Title: Interbasin Transfers - The Florida Experience by Jacob D. Varn
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 Material Information
Title: Interbasin Transfers - The Florida Experience by Jacob D. Varn
Physical Description: Book
Language: English
Publisher: Secretary of Florida Dept. of Environmental Regulation, Tallahassee, Florida
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Interbasin Transfers - The Florida Experience by Jacob D. Varn (JDV Box 54)
General Note: Box 17, Folder 4 ( SWFWMD, Citrus Co. Zoning, Interbasin Transfers - 1980 ), Item 1
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004111
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.

Full Text









Interbasin Transfers The Florida Experience

By Jacob D. Varn1


I. Defining Surface and Groundwater Basins in Florida

The concept of interbasin transfer is clearly dependent

upon a workable definition of a basin to make any sense.

Both surface and groundwater basins must be carefully

defined in order to evaluate the consequences of an inter-

basin transfer. However, as discussed below, defining

surface and groundwater basins in Florida is not an easy

task due to the hydrologic characteristics of the State -

both natural characteristics and those resulting from

various human endeavors.

A. Surface Basins

A surface basin may be defined as a watershed or

drainage area "from which water drains to a single point"

or the area "contributing flow to a given place or a

given point on a stream." Applying this definition to

Florida's rather unique surface hydrological conditions

has proven to be a complex and challenging problem.

Defining drainage areas in regions with low relief is

difficult and much of Florida is very flat. For example,

the Lower Florida Basin shown in Figure 1 is one of the



lSecretary, Florida Department of Environmental
Regulation, Tallahassee, Florida









Figure 1

Major River Basins of the State of Florida


sheeN


I
I
/


2t
IOHO~i


0 e ae as g
SCALG maLl


LOWII FLNIGs& OA(s
23


Source: Department of Environmental Regulation
-2-


4. .
"? *:: ^'P












flattest regions in the world with less than one inch

of fall per mile of run, and precise basin delineations

have been impossible. Similarly, delineation of basin

boundaries in wetland areas which serve as the headwaters

of more than one drainage basin is equally difficult.

One-fourth of Florida is wetlands (Figure 2) and this

excludes lands only seasonally inundated. In eastern

Okeechobee County the headwaters of Taylor Creek are

said to occasionally flow east into the St. Johns River

rather than to the west into the Kissimmee River Basin,

as occurs under normal conditions. The Green Swamp

area in central Florida contains a vast wetlands area

from which four major river systems (Withlacoochee,

Hillsborough, Peace and Alafia) arise, and distinct

flow to these separate basins is hard to discern.

Another consequence of Florida's flat topography is

that otherwise fairly well defined drainage patterns

can undergo short-term changes due to tidal and climatic

conditions. All of Florida's major rivers except the

Kissimmee in south-central Florida, flow directly to

tidewater and tides have a substantial impact on river

flow, particularly in combination with wind patterns

and flow conditions. The St. Johns River, for example,

flows backwards under certain conditions of high tide,

strong northerly winds and low-flow. Patchy distribu-

tion of intense rainfall events, a common occurrence in













Figure 2


Wetlands/Uplands


APAL At HICIN A
RIVER


IdItlH HI C I A
RIVN M ORII IINO)AE


RIVER


LAKE
TOHOPEK-
- ALIGA


LAKE
APOPKA


0 25 50 7S
M1106


Source: Land Development Elenent (Working Papers), Division of State

Planning, Department of Administration, May 1977.


-4-


SSCAMIA
rSI'-IH
mumvr


CHOCt r*AH ICHEE


PFRDIOO
HAVtE


APALACHCOLA
rstA


SI JOHNS
RIVER


LAKE
GEORGE


LAKE
KISSIMa -E


sr oMUMS
ST JOHNS
MARSH


KISSIIA
r- IVER


PEACE -
RIVIE


tAKSI -
ISfOKPOGA


LAKE /
OKEECHOBEE


BIG CYPRESS
SWAMP


rTH /
EvOLMLAOES












Florida, can also impact short-term drainage patterns.

More dramatically, hurricanes can cause substantial

alterations in the pattern of drainage in narrow coastal

basins.

In addition to these natural factors, prehistoric

drainage patterns in Florida have been substantially

altered in many areas for drainage, flood control and

other human purposes. The Central and Southern Florida

Flood Control Project (Figure 3) the largest flood

control project in the world essentially reconstructed

the hydrology of central and southern Florida by way of

canals, levees, dams, stream channelization, lake level

stabilization and other measures. This project not

only effectuated huge interbasin transfers but created a

whole series of basins which never existed under natural

conditions.

Finally, it should be noted that surface water basin

delineations have been made by a number of agencies for

a wide number of management purposes. These verying

delineations are conceptually important to even determine

if an interbasin transfer has or will occur. For example,

contrast Figure 1 which shows the major river basins of

Florida with Figure 4, which delineates water quality

segments for the purposes of water quality planning

undertaken pursuant to PL 92-500.


-5-









Figure 3


Central and Southern Florida Flood Control Project


Ur ANDOU




LOCA IIO
MAP


LEGENO

CII CO







.lll. w.. *



u.aew6 tee 04 "
U40 *A** *4 P .
ut" a


Source: Final Report on the Special Project to prevent the

Eutrophication of Lake Okeechobee, November 1976.


-6-


UI ACl




BUL A
iAfON



IAi UAI
L AUUt HUAI (


\ \\\
\I














Figure 4
Florida Water Quality Segment Map

? I a & 0


I* IAL


3 AA


SCA


34.4 A.


S iSCALA 0 ,, 40
SGML~


3 A


-7-


II I


-- ----
- ------











Segments are subcomponents of a larger drainage area, but

they are aggregated on the basis of similar water quality

or pollution-load characteristics in addition to hydrologic

considerations.

B. Groundwater Basins

While the defining of surface water basins in

Florida presents several difficulties, the delineation

of groundwater basins is even more complex. Groundwater

in Florida occurs in several principal aquifers, shown

in Figure 5, as well as in so-called water table aquifers

throughout the State. The Floridan Aquifer underlies most

of the State (as well as portions of neighboring states to

the north) and is the State's largest and most prolific

aquifer. In central and northern Florida the freshwater

phase of the Floridan connatee seawater occurs in the

lower portions of the Floridan and underlies the entire

State at varying depths) is as much as 2000 feet thick.

To the South and towards the coasts, however, the Floridan

tapers out, becomes less productive or becomes highly

mineralized. In South Florida and other areas of the

State, shallow coastal aquifers such as the Biscayne

Aquifer in Dade, Broward and Palm Beach Counties and the

Sand and Gravel Aquifer in the Panhandle are utilized as

the primary sources of potable water.









Figure 5


Principal Florida Aquifers


T iTJ TFLORIDAN AQUIFER

SHALLOW AQUIFER

| 1BISCAYNE AQUIFER

SAND-AND-GRAVEL AQUIFER

A.UF AREA WHERE PRINCIPAL AQUIFER
IS HIGHLY MINERALIZED


AOUIFER OVERLAP


*
-.


Source: Water Element (Working Papers), Division of State Planning,
Department of Administration, October 1977.
-9-











Initially, it should be pointed out that to

delineate separate groundwater basins would imply that

groundwater and surface water are not connected which,

of course, is rarely true particularly with Florida's

karst-dominated subsurface geology. In many areas of

the State the so-called water table aquifer is only a

few feet below the surface and the connection between

surface water and interstitial and water table ground-

water is rather direct. Yet even the Floridan Aquifer,

the top of which may be a hundred feet or more from the

land surface, is directly connected to surface by way

of hundreds of springs. Florida has over 200 springs

and more first order magnitude springs (a flow of 100 cfs

or greater) than any other state. In fact, these springs

are often the primary sources of water for rivers,

lakes and wetlands.

Although groundwater has been, and continues to be,

intensively studied in Florida, relatively little is

known about groundwater basins. Figure 6 shows some of

the major hydrologic characteristics of the Floridan

Aquifer. The hydrologic divides are boundaries across

which groundwater is known not to flow and major basin

boundaries within these divides can be discerned from

potentiometric surface maps. However, unlike the topo-

graphy of the land surface which determines surface

basins, the potentiometric surface of an aquifer can

change substantially over time as a response to withdrawals.


-10-








Figure 6


Hydrologic Characteristics of the Floridan Aquifer


D7 p M ft 40r0M AcM. 4i IMe 'OW Aqu*** 9W
E aMnP11 Or0se1e*w Ao a -f 1e, fldM


-N-


0 25 5O 75 100
11.Ig ., -
d o


Source: Final Report and Recommendations for the Proposed Green Swamp
Area of Critical State Concern, Division of State Planning,
Department of Administration, June 1974.
--- 1-----











This can be seen, for example, in the Central Florida

phosphate region. Figures 7 and 8 show the changes in

the potentiometric surface for this area for the period

1949-1976. Figure 9 shows the net changes over this

period by lines of equal net change. These changing

basin boundaries clearly make the delineation of basins

(and subsequent interbasin transfers) an arduous, if not

impossible, task.


II. Water Use and Administration in Florida

Interbasin transfers have not been a significant

issue in Florida to date, both because large interbasin

transfers have not been undertaken and the overwhelming

reliance on locally available, abundant groundwater for

water supplies. The extent that interbasin transfers do

become an issue in the future due to continued population

growth, however, will be largely shaped by the State's

administrative system for water management. This will

be discussed in the following section.

A. Water Use in Florida

For the State as a whole, Florida depends heavily

on groundwater for potable water supply purposes. This

can be seen in Figure 10 which shows the source, use and

disposition of freshwater in Florida in 1975. 86% of all

municipal and 95% of all rural domestic water supplies

and, somewhat surprisingly, even 44% of agricultural

irrigation water comes from groundwater. Although


-12-










Figure 7
Potentiometric Surface of the Floridan Aquifer in the Central Florida
Phosphate Mining District












20(ILL e NOU l f3





--40- Potettemetric
Surface roeteur
is I(feet &beve W t)
Of.t sv mg)









Potentiometric Surface of Floridan Aquifer, September
1949 (adapted from USGS data)















S o 30- 404 1 -0 4
1(d 60 70
-110- patentlawatric
surf c: centour
t(fet a v es)














Potentiometric Surface of Floridan Aquifer, May 1969
(adapted from USGS data)

-13-










Figure 8


-5)- Potentio~etric
surface contour
(feet above Mtt)
Cn1 ) h Ceprei ion






Potentiometric Surface of Floridan Aquifer, September
1975 (adapted from USGS data)













0 seas*rot0
1 90







Ar*SOTA 4l c sovo If-1 Ibovr "lfli)







Potentiometrl e Surface of Floridan Aquifer, MaO 1976
(adapted from UtSGS data)

-14-










Figure 9


S ---10- Line of equal et change.
-1 tntrval. 10 feet. minus sig
Indicate$ decline.



CtAALOTTS







Decline of Pocentiometric Surface of Floridan Aquifer
between September 1949 and September 1975 (adapted
from USCS data)


Change in Potentiometric Surface of Floridan Aquifer,
May 1969 to May 1975 (adapted from USGS data)
-15 -
Source: Central Florida Phosphate Industry Areawide Impact Assessment






















SOURCE DISPOSITION


Un







-1
^-*
r-

r-
X)
-j


I






(D











U,

o
g-. I




0
rt>







C3
R'
>-'

























-'


Source, use, and disposition of 6,918 Mgal/d of freshwater and percent of use, 1975.











Figure 10 indicates that surface and groundwater are

roughly equal as sources for freshwater in Florida,

this is somewhat deceiving because of the enormous use

of surface waters (1698 mgd) for thermo-electric cooling

(this excludes saline surface waters).

Florida's water use and water supply problems are

largely tied to population location. Some 75% of the

State's population resides in the coastal zone (Figure 11)

where groundwater supplies are the least abundant or

the most susceptible to saltwater intrusion. Moreover,

this population has exploded since World War II (the

State's population has increased 325% since 1950). As

this population growth has occurred, and pumping has

increased, coastal wellfields have experienced saltwater

intrusion and wellfields have been developed further

and further inland. In addition, large-scale interbasin

transfers have been discussed, particularly for the

Tampa-St. Petersburg area. One proposal involves a

transfer of up to 350 mgd from the Suwannee River to

the Tampa-St. Petersburg area by way of large (72" 144")

pipelines over a distance of 100 miles or more. This

would be the first major surface interbasin transfer,

except for a 2.6 mgd pipeline constructed in the 1940's

by the U.S. Navy, from wellfields south of Miami to

Key West Naval Base 130 miles away. However, whether


-16-










completed or not, a far more critical factor for Florida's

water supply is the administration of groundwater and the

impacts which interbasin transfers may have on it.

B. Water Administration in Florida

The Florida Water Resources Act of 1972

(Chapter 373, Florida Statutes) is the heart of Florida's

water management and administrative system and is the

most significant water resource law ever enacted in Florida.

Prior to 1972, water resource legislation and management in

Florida had been essentially reactive a series of partial

solutions to successive contingencies. The Water Resources

Act was the first successful attempt to develop a

comprehensive planning and regulatory program for all

phases of water management. The Act is largely based

on a Model Water Code developed at the Holland Law Center

at the University of Florida which in turn evolved from

work done at the University of Michigan in the 1950's.

It has received national recognition, and was cited as

a model statute by the National Water Commission in its

report to the President in 1972. The Act has been

amended in substantial ways since its passage, particu-

larly in extending ad valorem taxing authority to all

water management districts in the State. However, the

basic blueprint described in 1972 has proved to be a

reliable and essentially sound structure for comprehensive

and effective water management in Florida.


-17-












Chapter 373, F.S., is divided into six parts:

Part I State Water Resources Plan. Other important

elements in Part I include the establishment of the

saltwater barrier line, minimum flows and levels;

provisions for basin boards; the general powers and

duties of the DER and district governing boards; emergency

water shortage plans; regional water supply authorities;

and a provision for delegation of DER authority

to the districts. Part II deals with the permitting of

consumptive uses of water which may be undertaken at the

discretion of district governing boards. Part III

authorizes the regulation of well construction. Part IV

provides for permitting of the management and storage of

surface waters. Part V discusses finance and taxation

measures, and Part VI contains miscellaneous provisions

including enforcement powers and penalties.

The Act defines the boundaries of the State's five

water management districts which are, for the most part,

drawn along natural hydrologic boundaries (see Figure 12).

Each district is governed by a nine-member board appointed

by the Governor and confirmed by the Senate. The DER is

given general supervisory authority over the districts

primarily to insure statewide consistency in water

management and to provide for water quality and quantity

regulation and management under one agency; however, the

Act emphasizes the importance of regional flexibility


-18-











Figure 11



Population Distribution


Persacola a..

Panamas
City








Population in Thousands


S 5


snoiivdle


Beach


Melbourne


St Petersburg
Tamp.


F Perce


Sarasota


., 9 .we**"
K.'v We'%


-19-


Source: Land Development Element (Working Papers), Division of State Planning,
Department of Administration, May 1977.


I
5


Ss50
S100
@250









y' .~.*



s.. --\~


NORTHWEST FLORIA
WATER MANAGEMENT
DISTRICT


en
0
0



(D
a


:3
(D


0
m




0
m
c





rt
H-




r1


ST JOHNS RIVER
LTER MANAGEME|
DISTRICT


DISTRICT


STATE OF FLORIDA

WATER MANAGEMENT DISTRICTS

FINAL PLAN


EFIfCTIVn JANUARY 1, 177


\0


No |- ", .r .
-r-

______ WATER MANAGEMENT
S" DISTRICT






I'


- DISTRICT 8OUNARES


* ..


SUWANEE RIVER
WATER MANAGEMENT
DISTRICT


M**C"










and the delegating of authority to the districts by DER.

In practice, this course has been followed with DER

concentrating on state-level coordination and water

quality management, and delegating water quantity

authority to the water management districts.

As can be seen in Figure 11, the State's population

is concentrated in the south and southwest regions of the

State and the two water management districts whose

boundaries incorporate these areas have been the most

active in water management in the State. The South

Florida Water Management District (SFWMD), the largest of

the districts, was preceded by the Central and Southern

Florida Flood Control District, established in 1949 as

the state entity responsible for operation and manage-

ment of the Central and Southern Florida Flood Control

Project previously discussed. Additionally, the SFWMD

has initiated a number of major planning efforts and a

comprehensive permitting program for consumptive use and

surface water management. Since 1974 when its regulatory

program began, SFWMD has issued over 3000 permits of all

kinds (except right of way permits). The SFWMD Governing

Board reviews about 40 permits a month. The Southwest

Florida Water Management District (SWFWMD) was created

in 1961 to sponsor the Four River Basins Project which

was designed following the disastrous flooding of

Hurricane Donna in 1960. The Four River Basins Project


-21-











is another major federal flood control and water

management project built by the Army Corps of Engineers

in cooperation with the local sponsor. SWFWMD's

permitting activities began in 1964 (under a predecessor

statute, Chapter 378, F.S.) and in 1974, was brought

into compliance with Chapter 373. To date, SWFWMD has

issued over 5,000 consumptive use permits, 60,000 well

construction permits, and 1500 surface water management

permits. The SWFWMD Governing Board reviews some 120

permits per month.


III. The Regulatory Scheme

As discussed earlier, the Florida Water Resources

Act of 1972 (Chapter 373, Florida Statutes) provides a

comprehensive system for the conservation, management, and

control of Florida's water resources, and expressly

authorizes the Department of Environmental Regulation

(DER) and the water management districts to administer

the regulatory scheme. A key element in Chapter 373 is

the permitting of the consumptive uses of water.

Prior experience with water-related problems enabled

two water management districts and a portion of a third

district to establish consumptive use permitting programs.

To date, the Department has exercised little, if any,

supervisory authority over these permitting programs.

This lack of supervision and review by the Department

probably accounts for the widely varied concepts of water

allocation developed by the districts.


-22-











In those regions where consumptive uses of water

are controlled by a regulatory system, the common law

right to use water must now be legally perfected by

obtaining a permit. In Village of Tequesta v. Jupiter

Inlet Corp., 371 So. 2d 663 (Fla. 1979), the Florida

Supreme Court upheld the permit system as a legitimate

exercise of the state's police power. "Without a permit

Jupiter has no such property right to the use of water

beneath its land...."

Any diversion, withdrawal, impoundment, or other

use of water which decreases the quantity available for

others, qualifies as a consumptive use and may require a

permit. As a guideline for the broad discretion granted

to the Department and the water management districts in

their regulatory decisions, the Legislature provided

statutory standards for issuance of a consumptive use

permit. The proposed use must be a reasonable beneficial

use, must not interfere with any existing use, and must

be consistent with public interest. A reasonable bene-

ficial use is defined as a use of water in such a quantity

as is needed for economic and efficient utilization, for

a purpose and in a manner which is both reasonable and

consistent with public interest.

Intended to protect other water users and the

general public from wasteful consumption of water, the

reasonable beneficial standard represents criteria crucial

in determining the allocation of water. As explained in


-23-













the Commentary to the Model Water Code, the reasonable

beneficial standard is an attempt to combine the best

features of the reasonable use doctrine prevalent in the

eastern United States with the beneficial use rule

adopted by the western states. Although there has been

no judicial determination by Florida courts on what

constitutes a reasonable beneficial use, the terms

"reasonable use" and "beneficial use" have been given

meaning by the courts of many jurisdictions in a

large number of cases.

Historically, Florida has followed the riparian

doctrine which restricts a landowner to a reasonable

use of water in relation to similar rights of other

riparian landowners, or of owners of land overlying the

same source of water. Reasonableness of the use is

determined by litigation, as when one landowner seeks

the court for relief from the harmful effects of his

neighbor's use of water.

In Kock v. Wick, 37 So. 2d 47 (Fla. 1956), and

Cason v. Florida Power Co., 76 So 535 (Fla. 1917), the

court ruled that it would be unreasonable for one landowner

to use water in such a manner as to render a neighbor's

land unsuitable for cultivation. In Cason the defendant

constructed a dam across the Withlacoochee River,

allegedly causing the water table to rise and saturate

the adjoining land. As a result, the plaintiff's crops

were ruined. The court said, "The property rights relative


-24-











to passage of waters that naturally percolate through

the land of one owner to and through the land of

another owner are correlative and each landowner is

restricted to a reasonable use of his property as it

effects the subsurface waters passing to or from the

land of another." The court recognized that conflicts

between competing users could only be determined from

the facts and circumstances of particular cases as

they arise.

In Taylor v. Tampa Coal Co., 46 So. 2d 392 (Fla.

1950), the court resolved a conflict between two

landowners whose property abutted the same lake. Each

had separate uses for the water. The defendant pumped

water from the lake to irrigate his citrus grove; the

plaintiff's employees used the lake for recreational

purposes. By pumping during the dry season the defendant

lowered the water level to such an extent that it made

the lake unsuitable for boating, fishing, and swimming.

"The fact that one riparian owner may choose to use the

water for recreational purposes while another may desire

to divert it for an artificial use, will not give the

latter a superior right to take water to the detriment

of the former...." The court enjoined the defendant

from irrigating his grove during the dry season. Thus,

by adjusting the defendant's use of the water, the court

protected both parties' interests.

These cases illustrate the impossibility of

specifying in advance what constitutes a reasonable


-25-











use. However, the decision is no more difficult

than determining probable cause, reasonable doubt,

"and numerous other problems which in their nature

are not subject to precise definition but which

tribunals exercising judicial functions must determine."

(Gin S. Chow v. City of Santa Barbara, 217 Cal. Rptr.

673, 22 P. 2d 5, 1933)

The RESTATEMENT (SECOND) OF TORTS identified

several factors which the courts consider in determining

reasonableness: the purpose of the respective uses;

suitability of the uses to the water course; the economic

and social value of the use; the extent and the amount

of harm caused along with the practicality of adjusting

the method or quantity of the use; the protection of

existing values of land, investments, and enterprises;

and the burden of requiring the user causing the harm to

bear the loss. By weighing these factors in each case

the court can achieve a fair resolution.

These reasonableness factors closely resemble the

considerations involved in the reasonable beneficial test.

The major difference is in the scope of the standards.

Where reasonableness protects water usage among neigh-

boring landowners, reasonable beneficial use emphasizes

a concern for the entire community. Under the reasonable

use rule, one landowner could use an unlimited amount of

water as long as he caused no injury to other riparians.

By attaching the limitation of economy to the "reasonable

use," the reasonable beneficial standard requires the


-26-











landowner to use only the quantity of water required

for a specific purpose, regardless of the sufficiency

of the water supply.

The beneficial use doctrine evolved in the arid

West where water is particularly scarce. In describing

a beneficial use of water as a test of economic efficiency,

the Commentary to the Model Water Code offered the following

illustration: If a particular crop can be grown

properly with five acre-feet of water per year, it

would be wasteful to use 10 acre-feet, since no in-

crease in value is obtained from the increased use of

water.

When an applicant seeks a permit as a new user

of the water supply, the agency first decides whether the

amount of water requested is the amount needed. The

water management districts assist applicants in

assessing what would be an efficient quantity. If the

water supply is adequate, the only other requirement is

that the purpose be reasonable in relation to other

uses. Of course, with sound planning and a solid

regulatory program there should be an adequate water

supply for all existing and future water users. How-

ever, if the proposed use conflicted with other uses of

the water, all the factors involved in determining

reasonableness would be balanced against each other.

The reasonable beneficial test actually overlaps

with the other two conditions for a permit--the use

must not interfere with existing uses and must be con-


-27-












sistent with public interest. So, discussing compliance

with these two requirements will continue the develop-

ment of the reasonable beneficial standard.

If a new use would adversely affect an existing

one, assuming both uses were otherwise equally reasonable

and beneficial, the prior use would be favored over the

new use, a renewal application would be preferred over

an initial application. The Florida Water Resources

Act attempts to resolve a major problem of the riparian

system by providing some security to existing users of

water. Under riparian law the reasonableness of a particu-

lar use of water is uncertain because it is contingent

on the future unpredictable activities of other riparians

who are free to commence or expand uses despite long non-

use of their rights. Florida's new water code authorizes

the water management districts to give permits for

twenty-year terms, thus providing some assurance to

the permitted. However, one of the districts currently

issues permits for a maximum of five years.

The statutory preference for existing uses should

not be confused with the prior appropriation doctrine

of "first in time, first in right." The western law

of water allocation gives existing uses permanent

priority, preventing a shift to more effective uses

by subsequent landowners. Under the Florida Water

Resources Act, protection of existing uses is only one

factor considered in evaluation of an application. If


-28-











the agency decides the economic and social value of

the proposed use favorably outweighs the harmful

effects on the existing use, it may choose to accommodate

both uses by modifying the permit of the existing one.

As an alternative solution the new user may privately

agree to buy out the existing user. Conflicts of this

sort may be alleviated by making the initial permit

conditional, i.e., the district can subject the permit

to future reductions in water allotment or base the

permit on something other than a guaranteed quantity

of water.

The Legislature chose to limit the duration of the

permits as a compromise between providing secure water

rights and maintaining flexibility in water use planning.

When a region passes beyond the pioneer stage of development,

continued economic growth can take place only through

a shifting of resources into progressively more re-

warding types of enterprise. Expiration of the permit

allows the agency to consider reallocation of the water

to a more beneficial use.

The final standard directing permit decisions

embraces public health and welfare. Chapter 373 does

not define the breadth and scope of public interest. This

concept is foreign to the common law riparian system in

the sense that riparian law focuses upon the water rights

of the private landowners. Regulating water consumption

according to public interest stresses the people's concern

for maximum utilization of the water resources.


-29-











According to W. Hutchins, agricultural economist and

lawyer, "re-examination of water-law doctrine is

being made by legislatures and courts to protect the

public interest. However, equally worthy human minds

may differ completely on the application of this

concept in a particular case. It is such an indefinite

and ofttimes elusive concept that, unless sharply

focused, it can lead to strained interpretation and

inequitable results." Once completed, Florida's

water policy will reflect the public's priorities for

water use, thus aiding the districts in consistent

application of this standard.

The water management districts have generally

interpreted public interest as any use which serves the

common good. Preservation of the water for noncon-

sumptive uses such as recreation, fishing, hunting,

and esthetic appreciation, is clearly consistent with

public interest. Chapter 373 protects the quantity

and quality of the water for such uses by directing

each district to set minimum flows for all surface water-

courses and minimum water levels for lakes and ground-

water. These are regulatory levels at which further

withdrawals would be significantly harmful to the

water resources or ecology of the area. Regulating

withdrawals by this scientific basis also prevents a

harmful reduction in the potentiometric surface of

the aquifer which may cause saltwater intrusion, land


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subsidence, and lowering of lake levels. Since

Florida depends primarily on groundwater for its

freshwater supply, determining what constitutes

safe withdrawals is essential.

Acting in the public interest also includes

close integration of water and land use plans. If

a county planning commission decided to preserve

an area in its natural state, it might not be in

the public interest for the water management district

to award a consumptive use permit for a large well-

field development in the area.

When two proposed uses compete for the same

water supply, public interest becomes the decisive

factor. The use which is the most efficient, has

the least adverse effect on the environment, has

the least impact on other existing uses, or benefits

the greatest number of people may be the one which

best serves the public. Not all beneficial uses

have equal value to a community, yet Chapter 373

provides no hierarchy of uses except the priority

for domestic uses. As long as the water supply is

adequate, the agencies will not be compelled to

discriminate between beneficial uses.

Chapter 373 charges the governing board of

each district to classify permits according to

source, method, and use. This classification does

not establish a priority ranking, but it will aid in


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equitably adjusting water consumption during water

shortages. Whenever the water supply is insufficient

to meet current permit demands, the board may declare

a water shortage and proceed to order a temporary

reduction in total watei use, impose restrictions on

one or more classes of perr.its, or make changes in

the conditions of an individual's permit. Those objecting

to the board's decision will be granted a hearing

within 15 days of the order.

Although the Legislature created an administrative

system of water management to supplant the common law

right to a reasonable use of the water, substantive

water rights will be decided by weighing factors similar

to those considered in the past, with an added emphasis

on nonwasteful use of water. In those districts which

have not implemented a permit system, the reasonable

use rule alone delimits the right to use water.

Although the Tequesta case turned on Jupiter's failure

to seek a permit, the court acknowledged that the right

to use water still depends inherently on the reasonable-

ness of the use. "The property rights relative to waters

that naturally percolate through the land of one owner

to and through the land of another are correlative....

The 'reasonableness' of a given use depends upon many

variables such as: the reasonable demands of other

users; the quantity of water available for use; the

consideration of public policy."


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While the districts have been granted broad

discretion in applying the statutory standards of

Chapter 373, the courts will assure that the agency's

rulemaking accords with legislative intent. Besides

the provision in the Water Resources Act for judicial

review through the Land and Adjudicatory Commission,

the Administrative Procedure Act provides an aggrieved

applicant an arsenal of procedural safeguards to appeal

any decision or the validity of any rule by a water

management district.


IV. Regulating Interbasin Transfers in Florida

The Legislature clearly envisioned the possibility

of a large-scale transfer of water as one means of

accomplishing optimum use of the State's water

resources. Approval of interbasin transfer is apparent

in the statute. Section 373.223 sanctions the trans-

port of water beyond overlying lands, and grants the

governing board authority to regulate such transport,

notwithstanding any local ordinances to the contrary.

Section 373.196 mandates cooperation among municipalities,

water authorities, and districts to meet the water

requirements of rapidly urbanizing areas "in a manner

which will supply adequate and dependable supplies of

water where needed without resulting in adverse effects

upon the areas from whence such water is withdrawn."

Though water is quite abundant in north and

central Florida, the population to the south has con-


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centrated around the urban coastal areas, thus making

localized water shortages inevitable. One obvious

solution is to convey water from an abundant area

to a deficient coastal metropolitan area.

Riparian law generally restricted water use to

the boundaries of the watershed or basin. Modifying

this common law rule in Tilden v. Smith, 113 So. 708 (Fla.

1927), the court permitted the defendant to divert

flood waters because the water was of no substantial

benefit to the other riparians. The Legislature later

approved the judicial modification; it authorized

diversion of waters in excess of the reasonable needs

of riparian and overlying landowners. Chapter 373

removed the excess waters requirement, sanctioning

any transfer of ground or surface water beyond overlying

land, across county boundaries, or outside the water-

shed, if the regulating board determines such a project

is consistent with public interest.

Realizing that an exporting region would fear

letting go of its water, the Legislature expressed a

priority for the needs of the area of origin: "The

water management district...shall not deprive, directly

or indirectly, any county wherein water is withdrawn

of the prior right to the reasonable and beneficial

use of water which is required to supply adequately

the reasonable and beneficial needs of the county or

any of the inhabitants or property owners therein."

The substantiality of this legal protection will be


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examined later.

Florida's experience has been limited to trans-

porting water within the same water management district.

The City of St. Petersburg began experiencing salt-

water intrusion in the 1920s, obliging the City to go

outside its immediate metropolitan area.

When St. Petersburg began planning the develop-

ment of the Cypress Creek wellfield in Pasco County

to transport water to its residents, the developer

of a nearby project contended that pumping such large

quantities of water would adversely affect the area.

In Pinellas County v. Lake Padgett Pines, 333 So. 2d

472 (Fla. 1976), the court found that regulation of

any water withdrawal project fell solely within the

purview of Chapter 373. Discussing the statutory

duty of the water management districts regarding

environmental impact, the court said that evaluation

of a water supply project "should take into account

the entire effects of the project." The court also

noted that a regional agency is in a better position

to resolve water problems between different counties

than the local authorities. "Where a project is

designed to furnish water to a different county from

where the project is located, the home county would

naturally be reluctant to issue required approval."

A few years later Southwest Florida Water Manage-

ment District (SWFWMD) issued a permit for withdrawals


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from the Cypress Creek wellfield, but stipulated

on the face of the permit the possibility of

future reductions. When the permit expires, if

Pasco County shows a reasonable beneficial use for

some of the water which is presently going to

St. Petersburg, SWFWMD can adjust the quantity to

accommodate both interests.

City of St. Petersburg v. SWIWMD, 355 So. 2d

796 (Fla. 1977), involved a direct challenge to a

reduction in water allotment for the City's Cosme-

Odessa and Section 21 wellfields situated in

Hillsborough County. However, St. Petersburg failed

to show a reasonable beneficial use for the additional

water requested and the evidence also indicated that

withdrawal by St. Petersburg beyond the authorized

allotment would adversely affect the surrounding

property. Even before issuance of the permit, the

City had privately agreed with the neighboring land-

owners to compensate those forced to deepen their

wells as a result of the two wellfields.

When discussing interbasin transfers in Florida,

consideration must be given to the prime importance

of groundwater. There is such an enormous quantity

of water stored in the underground aquifers that

almost all proposed transfers will involve the

conveyance of groundwater. As noted earlier ground-

water basin boundaries are at best indefinite.


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Therefore, the major problems to be encountered with

an interbasin transfer will not result from water

physically crossing basin boundaries. The legal

and administrative complexities arise when water crosses

political boundaries. For the regulatory agency the

question is whether a large-scale transfer of water

is a reasonable beneficial use of the water.

Having limited experience with interbasin trans-

fers, Florida officials can only review how the water

management districts might handle a proposed inter-

basin transfer under the new water law. Transporting

water from the Suwannee River has been suggested as

one solution to the future water supply problems of

the Tampa-St. Petersburg area. If such a transfer

were to be arranged, the Suwannee River Water Manage-

ment District (SRWMD) would determine the terms and

conditions because the Suwannee River lies within

its borders.

As a relatively new organization in the process

of compiling data on its water resources, SRWMD has

yet to implement a consumptive use permit program.

In the absence of such a program, common law would

govern the transfer. If the diversion were contested

under common law, the importer would only be required

to show 1) the existence of excess water, and 2) that

transport of the "excess" water would not interfere

with the reasonable use of the other riparians. Faced


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1












with the threat of major diversions from the Suwannee

River, the SRWMD would probably initiate a consumptive

use permit program in order to provide a complete

framework for evaluation, regulation, and management

of the project.

To reach a decision on the requested transfer,

the SRWMD would examine the competing interests of the

two regions within the structure of the reasonable

beneficial standard. The Tampa-St. Petersburg area

needs water to continue its growth. At the same time

the people residing along the Suwannee River would

be apprehensive about committing their present water

resources for fear of jeopardizing their own future

development. The exporters would need assurance

that the water supply is abundant and that their

future water requirements will be protected.

Although uniformly across the country a municipal

use of water is considered reasonable and beneficial,

the cities of Tampa and St. Petersburg are not

necessarily in a favorable position based solely on

the fact that the water involved is earmarked for

public consumption. At the outset, other important

factors must be evaluated.

One of the first considerations would be whether

the Tampa-St. Petersburg area "needs" the water and

whether the Suwannee River provides a "surplus."

Implicit in Chapter 373 and explicit in the various


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water use plans developed by the water management

districts is the understanding that all regions

should utilize local water resources to the greatest

degree before considering a transfer of water from

more distant sources. If a shortage still exists,

the amount of water necessary to supply the Tampa-

St. Petersburg area can be calculated on the basis

of population and per capital usage. How much water

the Tampa-St. Petersburg area requires cannot be

answered without considering the price. How willing

the people are to pay for the interbasin transfer will

reflect the true needs.

By the time the Tampa-St. Petersburg area is

compelled to seriously consider this project, the

SRWMD should have gained a good understanding of its

water resources and the likelihood of surplus.

"Surplus" for the purposes of this paper refers to

the amount beyond that which is needed to satisfy

the projected reasonable beneficial uses of the

exporting region. However, projecting future

water requirements is difficult. The SRWMD must

determine how its area will grow by discerning what

quality of life the people desire. If water is not

transported to the people of Tampa and St. Petersburg,

then those people will be forced to go to the water.

The residents of the Suwannee River region can choose

to continue their rural lifestyle or to allow the


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1












urban sprawl of the Tampa-St. Petersburg area to ex-

pand northward. The Suwannee River area offers

potential for intensive agricultural development

as well as provides suitable sites for power plants.

The residents may choose to fully promote this

potential or to forego some development in order

to send water south. Once the public's priorities

are established, the district can decide whether

the interbasin transfer is consistent with public

interest.

Since need and surplus are relative to cir-

cumstances which change as economic conditions

evolve, limiting the permit to a fixed term of

years provides assurances for both sides. Guaranteeing

the water supply for the next 30 to 50 years will

alleviate concerns of the importing area that the

"imports" might be restricted before the original

investment in the project has been recovered.

Similarly, the Suwannee River region may rest more

easily knowing that the permit terms are flexible.

At the renewal hearing, the initial agreement could

be altered to accommodate any changed circumstances.

A second major consideration would be the

environmental impact of the project. Analysis of

the effect on fish and wildlife, vegetation, recreation,

hydrologic balance, and the river's natural and

scenic beauty, must assure no significant environmental

damage. Of particular concern would be adverse


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estuarine impact during the dry season when a

major diversion could dangerously lower the fresh

water flow into the Gulf. The "minimum flows"

established to preserve the Suwannee for noncon-

sumptive uses, would guide the water management

district in determining the quantity available for

export. A provision could also be included which

would reduce water allotment during record-low

droughts.

Normally, some of the water used within a

watershed or basin returns to recharge the aquifer.

When water is conveyed beyond the overlying land,

none returns to replenish the area. Thus, trans-

porting water to another region will have a greater

effect on the natural system.

The benefits of the project must be worth

the cost. The same acre foot of water in the river

could successively irrigate farmland, generate

electric power, assimilate waste material, float

pleasure craft, support fish life, and provide

scenic amenities. Estimating the value of such

uses is necessary to evaluate the social costs

and benefits of the proposed transfer. Construc-

tion and operation expenditures, environmental

costs, payment to the exporters for the net benefits

of foregone development, and indemnifying the exporters

against the higher price paid to procure future


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water supplies, will all contribute to the price

tag of the interbasin transfer. The Tampa-

St. Petersburg area needs water, but can they

afford to import a portion of the Suwannee River?

Legal protection for both parties will become

meaningful within the context of a concrete proposal.

The SRWMD can determine the amount of water re-

quired to meet its present reasonable beneficial

uses, the amount required for its future growth,

and the limitation on diversions necessary to pro-

tect the Suwannee River. These terms can then be

incorporated into the permit.


V. Conclusion

Although Florida has an abundant supply of

water, the resource is not inexhaustible. Faced

with a rapidly growing population which, in turn,

will continue to increase water demands, the

Legislature enacted the Water Resources Act as

a structure for management of Florida's water re-

sources. The primary vehicle to implement the

state and regional water use plans is the con-

sumptive use permit program. As a new mechanism

to regulate all consumptive uses of water, including

interbasin transfers, the Act provides the reasonable

beneficial standard.

The feeling among Florida officials is that

the reasonable beneficial standard is a viable tool


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for managing the appropriate terms of any inter-

basin transfer. A proposal to transport a large

amount of water from one region of the state to

another will be evaluated under this statutory

test. The exporters must define the quality of

life they desire, they must weigh the tradeoffs

involved, and they may consider various other

factors in determining whether the transfer is

reasonable and beneficial. After the exporters

settle on the terms, the final decision will rest

on what price the importers are willing to pay.


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REFERENCES


1. The American Law Institute, "Tentative Draft
No. 17 Section 850B," Restatement of the law
(Second) Torts, 1971, Dn. 92-118.

2. Hutchins, W. A., "Section 29.3, Public Interest
Concepts." Waters and Water tights, vol. 1,
The Allen Smith Co., Indianapolis, Indiana,
1967, Pp. 169-171.

3. Maloney, F., Ausness, R., and Morris, S.,
"Regulation of Consumptive Uses," A Model
Water Code, University of Florida Press,
Gainesville, Florida, 1972, Pp. 156-195.

4. Maloney, F., "Common law water rights in
Florida and the 1972 Florida Water Resources
Act," Lecture Outlines on Florida Water Law,
The CLE Committee and the Environmental Law
Section, The Florida Bar, 1977, Pp. 6.1-6.17.

5. National Water Commission, "A permit system
for Riparian States" and "Appendix--A Com-
parison of the Florida Water Resources Act
of 1972 with the Commissions' Recommended
Principles," Water Policies for the Future,
Water Information Center, Inc., Port
Washington, N.Y., 1973, Pp. 280-305.

6. Southwest Florida Water Management District,
"Water Management Plan 78."

Suwannee River Water Management District,
"Water Use Plan."


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