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The Florida Department of Environmental Protection filed its “Report on Expansion of Beneficial Use of Reclaimed Water, Stormwater and Excess Surface Water” with the Florida Legislature on December 1, 2015.

That reuse report was produced pursuant to Senate Bill 536, passed in 2014, which directed the department to conduct a comprehensive study to determine how the use of reclaimed water, stormwater and excess surface water sources could be expanded to assist in meeting future demands. The report identifies roadblocks for expanding beneficial use of the subject sources and measures to either mitigate or eliminate them.

Businesses in Florida with existing water rights or seeking new or increased uses of traditional water sources, particularly irrigation users and agriculture, should be active participants in upcoming legislative and agency regulatory implementation efforts. In addition, expanded opportunities for use of land as storage areas can benefit businesses.

Regulatory requirements

Topics for businesses to address include recommended regulatory requirements, which could result in mandating users to purchase or implement expensive reuse or storage projects on business properties – in lieu of continued use of their existing, permitted source.

In this regard, the reuse report encourages local government adoption of “mandatory reclaimed water zones,” which require end users to use reclaimed water supplies with little regard to cost.

These regulatory requirements may require users to abandon rights to existing supplies, affecting users in terms of cost, water quality and reliability of the replacement source.

Agricultural uses

Specific to agricultural uses, the reuse report encourages additional use of stormwater and reclaimed water as replacements for traditional sources.

The report recognizes that “[t]he agricultural industry has unique challenges in using stormwater as an irrigation water supply.”

As to reliability, stormwater is only available periodically as a result of rainfall. This requires significant land areas to be dedicated to provide adequate transmission and storage facilities to implement stormwater storage as a reliable replacement source. It is recognized that such infrastructure will “take valuable agricultural land out of production potentially creating financial challenges.”

Furthermore, the reuse report identifies that “[s]tormwater harvested for agricultural operations may be a potential source of pathogens that can contaminate produce” and goes on to discuss the ongoing development of edible crops regulations.

Business opportunities

As to expanded opportunities for business, the dispersed water management (“DWM”) discussion is important. DWM is “the retention of stormwater runoff by private and public landowners, rather than allowing this water to drain off-site into rivers, lakes, or canals. Typically, this water is stored using relatively simple structures to hold water on the landscape in low-lying areas.”

The reuse report recommends the water management districts continue coordination with the agricultural community to identify opportunities for use of fallow agricultural lands for DWM. In particular, it mentions the availability of fallow citrus groves impacted by citrus greening as an example of how near-term water storage could be implemented with potential local and regional benefits. The potential for forming partnerships with regulatory and funding entities to implement recommendations of the reuse report are also explored.

Interestingly, the report recognizes “opportunities exist for expanding the beneficial use of stormwater for water quality, water supply and natural resource needs. As an example, increased stormwater infiltration can address both water quality concerns in the Total Maximum Daily Load program and extend groundwater resources for water supply.”

Such dual-purpose projects blending water quality and quantity benefits could be used to create water quality trading credits for agricultural users.

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Over the next year and beyond, recommendations in the reuse report will be considered and businesses in Florida should participate in upcoming legislative and agency regulatory implementation efforts. In addition, expanded opportunities for use of land as storage areas for stormwater will evolve.

Please contact Gunster attorneys Beth Ross or Cecile Piverotto for additional information on the potential effects and opportunities of these proposals on your business.

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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.

About Gunster

Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 11 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, Vero Beach, and its headquarters in West Palm Beach. With over 200 attorneys and 200 committed support staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.

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