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Finding Certainty in the New World of Alternative Water Supply Sources

Environmental & Land Use Law

With passage of the 2016 Water Bill,1 there is growing realization that Florida’s water resources are reaching sustainable use limits. Large swaths of our state have regulations restricting increased use of traditional, fresh water supplies, and there are more to come.2 These restrictions are geared toward protecting our natural resources from harm and signal the need for Florida to proceed wisely to develop alternative water supply sources. Anticipating these issues in 2014, the legislature charged Florida’s Department of Environmental Protection (DEP) with generating a comprehensive study of several alternative water supply sources — reclaimed water, stormwater, and excess surface water.3 This report, delivered to the legislature last December, contains a wealth of information and recommendations. DEP’s recommended actions embrace alternative sources, which are appropriate and timely. However, advance thought and priority must be given to the nature of alternative water supply sources and the needs of water users, as we embark down the road of integrating these sources with Florida’s water rights program.

From a water user standpoint, the common thread between reclaimed water, stormwater, and excess surface water is lack of reliability. The lack of reliability emanates from the fact these sources are all directly linked to rainfall. Since rainfall is not consistent, these water sources may not be available or will be inadequate during dry conditions — when water users most need their supply source. Reliability is the bedrock of water rights programs and the very attribute water users must have in a supply source. Water quality considerations are equally important.

Therefore, as Florida shifts toward developing alternative water supply sources, care must be taken to craft Florida’s programs in a manner that provides for the interests of wastewater treatment utilities, water users, and the environment. This article examines considerations associated with the identified alternative water sources to help discern strategies that will meet the needs of Florida’s growing population, businesses, and environment. Actions taken now can create the legal structure and incentives to capture and utilize alternative water supplies without increasing competition for traditional sources and also improve water resource sustainability.

Increasing Water Supply Limitations
In many regions of Florida, traditional supply sources are nearly “tapped out.” First, among Florida’s restricted water allocation regions, is an area known as the Southern Water Use Caution Area located in the Southwest Florida Water Management District (SWFWMD). The SWFWMD’s Northern Tampa Bay Water Use Caution Area, and Dover / Plant City Freeze Management Plan combine to further restrict water allocation in that region.4 Water allocation from traditional surface and groundwater sources is also limited in large portions of the South Florida Water Management District (SFWMD), as necessary to protect existing legal uses of water, assure water for Everglades restoration, and protect the water resources from harm.5 Other regions are feeling a similar pinch. The joint Central Florida Water Initiative (CFWI) Regional Water Supply Plan found: “[U]tilization of traditional groundwater is near, has already reached, and in some areas has exceeded the sustainable limits.”6 Florida’s legislature required the DEP to adopt uniform consumptive use regulations for the Central Florida region by December 2016.7 The 2016 Water Bill also creates the Springs and Aquifer Protection Act to address both water quantity and water quality issues in spring sheds.8 With demands for fresh water growing and traditional water sources becoming increasingly limited, the trend toward reliance on alternative water supply sources to meet escalating demands will continue.

Summary of Reclaimed Water’s Uniquely Crafted Regulatory Structure
Legislative findings serve as the predicate for Florida’s wastewater reuse programs and indicate encouragement and promotion of reuse of reclaimed water is a state objective and use of treated reclaimed water is environmentally acceptable.9 Further, statutes recognize Florida’s interest in sustaining its water resources through use of reclaimed water, which must be balanced with the need of utilities to operate reclaimed water systems, while considering regulatory and financial topics.10 This guidance has and will serve as a valuable basis for proceeding forward. F.S. §373.019(17) defines reclaimed water as “water that has received at least secondary treatment and basic disinfection and is reused after flowing out of a domestic wastewater treatment facility.” DEP regulates domestic wastewater treatment facilities by setting forth regulations concerning facility construction and operation. Further, and in anticipation of distributing treated wastewater to various end-users and resources, DEP’s program details requirements for irrigation use or groundwater recharge and injection of reclaimed water.11

In summary, these programs are geared toward public health and safety and environmental protection; hence, many DEP rules focus on treatment and human exposure, either direct or indirect, to wastewater. For example, direct contact of reclaimed water with an edible crop that will not be peeled, skinned, cooked, or thermally processed before human consumption, is prohibited.12 Interestingly, DEP’s S.B. 536 report recommends reconsideration of these rules.13

Particularly relevant to lawn irrigation, DEP’s program encourages reuse of reclaimed water by requiring wastewater treatment facility applicants to prepare reuse feasibility studies if their facility is located in a water resource caution area.14 These feasibility reports may also be used by utilities in the consumptive use permitting process. In this manner, utilities plan for and are prepared to provide reclaimed water as a water supply source to reclaimed water end users. Pursuant to an additional set of laws and rules, integrating treated wastewater with supply demands and available water supply sources becomes a matter addressed by wastewater utilities, water management districts, and reclaimed water end users.

Florida’s five water management districts (WMDs) have exclusive authority to allocate water for consumptive use.15 Yet, WMDs may not require a consumptive use permit for the use of reclaimed water.16 Instead, the relationship between WMDs and wastewater treatment facilities that provide reclaimed water focuses first on funding infrastructure. Specifically, infrastructure associated with delivering reclaimed water to end users, commonly called “purple pipes” for their distinctive PVC coloring, is eligible for state and WMD funding.17 Storage tanks, pump stations, and other infrastructure components are also funded.18

In the regulatory arena, reclaimed water supplies are considered an alternative water supply source that can be used to meet demands to the extent such use is economically, technically, and environmentally feasible.19 In general, all consumptive use permit applicants are essentially considered as potential reclaimed water end users. This program typically focuses on irrigation users since reclaimed water may be the lowest quality water acceptable for an intended use.20 Limited availability of fresh water supply is another dynamic influencing permit application review. Even after issuance of a fresh water allocation, a continued interface exists because conditions require ongoing investigation of whether using reclaimed water becomes feasible.21

Another set of regulations, as next described, are geared toward incentivizing wastewater treatment facilities and their public water supply utility counterparts to provide reclaimed water to irrigation water users. These programs weave reclaimed water supplies back into the fabric of Florida’s water resources, creating reliance on continued delivery of the reclaimed supply from both reclaimed water user and water resource impact perspectives.

First, the “impact offset” program fosters use of reclaimed water to offset drawdowns projected to occur due to withdrawal of groundwater. Section 373.250(5)(a)1 defines impact offset to mean: “[T]he use of reclaimed water to reduce or eliminate a harmful impact that has occurred…as a result of other surface water or groundwater withdrawals.” In practice, delivery of reclaimed water is included in an applicant’s modeling analysis as a water source, which, in the modeling analysis, both meets an irrigation demand and acts to recharge the aquifer, avoiding resource impacts.22 It is the ability to reduce impacts and attain additional allocation of water, which encourages distribution of reclaimed water to areas in which a utility seeks expansion of wellfield withdrawals. The recharge effects can benefit any water use permit applicant who includes the assumption in their modeling analysis. The WMDs, by allocating water based on the assumed delivery of reclaimed water and its recharge benefits, create a dependency in that, without the delivery of reclaimed water, harmful impacts may occur. Thus, Florida and its water users have an on-going interest in continued delivery of reclaimed water.

The substitution credit program works in a similar manner. Section 373.250(5)(a)2 defines substitution credits to mean:

“[T]he use of reclaimed water to replace all or a portion of an existing permitted use of resource-limited surface water or groundwater, allowing a different user or use to initiate a withdrawal or increase its withdrawal from the same resource-limited surface water or groundwater source provided that the withdrawal creates no net adverse impact on the limited water resource or creates a net positive impact if required….”

Here, provision of reclaimed water effectively replaces existing withdrawal from the groundwater source as the irrigation user terminates all or part of their allocation of fresh water and shifts to use of reclaimed water. Implementation occurs via execution of a contract between the wastewater treatment facility and reclaimed water user. A variety of matters may arise in this contractual setting as one user shifts from a reliable, free water source to purchase the reclaimed water supply, particularly in the event a contract is terminated when fresh water is no longer available for allocation. With both the impact offset and substitution credit incentive programs in place, expansion of reclaimed water distribution pipelines and contracts to provide reclaimed water to irrigation users can be expected, increasing reliance on both recharge effects and irrigation demand for reclaimed water supplies. Expansion of public water supply use, benefiting from the creation of available supply will result. There is one more driving factor.

Irrigation water use, inherently, occurs during dry conditions. When it is raining, irrigation to meet plant water needs is reduced. Thus, demand for irrigation water supply is not constant. This disparity is vexing when matching reclaimed water supplies, a steady volume that must be disposed of for public health and safety, with a widely varying irrigation demand.23

Upcoming Issues
Supplemental Sources, the Paradox of Using Freshwater to Augment Reclaimed Water — As discussed, Florida’s consumptive use regulatory structure is geared to facilitate expansion of irrigation use of reclaimed water. Given the disparity between consistently available volumes of reclaimed water and fluctuating irrigation demands, alternatives to even this imbalance must be also implemented. DEP’s S.B. 536 report explains how utilities are hamstrung in their ability to commit reclaimed water supplies to too many irrigation users, in light of dry season demands potentially outstripping available supplies. The report lists five options to address the situation.24

Today, utilities apply for allocations from surface or groundwater to supplement the reclaimed water flow in dry times, thereby minimizing disposal and providing reclaimed water to more users — both worthy objectives. Consumptive use permits are issued for such supplemental water supplies, creating a water right.25 Once authorized, the right to that quantity of water will be protected as an existing legal use, regardless of the periodic, actual use of water. Subsequent permit applicants may be denied an allocation of supplies “locked up” by the intermittently used, supplemental withdrawal. If no other sources are available and the user cannot otherwise develop alternative supply sources, the request for water allocation is denied. Thus, the question becomes to what extent authorizing “supplemental” allocations to augment reclaimed water delivery in dry times exacerbates growing shortages of freshwater sources available to allocate.

As structured, the program does not consider effects of the supplemental allocation on preserving availability of traditional sources of water for future applicants, many of whom, largely due to cost or type of use, will not be able to rely on alternative supply sources. DEP’s S.B. 536 report does not examine this aspect of expanding irrigation use of reclaimed water. The report recommends supplementing reclaimed water with stormwater sources; however, unless storage is provided, stormwater will not be available in dry times when it is needed. Options exist to more optimally structure Florida’s reuse program. This paradigm shift would maximize use of all available sources and provide resource benefits in other arenas as well.

Reliance on Recharge — As mentioned above, the return of reclaimed water back into the natural system as an irrigation supply source adds a recharge source, too. This recharge effect is accounted for in models used to assess water availability as a part of the permit application process, offsetting impacts that could restrict allocation. The situation becomes complex when utilities provide reclaimed water to irrigation users pursuant to a terminable contract. If the contract is terminated, the recharge effect may cease, even though unrelated consumptive use permits may have, in the intervening time, been issued in reliance on assumption that the benefits of recharge will continue.

Water Quality — Expanding reuse of reclaimed water can have the unintended consequence of introducing nutrients to the watersheds of impaired waterbodies or create buildup in soils, which could impact irrigated grass or crops. DEP’s domestic wastewater treatment facility regulations address treatment and disinfection requirements for reuse of reclaimed water.26 However, the secondary treatment standards do not fully address nutrients, meaning reclaimed water distributed for reuse contains nutrients. Many waterbodies in Florida are identified as nutrient-impaired; with the recently adopted 2016 Water Bill, others will likely follow, particularly in spring sheds.27 Once impaired, water quality improvement measures, such as Basin Management Action Plans (BMAPs), follow. As DEP’s S.B. 536 report notes: “[O]ne of the sources that is often identified in the BMAP process is wastewater effluent.”28 One focus of the new F.S. Ch. 373, Part VIII, is eliminating septic tanks in priority focus areas. This may involve conveying wastewater to central treatment facilities. Disposal will be necessary. Logically, it follows that increased volumes of reclaimed water will be available for use. Nutrient content will present issues if reclaimed water is provided for irrigation use in spring sheds. Regardless of location, irrigation water users of reclaimed water may be unaware of potential water quality ramifications as BMAPs are adopted and tailored to address nutrient impairment. Florida’s reuse program should better anticipate these topics.

Stormwater, Excess Surface Water, and Storage
As the name implies, stormwater is just that — water from rain events. Stormwater is typically collected in man-made lakes via roadside swales and other surface water management features. Here, the stormwater is detained, letting particles settle out, providing water quality enhancement and aquifer recharge. Eventually, the water is discharged offsite as landowners do not store more water than the pre-development condition of their land. Yet, providing storage of stormwater above volumes required in the permitting program may provide an opportunity for increasing volumes stored on a regional scale benefitting both supply and quality programs.

As to excess surface water, there are complex questions associated with identifying what surface water is, in fact, “excess” in light of the needs of existing water users and the natural environment. Similar to stormwater, excess surface water is not a sufficiently reliable or certain source of water supply.29 When considering these water sources in the context of Florida’s water allocation program, it is critical to recognize these supplies, while valuable, are not likely to be available during dry conditions. However, with sufficient storage, both stormwater and excess surface water may be converted into valuable sources of aquifer recharge and water supply.

The recently amended F.S. §373.4591 explains increased legislative encouragement for such storage. Here, the legislature encourages public-private partnerships that accomplish water storage, groundwater recharge, and water quality improvements on private land. Further, priority consideration is to be given to public-private partnerships that, among other topics, store or treat water on private lands for the purpose of enhancing hydrology, improving water quality, or assisting supply.30

Putting the Pieces Together to Craft Reliable, Long-Term Solutions
Treated wastewater is a resource that presents opportunities and issues. Once seen as simply needing disposal to address public health and safety concerns, reclaimed water is now a valuable resource being reused to meet Florida’s growing supply needs. This article reviewed the existing regulatory structure associated with reclaimed water, stormwater, and excess surface water, focusing on how these rules relate to Florida’s water right program. This summary intends to increase awareness of these alternative sources and Florida’s water right program so that linkage of the two will provide lasting benefit to Florida’s water resources and water users.

One option to better match reclaimed water reuse with Florida’s water resources and water rights program is to examine which reuse projects receive state funding. Prioritizing state and WMD funding to incentivize reuse projects that optimally serve water supplies and resources begins by identifying the best matches between supplies, user interests, and the natural resource. As an example, funding priority could be weighted and given to encourage industrial use of reclaimed water. Next, projects providing storage, nutrient treatment, aquifer recharge, or environmental recovery should receive priority funding. To encourage investment, funding for operation of recharge projects as water resource development projects should be provided. Funding operational expenses would assure continued treatment of this valuable source and provide aquifer recharge and environmental enhancement. Finally, if irrigation use of reclaimed water is intended, then projects that do not increase reliance on fresh supplies should be encouraged. Reuse-based irrigation projects receiving state or WMD funding should combine 1) treatment to reduce nutrients; 2) supplementation with stormwater or excess surface water; and 3) storage so that irrigation demands can be met without traditional source water allocation.

Safely disposing treated wastewater is a societal issue warranting statewide support. Reusing reclaimed water is a wise use of a valuable resource. However, care must be taken to assure reuse of reclaimed water does not have the unintended consequence of affecting the ability to meet water quality regulations or reducing water available for future water development in Florida. Similarly, continuing and increasing funding for public-private partnership projects that accomplish storage, recharge, and quality improvements will help Florida assure we make the most of one of Florida’s most valuable resources — rainfall. Florida’s next steps toward developing its alternative supply sources will critically impact our water resource future. Decisions and infrastructure investments made now will influence whether future water availability becomes more or less capable of sustainably meeting Florida’s growing needs.

1 Ch. 2016-1, Laws of Fla.

2 See, e.g., SWFWMD, 2010 Regional Water Supply Plan, Southern Planning Region, Ch. 2, Part A; Southern Water Use Caution Area (SWUCA) Recovery Strategy (2006); SWUCA Recovery Strategy Five-Year Assessment for FY 2007-2011; SFWMD, Lower East Coast Water Supply Plan (2000) and Central Florida Water Initiative (CFWI) Regional Water Supply Plan (RWSP), Vol. I, Planning Document (2015); see also Fla. Stat. §373.0465; Fla. Stat. §373.805.

3 S.B. 536 (2014); Florida Dep’t of Environmental Protection, Office of Water Policy, Report on Expansion of Beneficial Use of Reclaimed Water, Stormwater and Excess Surface Water (Senate Bill 536) (Dec. 1, 2015) (hereinafter “S.B. 536 report”).

4 See Fla. Admin. Code Chs. 40D-2, 40D-8, 40D-26, and 40D-80; SWFWMD, Applicant’s Handbook for Water Use Permit Applications, Part B (effective May 19, 2014).

5 See Fla. Admin. Code Chs. 40E-2 and 40E-8; SFWMD, Applicant’s Handbook for Water Use Permit Applications (effective Sept. 7, 2015).

6 Central Florida Water Initiative (CFWI) Regional Water Supply Plan (RWSP), Vol. I, Planning Document (2015), Executive Summary at vi.

7 Fla. Stat. §373.0465.

8 Fla. Stat. Ch. 373, Part VIII.

9 Fla. Stat. §373.250(1)(a) (2015); Fla. Stat. §403.064 (2015).

10 Fla. Stat. §373.250 (2015).

11 Fla. Admin. Code Ch. 62-610.

12 Fla. Admin. Code R. 62-610.475(4); S.B. 536 report at 38.

13 S.B. 536 report § at 39.

14 Fla. Stat. §403.064 (2015); Fla. Stat. §403.086(9) (2015).

15 Fla. Stat. §373.217 (2015).

16 Fla. Stat. §373.250(3)(b) (2015).

17 Fla. Stat. §373.705 (2015).

18 Fla. Stat. §373.536 (2015).

19 Fla. Stat. §373.250(3)(c) (2015).

20 Fla. Admin. Code R. 62-40.310(1)(g); see, e.g., SFWMD, Handbook at 2.2.3

21 See, e.g., SFWMD, Handbook at 5.2.2 H.

22 See, e.g., SFWMD, Handbook at 3.1.2.

23 S.B. 536 report at 31.

24 “In a mature reclaimed water system where traditional sources are limited, typically only 50 [percent] to 70 [percent] of treated wastewater flows go to reclaimed water customers….Utilization is limited primarily by seasonal differences in the supply and demand of reclaimed water and the availability of storage or supplemental sources.” Utilities may develop supplemental sources to meet more irrigation demands to prevent unused disposal. Id. at 31-33.

25 Criteria for supplemental water allocation are geared toward issuance of permits to supplement reclaimed water flow by assessing whether the allocation will “increase the amount of reuse, thereby resulting in the reduction in overall use of higher quality sources for non-potable uses….” See, e.g., SFWMD, Handbook at 2.2.4.A.2.

26 Fla. Admin. Code R. 62-600.420.

27 Ch. 2016-1, Laws of Fla.

28 S.B. 536 report at 35. DEP’s report recommends linking nutrient content with fertilizer regimes.

29 S.B. 536 report at 50.

30 Fla. Stat. §373.4591

Elizabeth Ross is a board certified, of counsel shareholder practicing at Gunster’s West Palm Beach and Orlando offices. She received her J.D. from the University of Florida and specializes in Florida water law. Prior to Gunster, Ross served for 30 years at South Florida Water Management District.

Deborah Madden is an attorney with Gunster’s Ft. Lauderdale office focusing on environmental law. She received her J.D. from the University of Florida, magna cum laude, in 2012. She represents clients in permitting, compliance, and litigation matters involving wetlands, water supply, listed species, mitigation banking, submerged lands, and coastal construction.

This column is submitted on behalf of the Environmental and Land Use Law Section, Vivien Monaco, chair, and Susan Martin, editor.

Environmental & Land Use Law