More than a drop in the bucket: Florida Water Resources Act.

• Author: Mann, Sally Bond
• Position: Part 2

The twenty-fifth anniversary of the Florida Water Resources Act of 1972 was marked by significant legislative modification of the statutory framework that governs the protection and regulation of the state's most valuable resource. In addressing many of the criticisms leveled at water management districts' authority and operations in recent years, the widely-supported 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 for all existing and future reasonable-beneficial uses.

Also during the spring of 1997, two precedent-setting administrative orders addressed ongoing water supply and permitting issues in the Southwest Florida Water Management District (Swiftmud). In a major rule challenge proceeding, Judge J. Stephen Menton rendered a 652-page final order invalidating several proposed and existing rules of the district.[1] Two months later, Judge William F. Quattlebaum's recommended order repudiated Swiftmud's refusal to renew water use permits for wellfields owned and operated by local government water suppliers.[2] Individually, the decisions analyzed the district's regulatory authority and scientific basis for restricting groundwater withdrawals; collectively, they exposed the inadequacies of water managers and users to plan for, fund and implement the development of additional water sources to ensure an adequate supply within the region.

Scene 1: Setting the Stage for Change

By 1992, changes in the topography and hydrogeology of west central Florida evidenced something more than normal cyclical drought-related conditions. Lakes and wetlands in the northern Tampa Bay region and along the Highlands Ridge atrophied, and the saltwater-freshwater interface crept inland along Gulf coastal counties from Hillsborough southward to Charlotte. In response, Swiftmud designated large portions of the district as "water use caution areas" and imposed area-wide water use restrictions, including reductions in amounts that public suppliers could withdraw from wellfields--the major source of potable water for millions of area residents.

Between 1992 and 1994, Tampa Bay water suppliers filed applications (with the district) for the renewal of existing wellfield permits originally issued in the late 1970's.[3] While the renewal applications were pending before Swiftmud, the district proposed the adoption of new administrative rules for water use permitting, which included a moratorium on the issuance of new water use permits in certain regions and the establishment of a minimum aquifer level in the Southern Water Use Caution Area (SWUCA). Several local governments and private interests challenged the proposed "SWUCA Rules," and an administrative hearing on the rule challenge was conducted from February to November 1995. Regarding the wellfield permit renewal applications, the district indicated in February 1995 that it would issue the renewal permits, but for one year only (rather than the "normal" 10-year period). Predictably, water suppliers filed administrative appeals, and a hearing was scheduled for July 1996.

During the same period of time that Swiftmud was juggling water shortage orders, proposed rules, and wellfield permit applications, the legislatively created Water Management District Review Commission was conducting an independent examination of the five regional water-managing agencies. The review commission conducted 17 public hearings across the state from September 1994 through November 1995, thereafter issuing its recommendations[4] and drafting proposed legislation for introduction during the 1996 legislative session.

Scene 2: Directions From Stage Left and Stage Right

Legislators, executive agency representatives, and interest groups anticipated the passage of water management reform during the 1996 regular session. After all, the review commission's study of district operations was complete and both House and Senate Select Committees on Water Policy were concluding their two-year 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 development 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 ongoing 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 evaluating those determinations; and authorized the Executive Office of the Governor to approve or disapprove districts' budgets.[6]

Intermission

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, development, 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 management 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 establishment of minimum flows and levels, regional water supply planning, implementation of review commission recommendations, 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...