criteria
for eligible WSA shall include:
a) The WSA shall adopt a regional water supply plan that
shall be approved by the WMD. Disputes concerning the plan
between the WSA and the WMD may be appealed to the Secretary
b) The WSA shall have title to all new wells and distribution J
pipes and shall be the operator of the regional facilities.
c) The WSA shall establish and maintain per capital water
consumption goals that shall be equal to, or better than the
average statewide per capital water consumption.
d) The plan of the WSA shall provide for up to 25% of water
for its members from alternative sources.
e) The WSA shall have standing to appeal any emergency order
of the WMD concerning the plan or its implementation to the
Secretary of DEP.
f) The WSA shall have standing to appeal minimum flows and
levels established by the WMD when the levels are not
consistent with the peer review.
f) The WSA authority shall have water transfer preferences
for transfers consistent with its water supply plan.