Water, water everywhere?

• Author: Hervic, Joelle
• Position: Part 2 - Environmental land and water management in Florida and California

In 1972, Florida enacted the Florida Environmental Land and Water Management Act, (1) the Florida Water Resources Act, (2) and the Land Conservation Act, (3) thereby becoming one of 11 growth management states. (4) While these statutes provide that regional and state issues be considered in land use and development issues, there is no linkage between land use and water use, with the exception of taking into consideration current water facilities as a concurrency issue. (5)

California has taken a lead by introducing such a linkage. "For the first time in California's history, statewide government policy has linked land-use and growth issues to water supply [with the passage of a law which requires developers] to prove there is a 20-year supply of water before they are given permits to build subdivisions with more than 500 units." (6) There are no positive indications that Florida will follow California's lead in taking such a step. A coordinator with the South Florida Regional Planning Council indicated that while Florida land management and water agencies were aware of the California decision, a bill considering linkage that was proposed in Florida's previous legislative session did not pass. (7) He indicated that it "would be easy for the Regional Planning Councils to support this measure," were it to pass. (8)

One observer of the challenges faced by Florida in reconciling growth and management has discussed the need to link land development with water permitting, and, in so doing, has supported the views of the Third Environmental Lands Management Study Committee, which identified this need as the "missing link." (9) "Except for limited provisions, Florida law does not establish a formal link between land planning and water planning ... [which] is a significant `missing link.'" (10) Regulatory programs predominate in Florida for both land and water use. Although permitting is an efficient tool, its function is not intended to substitute for effective local government planning. Comprehensive planning that links land development with water resources and that incorporates environmental thresholds and optimum carrying capacity is needed.

"[A] combination of good planning and other nonregulatory tools such as land acquisition, conservation easements and transferable development rights should be used to protect the important habitat and direct growth away from it." (11) This currently does not occur. The following observations have been made regarding existing land and water management deficiencies in Florida in which permitting appears to have taken the place of planning:

Federal, State, regional, and even local wetland and water regulation programs issue permits for land development by looking at the potential adverse effects of the particular development on water resources. These programs do not plan for future land development. Also, these programs do not use and identify and implement long-range goals, objectives and policies based on a comprehensive assessment of natural resources in a particular area in light of future growth projections and community needs and desires. Using a regulatory program to attempt to achieve proper land use planning is a losing proposition. Planning decisions cannot be made when a developer requests a permit application. All that can be done at this point is minimize environmental impacts through engineering treatment technologies and wetland mitigation. The burden is passed on to the permitting agency, rather than being dealt with as a land use and natural resource protection policy. (12)

The following description of the state's existing legislative and regulatory scheme may be helpful to better understand what is missing from Florida's approach to land development and water management, with its emphasis on regulation.

* The Environmental Land and Water Management Act (ELWMA)

The ELWMA established two regional planning mechanisms in addressing Florida's growth management system: the area of critical state concern (ACSC) and developments of regional impact (DRI). Both of these designations require that the state take specific action modifying local government authority for land development in their jurisdictions. Areas designated as ACSCs may be established pursuant to F.S. [section] 380.05. An ACSC is a program providing for the identification of up to five percent of the state's land as an ACSC. It is an area that contains or has a significant impact on "environmental or natural resources of regional or statewide importance." (13) A development receives a DRI designation pursuant to F.S. [section] 380.06 "because... its character, magnitude, or location, would have a substantial effect upon the health, safety, or welfare of citizens of more than one county." (14)

* The Florida Water Resources Act The principal statutory scheme governing water in Florida is contained in the Florida Water Resources Act. This statute created the regional water management districts, which were established along surface water hydrologic boundaries rather than along political boundaries. Additionally, it provided for district decisionmaking by governing boards, with members to be appointed by the governor and confirmed by the senate. (15) The Water Resources Act originally identified five primary programmatic areas of water management district functions: 1) the construction and operation of district works; 2) planning for, management, and permitting of consumptive uses of water; 3) supervision of water well construction; 4) regulation of systems that manage or store surface waters; and 5) evaluation of water supplies and other resources within the district. (16)

Since the implementation of the Water Resources Act, the districts have been given additional responsibilities, either by the legislature or by way of delegation by the DEP. These have included responsibility for the development of groundwater basin resource availability inventories, environmental resource permitting, surface water improvement and management (SWIM) programs, acquisition and management of certain lands, and restoration of the Everglades and Florida Bay. (17)

The principal objective of the act, which has again been amended...