Tapping the Last Oasis: Florida-friendly Landscaping and Homeowners’ Associations
“[W]ater has become imperiled, not through the deliberate actions of evil men,. . . but through the small doings of many — far too many — ordinary people, doing things the way they have always done them. That’s where the real danger lies.” 2
In developing countries, 20 to 30 liters (approximately 5.5 to 8 gallons) per day, per capita is considered sufficient to meet basic human needs.3 T he World Health Organization (WHO) and UNICEF estimate that a home with optimal water access will average 100 to 200 liters (approximately 26 to 52 gallons) per capita of water use per day.4 F lorida’s per capita use in 2000 was 174 gallons of water per day.5 T he rate varies significantly throughout the state from a low of 103 gallons in Okeechobee County to a high of 274 gallons in Nassau County.6
Florida’s Current Water Use and Projected Needs
Despite its nickname, it is water that defines the “Sunshine State.”7 The state is surrounded on three sides by ocean, receives an average of 54 inches of rain per year,8 and is home to 700 springs.9 In addition, 30 percent of Florida’s land surface is wetlands.10 When Florida became a state in 1845, “[I]t was an ‘empty, often impenetrable and endless land’ with 57,951 residents.”11 As of 2003, Florida was home to more than 17 million people and was the fourth most populous state in the union, behind only California, Texas, and New York.12 As of 2007, Florida’s population is approximately 18,807,219.13 For most of Florida’s history, the state tried to get rid of water in order to pave the way for development.14 Now, the greatest challenge is finding enough water for all the state’s residents.
1) Florida’s Current Water Use — Americans use 410 billion gallons of water per day (Bgal/d).15 Once-through cooling at thermoelectric power plants uses approximately 49 percent (201 Bgal/d) of the water.16 The largest consumptive water use is agricultural irrigation (128 Bgal/d).17 Public water supply18 accounts for 44.2 Bgal/d of water use.19 The remaining 33 Bgal/d is self-supplied water (that is, water obtained through a well that is not part of a public water supply system) used by industry, agriculture, and mining.20 Combined, California, Texas, Idaho, and Florida use more than 25 percent of the total water used in the United States.21 Floridians use 18,354 million gallons of water per day (Mgal/d).22 The majority of the water withdrawn (63 percent or 11,486 Mgal/d) is cooling water to generate 60 percent of Florida’s electric power.23 The remaining 37 percent (or 6,868 Mgal/d) is freshwater withdrawals.24
Historically, Florida’s agriculture consumed the majority of the freshwater used in the state.25 However, as the state’s population grew, agricultural land was transformed into residential subdivisions.26 As a result, the proportion of water used by agriculture decreased while the proportion of water used by the public increased.27 The Florida Department of Environmental Protection has estimated that sometime this year, public water supply use will exceed agricultural use.28 When domestic self-supply (i.e., homes obtaining water through a well that is not a part of a public water supply system) is included, residential use and agricultural irrigation are already nearly the same.29 Residential use accounts for 40 percent of Florida’s freshwater use.30
While water use across the country has declined, water use in Florida has increased on both an absolute and per capita basis.31 According to the Pacific Institute, “the nation withdrew less total freshwater in 2000 than it did in 1975, despite population growth.”32 In Florida, total freshwater withdrawals increased by 46 percent between 1970 and 2000.33 Florida has experienced tremendous population growth in that time period, so an increase in total use is probably to be expected. However, per capita use in 1955 was a little less than 140 gallons per day, while per capita use in 2000 was 174 gallons per day.34 Although assessing the reasons for this per capita increase may be complicated due to variations in data collection techniques over the years,35 irrigation of lawns and golf courses appears to account for most of the increase.36 Though this trend in water use in Florida may be changing (estimated per capita use in 2005 was 158 gallons per day37), if Florida continues to experience droughts like it did from 1999 to 2001 and 2006 to 2008, per capita use may increase as Floridians use more water during periods of drought than during periods of normal rainfall, primarily due to increased irrigation of lawns and crops.38
Florida receives 53 inches of rainfall per year.39 Nearly all of Florida’s residential use (90 percent) is groundwater, drawn from the Floridan aquifer.40 The amount of rain and the aquifer recharge rate vary throughout the state.41 Fifty-six percent of Florida’s rain falls north of Orlando; 78 percent of Florida’s population lives south of this so-called “hydrologic divide.”42 In some areas, more than 10 inches of rain per year return to the aquifer.43 In other areas, known as “discharge areas,” water flows out of the aquifer.44 The greatest rates of discharge occur in the southern part of the state where the majority of Florida’s population lives.45 The underlying soil composition affects the rates of recharge and discharge, but so does property development, as rain cannot soak through pavement.46 Fifty percent of Florida’s total freshwater withdrawals are in the South Florida Water Management District (SFWMD),47 which is south of the hydrologic divide and in an aquifer discharge area.
2) Florida’s Future Water Needs — All future growth in Florida now depends on availability of water.48 The Local Government Comprehensive Planning and Land Development Regulation Act, F.S. §§163.3164-.3217, requires in §163.3180(2)(a) that among other things, “adequate water supplies and potable water facilities shall be in place and available to serve new development no later than the issuance by the local government of a certificate of occupancy.” The same section also requires that prior to issuing a building permit, the local government must “determine whether adequate water supplies to serve the new development will be available no later than the anticipated date of issuance. . . of a certificate of occupancy.” The Department of Community Affairs will reject local comprehensive growth management plans and amendments if “they fail to adequately address water supply for new development consistent with the regional water supply development plans.”49
The Florida Water Resources Act of 1972, F.S. Ch. 373, requires in §373.036(2)(a) that each of the state’s five water management districts develop a management plan for the water resources within its region. The water management districts must base their plans on a 20-year planning period and update them every five years. The current planning period runs through 2025.50 2025, Florida’s population is expected to increase to 25 million, requiring an additional two Bgal/day of water.51 Although the water management plans have identified sufficient water resources to meet 2025 needs, in order to access this “new” water, it is necessary to build additional infrastructure.52 However, these building projects are behind schedule.53
Historically, Florida’s water management plans have not considered water use efficiency as a source of water.54 The state has many water conservation initiatives in place, but there is still much that can be done to increase efficiency, particularly in landscape irrigation.55 “As supplies become increasingly limited and expensive to develop, improving efficiency should become a priority” for the state of Florida.56 “In planning to meet future demands, water managers must consider not only the quantity of water needed. . . but also the location of the demand, and whether the water sources in the location of need can meet projected demand without harm to the natural system.”57
Florida-friendly Landscaping Statutes
1) 2001 Legislation — In 2001, Florida was in the midst of a destructive three-year drought.58 During the drought, rainfall plummeted 62 inches below average.59 Wildfires burned throughout the state; private wells went dry; and sinkholes opened in yards.60 Florida’s then governor, Jeb Bush, held a drought summit of state leaders who drafted an emergency plan.61 The state trucked water to parched towns and cities, rationing supply to only one gallon per person, per day.62
At the height of the 2001 drought, the state acted in ways entirely inconsistent with the conservation of Florida’s water resources. For example, it was 2001 when Nestle obtained a permit to pump 1.47 Mgal/day from a part of the aquifer adjacent to Madison Blue Spring State Park.63 Water management district staff recommended reducing the permit to 400,000 gallons a day since the drought had decreased the average flow of Madison Blue Spring by nearly 20 percent.64 But the governing board of the water management district ignored staff recommendations and approved the permit.65 The time of the 1999 to 2001 drought was also a time of massive growth and home building in Florida. Little thought was given to the impact of this growth on the water resources of the state.66
It was in this environment that state Senator Ginny Brown-Waite introduced Senate Bill 126 (2001). The Senate Staff Analysis and Economic Impact Statements for the bill specifically noted that “[t]he prolonged drought conditions in Florida have greatly stressed Florida’s water resources.”67 The bill updated the definition of Xeriscaping and forbade homeowners’ associations from prohibiting a property owner from implementing Xeriscaping. When describing the present situation with Xeriscape in Florida, the staff analysis noted that, “[i]n some subdivisions, developers, homeowners’ associations, and other entities have developed deed restrictions and covenants that impose strict requirements on property owners in relation to the manner and style of landscaping and other aesthetic features for the subdivision.”68
In F.S. §§125.568(1)(a) and 166.048(1)(a) (2001), the Florida Legislature made a clear statement of intent with regard to Xeriscaping:
The Legislature finds that Xeriscape contributes to the conservation of water. In an effort to meet the water needs of this state in a manner that will supply adequate and dependable supplies of water where needed, it is the intent of the Legislature that Xeriscape be an essential part of water conservation planning.
Despite this strong finding and statement of intent and the fact that the state was in the midst of a drought, this statement of intent was codified only within provisions concerning local government and was not included anywhere in F.S. Ch. 720, concerning homeowners’ associations. Although the legislation now made it impermissible for a deed restriction or covenant entered after October 1, 2001, to prohibit any property owner from implementing Xeriscape or Florida-friendly landscape on his or her land, there was not enough political will to pass a retroactive application of the statute.
2) Floridians’ Attitude Toward Water Resources Has Begun to Change — In the last few years, there are some indications that public and political attitudes may be changing. The year the Xeriscaping/homeowner association provision first passed is the same year the water management districts completed their first regional water supply plans.69 These plans helped to highlight some of the challenges Florida faces with its water resources, including findings that central Florida — which is almost completely dependent upon groundwater — only has enough to last through 2013.70 Since July 2005, the Department of Community Affairs has required local governments to demonstrate that water supplies are sufficient to support anticipated growth.71
Based on records dating back to 1932, the years 2006 and 2007 were the driest back-to-back calendar years Florida has experienced.72 This drought resulted in record-making low water levels in Florida’s water bodies, particularly in the southern part of the state.73 The Kissimmee River, which is the headwaters of the Everglades, did not flow for eight months.74 The Kissimmee River flows into Lake Okeechobee, which acts as regional water storage basin for south Florida.75 At the height of the 2006 to 2008 drought, Lake Okeechobee reached its lowest levels since records have been kept.76 The previous record low level was set during the 1999 to 2001 drought.77 Extreme drought conditions occur regularly, and water management districts have generally handled drought conditions through temporary restrictions on water use.78
3) 2009 Legislation — However, even when state or local governments have enforced watering restrictions, homeowners associations have fined property owners if the unwatered lawn did not meet the aesthetic expectations of the association.79 Property owners found they must choose between a fine from the water management district for using too much water or a fine from their homeowners’ associations for a brown lawn.80 In some homeowners’ associations, the lawn does not even have to be brown to warrant a fine.81 In these associations, residents receive a ticket if their grass is not a sufficiently bright shade of green.82 Homeowner association fines are frequently more expensive than government fines, so given a choice, many will choose to use the water and pay the fine to the government.83 As a result, homeowners’ association rules effectively overruled any government watering restrictions.
Senate Bill 2080 (2009), codified in relevant part at F.S. §720.3075(4), addressed this issue. The bill added in its entirety §720.3075(4)(a)84:
The Legislature finds that the use of Florida-friendly landscaping and other water use and pollution prevention measures to conserve or protect the state’s water resources serves a compelling public interest and that the participation of homeowners’ associations and local governments is essential to the state’s efforts in water conservation and water quality protection and restoration.
For the first time, the Florida Statutes reflect a specific legislative finding that homeowners’ associations should participate in — rather than thwart — the state’s water conservation efforts.
Senate Bill 2080 went much further than simply incorporating this finding, however. The bill removed the October 1, 2001, date so that the section now applies to all homeowners’ association documents, regardless of when they were created. It also added new language, italicized in the following quotation of present-day F.S. §720.3075(4)(b).
Homeowners’ association documents, including declarations of covenants, articles of incorporation, or bylaws, may not prohibit or be enforced so as to prohibit any property owner from implementing Florida-friendly landscaping, as defined in s. 373.185, on his or her land or create any requirement or limitation in conflict with any provision of part II of chapter 373 or a water shortage order, other order, consumptive use permit, or rule adopted or issued pursuant to part II of chapter 373.
Under this new language, if a property owner is unable to comply with a homeowners’ association standard while simultaneously limiting water use to the level required by the water management district, the homeowners’ association could be considered in violation of F.S. §720.3075(4)(b). The property owner need not be facing fines for this argument to be viable — conflicting requirements between the homeowners’ association and the water management district are sufficient.
Although this article focuses specifically on water used for landscaping, it should be noted that the definition of “Florida-friendly landscaping” in F.S. §373.185 (2009) lists principles which homeowners’ associations will need to consider. Among these is “recycling yard waste” and “the appropriate use of solid waste compost.” Many homeowners’ associations prohibit residents from composting onsite, most likely due to concerns with pests attracted to improperly managed compost piles. However, if a property owner has a properly managed compost pile which is not attracting pests, could the homeowners’ association prohibit that property owner from having that compost pile, especially if it is part of a larger, Florida-friendly, landscape plan?
The principles of Florida-friendly landscaping also include “planting the right plant in the right place.” A homeowners’ association that allows residents to plant only from a specified list of plants may find themselves in conflict with this principle. This conflict could come about if a Florida native, drought tolerant plant is not on the list of approved plants. It could also come about in homeowners’ association restrictions related to the percentage of lawn required and species of grass allowed. For example, the author’s own homeowners’ association requires that each area of the yard must be at least 50 percent grass. Any landscaping plan which will result in less than this amount of grass must be preapproved by the association. If an association with a similar regulation were to turn down a petition to landscape an entire yard section in a Florida-friendly manner, there is at least a possibility that this is enforcement of a bylaw having the effect of prohibiting a property owner from implementing a Florida-friendly landscape.
Florida already faces difficulties with meeting the water needs of its current and future residents. Florida’s population continues to grow, and Florida’s residents use a higher than average quantity of water. Residential water use will soon exceed agriculture as the highest use of freshwater, and more than 50 percent of residential water use is for irrigating lawns or other landscaping, much of which is unsuited to Florida’s climate. Water conservation must be an integral part of planning for future water needs. The participation of homeowners’ associations is essential to conserving water. Given the new statutory language, homeowners’ associations must consider whether their documents conflict with principles of Florida-friendly landscaping.
1 Sandra Postel, Last Oasis: Facing Water Scarcity 24 (W.W. Norton & Co. 1997) (“Measures to conserve water and use it more efficiently are now the most economical and environmentally sound water supply options available for much of the world — and they have barely been tapped. Together, they constitute our ‘last oasis.’”) (This endnote refers to the title of this article).
2 Marq de Villiers, Water: The Fate of our Most Precious Resource xiv (Mariner Books 2001).
3 United Nations, International Decade for Action: Water for Life, 2005-2015, Fact Sheet on Water and Sanitation, http://www.un.org/waterforlifedecade/factsheet.html.
4 WHO/UNICEF Joint Monitoring Programme for Water Supply and Sanitation, Water for Life: Making it Happen 27 (2005), available at http://www.who.int/water_sanitation_health/waterforlife.pdf.
5 Cynthia Barnett, Unfiltered: The Truth About Water in Florida,Florida Trend, August 2005, at 40, 42 [hereinafter, Barnett, Unfiltered].
7 Cynthia Barnett, Mirage: Florida and the Vanishing Water of the Eastern U.S. 36 (2008) [hereinafter Barnett, Mirage].
8 Fla. Dep’t of Envtl. Prot. et al., Florida Drought Action Plan 2 (2007), available at http://www.dep.state.fl.us/drought/news/2007/files/florida_drought_action_plan.pdf [hereinafter Drought Action Plan].
9 Barnett, Mirage, supra note 9, at 33.
10 Robert Glennon, Water Follies: Groundwater Pumping and the Fate of America’s Fresh Waters 75 (Island Press 2002). At one time, 54 percent of Florida’s land surface was wetlands, but the aggressive pumping of groundwater and the diversion of surface water have had a devastating effect on the wetlands. Id. See also Barnett, Mirage at 13-25.
11 Barnett, Mirage at 13 (quoting Marjory Stoneham Douglas, Florida: The Long Frontier 159 (Harper and Row 1967)).
12 StateofFlorida.com, The Unofficial Public Resource of the American Safety Council for Florida Residents & Visitors, Florida Quick Facts, http://www.stateofflorida.com/Portal/DesktopDefault.aspx?tabid=95.
13 Bureau of Econ. and Bus. Research, Warrington Coll. of Bus. Admin., Univ. of Fla., Florida Estimates of Population 2008, 21 (2009), available at http://www.bebr.ufl.edu/system/files/2008_Estimates_Table01.pdf.
14 Barnett, Mirage at 23-24.
15 Joan F. Kenny, et al., U.S. Geological Survey, Estimated Use of Water in the United States in 2005, 1 (2009), available at http://pubs.usgs.gov/circ/1344/pdf/c1344.pdf.
18 The term “public water supply” refers to a water delivery system providing water to at least 25 persons or having at least 15 connections, regardless of whether the delivery is publicly or privately owned. Id. at 16.
19 Id. at 1.
21 Id. at 4.
22 Richard L. Marella, U.S. Geological Survey, Fact Sheet 2008-3080: Water Use in Florida, 2005 and Trends 1950-2005 (2008), available at http://pubs.usgs.gov/fs/2008/3080/.
25 Fla. Dep’t of Envtl. Prot., Learning at 4.
28 Id. at 3.
29 Marella, U.S. Geological Survey, Fact Sheet 2008-3080: Water Use in Florida, 2005 and Trends 1950-2005 (2008). Public water supply use is 2,541 Mgal/d and domestic self-supply is 185 Mgal/d for a total of 2,726 Mgal/d of residential use. Agricultural irrigation uses 2,766 Mgal/day.
30 Calculated by the author. (2,726 Mgal/d of residential use divided by 6,868 Mgal/d of total freshwater use).
31 Barnett, Mirage at 38.
32 Barnett, Unfiltered at 44.
33 Barnett, Mirage at 38.
35 Marella, U.S. Geological Survey, Fact Sheet 2008-3080: Water Use in Florida, 2005 and Trends 1950-2005 (2008).
36 Id.; see also Barnett, Mirage at 38-40.
37 Marella, U.S. Geological Survey, Fact Sheet 2008-3080: Water Use in Florida, 2005 and Trends 1950-2005 (2008).
38 Fla. Dep’t of Envtl. Prot., Learning at 2.
39 Elizabeth D. Purdum, Florida Waters: A Water Resources Manual from Florida’s Water Management Districts 1, 54 (2002), available at http://www.sjrwmd.com/publications/pdfs/bk_floridawaters_complete.pdf.
40 Marella, U.S. Geological Survey, Fact Sheet 2008-3080: Water Use in Florida, 2005 and Trends 1950-2005 (2008).
42 Barnett, Unfiltered at 40, 42.
43 Purdum, Florida Waters: A Water Resources Manual from Florida’s Water Management Districts at 54.
46 Id. at 54-55.
47 Fla. Dep’t of Envtl. Prot., Learning at 2.
48 Lindy McCollum-Brounley, Troubled Waters: Growing Competition Over Shared Water Resources Puts Florida’s Water Law to the Test, UF Law at 18 (Spring 2008).
49 Id. at 24.
50 Fla. Dep’t of Envtl. Prot., Learning at 5-6.
51 Id. at 1.
52 Id. at 5.
53 Id. at 9.
54 Id. at 15.
55 Id. at 9.
56 Id. at 15.
57 Id. at 4.
58 Drought Action Plan at 2.
59 Robert Glennon, Water Follies: Groundwater Pumping and the Fate of America’s Fresh Waters 84 (Island Press 2002).
60 Barnett, Mirage at 33.
63 Ivan Penn, The Profits on Water are Huge, But the Raw Material is Free, St. Petersburg Times, March 16, 2008, available at http://www.tampabay.com/news/environment/water/article418793.ece.
66 See Barnett, Unfiltered at 40.
67 Fla. S. Comm. on Nat. Res., CS for SB 126 (2001) Staff Analysis 1 (Feb. 21, 2001) (on file with comm.), available at http://www.flsenate.gov/data/session/2001/Senate/bills/analysis/pdf/2001s0126.nr.pdf; Fla. S. Comm. on Comp. Plan., Loc. & Mil. Aff., CS for SB 126 (2001) Staff Analysis 1 (Mar. 13, 2001) (on file with comm.), available at http://www.flsenate.gov/data/session/2001/Senate/bills/analysis/pdf/2001s0126.ca.pdf.
68 Id. at 2.
69 Fla. Dep’t of Envtl. Prot., Learning at 5.
70 Id. at 12.
71 Fla. Dep’t of Cmty. Affairs, Div. of Cmty. Planning, Water Supply Planning, http://www.dca.state.fl.us/fdcp/DCP/WaterSupplyPlanning/index.cfm.
72 Fla. Dep’t of Envtl. Prot., Drought Home, http://www.dep.state.fl.us/drought/about.htm.
73 Fla. Dep’t of Envtl. Prot., Learning at 8.
75 S. Fla. Water Mgmt. Dist. (SFWMD), Okeechobee Watershed Overview, http://www.sfwmd.gov/portal/page/portal/pg_grp_sfwmd_watershed/pg_sfwmd_watershed_okeechobee?_piref2294_4946971_2294_4946970_4946970.tabstring=tab1798073.
76 WPBF-TV.com, Lake Okeechobee Drops to Another Record Low, July 2, 2007, http://www.wpbf.com/weather/13609114/detail.html.
77 WPBF-TV.com, Lake Okeechobee Hits Record Low Due to Drought, May 30, 2007, http://www.wpbf.com/weather/13411392/detail.html.
78 Fla. Dep’t of Envtl. Prot., Learning at 7, 9.
79 Andrew Meacham, Homeowners Caught in Turf War Over Lawn Care, St. Petersburg Times, March 23, 2008, available at http://www.tampabay.com/news/environment/water/article428230.ece.
81 See Barnett, Mirage at 39.
83 See, e.g., Meacham, Homeowners Caught in Turf War Over Lawn Care, St. Petersburg Times, March 23, 2008 (Describing one man’s choice between a $1000 fine from his homeowners’ association and a $100 fine from the county water department).
84 S.B. 2080 (2009) also replaced all instances of the term “Xeriscape” in the Florida Statutes with “Florida-friendly landscaping.”
Karen Greene is a 2010 J.D. candidate at Barry University, Dwayne O. Andreas School of Law and obtained her A.L.B. in 1999 from Harvard University Extension. This article is an edited and updated version of the second place paper in the Environmental and Land Use Law Section’s 2009 Dean Frank E. Maloney Memorial Writing Contest.
This column is submitted on behalf of the Environmental and Land Use Law Section, Paul H. Chipok, chair, and Gary K. Oldehoff and Kelly Samek, editors.