Title: Florida's Water Future: A Legislative Proposal for the Distribution of Water Resources in Florida
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Title: Florida's Water Future: A Legislative Proposal for the Distribution of Water Resources in Florida
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Publisher: The Florida Bar Journal Volume LXXI, No. 6
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Florida's Water Future: A Legislative Proposal for the Distribution of Water Resources in Florida
General Note: Box 28, Folder 6 ( Advancing the Competence and Public Responsibility of Lawyers - 1997 ), Item 1
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ENOM ENA LA


Florida's Water Future:

A Legislative Proposal for the Distribution

of Water Resources in Florida


dance of water,' receiving
an average of 175 billion
gallons per day.2 In addi-
tion, Florida's aquifers3 contain more
than a quadrillion gallons of water,
which is 30,000 times the average daily
discharge of Florida's 13 largest rivers.4
Florida has 1,700 streams and rivers
and 7,800 freshwater lakes.5 Florida
withdraws only 18 billion gallons of wa-
ter per day,6 only 7.5 billion gallons of
which is fresh water.7
The apparent abundance of water in
Florida is misleading. The water in
Florida is generally located at a signifi-
cant distance from densely populated
areas. The population in Florida is
mainly concentrated along its coastline.
Of Florida's 50 most populous cities, 22
are located in the three southeastern
coastal counties of Palm Beach, Dade,
and Broward alone.8 Additionally, the
third and fourth largest cities in the
state, Tampa and St. Petersburg, are
located adjacent to each other on the
western coast of Florida.9 Unlike the
middle and northern regions of the
state, these coastal regions have direct
access to only a limited amount of fresh
water.10 Concomitantly, aquifers in the
coastal areas are more susceptible to
saltwater intrusion." Hence, the chal-
lenge Florida faces in managing water
resources "is not the allocation of a fi-
nite depleting supply, as it is with oil
and gas, but rather a geographic and
temporal mismatch of supply and de-
mand."12
Florida is currently divided into five
water management districts that fall
under the supervision of the Depart-
ment of Environmental Protection
(DEP). These districts were created by
the Florida Water Resources Act of
197213 (Water Resources Act) to "pro-
vide for the management of water and


The dilemma
in Florida is
sharing an ample
but unevenly
distributed resource.
A state-level water
distribution
program is
necessary




by Ronald A. Christaldi

related land resources."14 The Water
Resources Act was patterned after the
legislative proposal known as the Model
Water Code,15 which was drafted at the
University of Florida between 1967 and
1972.16 The purpose of this article is to
examine the current system of water
management and distribution in
Florida, especially in the context of con-
sumptive use, and to recommend policy
revisions that will benefit the citizens
of the state as a whole. Because the di-
lemma facing Florida is not one of allo-
cating a finite resource but rather one
of distributing an ample, but unevenly
distributed, resource, a state-level dis-
tribution program is necessary. The
current system allocates an excess of
authority to the individual water man-
agement districts and thus regionalizes
the use of Florida's water resources.
The result is not only an inefficient use


88 THE FLORIDA BAR JOURNAL/JUNE 1997


of these water resources but also one
with potentially damaging ecological
consequences.
The first part of this article reviews
alternative approaches to consumptive
use regulation, distribution, and man-
agement. The second part proposes a
policy change in the regulation, distri-
bution, and management of water for
consumptive purposes in Florida. This
part suggests a shift to state-level wa-
ter regulation, distribution, and man-
agement and argues that if the water
management districts should remain,
their roles must be relegated to that of
administrators rather than of
policymakers.

Water Management and
Consumptive Use Regulation
Several problems arise in the regu-
lation of the consumptive use of water.
On one level, a number of competing
interests seek permits for the consump-
tive use of water.17 In areas where local
water is plentiful, these distinctions
may be considered trivial. This belies
the underlying problem facing coastal
areas. In these areas where the supply
of local water is limited, competing in-
terests are overtly adverse to one an-
other and constantly competing for
what each considers its fair portion of
the water supply.'" For instance, in West
Coast Regional Water Supply Author-
ity v. Southwest Florida Water Manage-
ment District, DOAH Case Nos. 95-
1520-95-1528, several west-central
Florida counties are presently em-
broiled in a battle over the permitting
of four public supply wellfields.
Limited water supply alone might not
cause a crisis situation if the consump-
tive use of that water were tightly regu-
lated through careful permitting pro-
cedures. Water management districts,
however, continue, somewhat reck-










lessly, to issue consumptive use permits
while they are failing to determine the
limits of the water resources in their
districts. As a result, concerns have
arisen as to whether the resources are
being overused and over-permitted.19
Although debate continues as to
whether overpumping is the sole cause,
or even a partial cause, of phenomena
such as the water level reduction of
lakes20 and saltwater intrusion into
aquifers, such environmentally de-
structive activities are occurring daily.
* Solutions Proposed Under the
Current System
Several solutions to the problem of
inefficient water distribution have been
proposed within the confines of the cur-
rent system. The problem, simply
stated, is that Florida has an ample
supply of water, but the state's water
resources are not evenly distributed
temporally and geographically. This
causes "artificial shortages" in many of
the coastal areas where Florida's larg-
est cities are located. Several solutions
to this problem have been proposed.21
1) Salt Water Desalination
One proposed remedy is the develop-
ment of desalination, which is the pro-
cess by which salt or brackish water is
processed to remove minerals, leaving
fresh, potable water.22 Brackish water
desalination is used extensively in
Florida.23 Because of the comparative
abundance of saltwater, turning seawa-
ter into drinking water has caused ex-
citement and enthusiasm in water-rich
areas concerned about invasion by the
water-poor locales of the state.24 This
enthusiasm relates to the public's per-
ception of the existence of an abundant
supply of seawater that can be con-
verted to drinking water at a reason-
able expense and without environmen-
tal impact.25 This faith in technology
and hasty enthusiasm, however, over-
look certain realities of the situation.
Seawater desalination plants are
impractical and unreasonable for sev-
eral reasons. (For a discussion of desali-
nation and the problems and shortcom-
ings associated with it, see Charlotte
County et al. v. Southwest Florida Wa-
ter Management District, DOAH Case
No. 94-5742RP, at 401-410 (Final Or-
der, Mar. 26, 1997)). First, seawater de-
salination is very expensive. For ex-
ample, a proposed Tampa Bay area
desalination plant, capable of produc-
ing 20-50 million gallons per day (mgd)
would cost about $200 million just to


construct.2 Although 20-50 mgd may
sound like a large amount, the esti-
mated 1993 use in the Southwest
Florida Water Management District
alone was 1281.5 mgd.27 Furthermore,
the projected use in that district for the
year 2020 is 2369.5 mgd.28 The $200
million price tag will likely be passed
directly to the users of the water.29
Clearly this large expense, which goes
only to the construction of the plant and
not the high operational costs,30 would
provide a tiny fraction of the actual
water needs of the region.
In addition, the operation of a desali-
nation plant requires excess generat-
ing capacity, which necessitates using
fossil fuels to drive the generators.31
This raises all of the concerns that come
with the burning of fossil fuels, includ-
ing increased air pollution.As one com-
mentator noted, "It is not exactly a sce-
nario that conservationists or
administrators of clean air laws would
write."32
The desalination of seawater also
raises concerns about safe disposal of
the brine concentrate that is left as a
by-product of the process. While this
would not be a problem if the water
being desalinated were brackish aqui-
fer water, it is a major concern with the
desalination of seawater. This is be-
cause only about 40 percent of the wa-
ter that runs through the desalination
plant is recovered as fresh water.33 The
remainder, which is an equal amount
of water "with a saline content twice as
high as the Gulf of Mexico,"4 is waste
by-product.35 Disposal of this by-prod-
uct can have a damaging environmen-
tal impact.36 Oftentimes, this by-prod-
uct can be acutely toxic.37
No operational seawater desalination
plants on the scale of that proposed by
the Southwest Florida Water Manage-
ment District for the Tampa Bay area
exists in the entire United States. Pro-
ponents of the desalination plant point
to California as an example of an exist-
ing desalination plant. A desalination
plant does exist in Santa Barbara; how-
ever, the plant has never been used to
process water.38 The plant was con-
structed as a "backup in case of
drought,"39 not as a primary producer
of water for public supply. Little con-
vincing evidence exists to show that a
desalination plant would be an efficient
producer of water.
2) Brackish Water Desalination
Salt water intrusion into aquifers is


a serious problem.40 One solution is to
process the brackish water in tainted
aquifers to produce potable water.
Florida does make use of brackish wa-
ter desalination within its boundaries.41
"The City of Dunedin has gained na-
tional and international attention since
1992, with its reverse osmosis (RO)
treatment of brackish water mixed with
fresh groundwater."42 While this treated
water supplements the city's supply of
drinking water, it is questionable
whether such processing is viable on a
larger scale. Of course, many of the
problems that are pointed out regard-
ing desalination of saltwater43 are
equally as valid in a discussion of the
processing of brackish water. For in-
stance, the RO process produces a by-
product whose disposal is problematic.
The highly mineralized water that is a
by-product of the RO process in
Dunedin is "piped to the city's waste-
water plant, mixed with wastewater
and used for irrigation."44 However,
larger quantities of this by-product
might not be so easy to discard.


Proposed Changes in Water
Management Policy
As discussed above, the central prob-
lem that Florida faces is the distribu-
tion of an ample,45 but unevenly distrib-
uted natural resource. The state-level
management system envisioned by the
drafters of the Model Water Code may
have successfully dealt with this prob-
lem. The Florida Legislature did not
enact the Water ResourcesAct that the
drafters of the Model Water Code had
envisioned. In fact, insofar as the leg-
islature vested policy making ability in
the districts, it erroneously perceived
the problem in Florida as being local-
ized and regional and, therefore, pat-
terned the Florida Water ResourcesAct
accordingly.4 Furthermore, the succes-
sive state agencies charged with imple-
menting the statute have consistently
delegated authority and policy making
ability to the water management dis-
tricts. This not only does little to solve
Florida's distribution problems, it ac-
tually perpetuates them.
As one commentator has noted:

Rational decisions regarding the allocation
of water resources must be based on knowl-
edge of the physical availability of water,
demands for the use of it, environmental
needs, and alternatives for action. The Wa-
ter Resources Act envisioned planning for


THE FLORIDA BAR JOURNAL/JUNE 1997 89










water use and supply as a part of a compre-
hensive state planning effort that never has
been realized.47
Florida is in need of a legislative re-
vision that will provide for more action
by the DEP in order to allocate the wa-
ter resources of the state more effec-
tively.
The initial reason Florida's dual
plans, the state water use plan and the
Florida water plan, never developed
was that the legislature in 1972 doomed
them with inadequate funding.4 Hence,
the legislature must first make a com-
mitment to funding the DEP for the
purpose of implementing an active
state-level water management system.
A second step must be the transfer of
authority from the water management
districts to the DEP. The water man-
agement districts provide an excellent
tool for the completion of administra-
tive tasks. Policy decisions, including
distribution decisions, however, should
be made at the state level. This is be-
cause state-level administration of wa-
ter policy will not be subject to the lo-
cal political pressures that plague the
regional system.49 Politically powerful
water management districts serve only
to create a regional view that promotes
an "us against them" feeling. Citizens
of Tampa and citizens of Tallahassee
are still citizens of the state of Florida.
They should be equally entitled to the
state's resources. The DEP is in the best
position to allocate the water resources
of the state.
* Interdistrict Transfers of Water
A possible solution to Florida's wa-
ter use problems that must be explored
is the transfer of water from the water-
rich rural northern areas to the densely
populated southern coastal areas. Gen-
erally, because the water management
districts in Florida were drawn along
hydrologic boundaries, interdistrict
transfers are essentially interbasin
transfers.50 Prior to 1987, such trans-
fers were governed by common law. Af-
ter a pivotal decision that year, the leg-
islature codified the right of the DEP
to authorize interbasin transfers.
The seminal case on this issue was
Osceola County v. St. Johns River Wa-
ter Management District, 504 So. 2d 385
(Fla. 1987). The factual scenario in-
volved Brevard County's application to
the water management district,
through the South Brevard Water Au-
thority, for a consumptive use permit
that would allow the use, in Brevard


County, of water drawn from Osceola
County. While Brevard County is
within the St. Johns River Water Man-
agement District, Osceola County is
entirely within the South Florida Wa-
ter Management District. The suit
arose when Osceola County sought a
writ of prohibition to enjoin the St.
Johns River Water Management Dis-
trict from considering the application.51
The claim was essentially that an indi-
vidual water management district
lacked jurisdiction to consider a con-
sumptive use permit for waters outside
its boundaries.
In denying the writ, the Fifth District
Court of Appeal held that the district
did, in fact, have the authority through
delegation by the Department of Envi-
ronmental Regulation (predecessor to
the DEP).52 The Florida Supreme Court
affirmed this decision and rejected the
petitioner's assertion that no such au-
thority existed because it was not ex-
pressly enumerated. The court deter-
mined that the spirit of the Florida
Water Resources Act dictated that
interdistrict transfer be permitted.53
The court found no cause to be con-
cerned that the administrative practice
of allowing interdistrict transfers would
"result in anarchy among the districts
and the possible depletion of some dis-
tricts' water resources by overly thirsty
neighboring districts."5 The court de-
termined that the consent of both dis-
tricts was required and ordered both
districts to study the proposed use to
determine whether such a transfer
would meet the statutory criteria, in-
cluding consistency with the public in-
terest, as required in F.S.
373.223(1)(c). Ultimately, the court
found that the problem was statewide
and refused to view Osceola County as
having any special right to such wa-
ters.55 The Florida Supreme Court prop-
erly concluded that statewide distribu-
tion of water was not only within the
authority of the DEP and, by delega-
tion, the water management districts,
but also that such transfers, given
proper study and consideration, could
help address statewide consumptive
water use.
In response to the Osceola County
decision, the legislature passed a law
expressly authorizing the interdistrict
transfers of groundwater.56 This law
attempts to streamline the process of
permit approval by vesting the author-
ity to consider the application in the


district from which the groundwater
would be withdrawn.57 Although the
procedure leaves the ultimate decision
to the DEP, the district from which the
water is drawn is charged with the re-
sponsibility of reviewing the actual ap-
plication.
This law differs from the prior admin-
istrative practice under consideration
in the Osceola County decision. Under
that practice, the agency permitted
both the receiving district and the with-
drawal district to take part in the deci-
sion making process.58 The process has
made such transfers susceptible to lo-
cal political pressures and the type of
regionalism that can defeat the most
efficient and beneficial allocation of
water throughout the state. Even the
process under the 1987 law lends itself
to regionalism by permitting the dis-
tricts to present data supporting the
position that a regional system may, in
fact, be the most beneficial and efficient
allocation of the states water resources.
It is important to note that F.S.
373.2295 grants the express author-
ity to transfer groundwater59 but is si-
lent on the transfer of surface water.
At least two commentators have noted
that "[i]mpliedly... the legislature has
failed to authorize such [surface
water] transfer."60 Furthermore, the
maxim expression unius est exclusio
alterius dictates that the inclusion of
one thing in a statute implies the ex-
clusion of all others.61 Therefore, under
this maxim, the interdistrict transfer
of surface waters is not permitted un-
der F.S. Ch. 373.
This disallowance of surface water
transfer may not have been the best
choice of the legislature for several rea-
sons. First, the allocation of surface
waters is just as much a statewide con-
cern as that of groundwater. Second, the
legislature would be remiss if it consid-
ered these two types of withdrawals as
separate and without intermixed ef-
fects.62 Therefore, the interdistrict
transfer of surface waters should also
be permitted under the statute.
Concerns about interbasin water al-
locations must be addressed in devel-
oping a state-level system. These con-
cerns include issues of water loss in
transfers and ensuring environmental
preservation with a minimal negative
impact.
The first criticism is that interbasin
transfers are subject to loss of water in
transmission due to leakage or evapo-


90 THE FLORIDA BAR JOURNAL/JUNE 1997










ration.63 However, this shortcoming is
not severe and need not be seen as a
critical flaw in the plan. With techno-
logical advancements, such losses can
be reduced.Abalance between the mer-
its of interbasin transfers and such
water losses should be conducted. If the
merits outweigh the losses, then
interbasin transfers should be effectu-
ated.
The second concern involves the en-
vironmental implications of imposition
of such a statewide allocation system.
The environment is a paramount pri-
ority and must be preserved. People liv-
ing in Florida, however, need water to
survive. Hence, the question becomes
one of balancing community needs
against environmental concerns.64 It is
only in this light that a statewide allo-
cation system should be considered.
Studies must be done to determine
the ecological effects of such interbasin
transfers. This initial research must
aim to determine the minimum flows
of rivers and streams and the minimum
levels of lakes and aquifers. Any sys-
tem of water allocation must be ecologi-
cally sensitive.
Although, at first blush, the
interbasin transfer of water seems to
degrade the ecological system from
which the water is to be withdrawn,
upon closer inspection such transfer
may prove better ecologically than the
current system. Under the current sys-
tem, permits for consumptive use of
water in the areas where water is scarce
may result in ecologically detrimental
use of water resources. Overpermitting
and overpumping pose serious threats
to the environment. The primary goal
of this proposed policy shift is to avoid
environmentally damaging behavior.
Therefore, to implement such a plan
without proper investigation into its
short- and long-term impacts would be
counterintuitive. Nonetheless, contin-
ued exploitation of resources in areas
where water levels are dangerously low
while other areas "overflow" is simply
poor resource management.
The current policy of the water man-
agement districts is to develop local
sources first.6 Implicit in this policy is
that once local sources are fully devel-
oped, other options, such as interbasin
transfers, will be considered. Florida
Department of Environmental Protec-
tion Assistant Secretary Pam McVety
has stated: "You have to understand
that the statute says you look at all


options including interbasin trans-
port."66 Given the water supply prob-
lems facing some areas of the state,
interbasin transfers should be consid-
ered.

Conclusion
The state of Florida has an ample
supply of water resources. Despite this
fact, several areas in Florida are suf-
fering from water shortages due to rea-
sons such as drought and population
increase. Hence, a problem in efficient
allocation exists. This is primarily be-
cause Florida's system of water alloca-
tion is highly regionalized and local-
ized. This article has pointed to the
flaws in the current system and called
for imposition of a state-level mecha-
nism for allocating Florida's water re-
sources.
For several reasons, allocative deci-
sions about the consumptive use of
water are better made at the state,
rather than the district, level. First, by
making these decisions at the state
level, the DEP will serve administra-
tive efficiency. By requiring the with-
drawing water management district in
an interbasin transfer to agree, the cur-
rent system allows for the possibility
that districts will disagree; such fric-
tion not only slows down the gears of
administration, but also inflicts unnec-
essary expense on taxpayers. Next, the
DEP will avoid the subjection of such
consumptive use decisions to local in-
terests and factions. Much recent talk
about "water wars" indicates a battle
among regional interests.67 Discussion
pits one county against another in a
conflict arguably to the detriment of all
citizens of the state. The state's ecosys-
tem is one large web of interconnected
systems; likewise, its citizens' health,
safety, and welfare are inextricably
linked. Therefore, the current system,
which promotes regionalism and has
resulted in "water wars," must be re-
placed by a system that removes such
allocation decisions from the regional
level and places them under the broad,
more objective perspective of a state
agency. Q



See Deseret Ranches of Fla., Inc. v. St.
Johns River Water Management Dist., 406
So. 2d 1132, 1139 (Fla. 5th D.C.A. 1981);
RICHARD G. HAMANN, Consumptive Water Use
Permitting, in FLORIDA ENVIRONMENTAL AND
LAND USE LAW 10-3 (1995); Andrew A.


Dzurik, Water Use and Public Policy in
Florida, in FLORIDA'S WATER FUTURE: CRISIS
OR OPPORTUNITY? 17, 17 (1987); Richard C.
Ausness, The Influence of the Model Water
Code on Water Resources Management
Policy in Florida, 3 J. LAND USE & ENVTL. L.
1, 3 (1987) (citing F. MALONEY, ET AL., WATER
LAW AND ADMINISTRATION-THE FLORIDA EX-
PERIENCE 11 (1968)).
2 EDWARD FERNALD & DONALD J. PATTON,
WATER RESOURCES ATLAS OF FLORIDA 12 (1984).
The state receives an average of 150 billion
gallons per day (bgd) in rainfall and 25 bgd
inflow from Georgia and Alabama. Id.
3 Aquifers are defined as "[w]ater-bearing
zones under the earth's surface capable of
receiving, storing, and transmitting water."
Village ofTequesta v. Jupiter Inlet Corp., 371
So. 2d 663, 665 (Fla. ), cert. denied, 444 U.S.
965 (1979).
4 FERNALD & PATTON, supra note 2, at 39.
5 Memorandum from Becky Everhart,
Chief Legislative Analyst, Fla. H.R. Select
Comm. on Water Policy, to Committee Mem-
bers, Fla. H.R. Select Comm. on Water
Policy (Sept. 11, 1995) (on file with comm.)
[hereinafter Everhart Memo].
6 FLORIDA STATISTICALABSTRACT 283 (1994).
7 Id. Of that 7.5 billion gallons of fresh
water, 2.8 billion gallons are drawn from
surface water and the remaining is drawn
from groundwater. Id.
8 1990 FLORIDA CENSUS HANDBOOK 532
(1994). Those cities are West Palm Beach,
Boynton Beach, Delray Beach, Boca Raton,
Coral Springs, Davie, Deerfield Beach, Ft.
Lauderdale, Hollywood, Lauderhill,
Margate, Miramar, Pembroke Pines, Plan-
tation, Pompano Beach, Sunrise, Tamarac,
North Miami Beach, North Miami, Hialeah,
Miami Beach, Coral Gables, and Miami. Id.
9 Tampa is the third largest city and its
neighbor St. Petersburg is the fourth. Id.
1O Sidney F. Ansbacher & Doug Brown, A
Proposal for Regional Water Management
Districts To Regulate Consumptive Use in
Minnesota, 10 HAMLINE J. PUB. L. & POL'Y
235, 246 (1989).
" See Ausness, supra note 1, at 3.
12 CHARLES J. MEYERS ET AL., WATER RE-
SOURCE MANAGEMENT 2 (1988).
S3 1972, Fla. Laws ch. 72-299 (codified as
amended at FLA. STAT. 373.012-.197
(1995)).
14 FLA. STAT. 373.016(2)(a)(1995).
15 FRANK E. MALONEY, ET AL., A MODEL WA-
TER CODE (1972) [hereinafter MODEL WATER
CODE].
16 Ausness, supra note 1, at 3.
17 FLA. H.R. COMM. ON NATURAL RESOURCES,
ANALYSIS AND MODELING OF WATER SUPPLY IS-
SUES FOR THE REGION BOUNDED BY
HILLSBOROUGH, MANATEE, PASCO, AND
PINELLAS COUNTIES 38, 47 (1994) (on file with
comm.) [hereinafter NATURAL RESOURCES
REPORT.
18 Id.
19 See, e.g., In Re: Emergency Conditions
Existing Within the Region of the West
Coast Regional Water Supply Central Well
Field System, Executive Director Order
No. 94-58 (June 29, 1994).
20 See, e.g., DER v. Falls Chase Special
Taxing Dist,, 424 So. 2d 787 (1st D.C.A.
1982) ("At times in the past, portions of


THE FLORIDA BAR JOURNAL/JUNE 1997 91










this property have been subject to inunda-
tion by waters of the lake, but a sinkhole
development in the lake, a natural phenom-
enon, has caused the lowering of the water
level"); Teresa D. Brown, Sinkhole Opens
Wide, Guzzles 2 Retention Ponds, ST. PETERS-
BURG TIMES, Aug. 31, 1995, atAl ("Sinkholes
occur when limestone is close to the ground
surface and there is a high rainfall for a long
period. The rainfall gradually will dissolve
the limestone, creating cavities. Over time,
the cavities will get larger and the ground
eventually will collapse.").
21 One solution to which most parties can
agree is conservation. Measures imple-
mented to reduce water use are critical to
preservation of Florida's ecosystem and to
such practical factors as maintaining rea-
sonable water rates.
22 See, e.g., SOUTHWEST FLORIDA MANAGEMENT
DISTRICT, WATER USE PERMIT INFORMATION
MANUAL B-xiii (1994) [hereinafter PERMIT
MANUAL]; Jean Heller, Water Woes May Find
Salty Solution, ST. PETERSBURG TIMES, Apr.
2, 1995, at B1. In 1996 the legislature en-
acted a law that deregulates the sale of
desalinated water to governmental authori-
ties by making such sales exempt from regu-
lation by the Florida Public Service Com-
mission. See Donna R. Christie & RonaldA.
Christaldi, Florida, in WATERS AND WATER
POLICY RIGHTS (Supp. 1996).
23 CRAIG W. DYE, ET AL., SEAWATER DESALINA-
TION: AN INVESTIGATION OF CONCENTRATE DIS-
POSAL BY MEANS OF A COASTAL OCEAN OUTFALL
1 (Sept. 1995).
2 See, e.g., Michael D. Bates, Desalination
Plant Seen as "Wave of the Future,"
HERNANDO TODAY, Apr. 1, 1995.
25 This is because the public is aware that
about 97.5 percent of the earth's water is
contained in the oceans. A. DAN TARLOCK,
LAW OF WATER RIGHTS AND RESOURCES 2.02
(1992).
26 Earle Kimel, 71To Companies Eye Desali-
nation, CITRUS COUNTY CHRONICLE, Mar. 31,
1995, atAl. While the Kimel article sets the
production at 50 mgd, other estimates claim
that a 20 mgd output is "about as big a plant
as is practical from a cost standpoint."
Heller, supra note 25, at B7. This does not
include operational costs.
27 NATURAL RESOURCES REPORT, supra note
17, at 39.
28 Id.
2 Id.
so Seawater desalination would cost $3.40
to $5.80 in operational costs per 1000 gal-
lons of sellable water. John E. Potts, Presi-
dent, Southeast Desalting Association, Ad-
vantage and Costs of Seawater versus
Brackish Water 3 (undated, prepared for the
Florida Water Law and Regulation Confer-
ence). Conventional water, in comparison,
costs $0.85 to $1.90 per 1000 gallons in op-
erational costs. Id. The average home uses
10,000 gallons per month. Id.
31 Heller, supra note 22, at B7.
32 Id.
3 DYE, supra note 23, at 4.
' Heller, supra note 22, at B7.
35 This by-product is referred to as concen-
trate. DYE, supra, note 23, at 4. Tests show
that concentrates from seawater desalina-
tion can show chloride values exceeding


state standards. Id. at 5.
36 DYE, supra note 23, at 7B.
37 Id. at 5-6.
3s Heller, supra note 22, at 7B.
39 Id.
40 NATURAL RESOURCES REPORT, supra note
17, at .32.
41 Florida has 175 brackish water desali-
nation facilities. Dye, supra note 37, at 1.
42 NATURAL RESOURCES REPORT, supra note
17, at 53. "The treatment also is used to
remove lead and other minerals from
groundwater." Id.
43 See supra notes 22-47 and accompany-
ing text.
44 NATURAL RESOURCES REPORT, supra note
17, at 53.
5 Dialogue with Pam McVety, Assistant
Secretary, Florida Department of Environ-
mental Protection, in FLORIDA ENVIRONMENTS,
Mar. 1996, at 12 ("The fact is that water is
not limited in this state. What is limited is
deep easily accessible water, but there is
plenty of water for all users and natural
systems in this state.") [hereinafter Dia-
logue].
46 But see Osceola County v. St. Johns River
Water Management Dist., 504 So. 2d 385
(Fla. 1987) (finding that the legislature en-
acted the Florida Water Resources Act "in
order to implement a statewide and com-
prehensive administrative system of regu-
lation, resource protection, and water use
permitting").
47 HAMANN, supra note 1, at 9-10.
48 Id. at 10.
49 A recent report of the Water Manage-
ment District Review Commission sug-
gested the creation of both a permanent
position in the executive office of the Gov-
ernor and a standing legislative committee
on water resources to oversee the financial
and programmatic activities of the five wa-
ter management districts. THE FLORIDA LEG-
ISLATURE WATER MANAGEMENT DISTRICT REVIEW
COMMISSION, BRIDGE OVER TROUBLED WATER:
RECOMMENDATION OF THE WATER MANAGEMENT
REVIEW COMMISSION 6-7 (Dec. 29, 1995).
50 Ansbacher & Brown, supra note 10, at
253 (quoting W. EARL & T. ANKERSON, COM-
PETING APPLICATIONS, INTER-DISTRICT TRANS-
FERS, AND ASPECTS OF COMPETITION FOR CON-
SUMPTIVE WATER USE 3 (Undated)).
51 Id. The writ was filed before the St.
Johns River Water Management District
was able to hold a public hearing on the
permit, but after the district staff had rec-
ommended its denial. Id.
52 Id.
53 Id.
54 Id.
5 Id.
" 1987, Fla. Laws ch. 87-347, 1 (codified
at FLA. STAT. 373.2295 (1995)).
57 FLA. STAT. 373.2295(6)(c) (1995). The
governing board of the agency in which the
groundwater is to be withdrawn is to issue
a notice of intended agency action. Then,
under 373.2295(8), the DEP shall issue a
final order. In 1996, the legislature proposed
a bill requiring DEP and the water man-
agement districts, when evaluating appli-
cations for water transport, to consider the
proximity of the proposed water source to
the area in which it is to be used and other


environmentally, economically, and techni-
cally feasible alternatives to the proposed
water transfer, including, but not limited to,
desalination, reuse, stormwater, and aqui-
fer storage and recovery. Christie &
Christaldi, supra note 22. However, this bill
ultimately did not pass. Id.
58 The rule in question in Osceola County
was FLA. ADMIN. CODE r. 17-40.05. The law
enacted in 1987 grants the authority to re-
view the application to the district from
which the water is to be withdrawn. FLA.
STAT. 373.2295(2)(1995); cf. id. 373.2295(5)
(authorizing the district to which the water
will be transferred to comment on the ap-
plication).
59 FLA. STAT. 373.2295 (1995).
60 Ansbacher & Brown, supra note 10, at
254.
61 TVA v. Hill, 437 U.S. 153, 188 (1978).
62 A. DAN TARLOCK, LAW OF WATER RIGHTS AND
RESOURCES 2.02(2) (1994).
3 Robert E. Beck, The Water Resource De-
fined and Described, in WATER AND WATER
RIGHTS 3, 46 n.37 (citing U.S. WATER NEWS,
June 1989, at 1).
6 For an excellent discussion of the bal-
ance needed between property rights and
environmental concerns, see Heather Fisher
Lindsay, Balancing Community Needs
Against Individual Desires, 10 J. LAND USE
& ENVTL. L. 371 (1995).
65 Dialogue, supra note 47, at 12.
6 Id.
67 See, e.g., Savannah Blackwell, Water
Wars Loom on Florida's Horizon, TALLAHAS-
SEE DEMOCRAT, Apr. 2, 1995, at B1.


Ronald A. Christaldi practices with
the Tampa firm of de la Parte, Gil-
bert & Bales, PA. He received his
J.D. with high honors from Florida
State University where he served as
editor-in-chiefofthe JOURNAL OF LAND
USE & ENVIRONMENTAL LAW. Mr.
Christaldi is a member of the Greater
Tampa Chamber of Commerce Wa-
ter Policy Task Force. Aprior version
of this article appeared in 23 FLA. ST.
U. L. REV. 1063 (1996).
This column is submitted on be-
half of the Environmental and Land
Use Law Section, Dennis M. Stotts,
chair, and Sid F Ansbacher editor.
U


92 THE FLORIDA BAR JOURNAL/JUNE 1997




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