FLORIDA CONSERVATION COALITION A non-partisan coalition of non-profit organizations and concerned citizens

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1 FLORIDA CONSERVATION COALITION A non-partisan coalition of non-profit organizations and concerned citizens It shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and excessive and unnecessary noise and for the conservation and protection of natural resources. --Article II, Section 7(a), Florida Constitution As Go Water Management Districts, so goes our Water Supply Throughout its history, Florida s unique environment and boom-bust economy have left their imprint on the State s water laws and policies. Florida has experienced all the challenges and consequences of excessive drainage of wetlands to eliminate mosquitoes and to create agricultural land and new towns; of channelization of rivers and streams for drainage and transportation; and of wasteful over-withdrawals for industrial, agricultural, and public uses. All of these activities resulted in environmental damages and shortages of water for the public and other users, including new industry, modern agriculture, and an exploding population. Ultimately, these realities were faced square on, and Florida developed a unique combination of Eastern and Western water law for the present and the future best interests of its citizens and the natural world, which are dependent on the health of our water resources. The creation of the five water management districts whose boundaries were based on the major river and drainage basins helped greatly in managing flooding and water supply problems. Districts also serve to protect water resources for the good of not only tax-payers, but also for the economy and environment of the regions and thereby, the state as a whole. Legal and political history The Governor s Conference on Water Management, convened by Governor Reuben Askew in 1971, concluded that land management, growth policy and water management could not be separated. Subsequently, the 1972 Legislature enacted the Environmental Land and Water Management Act, thereby creating the Development of Regional Impact and Area of Critical State Concern programs; the Comprehensive Planning Act; the Land Conservation Act, which authorized the sale of state bonds to raise revenue to fund the acquisition of environmentally endangered lands; and the Water Resources Act. This latter act, found in Chapter 373, Florida Statutes, is based on the premise that: Water is a public resource to be managed for the people of the state as a whole. Water in the environment, whether in or on the ground, from a stream, a lake or the ocean is not a commodity that can be bought and sold. No citizen can permanently control the state s water resources or totally deny another citizen the right to use this public resource. 1

2 In order that water is allocated fairly and equitably, and with an eye towards maintaining the natural resources of the state, the law created the five water management districts with boundaries based on hydrologic or watershed boundaries, rather than political boundaries such as counties. It established water management district governing boards to be made up of lay citizens residing within these district boundaries, who are appointed by the Governor. A staff of water resource scientists and other professionals advise the governing board members. As water law and policy evolved, the concept of local sources first utilizing all sources of water within a political boundary, be it county or region, before transferring water for long distances across boundaries - became policy. Unlike the allocation system of prior appropriation developed in the old American West, Florida law requires consideration of public interest and discourages the long-distance transfer of water across hydrologic boundaries and across county boundaries. A transfer of water must not diminish the availability of water to meet present and future needs of the sending area, and an area receiving water must have considered all reasonable local sources and options. The Florida Water Resources Act specifically excluded the concept of a State Water Board, proposed in the Model Water Code, which formed much of the basis of Chapter 373. More recently in 2003, the Council of 100, comprised of state business leaders, recommended creating a statewide water supply commission. The proposal was vetted in Senate public hearings, but was never taken up for consideration by the legislature. It is clear that the Legislature and people of Florida felt that a state water board would result in more politically driven inter-regional and inter-basin conflicts, and be a catalyst for massive transfers of water from water-rich to water-poor areas of the state. As water is essential to the well being of the state, the centralization of power over water resources was to be avoided. Water use permitting Instead of an all-powerful state water board, the state Department of Environmental Protection was given general supervisory authority over the water management districts, and the authority to adopt a State Water Policy. The Governor and Cabinet serve as the appellate body to review water management district actions. Water is allocated by water management districts using a permit system designed to prevent wasteful water uses, to provide certainty to existing users, to ensure that water use is reasonable and beneficial which means that the amount of water to be used is reasonable for its intended purpose, and that the purpose is beneficial in an economic, environmental, or public purpose sense, and to protect natural resources; and to provide for future users by requiring water managers to address comprehensive planning and resource development. This farsighted system has proved both workable and sustainable to a great degree. However, there are regions in Florida where, despite a water allocation program based on advanced science, detriments to the environment and water supplies have occurred and are still occurring. This was made evident in the Tampa Bay region where water wars raged for decades. It is obvious in the Central Florida Coordination Area, 2

3 where the three largest water management districts are working together to overcome the prospect of groundwater being maxed out within a few years. In the Everglades, water supply issues and excessive tampering with the natural hydrology threaten to extinguish the largest wetland system in the lower 49 states. These situations underscore the fact that growth and development in Florida have placed tremendous challenges on the water management districts to ascertain and cope with the impacts to surface and groundwater, both in terms of excessive use, cumulative impacts, altered drainage systems, and discharges of pollutants. The districts have worked very hard to enhance their knowledge and capability, but the impacts that have been placed on our water resources since their creation is daunting. This is all the more reason why retaining seasoned scientists and technical experts and competent and capable regulators are more critical today than ever. Water Management District taxing authority In 1976, the citizens of Florida accepted the Legislature s recommendation and voted to amend the State Constitution to authorize water management districts to levy up to 1 mil (.05 mils in the Northwest Florida Water Management District) in ad valorem taxes (within the constraints of Ch. 373, F.S.) to raise funds from regional sources to provide water management, i.e. protect water supplies, provide flood protection, manage and preserve natural resources. The law also gave the districts the necessary regulatory authority to accomplish those missions. Restoration of important freshwater resources, including the Everglades, water recharge areas in central Florida, and the St. John s River watershed, have been undertaken by use of these tax dollars. So has establishment of critical minimum flows and water levels, as directed by the Legislature, and the redesign and maintenance of flood control structures by the use of these tax dollars. Water Management District Independence Since their creation, the water management districts have functioned with a degree of independence, but under the general supervision of the Governor and Department of Environmental Protection and its predecessor agency (the Department of Environmental Regulation). It is fair to say that the Legislature has, from time to time, expressed resentment that the power to levy ad valorem taxes rests in the hands of appointed citizens. But local control on a scientific basis and the minimization of political influence were primary reasons the regional water management districts were created in the first place. The 2011 Legislature enacted major changes to Florida s growth management, environmental, and water management laws and programs. The Department of Community Affairs, the growth management agency, was abolished, along with many of the laws passed to protect the state and taxpayers from inappropriate development. Chapter 120, F.S., the Administrative Procedures Act, which had previously required that applicants for environmental permits prove that their proposals would not cause harm to the environment, was changed (reversed) to require that opponents to the issuance of a permit prove that the proposal would cause harm, greatly lessening the chance of a 3

4 successful permit challenge. In effect, more development and water withdrawal permits will surely be granted, some likely to the detriment of Floridians. The 2011 Legislature also authorized itself to review water management district budgets and then set the maximum level of revenue that can be raised from district ad valorem taxes. The level of revenue from ad valorem taxes for fiscal year represents a 39.4 percent reduction in overall district ad valorem revenue. The Governor and Legislative Budget Commission are each now authorized to disapprove any or all of the water management district budgets. By these actions, control of water supply, flood protection, and water resource protection and restoration projects has now been moved to the Legislature, which is exactly what the original drafters of the water management district legislation did not want. As a result of 2011 legislation and the Governor s direction, Water Management District fiscal year budgets (overall) have been reduced by $ million and staffs have been reduced by 596. The following table represents a general comparison of budget and staff reductions in the water management district budgets: WMD budget reductions for District Budget reduction % reduction Staff reductions % reduction Northwest 16.8 M Suwannee 9.4 M St. Johns 35.5 M Southwest M South M* Total M *South Florida WMD budget reductions include $194 M in payments for the US Sugar land purchase, $95 M for Certificates of Participation (COPs) and upward of $50 M in projects budgeted, but completed. This also includes an overall (all districts) reduction in ad valorem tax revenue of $247.7 M (39.4%) and $245 M reduction in land acquisition. While the benefit to individual homeowner s might amount to a reduction in taxes of $20-$40/year, massive layoffs of staff in the districts means that experienced scientists are gone, knowledgeable planners who review permits, and seasoned attorneys who defend public-interest decisions and rules to protect the sustainability of Florida s water resources are also gone. The time provided to the agencies to review permits has been dramatically decreased, and with reduced staffing and less experience, how well will the interests of the public and future water users be protected? It is clear that work necessary to preserve and restore water resources for the future of Florida will slow down. Major concerns about the direction of water management 4

5 1. Loss of expertise and financial capacity of Water Management Districts. How will water management districts, in a fast growing state with many existing water problems, be able to retain their capabilities to properly manage and protect water supplies, provide flood protection, and manage and protect natural resources with severely diminished funding and major staff reductions? The next major hurricane or drought will be another reminder of lessons learned from the past that resulted in the 1972 water management system. It can be hoped that Tallahassee policy-makers will soon understand that sustainable water management is as essential to Florida s economic development as it is to the protection of water and natural resources. 2. The move towards creating the discarded concept of a State Water Board. Further centralization of control over water and water management districts in Tallahassee, rather than in scientifically based hydrologic/watershed regions, is a major concern which could lead to further politicization of the public s water. That is not in the best interest of Florida, and would certainly harm water resources. Less-populated rural areas would be at the greatest risk. 3. The move towards privatizing water or defining it as a commodity. Water is a birthright in Florida, not a commodity subject to private ownership and sale. It is instead controlled by the public so that the people of Florida can use it in reasonable beneficial ways, i.e. drinking, growing crops, watering lawns, fishing, and swimming without paying anyone for that right. Because water is not a commodity, public and private utilities can charge only to treat and distribute it, they cannot now force anyone to pay for the water itself. In states west of the Mississippi River, water rights and laws are quite different. There, the first person to use, or appropriate water, essentially becomes its owner and has the right to decide who to sell it to and at what price. In many areas of the West water rights have become more valuable and costly than land. While there are no forthright proposals to adopt western style water law, the concern exists, and most Floridian would not benefit from any water use dogma that would put unlimited water use rights into the hands of private interests. This paper will be updated as the critical issues of Florida s water unfold. November 16,