FLORIDA PHOSPHATE COUNCIL
BOARD OF DIRECTORS
PANEL DISCUSSION: "REGIONAL WATER SUPPLY"
FEBRUARY 27, 1987
PHOSPHATE COMPANIES AS
WATER RECYCLERS, TRANSPORTERS,
L. M. Buddy Blain
Blain & Cone, P.A.
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.
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
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
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-
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
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
(2) the proposed use must not interfere with any
presently existing legal use of water; and
(3) the proposed use must be consistent with the
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
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
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,
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
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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
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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)
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
(d) Are the present and projected water needs of the
supplying area reasonably determined, and can
they be satisfied even if the transport takes
(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
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
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
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
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.
D. THE WESTERN EXPERIENCE
Potential answers to the practical problems of quality
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
projects such as major interbasin transfers. The criteria
(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
(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
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.
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
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
Florida suffer from naturally poor water supplies, quite often
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
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.
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,