Title: Environmental and Land Use Law - Drought in Florida: Nature's Response to "Comprehensive" Planning
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 Material Information
Title: Environmental and Land Use Law - Drought in Florida: Nature's Response to "Comprehensive" Planning
Physical Description: Book
Language: English
Publisher: The Florida Bar Journal/April 1983
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Environmental and Land Use Law - Drought in Florida: Nature's Response to "Comprehensive" Planning (JDV Box 43)
General Note: Box 18, Folder 1 ( Water Task Force - 1983 ), Item 14
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004138
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




ENVIRONMENTAL AND LAND USE LAW


Drought in Florida:

Nature's response to "comprehensive" planning
By Raymond A. Rea


Florida is blessed with an abun-
dance of fresh water. Considering
the state as a whole, this resource can
potentially meet projected future de-
mand with ease.' Unfortunately, the
geographic and temporal distribu-
tion of naturally occurring water is
such that water management has
historically played a necessary role in
land development throughout Flori-
da, and within South Florida
specifically.
The drought of 1971, with its con-
cern over water shortages and other
growth-related problems, prompted
the passage of comprehensive en-
vironmental legislation in 1972.' The
intent of the legislation was to pro-
vide an integrated approach to land
planning and water management
within the state. However, in
practice, land planning and water
management decisions have been
formulated in a vacuum. The result is
that problems which were recog-
nized during the climatic drought of
1971 have recurred due to a manage-
ment drought in 1981.3
In concept, land use planning and
water management policy can pro-
ceed along two divergent paths.
Water management decisions can be
tailored to meet future growth and
increased demand whenever and
wherever it occurs. Conversely, the
availability of water can dictate land
use decisions regarding when and
where future growth and demand
will be allowed. The determination
of a desired policy is essential to long
range comprehensive planning. The
proper coordination of land use and
water management decisions accord-
ing to a uniform planning policy is re-
quired to avoid management
droughts in the future.

"Comprehensive" planning from
the water manager's perspective
The Water Resources Act (WRA),
which is based upon the Model
Water Code,4 grants exclusive power
to the water management districts in


the determination of who can utilize
Florida's water resource. As original-
ly envisioned by the drafters, the
WRA was to provide a mechanism
whereby water management deci-
sions were to be premised upon com-
prehensive long range planning, inte-
grated with an understanding of
present and future use of land
resources.
Compliance with state policy was
considered to be of paramount im-
portance to the effectiveness of the
planning process. Thus a state water
use plan was to be formulated under
state control with assistance from the
water management districts. The
state plan would be implemented by
the water use permit process which
mandated that as a condition to ob-
tain a permit the use must be con-
sistent with the provisions of the state
water plan.5 This approach is analo-
gous to the comprehensive land use
planning process in which zoning
laws effectively implement a local
government's comprehensive plan.
In practice, the comprehensive
water use planning process has not
proceeded in the fashion originally
intended. In 1974, the state delegated
its responsibility for formulation of
the plan to the water management
districts.6 Due to the absence of state
direction, the Central and Southern
Florida Flood Control District, now
the South Florida Water Manage-
ment District (SFWMD), and the
Southwest Florida Water Manage-
ment District (SWFWMD) devel-
oped divergent views on how water


should be managed within their re-
spective areas. A brief comparison of
the two plans exemplifies the totally
divergent views taken by these
districts with regard to water
management philosophy.
* SFWMD as purveyor
Like all classical planning
documents, growth issues must be
confronted to prepare adequately
for the future needs of a particular
area. Addressing these issues,
SFWMD posed the question. "Is the
availability of existing and future
water supplies to be used to control
growth or are existing and future
water supplies to be provided to ac-
commodate whatever growth is pro-
jected?"7
Although this question is never
specifically answered within the plan
itself, the basic concepts contained
with it indicate that SFWMD policy
is to follow the latter approach. Thus
the bulk of the document is devoted
to development of structural and
nonstructural mechanisms to supply
water whenever and wherever
demand develops. Since develop-
ment decisions are by implication
abrogated to local government, the
district's role is that of a purveyor of
water, a role sanctioned by the
WRA.' Since the ability to meet de-
mand reflects favorably upon the
planning process utilized, consump-
tive use permits are generally avail-
able from SFWMD with little regard
to the long term availability of the re-
source within an area.'
From a climatological viewpoint,
the drought of 1971 was considered
to have a recurrence interval of from
one hundred to several hundred
years."1 However, data available to
SFWMD in 1972 indicated that, from
a management perspective, droughts
of increasing magnitude can be ex-
pected to return on an eight-to-ten-
year interval." In spite of the water
shortage planning mandate con-
tained in the WRA of 1972 and data
indicating that management droughts


266 THE FLORIDA BAR JOURNAL/APRIL 1983


Al -







can be expected to recur frequently
and with increased severity,
SFWIMD delayed the implementa-
tion of a districtwide water shortage
plan until May 1982.12
* SWFWMD as planner
S\WFW\MD has taken a classical
land planning approach to water
management within the district.
After a brief description of the physi-
cal environment, various social,
economic, and political factors, the
plan specifically delineates a "live
within our means" approach upon
which present and future uses will be
governed.13
The "live within our means" phi-
losophy is based upon the water crop
theory." In effect, once the water
crop of a particular parcel of land is
allocated, further development
cannot take place. Thus, the amount
of water available in a region de-
termines where and how future
development will occur. According-
ly, SW\FWMD's plan delineates and
recommends specific areas which are
suitable for future development and
which can sustain increased demand.
By this approach, SWF'WMD has
assumed the regional growth plan-
ning functions originally envisioned
by the drafters of the Model Water
code.
S\VFWNMD has attempted to im-
plement its comprehensive plan by
utilizing the water crop as the basic
criterion of the permit process. This
approach has been held to be hydro-
logically unsound, arbitrary and ca-
pricious, in excess of SW\FWVMD's
statutory authority, and to effectively
create property rights to water con-
trary to the W\'RA.15 As a result,
SWFWMMD's authority to actively
exercise a meaningful planning func-
tion has been eliminated.

Consequences of permits
without planning
The consumptive use permit pro-
cess is effectively the only tool avail-
able to implement water man-
agement policy objectives. The
'WRA provides standards for the per-
mitting process. To obtain a permit,
the applicant must establish that the
proposed use of water is: a reason-
able beneficial use; will not interfere
with any presently existing legal use
of water; and is consistent with the
public interest.'6 Unfortunately,
considerable problems exist with the
application and interpretation of
these standards. Some commentators


have suggested that the standards
contained within the \WRA are suf-
ficiently vague to subject them
potentially to constitutional attack.'7
Of the three standards delineated,
the standards of "reasonable benefi-
cial use" and "consistent with the
public interest" are essentially redun-
dant. Reasonable beneficial use is de-
fined as ". the use of water in such
quantity as ... is both reasonable and
consistent with the public interest.'""
The terms "reasonable" and "public
interest" are not defined in the X\RA.


Raymond Rea is an attorney and
groundwater geologist, presently
a sole practitioner with offices in
West Palm Beach and Tampa. He
holds a J.D. degree from Nova
University, and M.S. and B.S.
degrees from the University of
South Florida and Wayne State
University. Rea has worked for
government and private con-
sultants on groundwater investi-
gations throughout the western
U.S., Florida, and Canada.
He writes this column on behalf
of the Environmental and Land
Use Law Section, Robert L.
Rhodes, Jr., chairman, and
Richard Hamann, editor.


As such, individual districts have
adopted conflicting interpretations
for these standards and are in essence
legislating their own directives'1 on
an ad hoc basis.
The remaining standard of nonin-
terference with presently existing
legal uses theoretically provides a
strong and meaningful standard for
the protection of vested rights per-
fected under the permit system but
provides little guidance for the use of
permits as a planning tool. In prac-
tice this standard can only work well
in areas where there is a definite and
dependable surplus over existing


uses. however, in Florida, nature sel-
dom gives us such a dependable
supply in areas where demand is in-
creasing at its greatest rate. During a
drought, the permit system may do
little to establish any quantifiable
legal right.
Since consumptive water use per-
mits appear to be granted on a con-
tinuous basis without regard to
availability of or need for the re-
source,20 the water management dis-
tricts may play a significant role in
the creation or increased severity of
water shortages. The emergency
mechanisms"2 of the W'RA designed
to deal with such occurrences
establish no meaningful standards
for the exercise of extremely broad
discretionary power. Recurring and
potentially continuous management
induced drought may in effect make
the permit standards contained
within the WRA and the legally
recognized water rights they establish
meaningless. This appears to be the
case today in South Florida, where
demand outstrips supply on a regular
basis.
The consequences of "business as
usual" cannot be ignored. Interbasin
transfer of water, desalination, and
quasi-permanent weather modifica-
tion programs are receiving in-
creased attention. These remedies
eventually may be required as a
result of today's water management
decisions occurring independently of
the land planning framework or any
statewide policy directive.

Land use water management
dichotomy: potential harmony
within the framework
A number of techniques are avail-
able within the present statutory
framework which may, however,
provide the appropriate nexus be-
tween land use planning and water
management.
The Local Government Compre-
hensive Planning Act (LGCPA) man-
dates that local governments develop
comprehensive plans to control the
use of land.22 These provisions also
mandate that the comprehensive
plan is to include a potable water and
conservation elment.23 Since water
rights are interests in real property
which are perfected only once a per-
mit is issued pursuant to the WRA,24 it
seems logical that water can be sub-
jected to similar forms of police
power regulation by local govern-
ments as are other real property


THE FLORIDA BAR JOURNAL/APRIL 1983 267






ENVIRONMENTAL AND
LAND USE LAW



interests. Thus, it could be argued
that a reasonable incident to the dele-
gated power to control the use of
land under the LGCPA is the regula-
tion of water which affects the use of
land. Preemption should not be a
factor due to provisions within the
WRA which specifically permit local
governments to exercise such con-
trol contingent upon notification to
the Department of Environmental
Regulation." Thus, zoning of water
uses at the local level and according
to LGCPA authority may provide the
mechanism to coordinate both land
use planning and water management
decisions in one governmental body.
The appeal of this approach is that
the sentiment in most rural areas runs
strongly against the transfer of the
right to use water from agricultural
uses to municipalities outside county
boundaries. The ultimate effect of
this approach would be to effectuate
mandatory consideration of local
interests by the water management
districts. The ability of one county


government to limit or prohibit the
use of water within its boundaries to
outside municipalities may effec-
tively force those levels of govern-
ment to consider water as an integral
component of land development as
well. It cannot be ignored that this
mechanism may lead to substantial
conflict. However, conflict arising
from competing interests will by
necessity mandate consideration of
water as it relates to growth on a
regional level.
The regional general welfare re-
lated to water and growth can poten-
tially be injected into the DRI
process established within the
Environmental Land and Water
Management Act (ELWMA).16 Al-
though one court has indicated that
the DRI process is not applicable to
well field withdrawals," the deci-
sion, justified on the basis of statutory
construction, primarily turned on the
specific facts and equities of the case.
In light of the strong policy state-
ment contained in the ELWMA for
coordinated land and water manage-
ment, th'e WRA and ELWMA can be
construed harmoniously by consider-
ing well field development and
water transfers as within the DRI
process.


By subjecting large well field with-
drawals or transfers of water to the
DRI process, the water management
districts would be required to give
considerable weight to regional and
local issues. If conflict develops be-
tween the districts, regional councils,
and a local government which has
zoned water uses, the appeal process
established within the DRI procedure
is compatible with that established in
the WRA.'8
The appeal process to the Florida
Land and Water Adjudicatory Com-
mission (FLWAC) is an excellent
opportunity to inject state policy into
a coordinated land and water man-
agement framework. If conflict
arises between various governmental
agencies, the FLWAC will effective-
ly be the final arbitrator. Recent case
lawl" has suggested that, for all prac-
tical purposes, the FLWAC can be
considered as a statewide planning
board. Thus, the FLWAC could in
one process inject statewide policy
considerations into water manage-
ment decisionmaking. If necessary,
the FLWAC can modify or rescind
district actions to bring them in line
with regional or local concerns.
Conversely, the FLWAC could
modify local water zoning laws
which conflict with the regional
general welfare.
This patchwork approach might
be cumbersome to utilize. However,
without such an approach it would
appear that land use planning and
water management will continue in a
segregated fashion. As such, manage-
ment droughts may recur with more
consistency and severity than in the
past. By default, water manage-
ment, not water itself, may be the
limit to growth in Florida. a

'MALONEY, PLACE & BALDWIN, WATER
LAW AND ADMINISTRATION, THE FLORIDA EX-
PEmENCE 406 (1968).
2The Florida State Comprehensive
Planning Act, FLA. STAT. 23.011-23.0193
(1972); The Local Government Comprehen-
sive Planning Act, FLA. STAT. 163.160-
163.3211 (1972); The Water Resources Act,
FLA. STAT. 373.012-373.6161 (1972); and The
Environmental Land and Water Management
Act, FLA. STAT. 380.012-380.12 (1972).
3Benson & Gardner, THE 1971 DROUGHT IN
SOUTH FLORIDA AND ITS EFFECT ON THE
HYDROLOCIC SYSTEM (U.S.Geological Survey
Water Resources Investigation No. 12-74
(1974)), at 8. A climatic drought is defined in
terms of precipitation deficiencies. A water
management drought characterizes water de-
ficiencies that may result from the failure of
water management practices. This may
include the inadequate operation of storage
facilities which are necessary to bridge normal
or abnormal dry periods and equalize water


WeT





e tr.





268TH t he, actsNL/PRL 98








supply throughout the year. This is exempli-
fied by the fact that discharges of fresh water
to the ocean from four canals in South Florida
averaged 1786 million gallons per day (MGD)
in 1970. Klein, Armbruster, McPherson &
Freiberger, WATER AND THE SOUTH FLORIDA
ENVIRONMENT (U.S. Geological Survey Water
Resources Investigation No. 24-75 (1975)), at
76. This is approximately equal to the total
fresh and saline water consumed throughout
the State of Florida in 1970. Leach, SounRc,
USE, AND DISPOSmnoN OF WATER IN FLORIDA,
1975, (U.S. Geological Survey Water
Resources Investigation No. 78-17 (1978)), at
37.
'MALONEY, AUSNESS & MORRIS, A MODEL
WATER CODE (1972).
sId., at 71-179.
'MALONEY, PLAYER, AUSNESS & CANTER,
FLORIDA WATER LAw 1980, (Water Resources
Research Center, U. of Fla., Pub. #50) (1980),
at 215.
:SFWMD, DAFTr WATER USE AND SUPPLY
DEVELOPMENT PLAN, Vol. II (April, 1977), at 3-
2.
"FLA. STAT. 373.1961 (1981).
'Between 1974 and 1980 a total of 500
billion gallons of water per year were
allocated to public and industrialuses. Permits
for agriculture accounted for an additional 1.3
million acres of irrigated crops. See, SFWMD,
Resource Control Department, ANNUAL
REPORT (Fiscal Year, 1979).
Unpublished data obtained from SFWMD
indicates that in St. Lucie County the district
has allocated 41 percent more water than is
actually required for agriculture. (U.S.
Geological Survey, unpublished data from a


report in preparation on estimated water use in
Florida, 1980). The agricultural regions of St.
Lucie County have experienced water
shortages frequently. In response, SFWMD
has been forced to develop a water shortage
plan for this area. FLA. ADMIN. CODE ch. 40E-21
(Part II), (September 3, 1981).
10Benson & Gardner, THE 1971 Dovsor IN
SOUTH FLORIDA AND rrs EFFECTS ON THE
HYDROLOGIC SYSTEM, (U.S. Geological Survey
Water Resources Investigation No. 12-74
(1974)).
"Central & Southern Florida Flood Control
District, Duoucrr ANALYSIS FOR THE FLORIDA
EAST COAsT, (unpublished report, 1972). The
eight-to-ten-year management drought
indicated in this report is substantiated by
historic data of reservoir capacities in Lake
Okeechobee which were at comparable levels
to 1971 in 1962, 1956, and 1932. Although lake
levels were lower in 1962, 1956, and 1932,
population and water demand were much
greater in 1971. Supra, note 10 at 43.
1FLA. ADMIN. CODE ch. 40E-21 (May 31,
1982).
SOUTHWEST FLORIDA WATER MANAGEMENT
DisTRnCT, WATER MANAGEMENT PLAN (1978) at
27.
"4As originally promulgated, FLA. ADMIN.
CODE, ch. 16J-2.11(3) (October 5, 1974),
issuance of a consumptive use permit would
be denied if the amount of water consump-
tively used would exceed the water crop of
land owned or controlled by the applicant.
The water crop (precipitation less evapotrans-
piration) was assumed to be 365,000 gallons
per year per acre.
'sPinellas County v. Southwest Florida


Water Management Iistrict, Case No. 79-
2325R, and West Coast Regional Water Supply
Authority v. Southwest Florida Water
Management District, Case No. 79-2392R
(Dept. of Admin., April 9, 1980) (Diane D.
Tremor, Hearing Officer with the Div. of
Admin. Hearings).
*FLA. STAT. 373.223 (1981).
1"Wershow, An Update-Legal Implications
of Water Management in Florida's Future, 54
FLA. B.J. 525,529 (1980); Trelease, The Model
Water Code, The Wise Administrator and the
Goddam Bureaucrat, 14 NAT. RES. J 207
(1974). ,But see, Maloney, Capehart &
Iloofman, Florida's "Reafsonable Beneficial
Water Use Standard: Have East and West
Met?, 31 U.FLA.L.REv. 253-83 (1979).
lFLA. STAT. 373.019(4) (1981).
1"Note 17, supra.
"Note 9, supra.
5FLA. STAT. 373.246 (1981).
21d., 163.3161 (1981).
"Id., 163.3177(6)(c)-(d) (1981).
4"Village of Tequesta v. Jupiter Inlet Corp.,
371 So.2d 663, 671 (Fla. 1980).
"FLA. STAT. 373.023 (1981). Section
373.217 (1981), however, expressly preempts
the power to permit the consumptive use of
water.
2"bd., 1380.06 (1981).
"Pinellas County v. Lake Padgett Pines, 333
So.2d 472 (Fla. 2d D.C.A. 1976).
"FLA. STAT. 1380.07 and 373.114 (1981)
both authorize the LWAC to review rules and
orders pursuant to the authority exercised in
each act.
2"Manatee County v. Estech Gen. Chem.
Corp. 402 So.2d 1251 (Fla. 2d D.C.A. 1981).


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