Water, water everywhere? .

Florida's once seemingly inexhaustible water resources are being compromised and diminished as a result of increased demand, and a lack of formalized coordination and planning between planning authorities and water management districts. Florida's replumbing efforts, in the form of the Comprehensive Everglades Restoration Plan (CERP), are insufficient on their own to address the threat to water and the environment, which ultimately threatens the habitability of Florida. This article will identify some of the problems and obstacles to achieving a healthy environment in Florida, particularly as they relate to water resources, and will examine the existing legislative and regulatory framework applicable to water resources and water delivery, and proposals that have been put forward to address Florida's future development and water management.

There is a notable lack of a coherent, visionary, and enforceable water plan in Florida that sets limits and protects Florida's water resources. Currently, Florida's "plan" is a patchwork quilt of policy statements that are exhortative only, rather than enforceable provisions. Since the enactment of The Florida Water Resources Act, (1) Florida's emphasis on regulation, as opposed to planning, has significantly contributed to Florida's water woes. A proposal to link planning and water resources management, together with a recommendation to enhance cooperation between local government and water management districts under the oversight of the state, will be discussed. (2) Although the Florida Department of Environmental Protection (DEP) has recently issued a new report, the Florida Water Conservation Initiative Report, containing proposals to conserve water, critics have observed that these measures, even if implemented, would preserve the existing easy and free access to water by the biggest users, principally agriculture, rather than implementing measures to preserve an already overtapped resource. (3)

Postcard From Florida

Picture this: You sit in your deck chair in your backyard, watching the sun glisten on the canal as the palm trees gently sway in the wind while you sip your iced tea. This apparently idyllic scene belies the fact that, right now, the view from Florida is far from picture perfect: There is a good chance that the canal you are gazing at is manmade; the water is contaminated and at lower levels than when you bought your house only a few years before. As you continue to soak up the sun, enjoying the scene and the sun's warmth, millions of your fellow Floridians at the same time are irrigating their gardens and farms, washing their cars and sidewalks, and flushing their toilets without giving a second thought to the water supply, while fully expecting that it will always be available--clean, abundant, and on tap.

They are sadly mistaken. The following is a snapshot of the true state of affairs in Florida which is one of the thirstiest states in the country: "More water is withdrawn and used in Florida than in any other state east of the Mississippi River." (4) "Water use is forecast to increase 30 percent from 7.2 billion gallons per day (BGD) in 1995 to 9.3 billion in 2020." (5) Florida has the highest per capita water consumption in the world, with on average 171 gallons of water being consumed per day. (6) Groundwater withdrawals account for 62 percent of Florida's water use. (7) Inefficient and inappropriate use of groundwater, particularly by agriculture, (8) and a rising per capita water consumption are responsible for the steep rise in water usage that we have witnessed over the past several decades. Levels of groundwater used by agriculture stood at 52 percent in 1995 with DEP stating that "actual agricultural water use is projected to increase from 3.7 BGD in 1995 to 4.1 BGD in 2020." (9) Aside from the nominal cost of permits, water is free in Florida. (10)

The business of making future population projections is extremely speculative. For instance, in the DEP's Public Review Draft of the Florida Water Conservation Initiative, released in November 2001, a projection was made that by 2020, Florida's population would increase from 16 million to approximately 20.4 million. (11) Based on those figures, DEP projected that there would be an average water use of about 9.3 BGD in 2020. (12) DEP's population projection seems to have been based on a trend that may have appeared to signal a decrease in the growth rate; however, this may not have provided a true picture of Florida's rapidly accelerating growth. One commentator has observed:

[T]he growth from 528,542 in 1900 to 15.5 million in 2000 is an annual rate of growth of 3.44%. If this rate was to persist for the next 100 years, the 15.5 million population would grow to 455 million. This magnitude is greater than the projected population for the nation as a whole. (13)

The same commentator remarks that what appears to be a drop in growth in the 1990s may be attributable to factors other than to a real decline in Florida's growth dynamics. (14) By April 2002, DEP had revised its population projection, made just four months earlier, from 20.4 million to 21.8 million, which DEP observed may "possibly lead to greater demands [on fresh water]." (15)

There are numerous indicators of the environmental degradation and population pressures that have occurred over the years: The Everglades are now at only one third of the original ecosystem following more than a century of wetlands drainage and development. (16) As growth and population in Florida have expanded, there has been a fanning out from the initial settlement in the northeastern and southeastern areas of the state along the Atlantic coast and on the uplands. (17) To satisfy the increased demand for more land, inland areas were drained of surface water, thereby reducing the supply of potable water. (18)

The Floridan aquifer supplies Florida with much of its water needs. However, the pressures of population, drained wetlands, farming practices, and drought are impacting water resources. (19) Miami-Dade takes most of its water from the Biscayne aquifer, "a wedge-shape subterranean sponge of porous limestone that holds huge volumes of slow-moving groundwater." (20)

The people of Florida should be aware that the south Florida ecosystem is not sustainable on our present course. Floridians, at all levels, need to recognize that we can sustain neither our existing human nor our natural systems in south Florida with regard to water if we do not change direction. (21)

Overwithdrawals of groundwater can lead to multiple and serious problems including saltwater intrusion, reduced supply, drainage of lakes and wetlands, and land subsidence. (22) "In central Florida, wetlands, lakes, and streams will start to dry up by 2006 if all the permits to withdraw water are granted and new supplies aren't identified," observed Kirby Green, director of the St. John's River Water Management District, which services 16 central and north Florida counties. (23) St. John's River Water Management District is not the only region facing a grim situation regarding its water resources:

In the Suwannee River Water Management District, the year 2000 was the fourth lowest rainfall year since 1931. In the spring of 2001, most of the gauging stations in the Suwannee, Santa Fe, and Withlacoochee rivers recorded record low flows. Fifty-two of the district's 85 Floridan Aquifer monitoring stations set record low levels. Many of the district's springs had either ceased flowing or had greatly reduced flows. (24)

Wellfield Protection Zones

The wellfield protection zones in Florida, which typically have been established by county ordinance, draw a line around wellfields, inside which industry is banned, because of the potential impact on the potability of underground water. Banned industries include airports, dry cleaners, and paint manufacturers. The so-called cone of influence around a wellfield is comparable to the conical dip that forms on the surface of a milk shake when a straw is used--the stronger the suction, the wider the cone. (25)

An example of the wellfield protection zones is found in Ch. 24 of the Miami-Dade County Ordinance, which provides for protection zones around a number of wells, including 15 Miami Springs wells that provide drinking water to one million people in South Florida. (26) These protection zones were established by the Miami-Dade County Commission under the assumption that the wells would pump 70 million gallons per day (MGD). To protect the aquifer and groundwater, the ordinance prohibits certain industries from contamination by chemical seepage or spill.

"A constellation of wellfields around the county sucks the water from the aquifer--which begins just below our feet--and powerful pumps force the water through massive pipes to treatment plants." (27) Wells in the Miami Springs area are already pumping too much.

According to DERM, as of 1994,"the Miami Springs wells [were] pumping between 100 and 125 MGD in 1994, expanding the cone well beyond the intended protection zone and into areas that are known to be contaminated--including Miami International Airport and certain industrial areas in Hialeah." (28) The wellfield restrictions prohibit industries from being situated in a wellfield protection zone, but fail to restrict a wellfield pumping outside its zone. It has been remarked that an explanation for these inconsistencies lies in the fact that Miami-Dade is "conveniently, both the wellfield operator and the author of the wellfield protection ordinance." (29) Additionally, continuing development pressures have resulted in the bending of the line, known as the Northwest Wellfield Protection Zone. Miami-Dade County commissioners recently approved a new development, known as Beacon Lakes, consisting of an immense 436-acre warehouse complex, which will be situated almost entirely in a wellfield protection zone: "[I]t's at the edge of the buffer, an area where contaminants could creep toward the wells if an extreme drought or excessive pumping dropped the water table." (30)

The development was approved after DERM determined that the project did not pose a risk to the Beacon Lakes drinking supply. (31) A factor in that approval seems to have been based, at least in part, on the developer's proposal to build a canal, similar to the Snapper Creek Canal extension, situated on the Florida Turnpike in Miami-Dade County. The Snapper Creek Canal extension is described by engineers as creating a protective pressure barrier: "The canal, when held at higher levels than the surrounding groundwater, prevents tainted water from flowing back west toward the wells." (32) The Beacon Lakes project has its critics. They do not agree that the risk of contamination of the wellfield can be successfully contained by the construction of a canal, and question the effectiveness of this type of canal as a hydrological divide, pointing to periodic failures of the Snapper Creek Canal. (33)

The Restudy and the Everglades Restoration Plan

The Everglades ecosystem of a century ago, with its unique combination of hydrological flows and climate, has been forever lost. (34) It has shrunk to half its original size, largely through the initiative of the original Central and Southern Florida Project ("C&SF Project"), which implemented a wide-scale conversion to agricultural use in response to hurricane flooding in the late 1940s. (35) The 60-mile-wide sheet flow that historically flowed south, and which could take over a year to reach the ocean, insulated the Everglades from the droughts and floods that are a regular feature of southern Florida. The wetland vegetation, which acted as a natural filter as the water slowly made its southbound passage, contributed to the high quality of the water. (36) This unique flow formed estuaries where the sheet flow met the ocean, supporting abundant marine and estuarine species. (37)

The Everglades ecosystem has been designated a Ramsar Convention Wetland of International Importance, an International Biosphere Reserve, and a World Heritage Site. (38) These three international environmental organizations have designated South Florida to be an area of biological importance because of the Everglades' unique hydrological pattern and the immense wealth of biological diversity that it supports. The Everglades is one of only three areas that has attained this status in the international community. (39)

In compromising the integrity of the Everglades, we have not only impacted the availability of clean, fresh water, but we have lost a number of species and are in danger of losing more as a result of both diminished water flow and water contamination, largely as a result of agricultural runoff. (40) Eighteen animal and plant species have been identified by the Fish and Wildlife Service as threatened or endangered within the study area. (41) Increased demand stresses Florida's aquifers and causes both contamination and saltwater intrusion. It is imperative that we preserve and restore the health of the Everglades by protecting it and our aquifers from pollution, inappropriate development, and agricultural practices.

The C&SF Project Comprehensive Review Study ("Restudy") team, led by the Army Corps of Engineers, has proposed an experimental restoration plan intended to mimic the historical levels of water flow that once flowed through the Everglades. (42) It currently involves the implementation of 60 water management projects at a cost of approximately $8 billion. (43)

The greatest challenge to the plan's success is overcoming the inadequacies of South Florida's entire water management system, which largely depends on making significant changes to the established water management responsibility in southern and central Florida. Its success will also depend on institutionalizing flexible responses that will be required for effective ecosystem management. The Restudy involves adaptive management, and builds on projects implemented on an experimental basis, on which subsequent decisions are based. (44)

The Everglades Restoration Project is just one piece of the puzzle; it is the beginning of what is needed in order to ensure that we do not overburden our environment, and that our quality of life does not decline as a result of a corresponding decline in water quality, air quality, and availability of water. There are many interlocking pieces to identify and piece together to assure Florida's continuing quality of life and economic health. If we continue to approach the issue of planning, water delivery and supply water pollution as separate and segmented pieces, there is a real danger that we will fail in our efforts.

(1) FLA. STAT. ch. 373.

(2) 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, 224 (2001).

(3) Curtis Morgan, State May Curb Water Usage, MIAMI HERALD, May 13, 2002, at 5A.

(4) Id.

(5) Amanda Riddle, Water Shortage Critical, Officials Say, MIAMI HERALD, December 28, 2001.

(6) Angelo, supra note 2, at 224.

(7) Id.

(8) See FLA. DEPT. OF ENVTL. PROT., FLORIDA WATER CONSERVATION INITIATIVE, PUBLIC REVIEW DRAFT (hereinafter FWCI DRAFT) at 3 (Nov. 2001) ("Forty-one percent of all water used for agricultural irrigation east of the Mississippi River is used in Florida ... Florida is more dependent on groundwater (60 percent of fresh water use) than any other state east of the Mississippi River.").

(9) See FLA. DEPT. OF ENVTL. PROT., FLORIDA WATER CONSERVATION INITIATIVE (hereinafter FWCI) at 8.

(10) Morgan, supra note 3, at 5B.

(11) FWCI DRAFT, supra note 8, at 4.

(12) Id.

(13) James C. Nicholas & Ruth C. Steiner, Growth Management and Smart Growth in Florida, 35 WAKE FOREST L. REV. 645, 647 n. 12, 648 n.28. "[The] lessened pace of [population growth] may be due more to the severe and prolonged recession of the early 90s and the decrease in the number of persons nationally reaching retirement age than to any fundamental change in the growth dynamics."

(14) Id. at 647.

(15) FWCI, supra note 9, at 7.

(16) John J. Fumero,Everglades Ecosystem Restoration: A Watershed Approach by the Legislature, 74 FLA. B.J. 58, 58 (Oct. 2000). Fumero writes: "As late as the 1800's, the Everglades consisted of a 60-mile-wide shallow river, seldom more than two feet deep, flowing from Lake Okeechobee to Florida Bay. That was before the U.S. Army Corps of Engineers erected 1,400 miles of dikes, dams, levees, and water control structures in the name of water supply and flood control. Now in the year 2000, more than 50 years after Marjorie Stoneman Douglas wrote about the demise of the Everglades, only 2.4 million acres of Everglades remain--about one third of the original Everglades ecosystem. Lake Okeechobee is likewise experiencing adverse ecological impacts. Florida is now at a turning point, ready to begin reversing the effects of massive wetlands drainage, damage to our estuaries and loss of valuable storage areas."

(17) James C. Nicholas, The Ups and Downs of Growth Management in Florida, 12 FLA. J. L. & PUB. POL'Y 213, 220 (2001). Nicholas writes: "The drainage that made much of Florida habitable also disposed of the fresh water that was a critical element of the ecosystem and the source of drinking water. The farms and subdivisions that developed in the diked and drained areas added so many pollutants to the remaining natural areas that their continued existence came into doubt. The sheer pressure of numbers extended urban development into areas that nature had not designed to be used for those purposes and created consequences ... beyond what the natural and human systems could absorb."

(18) Id. Nicholas & Steiner, supra note 13, at 648.

(19) Riddle, supra note 5.

(20) Id.

(21) U.S. ARMY CORPS OF ENGR'S AND S. FLA. WATER MGMT. DIST., CENTRAL AND SOUTHERN FLORIDA PROJECT COMPREHENSIVE REVIEW STUDY B OVERVIEW, at 12 (Oct. 1998) (citing GOVERNOR'S COMM'N FOR A SUSTAINABLE S. FLA., OCTOBER REPORT (1995)).

(22) Id.

(23) Id.

(24) Id. at 4.

(25) Kirk Semple, Running on Empty, MIAMI NEW TIMES, October 20, 1994, at p. 8 of electronic document.

(26) Curtis Morgan, Wellfield Development Still Faces Opposition, MIAMI HERALD, June 3, 2002, at p.1 of electronic document.

(27) Semple, supra note 25, at p. 2 of electronic document.

(28) Id. at p. 8 of electronic document.

(29) Id.

(30) Morgan, supra note 26, at p. 2 of electronic document.

(31) Id.

(32) Id.

(33) Id.

(34) DAVID MCCALLY, THE EVERGLADES: AN ENVIRONMENTAL HISTORY (University Press of Florida 1999) (providing a comprehensive description of the Everglades' ecosystems).

(35) Id. at 140-145.

(36) Id. at 26-27.

(37) See U.S. ARMY CORPS OF ENGR'S AND S. FLA. WATER MGMT. DIST., CENTRAL AND SOUTHERN FLORIDA PROJECT COMPREHENSIVE REVIEW STUDY, FINAL INTEGRATED FEASIBILITY REPORT AND PROGRAMMATIC ENVIRONMENTAL IMPACT STATEMENT. at 2-5 (1999) (hereinafter RESTUDY).

(38) STEVEN M. DAVIS & JOHN C. OGDEN, EVERGLADES: THE ECOSYSTEM AND ITS RESTORATION (CRC Press-St. Lucie Press 1994.)

(39) Id.

(40) See RESTUDY, supra note 37, at 3-19.

(41) See id. at tbl. 3-1.

(42) See id. at 7-15.

(43) William E. Gibson & Neil Santaniello, Bush Brothers Agree: Ecosystem comes First; State-Federal pact Promises Water to Area; 30-Year Project to Cost $8 Billion, SUN-SENTINEL (Fort Lauderdale), January 10, 2002, at 14A. This state/federal pact, a 30-year plan which was signed on January 10, 1992, promises water to the Everglades area at a projected cost of $8 billion. The agreement is "[C]onsidered to be the first such state water compact ... the signing was required by the Water Resources Development Act of 2000, which calls for a binding agreement in which the state promises that nature will have the first claim to new water supplies. Congress insisted on such an agreement before the federal government could pay its part of the costs."

(44) Id. See RESTUDY, supra note 37, at 5-32.

Joelle Hervic works in the Miami office of Shook, Hardy & Bacon, L.L.P. She is a licensed New York attorney. She holds a J.D., with honors, and an L.L.M. in comparative law, with a concentration in environmental law, both from the University of Miami School of Law.

This column is submitted on behalf of the Environmental and Land Use Law Section, Maribel N. Nicholson-Choice, chair, and Robert Manning, editor.