Title: Summary of Draft Water Resources Legislation - Dept. of Environmental Protection - January 29, 1996
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 Material Information
Title: Summary of Draft Water Resources Legislation - Dept. of Environmental Protection - January 29, 1996
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Summary of Draft Water Resources Legislation - Dept. of Environmental Protection - January 29, 1996 (JDV Box 39)
General Note: Box 29, Folder 10 ( 1996 Water - Miscellaneous - 1996 ), Item 6
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004944
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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Full Text
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CHARLES B. LITTLEJOHN & ASSOCIATES
ENVIRONMENTAL AND GOVERNMENTAL
AFFAIRS


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Charles B. Littlejohn & Associates
310 W. College Avenue
Tallahassee, Florida 32301
Tel: (904) 222-7535
Fax: (904) 681-8796


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SUMMARY OF DRAFT WATER RESOURCES LEGISLATION
Department of Environmental Protecion
January 29, 1996


Introduction

The following summary describes the concepts addressed in the Department of
Environmental Protection (DEP) draft water resources legislation, which focuses on
water supply planning. We have met and continue to meet with various interests to get
their impressions as to the direction the draft bill takes and will make some of their
recommended revisions. We are not distributing the draft bill because it simply is not
ready for detailed analysis.

The bill does not currently address water supply development, but will need to at some
point. We anticipate releasing a draft for distribution on February 6. Subsequent to that
date, we expect to submit the draft to the working group that the Committee has formed
for in-depth discussion and revision. However, certain concepts are fundamental to the
bill, including:

o Meeting the water needs of people while ensuring the sustainability of our natural
environment.

o Basing water supply development and permitting decisions on scientific,
comprehensive, long-range regional planning.

o Involving all affected interests in water supply planning in a fair and balanced
manner and addressing the needs of all user groups.

o Integrating land use and water resources planning.

Bill Summary

The key provisions of the DEP draft water resources legislation:

o Provide policy regarding the necessity of sustaining water resources and the
importance of regional planning to accomplishing sustainability.

o Clarify the meaning of DEP general supervisory authority over the water
management districts, including, but not limited to:

Review and approval of District Water Management Plans and priority lists
for the establishment of minimum flows and levels.

Review of water management district rules.for consistency.with state water
policy.




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Evaluating and, where needed, ensuring consistency among water
management district rules and programs.

o Address legislative review of the State Water Policy rule.

o Link consumptive use permitting decisions to regional water supply planning.

o Prohibit sale or transfer of a consumptive use permit that is not associated with a
sale or transfer of land to which the permit applies.

o Create a new part of Chapter 373, Florida Statutes: The "Water Resources
Planning and Water Supply Development Act," which includes:

Transferring, consolidating, and revising existing statutes on water planning,
technical assistance, water production, and regional water supply
authorities.

Codification of the Florida Water Plan and the District Water Management
Plans (DWMPs).

A requirement that the water management districts in their DWMPs
prepare priority lists for the establishment of minimum flows and levels,
with deadlines for priority surface and ground waters on the initial priority
list.

A requirement for the development of regional water supply plans, with at
least a 20-year horizon, within each water management district (WMD).
Each WMD governing board would identify the water supply planning
regions, which would encompass the entire district, in its DWMP. Each
regional water supply plan would be developed by a team of affected
interests with the WMDs in the lead and would identify the
environmentally, technically, and economically feasible options for water
supply within the region. To the extent practicable, the plan would identify
the sources most feasible for specific user groups and funding options for
water supply development. The governing board, after ensuring the plan's
consistency with the DWMP, would adopt the plan by rule and would
amend its consumptive use permitting rules to be consistent with the plan.
Where the planning team cannot resolve disagreements over plan
development, the governing board would arrange for nonbinding mediation
prior to proceeding with rule adoption of the plan. Revisions to existing
water supply plans or completion of those under development as of the
effective date of the act would have to be consistent with the regional water
supply planning section. Applicants for consumptive use permits would
choose from the options in the applicable adopted regional water supply
plah or demonstrate that another option is consistent with the plan. -





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A requirement that local governments use data and information contained
in the applicable DWMP in its local government comprehensive plan.

Direction to the Department of Community Affairs, the WMDs, and DEP
to enter into a memorandum of agreement regarding the review of local
comprehensive plans with respect to water supply.

o Require the plans and activities of regional water supply authorities to be
consistent with the portions of the applicable DWMP which are implemented by
rule, including the regional water supply plan.

o Provide for periodic audits of regional water supply authorities by the Office of
the Auditor General.

o Revise section 163.3177, Florida Statutes, to strengthen the requirements of local
comprehensive planning with respect to water supply.

o Direct the Executive Office of the Governor to review and approve water
management district budgets.


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HIGHLIGHTED ISSUES WITH REGARD TO DEP DRAFT
WATER RESOURCES LEGISLATION

For the
Water Resources Coordination Commission

January 29, 1996


Minimum flows and levels (MFLs)

A debate on the issue "what are minimum flows and levels?" has begun and will probably
escalate during the 1996 legislative session. There is a divergence of practical and
philosophical interpretations of MFLs between DEP and the water management districts.
That divergence, along with the current intense focus on MFLs as a prerequisite to
planning and as the key to resource protection, requires resolution. The department
proposes to conduct at least two discussions with the water management districts, within
the month of February, regarding the establishment and application of MFLs:

o The first discussion would involve technical, legal, and policy staff from DEP, the
Governor's Office, the WMDs (including the WMD executive directors), and staff
from other agencies with a direct interest in the issue (i.e., DACS, DCA, Game
and Fish). This discussion would serve as a forum for a fair hearing of differing
agency interpretations and applications of MFLs.

o The second discussion would involve only DEP, the Governor's Office, and the
water management districts and would include the Governor and/or Lt. Governor,
the DEP secretary, the WMD governing board chairs, and appropriate staff. The
objective of the discussion would be for DEP and the WMDs to formulate a
consistent policy regarding the establishment and implementation of MFLs.

Key questions for discussion include:

1. Are MFLs established based solely on scientific determinations of significant
harm or is policy involved in determining what is significant harm to the water
resources or ecology of the area?

2. If policy plays a part in determining MFLs, where do policy considerations enter
the analysis? (Is economics a/the major policy consideration? Should it be or
not? Are there types of harm that are acceptable and even unavoidable in order
to provide water ecopomically--i.e., saltwater intrusion or destruction of low-quality
wetlands? Do the scientists receive policy direction before beginning their work or
do they bring the "pure" data to the governing board where it is viewed in light of
policy decisions; is it sometimes one, sometimes the other, sometimes both?)


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3. What should be the areal extent of MFLs? Should they always be established by
rule or is it appropriate, or even preferable, at times to establish them permit by
permit? Do permit-by-permit MFLs meet the intent of s. 373.042, F.S.?

4. Once established, should MFLs be inviolate? Are MFLs one benchmark among
others for decision making or an absolute limit? Should mitigation be accepted
under certain circumstances to allow the apparent violation of MFLs (the
argument in favor of mitigation is that it would offset the significant harm to the
resource and, therefore, would not breach the objective in establishing an MFL)?

5. What is the relationship between MFLs and reservations from use?

6. Should there be additional statutory direction on what MFLs are and how to
establish them? Is the current statute's vagueness contributing to the delay in
establishing MFLs? Is the Water Management District Review Commission's
proposal on balancing with regard to MFLs a significant change in water law? Is
it a desirable change or an undesirable change?

WMD Role in the Development of Regional Water Supply Plans

The DEP draft legislation provides for the WMDs to take the lead in regional water
supply planning, but not to conduct planning unilaterally. A WMD would provide
technical data, staff, and administrative assistance to a planning team for each identified
water supply planning region within the district. The planning team would represent the
affected interests within the region and, based primarily on WMD data, would evaluate
the environmental, economic, and technical feasibility of water supply options for user
groups in the region. Once the plan is completed, the WMD governing board would
adopt the plan by rule and amend its consumptive use permitting rules to be consistent
with the plan. If the planning team cannot come to agreement, the governing board
would first arrange for nonbinding mediation and subsequent to mediation would
proceed to rulemaking.

Questions remaining about the WMD role in this planning process include:

1. Should all the data used by the planning team be WMD data? What latitude
should the planning team have to present other technical data? (The bill
currently allows others on the planning team to contribute data that is
supplemental to or more accurate than WMD data. However, the WMD's
determination of MFLs and available quantities of surface and ground water are
to be accepted by the planning team.)


2. Should each team be chaired by a member of the governing board, since the plan
is to be adopted as a WMD rule?




.FEB-02-1996 14:52


3. What deference should the governing board be directed to give to the planning
team's product if it is a consensus plan? If it is not a consensus plan and
mediation is not successful in resolving substantial disagreement, what latitude
should the board have in revising the plan during rule adoption?

Water Supply Development

The DEP draft bill does not address the issue of water supply development, but will need
to at some point. The development of water supply currently is handled primarily by
local government (including regional water supply authorities) and private utilities.
Concerns about the adequacy or willingness of these entities to provide water for all user
groups have prompted discussions about whether the water management districts or
some other less parochial entity should develop water supplies. This is a legitimate
question on which DEP and the water management districts should provide leadership
and help to resolve.

As a beginning point, DEP, the WMDs, and others should revisit recommendations of
the 1989 Governor's Water Resource Commission. The Commission was comprised of
water management district representatives and staffed by DEP and WMD staff. The
Commission's report contains far-sighted and practical (if not all politically palatable)
recommendations, several of which the DEP draft legislation parallels. The report
demonstrates the kind of leadership DEP and the WMDs are capable of providing. The
Commission's recommendations on water supply development should be given careful
consideration in the discussion on water issues this year, as should many of the other
recommendations that have not yet been implemented. A copy of the recommendations
is attached.

Implementation of Water OQuality Standards

The draft DEP legislation no longer contains a provision regarding the implementation of
narrative water quality standards to address the outcome of the administrative hearing on
Lake Apopka. This is true only because the department decided to focus the bill on
water supply for purposes of working with the House and Senate Select Committees on
Water Policy. However, this issue requires attention and DEP and the water
management districts have been working together to come up with statutory language
that properly implements the Water Management District Review water quality standards
recommendation. We have not yet come up with joint language. It is likely that such a
provision will be attached to a water policy bill or that it will make it through the
Legislature on some other vehicle. DEP intends to pursue the issue and assist in
resolving it appropriately.


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INTERIM CONSIDERATIONS FOR THE WRCC
January 29, 1996


As the WRCC considers what it will recommend to the Governor regarding its future
course, DEP staff requests to proceed with the following:

1. To receive comments from all the affected agencies on the draft memorandum of
agreement (attached) for the WRCC's consideration and revision at its next
meeting. The draft MOU is based on the proposed revisions to the current
executive order. A memo describing the key revisions was distributed along with
Sthe agenda and is attached.

2. To notify the Departments of Commrunity Affairs and Agriculture and Consumer
-Services (and DOT?), and the Game and Fresh Water Fish Commission that they
are encouraged to participate in WRCC meetings, that they may submit agenda
items, that there will be a standing agenda item for their comments, and that
they will receive copies of agendas for future meetings.

This is one of the key provisions of the 11-14-95 draft revised executive order
because it broadens the coordination role of the WRCC and brings in other
agencies affected by water resource considerations. In providing leadership in
water resource issues and promoting the integration of land use and water
resources planning, DEP and the WMDs must more routinely involve other
affected agencies. It is not necessary to wait until a new executive order or
memorandum of agreement is in place to broaden the WRCC's outreach.

3. To prepare, jointly with water management district staff and with input from the
agencies referenced in item 1, a draft annual workplan for the WRCC's
consideration and revision at its next meeting.

This element of the proposed revisions to draft revised executive order is critical
to enhancing the role of the WRCC in policy coordination and issue resolution
among DEP and the water management districts. An annual workplan could
allow the WRCC to focus on priority issues, but give the Commission the flexibility
to address immediate needs as they arise. Examples of issues that the WRCC
should monitor and, if necessary, help to resolve or advance include:

o Consumptive use mitigation. Currently, DEP and the water management
districts have an ad hoc working group to determine the appropriate limits
and application of mitigation for impacts to wetlands from consumptive
uses. It is essential that, to the greatest extent practicable, there be
consistency among the water management districts in the application of
consumptive use mitigation and that it have strict limitations. The South
---Florid a Water Management-District-is-the-enly WM-which-i-proceeding-- .. -





-FEB-02-1996 14:53


to rulemaking on this issue and what SFWMD adopts will set a standard
for the state as a whole.

o Saltwater intrusion. Again, DEP and the water management districts are
approaching this issue through an ad hoc working group. Although the
group began in response to a DEP legal opinion that saltwater intrusion is
a violation of state water quality standards, the fundamental question is
how the state is going to manage saltwater intrusion. The working group is
putting together a proposal which will address a potential exemption from
water quality standards for saltwater intrusion caused by consumptive uses,
based on certain conditions which provide reasonable assurance that
saltwater intrusion will be managed consistent with Chapter 373, Florida
Statutes, and the State Water Policy rule.

o- Minimum Flows and Levels. See the discussion of MFLs in relation to
DEP draft water resources legislation.

o Water Supply Development. As noted in the discussion of DEP draft
legislation, this issue will become more of a focus in the coming years.
DEP and the WMDs need to provide leadership in determining who should
and how to develop sustainable water supplies.

o Integration of Land Use and Water Resources Planning. The WMDs are
already beginning to work closely with DCA and local governments to put
this linkage into practice. DEP can offer valuable assistance in this effort.
The WRCC can enhance the linking of land and water planning by
including related items within its annual workplan. The participation of
DCA and other agencies in WRCC meetings will support and further the
work the WMDs have begun.


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Regional Water Supply Development


Step 1 Planning Area Resource Evaluation
Technical Evaluation of Environmental and Water Supply Problems
Identify Needs\Sources
Preliminary Conceptual Analysis
-Confirmation that Problem is Significant and Needs Regional Solution
-Description of Potential Regulatory or Structural Solutions
-Preliminary Assessment of Costs and Benefits
Develop Specific Evaluation Criteria
-Determine Appropriate Minimum Flows and Levels
-Establish Level of Certainty for Water Users and the Environment
-Protect Existing Legal Uses
Determination that the Planning Area Resource Evaluation
has Defined the Problem Adequately and Suggested Viable Solutions
to Justify Proceeding to Step 2.
Step 2 Project Feasibility Study
Develop Specific Alternatives
-Perform Detailed Economic Analysis Including all Benefits and Costs
-Specify Water Source / Use Designations
-Quantify the Performance of Each Alternative Toward Meeting Goals
-Specify Implementation Responsibilities
-Extensive Technical Analysis (peer review)

Step 3 Select the Final Recommended Alternative
Recommended Plan Document Must Include:
-Specific Language of any Regulatory Program
-Construction and Land Acquisition Details Sufficient to Proceed
-Financing Plan and a Defensible Cash Flow Analysis

Step 4 Implementation
Regulatory Program
-Adoption of Minimum Flow and Level Rules
-Adoption of Consumptive Use Rules
-Issuing / Modifying Consumptive Use Permits
Financing
Land Acquisition
Construction and Operation
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