House Bill 4027er

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  1

  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; prohibiting the adoption of

19         certain actions by the commission unless by a

20         required minimum vote; providing for future

21         termination of the commission pending

22         legislative review of reenactment; providing an

23         effective date.

24

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

26

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

28  Statutes, is amended to read:

29         120.52  Definitions.--As used in this act:

30         (12)  "Party" means:

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  1         (a)  Specifically named persons whose substantial

  2  interests are being determined in the proceeding.

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

  4  constitutional right, provision of statute, or provision of

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

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

  7  affected by proposed agency action, and who makes an

  8  appearance as a party.

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

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

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

12  limited forms of participation in agency proceedings for

13  persons who are not eligible to become parties.

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

15  unit funded and authorized by state statute or county

16  ordinance to represent the interests of the consumers of a

17  county, when the proceeding involves the substantial interests

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

19  board of county commissioners has, by resolution, authorized

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

21  the class of interested persons.  The authorizing resolution

22  shall apply to a specific proceeding and to appeals and

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

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

25  represented.

26

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

28  regional water supply authority or a governmental or

29  quasi-judicial board or commission established by local

30  ordinance or special or general law where the governing

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


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

  2  regional water supply authority in proceedings under s.

  3  120.569, s. 120.57, or s. 120.68, to the extent that an

  4  interlocal agreement under ss. 163.01 and 373.1962 exists in

  5  which the member government has agreed that its substantial

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

  7  be bound by alternative dispute resolution in lieu of

  8  participating in the proceedings. This exclusion applies only

  9  to those particular types of disputes or controversies, if

10  any, identified in an interlocal agreement.

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

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

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

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

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

16         373.1963  Assistance to West Coast Regional Water

17  Supply Authority.--

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

19  encourage and facilitate the implementation of changes in

20  governance recommended by the West Coast Regional Water Supply

21  Authority in its reports report to the Legislature dated

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

23  supplemental report to the President of the Senate and the

24  Speaker of the House of Representatives on the status of

25  implementing its prior recommendations for changes in

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

27  governments may reconstitute the authority's its governance

28  and rename the authority in a manner consistent with its

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

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

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

  2  with this subsection, which substantially provides as follows:

  3         (a)  The authority and its member governments agree

  4  that cooperative efforts are mandatory to meet their water

  5  needs in a manner that will provide adequate and dependable

  6  supplies of water where needed without resulting in adverse

  7  environmental effects upon the areas from which the water is

  8  withdrawn or otherwise produced.

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

10  Constitution and notwithstanding s. 163.01, the interlocal

11  agreement may include the following terms, which are

12  considered approved by the parties without a vote of their

13  electors, upon execution of the interlocal agreement by all

14  member governments and upon satisfaction of all conditions

15  precedent in the interlocal agreement: To the extent provided

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

17  law:

18         1.  All member governments shall relinquish to the

19  authority their individual rights to develop potable water

20  supply sources, except as otherwise provided in the interlocal

21  agreement;

22         2.  The authority shall be the sole and exclusive

23  wholesale potable water supplier for all member governments;

24  and

25         3.  The authority shall have the absolute and

26  unequivocal obligation to meet the wholesale needs of the

27  member governments for potable water.

28         4.  A member government may not restrict or prohibit

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

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

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


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

  2  charge upon the authority in conjunction with the production

  3  or supply of water not otherwise provided for in the

  4  interlocal agreement.

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

  6  II of chapter 159 for financing and refinancing water

  7  treatment, production, or transmission facilities, including,

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

  9  treatment, production, or transmission facilities are

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

11  159.27(5) and serve a paramount public purpose by providing

12  water to citizens of the state.

13         7.  A member government and any governmental or

14  quasi-judicial board or commission established by local

15  ordinance or general or special law where the governing

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

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

18  bound by the interlocal agreement shall be limited to the

19  procedures set forth therein regarding actions that directly

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

21  activities related to the production or supply of water.

22         (c)  The authority shall acquire full or lesser

23  interests in all regionally significant member government

24  wholesale water supply facilities and tangible assets and each

25  member government shall convey such interests in the

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

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

28  wholesale rate to member governments for the wholesale supply

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

30  administrative costs for existing facilities and acquired

31  facilities, authority master water plan facilities, and other


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  1  future projects must be allocated to member governments based

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

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

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

  5  governments shall develop procedures for resolving the

  6  parties' their differences regarding water management district

  7  proposed agency action in the water use permitting process

  8  within the authority. Such procedures should minimize the

  9  potential for litigation and include alternative dispute

10  resolution. Any governmental or quasi-judicial board or

11  commission established by local ordinance or general or

12  special law where the governing members of such board or

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

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

15  resolution procedures set forth in the interlocal agreement.

16  Nothing herein or in said procedures shall affect the rights

17  of participants under chapter 120.

18         (f)  Upon execution of the voluntary interlocal

19  agreement provided for herein, the authority shall jointly

20  develop with the Southwest Florida Water Management District

21  alternative sources of potable water and transmission

22  pipelines to interconnect regionally significant water supply

23  sources and facilities of the authority in amounts sufficient

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

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

26  however, shall preclude the authority and its member

27  governments from developing traditional water sources pursuant

28  to the voluntary interlocal agreement. Development and

29  construction costs for alternative source facilities, which

30  may include a desalination facility and significant regional

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


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  1  authority and the Southwest Florida Water Management District.

  2  Nothing herein shall preclude authority or district cost

  3  sharing with private entities for the construction or

  4  ownership of alternative source facilities. By December 31,

  5  1997, the authority and the Southwest Florida Water Management

  6  District shall:

  7         1.  Enter into a mutually acceptable agreement

  8  detailing the development and implementation of directives

  9  contained in this paragraph; or

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

11  Senate and the Speaker of the House of Representatives a

12  report describing the progress made and impediments

13  encountered in their attempts to implement the water resource

14  development and water supply development directives contained

15  in this paragraph.

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17  Nothing in this section subsection shall be construed to

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

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

20  the Southwest Florida Water Management District or the

21  department pursuant to chapter 373 or chapter 403 and as

22  otherwise set forth by statutes.

23         (g)  Unless otherwise provided in the interlocal

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

25  commissioners consisting of nine voting members, all of whom

26  must be elected officers, as follows:

27         1.  Three members from Hillsborough County who must be

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

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

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

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

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

  3  selected by the City Council of New Port Richey;

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

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

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

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  8  Except as otherwise provided in this section or in the

  9  voluntary interlocal agreement between the member governments,

10  a majority vote shall bind the authority and its member

11  governments in all matters relating to the funding of

12  wholesale water supply, production, delivery, and related

13  activities.

14         (2)  The provisions of this section supersede any

15  conflicting provisions contained in all other general or

16  special laws or provisions thereof as they may apply directly

17  or indirectly to the exclusivity of water supply or withdrawal

18  of water, including provisions relating to the environmental

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

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

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

22  regional water supply authority created under ss. 373.1962 and

23  373.1963.

24         Section 3.  Section 682.02, Florida Statutes, is

25  amended to read:

26         682.02  Arbitration agreements made valid, irrevocable,

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

28  writing to submit to arbitration any controversy existing

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

30  in a written contract a provision for the settlement by

31  arbitration of any controversy thereafter arising between them


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

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

  3  written interlocal agreements under ss. 163.01 and 373.1962 in

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

  5  controversy between them concerning water use permit

  6  applications and other matters, regardless of whether or not

  7  the water management district with jurisdiction over the

  8  subject application is a party to the interlocal agreement or

  9  a participant in the arbitration. Such agreement or provision

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

11  the justiciable character of the controversy; provided that

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

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

14  apply or to any arbitration or award thereunder.

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

16  Statutes, is amended to read:

17         768.28  Waiver of sovereign immunity in tort actions;

18  recovery limits; limitation on attorney fees; statute of

19  limitations; exclusions; indemnification; risk management

20  programs.--

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

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

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

24  contractual relationship with another agency or subdivision of

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

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

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

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

29  from requiring a nongovernmental entity to provide such

30  indemnification or insurance. The restrictions of this

31  subsection do not prevent a regional water supply authority


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  1  from indemnifying and assuming the liabilities of its member

  2  governments for obligations arising from past acts or

  3  omissions at or with property acquired from a member

  4  government by the authority and arising from the acts or

  5  omissions of the authority in performing activities

  6  contemplated by an interlocal agreement. Such indemnification

  7  may not be considered to increase or otherwise waive the

  8  limits of liability to third-party claimants established by

  9  this section.

10         Section 5.  (1)(a)  The Miami River Commission is

11  hereby established as the official coordinating clearinghouse

12  for all public policy and projects related to the Miami River

13  to unite all governmental agencies, businesses, and residents

14  in the area to speak with one voice on river issues, to

15  develop coordinated plans, priorities, programs, projects, and

16  budgets that might substantially improve the river area, and

17  to act as the principal advocate and watchdog to ensure that

18  river projects are funded and implemented in a proper and

19  timely manner.

20         (b)  The commission may seek and receive funding to

21  further its coordinating functions regarding river improvement

22  projects of the commission. Nothing in this act affects or

23  supersedes the regulatory authority of any governmental agency

24  or any local government and any responsibilities of any

25  governmental entity relating to the Miami River shall remain

26  with such respective governmental entity. However, the

27  commission may accept any specifically defined coordinating

28  authority or functions delegated to the commission by any

29  governmental entity, through a memorandum of understanding or

30  other legal instrument. The commission shall use powers of

31  persuasion to achieve its objectives through the process of


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  1  building a consensus work plan and through widespread

  2  publication of regular progress reports.

  3         (2)  The Miami River Commission shall consist of:

  4         (a)  A policy committee comprised of the Governor, the

  5  chair of the Dade delegation, the chair of the governing board

  6  of the South Florida Water Management District, the Miami-Dade

  7  County State Attorney, the Mayor of Miami, the Mayor of

  8  Miami-Dade County, a commissioner of the City of Miami

  9  Commission, a commissioner of the Miami-Dade County

10  Commission, the chair of the Miami River Marine Group, the

11  chair of the Marine Council, the Executive Director of the

12  Downtown Development Authority, and the chair of the Greater

13  Miami Chamber of Commerce; two neighborhood representatives,

14  selected from the Spring Garden Neighborhood Association, the

15  Grove Park Neighborhood Association, and the Miami River

16  Neighborhood Enhancement Corporation, one neighborhood

17  representative to be appointed by the city commission and one

18  neighborhood representative to be appointed by the county

19  commission, each selected from a list of 3 names submitted by

20  each such organization; one representative from an

21  environmental or civic association, appointed by the Governor;

22  and three members-at-large, who shall be persons who have a

23  demonstrated history of involvement on the Miami River through

24  business, residence, or volunteer activity, one appointed by

25  the Governor, one appointed by the city commission, and one

26  appointed by the county commission. All members shall be

27  voting members. The committee shall also include a member of

28  the United States Congressional delegation and the Captain of

29  the Port of Miami as a representative of the United States

30  Coast Guard, as nonvoting, ex officio members.  The policy

31  committee may meet monthly, but shall meet at least quarterly.


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  1         (b)  A managing director who has the responsibility to

  2  implement plans and programs.

  3         (c)  A working group consisting of all governmental

  4  agencies that have jurisdiction in the Miami River area, as

  5  well as representatives from business and civic associations.

  6         (3)  The policy committee shall have the following

  7  powers and duties:

  8         (a)  Consolidate existing plans, programs, and

  9  proposals into a coordinated strategic plan for improvement of

10  the Miami River and surrounding areas, addressing

11  environmental, economic, social, recreational, and aesthetic

12  issues. The committee shall monitor the progress on each

13  element of such plan and shall revise the plan regularly.

14         (b)  Prepare an integrated financial plan using the

15  different jurisdictional agencies available for projected

16  financial resources. The committee shall monitor the progress

17  on each element of such plan and revise the plan regularly.

18         (c)  Provide technical assistance and political support

19  as needed to help implement each element of the strategic and

20  financial plans.

21         (d)  Accept any specifically defined coordinating

22  authority or function delegated to the committee by any level

23  of government through a memorandum of understanding or other

24  legal instrument.

25         (e)  Publicize a semiannual report describing

26  accomplishments of the commission and each member agency, as

27  well as the status of each pending task. The committee shall

28  distribute the report to the City and County Commissions and

29  Mayors, the Governor, chair of the Dade County delegation,

30  stakeholders and the local media.

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  1         (f)  Seek grants from public and private sources and

  2  receive grant funds to provide for the enhancement of its

  3  coordinating functions and activities and administer contracts

  4  that achieve these goals.

  5         (g)  Coordinate a joint planning area agreement between

  6  the Department of Community Affairs, the city, and the county

  7  under the provisions of s. 163.3177(11)(a),(b), and (c),

  8  Florida Statutes.

  9         (h)  Provide a forum for exchange of information and

10  facilitate the resolution of conflicts.

11         (i)  Act as a clearinghouse for public information and

12  conduct public education programs.

13         (j)  Establish the Miami River working group, appoint

14  members to the group, and organize subcommittees, delegate

15  tasks, and seek council from members of the working group as

16  necessary to carry out the powers and duties listed in this

17  subsection.

18         (k)  Elect officers and adopt rules of procedure as

19  necessary to carry out the powers and duties listed above and

20  solicit appointing authorities to name replacements for policy

21  committee members who do not participate on a regular basis.

22         (l)  Hire the managing director, who shall be

23  authorized to represent the commission and to implement all

24  policies, plans, and programs of the commission. The committee

25  shall employ any additional staff necessary to assist the

26  managing director.

27         Section 6.  (1)  No item, motion, directive, or policy

28  position that would impact or in any way diminish levels of

29  currently permitted commercial activity on the Miami River or

30  riverfront properties shall be adopted by the Miami River

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  1  Commission unless passed by a unanimous vote of the appointed

  2  members of the commission then in office.

  3         (2)  No item, motion, directive, or policy position

  4  suggesting, proposing, or otherwise promoting additional

  5  taxes, fees, charges, or any other financial obligation on

  6  owners of riverfront property or shipping companies or

  7  operators shall be adopted by the Miami River Commission

  8  unless passed by a unanimous vote of all appointed members of

  9  the commission then in office.

10         Section 7.  The Miami River Commission shall terminate

11  July 1, 2003, unless the Legislature, in a review of the

12  creation, operation, and accomplishments of the Miami River

13  Commission during the 2003 Regular Session, determines that

14  the commission should be continued and reenacts provisions

15  providing for its continuation.

16         Section 8.  This act shall take effect upon becoming a

17  law.

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