Title: Water Law in Transition: Debates That Could Shape Florida's Future
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00004879/00001
 Material Information
Title: Water Law in Transition: Debates That Could Shape Florida's Future
Physical Description: Book
Language: English
Publisher: The Florida Bar Journal / November 1996
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Water Law in Transition: Debates That Could Shape Florida's Future (JDV Box 39)
General Note: Box 29, Folder 6 ( Water Supply Coalition - 1996 ), Item 1
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004879
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




K I AN[) L.-AND 3SF LAW 0


Water Law in Transition:
Debates That Could Shape Florida's Future


Despite Florida's apparent
bounty of rivers, lakes,
streams, and ground water,
it was only a matter of time
before the state's rapid population
growth and development exhausted the
supply of cheap, easy-to-get water in
some areas of the state and ushered in
the era of the water wars. Water skir-
mishes flared up in the past, but full-
scale water warfare broke out in 1994
in the 'Impa Bay area. Ensuing admin-
istrative litigation, involving water per-
mits, emergency orders, and rules, in-
cluded the longest formal hearing-17
weeks-in the history of the Division
of Administrative Hearings.
Many commentators have been criti-
cal of the public combatants in the
Tampa Bay water wars, suggesting that
the disputes could have been avoided
if public officials tried harder to reach
a compromise. But this war is about
water, our most precious natural re-
source. Without enough water, running
a city, growing a crop, manufacturing a
widget, or managing a household be-
comes impossible. That makes compro-
mise in a water dispute extremely dif-
ficult.
The water wars and recent water
policy and planning initiatives by the
Department of Environmental Protec-
tion (DEP) and the Florida Legislature1
heightened interest in how Florida's
water supplies are being managed by
DEP and the five water management
districts, especially during water short-
ages. Under the Florida Water Re-
sources Act of 1972, Ch. 373 of the
Florida Statutes, the burden of answer-
ing the fundamental water allocation
questions-Where is the water? Who
should get it? How much can you get?
How long can you use it?-are left en-
tirely in the hands of water adminis-
trators, rather than free market forces.


Florida needs a
water law that
answers the
fundamental water
allocation questions
so that water
administrators at
DEP and the water
management
districts can
administer the law,
rather than make it


by Bram D.E. Canter
and Sheri 1. Holtz


Yet most administrators, water users,
and interested persons have discovered
that Ch. 373 does not provide sufficient
guidance to answer these questions.
Attention became focused on the
1996 legislative session, which was ex-
pected to pass significant new water
law. Although the session saw continu-
ous and contentious debates on water
issues, none were resolved. Four water
debates that could ultimately redefine
water rights in Florida and play a sig-
nificant part in shaping the future of
the state are discussed below.

Minimum Flows and Levels
Of all the water issues debated in the
1996 session, minimum flows and lev-
els (MFLs) probably attracted the wid-


est interest. Ch. 373 requires the es-
tablishment of minimum flows for sur-
face watercourses and minimum levels
for ground water to prevent over-with-
drawals of water that harm the envi-
ronment or interfere with existing hu-
man uses of water. Minimum flow is
defined as "the limit at which further
withdrawals would be significantly
harmful to the water resources or ecol-
ogy of the area" and minimum level is
defined as "the limit at which further
withdrawals would be significantly
harmful to the water resources of the
area."3
MFLs had their origin in the 1957
Water Resources Act, which was
Florida's earliest effort to regulate wa-
ter uses through an administrative sys-
tem.4 Even then it was recognized that
to properly administer a water alloca-
tion system, it was essential to know
how much water could be withdrawn
from a stream, lake, or aquifer before
harm was caused. In the much more
comprehensive Florida Water Re-
sources Act of 1972, MFLs were to be
the bedrock upon which to construct
water supply planning and water use
permitting programs. The requirement
for MFLs has been on the books for
nearly four decades. Nevertheless, rela-
tively few MFLs have been established
because for years there was little or no
perceived threat of water shortages,
and the technical aspects of determin-
ing MFLs proved to be more difficult
than expected. Today, MFLs are often
established in a piecemeal fashion,
water use permit by water use permit.
There is now much greater interest,
even demand, for the establishment of
MFLs, especially by those who believe
MFLs are a means to preserve and re-
store the natural environment. They
want MFLs to be based solely on scien-
tific determinations of the needs of the


THE FLORIDA BAR JOURNAL/NOVEMBER 1996 77









environment. Many water users oppose
this point of view and advocate the es-
tablishment ofMFLs that reflect a bal-
ancing of environmental needs with
other public policy and due process con-
siderations. The scientific viewpoint
might allow MFLs to be used to stop
an existing or proposed water use if the
use was causing adverse environmen-
tal impacts, without regard to the eco-
nomic or social consequences. The bal-
ancing viewpoint might allow the
continuation of a pre-existing with-
drawal or a proposed new withdrawal,
even though it would cause adverse
environmental impacts.
There is also a disagreement about
what is meant by setting MFLs at the
point where "further withdrawals"
would cause harm to the water re-
sources. Does "further withdrawals"
mean any withdrawals that cause sig-
nificant harm, including those associ-
ated with pre-existing water uses? Or
does it mean only withdrawals that are
proposed after the minimum flow or
level is established, so pre-existing
withdrawals are not affected? If MFLs
had been established long ago, this
would not be an issue.
During the 1996 session, there was
wide support for creating a process for
independent scientific peer review of
proposed MFLs and enhanced public
participation. Such a process was seen
as a means to increase the credibility
of MFLs and avoid protracted litigation.
The single water bill passed in 1996,
House Bill 2385, provides for a scien-
tific peer review of MFLs for critical
water resources in the South-
west Florida Water Management
District.6

Water Supply Planning
Planning was intended to play a cen-
tral role in water resources manage-
ment under Ch. 373, but it failed to live
up to the visions of the authors of A
Model Water Code, from which the plan-
ning provisions of Ch. 373 were
adapted.6 The act required the formu-
lation of a state water use plan, which
was to address existing water re-
sources, means for conserving and aug-
menting water resources, existing and
future needs and uses of water, and
other related subjects.7 Attempts to
adopt a functional plan have not suc-
ceeded. The state water use plan is
mostly an accumulation of policies that
appear in existing statutes and rules.


The success of water
supply planning will
depend on the
inclusion of means to
augment water
supplies and to fairly
allocate the costs of
water development
projects between the
private and public
sectors

It cannot require or prohibit any action
of its own authority. Consequently, the
plan is rarely invoked to answer or re-
solve a water supply issue. Water use
permitting, to a much greater extent
than water supply planning, has driven
water management in Florida.
A considerable amount of time was
spent during the 1996 session on
whether to create a formal regional
planning process to identify and man-
age potential new water shortage ar-
eas.Although planning, in the abstract,
was universally acknowledged to be
worthwhile, some of the multi-layered
planning procedures offered for consid-
eration were immediately opposed as
too complex. Other planning concepts
were seen as going too far, such as the
proposal to match specific water uses
with specific water supplies-a kind of
water zoning. Most of the planning pro-
posals were viewed as reactions to the
Tampa Bay water wars that were not
suited for the rest of the state. In the
end, the push for regional water sup-
ply planning failed because there was
no consensus on the goals that planning
was supposed to achieve.
Another component of the water sup-
ply planning debate was whether to
strengthen the links between land and
water use planning. Numerous studies
over the past decade have called for
more effective integration of land and
water use planning.8 Local government
land use planning addresses the need
for future public water treatment and
distribution facilities, but not the avail-
ability of adequate water supplies for
future land uses.Advocates for a stron-
ger link want the distribution and tim-


ing of future land uses to depend on the
availability of water. However, there
are many critics of current land use
planning who believe it is an inflexible
process that imposes public infrastruc-
ture standards without funding mecha-
nisms. They object to any proposal
to link water supply planning to a
flawed process. Stronger linkage stirs
up fears of additional hurdles for land
development based on new water-re-
lated criteria and the "M" word-mora-
torium-when a water shortage is de-
clared.
The perceived weakness of the cur-
rent link between land and water use
planning could be due, in part, to the
unavailability of water resources data
needed by local governments to make
better growth management decisions,
such as MFLs and ground water inven-
tories. Also, better intergovernmental
coordination on water supply issues
might be needed.9 These factors cause
some to suggest that the existing links
between land and water use planning
should not be changed until data-gath-
ering and intergovernmental coordina-
tion are improved.
The water supply planning proposals
debated in 1996 promised to produce
more procedures to follow and more cri-
teria to meet before a water use would
be allowed, but did not promise to pro-
duce one additional drop of water. Ulti-
mately, the success of water supply
planning will depend on the inclusion
of means to augment water supplies
and to fairly allocate the costs of water
development projects between the pri-
vate and public sectors.

Water Transport
Another major water debate of 1996
concerned the local sources first issue:
Should water be reserved for use near
the source of the water, or should it be
transportable from its source to any
place where it can be put to good use?
Local sources first is a policy of restrict-
ing the transport of water across local
government or watershed boundaries.
The policy invokes one of the most ba-
sic water law questions, "Whose water
is it?"
Under the common law applied for
over a hundred years in Florida, the use
of surface water was an exclusive right
of riparian landowners who lived along
rivers, lakes, and streams. Moreover,
riparians could only use the water on
their own lands.o1 The transport of


78 THE FLORIDA BAR JOURNAL/NOVEMBER 1996









ground water beyond the overlying land
was also restricted." In 1957, the
Florida Water Resources Study Com-
mission (1957 Commission) reported
that common law restrictions on the
transfer of water severely limited op-
portunities for worthwhile commercial
activities.1 The commission recom-
mended that diversions of water be
authorized beyond riparian or overly-
ing land, a recommendation that was
adopted in the 1957 Water Resources
Act." When the Florida Water Re-
sources Act of 1972 was created, it au-
thorized the transport and use of
ground or surface water beyond the
overlying land and outside the water-
shed if the transport and use were con-
sistent with the public interest." Local
governments were prohibited from
adopting or enforcing any law or order
to the contrary. In 1985, the Florida
Supreme Court held that water could
be transferred across water manage-
ment district boundaries. "Political
boundaries are artificial divisions that
may and sometimes should be tran-
scended when planning for the most
beneficial use of our state's water re-
sources."
Despite these legal authorities, the
transportation of water across political
boundaries, even within the same wa-
ter management district, has generated
growing concern about the impacts to
the area from which the water is taken,
both from an environmental and a
wider social, economic, and political
perspective. In the Tampa Bay area,
these concerns have reached a cre-
scendo with "donor" counties accusing
coastal communities of "stealing" their
water and leaving them an insufficient
water supply for their own future de-
velopment. In the 1996 session, the
advocates of local sources first proposed
that the proximity of the source of wa-
ter to the place of use be made a re-
quired consideration in determining
whether a water use was in the public
interest How this consideration was
expected to affect the decision to issue
or deny a proposed transport of water
was not explained.
Proponents oflocal sources first must
reconcile that policy with the trend to-
ward water supply planning on a re-
gional basis. Does it also thwart the
growth management policy of discour-
aging sprawl by forcing new growth to
sprawl outward to reach new water
supplies?


The ideal permit
system can strike a
measure of balance
between prior
appropriation and
the doctrine of
reasonable use




Protection of
Existing Water Users
The desire for greater certainty and
dependability about one's right to con-
tinue a water use was behind many of
the water debates of 1996. The Tampa
Bay water wars heightened concerns
about the extent to which water man-
agement districts can reduce or reallo-
cate the water of existing users as a
means to deal with a water shortage.
Uncertainty of water rights was iden-
tified by the 1957 Commission as an-
other major limitation of the common
law.5 A riparian landowner's water use
was subject to adjustment at any time,
if necessary to accommodate new wa-
ter uses on the same waterbody.16 In
contrast, the "prior appropriation" sys-
tem of water rights adopted in most
western states provided considerable
certainty of water rights. It was based
on the simple rule of"first-in-time, first-
in-right."" Once appropriated, water
rights in the West could not be lost ex-
cept by abandonment or by failure to
put the water to a beneficial use. The
authors of A Model Water Code recom-
mended against the use of the prior
appropriation system in Florida be-
cause they preferred a system that al-
lowed for the reallocation of water from
existing uses to new uses when neces-
sary to achieve the fullest benefits of
the water resources.18 Nevertheless,
they sought to achieve greater certainty
of water rights than had existed under
the common law through the issuance
of water use permits. "The ideal per-
mit system can strike a measure of bal-
ance between prior appropriation and
the doctrine of reasonable use. It can


allow the permit holders some certainty
by reason of their permits subject to
periodic expiration and review."'1 Wa-
ter use permits are the only means to
obtain water rights under the system
created in Ch. 373.20 Once water rights
are obtained by permit, no subsequent
water use is allowed to interfere with
existing permitted uses.21 Permits do
not, however, last forever.
Ch. 373 allows for permits of up to
20 years' duration." The authors of A
Model Water Code expected most per-
mits to be issued for the full 20 years,
which they considered a sufficient time
to amortize the investments made by
the permitted.2 Since 1972, however,
20-year permits have been very rare.
Most water use permits are issued for
less than 10 years. As a result, the cer-
tainty that was to be gained through
long-term permits, to balance against
the risks of water reduction or reallo-
cation when the permit expired, has not
been delivered. Legislative proposals to
increase the duration of water use per-
mits and to give greater weight to the
renewal of existing water uses over new
uses in order to increase the certainty
of water use rights, were opposed by
those who feared that such changes
might impede attempts to correct envi-
ronmental impacts caused by existing
uses, or delay imposition of alternative
water supply policies.

Conclusion
Florida is suffering growing pains
associated with the transition from a
time when water was cheap and easy
to get, to a time when water use will be
more expensive and difficult. As
Florida's thirst increases, all water us-
ers, including the natural environment,
are likely to experience water supply
problems. Even though our current ad-
ministrative system for allocating wa-
ter supplies is a great improvement
over the common law it replaced, Ch.
373 does not provide sufficient guidance
for the difficult challenges of the new
era Florida is entering. The failure of
Ch. 373 to satisfactorily answer funda-
mental questions about water alloca-
tion has forced the water management
districts to make and defend water poli-
cies regionally.
Ch. 373 does not need to be torn down
and replaced. We can build on what is
there. Florida needs a water law that
answers the fundamental water alloca-
tion questions so that water adminis-


THE FLORIDA BAR JOURNAL/NOVEMBER 1996 79









trators at DEP and the water manage-
ment districts can administer the law,
rather than make it. The challenge is
to fashion a water law and administra-
tive system that accommodates popu-
lation growth and development to the
maximum extent possible, but draws a
line for protection of the environment
that everyone can see. It must not in-
terfere with existing water users, even
at the time of permit renewal, except
when absolutely necessary. Otherwise,
water rights in Florida are meaning-
less. Finally, it must facilitate the de-
velopment of more water, not just more
plans and regulations, and provide a
fair method of allocating the costs of
water development projects. 0


1 These initiatives included DEPs comple-
tion of the 1995 Florida Water Plan, the re-
port of the Water Management District Re-
view Commission, and the creation of a
Select Committee on Water Policy in both
the Florida House of Representatives and
the Florida Senate.
2 FLA. STAT. 373.042(1) (1995).
3 Id. 373.042(2).
Fla. Laws ch. 57-380, 2.
5 Fla. Laws ch. 96-339.
6 MALONEY, ET AL., A MODEL WATER CODE
(1971).
FLA. STAT. 373.036(1) (1995).
8 HOUSE SELECT COMMITTEE ON WATER
POLICY, INTERIM PROJECT REPORT, "Water Sup-
ply Policy Considerations," Appendix B
(1996).
9 Recommendations of the Land Use &
Water Planning Task Force (1994).
o10 7mpa Waterworks Co. v. Cline, 37 Fla.
586, 20 So. 2d 780 (1896).


1 Koch v. Wick, 87 So. 2d 47 (1956).
12 FLORIDA WATER RESOURCES STUDY COMMIS-
SION, FLORIDA WATER RESOURCES, ch. 2 (1957).
13 Fla. Laws ch. 57-380, 8.
1 FLA. STAT. 373.223(2) (1995).
15 FLORIDA WATER RESOURCES STUDY COMMIS-
SION, supra note 12.
10 Tampa Waterworks Co. v. Cline, 37 Fla.
586, 20 So. 2d 780 (1896).
"' MALONEY, supra note 6, at 157-160.
18 Id. at 159.
19 Id. at 79.
0 Village ofTequesta v. Jupiter Inlet Corp.,
371 So. 2d 663 (Fla. 1979).
21 FLA. STAT. 373.223(1Xb) (1995).
= Id. 373.236(1). Permits of duration up
to 50 years for certain public works may also
be authorized. 373.236(2). However, no
permit of greater than 20 years' duration is
known to have been issued.
21 MALONEY, supra note 6, at 175, 189.



A m 1


CANTER
CANTER


MOLTZ


Bram D.E. Canter is a shareholder
in the Tallahassee law firm of
Pennington, Culpepper, Moore,
Wilkinson, Dunbar & Dunlap, con-
centrating in the practice of water law
and environmental law. He formerly
served as director of the Water Law
Center at the University of Florida
College of Law. He earned his J.D.
from the University of Florida in
1977 and his LL.M. in environmen-
tal law from George Washington
University in 1982.
Sheri I. Holtz is the staff attorney
on environmental issues for the Re-
publican Office of the Florida House
of Representatives. She formerly
served as assistant general counsel
at the Florida Department of Natu-
ral Resources and as environmental
advisor to Congressman Porter J.
Goss. She earned her law degree
from Tulane Law School in 1988.
This column is submitted on be-
halfof the Environmental and Land
Use Law Section, Dennis M. Stotts,
chair, and Sid F Ansbacher, editor.
E


80 THE FLORIDA BAR JOURNAL/NOVEMBER 1996


The Florida Bar Journal

gives cash

awards annually from an

endowment set up in memory of

Barbara Sanders by attorney

Barrett Sanders,

former chair of The Florida Bar

Journal Editorial Board.



Judges select winners from

those lead articles published

between May and April.



Winners will be announced

in The Florida Bar News in June.


I




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs