September 22, 1978
MEMO TO: DONALD R. FEASTER
FROM: L. M. BLAIN
RE: STATE WATER USE PLAN
By letter of September 15, 1978, Secretary Landers has
advised that he plans to adopt a State Water Use Plan in
December, 1978 "as an advisory and technical document which
has the force and effect of law only as specifically authorized
by Section 23.013, F.S.".
Nothing in 23.013, as amended by Chapter 78-287, Laws of
Florida, specifically authorizes the adoption of the State Water
Use Plan as an advisory or as a technical document, or otherwise
gives it any force and effect of law. Perhaps Secretary Landers
is construing this to be a "part of the State Comprehensive Plan"
as contemplated by 23.013(2), F.S., as amended.
Adoption of the State Water Use Plan is authorized by &373.036,
F.S., which provides that DER shall cooperate with the Division of
State Planning "progressively to formulate, as a functional element
of a comprehensive state plan, an integrated, coordinated plan
rfor the use of development of the waters of the state" based on
There is no provision for adoption of a State Water Use Plan
as "an advisory and technical document" which has the force and
effect of law.
The procedural steps required by law are:
1. DER, in cooperation with DSP, and after consultation with
the various affected water management governing boards, must first
assemble a draft document designated as the State Water Use Plan.
2. Thereafter, DER must give notice at least 90 days in
advance that it will hold a hearing to adopt (all or a portion of)
the State Water Use Plan,
3. After concluding the hearing, the Secretary of DER may
then adopt the State Water Use Plan and submit it to DSP for in-
clusion as a functional element of the State Comprehensive Plan.
4. DSP then transmits to the Governor, as a part of the
proposed State Comprehensive Plan for his consideration and action.
5. This part of the State Comprehensive Plan, when approved by
f the Governor, shall be transmitted to the Secretary of the Senate
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and the Clerk of the House no later than 90 days prior to the
beginning of the next regular legislative session.
6. Section 23.013(2), F.S., specifically provides that no
part of the State Comprehensive Plan shall be implemented or
enforced by any executive agency until specifically authorized
7. Legislative action is required before the provisions
of the plan become effective as state policy. 23.013(3), F.S.
It is my opinion that the 90 day notice provision, required
by 373.036(5),F.S., must be considered within the required frame-
work of 120.54(1),F.S., and, therefore, the text of the proposed
State Water Use Plan and the economic impact statement must be
available for review 90 days before te hearing. The notice given
by DER that the hearing will be held on December 20, 1978, indicates
that draft copies-of the State Water Use Plan will not be available
until November 29, 1978.
It is my conclusion that the Plan cannot be legally adopted
until a hearing is held, pursuant to notice, not less than 90 days
L. M. BLAIN
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