THE LEGAL ENVIRONMENT FOR WATER RESOURCES PLANNING
Volume V. of this five-volume report to the water
management districts addresses the legal environment for
water resource planning in Florida. The legal relationship
of the water management districts to local, regional, and
state agencies is set out, and the role of the water
management districts in the state' current comprehensive
planning scheme is discussed. Finally, legal authority,
impediments, and approaches to the water management district
stategic planning are reviewed.
THE FRAMEWORK OF CHAPTER 373
The current framework for water resources management in
Florida was established by the Florida Water Resources Act
of 1972 and is codified in Chapter 373, Florida Statutes.
The act was based on Maloney, Ausness, and Morris, A Model
Water Code, and provided a two-tier administrative
structure. Although the Code envisioned an appointed
statewide oversight board to coordinate water management
district activities and enforce state policies, the 1972 Act
placed review authority and independent and concurrent water
management functions in the state Department of Natural
Resources. Today, the Department of Environmental
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Regulation (DER) exercises ultimate responsibility for water
resources management in the state; five, semi-autonomous
water management districts carry out the day to day
management functions subject to DER's general supervisory
Chapter 373 sets out both the administrative framework
for water management and the distribution of authorities
between DER and the water management districts. The
relationships can tend to be confusing, because chapter 373
grants the districts independent authority in some areas,
concurrent authority with DER in others, and (because DER
has the authority and obligation to delegate certain powers
to the districts) delegated authority in yet other areas.
If the reason for this jumble of authorities was to allow
the districts to develop staffs and expertise, and thus grow
into their management and regulatory roles, the time may
have come after fifteen years to consider clarifying the
powers and duties of the districts.
Review authorities for water management district
actions are also peculiarly divided at this point. Although
DER is designated as exercising "general supervisory
authority," exclusive jurisdiction to review rules and
orders for consistency with chapter 373 is vested in the
governor and cabinet, sitting as the Florida Land and water
Adjudicatory Commission (FLWAC). FLWAC review can only be
initiated, however, by DER or a party to a proceeding. A
major amendment to chapter 373 in 1983 gave DER the power to
review water management district rules for consistency with
the state water policy, chapter 17-40, F.A.C. If DER orders
amendment or repeal of a rule, the water management district
may appeal the decision to FLWAC.
COMPRENSIVE PLANNING AND THE WATER MANAGEMENT DISTRICTS
The State and Regional Planning Act of 1984, as amended
in 1985, sets out Florida's planning process for dealing
with the state's enormous potential growth. Pursuant to
this act, the Executive Office of the Governor (EOG)
developed the State Comprehensive Plan which was enacted by
the legislature in 1985 as chapter 187, Florida Statutes.
In addition to the State Plan, the Planning Act
required preparation of state agency functional plans and
i regional policy plans, and incorporated the State Water Use
Plan and the State Land Development Plan into the state's
planning process. The water management districts are not
state'agencies for purposes of the Planning Act and are not
required to develop agency functional plans. Regional
policy plans are to be developed by the regional planning
councils. Although the Planning Act did not provide for
input by the water management districts into regional plan
development, the minimum criteria rules promulgated by the
EOG for development of regional plans provide opportunities
for the districts to review and comment at both the draft
and proposed plan stage.
The Department of Environmental Regulation is
responsible for the preparation of the State Water Use Plan
(SWUP). 'Although chapter 373 provides opportunities for the
districts to participate in SWUP preparation and some degree
of cooperation was reached through a DER-District Memorandum
of Understanding, the six-month time limit for preparation
of the plan precluded meaningful planning and participation
by the water management districts. This participation in
the development of SWUP is the only formal role designated
for the water management districts in the planning process
set out in the State and Regional Planning Act.
The State Water Use Plan requirement was originally
enacted as part of the Water Resources Act of 1972. By
incorporating the SWUP into the State and Regional Planning
Act, the legislature set time limits for development of the
plan and provided a review procedure. The manner in which
this was accomplished, i.e., by designating SWUP as an
agency functional plan, is subject to criticism and has
caused a great deal of confusion. This was an expedient way
to incorporate SWUP into the state planning process, but
undermines the purposes of SWUP and the state land
development plan to provide statewide guidance, rather than
guiding a single agency's policy.
As an agency functional plan, can SWUP be given
statewide effect? Because the SWUP is described as a
"functional element of the state comprehensive plan," it has
been suggested that SWUP is part of the state comprehensive
plan and, therefore, other agency functional plans, regional
policy plans, and local government comprehensive plans must
be consistent with it. This interpretation runs counter to
the statutory definition of "state comprehensive plan," and
is unlikely to form a sufficient legal basis for statewide
application of SWUP. The key to statewide application of
SWUP seems to rest in the review authority of the Governor.
The Governor has the authority to "effectively coordinate"
agency functional plans and mediate any "differences between
state agencies regarding the programs, policies, or
functional plans of agencies. Through the coordination and
review of plans, the Governor clearly has the authority to
give SWUP its intended statewide scope.
RESPONSIBILITIES OF THE WATER MANAGEMENT DISTRICTS UNDER THE
STATE WATER USE AND STATE COMPREHENSIVE PLANS
Neither the state comprehensive plan nor agency
functional plans (including SWUP) "create any regulatory
authority or authorize the adoption of agency rules,
criteria, or standards not otherwise authorized by law."
The plans are intended to be direction-setting and providing
long range policy guidance. The legislature, through its
1985 enactments, clearly established its intent that the
plans should be carried out within the framework of other
Review of the districts' legal authority by the
districts and in the Volume I study establishes that the
grants of authority in chapter 373 are clearly sufficient to
deal with SWUP and state comprehensive plan
responsibilities. Statutory authorities relating to
specific goals of the state plan are identified in Volume I.
A question has arisen concerning whether implementation
of the state comprehensive plan or SWUP requires rulemaking.
The 1985 amendments to the State and Regional Planning Act
state that agency functional plans are not rules and are not
subject to chapter 120, the Administrative Procedure Act.
This exemption from chapter 120 was intended to streamline
plan development. It was probably also intended to limit
the -effect of functional plans, rather that to create
policies with the effect of law without following the
formalities of chapter 120. Implementation of SWUP would,
therefore, appear to be divisible from development of the
plan, and must be based upon other statutory authority -
authority that has not been exempted from the formalities of
chapter 120 rulemaking.
STRATEGIC PLANNING BY THE WATER MANAGEMENT DISTRICTS
The statutory state comprehensive planning process has
largely bypassed the water management districts. Still, the
districts should consider district strategic planning to
complement or implement the state comprehensive plan and
SWUP, and even more fundamentally, to better manage the
water resources of the districts. Because the water
management districts are not bound to a statutory format or
Sby the EOG's guidelines for agency functional plans,
district plans can take a variety of forms. For purposes of
district -strategic planning, the water management districts
are .basically working with a "clean slate" with the only
major foreseeable problems being chapter 120 and fiscal
Ample authority exists in chapter 373 for district
plans to be developed as independent activities of the
districts or pursuant to authorization or delegation by DER.
Alternatively, independent statutory authority may be sought
to authorize district water management plans. The approach
would depend primarily on the planning objectives of the
districts. If a formalized role for the districts in the
state, regional, and local planning process is a goal, then
legislation authorizing the plans and specifically detailing
the role and functions of the plans may be necessary. If
the plans are intended primarily to guide the policies of
the districts, the existing authority would provide more
flexibility in developing a planning process as well as
The nature and scope of the water management district
plans will greatly affect whether the plans or specific
policies in the plans will require rulemaking under
chapter 120. Although chapter 120 recognizes only two forms
of agency action orders and rules, the courts have created
a category of incipient or developing agency policy.
Generally, policy statements of general applicability ;and
that create rights, require compliance, or otherwise have
the direct effect of law must be adopted by rulemaking.
Agencies can pursue policy development on a case by case
basis without rulemaking, but the record in each case must
establish evidence and rationale for application of the
policy. Because caselaw has established no clear-cut line
for determining when policy requires rulemaking, agencies
are left in a position of great uncertainty, and members of
the public complain that current interpretations open the
door for abuse.of agency discretion.
SSeveral alternatives to dealing with the dilemma of
chapter 120 are:
1) to incorporate water management district plans in
the state water use plan. The exemption of the development
of agency functional plans from chapter 120 would then also
be applicable to the development of district plans.
2)'to introduce legislation specifically authorizing or
requiring districts to develop plans consistent with the
state comprehensive plan and SWUP, providing an alternative
review process and exemption from chapter 120.
3) to attempt to identify policies in the district
strategic plans that will affect significant rights,
particularly in regulatory processes; these policies may be
further developed on a case by case basis as incipient
agency policy or can be the subject of agency rulemaking.
SThe state and regional planning scheme that has become the
foundation of Florida's growth management initiative has largely
disregarded strategic regional water resource planning as an
integral planning and management step. However, district water
resource planning can be an important element in implementation
of the state comprehensive plan and the state water use plan.
District plans could also provide significant guidance to
regional planning councils and local governments in development
and implementation of their respective plans.
Although there is no authority for district planning efforts
in the State and Regional Planning Act, chapter 373 contains
ample authority for planning by the water management districts
either as an independent district function or as authorized by
f DER. Using existing authorities, however, provides no formal
mechanism for integrating these plans into the state, regional,
and local planning processes. Formalizing the interaction of
these processes through a legislative enactment would give the
districts more certainty as to their role in the planning scheme,
but would likely also subject district plans to formal guidelines
and review procedures. The districts may prefer to pursue their
policies through informal mechanisms and interagency agreements,
and maintain relative automony in the planning process.
The biggest impediment to "dynamic" planning strategies
would seem to be the chapter 120 rulemaking requirements.
Rulemaking is a time consuming, cumbersome, and sometimes self-
destructive way to create policy. Of course, planning per se
does not necessarily require rulemaking. At some point, however,
plans and plan policies must be -implemented and will generally
affect or. create rights, require compliance, or have the effect
of law. Although the courts give great deference to agency
determinations of when a policy is sufficiently formulated and
requires rulemaking, the line is vague and always subject to
The lack of a statutory mandate for water management
district plans in the State and Regional Planning Act can be
viewed as an impediment or an opportunity. If state legislation .
authorized or required district planning, the enactment could
also define the role of these district plans in the state
planning scheme. This additional responsibility could also
provide grounds for seeking additional funding or tax increases
for the districts. If planning is carried out as an independent
initiative, some districts in fact lack the resources to carry
out extensive plan implementation. On the other hand, the
absence.of a legislatively designated plan means that the
districts are not bound to a statutory format or the guidelines
of the Executive Office of the Governor. This gives the
districts flexibility in development of the planning process as
well as the plans, and perhaps of equal importance, will allow
flexibility between and among the districts in developing plans
to meet the specialized needs of their regions. Input into other
plans will still be possible by comment to the Executive Office
of the Governor, regional planning councils, and the Department
of Community Affairs.