January 2003

Water, Water Everywhere? 

Part II

In 1972, Florida enacted the Florida Environmental Land and Water Management Act, the Florida Water Resources Act, ² and the Land Conservation Act,³ thereby becoming one of 11 growth management states.⁴ While these statutes provide that regional and state issues be considered in land use and development issues, there is no linkage between land use and water use, with the exception of taking into consideration current water facilities as a concurrency issue.⁵

California has taken a lead by introducing such a linkage. "For the first time in California's history, statewide government policy has linked land-use and growth issues to water supply [with the passage of a law which requires developers] to prove there is a 20-year supply of water before they are given permits to build subdivisions with more than 500 units."⁶ There are no positive indications that Florida will follow California's lead in taking such a step. A coordinator with the South Florida Regional Planning Council indicated that while Florida land management and water agencies were aware of the California decision, a bill considering linkage that was proposed in Florida's previous legislative session did not pass.⁷ He indicated that it "would be easy for the Regional Planning Councils to support this measure," were it to pass.⁸

One observer of the challenges faced by Florida in reconciling growth and management has discussed the need to link land development with water permitting, and, in so doing, has supported the views of the Third Environmental Lands Management Study Committee, which identified this need as the "missing link."⁹ "Except for limited provisions, Florida law does not establish a formal link between land planning and water planning . . . [which] is a significant 'missing link.'"¹⁰ Regulatory programs predominate in Florida for both land and water use. Although permitting is an efficient tool, its function is not intended to substitute for effective local government planning. Comprehensive planning that links land development with water resources and that incorporates environmental thresholds and optimum carrying capacity is needed. "[A] combination of good planning and other nonregulatory tools such as land acquisition, conservation easements and transferable development rights should be used to protect the important habitat and direct growth away from it."¹¹ This currently does not occur. The following observations have been made regarding existing land and water management deficiencies in Florida in which permitting appears to have taken the place of planning:

Federal, State, regional, and even local wetland and water regulation programs issue permits for land development by looking at the potential adverse effects of the particular development on water resources. These programs do not plan for future land development. Also, these programs do not use and identify and implement long-range goals, objectives and policies based on a comprehensive assessment of natural resources in a particular area in light of future growth projections and community needs and desires. Using a regulatory program to attempt to achieve proper land use planning is a losing proposition. Planning decisions cannot be made when a developer requests a permit application. All that can be done at this point is minimize environmental impacts through engineering treatment technologies and wetland mitigation. The burden is passed on to the permitting agency, rather than being dealt with as a land use and natural resource protection policy.¹²

The following description of the state's existing legislative and regulatory scheme may be helpful to better understand what is missing from Florida's approach to land development and water management, with its emphasis on regulation.

• The Environmental Land and Water Management Act (ELWMA)

The ELWMA established two regional planning mechanisms in addressing Florida's growth management system: the area of critical state concern (ACSC) and developments of regional impact (DRI). Both of these designations require that the state take specific action modifying local government authority for land development in their jurisdictions. Areas designated as ACSCs may be established pursuant to F.S. §380.05. An ACSC is a program providing for the identification of up to five percent of the state's land as an ACSC. It is an area that contains or has a significant impact on "environmental or natural resources of regional or statewide importance."¹³ A development receives a DRI designation pursuant to F.S. §380.06 "because . . . its character, magnitude, or location, would have a substantial effect upon the health, safety, or welfare of citizens of more than one county."¹⁴

• The Florida Water Resources Act

The principal statutory scheme governing water in Florida is contained in the Florida Water Resources Act. This statute created the regional water management districts, which were established along surface water hydrologic boundaries rather than along political boundaries. Additionally, it provided for district decisionmaking by governing boards, with members to be appointed by the governor and confirmed by the senate.¹⁵ The Water Resources Act originally identified five primary programmatic areas of water management district functions: 1) the construction and operation of district works; 2) planning for, management, and permitting of consumptive uses of water; 3) supervision of water well construction; 4) regulation of systems that manage or store surface waters; and 5) evaluation of water supplies and other resources within the district.¹⁶

Since the implementation of the Water Resources Act, the districts have been given additional responsibilities, either by the legislature or by way of delegation by the DEP. These have included responsibility for the development of groundwater basin resource availability inventories, environmental resource permitting, surface water improvement and management (SWIM) programs, acquisition and management of certain lands, and restoration of the Everglades and Florida Bay.¹⁷

The principal objective of the act, which has again been amended since 1997, is to harness and provide more water for human consumption and natural systems. To that end, the act directs water management districts to engage in active water resource development and, in so doing, to harness more water for Florida's end users.¹⁸ That is the main shift from the earlier regulatory approach, when the focus was principally on the allocation of available water rather than the exploitation of additional sources of water. The amendments are a "product of . . . political clashes [resulting in] a statutory scheme purposefully designed to increase water resources. For the first time, the state's water policy focused on the development of water resources and water supply, rather than merely allocating water among competing users."¹⁹

The 1997 amendments to the act introduced a requirement that the water management districts develop their own regional water supply plans. This was due to anticipation that sources of water would be inadequate to meet projected demands of the year 2020.

In addition to traditional ground and surface water sources, the plans typically call for better conservation of water resources and development of more "drought resistant" water supplies including demineralization of brackish groundwater, desalination of seawater, and reuse of reclaimed water. Storage options were also evaluated in some of the plans, including water reservoirs, aquifer recharge and aquifer storage and recovery (ASR).²⁰

• Florida Water Plan

The Water Resources Act mandates that a water quality standards system be developed and coordinated with the state water use plan.²¹ These two components together constitute the Florida Water Plan, pursuant to F.S. §373.039. The act required that a state water use plan be formulated, which was, inter alia, to identify existing and future needs and uses of water, existing water resources, and the means for conserving and augmenting these resources.²² While a water use plan has since been developed, it is rarely invoked to resolve a water supply issue. This is due to its lack of enforcement powers, its nonbinding nature, and its failure to introduce a link between water management and land use and planning. The plan's emphasis is on addressing water supply, maximizing the availability and capture of water, and developing alternative sources of water, rather than establishing any environmental threshold carrying capacities. In doing so, it relies on technology, rather than good planning, to respond to water pressures and to cater for increased water demand.²³ It appears to reinforce the status quo, which relies heavily on technology to extract water to meet increasing demand. This technology includes the promotion and development of wastewater recycling, desalination, and ASR injection. Such technology-dependent measures, in particular with regard to ASRs, are not risk-free.

F.S. §373.016(3) vests power and responsibility in the Florida Department of Environmental Protection to conserve, protect, manage, and control Florida waters. This statute gives DEP sufficient flexibility and discretion to accomplish these ends through delegation of appropriate powers to the various water management districts. DEP is responsible for state level administration of the Florida Water Resources Act, and it is charged with the responsibility of developing the Florida water plan, a state water policy, and a state water use plan.²⁴ It has delegated many of its functions to the districts, which is permitted by the Water Resources Act.²⁵
• Permitting

Water use permitting, a discretionary tool, has taken center stage in Florida and has steered water management in Florida to a much greater extent than water supply planning. This development is contrary to the intention of the authors of A Model Water Code, on which the planning provisions of the Water Resources Act are based. Consumptive use permitting (CUP) and environmental resource permitting (ERP) underpin Florida's regulatory environment, administered by the managers of the water management districts.

Permitting, however, does not address planning issues:

Neither ERP nor CUP is aimed at directing types, densities or intensities of land development, determining where large tracts of land should be preserved, or addressing resource issues that relate solely to upland or non-water related concerns. Instead, water management permitting requirements frequently can be met through engineering solutions and project design regardless of whether the project is in an appropriate location or of an appropriate density or intensity.²⁶

CUPs. Consumptive use permits are one of the principal features of the Water Resources Act. The necessity of such permits for any given user is left up to the discretion of the individual water management districts.²⁷ It is only the South Florida Water Management District that regulates water use of less than 100,000 gallons per day.²⁸ A permit is required in the other four water management districts only if a user exceeds a certain threshold of water use.²⁹ This threshold includes any one of the following: 1) a total withdrawal capacity of one million gallons per day; 2) an annual average withdrawal equal to or in excess of 100,000 gallons per day; or 3) withdrawal from a well having an outside diameter of at least six inches.³⁰

F.S. §373.223 sets out conditions for water permits and contains a three-pronged test. Irrespective of ecological concerns, permits are issued when they meet the following three criteria that draw upon Florida's common law tradition of riparian rights: The use must be "a reasonable-beneficial use"; it must be "consistent with the public interest"; and it must "not interfere with any presently existing legal use of water." A determination of whether a use meets this requirement is made on a case-by-case basis.

ERPs. Land development over a specified size is regulated under the ERP program.³¹ This program provides for jurisdiction, inter alia, over most land development systems, from buildings to roads and mines, whether occurring in uplands, wetlands, or other surface waters. There are exemptions from the ERP requirements, which are found at F.S. §§373.406 and 403.813 and Fla. Admin Code Ann. Rule 40C-4.051; one of the most significant exemptions covers agricultural, silvicultural, and horticultural activities. Rule 40C-4.301 provides, inter alia, for the prohibition of any activity that would adversely impact water quantity, violate a state water quality standard, or adversely impact wetlands and other surface waters. Engineering design solutions are often adopted to overcome water quality and quantity concerns in order to meet the applicable criteria, and mitigation to offset wetland impacts are regularly implemented to protect wetland functions.

Water management regulation, whether by way of ERP or CUP, does not address planning concerns and issues concerning densities or types of land development, or relating to upland or concerns that do not pertain to water.

Instead, water management permitting requirements frequently can be met through engineering solutions and project design regardless of whether the project is in an appropriate location or of an appropriate density or intensity It would a very rare case where, given enough financial resources and engineering know-how, a project could not be designed to meet the ERP criteria.³²

• Minimum Flows and Levels

The Water Resources Act requires the state to establish the "minimum flow" of water and "minimum water level" in the aquifer at which "further withdrawals would be significantly harmful to the water resources or ecology of the area."³³ That requirement has been on the statute books since the enactment of the Water Resources Act in 1972. By the early 1990s, water management districts had, on the whole, failed to implement this directive, and citizens' groups litigated to force water management districts to protect minimum flows and levels, which, they claimed, were deteriorating as a result of environmental stressors, including saltwater intrusion, lowering of groundwater tables, loss of wetlands, and exotic infestation.³⁴

The result has been to strike a balance between water resource protection and economic growth with the amendment of the Water Resources Act and the passage of F.S. §§373.042 and 373.0421. In order to achieve that balance, the criteria for establishing minimum flows and levels were changed, with water management districts not being required to reestablish historic levels.³⁵

Another significant amendment established a priority list by each water management district, consisting of a schedule for establishing minimum flows and levels for surface water and aquifers located in each district. Because the legislature removed language in the statute that required districts to set minimum flows and levels, water management districts are no longer subject to potential litigation seeking that a level or flow be addressed. Additionally, there is no longer a requirement to set minimum flows and levels for water bodies under 25 acres in size.³⁶

According to a water management district attorney, even though these statutes are more than 20 years old, "they are up for interpretation. We haven't had a lot of litigation because we haven't gotten to the point of water wars. But I think as growth increases in South Florida and we are forced to send more water to the Everglades, we're going to be going to court on these statutes."³⁷

• The Land Conservation Act

The Land Conservation Act provides that the state may establish a system permitting it to acquire land for conservation purposes and for the public good.³⁸ The Conservation and Recreation Lands Trust Fund may be tapped to acquire lands pursuant to this statute and, in such acquisitions, priority is given to highly populated counties, in addition to lands designated as areas of critical state concern.³⁹

Recent Developments

Recently, in Tahoe-Sierra Preservation Council, Inc., v. Tahoe Regional Planning Agency, 122 S. Ct. 1465, 1470 (2002), the U.S. Supreme Court found that a 32-month moratorium on development around Lake Tahoe did not constitute a partial taking pursuant to the categorical rule announced in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Takings law stems from the final clause of the Fifth Amendment,⁴⁰ which provides that "private property [shall not] be taken for public use without just compensation," and applies to states and the federal government.

In order to preserve the integrity and beauty of Lake Tahoe, California and Nevada entered into the Tahoe Regional Planning Compact, which was approved by Congress in 1969. This was amended extensively in 1980 to tighten controls over the new residential construction around the lake. The 1980 amendments to the compact directed the Tahoe Regional Planning Agency, the agency charged with implementing the compact, to "coordinate and regulate development in the Basin and to conserve its natural resources," and to develop "regional environmental threshold carrying capacities."⁴¹ This was a broad term encompassing "standards for air quality, water quality, soil conservation, vegetation preservation and noise."⁴²

The compact provided that the TRPA would adopt such standards and ultimately adopt an amended regional plan that implemented and maintained those carrying capacities. In order to achieve this timetable, the compact itself provided that all new subdivisions, condominiums, and apartment buildings would be prohibited, and proscribed all cities and counties within the basin from granting any additional permits.⁴³ A new regional plan was ultimately adopted on April 26, 1984.

Among the petitioners were approximately 2,000 owners of improved and unimproved land in the Lake Tahoe basin, in addition to other individual landowners of vacant lots who had purchased their properties prior to the effective date of the 1980 compact. The sole issue before the Court was "whether the rule set forth in Lucas applies"—that is, whether a categorical taking occurred because Ordinance 81-5 and Resolution 83-21 denied the plaintiffs "all economically beneficial or productive use of land."⁴⁴ The court held that there was no such categorical taking, and upheld the decision of the Court of Appeals, finding that the actions taken by TRPA did not constitute an unconstitutional taking of petitioners' property. Lucas was distinguished by the Court as being confined to the relatively rare case in which a regulation permanently deprives an entire parcel of all productive use. In this instance, the moratoria were limited to only a temporal slice of the affected landowners' fee interest.

Thus, land management agencies in Florida have a new tool at their disposal to protect land and water resources in their planning process where circumstances warrant a temporary halt on development. F.S. Ch. 70 protects private property rights where action of the state or political entities in Florida may "inordinately burden, restrict, or limit private property rights without amounting to a taking under the state constitution or the United States Constitution" and provides for "a distinct cause of action from the law of takings . . . when a new law, rule, regulation, or ordinance of the state or a political entity in the state, as applied, unfairly affects real property."⁴⁵ The term "inordinate burden" expressly excludes "temporary impacts to real property."⁴⁶ Provided that the action constituted a "temporary impact," a moratorium on development similar to that implemented by the Tahoe Regional Planning Agency would be likely upheld as permissible, under both Ch. 70 and under the Florida and U.S. constitutions.

Water for sale. Included in the DEP's water conservation initiative is a recommendation to "consider the use of market principles" in the allocation of water.⁴⁷ Introducing such principles may be difficult to reconcile with the current designation of water as a public resource in Florida and may pave the way to placing water on the open market. In 1999, Azurix Corp., a subsidiary of Enron Corp., made a proposal to Governor Bush and DEP Secretary David Struhs that involved an offer to pay Florida's share of Everglades restoration in exchange for the rights to sell water from the restoration project.⁴⁸ While no agreement was ever concluded, the company attempted to have bills passed in the state legislature that would have supported limited water markets in Florida.⁴⁹ While water pricing by the state may have its merits, involving the attribution of a value to a precious resource, privatizing Florida's water may be difficult to reconcile with the conservation of water, each having opposing desired outcomes. If such a plan to privatize were implemented, the opportunity to link water planning with land planning by state agencies could thereby be lost for ever.

Conclusion

In Florida, the continued delivery of plentiful and clean water depends on our good management and stewardship. While the Everglades restoration plan has the potential to reverse some of the damage to the Everglades by replumbing parts of the Everglades, it is debatable whether it will be successful in restoring some of the Everglades' historic flow patterns.⁵⁰ "South Florida is depending on the massive Everglades restoration project to meet part of its future demands by storing water in reservoirs and deep wells."⁵¹ Whether successful or not, we should not be lulled into believing that we can rely on the Everglades restoration project to cure Florida's water woes. The proposal that land use planning be integrated with water management is one that merits consideration, but Florida's reliance on technology through its regulation program, established to meet the state's future water demand, may well be overly optimistic and, perhaps, short-sighted. There are limits to the capabilities of technology to deliver needed water and meet future demands. The implementation of comprehensive planning linking water supply with development in order to set limits, similar to those adopted by California, may be a tool Florida cannot afford to ignore. q

¹ See Fla. Stat. §380.012 et seq.

² See Fla. Stat. §373.013 et seq.

³ See Fla. Stat. §259.01.

⁴ The other growth management states are California, Georgia, Hawaii, Maine, Maryland, New Jersey, Oregon, Rhode Island, Vermont, and Washington. See A.C. Nelson & Terry Moore, Assessing Growth Management Policy Implementation: Case Study of the United States' Leading Growth Management State, 13 Land Use Pol y 4, 241-59 (1996).

⁵ Telephone Interview with John Hulsey, DRI Coordinator of the South Florida Regional Planning Council (May 7, 2002) (hereinafter Hulsey interview).

⁶ Show Me the Water, Sierra 17 (March/April 2002).

⁷ Hulsey interview, supra note 5.

⁸ Id.

⁹ Mary Jane Angelo, Integrating Water Management and Land Use Planning: Uncovering the Missing Link in the Protection of Florida's Water Resources?, 12 Fla. J. L. & Pub. Pol'y 223, 235 (2001) (referring to the Envt'l. Land Mgmt. Study Comm., Building Successful Communities 6 (1992)).

¹⁰ Id. at 223.

¹¹ Id. at 234.

¹² Id. at 232.

¹³ See Fla. Stat. §380.05(2)(a).

¹⁴ See Fla. Stat. §380.06(1).

¹⁵ See Fla. Stat. §373.069 (2001). The 1972 statute established six water management districts; however, the statute was amended in 1977 to reflect the current five districts. These include the South Florida Water Management District, the Southwest Florida Water Management District, the Northwest Florida Water Management District, the Suwannee River Water Management District, and the St. John's River Water Management District. Section 373.073 provides that governing board appointments are made according to hydrologic basin boundaries (three districts) or county jurisdictions (two districts). The Southwest Florida Water Management District has an 11-member governing board and all other districts have nine-member boards. See Fla. Stat. §373.073.

¹⁶ See Angelo, supra note 9, at 230. See also Fla. Stat. §373.086-.087 (2002) and Parts II-IV (1973).

¹⁷ See Angelo, supra note 9, at 230. See also Fla. Stat. §373.0395 (availability inventories); §§373.414, .427, .441 (resource permitting); §§373.453- .459 (SWIM programs); §§259.032, .101, and 373.59 (acquisition and management).

¹⁸ See Fla. Stat. §373.0831(3).

¹⁹ Frank E. Matthews & Gabriel E. Nieto, Florida Water Policy: A Twenty-Five Year Mid-Course Correction, 25 Fla. St. U. L. Rev. 365, 366 (1998).

²⁰ Fla. Dept. of Envt l. Prot., Florida Water Plan, at 14 (December 2001).

²¹ Fla. Stat. §373.039.

²² Id. at §373.036.

²³ Jeffrey Rothfeder, Focus, Boston Globe, January 6, 2002, at E8 ("[W]hile richer countries like the United States have been able to cover up water shortages with engineering sleights of hand, this strategy is backfiring: Southeast Florida, Southern California, and Atlanta are all likely to be dry within 20 years if their growth patterns and mismanagement of water aren't sharply altered.").

²⁴ Fla. Stat. §§373.026, .036, and 403.061(33).

²⁵ Id. at §§373.026, .043.

²⁶ Angelo, supra note 3, at 230.

²⁷ Fla. Stat. §373.219, which provides that: "(1) The governing board or the department may require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure that such use is consistent with the overall objectives of the district or department and is not harmful to the water resources of the area. However, no permit shall be required for domestic consumption of water by individual users. (2) In the event that any person shall file a complaint with the governing board or the department that any other person is making a diversion, withdrawal, impoundment, or consumptive use of water not expressly exempted under the provisions of this chapter and without a permit to do so, the governing board or the department shall cause an investigation to be made, and if the facts stated in the complaint are verified the governing board or the department shall order the discontinuance of the use."

²⁸ See Fla. Admin. Code Ann. R. 40E-20.302 (1996).

²⁹ See Fla. Admin. Code Ann. R. 40D-2.041(1).

³⁰ Id.

³¹ See Fla. Stat. part IV, ch. 373.

³² Angelo, supra note 9, at 230.

³³ See Fla. Stat. §373.042.

³⁴ See Concerned Citizens of Putnam County for Responsive Gov't, Inc. v. St. John's River Water Mgmt. Dist., 622 So. 2d 520, 522 (Fla. 5th D.C.A. 1993).

³⁵ See Fla. Stat. §373.0421(1) (2001).

³⁶ See id. at §373.0421(1)(b)(2).

³⁷ Kirk Semple, Running on Empty, Miami New Times, October 20, 1994, at p.5 of electronic document (quoting Cecile Ross, South Florida Water Management District attorney).

³⁸ Fla. Stat. §259.032(3)(d) (2001).

³⁹ See id. §259.032(1).

⁴⁰ U.S. Const. amend. V.

⁴¹ Tahoe-Sierra Pres. Council, Inc., 122 S. Ct. at 1471–72 (internal quotations omitted).

⁴² Id. at 1472 (internal quotations omitted).

⁴³ Id.

⁴⁴ Id. at 1476 (internal quotations omitted).

⁴⁵ See Fla. Stat. §70.001(1).

⁴⁶ See id. §70.001(3)(e).

⁴⁷ See Fla. Dept. of Envtl. Prot., Florida Water Conservation Initiative, Public Review Draft at 65 (Nov. 2001).

⁴⁸ Curtis Morgan, " Marketing" of Water Draws Fire, Miami Herald, at 4.

⁴⁹ See id.

⁵⁰ Id. Stuart Appelbaum, a U.S. Army Corps of Engineers ecosystems expert, and one of the authors of The Plan to Restore America's Everglades, commented, "It's clear to us we're not putting the system back the way it was. That would require removing 6 million people that live in South Florida, and the agriculture, and recontouring the land and putting it back the way it was. That s just not practical." Sarasota Herald-Tribune, August 20, 2000, at A1.

⁵¹ Amanda Riddle, Water Shortage Critical, Officials Say, Miami Herald, December 28, 2001.

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