Title: Phosphate Companies as Water Recyclers, Transporters, and Suppliers
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 Material Information
Title: Phosphate Companies as Water Recyclers, Transporters, and Suppliers
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Florida Phosphate Council Board of Directors Annual Meeting Panel Discussion: "Regional Water Supply" Clearwater, Florida February 27, 1987 By L.M. Buddy Blain
General Note: Box 7, Folder 3 ( Vail Conference 1988 - 1988 ), Item 72
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00000901
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

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FLORIDA PHOSPHATE COUNCIL
BOARD OF DIRECTORS
ANNUAL MEETING
PANEL DISCUSSION: "REGIONAL WATER SUPPLY"
CLEARWATER, FLORIDA
FEBRUARY 27, 1987


PHOSPHATE COMPANIES AS
WATER RECYCLERS, TRANSPORTERS,
AND SUPPLIERS


L. M. Buddy Blain
Blain & Cone, P.A.
Tampa, Florida


A. INTRODUCTION



I am going to discuss the possibility of phosphate companies

becoming water suppliers within this central Gulf Coast region.

The phosphate companies, as large water users which do not

consume 100% of the water they withdraw, might well be in the

best position of any to become water suppliers to water-poor

coastal cities in Florida.



This isn't a far-fetched idea. Phosphate companies have a

good record, in the recent past, for coming up with innovative

ways to cut down on their water withdrawals and to recirculate

and re-use water they use. Southwest Florida Water Management

District may have more accurate figures on your consumption and

re-use record, but we have been told that, on reviewing recent

CUP renewals, it appears that each plant gets 90% of its water

requirements from recirculation and rain catchment areas.






/O./60









When you dewater an area you are saving and using the water

to charge your system. You are using your clay settling areas to

capture water that falls naturally and you're finding ways to use

that catchment water instead of using water from permitted

withdrawals. You are using water left over from one process in

another process, where feasible according to your needs. You

still need your permitted withdrawals for some of your process,

where you have to have high quality water, but overall, you have

reduced your permitted quantities. (1)



That sounds to me like a pretty good record. It sounds like

the phosphate industry responded to indications that large

withdrawals were disfavored, and went to work to find ways to

reduce permitted withdrawals. And I suspect you have found that

it is economically desirable, as well.



Perhaps that kind of quick innovation can be applied to

regional problems in our water distribution system for the

benefit of the phosphate industry and of the water-poor

communities. Water transport is not a common solution in

Florida; but since our real problem is distribution and not the

amount of our water supply, perhaps water transport should be

given a fresh look. Who transports the most water in Florida? A

water supply authority? The Keys Aqueduct Authority? That's not

true you phosphate companies transport more water than anyone

else.





2 /Ofo











We tend to take water for granted. "Florida has more

available groundwater than any other state; there are 7,800

lakes, some 1,700 streams, 13 major coastal rivers, and 7 major

tributary rivers." (2)



The state has an abundant annual average rainfall of 53

inches, varying from area to area, and from season to season.

For permitted water users, the water itself costs nothing,

although there are costs of pumpage and transmission.



B. LEGAL FRAMEWORK



How would the water management districts handle a water

transfer and reuse? Southwest District rules don't directly

address the possibility of a subsequent use and transfer of water

once withdrawn (or captured) and used. The water management

district rules and Florida's water law are geared only to

granting permits to use water on the land adjacent to or

overlying the source of the water unless the water is to be

distributed to its ultimate users by an "authorized" public water

supplier.



The reason for this slant in Florida's water laws and rules

is the common law basis of our water laws. Before 1957, when

Florida began to regulate water use, the state relied on non-






3 /0.'7










statutory common law, which was developed over a period of time

by court rulings in individual cases.


Under the common law in Florida, a neighbor had no cause to

complain about a landowner's use of groundwater so long as that

use was related to reasonable and beneficial use of the land. A

similar rule applied to withdrawals of water from rivers or

lakes: a neighbor had no valid complaint against water use unless

the use of the land was unreasonable. (3) However, the Florida

courts never expressly held that it was unreasonable to withdraw

groundwater or surface water and then transport and use it

elsewhere.


The place of use became an issue with the 1972 Florida Water

Resources Law, which established the current administrative

system that governs water use. The legislature authorized a

consumptive use permitting system, and set forth three conditions

for water use permits:


(1) the proposed use of water must be a reasonable-

beneficial use as defined in the Water Resources

Law;


(2) the proposed use must not interfere with any

presently existing legal use of water; and







4 /0.









(3) the proposed use must be consistent with the

public interest.


The legislature added a criterion for place of use: the districts

may authorize a CUP holder to transport and use ground or surface

water beyond overlying land, across county boundaries, or outside

the watershed from which it is taken if the governing board

determines that such transport and use is consistent with the

public interest. This, then, authorizes an additional public

interest inquiry; in the case of water transport, the districts

must ask not only whether the water use is in the public

interest, they also must ask whether the transport is in the

public interest. Of course, in the case of an "authorized"

supplier, such as a regional water supply authority or a

municipality or county, an affirmative answer to this inquiry is

easily acquired.


Aside from the legislative direction on water transport,

there really is no definite guidance in the district rules. If

you look at the Southwest District rules, you'll find that all

permits are "contingent upon continued ownership, lease, or

control of property rights in underlying, overlying, or adjacent

lands, and are covenants running with such lands". That's Rule

40D-0.381. That rule seems designed to ensure that the person

entitled to withdraw the water owns or has some other control

over the land where the withdrawal takes place. It doesn't






5 /0.l1









address the place of use of water, and it doesn't require that

the one doing the withdrawing and the one doing the using be one

and the same.



What permits would be necessary to implement a plan of water

withdrawal, water use, water transport, and water re-use? The

first water user or the withdrawer would need one CUP. Would

the re-user need a CUP ... or would the second user's use be

covered under the first CUP, since the first user didn't consume

100% of the water withdrawn? Water use permit holders are

required to specify what use the water will be put to: could one

CUP cover several, subsequent uses of water? It may be that our

water use permitting system would need some adjustments to cover

the situation in which one "water allotment" has several,

subsequent uses.



There aren't really any answers to these questions because

water reuse and transport is not part of the current system.

Water transport is on the way, though, and there's been a recent

court case on the subject. The case was a lot more complicated

than what we're talking about, which is the transfer of water

within one district ... but you should know about it anyway.



The case involved the South Brevard Water Authority, which

wanted to withdraw water from a part of Osceola County which is

located within South Florida Water Management District. So, the





6 0o o









Water Authority applied to South Florida for a water use permit

to withdraw the water. This application was never finally

approved or denied.



In the meantime, the Water Authority applied to the St.

Johns River Water Management District for a CUP because the water

would be used within Brevard County, located in the St. Johns

District. Here you have a division between place of withdrawal

and place of use with the necessity of getting 2 separate use

permits from 2 separate districts would 2 permits, for

withdrawal and use, be necessary even if there was only one

district involved? Anyway, the court case came about because

Osceola County, the supplying county, tried to prevent the St.

Johns District from even considering the use permit. Osceola

County claimed that St. Johns had no authority to authorize the

use of water within its boundaries when that water was to be

withdrawn from outside its boundaries.



The Fifth District Court of Appeal which hears cases from

both Brevard and Osceola Counties decided that the St. Johns

District could consider the issue. The court looked at the

legislative direction on water transfers, and looked at the

entire Water Resources Act, and determined that DER, the major

water resources agency, under the Water Resources Act, has

statewide jurisdiction which it may delegate to the 5 water

management districts. DER has a rule of transport or use of






7 /o. 1









water across district boundaries; the rule requires that each

involved district must approve the use or transfer and must look

at certain factors in making its decision. The court found that

this rule was valid under the Water Resources Act, and that,

under this rule, it was appropriate for the districts to consider

transfer and use of water across district boundaries. (4)


The

that the

district

thoughts

transfer


DER rule, which is Rule 17-40.05, lists several factors

districts are supposed to consider in a proposed cross-

water transfer. These factors could stimulate some

and discussion in relation to an intra-district

,also, so I'll list them:


(a) Have comprehensive water conservation and reuse

programs been implemented and enforced in the

area of need?



(b) Have the major costs, benefits, and environmental

impact been adequately determined, including the

impact on both the supplying and receiving areas?



(c) Is the transport an environmentally and economically

acceptable method to supply water for the given

purpose?



(d) Are the present and projected water needs of the






8 /0.2









supplying area reasonably determined, and can

they be satisfied even if the transport takes

place?



(e) Does the transport plan incorporate a regional

approach to water supply and distribution

including, where appropriate, plans for eventual

interconnection of water supply sources? And ...



(f) Is the transport otherwise consistent with the

public interest based upon evidence presented?



C. PRIVATE WATER SUPPLIERS?



The idea of sale and transport of used water by the

phosphate industry sounds radical because it combines several new

or startling concepts:


(1) treatment of water for reuse after its use

by an industrial concern;



(2) transport of water; and



(3) perhaps the most startling, a private

water supplier.







9









The last point, the concept of a private water supplier, is

a point of real controversy. I predict strong, aggressive

opposition from West Coast Regional Water Supply Authority, which

reads its legislative mandate to supply water in the Hillsborough

-Pasco-Pinellas area as an exclusive franchise. During the last

couple of years, a battle over West Coast's claim to an exclusive

franchise was brewing, because of my client's desire to provide

water to Pasco County. However, this issue did not decide the

war, and it was never directly addressed by the water management

district or by the Hearing Officer who decided the other aspects

of the case.



More recently, West Coast opposed an application from a

private utility company to supply water and waste water treatment

to 1,000 homes in northwestern Hillsborough County. Hillsborough

County Commissioner Jan Platt, who also is Chairwoman of West

Coast, was reported in the Tampa Tribune Northwest edition as

saying that "it just doesn't make good sense to allow a private

franchise when water is so scarce".



"Privatization", by which government does allow private

franchises for delivery of government services, is receiving a

lot of attention recently. Our new Governor is reported as

"planning to seriously consider the notion" for certain projects

of DOT and the Department of Business Regulation. Hillsborough

County's $250 million 5-year wastewater treatment capital





10 /0.W









improvements plan is expected to be funded partly by

"privatization". It's a vogue, current concept that can be put

to good use but there can be problems with it, as Mrs. Platt

warned.


There's the problem of quality control which is crucial

when you are dealing with a volatile issue such as water.

Everyone is concerned with water quality and purity. The

stability of the supply would be another concern for the ultimate

user: what happens if the private supplier, the phosphate

company, has excess water needs? From the point of view of the

supplier, too, how does each user ensure confidence that the

necessary amount of water will be available? Another problem

will be determining a fair price and how to finance pipeline

costs.


In 1986, a phosphate industry official estimated that it

would cost $75,000 per mile to construct a 12-inch above ground

pipeline, and $181,000 per mile to construct a 20-inch line. It

would take 6 to 8 months to order material and build the

pipeline, which would have an estimated life of 15 to 20 years.

(5)


D. THE WESTERN EXPERIENCE


Potential answers to the practical problems of quality





11 /









control, supply stability, and cost and financing can be found by

recourse to experts, by study and analysis, and through

negotiation of the supply contract. The Roman aqueducts in

Spain, France & Italy indicate we are not the first to grapple

with water transport problems. Some food for thought also could

be found in the water transport experiences of western states,

which have long used water transfers to solve unequal

distribution problems. Careful analysis of the western

experience, at the onset of serious consideration of a Florida

water transport scheme, could be helpful.



California began its water transfer projects in 1913. The

City of Los Angeles receives water from the Owens Valley, 233

miles away. The City of San Francisco receives water from

storage reservoirs 20 miles away; and Southern California is

supplied water through a 242 mile aqueduct. These projects,

however, take place in the context of the state or a regional

water entity, as the permitted and transporter. (6)



There also have been several "major" interbasin transfers,

which are transfers from one basin, often in one state, to

another basin, often in another state. These transfers can cause

major problems as you can imagine. In 1968, Congress created a

National Water Commission to study the nation's water problems,

including interbasin transfers. In 1973, the Commission came up

with four criteria to be used in evaluating federal water





12 0.









projects such as major interbasin transfers. The criteria

included:


(1) The new project should be the least costly

alternative for providing water.


(2) The new project should produce benefits in

the new uses greater than the sum of the

costs of construction, and, in the case of

interbasin transfers, the net opportunity

costs of foregone uses in the area of origin.


(3) The net productivity of the project should

be compared to alternative investment

opportunities.


(4) The direct beneficiaries should pay the full

costs of the project, including net losses

of the area of origin.


Obviously, analysis of water transfer offers fertile ground

for engineers, economists, and lawyers. The western experience

should be examined for past mistakes and successes, keeping in

mind the differences between the western and eastern water

systems, and the fact that the western experience does not

involve a private supplier of previously used water. (7)





13 / 7











E. POLICY


The State Comprehensive Plan, enacted by the 1985

legislature, provides long-range policies to guide orderly

growth. The legislature will review the Plan every two years.

The Plan is a collection of broad goals and policies to guide

regional planning commissions, local governments, and agencies as

they develop their plans.


The Comprehensive Plan states the following water resource

goal: Florida shall assure the availability of an adequate supply

of water for all competing uses deemed reasonable and beneficial.

This really is a restatement of existing Florida law. The water

resources goal is broken down into 14 policies; some of which are

relevant to this discussion.


The Plan emphasizes water conservation and reuse.

Specifically, conservation, wastewater recycling, and other

appropriate measures are encouraged to assure adequate water
resources to meet agricultural and other beneficial needs. (8)


This is entirely appropriate, and it will benefit all of us

if the current hysteria over growth and the growth management

legislation can change the way we think about water.







14 /0.









Even the public water supply user, who pays per gallon of

water, usually does not think about water the way he thinks about

electricity. We don't conserve water the way we turn off lights

when we leave a room to avoid high electricity bills. Abundant

water allows luxuries such as swimming pools, dishwashers,

washing machines, green lawns, nice gardens, and the benefit of

productive crops through irrigation. All these water uses can be

maintained only if we rethink our concept of water. All users

need to consider water as a valuable resource to be conserved or

reused whenever possible.


Unfortunately, the State Comprehensive Plan discourages

water transport as an alternative. (9) DER's State Water Policy

also discourages transporting water across district boundaries,

except in certain restricted circumstances. In development of

its State Water Use Plan, DER took an "undynamic stance" on this

most "gut-wrenching issue", preferring to rely on its State Water

Policy until the issue of water transport is resolved by the

courts. (10)


The bias against water transport is short-sighted and may be

influenced by the recent bias in state government and

environmental circles against structural solutions to water

problems. But one of our biggest growth management problems is

the fact that the best water supplies are not necessarily located

in the areas of high population. Florida's West Coast and South





15 /0-9









Florida suffer from naturally poor water supplies, quite often

highly mineralized.


We don't settle near wheat fields to have bread, or near

power plants to have electricity. Should we cluster our

population around our water supplies? Around our prime recharge

areas? Or should we cluster our population for ease of

distribution of water transported as efficiently as bread and

electricity?


A second look at water transport might yield some answers to

Florida's water distribution problems. Perhaps the increasing

emphasis on and need for water conservation and re-use will swing

the environmental groups and policy makers toward a more

favorable attitude toward water transport. It is far easier to

take the water to the people, than to take the people to the

water. We gave up the community well and the village water

trough long ago.



















16 /0o.3o









Footnotes


1 Telephone conversation February 17, 1987, with Jim Guida,
Southwest Florida Water Management District.

2 Edward A. Fernald, Donald J. Patton, Ed., Water Resources
Atlas of Florida, FSU 1984.

3 Maloney, Plager, Baldwin, Water Law and Administration,
University of Florida 1968, section 54.2 (c) at 158.

4 Osceola County v. St. Johns River Water Management District,
486 So.2d 616 (5th DCA 1986).

5 Blain & Cone private files, August 29, 1986 memorandum of
May 1986 cost estimates by Don Morrow, Agrico, with Don
Lynch, for above ground pipeline construction and operation.

6 Ronald B. Robie, Russell R. Kletzing, "Area of Origin
Statutes", 15 Idaho Law Review 419 (Summer 1979).

7 Ronald B. Robie, Russell R. Kletzing, "Area of Origin
Statutes", 15 Idaho Law Review 419 (Summer 1979).

8 Chapter 85-57, Laws of Florida.

9 Chapter 85-57, Laws of Florida.

10 Telephone conversation March 6, 1986, with Gil Bergquist,
DER.


SD6PHOS.SPE
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