More Than a Drop in the Bucket: Florida Water Resources Act II
The legislation clarified existing law and reordered the priorities of districts in an attempt to ensure the availability of adequate, dependable, and sustainable supplies of water
programs. Attempts to craft a consensus water bill, however, were frustrated by marathon and increasingly rancorous drafting sessions that focused on four major issues: 1) water supply planning; 2) establishment of minimum flows and levels; 3) water transport ( e.g., the concept of “local sources first”); and 4) protection of existing users.5
Strongly supported by the Governor’s Office, Department of Environmental Protection (DEP), and representatives of the environmental community, the committee bill proposed by Representative John Rayson (chair of the House Select Committee on Water Policy)—which would have required extensive state and regional “water planning”—failed to gain the support of other committee members. Of greater concern to the latter were questions about district governance and accountability, methodologies for setting minimum flows and levels, and aggressive water supply devel-opment and funding.
Joined by Lieutenant Governor Buddy MacKay and environmentalists, Representative Rayson argued that minimum flows and levels must be based on “pure science,” without regard to physical alterations to surrounding land and social or economic impacts—a position many believed would result in development moratoria and mandatory restoration of altered systems. With regard to the bill’s emphasis on planning, Representative John Laurent (vice chair of the select committee and review commission member) repeatedly noted during committee hearings that the creation of several detailed plans would not provide a single additional gallon of water for current and future users.
In the upper chamber, Senator Charlie Bronson (vice chair of the Senate Natural Resources Committee) sponsored several bills that reflected recommendations of the review commission (on which he served), while Senator Jack Latvala (chair of the Senate Select Committee on Water Policy) brought Tampa Bay interests together in an attempt to resolve the area’s on-going water supply problems and to restructure the West Coast Regional Water Supply Authority. Ultimately, however, the lack of consensus in the House undermined passage of major water legislation, and the sole water bill passed by the 1996 Legislature directed Swiftmud to establish minimum flows and levels in Hillsborough, Pasco, and Pinellas counties by October 1, 1997; created a scientific peer review process for evalu-ating those determinations; and authorized the Executive Office of the Governor to approve or disapprove districts’ budgets.6
The months following the 1996 session witnessed continuing efforts to wrestle with the complicated water management issues raised by the report of the review commission and the work of the select committees. Recognizing that the key to state economic growth depended upon increasing Florida’s “water pie,” a group of public and private interests began meeting in June to discuss and draft legislation to specifically address statewide water resource development. Although the “Florida Water Coalition” membership included- entities that historically battled one another over water rights— e.g., agriculture, develop-ment, public supply, business and industry, local government and electric utilities—the common need for additional, sustainable sources of water brought the diverse interests together.
Meanwhile, to provide guidance to DEP and water manage-ment districts on water issues raised—but not resolved—during the 1996 session, Governor Chiles issued Executive Order No. 96-297 in September 1996. The order addressed district establish-ment of minimum flows and levels, regional water supply planning, implemen-tation of review commission recommenda-tions, and creation of a public group and process that would continue to work on water supply initiatives.
On September 30, the Executive Office of the Governor convened the Governor’s Water Supply Development and Funding Work Group, which met throughout the fall and winter of 1996-97 to formulate consensus recommendations for directing the development of additional water sources. Many members of the Florida Water Coalition also participated in the Governor’s facilitated discussions, and as described in the work group’s Report on Recommendations dated February 21, 1997, substantial consensus was reached on a number of topics. Some of the thornier issues, however, e.g., minimum flows and levels and local sources first, remained unresolved as the next regular session of the Florida Legislature began on March 4, 1997.
Scene 3: New Players and Revised Scripts
The reverberating smack!! of the Speaker’s gavel ushered in more than a new legislative session. The vibrations began on November 5, 1996, when Republicans won a majority of seats in the Florida House of Representatives for the first time since Reconstruction (they had gained a majority in the Florida Senate in 1994). Although some of the issues that remained on the table from prior sessions might have looked the same, the manner in which the House addressed them became noticeably different—politically, structurally, and procedurally—the rules were indeed different in Florida now. With [Republican] President Toni Jennings leading a relatively bipartisan Senate, the forecast for the 1997 regular session included strong leadership, fiscal restraint, innovative economic development, and timely adjournment.
In recent sessions, the Governor’s Office had enjoyed comfortable working relationships with fellow Democratic speakers. The symbiotic liaisons frequently greased the proverbial wheels of the process, thus providing the Governor with additional leverage on legislation. Although the relationship between Governor Chiles and House Speaker Peter Webster was eminently respectful, the former was no longer assured of the Speaker’s support on issues. Take water legislation, for example. With the environmental activism of Lieutenant Governor MacKay and the support of Democratic Speaker Peter Rudy Wallace during the 1996 session, the Governor’s Office maintained a strong position throughout negotiations on House water bills.
contrast, during the 1997 session, Speaker Webster appointed John Laurent—considered by many the most knowledgeable legislator on water issues—as chair of the House Water and Resource Management Committee, and the Governor had to negotiate his position through the committee process like everyone else. As a result of the exemplary leadership of Chairperson Laurent and the relatively equal bargaining positions of all interested parties, the 1997 legislative process molded a sensible blueprint for the protection and management of Florida’s water resources into the next century.
Initially, several substantial water proposals were filed in both legislative houses. The primary focus of the “Governor’s bill” was state, district, and regional water supply planning, as well as other recommendations of the work group.7 T he main bill drafted by members of the Florida Water Coalition stressed aggressive water resource development by districts and the establish-ment and implementation of minimum flows and levels that recognized existing legal uses and hydrologic alterations.8 T he legislative proposal by Florida’s Commissioner of Agriculture Bob Crawford addressed all of the foregoing issues plus 20-year consumptive use permits and several other district govern-ance and budget recommendations of the review commission.9
In addition to the foregoing bills, Senator Latvala (chair of the Senate Natural Resources Committee) was also dealing with brownfields legislation, confirmation of several controversial appointments, reorganization of the West Coast Regional Water Supply Authority, and clarification of the ongoing net-ban controversy. Initially focused on the latter measures, Senator Latvala monitored progress of the three major water proposals in the House.
Through the committee hearing and amendment process, Chairperson Laurent (who had also served on the review commission) began to weave the House water bills into a large committee substitute that garnered consensus on most, but not all, major points. The environmental community unequivocally rejected the idea that lands purchased by the state through the Preservation 2000 and Conservation and Recreation Lands programs should be made available for water supply purposes. Pasco and Hillsborough counties’ attempts to circumvent application of the bill’s new minimum flows and levels provisions to their jurisdictions were deactivated only after the Governor’s Office pressed them for semantic specificity.10
Emotion-charged arguments between representatives of “water-rich” and “water-poor” counties brought the issue of local sources first to the forefront of committee meetings, as well as later floor debate. In fact, Senate floor debate on local sources first amendments threatened to scuttle the bill, until Commissioner of Agriculture Bob Crawford—a former Senate President—effectively lobbied senators for passage. At the end of the day, however, words were either written or eaten, as legislators sorted out and signed off on the most significant statutory changes to Florida water law in 25 years.
Scene 4: The Playbill Revealed
The 1997 “water bill”—Committee Substitute for House Bills 715, 1249, 1321, and 133911 ( HB 715)—addressed portions of F.S. Ch. 373 that had proven problematic for both water management districts and regulated interests for years. The bill included new definitions and directives for developing state and regional water plans; introduced distinctions between water resource development and water supply development; created new requirements for district establishment and implementation of minimum flows and levels; modified district budget and governing board appointment provisions; and amended certain marine fisheries provisions to clarify application of the 1996 net-ban amendment.
The most notable recurring theme throughout HB 715 is that water management districts must give “priority attention”12 t o assuring an adequate supply of water for all users. As stated in new F.S. §373.0831:
(2) It is the intent of the Legislature that:
(a) Sufficient water be available for all existing and future reasonable-beneficial uses and the natural systems, and that the adverse effects of competition for water supplies be avoided.
(b) Water management districts take the lead in identifying and implementing water resource development projects, and be responsible for securing necessary funding for regionally significant water resource development projects.
(3) The water management districts shall fund and implement water resource development as defined in s. 373.019.13 Each governing board shall include in its annual budget the amount needed for the fiscal year to implement water resource development projects, as prioritized in its regional water supply plans.14
The dual concepts of water resource development15 and water supply development16 introduced by HB 715 clearly delineate the respective responsibilities of water management districts and water suppliers. The districts must not only give priority attention to identifying potential water sources, they must also develop regional implementation programs to bring them on line. definition, “water resource develop-ment” includes district “construction, operation, and maintenance of major public works facilities to provide for flood control, surface and under-ground water storage, and groundwater recharge augmentation.”17 further requiring that district annual budgets—which the Governor can “approve or disapprove, in whole or in part”18—include funding allocations necessary to implement priority resource development programs, the legislation provides some measure of district oversight heretofore missing in statute.
To get the ball rolling, districts must complete district-wide water supply assessments for each planning region by July 1, 1998, that determine “[e]xisting legal uses, reasonably antici-pated future needs, and existing and reasonably anticipated sources of water.”19 For any region where sustainable water sources are not sufficient to meet existing and future uses for a 20-year planning period, the district must initiate water supply planning “in an open, public process, in coordination and cooperation with local governments, regional water supply authorities, government-owned and privately owned water utilities, self-suppliers, and other affected and interested parties.”20 Each regional water supply plan must include a water supply development component, a water resource development component, and recovery, prevention, and funding strategies to implement identified projects.21 While governing board approval of a regional water supply plan need not be accomplished through rulemaking, any portion of a plan that affects the substantial interests of a party will be subject to F.S. §120.569 (Supp. 1996).22
Throughout the 1997 session, the most intense negotiations on the water bill focused on F.S. Ch. 373’s provisions regarding minimum flows and levels. While there was little effort to change the “significantly harmful” standard of existing F.S. §373.042, the section was modified to require districts to annually update and publish priority lists and schedules for establishing minimum flows and levels, and to provide a scientific peer review process for validating the data, methodologies, and models employed by the districts.23
One of the most important parts of the water bill, however, is contained in new F.S. §373.0421,24 which details limiting criteria that districts must consider when establishing or implementing the minimum flow or level of a water body. The new section describes three categories of water bodies for which districts are not required to set minimum flows or levels: 1) a surface water body of less than 25 acres, unless it has significant economic, environ-mental, or hydrologic value; 2) water bodies that no longer serve historical hydrologic functions and for which recovery is not economically or technically feasible, or which could cause adverse environmental impacts; and 3) a surface water body constructed prior to permit requirements or pursuant to an exemption, permit, or reclamation plan, unless it is of significant hydrologic value or an essential element of the area’s water resources.25
In an attempt to mandate districts’ recognition of physical changes that have occurred in and around water resources throughout the state, new F.S. §373.0421(1)(a) provides that when establishing a minimum flow or level, the district must “consider changes and structural alterations to watersheds, surface waters, and aquifers and the effects such changes or alterations have had, and the constraints such changes or alterations have placed, on the hydrology of an affected watershed, surface water, or aquifer.”26 To reassure those who expressed concern that existing damage caused by wellfield pumping could be grandfathered under the foregoing language, the following stipulation was added to the new language: “provided that nothing in this paragraph shall allow significant harm as provided by s. 373.042(1) caused by withdrawals.”27
Linking the establishment of minimum flows and levels with the requirement that dis-tricts prioritize water resource development, F.S. §373.0421(2) provides that if an existing flow or level is below the minimum established (or is expected to fall below it within the 20-year planning period), the district must “expeditiously implement a recovery or prevention strategy, which includes the development of additional water supplies” to achieve recovery of (or prevent falling below) the established minimum.28
The recovery or prevention strategy shall include phasing or a timetable which will allow for the provision of sufficient water supplies for all existing and pro-jected reasonable-beneficial uses, including development of additional water supplies and implementation of conservation and other efficiency measures concurrent with to the extent practical, and to offset, reductions in permitted withdrawals, consistent with the provisions of this chapter.29
Arguably the most important provision in the entire bill to entities affected by water shortages, the foregoing paragraph requires districts to simultaneously bring new sources on line when they institute cutbacks in permitted withdrawal quantities. For those water bodies in Hillsbor-ough, Pasco, and Pinellas counties with existing flows or levels below established minimums, the foregoing concurrency requirement could be modified by statutory and case law existing immed-iately prior to the effective date of the new act.30 As a practical matter, however, while the new section contains specific legislative direction to districts regarding implementation of recovery strategies, the law in existence prior to July 1, 1997 (the effective date of the act), also provides Swiftmud with authorization to implement similar recovery activities.31
Several sections of HB 715 modified governance and budgeting provisions contained in F.S. Ch. 373. To facilitate consistent and efficient decision-making, the number of governing board appointments to be made each year will be staggered throughout the Governor’s term of office (rather than a majority appointed the first year), and candidates must have “significant experience” in agriculture, development, local government, water utilities, law, civil engineering, environmental science, hydrology, or accounting.32 Governing board appointment of an executive director will be subject to the Governor’s approval, and the appointment will have to be confirmed by the Senate upon employment and reconfirmed during the second regular session following a gubernatorial election.33
With regard to district budgeting, notice of all budget workshops and hearings must be published locally; administrative and operating expenses must be identified and allocated among district programs; and budget program areas must include separate entries for lobbying and advertising expenditures, as well as a five-year water resource development work program that describes the district’s implementation strategy for resource development within each water supply planning region.34 The Governor’s budget review must analyze the “adequacy of district expenditures related to water supply, including water resource development projects identified in the district’s regional water supply plans,” and interested parties must be afforded an opportunity to provide written comments on proposed work programs.35
Most of the statutory changes sought by the Department of Agriculture and Consumer Services were included in HB 715, although not without modification. F.S. §373.236, was amended to mandate district issuance of 20-year permits if sufficient data exists “to provide reasonable assurance that the conditions for permit issuance will be met for the duration of the permit,”36 and two sections dealing with district-acquired lands were amended to allow multiple uses such as agriculture, silviculture, and water supply under certain conditions.37
To more accurately reflect that the legislature is responsible for adopting state water policy and that DEP and the districts implement that policy, HB 715 renamed and redefined the prior “state water policy” as the “water resource implementation rule [that] sets forth goals, objectives, and guidance for the development and review of programs, rules, and plans relating to water resources, based on statutory policies and directives.”38 Additional legislative oversight is provided in revisions to F.S. §373.036(1)(d), which provides in pertinent part as follows:
Amendments to the water resource implementation rule must be adopted by the secretary of the department and be submitted to the President of the Senate and the Speaker of the House of Representatives within 7 days after publication in the Florida Administrative Weekly. Amendments shall not become effective until the conclusion of the next regular session of the Legislature following their adoption.39
One of the 1997 legislative priorities of Senator Latvala was reorganization of the West Coast Regional Water Supply Authority. Although HB 715 did not impose a specific member-government structure on the authority, it did amend F.S. §373.1962(3) to clarify that the authority could, either by itself or jointly with Swiftmud, develop and operate alternative sources of potable water (e.g., a desalination plant), or the authority and district could pledge and contribute their funds to reduce the wholesale cost of alternative source water developed by a private entity.40 In addition, the legislation revised F.S. §373.1963(1), to reflect the terms of a reorganizational structure that the authority and its member governments have been discussing since the fall of 1996. December 31, 1997, the authority and Swiftmud must either enter into a written agreement detailing the development of alternative potable water sources (as directed in the section) or they must prepare and submit to the legislature a report detailing why not.41
Senator John McKay’s ongoing concerns about district employment and spending practices resulted in the adoption of bill amendments that 1) prohibit the expenditure of district funds for severance pay except under certain conditions, and 2) require a study of district employee compensation plans, to confirm the existence of actual or perceived discrepancies between the salaries of district employees and those of state or other general purpose local government employees.42
Other sections of HB 715 that do not directly relate to the protection and management of Florida’s water resources under F.S. Ch. 373 include the availability of subsidies or filters for potable water wells under §376.307(1)(e);43 submerged land lease extensions under §253.03(7)(c);44 modifications to F.S. Ch. 370 (“Saltwater Fisheries”) that address special activity licensing for anadromous sturgeon, the transport of proscribed nets, the illegal use of certain nets, crawfish reporting requirements, and a three-year pilot program in a six-county area along the Panhandle Gulf coast;45 and the modification of F.S. Ch. 403 (“Environmental Control”) to permit a small water utility to discharge demineralized concentrate from reverse osmosis or membrane processes as a potable water byproduct rather than as an industrial wastewater.46
Scene 5: Waiting in the Wings
As HB 715 was being readied for its first committee hearing on March 31, 1997, the final order in the SWUCA rule challenge proceeding was rendered by Administrative Law Judge J. Stephen Menton.47 Although the finality of the decision will not be known for several months, three significant conclusions warrant mention, particularly in light of ongoing debates regarding 1) the extent to which physical and economic realities should be considered when establishing minimum flows and levels; 2) whether existing permitted users should be afforded preferential treatment at the time of permit renewal; and 3) who should fund the development of alternative water supplies.
While Swiftmud’s “scientific analysis of saltwater intrusion problems in the SWUCA area was thorough and [its] proposed methodology for calculating the minimum [aquifer] level is reasonable and scientifically sound,”48 the district’s preferential treatment of existing users and proposed reallocation provisions was found to exceed its statutory authority under F.S. Ch. 373.49 Although the decision’s validation of Swiftmud’s scientific data and methodologies may be hailed by some districts and environmentalists as confirmation that a minimum flow or level must be based on “pure science,” the order also upheld the district’s decision to balance protection of the resource with socio-economic factors in its selection of the minimum aquifer level.50 Although HB 715 included a list of physical realities that districts must consider when setting a minimum flow or level,51 the legislation did not address the consideration of social or economic impacts in the establishment process. Appellate review of the final order may encourage additional legislation on the issue next year.
The order’s invalidation of Swiftmud’s proposed reallocation process and exemption of permit renewals from minimum level restrictions reaffirmed that F.S. Ch. 373 grants no preferential treatment to existing water users outside the competing application process of §373.233.52 Thus faced with increasing resource demands and a statutory framework that does not recognize prior appropriation or other water “rights,” HB 715’s emphasis on aggressive water resource development is rather timely.
Finally, the SWUCA ruling repudiated Swiftmud’s requirement that certain applicants must investigate and implement the use of alternative sources when the district decides it is “economically, environmentally, and technically feasible.”53 As stated in the order:
1528. While the District can appropriately require a WUP applicant, including a public utility seeking potable water, to utilize reclaimed water in accordance with Section 373.250(2)(b), the WUP program is not the proper vehicle for imposing the major capital expenditures involved in developing the infrastructure for a reuse system on certain entities or users.
An acceptably vague and vest the District with unbridled discretion[.] There is no delineation of the factors or criteria that the District will consider in determining whether the feasibility study is acceptable and/or whether or when an applicant would be required to implement desalination.
1536. Without question, there is a need for long term planning, infra-structure investment and development of alternative sources of water. See, Section 7 of Chapter 95-323, Laws of Florida. While these matters should be coordinated with the permitting program, Chapter 373 does not presently allow these responsibilities to simply be shifted to certain classes of users based upon the District’s assessment of who can best afford it.54
Although the SWUCA decision addressed proposed district rules, the recommended order entered by Administrative Law Judge William F. Quattlebaum in the wellfield permitting case55 dealt with Swiftmud’s denial of renewal applications for existing wellfields in the northern Tampa Bay region. Although a final order is not expected from the district governing board for several months, several findings merit discussion. Essentially, the order recommended that Swiftmud grant 10-year water use permits for the wellfields at average daily quantities currently being withdrawn at each site. Finding that the renewal applications met the three-prong test for permit issuance, Judge Quattlebaum stated:
173. As to the quantity of water currently being withdrawn from the wellfields, the evidence establishes that the proposed use of water is a reasonable-beneficial use, the proposed use will not interfere with any presently existing legal use of water, and the proposed use is consistent with the public interest.
179. The provision of potable water to the customers of the water utility systems which receive water from the authority is a reasonable and beneficial use of the resource. There is no evidence that the existing potable water requirements of the end users may be met by any other currently available water resource.
212. The evidence establishes that the potable water being withdrawn from the subject wellfields constitutes utilization of local resources to the greatest extent practicable. There is no credible evidence that a sufficient potable water supply is located more proximately to the St. Petersburg water users.56
While the foregoing statements are clear, one must ask whether (and the extent to which) they might be modified if the proposed use of the resource was not public supply. Theoretically, perhaps, a large agricultural operation or light industrial plant could qualify for renewal permits under the same conditions, but one strongly suspects that the judge’s findings are exceptionally narrow and limited to the potable water supply applicants in the instant case.
With regard to drawdowns in the surface water table caused by withdrawals from the wellfields, the recommended order provided:
177. Despite the existing adverse impacts, there is no credible evidence that impacted areas would return to prepumping conditions even if pumping were halted from the subject wellfields.
296. Adverse environmental impacts which have resulted from water pumping in the subject wellfields occurred via water withdrawals permitted by the District with knowledge that the adverse impacts would occur. There is no evidence that any adverse environmental impacts have been caused by any unpermitted water pumping activities at the subject wellfields.57
Without question, Swiftmud’s governing board must carefully weigh the ramifications of its final order in the wellfield permitting case with its pending appeal of the SWUCA order and eminent adoption of minimum flows and levels in Hillsborough, Pasco, and Pinellas counties. Clearly, all governmental entities in the Tampa Bay region must work together in a cooperative effort to solve the area’s water supply problems. If funds and energies currently spent on public relation campaigns, litigation, and general finger-pointing were channeled into a commitment to solve the problems quickly and equitably, the area could become a shining example for future resource development programs instead of the problem child it is today.
The manner in which the region addresses resolution of ongoing water wars will be closely monitored over the next several months by other districts, governments, environmentalists, agricultural and development interests, and legislators. Whether the curtain goes down on litigation or legislation remains to be seen.q
1 Charlotte County v. Southwest Florida Water Management Dist., DOAH No. 94-5742RP (Mar. 26, 1997), appeal docketed, No. 97-1626 (Fla. 2d D.C.A. Apr. 22, 1997).
2 West Coast Regional Water Supply Authority v. Southwest Florida Water Management District, DOAH Nos. 95-1520, etc. (May 29, 1997) (governing board should issue final order in the fall of 1997).
3 Although the wellfields were first permitted by the district in the 1970’s (following implementation of the Water Resources Act of 1972), one had been operating since the 1930’s, another since 1963, and a third since 1973. The wellfield permits had been renewed by Swiftmud during the 1980’s. Id. at 8-11.
4 See Bridge Over Troubled Water: Recommendations of the Water Management District Review Commission (Dec. 29, 1995) (on file with the author and available at Fla. Legis., Jt. Legis. Mgt. Comm., Div. of Legis. Library Servs., Tallahassee, Fla.). For analysis of the Commission’s findings, see Parker and Mann, Water Management Reform: Mission Impossible? 70 Fla. B.J. 20 (Oct. 1996).
5 For an excellent analysis of the major topics, see Canter and Holtz, Water Law in Transition: Debates That Could Shape Florida’s Future, 70 Fla. B.J. 77 (Nov. 1996).
6 Ch. 96-339, 1996 Fla. Laws 1952 (codified at Fla. Stat. §373.042,. 536(5)).
7 See Fla. HB 1339, sponsored by Representatives Goode and Horan, and Fla. SB 1388 and SB 1428, sponsored by Senators Dyer and Latvala (respectively). Although most work group participants agreed on the wording of and supported the recommendations contained in its report, the Governor’s water bill was not drafted by the entire group; accordingly, there was not consensus among all work group members regarding the statutory language that was drafted to implement the recommendations.
8 See Fla. HB 1321 and HB 1249, sponsored by Representatives Bitner and Boyd (respectively), and Fla. SB 1428 sponsored by Senator Latvala.
9 See Fla. HB 715, sponsored by Representative Laurent, and Fla. SB 1562 sponsored by Senator Bronson.
10 See Ch. 97-160, §28, 1997 Fla. Laws 3002, 3031.
11 Ch. 97-160, 1997 Fla. Laws 3002 (to be codified at various provisions of Fla. Stat. chs. 186, 253, 370, 373 & 403).
12 Id. §11, 1997 Fla. Laws 3002, 3022 (to be codified at Fla. Stat. §373.0831(1)(c)).
13 Fla. Stat. §373.019(19) provides the following definition: “Water resource development” means the formulation and implementation of regional water resource management strategies, including the collection and evaluation of surface water and groundwater data; structural and nonstructural programs to protect and manage water resources; the development of regional water resource implementation programs; the construction, operation, and maintenance of major public works facilities to provide for flood control, surface and underground water storage, and groundwater recharge augmentation; and related technical assistance to local governments and to government-owned and privately owned water utilities.” Id. §2, 1997 Fla. Laws 3002, 3005.
14 Id. §11, 1997 Fla. Laws 3002, 3022 (emphasis added).
15 Fla. Stat. §373.019(19).
16 “Water supply development” means the planning, design, construction, operation, and maintenance of public or private facilities for water collection, production, treatment, transmission, or distribution for sale, resale, or end use.” Ch. 97-160, §2, 1997 Fla. Laws 3002, 3005 (to be codified at Fla. Stat. §373.019(21)).
17 Fla. Stat. §373.019(19).
18 Fla. Stat. § 373.536(5)(a) (Supp. 1996).
19 Ch. 97-160, §3, 1997 Fla. Laws 3002, 3007 (to be codified at Fla. Stat. §373.036(2)(b)4.a.).
20 Id. §4, 1997 Fla. Laws 3002, 3010 (to be codified at Fla. Stat. §373.0361(1)).
21 Id. (to be codified at Fla. Stat. §373.0361(2)).
22 Id. (to be codified at Fla. Stat. §373.0361(4)).
23 Id. §5, 1997 Fla. Laws 3002, 3012 (to be codified at Fla. Stat. §373.042(4)). The scientific peer review process created by HB 715 was based on similar procedures created by Chapter 96-339, 1996 Fla. Laws 1952 (codified at Fla. Stat. §373.042(4) (Supp. 1996)), which applied only to minimum flows and levels established by Swiftmud in Hillsborough, Pasco, and Pinellas counties. The 1996 process will still apply to those counties, with the new scientific peer review procedure applying elsewhere in the state. See Id. §28, 1997 Fla. Laws 3002, 3031.
24 Id. §6, 1997 Fla. Laws 3002, 3015.
25 Id., (to be codified at Fla. Stat. §373.0421(1)(b)).
26 Id. (to be codified at Fla. Stat. §373.0421(1)(a)).
28 Id. (to be codified at Fla. Stat. §373.0421(2)).
30 See id. §28, 1997 Fla. Laws 3002, 3031.
31 See, e.g., Fla. Stat. §§373.083(2),. 103,. 106(3),. 113,. 171,. 1961,. 616 &. 6161 (1995).
32 Ch. 97-160, §9, 1997 Fla. Laws 3002, 3017 (to be codified at Fla. Stat. §373.073(1)(b), (2)).
33 Id. §10, 1997 Fla. Laws 3002, 3021 (to be codified at Fla. Stat. §373.079(4)(a)).
34 Id. §16, 1997 Fla. Laws 3002, 3025 (to be codified at Fla. Stat. §373.536(1), (5)(c)).
35 Id. §16, 1997 Fla. Laws 3002, 3025 (to be codified at Fla. Stat. §373.536(5)(a), (c)).
36 Id. §13, 1997 Fla. Laws 3002, 3023 (to be codified at Fla. Stat. §373.236(1)).
37 Id. §§12, 17, 1997 Fla. Laws 3002, 3023, 3028 (to be codified at Fla. Stat. §§373.139(5),. 59(4)(a)).
38 Id. §2, 1997 Fla. Laws 3002, 3005 (to be codified at Fla. Stat. §373.019(20)) (emphasis added).
39 Id. §3, 1997 Fla. Laws 3002, 3007.
40 Id. §29, 1997 Fla. Laws 3002, 3032.
41 Id. §30, 1997 Fla. Laws 3002, 3032 (to be codified at Fla. Stat. §373.1963(1)(f)).
42 Id. §§33, 34, 1997 Fla. Laws 3002, 3037, 3038.
43 Id. §31, 1997 Fla. Laws 3002, 3034.
44 Id. §36, 1997 Fla. Laws 3002, 3039.
45 Id. §§37-42, 1997 Fla. Laws 3002, 3039-3045 (to be codified at Fla. Stat. §§370.06(4)(b);. 092(3), (4);. 093;. 14(8);. 1405)).
46 Id. §43, 1997 Fla. Laws 3002, 3045 (to be codified at Fla. Stat. §403.0882).
47 Charlotte County v. Southwest Florida Water Management District, DOAH No. 94-5742RP (Mar. 26, 1997), appeal docketed, No. 97-1626 (Fla. 2d D.C.A. Apr. 22, 1997).
48 Id. at 489.
49 Id. at 505-510, 517-519.
50 Id. at 492-500.
51 See Ch. 97-160, §6, 1997 Fla. Laws 3002, 3015 (to be codified at Fla. Stat. §373.0421(1)).
52 Supra, note 49.
53 Supra, note 47, at 583-596.
54 Id. at 586, 595, 589.
55 West Coast Regional Water Supply Authority v. Southwest Florida Water Management District, DOAH Nos. 95-1520, etc. (May 29, 1997).
56 Id. at 39-40, 46 (emphasis added).
57 Id. at 39-40, 61 (emphasis added).
Sally Bond Mann is managing attorney for the Tallahassee office of Maguire, Voorhis & Wells, where her practice includes governmental affairs, administrative law, and environmental and land use law. Mrs. Mann served as the executive director and general counsel of the Water Management District Review Commission, and drafted portions of several water bills negotiated during recent legislative sessions. An honors graduate of the Florida State University College of Law, she currently serves on the editorial board of The Florida Bar Journal, and has previously published articles on property rights, upland habitat regulation, APA reform, and water management.
This column is submitted on behalf of the Environmental and Land Use Law Section, Robert W. Wells, Jr., chair, and Sid F. Ansbacher, editor.