“Mega” Trends inFlorida Water Law<br />Florida Section:<br />American Planning Association Conference<br />Thomas F. Mulli...
Trends in Florida Water Law<br /><ul><li>History of Water Management in Florida
Evolution of Florida Water Law
Planning for Water</li></li></ul><li>Water – A Limited Resource<br />7.7 million people in South Florida<br />3 billion ga...
2011 Drought<br />
History of Water Management<br /><ul><li>In 1926 and 1928, two major hurricanes generated storm surges in Lake Okeechobee ...
Florida created the Okeechobee Flood Control District.
Congress authorized the ACOE to construct the Herbert Hoover Dike.
In 1947, two back-to-back hurricanes again flooded the region.
Congress authorized the C&SF Flood Control Project in 1948.
C&SF Flood Control District was the predecessor of the SFWMD</li></li></ul><li>Central and Southern FloridaFlood Control P...
Restoring “Natural” Flow to the Everglades<br />
Comprehensive Everglades Restoration Plan (CERP)<br /><ul><li>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 sto...
Riparian doctrine – use of water based on ownership of property abutting watercourse
Western Common Law
Prior appropriation – continued use without interference from new users, rights could be bought and sold, or passed with l...
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 trust</li></ul>Village of Tequesta v. Jupiter Inlet Corp., 371 So. 2d...
The Act renamed the C&SF Flood Control District to the SFWMD and created the other WMDs</li></li></ul><li>Florida Water La...
Regional Water Supply Plans<br />Revisions to Chapter 373 in the 1990s mandated the preparation of regional water supply p...
Consumptive Use Permits<br /><ul><li>Must satisfy the “three prong test” found in § 373.223(1), F.S.:</li></ul>Reasonable ...
Requirements for a Consumptive Use Permit<br />Reasonable demand – must show a need for the water<br />Water must be curre...
More Balancing –  Supply vs. Demand<br />
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9/9 FRI 9:30 | Emerging Megatrends in Water Law and Policy 1

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Thomas Mullin

Water policy has long been a driving force for Florida’s development. Early history saw efforts to drain the Everglades to attract people. Water has again become a topic of discussion at the
federal, state, and local levels. Today water is discussed in terms of supply, demand, quantity, quality, preservation, restoration, conservation, harvesting, aquifers, well fields, stormwater, and
potable water. As water policy evolves, so does its influence on development and how we live. Hear from state experts on how water law and its policy have evolved from a history of draining the Everglades to a future of hydrating them.

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  • Some economists have estimated that a gallon of drinking water could one day exceed a gallon of gas.
  • 50% of the State was in Extreme drought or worseSignificant amount of the “Exceptional drought” was in the state’s most populated regions.Clear that water, as both a natural resource and a human necessity, was in short supply.
  • Water restrictions
  • Looking at the history of water management in Florida, it is clear that we never imagined the population explosion that occurred in the 20th century.For example, Napoleon Broward, whom the County is named after, was the 19th governor of the state. He ran on a platform of draining the Everglades, especially the glades area south of Lake Okeechobee. Broward knew these areas were fertile grounds for Agriculture.Devastating hurricanes in the late 1920s and again in the late 1940s resulted in a cry for help from the citizens and elected officials of Florida. They petitioned the United States Congress to control the flood waters which frequented South Florida. At the time, it seemed like the right thing to doThis authorization represented the birth of water management in the region. With implementation beginning in the mid 1950’s, and the main features completed by the mid 1960’s, the water management program proved highly beneficial to many human interests – agriculture, water supply, and flood control -- but not to wildlife residing in the Everglades ecosystem.
  • Also, further raised the height of the Hoover Dike, extended the dike completely around Lake Okeechobee, and channelized the Kissimmee River, which feeds into Lake Okeechobee. The primary system includes about 1,000 miles each of levees and canals, 150 water control structures, and 16 major pump stations.
  • C&amp;SF Project was too effective and caused unanticipated, and significant, adverse effects:extreme fluctuations in high and low water levels in Lake Okeechobee have a major adverse impact on the lake’s fish and wildlife habitats;extreme fluctuations between too much and too little freshwater discharge into the Caloosahatchee and St. Lucie estuaries result in detrimental salinity conditions and physical alterations of fish and wildlife habitat;detrimental hydrologic conditions in freshwater wetland habitats cause major adverse impacts on plant and animal communities of the native Everglades; andPoor water quality freshwater flows to Florida and Biscayne bays and Lake Worth Lagoon adversely impact salinity and physically alter fish and wildlife habitat.
  • A Restudy of the C&amp;SF Project by the ACOE and SFWMD began in 1992 and was completed in 1999. The Restudy created recommended comprehensive plan for restoring a more natural flow to the everglades. Known as CERP, the plan included:Surface water reservoirsWater preserve areasRevising how lake okeechobee is managedImprove freshwater flows to Florida bay and estuaries
  • Depending on the side of the Mississippi, the right to use water was treated very differently.Riparian or reasonable use doctrine• based upon ownership of property abutting watercourse• riparian doctrine- owner of property entitled to receive flow across land in an unaltered manner without decrease of quantity or quality• reasonable use rule modified strict riparian doctrine- no unreasonable interference with use of other riparian ownersPrior appropriation– withdrawal of water perfected rights to continued use without interference from new users– water rights could be bought and sold and passed down from generation to generation
  • Blend of the eastern and western common lawsModel Code found that even in 1972, Florida was in the early stages of a water crisis, triggered by a future population explosion.Permit system provides certainty of water availability – use protected for duration of permit.
  • State WMD balances water use and the environment, supply and demand on a regional scale through regional water supply plans.WSPs identify and balanceUsing SFWMD as an example, 4 regions were created.Provide detailed, basin-specific information and recommended actions,Highlight areas where historically used sources of water will not be adequate to meet future demands, and Evaluates several water source options – including water conservation and alternative water supply – to meet those demands.
  • Whether a property owner, homeowner association, golf course or local government, you must first obtain a water use permit before using water.State law provides certain exemptions, and a permit is not needed if you purchase from a water supplier (although permit conditions may still apply to you.)Permitting process is complicated and may take months or even years depending on the complexity or magnitude of the project.
  • All water users required to get a permit or be exempt as domestic use = &quot;existing legal users&quot;• Right to use water is not a &quot;property right”- Right to use water defined by a permit for a finite duration—permits expire- Upon expiration user must re-establish right based on updated conditions for issuance• Conditions for permit issuance designed to protect water resources from harm up to drought condition- Include Minimum Flow and Levels- Include Water Reservations• During drought condition permitted use subject to cutbacks under Water Shortage Plan
  • Florida Water Law does not just require a balance of human versus environmental interests by supply and demand.Supply is limited, and actually decreasing. Meanwhile, demand is increasing.
  • WMD initiatives to Quantify and Legally Protect water for the environmentScience evolved / better understanding of ecosystem water needs Regional water availability rule says that no more water may be withdrawn from the surficial aquifer or lake okeechobee.Restrictions on use include regional water availability rules and water use caution areas.
  • Recovery and prevention plans approved by Governing Board• Additional permit allocations limited to allow recovery of MFL• Used to identify need for severe cutbacks in consumptive uses during droughts (&gt;45%)• Established for Everglades National Park, Water Conservation Areas, Lake Okeechobee, and Caloosahatchee River• Recovery plan for these areas is CERPMFLs can conflict with one another – for exampleLake Okeechobee MFL may at times conflict with Caloosahatchee River MFL. If the Lake level is too low, no discharges are made to the River, thus potentially causing a violation of the Caloosahatchee MFL.
  • When a water reservation rule is in place, volumes and timing of water at specific locations are protected for the natural system ahead of new consumptive uses such as urban water supply wells or development. A water reservation is a legal mechanism to set aside water for the protection of fish and wildlife or public health and safetyA water reservation rule is developed following a series of public workshops, and extensive scientific peer review of a series of drafts. Once a rule is adopted, it is then implemented through the District&apos;s consumptive use permitting and water supply planning program.To date, only 2 water reservations have been approved (Picayune Strand and St. Lucie River/Indian River Lagoon), with 2 more in process (Caloosahatchee Estuary and Kissimmee River basin). None approved under the “public health and safety” provision.
  • Greater than 50% of residential water use is for irrigation, which does not require potable-quality water.Thus, irrigation is an opportunity to greatly reduce per capita demand by switching irrigation to a lower quality source.Therefore, this section falls into both supply and demand side management.Property owners may be required to install expensive infrastructure to pipe reuse water to their property, or install expensive surface water withdrawal facilities so as to irrigate with surface water, rather than higher quality ground water.
  • Population increases, yet supply is decreasing. Only way to account for this is demand side management.
  • Even though we received a significant amount of rain in the recent weeks, we are still under mandatory water restrictions.Temporary cutbacks on water uses imposed based on severity of drought, potential for environmental harm and potential for impacts caused by consumptive use withdrawalsWMD’s Water Shortage Plan dictates the severity of water restriction.incorporates minimum flows and levels and water reservations
  • Those of you familiar with green building design, this is one area where there is significant overlap between existing permit requirements and green building certification categories.
  • EARs – WMDs have a role in review and comments on EARsRequire:Data and AnalysisWater Supply ConcurrencyWater Supply CoordinationWater ConservationClimate Change – how has a local government planned for sea level rise? Some local governments are revising future land use maps to account for anticipated sea level rise.AWS – whether designing a single site, or a large comp plan amendment, alternative water supplies are becoming a greater consideration, and can be a greater cost.
  • Picture is a reservoir in Tampa constructed by Tampa Bay Water for $146 millionIssues – seepage, delivery methods, water quality
  • NNC – effect local government planning for large capital projectsStormwater – expensive stormwater retrofits New design standards for stormwater management systemsFertilizer – local governments passing ordinances – cheaper to prevent water quality at the source Controversial issue in Tallahassee this year. Initially, legislature wants to severaly limit local government’s ability to regulate sale, content and use of fertilizerSeptic – another controversial law looking to control nutrients at the source. Law requires 5 year inspections and maintenance programs.
  • How are you planning for water?
  • 9/9 FRI 9:30 | Emerging Megatrends in Water Law and Policy 1

    1. 1. “Mega” Trends inFlorida Water Law<br />Florida Section:<br />American Planning Association Conference<br />Thomas F. Mullin, Esq., LEED AP<br />TMullin@RSBattorneys.com<br />Telephone: 561.982.7114<br />
    2. 2. Trends in Florida Water Law<br /><ul><li>History of Water Management in Florida
    3. 3. Evolution of Florida Water Law
    4. 4. Planning for Water</li></li></ul><li>Water – A Limited Resource<br />7.7 million people in South Florida<br />3 billion gallons of water used daily<br />Population and demand projected to increase<br />
    5. 5.
    6. 6. 2011 Drought<br />
    7. 7. History of Water Management<br /><ul><li>In 1926 and 1928, two major hurricanes generated storm surges in Lake Okeechobee that killed more than 2,400 people.
    8. 8. Florida created the Okeechobee Flood Control District.
    9. 9. Congress authorized the ACOE to construct the Herbert Hoover Dike.
    10. 10. In 1947, two back-to-back hurricanes again flooded the region.
    11. 11. Congress authorized the C&SF Flood Control Project in 1948.
    12. 12. C&SF Flood Control District was the predecessor of the SFWMD</li></li></ul><li>Central and Southern FloridaFlood Control Project (C&SF)<br />The C&SF Project had three main components.<br />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<br />Designated a large area of northern Everglades, south of Lake Okeechobee, to be managed for agriculture. Named the Everglades Agriculture Area (EAA)<br />Water conservation became the primary designated use for most of the remaining Everglades between the EAA and Everglades National Park<br />
    13. 13. Restoring “Natural” Flow to the Everglades<br />
    14. 14. Comprehensive Everglades Restoration Plan (CERP)<br /><ul><li>Water Resources Development Act of 2000 (WRDA 2000)
    15. 15. 50-year plan to restore the Everglades
    16. 16. 30 years to construct and $12 billion (in 2007 dollars)
    17. 17. Goal is to capture fresh water flows during rainy period that are normally lost to tide while meeting water quality goals
    18. 18. Return surface water flows to a more natural pattern of sheet-flow, providing water quality improvements and increased storage</li></li></ul><li>Evolution of Water Law in Florida<br /><ul><li>Eastern Common Law
    19. 19. Riparian doctrine – use of water based on ownership of property abutting watercourse
    20. 20. Western Common Law
    21. 21. Prior appropriation – continued use without interference from new users, rights could be bought and sold, or passed with land ownership</li></li></ul><li>Florida Water Resources Act<br /><ul><li>Florida Water Resources Act of 1972
    22. 22. Innovative and based upon a “Model Water Code”
    23. 23. Imposed the reasonable-beneficial use rule – no unreasonable interference with use by others
    24. 24. No property interest in water – water held in public trust</li></ul>Village of Tequesta v. Jupiter Inlet Corp., 371 So. 2d 663 (Fla. 1979)<br /><ul><li>An administrative system supplants common law – permits required
    25. 25. The Act renamed the C&SF Flood Control District to the SFWMD and created the other WMDs</li></li></ul><li>Florida Water Law – Balancing Interests<br /><ul><li>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)</li></li></ul><li>Fundamentals of Water Law in Florida<br /><ul><li>Balance human and environmental interests</li></ul>Regulation of consumptive uses to prevent harm to the natural systems. § 373.219, F.S.<br />Imposition of water shortage restrictions on consumptive uses to protect natural systems during droughts. § 373.246, F.S.<br />Establishment of water reservations to protect fish and wildlife. § 373.223(4), F.S.<br />Establishment of minimum flows and levels to prevent significant harm to water resources during droughts § 373.042, F.S.<br />
    26. 26. Regional Water Supply Plans<br />Revisions to Chapter 373 in the 1990s mandated the preparation of regional water supply plans.<br />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<br />20-year planning period<br />“Water Concurrency”<br />
    27. 27. Consumptive Use Permits<br /><ul><li>Must satisfy the “three prong test” found in § 373.223(1), F.S.:</li></ul>Reasonable beneficial use<br />Consistent with the public interest<br />Use will not interfere with presently existing legal users<br />
    28. 28. Requirements for a Consumptive Use Permit<br />Reasonable demand – must show a need for the water<br />Water must be currently available – not otherwise permitted to other user<br />Must not cause harm to water resources, aquifers, wetlands, pollution, saltwater intrusion<br />Reasonable assurances that condition met throughout duration of permit<br />
    29. 29. More Balancing – Supply vs. Demand<br />
    30. 30. Supply Side Tools<br />Supply Side<br />Primary Tools:<br /><ul><li>Minimum flows and levels
    31. 31. Water reservations
    32. 32. Alternative water supply
    33. 33. Restrictions of traditional groundwater sources </li></li></ul><li>Minimum Flows and Levels<br /><ul><li>§ 373.042, F.S., Minimum Flows and Levels</li></ul>(1) The water management districts must establish:<br /><ul><li>(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.</li></ul>Recovery strategy required in district regional water supply plan.<br />Potential for conflict for connecting waterbodies<br />
    34. 34. Water Reservations<br /><ul><li>§ 373.223(4), F.S., </li></ul> Quantify and reserve from use by permit applicants water for the protection of fish and wildlife or for public health and safety:<br /><ul><li>Restricts consumptive use
    35. 35. Does not establish operating regime
    36. 36. Does not guarantee environmental water supply deliveries (MFL does this)
    37. 37. Often tied to a specific CERP project. Until project receives funding, if at all, may not be able to pass reservation</li></li></ul><li>Re-Use and Alternative Water Supplies<br />Proposed water use must be from the lowest quality of water available – including re-use and surface water.<br />If reuse is available to purchase from WWTP, applicant may be required to install a separate reuse water system.<br />Alternative water feasibility analysis - conducted in order to evaluate the capability of a domestic wastewater treatment plant to implement water reuse.<br />
    38. 38. Demand Side Tools<br />Demand Side<br />Water Restrictions<br />Water Conservation<br />Florida-Friendly Landscaping<br />
    39. 39. Water Restrictions<br />WMD may impose such restrictions as may be necessary to protect the water resources from serious harm.<br />WMD Water Shortage Plan equitably divides available water between use classes in times of drought.<br />§ 373.246, F.S.<br />Permit conditions provide advanced notice to users of risk of cutbacks.<br />
    40. 40. Water Conservation<br />For water use permits, WMDs mandate development of water conservation plans.<br />Date and time restrictions of irrigation<br />Rain sensor/moisture detecting automatic shutoffs<br />Replacement/retrofit of interior fixtures – ultra low volume<br />Water conservation-based rate structures<br />Water conservation public education<br />S. 373.227, F.S.; S. 2.0, SFWMD BOR<br />
    41. 41. Florida-Friendly Landscaping<br />Formerly “Xeriscape”<br />“Right Tree – Right Place”<br />Low and high water use hydrozones<br />Includes water quality considerations – pesticide and fertilizer best management practices<br />
    42. 42. Planning for Water – Linking Land and Water Resources<br />Evaluation and Appraisal Reports<br />Coordinate Regional Water Supply Plans and Comprehensive Plans<br />10-Year Water Supply Facilities Work Plan<br />5-Year Capital Improvement Plan<br />Climate Change<br />Focus on alternative water supplies<br />
    43. 43. Planning for Water – The Future<br />Large-scale regional water supplies (CERP)<br /><ul><li>Large, managed reservoirs act as an alternative water supply
    44. 44. C-51 Reservoir </li></ul> – Southeast Florida<br /><ul><li>C-43 Reservoir</li></ul> - Southwest Florida<br />
    45. 45. Planning for Water – Other Concerns<br /><ul><li>EPA Numeric Nutrient Criteria
    46. 46. Statewide Stormwater Rule
    47. 47. Fertilizer Ordinance
    48. 48. Septic Tank Ordinance
    49. 49. Salt Water Intrusion/Sea Level Rise</li></li></ul><li>QUESTIONS???<br />Thomas F. Mullin, Esq., LEED AP<br />(561) 982-7114<br />TMullin@RSBattorneys.com<br />

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