CITY OF TAMPA
JUL 11 1997
OfRce of city Attorney
TO: F '
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rio t f/ -r9t
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CITY OF TAMPA ATTORNEY'S OFFICE__
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NUMBER OF PAGES, INCLUDING COVER SHEET: A___
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AT (813) 274-8996.
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FROM: I(^-tH Y
CITY OF TAMPA LEGAL DEPT.
813 274 8809 P.01/02
THE FLORIDA WATER COUNCIL, INC. "
4524 West Gun Club Road
West Palm Beach, FL 33415
LEGISLATIVE R EP T FINAL WEEI
The water resources bill passed! Early Friday morning oen the last
day cf session the House tcok up the Senate's "strike everything"
amendment to C/1s/i 1 5 and voted it out on a 114-3 vcte. The
final debate cn the bill dealt with the deletion of the "local
sources first" provision which, as criminally worded in the Ilouse
version, would have made it permissable for the Department or
C vernin BEard to give significant weight tc various factors when
considering a consumptive use permit involving the transport cf
water across political boundaries. A any rural legislators and
particularly these from the Rascc County area fought hard to keep
"*local sources first" language in the bill. On a proposal by
Representative John Laurent, Chairman cf the House Water &
Resources Management Committee, to brine this issue back to the
legislature in 1998, the House voted cut the bill.
rollowinu is a brief description of what the bill contains. laiht
now, I plan to brinf copies to the next Ioard of Directors meeting
on May 19. If you would like one sooner than that, please call
373.01C Declaration of Dolicy is amended to 1) require that the
IDED and Covernin EIoard take into account cumulative impacts
on water resources and manage those resources to ensure
sustainability; and 2) promote replenishment, recapture, and
enhancement of water resources; 3) ensure that the policies of
Chapter 373 are applied in the whole, with no specific policy
applied in isolation from the others.
373.C01 Drovides definitions of District Water Management Plan;
Florida Water Plan; Ieicnal Water Supply Ilan; Water Iesource
Implementation Rule; Water Resource Development; and Water
A NON-PROFIT ORGANIZATION ADVOCATING EFFECTIVE WATER
RESOURCE POLICIES AT STATE, REGIONAL AND LOCAL LEVELS
373.036- Amended tc include the Florida Water Plan and District
Water Manaaement Plans. Outlines the contents of the plans,
process for amending the Water Resource Implementation Rule.
373.0301 Creates a section dealing with lesicnal Water Supply
Ilans. Ioards must initiate planninbvy October 1, 1 9S in regions
where water supply is determined to be inadequate. Planning will
be based on a 20-year horizon and conducted in an open, public
process. Plans will include quantificaticn of needs for existing
and future reascnable-beneflclal uses based en planning Uoal of
1-in-1 C year drought event; water source options for supply
developments potential sources of funding; detailed information
on proposed water supply development projects; minimum flows
and levels. eeoicnal water supply plans completed by July 1,
1997 will be revised to comply with these requirements. I Y
November 1 J, 1997 the districts will submit an annual report to
the Governor and legislature on progress toward achieving water
resource development 0oals. Does not require local governments
and local utilities to select a water supply development option
contained in the plan.
373.C42 Minimum flows and Levels is amended to provide for the
adoption of an annual priority list and schedule for adoption of
MFLs. Establishes a process for scientific peer review of the
establishment of AMLs.
373.C421 Creates a section on the establishment and
implementation of MFLs which requires that the Department or
Ccvernino IDoard consider chances and structural alterations to
waters and the effects and constraints such changes and
alterations have placed on the hydroloy of the watershed,
surface water or aquifer. Provides exclusions from the
establishment of MLLs for water bodies that no longer serve their
historic hydroloic function (as determined by the Ioard); surface
water bodies less than 25 acres in size (unless these have
sinificant economic, hydrologic or environmental value); and
surface water bodies constructed pursuant to a Chapter 373, 403
or 378 permit or prior to the requirement for a permit (unless these
have significant hydroloaic value or are an essential element of
the water resources of the area). Such exclusions do not apply to
the Everglades Irotection Area.
Provides that the Department or Governino IDoard must
implement a recovery or prevention strategy in those cases where
flows or levels fall below or are expected to fall below an
established F[L. The strategy must include development of
additional water supplies and a phasing timetablewhich allows for
sufficient water supplies to be developed for all existing and
projected reasonable-beneficial uses. The development of
additional supplies must be concurrent with and offset any
required reductions in permitted withdrawals.
373.C46 Adds a provision that water management districts, with
the concurrence of affected local governments, can enter into
interagency agreements whereby one district will be designated to
implement rules within a aeoeraphic area of a project or local
government that crosses water manaUement district boundaries.
373.073 Amends the section on Governing Boards to provide for
staaoered terms of Doard members. Provides that the failure or
refusal of the Senate to confirm an appointment to a Uoard
position creates a vacancy in that office. Requires that Board
members be selected who have significant experience in a variety
of disciplines, including but not limited to, agriculture,
development industry, local government, water utilities, law, civil
engineering, environmental science, hydroloy, accounting or
373.C(7 Amends this section to 1)authorize Govemino Ioards to
employ ombudsmen; 2) require gubernatorial approval of the
selection of an Executive Director; 3) require that the Executive
Director is confirmed by the Senate upon employment and
thereafter during the second regular legislative session following a
gubernatorial election; 4) specifying the responsibilities of the
district legal staff.
373.C831 Creates a new section dealing with water resource
development and water supply development. Outlines the role of
the water management districts and their responsibility for
identifying, implementing and securing funding for regionally
significant water resource development projects. Identifies the
role and responsibility of local government and local water
suppliers to provide water supply development. Directs that
beneficiaries of water supply development projects should pay for
those projects. Requires Governing Boards to include in their
annual budget the funding necessary to implement water resource
development projects. Authorizes the state or districts to provide
funding assistance to these water supply development projects
which meet certain criteria.
373.139 Amends the section on Acquisition cf Real Uroperty to
provide that except in cases where prohibited by covenant cr
condition, lands owned, managed and controlled by water
management districts may be used for multiple purposes including
agriculture, silviculture, water supply and recreation.
373.236 Amends Uuration of Vermits to require that Govemino
Eoards issue 20 year consumptive use permits under certain
conditions. Provides fcr a five-year compliance report for 20-year
permits. Also requires that the IDlE develop a proposal for
reevaluating areas of the state previously delineated as having
contaminated water supplies including contamination from
ethylene dibromide in order to determine if the threat from
contamination has been reduced and the delineation can be
373.C07 Amends the section dealing with district budgets to
require detailed reporting, notice and review cf tentative district
budgets. Districts must identify administrative and operating
expenses proposed including information cn expenditures relating
to lobbying, intergovernmental relations and advertising as well as
regulation, operations, planning, land acquisition. Districts must
provide a five-year water resource development work program
and the governors Offce shall review the prcpsed budget and
work program to determine if adequate funds are included tc
implement the program.
373.59 Authorizes that lands acquired through the Water
Management Lands Trust Lund may be used for permittable water
resource development and water supply development where
compatible with the purposes for which the land was purchased
and where MFLs have been established in the event that such
lands involve priority water bodies.
1 8.CC17/1 86.CC9/373.1 C3/373.114/373.41 /373.45 /403.C891 -
Rewrds these sections of state law tc reference the Water
Resource Implementation I ule instead cf "state water pollcy" and
tc reference the riorida Water Plan instead cf the "state water use
plan." Repeals certain sections cf Chapters
Clarifies that the establishment of AMFLs and the scientific peer
review for those MFLs for water bodies in iillsborouoh, IDasco and
Dinellas counties shall be done pursuant tc Chapter 9C-339 and
that any conflicts between this law and statutory or case law
existing prior to the effective date of this law shall be aovemed by
prior law. Provides that the establishment of AMtFs for the
Hillsbcrouoh river and the Palm Liver/Tampa Iay Uy-Iass Canal
shall be governed by the provisions of this law.
373.1 62 Amends sections dealing with regional water supply
authorities to provide that authorities may develop, construct,
operate and maintain projects for alternative sources of potable
water and pipelines either by themselves or Jointly with a water
management district. In the event that such projects are privately
developed or owned, authorities and water management districts
are authorized to contribute funds to reduce the wholesale cost of
373.19C3 Amends sections dealing with the West Coast Iealonal
Water Supply Authority specifying provisions for the reconstitution
of the governance of the Authority under a voluntary interlocal
agreement amono its member governments. Provides a Joint
process between the Authority and the Southwest Florida Water
Management District for the development of alternative water
sources including desalination and provides for the financial
participation of the district in the development of such sources.
376.3C7 Amends sections dealing with the Water Cuality
Assurance Trust Fund tc provide that persons permittinU or
construction podtable water wells on or after July 1, 1997 may be
eligible for subsidies or filters under certain conditions.
Creates a new section which prohibits the payment of severance
pay by a water management district except under certain
Creates a new section which directs the Office of IDroram Dolicy
Analysis and Government Accountability to prepare a study of
water management district employee compensation plans and tc
present findings and recommendations to the Governor and
legislature by January 3C, 199S. APPropriates S0,(CCC from the
Water Management Lands Trust fund to conduct the study.
The water resources bill was amended during Senate debate tc
include provisions relating to marine fisheries and the
enforcement of net bans.
The bill was also amended to include provisions under 4C3.C882
for the discharge of demineralization concentrate.
In all, the water resources bill is an excellent step in the right
direction to address the need for adequate water supply in the
future. The Florida Water Council in cooperation with the llorida
Water Coalition worked hard tc pass this bill and can be proud of
this accomplishment. In particular, Chairmen John Laurent
(House Water Committee) and Jack Latvala (Senate Natural
Resources Committee) deserve special thanks for their diligent
efforts to pass this bill.
In addition tc the water bill, many other pieces of legislation were
adopted including Hl I 111 Lands Iill, lH 1271 Urinking Water
Vevolvino Loan Trust fund and HE 1323 IDED rinkina Water
Loan Uroaram, Hl 57 Uredging of Natural Water Eodies, HU 0C1 -
Water Control districts, HE 1773 Legislative CversiOht of
Iveralades Resteration, and ~D 11 4 Revisions of Crowth
ManaOement Laws. I am also trvint to track down bills which may
have been amended onto other vehicles. The process of digesting
what all took place this session will be oneoin for some time.
If you have any questions about this report or wish to receive a
copy of the water bill, please call me at 561/471 -13CC.
THE FLORIDA WATER COUNCIL, INC.
4524 West Gun Club Road
West Palm Beach, FL 33415
A REVIEW OF 1997 WATER LEGISLATION
The water resource legislation passed by the Florida legislature during the 1997 session is
an excellent first step in addressing the long-term water supply needs of this state. The bill is the
result of much consensus building among many diverse interest groups. The Governor's Office,
through the work of the Governor's Water Supply Development and Funding Work Group,
played a pivotal role in developing much of the legislation's content relating to water and water
supply planning. In addition, an ad hoc group representing major water users throughout the state
the Florida Water Coalition forged a unified position regarding the legislation and participated
in the Governor's Work Group to reach agreement on various provisions. The Coalition was
unique in that it brought together both public and private entities and interests that have
traditionally been at odds over water policy. The existence of the Coalition and its unified
support for passage of House Bill 715 demonstrated quite remarkably the degree of commitment
and concern that exists throughout the state over water supply. The legislature responded very
decisively (the legislation passed unanimously in the Senate and on a 114-3 vote in the House) to
direct that measures be taken to ensure adequate water supply now and in the future.
The following discussion and interpretation of portions of this bill is provided by the
Florida Water Council. Members of the Council were active participants in both the Governor's
Work Group and the Florida Water Coalition.
INTENT OF THE LEGISLATURE
The major message echoed repeatedly throughout House Bill 715 is the legislature's
intent that water will be managed so that it is available for all existingnd future reasonable-
beneficial uses and to meet the needs of natural systems. In the bill's "Declaration of Policy;" in
sections mandating the adoption of District Water Management Plans and Regional Water
Supply Planning; and again in the portion dealing with Water Resource Development, the bill
gives explicit direction to the water management districts to see that water will be available. The
emphasis here is on making sure that water supply is dealt with through the development of
adequate resources rather than through a purely regulatory process that seeks to simply reallocate
a limited resource.
This legislation is no retreat from the state's commitment to protection of water resources
and the environment. Indeed, in the bill the legislature makes clear its intent that water resources
must be managed to ensure their sustainability. However, at the same time that the legislation
A NON-PROFIT ORGANIZATION. ADVOCATING EFFECTIVE WATER
RESOURCE POLICIES AT STATE, REGIONAL AND LOCAL LEVELS
reinforces environmental protection, it puts the responsibility for water supply squarely on the
shoulders of the water management districts. In a sense the bill puts the districts "on notice" that
they are charged with implementing this state policy and that their considerable resources must
be directed to this task.
The legislation also represents the mood of the legislature in taking a much more direct
and active role in overseeing the development and implementation of state water policy.
Interestingly, the state water policy rule is replaced by the "Water Resource Implementation
Rule." This revised nomenclature subtly places emphasis on making sure that policy is carried
out, that something is done to implement policy. Furthermore, the bill provides that any
amendments to this rule will only take effect after the legislature has had an opportunity to
WATER RESOURCE DEVELOPMENT AND WATER SUPPLY DEVELOPMENT
The legislation establishes an important concept in defining and assigning responsibility
for water resource development and water supply development. The bill requires that water
management districts will undertake water resource development, whereas local governments,
water utilities and authorities are responsible for water supply development. The bill, however,
makes clear that these activities must be integrated and that assistance should be provided from
one level of development to the other. By inducing coordination between water resource
development and water supply development, the legislation underscores the "partnerships" tha
must be forged to address the need for adequate water supply.
The concept of water resource development is one in which the water management
district will develop strategies, collect data and fund the construction, operation and maintenance
of works to ensure that water is available in ground or surface systems to meet the needs of
local suppliers and end users. The bill clarifies that local suppliers will continue their traditional
responsibility for funding the facilities to collect, produce, treat and distribute water supplies.
Importantly, while the legislation declares that water policies be construed as a whole, it
specifies that water resource development and water supply development must receive
priority attention where needed to make water available for existing and future uses and
the natural systems. Furthermore, the legislature makes a clear statement of intent that
sufficient water be made available to avoid competition for water supply. These are very
strong messages from the legislature and should leave no doubt as to the emphasis and
importance that water management districts are expected to place on water resource
THE WATER PLANNING PROCESS
The sections of the bill dealing with water planning and water supply planning are a
direct result of the Governor's Water Supply Development and Funding Work Group. As such,
these sections represent a consensus approach to water resource planning that is supported by the
state, the water management districts, and the many public and private interest groups that
collaborated during many months to reach agreement. The bill streamlines existing water
resource planning by calling for a three-tiered, integrated process that includes the development
of the Florida Water Plan, the development of District Water Management Plans and the
development and approval of Regional Water Supply Plans.
The legislation mandates a consistent approach statewide to water resource planning and
clearly specifies the content of these plans. In the case of District Water Management Plans, the
legislation puts obvious emphasis on the water supply portion of the plan by requiring detailed
information relating to water supply. The bill directs that the water management districts include
in the District Water Management Plans the scientific methodologies for establishing minimum
flows and levels; the identification of water supply planning regions; technical data relating to
surface and groundwater availability; any completed water supply plans; and most importantly, a
districtwide water supply assessment.
This requirement of districtwide water supply assessments is extremely significant. Since
all five water management districts are required to undertake the assessment, it in essence means
that for the first time ever, the state of Florida will have a statewide analysis of water sources
and available supply. Such an analysis will demonstrate where water sources are inadequate and
where extra efforts must be undertaken to increase water supply. Perhaps more importantly, the
assessment will also demonstrate throughout the state where ample water resources exist.
REGIONAL WATER SUPPLY PLANS
House bill 715 creates a new section of law that requires the water management districts
to develop and implement water supply plans. By October 1, 1998 the governing boards must
initiate water supply planning in those areas where it has been determined that water sources are
not adequate to meet existing and future demands. Interestingly, the bill provides that the
determination by a governing board that sufficient water supply exists to meet demands for the
next twenty years can be challenged. In essence, this gives substantially affected parties an entry
into the process at the point of a "no action" decision by the governing boards!
The legislation establishes specific criteria that must be observed as part of the Regional
Water Supply Plans. For example, the plans must be based on a twenty-year planning horizon.
This requirement will tie water planning periods to the twenty-year consumptive use permitting
periods that are mandated in the bill. The Florida Water Council believes that if water supply
planning is done well and if water supply plans are implemented, then long-term permits should
become the rule rather than the exception.
Seven detailed components must be addressed in Regional Water Supply Plans. These
include a water supply development component that is based on the goal of making sure enough
water is available so that cutbacks will not be necessary during a one-in-ten-year drought event.
In essence this creates a level of service for which the districts should plan. The water supply
development component must include a list of water source options, including the costs and
sources of funding for these options. However, the legislation allows for local flexibility by
pointing out that local governments and local suppliers are not required to select one of the
options developed in the plan.
Closely tied to the water supply development component is the water resource
development component of the plan. This component must contain a list of projects that will
support water supply development. For each project, the districts must include an estimate of
how much water will be made available by the project; information on the costs of and funding
for the project; and timetables and responsibilities for implementing the project. A third
component of the plan calls for a funding strategy for these water resource development projects
that is reasonable and sufficient to cover the costs of implementing the projects. This
information will clearly document the extent to which water management districts will comply
with their mission of water resource development and, in doing so, support local water supply
A fourth component of the Regional Water Supply Plan is the consideration of how water
supply development and water resource development options that are outlined within the plan
will 1) serve the public interest; or 2) save costs overall by either preventing the loss of natural
resources or by avoiding greater future expenditures. The emphasis on saving costs and the
degree of detailed information regarding costs and funding sources sends a clear message
that the responsibility for making water available for existing and future uses and natural
systems should be accomplished both efficiently and in the most cost-effective manner.
Regional Water Supply Plans must also include the minimum flows and levels that have
been established for water resources within the region and a recovery or prevention strategy for
those resources where minimum flows or levels have been, or are expected to be, exceeded.
House bill 715 mandates other important provisions with respect to Regional Water Supply
Any existing plan or plans under development as of July 1, 1997 must be revised to
include water supply development and water resource development. (We would
suggest that existing plans be revised to comply with all the requirements of
House Bill 715's Regional Water Supply Planning directive.)
Plans must be approved by the Governing Board, and those portions of the plans
which affect the substantial interests of a party shall be subject to rulemaking.
A detailed status report on regional water supply planning must be submitted
annually to the Governor and Legislature.
MINIMUM FLOWS AND LEVELS
The requirement that water management districts establish minimum flows and levels
(MFLs) for water resources has been mandated under state law since 1972. During the past
twenty-five years, the districts either have not done or have done a very inadequate job of
complying with this requirement. House bill 715 clarifies state statute and distinguishes between
the establishment and the implementation of minimum flows and levels. This legislative
guidance will assist the water management districts in carrying out their responsibility and will
greatly improve the probability that minimum flows and levels will be adopted in Florida. In
essence, the legislation overcomes the "nebulous cloud" that has enshrouded minimum flows and
levels by explaining what must be taken into account when establishing MFLs and by outlining
the steps that must be taken to implement MFLs.
The bill codifies the Governor's Executive Order directive that the water management
districts annually adopt a priority list and schedule for the establishment of minimum flows and
levels. It is important to point out that the bill also provides that the adoption of this priority list
and compliance with the schedule constitutes compliance with the requirement that minimum
flows and levels be established. This is important as it will protect the water management
districts against undue pressures to establish minimum flows and levels for water courses that are
not listed as priorities in a given year.
The bill requires that changes and structural alterations to water resources and the effects
and constraints of such alterations must be taken into account when establishing minimum flows
and levels. In other words, the department or governing boards must deal with the reality of
development that has occurred in Florida and the need for balanced water management when
establishing MFLs. This "reality check" does not undermine protection of the resource as the bill
clearly states that the establishment of MFLs shall not allow significant harm to the resource
caused by withdrawals.
The legislation also provides for exclusions. In cases where water bodies no longer serve
their historical hydrologic functions and it would not be economically or technically feasible to
recover these functions, a minimum flow or level is not required. Similarly, MFLs are not
required to be set on water bodies less than 25 acres in size or on surface water bodies that have
been constructed pursuant to a permit, an exemption or a reclamation plan except in cases
where these water bodies have significant hydrologic, economic or environmental values.
We believe that these provisions relating to the establishment of MFLs make it clear that
minimum flows and levels are not the singular tool by which a policy decision is made to restore
a water resource to prior or historic levels or functions. The Florida Water Council fully
supports the need for restoration of natural systems; however, we emphasize that restoration
programs have far-reaching impacts and the decision to undertake restoration programs and the
matter in which such programs are undertaken should be the subject of extensive public
discourse and should not be determined on the basis of a single decision point such as the setting
of minimum flows and levels.
The legislation sets up a process for scientific peer review of all technical data,
methodologies, and models including the assumptions upon which those models are based in
the establishment of MFLs. This is critical since previously for there has been no mandate for a
technically-based review of a proposed minimum flow and level prior to its adoption by the
department or governing board. The ability of substantially affected persons to request that peer
review be conducted as part of the process of establishment should reduce the need to challenge
an MFL on the basis of inadequate or inappropriate scientific basis.
In implementing minimum flows and levels, the bill requires that recovery or prevention
strategies be undertaken to ensure that water resources are protected and that MFLs are not
exceeded. At the same time, the bill mandates that such recovery and prevention strategies are
designed to provide sufficient water supplies for all existing and future uses in order to offset any
required reductions in permitted withdrawals. In this way, the legislation places equal emphasis
on protecting water users as well as water resources.
The bill includes a number of provisions relating to the governance and financial
management of water management districts. The Florida Water Council supports these
provisions and, particularly, with respect to the requirement that districts provide a five-year
work plan relating to the implementation of water resource development, we feel that this
information will improve communication between the districts and their water user constituents.
We are also pleased with those provisions relating to district governing boards. For
example, the requirement that board members' terms be staggered will provide greater stability
and predictability in terms of how the districts carry out their missions. And, we are especially
pleased with the specific reference to "utilities" within the section dealing with areas of expertise
of governing board members. This legislative direction should debunk any existing
interpretations that an inherent conflict of interest would occur if a public or private utility
director were to be appointed to a governing board.
This review of House bill 715 is by no means a comprehensive analysis of the legislation.
Rather, it summarizes the Florida Water Council's most critical interest in the bill and
underscores what we interpret as the legislative direction contained in the bill. The enactment of
the water resource legislation of 1997 will provide a "road map" for carrying out the policies of
this state with respect to making sure that adequate water exists to meet the needs of our people
and our environment.