COMPETING APPLICATIONS, INTER-DISTRICT TRANSFERS,
AND OTHER ASPECTS OF COMPETITION FOR CONSUMPTIVE WATER USE
WILLIAM L. EARL
THOMAS T. ANKERSEN
Since the Florida Supreme Court issued its landmark opinion
in Village of Tequesta v. Jupiter Inlet Corporation, 371 So.2d
663 (Fla. 1979), Part II of Chapter 373, Florida Statutes, which
regulates the consumptive use of water, has, until recently,
received little significant judicial or legislative attention.
As Florida moves toward its third decade of experience with a
statutory water allocation scheme, however, Chapter 373 is
increasingly being tested against the demands of water users.
Growing pressures on Florida's water resources are being
translated into political and economic pressure on the regulatory
framework created to allocate water in Florida. How Chapter 373
copes with competition among consumptive users will go a long way
towards shaping Florida's long-term water resource future. If
the 1987 amendment to the statute providing for inter-district
transfers of groundwater is any indication, then Chapter 373 can
be expected to be revisited considerably more in the next decade.
II. COMPETING APPLICATIONS
1. Section 373.219, Florida Statutes, authorizes water
management districts to require permits for the consumptive use
of water within their boundaries. Section 373.223 sets forth the
standards by which such permits may be issued. Pursuant to this
authority, each of the districts has developed rules governing
the issuance of consumptive use permits. See Fla. Admin. Rule
40(a)(2) (Northwest Florida Water Management District); 40(b)(2)
(Suwannee River Water Management District); 40(c)(2) (St. Johns
River Water Management District); 40(d)(2) (Southwest Florida
Water Management District); 40(e)(2) (South Florida Water
2. Chapter 373 also addresses competing applications -
those instances when two otherwise qualified applicants seek
permits for a quantity of water that is inadequate for both or
all, or which may otherwise conflict. 5373.233(1), Fla. Stat.
(1987). In such cases, the statute authorizes the water
management districts to approve or modify the application which
"best serves the public interest." Id. Furthermore, water
management districts must give preference to renewals over
initial applications. S373.233(2), Fla. Stat. (1987).
a. Each of the five water management districts has
adopted rules which either incorporate by reference or directly
follow the language of the statute with respect to competing
applications. See Fla. Admin. Code Rule 40(a)-(d) 2.311. The
South Florida Water Management District incorporates this
language in its permit information manual. See 220.127.116.11.9, Water
Use, Permit Information Manual, Vol. III (June, 1985)
(incorporated by reference at Fla. Admin. Code Rule
3. Neither Chapter 373 nor the districts' implementing
regulations provide any guidance by which to illuminate the
public interest standard of Section 373.233. Furthermore, there
has, as yet, been no appellate consideration of this section.
a. One well publicized administrative hearing has
utilized this section to resolve competing applications. See
West Coast Regional Water Supply Authority v. Gardinier, DOAH
Case No.'s 85-0599 0602 (June 11, 1986) (recommended order).
In Gardinier the hearing officer was required to referee the
competing uses of a large industrial water user and a municipal
water supplier. The hearing officer made no determination
concerning which use was most in the public interest, but instead
accommodated both applications by requiring the municipal
supplier to mitigate any adverse impacts which its withdrawals
may have on the industrial use. Significantly absent was any
express determination as to which use "best served the public
b. The absence of precedent by which to examine the
application of Section 373.233 to competing applications may soon
change. The South Florida Water Management District has
established a rule which causes the expiration of all irrigation
permits on the same date within specifically designated basins.
See Basis of Review, Vol. III at 18.104.22.168. The expiration date
for the densely populated Gold Coast regions afflicted by salt
water intrusion, groundwater contamination, and continued growth
is October 15, 1988. (This date was recently extended for many
of these applications to allow for further study of the
resource.) Depending on the status of the resource at the time
the renewals come due, the District can expect considerable
competition for renewal of these applications. Such competition
may test the adequacy of Section 373.233, Florida Statutes.
4. Although Chapter 373 does not expressly establish any
standards for determining when a particular application is "most
in the public interest," there is authority in Chapter 373's
progenitor, the Model Water Code, and in other jurisdictions with
long histories of water scarcity. See F. Maloney, R. Ausness, &
J. Morris, A Model Water Code (University Presses of Florida,
a. The commentary to the Model Water Code suggests
that public bodies should be preferred over private users,
economically more productive uses should be preferred over less
productive uses, and uses which have a lesser impact on water
quality should be preferred over those which may have a
deleterious effect. Finally, the Code provides that when all
other factors are equal, priority of application may be
determinative. Id. at 186 189.
b. In addition, Section 373.036(9) authorizes the
Department of Environmental Regulation ("DER") to "designate cer-
tain uses in connection with certain sources of supply .
which would result in an enhancement or improvement of the water
resources of the area" as a component of the State Water Use
Plan. Applications for such uses in departmentally designated
areas are expressly preferred in the event of competing
applicants. 373.036(9), Fla. Stat. (1987). However, DER has
not designated any such areas as yet.
c. The South Florida Water Management District has
determined that where the public interest balancing factors are
equal as to each new or renewal applicant then each will be
equitably allocated a portion of the resource. See 22.214.171.124.9,
Water Use, Permit Information Manual, Vol. III (June 1985).
5. For a more thorough discussion of priorities and
preferences among competing water users, see Earl & Ankersen,
Slicing the Water Supply Pie: Competing Applications Under
Florida's Water Resources Act, 61 Fla. B. J. 87 (June 1987).
III. INTER-DISTRICT TRANSFERS
1. Inter-district transfers involve the transport of water
for consumptive use from one water management district to
another. Inter-basin transfers involve the transport of water
from one hydrologic basin to another. See, generally, Kemp,
Interbasin Transfer of Water in Florida: Common Law and the
Water Resources Act, 56 Fla. B. J. 9 (Jan. 1982). Because water
management districts in Florida were established to generally
coincide with hydrologic basin boundaries, in most instances an
inter-district transfer will also be an inter-basin transfer.
2. Prior to 1987, Chapter 373 was silent as to whether
water could be transported from one water management district to
another for consumptive use purposes. However, the uneven
distribution of water with respect to the population centers in
need of additional water resources insured that the issue
eventually would present itself. A new round of competition
ensued when a local water authority in need of water sought to
satisfy its need for water from beyond the jurisdictional
boundary of the district in which it was located. See Osceola
County v. St. Johns River Water Management District, 504 So.2d
385 (Fla. 1987).
a. In Osceola County, the respondent Water Management
District relied on DER's inter-district transport rule, see Fla.
Admin. Code Rule 17-40, which required a permit from both the
water management district where the resource was located and the
district where it was needed. Petitioner Osceola County filed a
writ of prohibition seeking to prohibit the local water authority
from applying for a permit from the district where the authority,
but not the water, was located. The writ was denied by the Fifth
District Court of Appeal which found the DER rule to be
authorized by Chapter 373. Osceola County v. St. Johns River
Water Management District, 486 So.2d (Fla. 5th DCA 1986). The
Supreme Court affirmed the procedural scheme established by DER's
Rule which required permits from both the district with the need
and from the district with the resource.
b. Despite the decision in Osceola County, the 1987
Florida Legislature revisited the issue of inter-district
transport and amended Chapter 373 to specifically authorize
inter-district transport of groundwater and addressed many of the
issues raised by the proceedings in Osceola County. See Section
373.2295, Fla. Stat. (1987).
i. Importantly, the inter-district transport
amendment refers by its terms solely to groundwater and does not
address surface water, implying that no such authorization exists
for inter-district transport of surface water.
3. Rather than codifying the permit and appeal procedures
established by DER in Florida Administrative Code Rule 17-40, the
inter-district transfer amendment to Chapter 373 establishes the
water management district in which the resource is located as the
only district which may issue a permit. Section 373.2295(2),
Fla. Stat. (1987). The water management district having
jurisdiction over the area where the water is to be used may
comment upon the proposed application. Section 373.2295(5), Fla.
a. The water management district that is considering
the permit must prepare a notice of preliminary intended agency
action which includes an evaluation of the application and
recommendations. This notice permits "an interested person" to
notify the district considering the application and submit
comments or objections to the preliminary intended action. Once
the governing board has considered such comments or objections,
it must issue a notice of intended agency action. S373.2295(6),
Fla. Stat. (1987).
b. The statute then permits any substantially affected
person who has submitted a notice with comments and objections to
request review of the application by DER. If no such request is
filed, the notice of intended agency action becomes final order
of the governing board. 373.2295(6) (d) Fla. Stat. (1987)
(Note the use of the term substantially affected to limit the
standing of those who commented upon the application.)
c. If DER receives a request for review it must,
within thirty days approve, deny or modify the water management
district's action on the proposed inter-district transfer and use
of groundwater. 373.2295(7), Fla. Stat. (1987). Any
substantially affected person who had requested review by DER may
then request an administrative hearing pursuant to Chapter 120.
Id. The parties to this hearing shall include, at a minimum, the
two water management districts and the applicant. Id.
d. DER's final order is subject to appellate review
pursuant to Section 373.114, Florida Statutes, which authorizes
review by the Florida Land and Water Adjudicatory Commission
("FLAWAC"), or pursuant to Section 120.68, Florida Statutes,
which authorizes appellate review by the District Court of
Appeal. 373.2295(8), Fla. Stat. (1987).
4. The inter-district transfer amendment leaves little
doubt that it is intended to preempt all other conflicting
regulatory activity by any state agency, water management
district, or local government.
a. Neither the district nor DER may adopt special
rules which prohibit or restrict inter-district transfers and use
of groundwater in a manner inconsistent with the statute.
S373.2295(10), Fla. Stat. (1987).
b. The statute further provides that FLAWAC may review
decisions by local governments concerning zoning or siting of
production, treatment or transmission facilities, and the
Commission must authorize a variance or non-conforming use to
local government comprehensive plans or zoning ordinances unless
contrary to the public interest. 373.2295(12), Fla. Stat.
c. Appeal to FLAWAC is also authorized when a local
government denies a permit or other authorization under Chapter
125, empowering county governments, or Chapter 153, authorizing
establishment of independent water districts, to develop an
infrastructure to produce, treat, transmit or distribute
groundwater. The Commission may reverse, modify or approve the
local government's actions pursuant to those statutes.
3373.2295(14), Fla. Stat. (1987).
IV. THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT'S
1. Recently, the focus of Florida's water wars has shifted
from the inter-district transfer battle on the east coast back to
the west coast where they first began. At issue is the Southwest
Florida Water Management District's so-called 5-3-1 rule, which
regulates the extent to which a withdrawal can affect the water
table or piezometric surface beyond the boundary of the land over
which the withdrawal is made.
a. Florida Administrative Code Rule 40D-2.301(3),
adopted by the Southwest Florida Water Management District
provides that the withdrawal of water may not reduce the
piezometric surface under lands not owned, leased, or otherwise
controlled by the applicant by more than five feet. The water
table may not be lowered under such property by more than three
feet, and the level of surface water may not be lowered more than
one foot unless the water body is entirely owned, leased, or
controlled by the applicant.
2. In West Coast Regional Water Supply Authority v.
Southwest Florida Water Management District, DOAH Case No.
88-0693R (May 17, 1988), the Water Management District sought ,to
apply its 5-3-1 rule to the Water Authority's wellfields. The
hearing officer found that if the rule were applied to the
Authority's Pasco and Hillsborough County wellfields the
Authority's average annual daily withdrawal rate would be reduced
by half or the Authority would have to acquire an excess of
80,000 additional acres at a fair market value of $747,000,000 in
order to maintain current production levels. Id. at 15-16.
a. The hearing officer determined that the District's
5-3-1 rule constituted a invalid exercise of delegated
legislative authority under Section 120.52(8), Florida Statutes,
by enlarging the statutorily prescribed conditions for issuance
of consumptive use permits under Section 373.223(1). Id. at 20.
In other words, the hearing officer found that in addition to
establishing that a proposed consumptive use of water is
reasonable beneficial, will not interfere with any pre-existing
legal uses, and is consistent the the public interest, the
applicant must also comply with the 5-3-1 rule.
b. The hearing officer further found that the 5-3-1
rule "abrogates the legislatively and judicially recognized
separation and distinction between the right to use water and
land ownership and control." Id. at 22 (citing Village of
Tequesta v. Jupiter Inlet Corporation, 371 So. 2d 663 (Fla.
1979); Section 373.2235, Fla. Stat. (1987)).
c. The hearing officer also found that the District's
5-3-1 rule is unconstitutionally vague and fails to establish
adequate standards for determining compliance with the rule. Id.
at 22 (citing Southeastern Fisheries Association v. Department of
Natural Resources, 453 So.2d 1351 (Fla. 1984)). The hearing
officer concluded byi finding that the rule was arbitrary and
capricious in its application because, although it was applied
district-wide, varying hydrologic factors within the district
were not accounted for by the rule. Id. at 24.
3. Even before the hearing officer's decision was rendered,
the District took its 5-3-1 rule to the Legislature and is
seeking to have it codified in Chapter 373. See H.B. 501
(seeking to amend Section 373.223(1), Fla. Stat. (1987)).
Despite the abundance of water in Florida, competition for
water for domestic, agricultural, irrigation, recreational and
industrial purposes can be expected to become increasingly
fierce. Pressures on the resource will continue to challenge the
procedural mechanisms for water allocation established by Chapter
373. Whether the statute can withstand this pressure in its
present form will depend in large part on how it is applied by
the water management districts responsible for its fair and