AgriGov: The water policy that wasn’t


What’s setting the tone for next year’s legislative session

AT THE OUTSET of the 2015 Legislative Session, water seemed to be the issue at the forefront in the minds of policymakers. However, that was before bitter disagreement over the budget prompted the House to unexpectedly adjourn three days early, putting into motion a “stranger-than-fiction” domino effect of dueling public statements between the chambers, an emergency Constitutional challenge filed by a group of Senators, and even a press conference about an offensive tweet.

The budget debate brought the Session to an abrupt halt, ending with it the chances of statewide substantive water policy reform until next year. Leading up to this year’s Regular Session, the Speaker of the House and the President of the Senate issued a joint statement that they would work together to pursue the common goal of sustainable statewide funding and policy strategy for water conservation. The emphasis of the resulting proposals was two-fold: (1) implementation of Amendment 1 funding options, and (2) comprehensive policy revisions to the state’s laws relating to water availability for both agriculture and public supply balanced with the conservation of natural systems. Only the water-related proposals related directly to the budget resurfaced when the Legislature reconvened in June for a Special Session. Senate Bill 2516-A passed during the Special Session to restructure trust funds as repositories for Amendment 1 funding and direct 33 percent of documentary stamp tax collections to the Land Acquisition Trust Fund for the implementation of the amendment.

The House water policy initiative, CS/HB 7003, by the State Affairs Committee provided increased emphasis on public-private partnerships with landowners to incentivize conservation efforts, springs protection, and streamlining of the state’s patchwork of sometimes-duplicative or conflicting regulatory schemes. It was the very first bill the House considered and passed this year, signaling the importance of the issue to the Speaker of the House. The Senate workshopped the House bill, drafted its own measure, and through several committee meetings, the two packages came closer. However, the Senate did not take the bill up for full Senate consideration until the last week of Session, after an unprecedented move on the part of the House to adjourn more than three days early. In a symbolic gesture, the Senate amended and passed the bill back over to an empty House chamber.

Both House and Senate bills addressed major topics such as springs restoration and protection, Lake Okeechobee cleanup, and the Central Florida Water Initiative (CFWI), but they approached these issues differently and added different additional initiatives. The Senate’s primary water policy bill, CS/SB 918 by Senator Dean, mandated a new database of conservation lands and a consolidated annual report on water quality and quantity. It included some of the Senate President’s major priorities, such as creation of a Florida Shared Use Non-Motorized Trail Network as part of the Florida Department of Transportation’s work program, a five-year planning process for water resource projects to be funded with state funds, and established the Florida Water Resources Advisory Council to rank and recommend water projects for funding. It also contained a pilot project for water resource development that became very controversial, in part, because it would allow a water management district to develop a water resource project in an adjoining water management district. Before its early adjournment, the House took up another bill, HB 653, and amended portions of CS/SB 918 onto that bill as a strong signal of what in the Senate’s bill the House was likely to accept. Notably excluded in the amended House version was the creation of an Advisory Council to rank and recommend water projects and the pilot project language.

As Florida’s population grows, competition for the resource among agriculture, public supply, and natural systems creates the necessity for continued planning. The current landscape in the Legislature harkens back to the Central Florida water wars, which emerged in the Tampa Bay area in the 1970s and raged for nearly 30 years. Counties, cities, and the water management districts spent millions of dollars in legal fees for rights to the precious resource over decades before innovative, coordinated regional solutions and development of alternative supply sources successfully increased the size of the water pie. The need for consistency and more regional approaches to water supply is apparent in exploring alternative water resources, as an area limited in its own resources may need to locate a project in a neighboring water management district. As part of the burgeoning statewide water policy unfolding today, many of the concepts that were pioneered during the struggles of Central Florida have proved instructive, and state policy appears to be moving in the direction of developing and encouraging cooperative regional water supply planning. To that end, the Central Florida Water Initiative, which has been working on cooperative water supply planning for years, would have been codified and built upon in this year’s proposed legislation.

One of the major weaknesses with present water policy that the Legislature sought to address is the inconsistency of criteria each water management district uses for evaluating consumptive use permits (CUPs). This creates an additional level of confusion for permit holders whose property is within the jurisdiction of multiple districts. This is certainly problematic in areas where the consumption of groundwater originating in one district will affect the supply in neighboring jurisdictions.

Most significantly for farmers and landowners, the policy revision bills would have created more predictability with respect to consumptive use permits. The bills, for example, directed the CFWI to develop a single process for permit reviews as well as a single, consistent process to set minimum flows and levels and water reservations, and an annual conservation plan for each CUP. Both House and Senate proposals imposed new monitoring requirements on new, renewed, or modified CUPs authorizing the withdrawal of 100,000 gallons or more per day in order to gain a more comprehensive picture of actual use by a broader array of users. One of the issues that was debated this year was whether those conserving water and using less than their permitted allotment, particularly agricultural users, would be allowed to keep those amounts and under what conditions. Under the Senate proposal, water management districts would have been required to adopt rules to provide conservation incentives, including permit extensions. The House’s proposal prohibited the reduction of an agricultural water user’s irrigation permit during the term of the permit if water use were less due to weather events, crop diseases, nursery stock availability, market conditions or changes in crop type.

The 2015 Legislative Session began with the potential to mark a historic moment for the future of Florida’s water resources. Although the importance of water conservation and overall stewardship is nothing new to farmers, this is the first time comprehensive water policy has been addressed at the statewide level. After the decisive passage of Amendment 1 dedicating tax revenue to conservation efforts last November, there was unprecedented focus in the halls of the Capitol on how to best conserve and allocate it before becoming a casualty of the budget impasse. Agriculture has become increasingly more adept at pioneering water conservation practices, having been surpassed by domestic users as the largest consumer of water resources in recent years, and will certainly continue to be lead the way in improving the future of Florida’s water when the issue comes into focus again in preparation for next year.

This article was printed in tandem with the Farm Credit Leader, Summer 2015 edition.

CREDIT

article by BRITTANY FINKBEINER

ABOUT THE AUTHOR: Brittany Finkbeiner is an attorney in Dean Mead & Dunbar’s Tallahassee office. Her practice focuses on government relations, lobbying and administrative law, real estate property, and agribusiness. Prior to going into private practice, Ms. Finkbeiner served as the chief attorney for the Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes. In addition, she’s worked at the Florida Department of Economic Opportunity, The Florida Senate Judiciary Committee, and as a legislative aide for the Florida Senate. She may be reached at bfinkbeiner@ deanmead.com.