Title: Chapter 11 - Water Administration and Policies
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00004596/00001
 Material Information
Title: Chapter 11 - Water Administration and Policies
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Jack Varn Collection - Chapter 11 - Water Administration and Policies (JDV Box 70)
General Note: Box 24, Folder 2 ( Emerging Issues and Conflicts - 1976-1994 ), Item 23
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004596
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




From the beginning, water has been a bother to Floridians. First it was too

much water; then its poor quality. Now, they are beginning to wonder if there is


Florida's first tourists, the Spaniards trekking through Florida's forested

swamplands laden with armor and livestock, had to have been amply impressed by

the water they found. The historians and record keepers on the Spanish expeditions

prudently did not record the expletives which must have accompanied the heavily

laden Spanish columns as they wound through the watery land. But, the journals

clearly show the difficulties faced by these early visitors who came searching for

gold, the Fountain of Youth, or souls to convert.

Other early explorers, naturalists, and would-be entrepreneurs who wandered

into the Florida peninsula found water, variously as an obstacle to travel, a balm to

the soul, or a nuisance to be gotten rid of as expeditiously as possible. Overall,

during those early years and well into Statehood, the general view of water

situation in Florida was that there was too much of it, and in too many places.

Americans were land hungry in the first half of the 19th Century. Schemers

and land promoters moved west and south scouting for land to open up for a

restless population eager for land on which to grow the crops demanded by a

crowded Eastern Seaboard. Many of these entrepreneurs saw the promise of fertile

soils in the Florida wilderness -- if something could only be done about the water.

Until statehood, however, little, other than plots and dreams, materialized.
Drainage-Flood Control

Five years after statehood in 1850 the federal Swamp and Overflowed Lands

Act handed the state more than 20-million acres of land -- wet and swampy land.

Earlier, in 1845 with statehood, all lands under navigable waters (about 500,000

acres) became the property of the state. Florida thus became owner of a vast (

acreage, almost all of it under water for at least some part of the year.

To raise badly needed money and to promote development, Florida almost

immediately began to dispose of its swampy assets; first to the railroads which

were granted millions of acres in a short-lived burst of construction which ended in

bankruptcy after the Civil War. Entrepreneurs like William H. Gleason who

dreamed of tropical fruit plantations and an east coast intracoastal waterway

followed after the war. Gleason was trailed by Hamilton Disston, who began the

draining of the Everglades, and the three Henrys -- Sanford, Flagler, and

Plant -- who once again began extending the rails into Florida -- this time

southward for the new tourist trade. Until the 1900s, most land development and

drainage had been the work of private enterprise, but in order to expedite the

reclamation of the vast Everglades area for agriculture, the state and federal

governments soon stepped in.

Two state laws gave counties broad powers to approve drainage projects

around the turn of the century. The drainage of Swamps and Overflowed Lands

Acts in 1893 (formerly Chapter 156, Florida Statutes, repealed in 1971), and the

Drainage by Counties Act of 1901 (Chapter 157, Florida Statutes) were among the

first state laws aimed at promoting drainage and land reclamation, although much

earlier, the Riparian Act of 1856 had promoted development and by implication,

drainage, of riparian shore lands in Florida.

In 1881 the Board of Trustees of the Internal Improvement Fund, which was

created in 1855 to manage federal grant lands, sold four million acres in central

and southern Florida to Hamilton Disston of Philadelphia, on the condition that he

drain the land to attract agricultural development. Disston worked until 1889 and

succeeded in constructing canals between several of the Kissimmee Upper Chain of

Lakes and between the Caloosahatchee River and Lake Okeechobee.

The Drainage of Swamps and Overflowed Lands Act of 1893 (formerly

Chapter 156, F.S.) and the Drainage by Counties Act of 1901 (Chapter 157, F.S.)

were among the first state laws aimed at promoting drainage and land reclamation.

In 1907, two years after an abortive attempt to establish a drainage tax in the

Everglades around Lake Okeechobee (voters refused to ratify a 1905 Constitutional

Amendment establishing the tax to finance a drainage project in the area), at the

urging of Governor Napoleon Bonaparte Broward, the Legislature created a

drainage taxing district in the Okeechobee area (Figure I).' In 1913, the district

was named the Everglades Drainage District. The same legislation provided for

property owners included within its boundaries to be assessed a "benefits tax" to

pay for the construction of drainage facilities. The Governor and Cabinet formed a

State Board of Drainage Commissioners to supervise the activities of the District.

Also in 1913, the Legislature adopted a General Drainage Act authorizing

property owners to create special drainage districts by petition to the local circuit

courts. Chapter 298, F.S., still exists, although today, drainage districts are called

"water control districts". The drainage districts which were formed around the rim
of Lake Okeechobee began the network of drainage (now flood control and water

control) canals which lace the Everglades area of south Florida. But, financial

problems beset the district's drainage schemes, the canals that were dug often

were unsuccessful, and the drainage program soon lagged years behind schedule.

But it seemed to work; parts of the area were developing for agriculture. Sugar

became the dominant crop; vegetables and fruit were close behind.

Along the lower east coast, encouraged by favorable legislation in 1917 adn

1921, developers were creating a land boom in residential waterfront property.


Dredge and fill had come into its own. Soon, canals snaked inland from the coast

between Coral Gables and Ft. Lauderdale where the finger fill gave each lot its C

own private canal waterfront. The Florida boom on agricultural and residential

land was in full swing.

Almost back-to-back hurricanes in 1926 and 1928 brought disaster to the

lower east coast, the agricultural area around Lake Okeechobee, and most

importantly to the finances and plans of the state-sponsored drainage and

reclamation schemes of the Everglades Drainage district. During the Depression,

the state turned to the federal government for assistance. In 1929, the

Okeechobee Flood Control District, headed again by the Governor and Cabinet with

the addition of five district landowners, was crated to provide the state and local

financial assistance to the Army Corps of Engineers. The federal help was

forthcoming; by 1938 the 34-foot Hoover Dike was constructed along the lake's

south shore, and the St. Lucie and other canals were enlarged. Reclamation of

South Florida had begun in earnes.

At Florida's request, federal involvement continued in teh 1940's. The Cross

Florida Barge Canal was authorized in 1942, and a development plan for the Flint-

Chattahoochee-Apalachicola River system was authorized in 1945. After serious

floods in central and southern Florida in 1945 and 1957, Congress passed the Flood

Control act of 1948 which provided for the Central and Southern Flood Control

Project. The authorized project extended from Orlando in the north to the

Everglades in the south, including Lake Okeechobee and reaches of the upper St.

3ohns River. The project was to be designed and constructed by the Corps, and

operated and maintained by the state. In 1948 a Citizen's Committee on Water

Control was appointed by the Governor to determine the most appropriate state

organization to meet the conditions of the Central and Southern Florida Flood

Control District (FCD) to assume these responsibilities (Figure 3). The FCD took



over the duties of the Okeechobee Flood Control District and, by 1955, the assets

and liabilities of the Everglades Drainage District.

The creation of the FCD was a turning point in many ways in Florida's water

management history. Although flood control was the primary purpose, the

authorized project was also to address water supply and conservation, fish and

wildlife and other associated water resource concerns. Some movement towards a

broader water management philosophy than drainage had already begun in the

1930s and 1940s in other ways. Problems with saltwater intrusion and drought in

the 1930s emphasized the need for water conservation. A State Board of

Conservation, consisting of the Governor and cabinet, was created in 1933; in 1939

a Southeastern Florida Joint Resources Investigation was initiated to prepare a

long-range plan for land and water resources development; and in 1947, a Water

Survey and Research Division was created within the Board of Conservation and

charged with planning for water conservation, as well as flood control.

The 1950s saw a number of additional measures taken to expand Florida's

water management strategies and programs. In 1953, the Artesian Water Control

Act was enacted to control flowing artesian wells. In 1954, gubernatorial

candidate LeRoy Collins initiated a Citizen's Water Problem Study Committee, and

in 1955, after his election, a Water Resources Study Commission was established to

study the state's water problem and resources. Upon the recommendation of this

committee, the Legislature created the Department of Water Resources under the

State Board of Conservation in 1957. In 1958, a Southeast River Basin Study

Commission was authorized by Congress to study the water resources of Alabama,

Georgia, and Florida.

Also in the 1950s, Floridians and their elected representatives became more

concerned about water quality. Water pollution, however, had not been ignored in

the first century of statehood. As early as 1868, the Legislature had enacted a

penalty for anyone convicted of "defiling or corrupting springs or water supplies"

(Chapter 387.07, F.S.). Other pollution-related laws were adopted in 1909, 1911,

1913 and 1929, but it wasn't until the mid-1950s that any one agency was given

more than limited authority to do anything about water pollution. The State Board

of Health was assigned the state's responsibility for water pollution control in 1955.

The State Sanitary Code, which consisted of regulations adopted by the Board,

governed the disposal of sewage and other materials into state waters, and was the

state's only means of pollution control until 1967, when the Florida Legislature

passed the Florida Air and Water Pollution Control Act.

Beginning in 1957, the Governor and Cabinet were given stronger regulatory

authority over dredging and filling in navigable waters under the "Bulkhead Act".

The regulation of dredge and fill development in Florida has a long and extremely

complex history, extending back to 1854. At that time the Governor and Cabinet,

sitting as the Board of Trustees of the Internal Improvement Fund, were charged

with managing the lands granted to the state by the Federal Swamp and

Overflowed Lands Act, and the sovereignty lands which cam eto Florida upon

statehood. Prior to 1957, however, only limited controls were imposed on dredging

and filling activities. For example, it was permissible to dredge and fill state

waters up the channel edge provided navigation was not impeded. As the adverse

effects of dredging and filling became evident, the state, with the enactment of

the Bulkhead Act, restricted dredging and filling to areas within locally established

(and state approved) bulkhead lines and required studies to be made. In the 1960s

and into the 70s, these studies were strengthened to incorporate fish and wildlife,

erosion, hydrographic, and other factors.

In 1960, as a result of floods in mid-central Florida and the Tampa Bay area,

emergency water resource and flood control studies were undertaken in the Green

Swamp, Tampa Bay area and Oklawaha River Basin. In 1961, the Legislature

created the Southwest Florida Water Management District (SWFWMD) to initiate

flood control and management programs in this area (Figure 4). In 1962, the Four

Rivers Basin study was completed by the Corps of Engineers and a federal project

was authorized. The 1960s also saw expansion of the Suwannee River Authority

(established in 1959); the establishment of the Canal Authority of Florida in 1961;

authorization in 1963 for the State Board of Conservation to establish a saltwater

barrier line; the formation of the Southeast Basin Resource Advisory Board with

Alabama and Georgia in 1963 (to continue the recommendations of the 1956 U.S.

Study Commission which disbanded in 1963); formal authorization in 1964 of an

annual water resources development conference which had been informally held

since 1962 to establish state public works priorities; and in 1965, the establishment

of the Water Resources Development Account (WRDA) by the Legislature which

replaced the former flood control account as a means of allocating state general

revenue funds to the FCD and SWFWMD. On the federal level, significant events

for Florida included the Flood Control Act of 1960, which authorized the Corps'

participation in floodplain information and engineering studies; the Water

Resources Research Act; the Land and Water Conservation Act; and in 1965, the

Water Resources Planning Act, which established the U.S. Water Resources

Council, authorized river basin commissions, and provided grants to states for

water resources planning.

By the end of the 1960s, even though many important steps had been taken to

establish a water management structure in Florida, it became evident that the

state's water problems were increasing. Florida was by this time in the midst of

another major period cf growth, and both water quantity and quality problems were

proliferating everywhere, but particularly in South Florida where development was

most intense. Saltwater instrusion problems continued; water shortages occurred

in urban areas along the lower east coast; destruction of wetlands and other


wildlife habitat was on the increase; and water quality continued to deteriorate. In

response to increasing public concern, the Legislature passed the Randall-Thomas (

Act of 1967 which amended Chapter 253 to require state dredge and fill permits

for the first time. Also in 1967, the Department of Air and Water Pollution

Control was created and charged with establishing and enforcing state air and water

quality standards. In 1970, Florida voters ratified an amendment to the Florida

Constitution authorizing sale of state-owned submerged lands "only when in the

public interest".

Water problems were brought to a head in 1970-71 when South Florida

experienced the worst drought since rainfall records were begun in 1911. As a

consequence, Governor Askew convened a Governor's Conference on Water

Management in South Florida in 1971. Following the recommendations of this

conference, a Task Force on Resource Management established by the Governor

presented four major pieces of legislation to the 1972 Legislature which were

subsequently enacted. These were the Environmental Land and Water Management

Act, which established the Developments of Regional Impact (DRI) and Areas of

Critical State Concern programs; the Comprehensive Planning Act which provided

for a State Comprehensive Plan and created the Division of State Planning within

the Department of Administration; the Land Conservation Act which authorized

the sale of a $200 million state bond to raise revenue for the purchase of

"environmentally endangered" lands; and the Water Resources Act which

established the water management district concept throughout the state and

mandated a State Water Use Plan. In 1975 the Environmental Reorganization Act

combined water quality and quantity planning and regulatory responsibilities of the

Departments of Natural Resources, Pollution Control, Health and Rehabilitative

Services and the Trustees of the Internal Improvement Trust Fund into a new

Department of Environmental Regulation. In 1976, a constitutional amendment

was passed by the people of Florida allowing each water management district to

levy ad valorem taxes. Tax collection began in 1977. The early 1970s also saw

significant water resource legislation on the federal level, particularly the Water

Pollution Control Act Amendments of 1972 (PL 92-500) and the Safe Drinking

Water Act of 1974.

In the latter 1970s and early 1980s, the Florida Legislature passed the Safe

Drinking Water Act (1977), which provided for the regulation of all public water

systems; the Hazardous Waste Management Act (1980), a "cradle to grave"

regulatory program to control the generation and disposal of hazardous wastes; and

the Save Our Rivers Act (1981), which set aside approximately $300 million over a

ten-year period for the acquisition of "lands necessary for the conservation and

protection of water resources."

The Florida Water Resources Act

The Florida Water Resources Act of 1972 (Chapter 373, F.SJ is the most

significant water resource law ever enacted in Florida. Prior to 1972, water

resource legislation and management in Florida had been essentially reactive--a

series of partial solutions to successive contingencies. The Water Resources Act

was the first successful attempt to develop a comprehensive planning and regula-

tory program for all phases of water management. The Act is largely based on a

model water code developed at the University of Florida's Holland Law Center

from work which had begun at the University of Michigan in the 1950s. The Act

has received national recognition, and was cited as a model statute by the National

Water Commission in its report to the President in 1972. Chapter 373 has been

amended in substantial ways since its passage, particularly in extending ad valorem

taxing authority to all water management districts, but the basic blueprint

described in 1972 has proved to be a reliable and essentially sound structure for

comprehensive and effective water management in Florida.

Chapter 373 defines the boundaries of the state's five water management

districts which are, for the most part, drawn along natural hydrologic boundaries (

(Figure 5). Each district is governed by a nine-member board appointed by the

Governor and confirmed by the Senate. The Department of Environmental

Regulation has been given general supervisory authority over the districts to

insure statewide consistency in water management and to provide for water quality

and quantity management within a single agency; however, the Act emphasizes the

importance of regional flexibility and delegation of authority to the districts by the


The Water Resources Act gives water management districts the authority to

assess ad valorem taxes and sets forth maximum millage rates for each district

subject to limitations imposed by the Florida Constitution. The constitutional and

legislative limits to water management district taxation are shown in Table 1.



Constitutional Legislative
District Millage Cap Millage Cap

SFWMD 1.0 0.80
SWFWMD 1.0 1.0
SJRWMD 1.0 0.375
SRWMD 1.0 0.75
NWFWMD 0.05 0.05

Chapter 373, F.S. is divided into parts: Part I, in addition to creating the

districts and setting their boundaries, requires a State Water Use Plan to be

developed by DER in consultation with water management districts, establishment

of a saltwater barrier line, and the establishment of minimum flows and levels for

Florida waters beyond which no withdrawals would be allowed. Part I also


authorizes districts to construct, operate and maintain water control works, allows

districts to cooperate with the Corps of Engineers as a local sponsor of federally-

authorized water resource projects, and provides for basin boards as subunits of

water management districts, the formation of regional water supply development

authorities, and the declaration of emergency water shortages when orders

restricting use may be issued and enforced by each district.

Part II of the act givesd the DER and water management districts the

authority to regulate the consumptive use of water. To obtain a permit, an

applicant must establish that a proposed use of water is a "reasonable-beneficial

use", will not interfere with other legal water uses, and is consistent with the

public interest. This is one of the most important and far-reaching provisions of

Florida environ-mental law.

Part III of the act grants to the DER and water management districts the

authority to adopt and enforce standards for the construction of wells, and to

register well drillers.

Part IV requires a permit for any modification of surface water flow in a

manner which is potentially harmful to the state's water resources. Part IV has

recently been used to require that developers provide for on-site retention or

detention of stormwater runoff in order to minimize the public's investment in

flood control works, improve water quality, and protect environmentally sensitive


The regulatory provisions of Chapter 373 are implemented through a series of

administrative rules adopted by DER and the water management districts. Chapter

17-40, F.A.C., entitled "State Water Policy", was adopted by DER in 1981 to

provide guidance to the newer water management districts with development of

their planning and regulatory programs. The initiatives undertaken by each water


11 k

management district to implement the provisions of Chapter 373 are the subject of

Chapters 12 through 16.

The Florida Air and Water Pollution Control Act

The Florida Air and Water Pollution Control Act of 1967 (Chapter 403, F.S.),

with numerous amendments which have been adopted in ensuing years, is the basis

for regulation of activities which contribute to pollution of waters of the state.

Initially, an Air and Water Pollution Control Commission--the Governor, three

members of the State Cabinet, and two citizens--was created to direct pollution

control efforts in Florida. However, in 1969, as a part of an overall reorganization

of state government, the Commission was abolished for a citizen board which

headed the Department of Pollution Control. This agency, in turn, was reorganized

into the Department of Environmental Regulation in 1975. The agency now is led

by a Secretary appointed by the Governor and has a number of field offices which

report directly to the Secretary (Figure 6). A board remains, however, as the air

and water quality "standard-setting" arm of the department--the Environmental

Regulation Commission.

Under the Florida Air and Water Pollution Control Act, facilities or activities

which "will reasonably be expected to be a source of air or water pollution" are

required to obtain permits to construct or operate. Permits are required of

municipal and industrial dischargers and for dredge and filling in Florida opera-

tions. Violations of the law or of rules adopted pursuant to the law are subject to a

wide range of civil and criminal penalties. In addition, under the State Environ-

mental Protection Act adopted in 1971, a citizen of the state may bring an action

for injunctive relief to require enforcement of the law. Other activities regulated

by Chapter 403 include solid and hazardous waste disposal, and drinking water.

Most activities are now regulated by the Department's field offices, although

certain larger and more complex permits are still issued from Tallahassee. More

recently, several DER programs have been delegated to water management

districts in order to simplify and streamline Florida's permitting programs.

Chapter 403 is implemented through a series of administrative rules adopted

by DER, a list of which is included in Table II.



Chapter Title

17-1 Rules of Administrative Procedures Proceedings
17-2 Air Pollution
17-3 Water Quality Standards
17-4 Permits
17-5 Open Burning and Frost Protection Fires
17-6 Wastewater Facilities
17-7 Resource Recovery and Management
17-8 Ad Valorem Tax Assessment Rules/Guidelines for Tax
17-9 Minimum Requirements for Earthen Dams, Phosphate
Mining and Processing Operations
17-11 Assessment of Damages
17-14 Detergents
17-15 Sewage Treatment Facilities Revolving Loan Program
17-16 Water and Domestic Wastewater Plants
17-17 Electrical Power Plant Siting
17-18 Vehicle Sound Measurement
17-19 Domestic Wastewater Treatment Plant Monitoring
17-20 Governing Water Well Contractors in Florida
17-21 Rules and Regulations Governing Water Wells in
17-22 Public Drinking Water Systems
17-23 Industrial Siting
17-24 Coastal Management Program Grants
17-25 Regulation of Stormwater Discharge
17-26 State Public Works Program Basis of State Review
17-28 Underground Injection Control
17-30 Hazardous Waste
17-40 Water Policy
17-42 Water Management Lands Trust Fund


The Florida Land and Water Management Act of 1972

Two land and water management programs are incorporated into the Environ-

mental Land and Water Management Act (Chapter 380, F.S.). The first, Areas of

Critical State Concern, provides a method of enacting land use regulations in areas

of the state which are threatened by "uncontrolled or inadequate development".

The Governor and Cabinet, sitting as the Administration Commission, is authorized

to declare specific areas of the state to be "Areas for Critical State Concern" and

to adopt "principles for guiding development" within state land planning agency

(now the Department of Community Affairs) Within 180 days, local governments

within a critical area must submit regulations to the Administration Commission

for approval which implement the development principles previously adopted by the

Commission. Upon failure of the local governments to act, the Commission itself

may establish the regulations, which then are administered by local government or

the Department of Community Affairs. Not more than 5 percent of the state's

land area may be declared as "critical areas" at any time. Since passage of the

Act, only three critical areas have been declared--the Big Cypress Area in 1973,

the Green Swamp Area in 1974, and the Florida Keys Area in 1975. The Big

Cypress Area was established by the Legislature upon passage of Chapter 380 in


The Area of Critical State Concern section of Chapter 380 has great

potential for better management of the state's land and water resources, but that

potential have been limited by the failure to implement the law effectively in the

major test case to date: the Florida Keys. The fragile environment in the Keys was

to be protected by the Principles for Guiding Development of the Critical Area

Designation, but failure in the area of monitoring and enforcement became evident

by mid-1982. New efforts by the Governor and Cabinet sitting as the Administra-

tion Commission and a much more aggressive position by the State Land Planning

Agency since then shows promise of correcting the failure to enforce development

standards in the Keys.

The most promising development in protecting the state's land and water

resources under Chapter 380 has come through the use of Resource Planning and

Management Committees. Authorized in 1980 by amendments to Chapter 380,

these committees are made up of a mix of state, regional and local actors who

examine the effect of growth pressures on the natural systems, infrastructure, and

related factors, design development standards to assure a proper balance between

growth and protection of the natural systems, and develop a system for assuring

that local government adopt and implement the needed standards. If local

governments fail to do so, a formal designation as a Critical Area can be made.

The approach has been applied with initial success in the Charlotte Harbour area of

Southwest Florida and in the Suwannee River Basin. It is presently being extended

to the Hutchinson Island area of Florida's east coast, and is being considered for

the Choctawhatchee Bay area of Northwest Florida. In all of these areas, water

and related land use problems are the key element in the committee studies.

The second program, Developments of Regional Impact, subjects any develop-

ments which, "because of its character, magnitude, or location, would have a

substantial effect upon the health, safety, or welfare of the citizens of more than

one county", to a complex review process by regional planning agencies, local

governments, and the State Land Planning Agency (Department of Community

Affairs). Local governments approve and issue development orders after review of

the project by and receipt of recommendations from the appropriate regional

regional planning councils (Figure 7). Local decisions may be appealed to the

Governor and Cabinet sitting as the Land and Water Adjudicatory Commission.

The Development of Regional Impact (DRI) Section of Chapter 380 has great

significance for managing Florida's water resources. Typically, DRI development


orders are approved, but with important conditions. Those conditions often focus

on water management issues, such as surface water management, groundwater

issues, and a range of other water problems involving both quality and quantity. In

spite of 1980 amendments to Chapter 380 to improve monitoring and enforcement

of these conditions, further strengthening in this area is needed if this element of

Florida's growth management system is to contribute its full share in managing

Florida's water resources.

Dredge and Fill Permitting

Dredging and filling of Florida's waters is regulated by the U.S. Army Corps

of Engineers (River and Harbor Act of 1899; Federal Water Pollution Control Act

Amendments of 1972 and 1977), the DER (Chapters 403 and 253, F.S.), and the

Florida Department of Natural Resources (Chapters 161 and 253, F.S.). Federal

dredge and fill permits are required in tidal areas and in all rivers, streams, and

lakes to the ordinary high water line; in marshes and shallows which are

periodically inundated and normally characterized by aquatic vegetation capable of

growth and reproduction; in all artificially created channels and canals used for

recreational, navigational, or other purposes that are connected to navigable

waters; and in all tributaries and navigable waters up to their headwaters.

State permits under Chapter 403 are are generally required for dredge and

fill activities in rivers, streams, and their natural tributaries, bays, bayous, sounds,

estuaries and their natural tributaries, most natural lakes, artificial canals and

waterways that connect to natural waters, and all coastal waters to the seaward

limit of the state's territorial boundaries. Vegetative lists have been adopted by

the Corps and DER to assist in determining the landward extent of regulatory

jurisdiction. The presence of one or more of the listed species in a dominant

fashion is presumptive of DER dredge and fill jurisdiction. The areas in which the

species are dominant are considered to be part of the regulated waterbody by

virture of their regular and periodic inundation.

In addition to Chapter 403, regulation of dredging and filling, the require-

ments of Chapter 253 are applicable whenever a project is to be located at or

below the line or ordinary or mean high water in navigable waters. The

jurisdictional boundary is determined by survey. Adverse impacts are weighed

against public interest factors in determining permitability.

Florida Administrative Procedure Act

The Florida Administrative Procedure Act (Chapter 120, F.S., as originally

passed in 1974 and subsequently amended, provides for procedural and substantive

due process within the administrative framework. Its objectives are to insure that

adopted rules are authorized by and consistent with law, that the public and

regulated interests are adequately informed, and that agencies, regulated interests,

or an affected third party can utilize the administrative hearing process to resolve


Chapter 120 provides a time limitation within which regulatory agencies must

either issue or deny a permit--generally 90 days after receipt of a completed

permit application. An applicant may seek review of a permit decision before a

state hearing officer, at which time the 90-day "clock" is tolled until the c

administrative proceeding is ended. Otherwise, if an agency fails to act within 90
days, the permit is issued by default.

Chapter 120 applies to all state regulatory agencies, water management

districts, and regional planning councils, but not to city or county governments.

A View from the Past Into the Future

For a hundred years, statehood to just often the WW II, Florida's main

concern was to induce growth by using its land and water resources in every way

possible to encourage the economic and population expansion of the state. By the

1960s the state had succeeded beyond its wildest dreams, and some of the negative

impacts of growth became impossible to ignore. This was especially true of the

state's water resources and in particular its coastal and inland wetlands, and its

ground water aquifers. The state's history since the mid-1960s has been dominated

by efforts to bring a better balance between growth and the proper protection of

the state's natural systems. Those efforts dhave featured new laws, environmental

agency reorganization, a local government comprehensive planning law, and more

recently an effort to make the laws and rules we have work better. Much has been

accomplished, but much remains to be done. Certainly, the evolution of water

management in Florida has been consistently away from single purpose

programs--such as drainage or flood control--and toward a broader view of water

management which considers the full range of water management, environmental,

and public interest objectives has been a most necessary thing. The Environmental

Reorganiza-tion Act of 1975, in retrospect, was a most important step in bringing to

order state permitting programs to provide a more efficient means of managing

Florida's waters. Florida's current network of environmental laws, rules and

agencies is equipped to deal comprehensively with most water-related problems.

With the recent adoption of the DER groundwater rule and adoption of consumptive

use rules by the Suwannee River, St. Johns River, and Northwest Florida Water

Management Districts, most administrative rules necessary to adequately manage

the environment are now in place.

The challenge facing Florida's water management agencies as they fully

implement Florida's environmental laws and rules is twofold: repairing the

tremendous environmental damage the state incurred during less enlightened times,

and coping with Florida's tremendous rate of population growth which is expected

to continue through the end of this century and beyond.


Florida's growth pressures will continue to be massive for the rest of the

century. By the year 2020, the state will have more than 18 million people. That

kind of growth demands even better tools for managing our water resources that

we now have and it demands much better funding of agencies like DER and DNR to

assure effective management of our water resources. An even closer link between

water quality and water quantity management needs to be forged through DER and

the water management district coordination. The unnavigable relationship between

land and water management must be better recognized, and reflected in water

management decisions. Perhaps above all, we must do a better job of protecting

our ground water--the source in Florida for over 90 percent of our drinking

water--from toxic and hazardous wastes. To do all this, statutes and rules will

need to be strengthened, and most important of all, adequate resources must be

provided to assure the full implementation of the rules and statutes now on books.

University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs