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Who Controls Water Use?
by Rebecca O'Hara
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Who controls water use? Florida’s complex system of water supply and water resource regulation does not lend a ready answer to this question. This article will attempt to frame an answer by breaking the question into two components: (1) who controls the withdrawal of groundwater or surface water, and (2) once it is withdrawn, who controls its supply or distribution for public use.
Control Over the Withdrawal of Water from Its Source
The Florida Water Resources Protection Act, codified in Chapter 373, Florida Statutes, creates a decentralized system of water management in Florida. Under this system, the Florida Department of Environmental Protection and the state’s five water management districts (WMDs) regulate water resources, including the withdrawal of water from ground or surface water for consumptive use.
WMDs require a consumptive use permit (CUP) for most withdrawals of water from either ground or surface water, in order to prevent harm to the water resources of an area. A proposed consumptive use of water must meet a statutory three-pronged test:
- the proposed use must be a “reasonable-beneficial” use;
- the proposed use must not interfere with any presently existing legal use of water; and
- the proposed use must be consistent with the public interest.
WMDs adopt administrative rules that elaborate further on requirements for meeting this three-pronged test. Such rules might require an applicant to demonstrate that all available water conservation measures are being used, or to use reclaimed water if available.
The Water Resources Protection Act grants to WMDs the exclusive authority for requiring permits for the consumptive use of water. In addition, the law clarifies the respective responsibilities of the WMDs and local governments with respect to water supply and water resources. The law provides that WMDs are responsible for water-resource development, including the development and implementation of regional water resource management strategies, data collection, protection of water resources, public works for flood control and storage, technical assistance, and aquifer recharge. On the other hand, the law provides that local governments are responsible for water supply development – capturing, treating and distributing water to end users.
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Control Over the Supply and Distribution of Water for Public Use
While state law preempts to WMDs the authority to permit the withdrawal of water from its source, the supply and distribution of that water is controlled by a variety of entities, depending on location. Such entities may include cities, counties, special districts, investor-owned utilities and regional water supply authorities. This aspect of control is accomplished through delineation of service areas in which water will be supplied, and establishing rates and fees for water use within those service areas. The following paragraphs will summarize how this is accomplished in the case of a municipality.
A municipality may engage in this aspect of control through the establishment of a municipal water supply system pursuant to Chapter 180, Florida Statutes. A municipality may not, however, construct a water utility or provide water service if a similar system is already being operated by another municipality or private company within the municipality or immediately adjacent territory, unless the other municipality or company consents. In addition, a municipality may exercise its water service authority outside its municipal boundaries, so long as the authority does not extend or apply within the corporate limits of another municipality. A city may, by ordinance, create a service zone within which all persons or businesses must connect with any water or alternative water supply system. The zone may not include areas within the limits of another municipality, and it may not extend for more than five miles from the corporate limits of the municipality.
A municipality has the authority to fix and collect rates, fees and other charges associated with its water services. The rate structure may provide a reasonable return to the city, and the city may charge different rates for out-of-city residents. A municipality’s authority over its water rates may be affected by conditions associated with its consumptive use permit from a WMD. In some instances, WMDs have required a government water utility to use a rate structure that encourages water conservation, such as an inverted-rate structure rather than a flat-rate structure. While a local government may argue that this interferes with its autonomy over rate-setting, the practice has been upheld by at least one court.
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Similarly, a municipality’s authority over water rates may be affected by conditions associated with any grants or loans it obtains from a WMD. Section 373.1961(2)(b) of the Water Resources Protection Act provides that for any utility that receives funds from a WMD for developing water supplies, the utility should develop rate structures that accomplish certain objectives, including providing reasonable progress toward the development and implementation of alternative water supply systems; providing for an appropriate distribution of costs among all users; and prohibiting rate discrimination within classes of utility users. In addition, WMD funding for a water reuse system may include grant or loan conditions that require the metering of reclaimed water, or require the use of rate structures for reclaimed water.
If a municipality does not engage in the supply and distribution of water within its jurisdiction, these services may be provided by another entity, such as a county, another municipality, or an investor-owned utility. Conflicts over the control of water supply, namely disputes over future service areas, may arise between these various entities. In many cases, these conflicts can be avoided through the use of interlocal agreements that establish future service areas for competing utilities.
Conflicts also may arise between local governments and WMDs over the effect of proposed consumptive withdrawals in a given area. For instance, a local government may be concerned about the effects of a proposed land use and associated water withdrawal on area wetlands and well fields. In fact, local governments are charged with protecting these resources from the effects of future land uses through their comprehensive planning responsibilities. A WMD may object to a proposed comprehensive policy on the grounds that it impermissibly intrudes into the regulatory arena governed by consumptive use permits. Again, a local government can best avoid these conflicts through coordination – in this case, by working with a WMD to develop comprehensive plan policies that protect natural resources without intruding upon the WMD’s preemptive power to regulate consumptive water uses.
Rebecca O’Hara is assistant general counsel for the Florida League of Cities.
Reprinted from Quality Cities January/February 2005
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