09 fri 0930 emerging megatrends in water law and policy 2

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  • Designed for (1948) projected population of 2 million by 2000Current population in Project area is around 6 millionNo longer effectively meets environmental and water supply needs of regionCurrent (1995) projected population is 12-15 million by 2050
  • MFL’s, 1 in 10 LOC for environment and users, Plan formulation and look at all of these factors, the projects and operations, water shortage triggers were all adjusted to meet a 1 in 10 LOC for
  • It is no small trick to achieve sustainability of water resource in Florida because rainfall is so variable &, especially with surface water sources like Lake Okeechobee. Must first appreciate the nature of resource to understand LOC & then how statutory tools used to implement management strategies in differing resource conditions
  • In addition to consumptive use protectionsRestricted Allocation Area RulesEverglades/Loxahatchee Water BodiesLake Okeechobee Service AreaWater ReservationsCaloosahatchee River in progress Most water resources covered by one of these toolsIn some cases, more than one tool can apply to a water bodyWater Conservation Areas & ENP: MFL and RWARSt Lucie River/Estuary: MFL and ReservationLake Okeechobee: MFL and LOWARNorth Fork of Loxahatchee River: MFL and RWAR
  • Minimum Flows and Levels identify point at which further withdrawals will cause “significant harm” to the water resources of the area.
  • Minimum Flows and Levels identifies the point at which further withdrawals will cause "significant harm" to the water resources or ecology of an areaLake Okeechobee, Everglades, Caloosahatchee Estuary are subject to recovery plans. Each water body for which an MFL is set has specific water resource functions and a recovery period that are defined in a technical support document for that water body. MFLs are set for surface waters and for aquifers. Prevention or recovery strategies are determined on whether the water body is above or below the mfl as required by 373.0361 FS, and these water supply development strategies can be found in the designated water supply plan.Significant Harm means the temporary loss of water resource functions, which result from a change in surface or ground water hydrology, that takes more than two years to recover, but which is considered less severe than serious harm….” (Chapter 40E-8.021(24), F.A.C.)Mention LOK recently transitioned from Prevention to Recovery due to USACE new LOK regulation schedule
  • 373.223(4) provides: “The governing board or the department, by regulation, may reserve from use by permit applicants, water in such locations and quantities, and for such seasons of the year, as in its judgment may be required for the protection of fish and wildlife or the public health and safety. Such reservations shall be subject to periodic review and revision in the light of changed conditions. However, all presently existing legal uses of water shall be protected so long as such use is not contrary to the public interest”Focus- Protection of Fish and WildlifeUnder what circumstance can a reservation be used?Aid in a recovery of prevention strategy for a water resource with an established minimum flow and levelAid in restoration of natural systems which provide fish and wildlife habitatProtect flow or levels that support fish and wildlife before harm occursProtect fish and wildlife within an Outstanding Florida Water, an Aquatic Preserve, a state park, or other publicly owned conservation lands with significant ecological valuePrevent withdrawals in any other circumstance required to protect fish and wildlife
  • As mentioned earlier, the legislature has found protection and restoration of specific natural areas to be in the public interest. The Governing Board can also make the determination of what constitutes the public interest (e.g., CFCA protection of groundwater resources from harm). In addition, the District has utilized the statutory authority to establish MFL recovery strategies as the basis for these types of rulemakings (e.g., MFL recovery strategy for the Everglades and Loxahatchee River). or can be interpreted by the Governing Board based on facts for a given situation where other types of rules may not be adequate
  • After six years of planning, engineering and conceptual level design, with an enormous amount of agency, stakeholder and public involvement, the Comprehensive Plan was completed and delivered to Congress on July 1, 1999.Congress approved the plan as a framework for Everglades restoration and conditionally authorized ten projects
  • MFL’s, 1 in 10 LOC for environment and users, Plan formulation and look at all of these factors, the projects and operations, water shortage triggers were all adjusted to meet a 1 in 10 LOC for


  • 1. APA Florida 2011 Conference
    September 7-10
    Palm Beach
    Water Policy Development in Florida
  • 2. Presentation Overview
    • Historical Water Policy Philosophy
    • 3. How Ecosystem Impacts Led to
    Policy Changes
    • Water Policy in Action
    • 4. Everglades Restoration
    • 5. Kissimmee River Restoration
  • Historical Water Policy Philosophy
  • 6. The Everglades Ecosystem
  • 7. The “Original” Everglades Ecosystem
    • Water connected the system, from top to bottom
    • 8. 9 million acres of wetlands providing a variety of habitat
    • 9. Diverse mosaic of landscapes and seascapes
  • 10. Areas Flooded
    in 1926 & 1928
    Areas Flooded
    in 1947
    Historical ProblemsLeading to Construction of C&SF Project
    • Hurricanes in 1926 and 1928 resulted in failure of the levee around Lake Okeechobee
    • 11. Hurricane in 1947 resulted in wide-spread flooding throughout South Florida
    • 12. State of Florida requested Federal assistance in 1947
    • 13. Congress authorized the C&SF Project in 1948
  • 14. Central & Southern Florida Project
    • 1,800 miles of canals and levees
    • 15. 160 major drainage basins
    • 16. Over 2,000 water control structures
    • 17. 200 major structures
    • 18. 36 pump stations
  • C&SF Project Infrastructure
    One of the world’s largest and most complex water resource management systems
  • 19. Major Features of the C&SF Project
    • River Channelization
    • 20. Herbert Hoover Dike
    • 21. Water Conservation Areas
    • 22. Protective Levees
    • 23. Everglades Agricultural Area
    • 24. Lower East Coast
    • 25. Drainage Network
    • 26. Salinity Structures
  • 27. System Modifications
  • 28. Loss of Everglades to Urban and Agricultural Development
  • 29. How Ecosystem Impacts Led to Policy Change
  • 30. An Ecosystem in Trouble
    • Too much or too little water for the South Florida ecosystem
    • 31. 1.7 billion gallons of water per day is lost to the ocean
    • 32. Declining estuary health
    • 33. Massive reductions in wading bird populations
    • 34. Degradation of water quality
    • 35. Loss of native habitat to invasive exotic vegetation
    • 36. 70 Federally-listed threatened and endangered species
  • 37. Major Principles of Florida Water Law
    Chapter 373, Florida Statute
    • Based new program on blend of eastern and western common law doctrines
    • 38. Certainty & Flexibility
    • 39. Users must obtain a permit to have a right to use water in Florida
    Exclusive water management
    district authority
    No property right to water
    Permits expire
  • 40. District Mission
    Florida Water Resources Act of 1972 broadened the agency’s mission to include:
    • Water supply
    • 41. Water quality protection
    • 42. Environmental management
    • 43. Flood protection
  • Regional Water Supply Planning
    Legislative Intent (ss. 373.016 and 0831, F.S.)
    • Sufficient water be available for all existing and future reasonable-beneficial uses and the natural system
    • 44. Avoid competition for water supply
    Statutory Direction on Plan Formulation:
    • Required when sources not adequate to supply water for existing and future uses and sustain natural systems
    • 45. 20-year planning horizon
    • 46. Planning conducted in public process
    • 47. Required contents
    • 48. Section 373.0361, F.S.
  • Physical Certainty – The Amount of the Allocation – “Just the Right Size Slice”
    1 in 10 Level of Physical Certainty
    • Legislative Direction (Section 373.705, F.S.)
    • 49. Balancing: reasonable allocation, no harm to environment, infrequent competition in drought
    District Implementation
    • Implemented in regional
    water supply plans
    • Consumptive Use Permit
    (CUP) rules (1 in 10)
    • Linked to:
    Water Shortage
    Minimum Flows and Levels (MFLs)
    Projects to develop water supply and water resources
  • 50. Implementation of the 2000 Regional Water Supply Plans
    • Adopted rules to implement plan based on performance measures
    • 51. Consumptive use permit rules
    1 in 10 allocations
    Wetlands, salt water intrusion, reservation, and regional water availability rule
    • Water shortage trigger rules
    • 52. MFLs and recovery plans
  • Overall Legislative Policy
    Manage water resources to ensure sustainability
    Various statutes establish the need to:
    • Protect and/or enhance the natural resource
    • 53. Allow for development of water supply
    Numerous statutory authorizations or “tools” to manage water in varying conditions to achieve sustainability
  • 54. Comprehensive Solution Required
    State and Federal government recognized the need for additional C&SF features
    Additional water storage needed
    Additional stormwater treatment needed to improve water quality
    Improved timing of deliveries needed
    Improve distribution by removal of point sources, levees, and canals
  • 55. C&SF Project Comprehensive Review Study
    Study authorized by Congress in the Water Resources Development Act (WRDA) of 1992
    Study was initiated in June 1993
    Purpose of Study was to reexamine the C&SF Project to:
    • Restore South Florida ecosystem
    • 56. Enhance water supplies
    • 57. Maintain flood control
  • 58. Water Policy in Action
  • 59. Area Specific Rules Protecting Water for the Natural System
    Minimum Flows and Levels
    Restricted Allocation Areas
    Water Reservations
    In addition, general consumptive use rules apply
  • 60. Minimum Flows and Levels – 373.042, 373.0421, F.S.
    Protect water resource from further withdrawals that cause significant harm
    Requirement to consider changes and structural alterations to the watershed when setting MFLs
    Governing Board does not have to set MFL based on historic conditions where:
    • Water bodies do not serve historic hydrologic functions
    • 61. Recovery to historic hydrologic functions is not economically or technically feasible
    Recovery and prevention strategies must provide for water supply to offset any reductions in permitted withdrawals
  • 62. Minimum Flows and Levels Water Bodies
    • MFL Prevention Water Bodies
    • 63. Biscayne aquifer
    • 64. Lower West Coast aquifers
    • 65. North Fork of the St Lucie River
    • 66. Lake Istokpoga
    • 67. Northeastern Florida Bay
    MFL Recovery Water Bodies
    • Lake Okeechobee
    • 68. Everglades
    • 69. Caloosahatchee River
    • 70. Northwest Fork of Loxahatchee River
  • Water Reservation Rules
    Authority: 373.223(4), F.S.
    Set aside water for protection of fish and wildlife or for public health and safety
    No harm standard
    Existing legal uses protected, unless contrary to the public interest
  • 71. Water Reservation Waterbodies
    Rules in place
    Picayune Strand and Fakahatchee Estuary
    North Fork of the St. Lucie River
    Rules in development
    Kissimmee Basin Chain of Lakes and River
    Caloosahatchee Estuary
  • 72. What Does a Reservation Do?
    Prevents new uses from accessing reserved water
    Existing legal uses that are not contrary to the public interest are protected
  • 73. What a Reservation Doesn’t Do
    Establish an operating regime by rule
    Drought proof the natural system
    Ensure the fish and wildlife goals are achieved
  • 74. Restricted Allocation Area Rules
    Identifies specific geographic areas and/or canal conveyance systems from which allocations are restricted
    Criteria for Permit Issuance - 373.223(1), F.S.
    • Reasonable-beneficial - "economic and efficient utilization"
    • 75. Consistent with the public interest
  • Restricted Allocation Areas
    Everglades & Loxahatchee River watershed
    Lower East Coast Service Area
    Lake Okeechobee Service Area
    Central Florida Coordination Area
    C-23,C-24 & C25 Canal system
    Lake Istokpoga /Indian Prairie Canal
  • 76. Summary of Tool Selection
    Selection of tool (MFL, Reservation, RAA) dependent on:
    • Whether resource has existing protection
    • 77. Level of protection sought for the resource
    • 78. Level of scientific information available to support tool
    • 79. Legal mandates for use of specific tool (e.g., CERP)
    • 80. Spatial extent of area to be addressed
  • Everglades Restoration
  • 81. Rescuing an Endangered Ecosystem:The Plan to Restore America’s Everglades
    The Central and Southern Florida Project Comprehensive Review Study (The Restudy)
    July 1999
    Comprehensive Everglades Restoration Plan
    On July 1, 1999, the Secretary of the Army and the State of Florida presented the Plan to Congress
    Comprehensive Everglades Restoration Plan
  • 82. Comprehensive Everglades Restoration Plan
    Includes 68 components to be implemented over 35 years
    Features include:
    Aquifer Storage & Recovery
    Surface Water Storage Reservoirs
    Stormwater Treatment Areas
    Seepage Management
    Removing Barriers to Sheetflow
    Operational Changes
    Reuse Wastewater
  • 83. Plan to “Make Pie Bigger”
    New Projects – “Make Pie Bigger” for both environment and users
    • Alternative water supply projects
    • 84. CERP Projects
  • WRDA-2000Assurance of Project Benefits
    Requirements for reservation or allocationof water for the natural system include:
    • Execution of an agreement betweenPresident and Governor
    • 85. Quantification of water for the natural systemin each project implementation report
    • 86. Completion of rulemaking and verification beforesigning a Project Cooperation Agreement
    Savings Clause
    • No transfer or elimination of existing legal sources
    • 87. No reduction in the level of service for flood protection
  • Intervening Events
    CERP schedules delayed from those in Plan
    • Federal funding
    LORS 2008 – Federal Action reduces Lake storage
    • Lake Okeechobee MFL projected to experience significant harm
    Consumptive use permit rules “cap” Lake uses
    • Permits renewed for 20 year duration
  • Intervening event: LORS 2008 and Physical Level of Certainty
    2000 Plan identified need for “bigger pie”
    LORS 2008 shrinks the size of water supply pie
    Less physical certainty for environment and users
    • 1 in10 to 1 in 6 level of certainty
  • Kissimmee River Restoration
  • 88. Kissimmee River ChannelizationUnintended Consequences
    More than 30,000 acres of wetland habitat lost
    More than 90% reduction in migratory waterfowl
    Dramatic reduction in wading birds
    Significant impact on sport fisheries – replaced by species that can tolerate low oxygen
  • 89. Kissimmee River Channelization(1962 to 1971)
    Transformed the 103- mile natural, meandering river and floodplain
    To a 56-mile straight, narrow and deep canal
  • 90. Kissimmee River Restoration Project
    1994 - 2014
    Acquire 102,000 acres of historical river floodplain
    Nearly complete; $300 million invested
    Remove 2 large water control structures
    1 structure removed
    Backfill 22 miles of canal
    65% complete
    Recarve 9 miles of remnant river channel
    60% complete
    Rehydrate 25,000 acres of river floodplain
    60% complete
  • 91. Kissimmee River RestorationCanal Backfilling Progress
    14 miles of C-38 Canal backfilled
    24 miles of continuous river channel restored
    Approximately 15,000 acres of floodplain habitat restored
    New River
  • 92. Kissimmee River RestorationResponse: Floodplain Vegetation
  • 93. Kissimmee River RestorationResponse: River Channel Vegetation
  • 94. Questions?