Title: The Legal Environment for Water Resources Planning in Florida
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00000626/00001
 Material Information
Title: The Legal Environment for Water Resources Planning in Florida
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: The Legal Environment for Water Resources Planning in Florida
General Note: Box 7, Folder 1 ( Vail Conference 1987 - 1987 ), Item 19
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00000626
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text




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 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


S. s~ ururv uu""- ....~ ~............-----. ..............

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.


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
r` \
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.


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

statutory authority.

Review of the districts' legal authority by the

districts and in the Volume I study establishes that the


* l


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.


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

C 9

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

judicial scrutiny.

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.


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