The Reasonable-Beneficial Test:
Maximizing the Water Supply Pie
Before Relinquishing the Last Piece
water allocation was adopted by among competing users, water manage-
the legislature in 1972 following ment districts must define the meaning of
a severe drought.1 The system The phrase the public interest standard found in F.S.
incorporates a unique balance between 373.233.10 This statute governs the prior-
affording priority to those water users "reasonable- ity of uses when competition for a supply
who secured their rights first in time and inadequate for both exists. The authors
declaring a preference for "reasonable" benefiC ial use is a urged establishment of a hierarchy or
uses. The Florida Supreme Court noted t f a criteria for determining which of the con-
that by adopting F.S. Ch. 373, the legisla- peting applicants best serves the public
ture broke from the common law system developed by the interest and, therefore, "wins" the avail-
of judicially determined water rights and able water supply." According to the
created: "a statewide and comprehensive authors of the statute, the burden is on the water man-
administrative system of regulation, re- M model Water agement district governing boards to choose
source protection, and water use among competing users and allocate water
permitting."2 C rew sor to the users) which "best serves the public
Nearly 20 years have passed since this interest."12 Establishing criteria for this
turning point. During this time, thousands Of F.S. Ch. 373 decision-making process is possible and
of water use permits have been issued by would be helpful, but when one examines
the state's five water management dis- F.S. Ch. 373, alternatives to maximize the
tricts, the agencies charged with the available resource in advance of competi-
responsibility of administering the water tion are evident and preferable.
use permitting program.3 Yet a remark- by Carlyn Harper and This article examines Florida's water
ably insignificant number of these permits Elizabeth D. Ross use permitting legislation as the founda-
have ever been challenged in either admin- tion for addressing challenges to the
istrative forums or district court. Moreover, permitting scheme as a result of competi-
the issues that have been adjudicated are west Florida Water Management District tion for limited water. Legal and technical
isolated, even unusual circumstances.4 (SWFWMD) is now looking more closely evolution of the reasonable-beneficial test
It is tempting to conclude the reason for at the cumulative impacts of withdrawals. are analyzed and competition scenarios
this lack of dispute is because the legisla- By examining cumulative drawdowns, the are presented. The issue of establishing a
tively created permitting system is working amount of water available for future allo- hierarchy of users is addressed, and legal
so effectively, but a more likely rationale cation could be limited. Also, a recent and regulatory alternatives to resolving
is that there has not been any motivation hydrogeologic study in eastern Palm Beach conflicts among water users are suggested.
to challenge it. The vast majority of per- County, one of the state's fastest growing
mit applications have been issued for the areas, indicated that virtually all water System of Water Allocation
quantities of water requested. The luxury available for permitting in the northern Florida's water use permitting system is
of available water has clearly played a county area has already been allocated to based, in large part, on application of a
critical role in permit issuance and has existing users.8 Similar study results exist three-part test found in F.S. 373.223
prevented challenges to Florida's system for portions of Lee County, another swiftly (1987). This section provides, in pertinent
of water allocation.5 However, in this time growing community.9 Obviously, in areas part:
of tremendous growth, these circumstances where competition for the remaining avail- (1) To obtain a permit pursuant to the provi-
will continue to change.6 able water supply exists, users will be sions of this chapter, the applicant must establish
The water management districts are sufficiently motivated to protest water that the proposedia use of water: in s a
adopting more stringent permit criteria, management district permitting decisions. 373.019(4); (b) Will not interfere with any
and water available for allocation is be- Regulators need to be prepared to re- presently existing legal use of water; and (c) Is
coming increasingly scarce.7 Using spond to these situations, consistent with the public interest.
sophisticated modeling techniques, the South- Other legal commentators have sug- The phrase "reasonable-beneficial use"
68 THE FLORIDA BAR JOURNAL/MAY 1990
is a term of art developed by the authors whether a proposed use satisfies the rea- necessary to supplement a particular crop
of the Model Water Code, the precursor sonable-beneficial test has been the subject in a predetermined drought event. This
of F.S. Ch. 373.13 The term is designed to of scrutiny. The standard requires water amount is known as the supplemental
combine the best features of eastern and management districts to evaluate each crop requirement. The formula which de-
western common law. The reasonable use proposed use in light of other water users' termines the supplemental crop requirement
limitation of the east considers water uses demands, water needs, and on prevention incorporates crop type, soil type, irriga-
in light of other users of the resource while of uses in excess of actual requirements. tion method, average rainfall amounts and
the beneficial concept of the west prevents The water management districts have long a set drought frequency.23 The South
excessive uses of water in light of a user's struggled over what technical criteria should Florida Water Management District
actual requirements with no consideration be used to determine whether a requested (SFWMD), uses a "two in ten" year
of other users. Flexibility is inherent in the water use meets the reasonable-beneficial drought event to determine the reasonable-
term as hydrologic, technologic, social, or standard. beneficial allocation.24 Each variable in
environmental conditions change.14 The The SWFWMD has had the most expe- the formula provides latitude for adapting
second prong entitles legally existing users rience in testing the validity of such criteria. what is a reasonable-beneficial amount.
(i.e., permitted or exempt) to protection In 1979 and 1988, SWFWMD faced chal- Thus, while the criteria is more sophisti-
from interference when proposed users lenges to its rules defining the reasonable- cated, opportunities for resource
seek rights to water. The natural resource beneficial standard.18 Both of these rules maximization are still left untapped.
itself is also considered a legally existing relied on a district-wide average number Assume a situation where all available
water user entitled to consideration.15 Fi- representing the amount of water avail- water has been permitted to various agri-
nally, uses must be consistent with the able for allocation which the hearing officers cultural projects and more applicants
public interest. This factor envisions fur- concluded were hydrologically unsound propose additional water use. Should the
their protection of the natural resource and methods for determining compliance with definition of reasonable-beneficial uses
other matters related to public policy the statutory criteria. The final orders in change to allow more resource develop-
concerns identified throughout F.S. Ch. both cases stated that, since SWFWMD ment, for instance, by lowering the drought
373, and the state water policy.16 often granted exceptions to these stan- frequency to one in five years? (The more
dards and agreed that it would not be frequent the drought, the more water is
Past Attempts appropriate to deny a permit based on available for use since less water is allo-
to Define Standard these rules alone, the rules gave SWFWMD cated to the protected class of legally
Criteria for resolving competition be- "unbridled discretion" in granting or deny- existing users.) Would this lower level of
tween applicants for a limited supply are ing permits.19 However, using such averages physical certainty in supply due to in-
articulated in F.S. 373.233. The statute as a presumption that the use meets the creased shortages of water be acceptable
provides: reasonable-beneficial test has been held to agricultural users, particularly those
(1) If two or more applications which otherwise acceptable.20 These theories served the who make substantial capital investments,
comply with the provisions of this part are purpose of facilitating permitting in the or would a less frequent drought event be
pending for a quantity of water which is
inadequate for both or all, or which for any early years of the SWFWMD's water use preferred thus locking-up more of the
other reason are in conflict, the governing permitting program when hydrogeologic resource?
board ... shall have the right to approve or information was limited, but the need to Another alternative would be for the
modify the application which best serves the be more sophisticated was apparent.21 definition of reasonable-beneficial to be
public intrinst. () In th event that tewo or altered to mandate specific types of irriga-
more competing applications qualify equally
under the provisions of subsection (1), the Present and tion systems. Thus, low volume irrigation
governing board ... shall give preference to a Potential Capabilities systems would be determined to be rea-
renewal application over an initial application. The water management districts are sonable-beneficial while flood irrigation
A close reading of (1) reveals a crucial now utilizing more specific methods for (approximately 50 percent efficient) would
opportunity for resolution of conflicts determining whether a proposed use is not. This determination could force utili-
among water users. Earl and Ankersen reasonable-beneficial.22 The reasonable- zation of more efficient irrigation systems,
focused on definition of which uses best beneficial standard's ability to evolve as thereby unlocking the resource for further
serve the public interest as the mechanism circumstances change gives Florida's sys- development. But the economic impact
of resolving competition. This proposal tem of water allocation a unique flexibility on farmers now using flood irrigation
overlooks the ability to refer back to the allowing response to all types of changes should also be considered.
three-part test of F.S. 373.223, as a and facilitating maximum resource devel- Public water supply utilities must also
means of maximizing resource develop- opment. As water supplies dwindle in satisfy the reasonable-beneficial test by
ment and minimizing competition. relation to demands, water management meeting a per capital use standard.25 In
Although the Model Water Code provides district's definition of the reasonable- areas of limited water availability, one way
some suggestions as to favored uses, the beneficial standard becomes increasingly to equitably allocate water is to limit all
public interest test is admittedly vague.17 important as the true determining factor utilities to a lower per capital use. Water
This flaw could be easily resolved through for slicing the water pie and addressing the management districts could require water
establishing a prioritization of uses; how- complex issues associated with water allo- utilities to incorporate conservation meas-
ever, application of the reasonable- cation. ures such as reuse, xeriscape,26 or inverted
beneficial test of F.S. 373.223 should be In determining whether a proposed agri- rate structures in order to meet the per
the primary key to resolution and avoid- cultural use is reasonable-beneficial, the capital limit.
ance of many competing use scenarios, water management districts look at the Other mechanisms for defining reason-
The technical criteria for determining amount of water, in inches per year, able-beneficial use require applicants to
THE FLORIDA BAR JOURNAL/MAY 1990 69
use the lowest quality water available for provide information detailing groundwa-
the particular use.27 For example, re- ter characteristics, including highly
cently, an agricultural water use permit productive areas and the location of ground- Oath of Admission
came before the SWFWMD for renewal water contamination, both factors directly
and a proposed increase in allocation to related to development potential.31 To The Florida Bar
expand the farming operation. In its final The commission's report also recom-
order, SWFWMD reduced the requested mends that the water management districts
quantities and required the applicant to devote considerable effort to assessment The general principles which should
utilize a lower quality water-bearing zone of water supply demands and availabil- ever control the lawyer in the prac-
of the aquifer in order to maximize use of ity.32 This planning facet of water use tice of the legal profession are
the potable quality aquifer by nearby city permitting was originally contemplated clearly set forth in the following oath
users.28 Similarly, urban users may re- by The Model Water Code and incorpo- of admission to the Bar, which the
quest an allocation in excess of the rated in F.S. 373.036 and 373.0395.33 lawyer is sworn on admission to
established per capital standard. This com- The state water policy directs the districts obey and for the wilful violation to
only occurs in areas where large, lushly to prepare water management plans in which disbarment may be had.
landscaped yards result in excessive de- accordance with F.S. 373.036.34 How-
mands. In such instances, the per capital ever, these detailed studies including water "I do solemnly swear:
standard could be enforced thus requiring supply availability and demands, remedial
utilities to resort to technology such as proposals and measures such as coordina- "I will support the Constitution of
reverse osmosis to generate the additional tion with local governments are just the United States and the Constitu-
water needed from sources of lower qual- beginning although the SFWMD has com- tion of the State of Florida.
ity. pleted several regional studies.35 These
These scenarios illustrate the ability of plans should serve as the basis of future "I will maintain the respect due
the reasonable-beneficial standard to im- water use permitting decisions and take to courts of justice and judicial offi-
pact available supply by restricting certain full advantage of the available legal tools cers;
uses and freeing the source for others. The to accomplish the goals of the Water
term's technical definition can be used to Resources Act. "I will not counsel or maintain
increase or decrease available supply, re- The SFWMD's planning effort envi- any suit or proceeding which shall
quire different types of irrigation systems, sions a district-wide water use management appear to me to be unjust, nor any
use of lower quality water, and create plan or policy compendium, specific goals defense except such as I believe to
either more or less severe competition for and objectives for each regional section of be honestly debatable under the law
available resources. the SFWMD based upon present and of the land;
Efficient water use can be required of projected supplies and demands, and, fi-
both new and existing water users. Water nally, revision of permitting criteria to "I will employ for the purpose of
use permits periodically expire and are implement the plans. Essentially, policies, maintaining the causes confided to
reevaluated under the same three-part test based on physical realities of specific loca- me such means only as are consis-
as proposed water users.29 During permit tions, will be applied through regulatory tent with truth and honor, and will
renewal, users are required to meet cur- criteria or other means, such as structural never seek to mislead the judge or
rent standards before obtaining a renewed changes, to maximize resource develop- jury by any artifice or false state-
permit. Additional water could be made ment.36 In the SWFWMD, studies are in ment of fact or law;
available by requiring existing permittees progress to determine the amount of water
to retrofit their systems to satisfy new available for use, but are over 18 months "I will maintain the confidence
permit criteria. While development pres- away from completion.37 As an interim and preserve inviolate the secrets of
sures continue to mount, it is clear the measure, SWFWMD has focused on spe- my clients, and will accept no corn-
definition of the reasonable-beneficial stan- cific critical areas where demands are pensation in connection with their
dard could play a significant role in charting exceeding supplies. In these "water use business except from them or with
the course of future growth, caution areas" SWFWMD is, among other their knowledge and approval;
actions, requiring conservation plans from
Planning and Future all permit applicants, requiring wells to "I will abstain from all offensive
Implementation be located to minimize impacts on lakes personality and advance no fact
The recently published Governor's Water and wetlands and may set a maximum cap prejudicial to the honor or reputa-
Resource Commission Report recommends on the quantity of water available for tion of a party or witness, unless re-
closer ties between the water use permit- allocation within each water use caution quired by the justice of the cause
ting process and the comprehensive area.38 with which I am charged;
planning process.30 Similarly, the special The link between the water use and
districts bill passed by the legislature in management planning process and the "I will never reject, from any con-
1989 requires the water management dis- water use permitting criteria of F.S. sideration personal to myself, the
tricts to supply local governments with 373.223 should be a fundamental means cause of the defenseless or op-
detailed water resource information for of maximizing water resource develop- pressed, or delay any person's cause
their use in the comprehensive planning ment and preempting the need to determine, for lucre or malice. So help me God."
and implementation process. For exam- either by hierarchy or criteria, which uses
pie, the water management districts are to are most in the public interest. By identify-
70 THE FLORIDA BAR JOURNAL/MAY 1990
ing areas of fierce water competition tion of a public interest hierarchy. The 20WCRWSA and Pinellas County v.
through the supply and demand aspects flexibility of the reasonable-beneficial stan- SWFWMD, 4 F.A.L.R. 1858 (Fla. ) at-
of the planning process, establishing goals dard allows water management districts 21 Interview with Ken Weber, supra note 6.
S22Interview with Donald Steven Lamb, su-
for resource maximization, and imple- to tailor requirements for different areas pra note 3.
meeting permitting criteria to optimize the and respond to diverse needs and water 23 FLA. ADMIN. CODE Ch. 40D-2 (), and
available supply, the most reasonable- availability. SWFWMD Water Use Permit Information
beneficial use of the resource can be Competition for water is upon us, but Manual, October 1989, at p. C-22-4.
required before a hierarchy determines through an examination of Florida's per- Basis of Review for Water Use Permit Applica-
who should receive the last drop. emitting system, it is apparent that the legal tions within the South Florida Water
battles of the future will turn on which Management District criteria number 126.96.36.199.
Conclusion uses satisfy the reasonable-beneficial re- 25 FLA. ADMIN. CODE Ch. 40E-2.091 () supra
Historically, the F.S. Ch. 373, system quirement. Thus, the water management note 24, at criteria number 188.8.131.52. Utilities are
generally allocated 150 gallons per person per
of water allocation has not faced signifi- districts should focus on determining rea- day for each individual in their service area.
cant challenge. Yet increased competition sonable-beneficial standards that are 26 South Florida Water Management Dis-
for the available water supply is looming appropriate for various types of uses in trict, Xeriscape Plant Guide II. Xeriscape is the
on the horizon. Other commentators have any given location in an effort to maxi- use of drought tolerant plants to conserve
already suggested definition of which uses mize the water that is available for use.- 27 FLA. ADMIN. CODE Ch. 40D-2.301 0.
are more in the public interest as a means I Fla. Laws Ch. 72-299 (1972). 28 City of Sarasota v. Roger Harloff and
of resolving competition situations.39 This 2 Osceola County v. St. Johns River Water SWFWMD, Case No. 89-0574 (Fla. D.O.A.H.).
proposal, while valid, avoids difficult allo- Management District, 504 So.2d at 386 (Fla. 29 FLA. STAT. 373.236 and 373.223 (1987).
1987). GOVERNOR'S WATER RESOURCE COMMISSION
cation issues and overlooks the opportunity 3 Interview with Donald Steven Lamb, di- FINAL REPORT, submitted to Governor Bob
to define the reasonable-beneficial stan- rector, Water Use Division, SFWMD, January Martinez, December 1, 1989 at i and 6.
dard, increase available water supplies, 24, 1990. 31 FLA. STAT. 373.0391 (1989).
decrease demands, and minimize competi- See ti, e.g.,Village of Tequesta v. Jupiter 32 GOVERNOR'S WATER RESOURCE COMMISSION
tion scenarios where one user takes all. and Osceola, 504 So.2d 385 (Fla. 1987). FINAL REPORT, supra note 30.
The reasonable-beneficial standard is 5 Interview with Donald Steven Lamb, su- 13 at 179-8e1.
the heart of the district's determination of pra note 3. 34 FLA. ADMIN. CODE Ch. 17-40.090 ().
what water allocation is appropriate for a 6 Interview with Ken Weber, senior hy- 35 Interview with Sharon Trost, director,
what water allocation is appropriate for a drologist, SWFWMD, January 29, 1990. Water Supply Planning Division, Planning De-
proposed use. By determining what amount 7FLA. ADMIN. CODE Ch. 40D-2 (October 1, partment, SupFWMD, Jply Planning Divisionuary 31,Pl and
of water is reasonable-beneficial for a 1989). apartment, SFWMD, January 31, 1990, and
of water is reasonable-beneficial for a 1989). Dave Moore, director, Resource Projects De-
specified use in a given area through the 8 South Florida Water Management Dis- apartment, SWFWMD, January 29, 1990.
water use management planning process, trict Technical Publication 89-4, Ground Water 36 Interview with Sharon Trost, supra note
the districts can maximize the resource for Resource Assessment of Eastern Palm 35.
all users and avoid or minimize applica- C9 South Florida pater Management Dis- 35with Dave Moore, supra note
trict Technical Publication 90-01, A Three- 38 Interview with Ken Weber, supra note 6.
Dimensional Finite Difference Ground Water 39 Earl and Ankersen, supra note 10.
Flow Model of Lee County, Florida, at p.
Cortroom CartoonS byJudgeSteRushing 120-1.
10 Earl and Ankersen, Slicing the Water
Supply Pie: Competing Applications Under Ae
Florida's Water Resources Act, 61 FLA. B.J.
87-90 (1987) [hereinafter cited as Earl and
Ankersen]. Carlyn Harper practices environmental
II Id. at 90. law with Bogin, Munns & Munns,
12 FLA. STAT. 373.233 (1987). Orlando. She previously was an assis-
__. (13F. MALONEY, R. AUSNESS & J. MORRIS, A tant general counsel with the South-
--- MODEL WATER CODE (Gainesville 1972); see also west Florida Water Management
^ -~ ~Maloney Capehart & Hoofman, Florida' s Rea- district, Brooksville. She received her
sonable Beneficial Use Standard: Have East D r, B s. S r i her
and West Met?, 31 U. FLA. L REV. at 269 (1979) B.A. in music theory from Florida
Sand CONFERENCE COMMITTEE REPORT ON State University and J.D. in 1985 from
HB81187, Journal of the House of Representa- that university's college of law.
tives (May 29, 1984) at 734 and CONFERENCE Elizabeth D. Ross is a regulatory
\\ COMMITTEE REPORT ON HBl 187, Journal of the attorney at the South Florida Water
I Senate (May 28, 1984) at 475. Management District. She received her
S'14 Maloney, Ausness & Morris, supra note B.A. with high honors in 1982 from
13 at 170-1 and Maloney, Capehart, Hoofman, North Carolina State University and
S1su STAT. 373.223(3) (1987). her J.D. in 1985 from the University
16 FLA. ADMIN. CODE Ch. 17-400. of Florida College of Law.
17 Maloney, Ausness & Morris, supra note This column is submitted on behalf
13 at 188. of the Environmental and Land Use
18 Pinellas County v. SWFWMD and Law Section, Terry E. Lewis, chair-
WCRWSA v. SWFWMD, 2 F.A.L.R. 547-A man, and Irene K. Quincey, editor.
(Fla. __), and WCRWSA and Pinellas Co. v.
"I have no further questions SWFWMD and Pasco County and Florida
Of this witness." Cities Mutual, 10 F.A.L.R. 4245 (Fla. .__).
.- .~~______~~___________19 Id.
THE FLORIDA BAR JOURNAL/MAY 1990 71