“Mega” Trends inFlorida Water Law

Florida Section:American Planning Association Conference

Thomas F. Mullin, Esq., LEED APTMullin@RSBattorneys.com

Telephone: 561.982.7114

Trends in Florida Water Law

oHistory of Water Management in Florida

oEvolution of Florida Water Law

oPlanning for Water

Water – A Limited Resource

• 7.7 million people in South Florida

• 3 billion gallons of water used daily

• Population and demand projected to increase

2011 Drought

History of Water Management

o In 1926 and 1928, two major hurricanes generated storm surges in Lake Okeechobee that killed more than 2,400 people.

o Florida created the Okeechobee Flood Control District.

o Congress authorized the ACOE to construct the Herbert Hoover Dike.

o In 1947, two back-to-back hurricanes again flooded the region.

o Congress authorized the C&SF Flood Control Project in 1948.

o C&SF Flood Control District was the predecessor of the SFWMD

Central and Southern FloridaFlood Control Project (C&SF)

The C&SF Project had three main components.

1. Established a perimeter levee through the eastern portion of the Everglades, blocking sheet flow so that lands farther east would be protected from direct Everglades flooding

2. Designated a large area of northern Everglades, south of Lake Okeechobee, to be managed for agriculture. Named the Everglades Agriculture Area (EAA)

3. Water conservation became the primary designated use for most of the remaining Everglades between the EAA and Everglades National Park

Restoring “Natural” Flow to the Everglades

Comprehensive Everglades Restoration Plan (CERP)

o Water Resources Development Act of 2000 (WRDA 2000)

• 50-year plan to restore the Everglades

• 30 years to construct and $12 billion (in 2007 dollars)

• Goal is to capture fresh water flows during rainy period that are normally lost to tide while meeting water quality goals

• Return surface water flows to a more natural pattern of sheet-flow, providing water quality improvements and increased storage

Evolution of Water Law in Florida

o Eastern Common Law• Riparian doctrine – use of water

based on ownership of property abutting watercourse

o Western Common Law• Prior appropriation – continued

use without interference from new users, rights could be bought and sold, or passed with land ownership

Florida Water Resources Act

o Florida Water Resources Act of 1972

• Innovative and based upon a “Model Water Code”

• Imposed the reasonable-beneficial use rule – no unreasonable interference with use by others

• No property interest in water – water held in public trustVillage of Tequesta v. Jupiter Inlet Corp., 371 So. 2d 663 (Fla. 1979)

• An administrative system supplants common law – permits required

• The Act renamed the C&SF Flood Control District to the SFWMD and created the other WMDs

Florida Water Law – Balancing Interests

o Sufficient water must be available for all existing and future reasonable-beneficial uses and the natural systems, and that the adverse effects of competition for water supplies be avoided. § 373.705, F.S., (2)(a)

Fundamentals of Water Law in Florida

o Balance human and environmental interests

• Regulation of consumptive uses to prevent harm to the natural systems. § 373.219, F.S.

• Imposition of water shortage restrictions on consumptive uses to protect natural systems during droughts. § 373.246, F.S.

• Establishment of water reservations to protect fish and wildlife. § 373.223(4), F.S.

• Establishment of minimum flows and levels to prevent significant harm to water resources during droughts § 373.042, F.S.

Regional Water Supply Plans

• Revisions to Chapter 373 in the 1990s mandated the preparation of regional water supply plans.

• Required when sources of water are not adequate to meet existing and future reasonable-beneficial uses and sustain the water resources and related natural systems

• 20-year planning period

• “Water Concurrency”

Consumptive Use Permits

o Must satisfy the “three prong test” found in § 373.223(1), F.S.:

• Reasonable beneficial use

• Consistent with the public interest

• Use will not interfere with presently existing legal users

Requirements for a Consumptive Use Permit

• Reasonable demand – must show a need for the water

• Water must be currently available – not otherwise permitted to other user

• Must not cause harm to water resources, aquifers, wetlands, pollution, saltwater intrusion

• Reasonable assurances that condition met throughout duration of permit

More Balancing – Supply vs. Demand

Supply Side Tools

Supply Side

• Primary Tools:

Minimum flows and levels

Water reservations

Alternative water supply

Restrictions of traditional groundwater sources

Minimum Flows and Levels

o § 373.042, F.S., Minimum Flows and Levels

• (1) The water management districts must establish:

(a)Minimum flow for all surface watercourses in the area. The minimum flow for a given watercourse shall be the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area.

• Recovery strategy required in district regional water supply plan.

• Potential for conflict for connecting waterbodies

Water Reservations

o § 373.223(4), F.S.,

Quantify and reserve from use by permit applicants water for the protection of fish and wildlife or for public health and safety:

Restricts consumptive use

Does not establish operating regime

Does not guarantee environmental water supply deliveries (MFL does this)

Often tied to a specific CERP project. Until project receives funding, if at all, may not be able to pass reservation

Re-Use and Alternative Water Supplies

• Proposed water use must be from the lowest quality of water available – including re-use and surface water.

• If reuse is available to purchase from WWTP, applicant may be required to install a separate reuse water system.

• Alternative water feasibility analysis - conducted in order to evaluate the capability of a domestic wastewater treatment plant to implement water reuse.

Demand Side Tools

Demand Side

• Water Restrictions

• Water Conservation

• Florida-Friendly Landscaping

Water Restrictions

• WMD may impose such restrictions as may be necessary to protect the water resources from serious harm.

• WMD Water Shortage Plan equitably divides available water between use classes in times of drought.§ 373.246, F.S.

• Permit conditions provide advanced notice to users of risk of cutbacks.

Water Conservation

For water use permits, WMDs mandate development of water conservation plans.

• Date and time restrictions of irrigation

• Rain sensor/moisture detecting automatic shutoffs

• Replacement/retrofit of interior fixtures – ultra low volume

• Water conservation-based rate structures

• Water conservation public education

S. 373.227, F.S.; S. 2.0, SFWMD BOR

Florida-Friendly Landscaping

•Formerly “Xeriscape”

•“Right Tree – Right Place”

•Low and high water use hydrozones

•Includes water quality considerations – pesticide and fertilizer best management practices

Planning for Water – Linking Land and Water Resources

Evaluation and Appraisal Reports

Coordinate Regional Water Supply Plans and Comprehensive Plans

10-Year Water Supply Facilities Work Plan

5-Year Capital Improvement Plan

Climate Change

Focus on alternative water supplies

Planning for Water – The Future

Large-scale regional water supplies (CERP)

- Large, managed reservoirs act as an alternative water supply

- C-51 Reservoir

– Southeast Florida

- C-43 Reservoir

- Southwest Florida

Planning for Water – Other Concerns

- EPA Numeric Nutrient Criteria

- Statewide Stormwater Rule

- Fertilizer Ordinance

- Septic Tank Ordinance

- Salt Water Intrusion/Sea Level Rise

QUESTIONS???

Thomas F. Mullin, Esq., LEED AP

(561) 982-7114TMullin@RSBattorneys.com