Adaptive Governance and Water Conflict

New Institutions for Collaborative Planning

John T. Scholz, Bruce Stiftel, John T. Scholz, Bruce Stiftel, John T Scholz, John T Scholz, Bruce Stiftel

• Publisher: Routledge
• Year: 2010
• Print ISBN: 9781933115184
• eBook ISBN: 9781136524868
• Topic: Biological Sciences
• Subtopic: Ecology
• Index: Biological Sciences

Water policy seems in perpetual crisis. Increasingly, conflicts extend beyond the statutory authority, competence, geographical jurisdictions, and political constituencies of highly specialized governing authorities. While other books address specific policy approaches or the application of adaptive management strategies to specific problems, this is the first book to focus more broadly on adaptive governance, or the evolution of new institutions that attempt to resolve conflicts among competing authorities. Adaptive Governance and Water Conflict investigates new types of water conflicts among users in the seemingly water-rich Eastern United States. Eight case studies of water quality, water quantity, and habitat preservation or restoration in Florida were chosen to span the range of conflicts crossing fragmented regulatory boundaries. Each begins with a history of the conflict and then focuses on the innovative institutional arrangements - some successful, some not - that evolved to grapple with the resulting challenges. In the chapters that follow, scholars and practitioners in urban planning, political science, engineering, law, policy, administration, and geology offer different theoretical and experience-based perspectives on the cases. Together, they discuss five challenges that new institutions must overcome to develop sustainable solutions for water users: Who is to be involved in the policy process? How are they to interact? How is science to be used? How are users and the public to be made aware? How can solutions be made efficient and equitable? In its diverse perspectives and unique combination of theory, application, and analysis, Adaptive Governance and Water Conflict will be a valuable book for water professionals, policy scientists, students, and scholars in natural resource planning and management.

Part I

Case Studies of
Water Conflicts

CHAPTER 1

Florida's Water
Management Framework

Richard Hamann

TO UNDERSTAND THE case studies in this volume, one needs a map of the institutions responsible for management of Florida's water resources. This chapter provides the minimum description necessary to participate in the debate over institutional change.

Water management in Florida, as in most states, is conducted by a variety of institutions at every level of government. Local governments have comprehensive authority, but limited resources and jurisdiction. Water management districts are the most significant of a series of regional agencies, with authority over every aspect of water management. At the state level, the Florida Department of Environmental Protection (FDEP) supervises the water management districts, regulates most sources of water pollution, manages sandy beaches, regulates the quality of public water supplies, and administers most state lands, including the beds of navigable waters. Other agencies with significant responsibility include the Department of Community Affairs (DCA), which administers state programs for comprehensive planning and land use regulation, the Florida Department of Health (FDOH), which regulates septic tanks, and the Florida Department of Agriculture and Consumer Services (FDACS), with jurisdiction over agricultural sources of water pollution and state forests. The state's fish and wildlife are managed by the Florida Fish and Wildlife Conservation Commission. Federal agencies participate in the management of Florida water resources as land managers, regulators of water pollution sources, funders of water-related projects, and regulators of activities adversely affecting fish and wildlife. The relationships among these agencies and levels of governance are complex.

Local Governments

Local governments have extensive authority over activities that can affect water resources. They have primary responsibility for regulating land use. Through the adoption and implementation of a local comprehensive plan, they regulate the effects of growth on the environment, and provide for the concurrent delivery of such services as water supply, wastewater treatment, and stormwater control (Fla. Stat. Ch. 163, Pt. II (2003)). Some local governments, especially in urban areas, have sophisticated programs for regulating water pollution, petroleum storage facilities, hazardous waste facilities, and other potential sources of water pollution. These programs are based on either a delegation of the state's pollution control authority or the local government's own authority.

In many cases certain governmental services are provided outside the normal structure of general purpose local governments. Port authorities, for example, may levy taxes and operate ports and navigation channels. Extensive mosquito control operations, involving water management and the application of pesticides to wetlands, may be conducted by mosquito control districts. Water control districts build and operate works for drainage and flood control in much of Florida. Landowners, who pay assessments for the drainage, have voting rights in proportion to their landholdings. As new communities are developed in Florida, much of the responsibility for providing services and infrastructure is being given to community development districts established and controlled by land developers.

Regional Agencies

Florida has several regional institutions that influence the management of water resources. Eleven regional planning councils are composed of local government representatives and gubernatorial appointees (Fla. Stat. 186.501-.513 (2003)). Established in 1975, the regional planning councils originally had stronger authority over local land use decisions. Although they are now mandated to develop Strategic Regional Policy Plans, they have little authority to implement them and primarily serve to assist and coordinate local government members on a voluntary basis.

A more significant institution for regional cooperation is a Regional Water Supply Authority (RWSA), (Fla. Stat. §373.1962 (2003)), which may be created by interlocal agreement among local governments.¹ Regional water supply authorities can develop and manage facilities for regional water supply. As described in Tampa Bay, the first was the West Coast Regional Water Supply Authority, which has been reinvented as Tampa Bay Water (Fla. Stat. 373.1963 (2003)). Several other RWSAs have since been created. By joining together in a RWSA, local governments can pool their resources to secure permits, raise capital, and resolve interlocal disputes over water supplies.

The most important regional institutions for managing water resources are Florida's five water management districts (Fla. Stat. Ch. 373 (2003)). These have the most comprehensive authority, the greatest technical expertise, and the largest financial resources of any state or regional agencies dealing with water in Florida. The water management districts were organized along surface water hydrologic boundaries, not along political lines. They operate independent of local governments and with a great deal of autonomy from state control. Water management districts are significant actors in nearly all the case studies in this volume.

The water management districts were based on a model developed in South Florida beginning in the 1920s. Efforts to drain the Everglades and provide flood control to the east coast had been based on the creation of special taxing districts. Major flooding after a tropical storm in 1947 overwhelmed the system, and the state requested assistance from the U.S. Congress in constructing a massive expansion. For Congress to authorize a project by the U.S. Army Corps of Engineers, a local sponsor would be needed with the ability to purchase necessary lands and operate the system. The Florida Legislature created the Central and Southern Florida Flood Control District to perform those duties, and gave it the assets of the earlier districts and authority to levy ad valorem taxes. Based on that federal–state partnership, a massive system of levies, impoundments, canals, pumps, and discharge structures was created.

It worked well, and after hurricane Donna inundated southwestern Florida in 1960, a similar project was developed for that area. The Southwest Florida Water Management District (SWFWMD) was created to serve as the local sponsor. SWFWMD was given additional regulatory authority over groundwater withdrawals.

A severe drought in 1970–1971 led to a reexamination of the entire framework for land and water management and the passage of several landmark pieces of legislation. One of those bills, the Florida Water Resources Act of 1972, extended the system of water management districts to the entire state and gave them a uniform set of powers and duties (Maloney et al. 1972). Voters subsequently approved a constitutional amendment extending the authority to levy ad valorem taxes to the remainder of the state.²

Each of the water management districts has a governing board of gubernatorial appointees, which hires an executive director, adopts a budget, issues administrative orders, and adopts rules. To coordinate water policy at the state level, the districts are subject to the general supervisory authority of FDEP, their budgets must be approved by the governor, governing board appointments must be confirmed by the Senate, and the rules and orders of the districts may be appealed to the governor and cabinet.

The authority given to the water management districts was broad to begin with, and has been significantly expanded. They can build and operate canals, dikes, pumping stations, and other water management structures for drainage or water supply purposes. They can also buy and manage land. They can conduct scientific and technical studies, and are required to formulate several kinds of water management and water supply plans, including plans for the restoration of degraded surface waters and the supply of water in areas of predicted shortage. They are required to provide technical assistance to local governments, which are in turn required to consider district plans in developing their own water supply plans. As part of the planning process, the districts are required to adopt minimum flows and levels (MFLs) for streams, lakes, and groundwater. MFLs must protect the water resources of the area from significant harm. In addition, the districts can reserve water from consumptive use for the protection of fish and wildlife and public health and safety. Although the requirement to adopt minimum flows and levels was part of the original 1972 legislation, the districts have done so only recently in response to litigation by citizens.

Florida's common law for resolving water use conflicts, as in the other eastern states, was based on riparian rights. All of the owners of riparian land had a right to make reasonable use of the resource. Unlike the prior appropriation system developed in the west, there was no well-defined property right vis-à-vis subsequent users; all users were protected, not just those who withdrew water from natural systems. Now the allocation of water for consumptive use is an administrative function of the water management districts. Most consumptive use is subject to regulation to prevent harm to the water resources. With limited exemptions, there are no rights to use water except as permitted by the districts. Permit applicants must demonstrate that a proposed use will not interfere with existing legal users and is “reasonable-beneficial,” and consistent with the public interest. Permits are subject to renewal after a fixed duration, with the possibility of competing applications. Applicants have the right to a twenty-year permit during which period they are protected against interference and exempt from compliance with new conditions. The use of water may be further restricted, however, during droughts under the terms of water shortage plans or pursuant to water shortage orders. The transport of water outside the basin of origin, across county boundaries, or even from one district to another may be authorized, but there is a preference for local sources and the development of alternative water supplies.

Environmental resource permitting (ERP) is the other major regulatory program of the districts.³ As part of an effort in the 1990s to reduce regulatory overlap and duplication, implementation of this program is shared with the FDEP.⁴ERP regulates drainage, stormwater systems, dredge and fill activities, and other structures to manage water quality, downstream flooding, groundwater levels, wetland functions, and habitat for aquatic and wetland-dependent wildlife. It considers measures to avoid or minimize impacts, and requires the remaining impacts to be offset through compensatory mitigation. ERP may authorize the use of navigable waters held in trust for the public and construction seaward of coastal construction control lines along Florida's sandy beaches.

State Institutions

Florida's state institutions are divided into the familiar legislative, executive, and judicial branches. The Legislature plays a strong role in Florida water management and believes that it is the only institution with the authority to establish water policy. In 1981, the FDEP adopted a “state water policy,” which it had developed in consultation with the water management districts (Fla.Admin. Code r. 62-40). In 1997, the legislature renamed it the “water resource implementation rule” and required that it be submitted to the legislature before it could go into effect. The Legislature has also severely constrained the authority of the districts and other agencies to adopt rules unless they are very specifically authorized by statute, and has imposed other limitations on the ability of state agencies and local governments to protect water. The Harris Act (Fla Stat. 70.001 (2003)), which requires compensation for regulations that “inordinately burden” private property, is a notable example.

Florida's executive structure is somewhat unusual. The Governor can appoint some agency heads, but there are also several independently elected officials with authority over their own agencies. The Commissioner of Agriculture, for example, controls the Department of Agriculture and Consumer Services (DACS), which has significant responsibility for controlling water pollution from agricultural activities and the use of pesticides. DACS has a primary role in implementation of the Suwannee Partnership. DACS also manages state forests. In water policy debates, DACS can be an influential advocate for agricultural interests and rural landowners. The Attorney General has taken a strong and independent stand in pursuing water-related litigation, for example to ensure the protection of navigable waters. For some purposes, the Governor and members of the Cabinet serve as members of collegial bodies with shared governing responsibility. For example, the Trustees of the Internal Improvement Trust Fund, composed of the Governor and Cabinet, are vested with the ownership of most state lands, including the beds of navigable waters, and thus are responsible for protecting the public trust in those waters. Decisions of the water management districts may be appealed to the Land and Water Adjudicatory Commission. Certain land use decisions are made by the Administration Commission. Meetings of the Governor and Cabinet consist of a series of meetings of such commissions and boards. The number of cabinet officers has been reduced,⁵ and more executive powers have been delegated to the Governor, but many important executive decisions related to water are made collegially.

The constitution also establishes the Florida Fish and Wildlife Conservation Commission, an independent executive agency with exclusive control over the fish and wildlife resources of the state. Its members are appointed by the Governor, but that is the extent of his authority. The Public Service Commission (PSC) is an independent agency created by the Legislature; it sets the rates charged by utilities for water supply and wastewater treatment and their service areas. The decisions of the PSC can have profound effects on how these services are provided.

The heads of the other state agencies with responsibility for water management are appointed by the Governor. The most significant are FDOH, FDCA, and FDEP.

FDOH regulates septic tanks and other onsite treatment and disposal systems that can pollute water. It also regulates private wells to ensure drinking water safety, as well as the safety of public swimming areas.

FDCA acts for the state in land use planning and regulation. Certain large-scale developments known as Developments of Regional Impact (DRI) have been subject to review by FDCA and the regional planning councils (Fla. Stat. §380.06 (2003)). This program has been seriously eroded, however, and is of declining importance. FDCA also implements a program for designated Areas of Critical State Concern (Fla. Stat. §380.05 (2003)). Under this program, specific environmentally significant and vulnerable areas of the state may be designated and “principles for guiding development” to protect their resources may be adopted that are binding on local governments. The protection of water quality, wetlands, and other water resources has been one of the principle reasons for designating such Areas of Critical State Concern as the Florida Keys, Green Swamp, Big Cypress Swamp, and Apalachicola Bay. Local governments have been successfully pressured into more adequately managing growth in these areas, but the Legislature has limited the program to only 5 percent of the state's land area.

The most pervasive land use planning and regulatory program is the Local Government Comprehensive Planning and Land Development Act (Fla. Stat. Chap. 163, Pt. II (2003)). FDCA is responsible for ensuring that local governments comply with minimum standards and criteria for the development of comprehensive plans (Fla. Admin. Code r. 9J-5). Many of these standards are directly relevant to the protection of water quality and quantity, fish and wildlife, and other water resources. One of the criticisms of the comprehensive planning process has been the failure to adequately link it to water management planning (Angelo 2001). Local go...

Table of contents

• Front Cover
• Titel Page
• Copyright
• About Resources for the Futureand RFF Press
• Dedication
• Contents
• Preface
• About the Contributors
• Introduction: The Challenges of Adaptive Governance
• Part I: Case Studies of Water Conflicts
• Part II: Practitioners’ Perspectives
• Part III: Researchers’ Perspectives
• References
• Abbreviations
• Index