Senate Bill 1442c1

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    Florida Senate - 1998                           CS for SB 1442

    By the Committee on Natural Resources and Senator Latvala





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  1                      A bill to be entitled

  2         An act relating to regional water supply

  3         authorities; amending s. 120.52, F.S.;

  4         providing that a member government is not

  5         considered a party in administrative

  6         proceedings under certain conditions; amending

  7         s. 373.1963, F.S.; revising criteria for

  8         governance of the West Coast Regional Water

  9         Supply Authority and its member governments

10         under interlocal agreements; declaring

11         legislative intent to supersede other laws;

12         repealing s. 373.1963(5), F.S., relating to a

13         process for review of a consumptive use permit;

14         amending s. 682.02, F.S.; providing for the

15         arbitration of certain controversies concerning

16         water use; amending s. 768.28, F.S.; allowing

17         an authority to indemnify its member

18         governments; providing an effective date.

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20  Be It Enacted by the Legislature of the State of Florida:

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22         Section 1.  Subsection (12) of section 120.52, Florida

23  Statutes, is amended to read:

24         120.52  Definitions.--As used in this act:

25         (12)  "Party" means:

26         (a)  Specifically named persons whose substantial

27  interests are being determined in the proceeding.

28         (b)  Any other person who, as a matter of

29  constitutional right, provision of statute, or provision of

30  agency regulation, is entitled to participate in whole or in

31  part in the proceeding, or whose substantial interests will be

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  1  affected by proposed agency action, and who makes an

  2  appearance as a party.

  3         (c)  Any other person, including an agency staff

  4  member, allowed by the agency to intervene or participate in

  5  the proceeding as a party. An agency may by rule authorize

  6  limited forms of participation in agency proceedings for

  7  persons who are not eligible to become parties.

  8         (d)  Any county representative, agency, department, or

  9  unit funded and authorized by state statute or county

10  ordinance to represent the interests of the consumers of a

11  county, when the proceeding involves the substantial interests

12  of a significant number of residents of the county and the

13  board of county commissioners has, by resolution, authorized

14  the representative, agency, department, or unit to represent

15  the class of interested persons.  The authorizing resolution

16  shall apply to a specific proceeding and to appeals and

17  ancillary proceedings thereto, and it shall not be required to

18  state the names of the persons whose interests are to be

19  represented.

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21  The term "party" does not include a member government of a

22  regional water supply authority or a governmental or

23  quasi-judicial board or commission established by local

24  ordinance or special or general law where the governing

25  membership of such board or commission is shared with, in

26  whole or in part, or appointed by a member government of a

27  regional water supply authority in proceedings under s.

28  120.569, s. 120.57, or s. 120.68, to the extent that an

29  interlocal agreement under ss. 163.01 and 373.1962 exists in

30  which the member government has agreed that its substantial

31  interests are not affected by the proceedings or that it is to

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    Florida Senate - 1998                           CS for SB 1442
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  1  be bound by alternative dispute resolution in lieu of

  2  participating in the proceedings. This exclusion applies only

  3  to those particular types of disputes or controversies, if

  4  any, identified in an interlocal agreement.

  5         Section 2.  Present subsection (5) of section 373.1963,

  6  Florida Statutes, is repealed, subsection (1) of said section

  7  is amended, subsections (2), (3), and (4) are renumbered as

  8  subsections (3), (4), and (5), respectively, and a new

  9  subsection (2) is added to said section, to read:

10         373.1963  Assistance to West Coast Regional Water

11  Supply Authority.--

12         (1)  It is the intent of the Legislature to authorize

13  encourage and facilitate the implementation of changes in

14  governance recommended by the West Coast Regional Water Supply

15  Authority in its reports report to the Legislature dated

16  February 1, 1997, and. The authority shall submit a

17  supplemental report to the President of the Senate and the

18  Speaker of the House of Representatives on the status of

19  implementing its prior recommendations for changes in

20  governance by January 5, 1998. The authority and its member

21  governments may reconstitute the authority's its governance

22  and rename the authority in a manner consistent with its

23  report to the Legislature, and with the provisions set forth

24  herein, under a voluntary interlocal agreement with a term of

25  not less than 20 years. The interlocal agreement must comply

26  with this subsection, which substantially provides as follows:

27         (a)  The authority and its member governments agree

28  that cooperative efforts are mandatory to meet their water

29  needs in a manner that will provide adequate and dependable

30  supplies of water where needed without resulting in adverse

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  1  environmental effects upon the areas from which the water is

  2  withdrawn or otherwise produced.

  3         (b)  In accordance with s. 4, Art. VIII of the State

  4  Constitution and notwithstanding s. 163.01, the interlocal

  5  agreement may include the following terms, which are

  6  considered approved by the parties without a vote of their

  7  electors, upon execution of the interlocal agreement by all

  8  member governments and upon satisfaction of all conditions

  9  precedent in the interlocal agreement: To the extent provided

10  in the interlocal agreement, and to the extent permitted by

11  law:

12         1.  All member governments shall relinquish to the

13  authority their individual rights to develop potable water

14  supply sources, except as otherwise provided in the interlocal

15  agreement;

16         2.  The authority shall be the sole and exclusive

17  wholesale potable water supplier for all member governments;

18  and

19         3.  The authority shall have the absolute and

20  unequivocal obligation to meet the wholesale needs of the

21  member governments for potable water.

22         4.  A member government may not restrict or prohibit

23  the use of land within a member's jurisdictional boundaries by

24  the authority for water supply purposes through use of zoning,

25  land use, comprehensive planning, or other form of regulation.

26         5.  A member government may not impose any tax, fee, or

27  charge upon the authority in conjunction with the production

28  or supply of water not otherwise provided for in the

29  interlocal agreement.

30         6.  The authority may use the powers provided in part

31  II of chapter 159 for financing and refinancing water

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    Florida Senate - 1998                           CS for SB 1442
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  1  treatment, production, or transmission facilities, including,

  2  but not limited to, desalinization facilities. All such water

  3  treatment, production, or transmission facilities are

  4  considered a "manufacturing plant" for purposes of s.

  5  159.27(5) and serve a paramount public purpose by providing

  6  water to citizens of the state.

  7         7.  A member government and any governmental or

  8  quasi-judicial board or commission established by local

  9  ordinance or general or special law where the governing

10  membership of such board or commission is shared, in whole or

11  in part, or appointed by a member government agreeing to be

12  bound by the interlocal agreement shall be limited to the

13  procedures set forth therein regarding actions that directly

14  or indirectly restrict or prohibit the use of lands or other

15  activities related to the production or supply of water.

16         (c)  The authority shall acquire full or lesser

17  interests in all regionally significant member government

18  wholesale water supply facilities and tangible assets and each

19  member government shall convey such interests in the

20  facilities and assets to the authority, at an agreed value.

21         (d)  The authority shall charge a uniform per gallon

22  wholesale rate to member governments for the wholesale supply

23  of potable water. All capital, operation, maintenance, and

24  administrative costs for existing facilities and acquired

25  facilities, authority master water plan facilities, and other

26  future projects must be allocated to member governments based

27  on water usage at the uniform per gallon wholesale rate.

28         (e)  To the extent provided in The interlocal agreement

29  may include and to the extent permitted by law, member

30  governments shall develop procedures for resolving the

31  parties' their differences regarding water management district

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    Florida Senate - 1998                           CS for SB 1442
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  1  proposed agency action in the water use permitting process

  2  within the authority. Such procedures should minimize the

  3  potential for litigation and include alternative dispute

  4  resolution. Any governmental or quasi-judicial board or

  5  commission established by local ordinance or general or

  6  special law where the governing members of such board or

  7  commission is shared, in whole or in part, or appointed by a

  8  member government, may agree to be bound by the dispute

  9  resolution procedures set forth in the interlocal agreement.

10  Nothing herein or in said procedures shall affect the rights

11  of participants under chapter 120.

12         (f)  Upon execution of the voluntary interlocal

13  agreement provided for herein, the authority shall jointly

14  develop with the Southwest Florida Water Management District

15  alternative sources of potable water and transmission

16  pipelines to interconnect regionally significant water supply

17  sources and facilities of the authority in amounts sufficient

18  to meet the needs of all member governments for a period of at

19  least 20 years and for natural systems. Nothing herein,

20  however, shall preclude the authority and its member

21  governments from developing traditional water sources pursuant

22  to the voluntary interlocal agreement. Development and

23  construction costs for alternative source facilities, which

24  may include a desalination facility and significant regional

25  interconnects, must be borne as mutually agreed to by both the

26  authority and the Southwest Florida Water Management District.

27  Nothing herein shall preclude authority or district cost

28  sharing with private entities for the construction or

29  ownership of alternative source facilities. By December 31,

30  1997, the authority and the Southwest Florida Water Management

31  District shall:

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    Florida Senate - 1998                           CS for SB 1442
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  1         1.  Enter into a mutually acceptable agreement

  2  detailing the development and implementation of directives

  3  contained in this paragraph; or

  4         2.  Jointly prepare and submit to the President of the

  5  Senate and the Speaker of the House of Representatives a

  6  report describing the progress made and impediments

  7  encountered in their attempts to implement the water resource

  8  development and water supply development directives contained

  9  in this paragraph.

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11  Nothing in this section subsection shall be construed to

12  modify the rights or responsibilities of the authority or, its

13  member governments, except as otherwise provided herein, or of

14  the Southwest Florida Water Management District or the

15  department pursuant to chapter 373 or chapter 403 and as

16  otherwise set forth by statutes.

17         (g)  Unless otherwise provided in the interlocal

18  agreement, the authority shall be governed by a board of

19  commissioners consisting of nine voting members, all of whom

20  must be elected officers, as follows:

21         1.  Three members from Hillsborough County who must be

22  selected by the county commission; provided, however, that one

23  member shall be selected by the Mayor of Tampa in the event

24  that the City of Tampa elects to be a member of the authority;

25         2.  Three members from Pasco County, two of whom must

26  be selected by the county commission and one of whom must be

27  selected by the City Council of New Port Richey;

28         3.  Three members from Pinellas County, two of whom

29  must be selected by the county commission and one of whom must

30  be selected by the City Council of St. Petersburg.

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    Florida Senate - 1998                           CS for SB 1442
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  1  Except as otherwise provided in this section or in the

  2  voluntary interlocal agreement between the member governments,

  3  a majority vote shall bind the authority and its member

  4  governments in all matters relating to the funding of

  5  wholesale water supply, production, delivery, and related

  6  activities.

  7         (2)  The provisions of this section supersede any

  8  conflicting provisions contained in all other general or

  9  special laws or provisions thereof as they may apply directly

10  or indirectly to the exclusivity of water supply or withdrawal

11  of water, including provisions relating to the environmental

12  effects, if any, in conjunction with the production and supply

13  of potable water, and the provisions of this section are

14  intended to be a complete revision of all laws related to a

15  regional water supply authority created under ss. 373.1962 and

16  373.1963.

17         Section 3.  Section 682.02, Florida Statutes, is

18  amended to read:

19         682.02  Arbitration agreements made valid, irrevocable,

20  and enforceable; scope.--Two or more parties may agree in

21  writing to submit to arbitration any controversy existing

22  between them at the time of the agreement, or they may include

23  in a written contract a provision for the settlement by

24  arbitration of any controversy thereafter arising between them

25  relating to such contract or the failure or refusal to perform

26  the whole or any part thereof. This section also applies to

27  written interlocal agreements under ss. 163.01 and 373.1962 in

28  which two or more parties agree to submit to arbitration any

29  controversy between them concerning water use permit

30  applications and other matters, regardless of whether or not

31  the water management district with jurisdiction over the

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    Florida Senate - 1998                           CS for SB 1442
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  1  subject application is a party to the interlocal agreement or

  2  a participant in the arbitration. Such agreement or provision

  3  shall be valid, enforceable, and irrevocable without regard to

  4  the justiciable character of the controversy; provided that

  5  this act shall not apply to any such agreement or provision to

  6  arbitrate in which it is stipulated that this law shall not

  7  apply or to any arbitration or award thereunder.

  8         Section 4.  Subsection (18) of section 768.28, Florida

  9  Statutes, is amended to read:

10         768.28  Waiver of sovereign immunity in tort actions;

11  recovery limits; limitation on attorney fees; statute of

12  limitations; exclusions; indemnification; risk management

13  programs.--

14         (18)  Neither the state nor any agency or subdivision

15  of the state waives any defense of sovereign immunity, or

16  increases the limits of its liability, upon entering into a

17  contractual relationship with another agency or subdivision of

18  the state. Such a contract must not contain any provision that

19  requires one party to indemnify or insure the other party for

20  the other party's negligence or to assume any liability for

21  the other party's negligence.  This does not preclude a party

22  from requiring a nongovernmental entity to provide such

23  indemnification or insurance. The restrictions of this

24  subsection do not prevent a regional water supply authority

25  from indemnifying and assuming the liabilities of its member

26  governments for obligations arising from past acts or

27  omissions at or with property acquired from a member

28  government by the authority and arising from the acts or

29  omissions of the authority in performing activities

30  contemplated by an interlocal agreement. Such indemnification

31  may not be considered to increase or otherwise waive the

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    Florida Senate - 1998                           CS for SB 1442
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  1  limits of liability to third-party claimants established by

  2  this section.

  3         Section 5.  This act shall take effect upon becoming a

  4  law.

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    Florida Senate - 1998                           CS for SB 1442
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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                             SB 1442

  3

  4  The committee substitute further provides that the term
    "party", in addition to not including a member government of a
  5  regional water supply authority, does not include a
    governmental or quasi-judicial board or commission established
  6  by local ordinance or special or general law where the
    governing membership of such board or commission is shared
  7  with, in whole or in part, or appointed by a member government
    of a regional water supply authority in proceedings under s.
  8  120.569, s. 120.57, or s 120.68, to the extent that an
    interlocal agreement under ss. 163.01 and 373.1962 exists in
  9  which the member government has agreed that its substantial
    interests are not affected by the proceedings or that it is to
10  be bound by alternative dispute resolution in lieu of
    participating in the proceedings.
11
    Clarifies that all member governments shall relinquish to the
12  authority their individual rights to develop potable water
    supply sources, except as otherwise provided in the interlocal
13  agreement.

14  Clarifies that a member government may not impose any tax,
    fee, or charge upon the authority in conjunction with the
15  production or supply of water not otherwise provided in the
    interlocal agreement.
16
    Provides that a member governments and any governmental or
17  quasi-judicial board or commission established by local
    ordinance or general or special law where the governing
18  membership of such board or commission is shared, in whole or
    in part, or appointed by a member government shall be limited
19  to the procedures set forth therein regarding actions that
    directly or indirectly restrict or prohibit the use of lands
20  or other activities related to the production or supply of
    water.
21
    Provides that any governmental or quasi-judicial board or
22  commission established by local ordinance or general or
    special law where the governing members of such board or
23  commission is shared, in whole or in part, or appointed by a
    member government, may agree to be bound by the dispute
24  resolution procedures set forth in the interlocal agreement.

25  Nothing in s. 373.1963, F.S., shall be construed to modify the
    rights or responsibilities of the authority or its member
26  governments except as provided in this section. Further,
    nothing in s. 373.1963, F.S., shall be construed to modify the
27  rights of the Southwest Florida Water Management District or
    the Department of Environmental Protection provided pursuant
28  to ch. 373, F.S., or ch. 403, F.S.

29  Section 373.1963, F.S., is amended to provide that the
    provisions of this section supersede any conflicting
30  provisions contained in all other general or special laws or
    provisions thereof as they may apply directly or indirectly to
31  the exclusivity of water supply or withdrawal of water,
    including provisions relating to the environmental effects, if
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  1  any, in conjunction with the production and supply of potable
    water, and the provisions of this section are intended to be a
  2  complete revision of all laws resulted to a regional water
    supply authority created under ss. 373.1962 and 373.1963, F.S.
  3  A similar provision was contained in the original bill as a
    separate section in the bill.
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