South Florida water reservation rule to affect water users in central Florida

The South Florida Water Management District is moving forward with developing a precedent-setting reservation of water. It will limit the availability of water supplies for use by utilities, agriculture and irrigation users from the Kissimmee River and flood plain, three headwater lakes (Lakes Kissimmee, Cypress and Hatchineha, Tohopekaliga and several other lakes) and the Upper Chain of Lakes in central Florida (“Kissimmee River reservation rule”).

All water users within the central Florida region, including portions of Orange, Osceola, Polk, Okeechobee and Highlands counties, are potentially affected by this future rule to be adopted in 2015.

This rulemaking effort is a part of the multifaceted Kissimmee River Restoration Project and Kissimmee Lakes Revitalization Project.

The timing of this rule development is critical, as the allocation of other traditional surface and groundwater supplies within central Florida are being significantly limited due to documented water resource harm from past and ongoing permitted consumptive use withdrawals. Such traditional water supplies include the Floridan Aquifer and surface water such as isolated wetlands and lake systems.

In anticipation that central Florida utility water users will be seeking to use the Kissimmee River as an alternative to these traditional sources, the SFWMD effort is intended to ensure up-front that water needed for the protection of fish and wildlife associated with the restoration efforts will not be allocated to water users. As required by Florida law regarding water reservations, existing legal uses of water that are “not contrary to the public interest” will be protected under the reservation rule.

The Kissimmee River reservation rule will be implemented through consumptive use permit criteria, which are under concurrent development, to be applied on an application-by-application basis. The permit criteria will be unique in that surface water allocations will be available only during times when excess water above reserved supplies exists.

It is expected that, due to the limitations on traditional water supplies in central Florida and the resulting competition for water, once the Kissimmee River reservation rule is adopted, permit applications for available supplies will quickly lock up the available water and that remaining sources for other users, especially increasing future demands, will be severely limited and potentially very costly.

On December 12, 2014, the SFWMD held a rule development workshop on a newly released, draft rule.

The Kissimmee River reservation rule will apply to applications for new and increasing water use demands, as well as renewal of existing consumptive use permits. In addition to limiting water allocations directly from the enumerated Kissimmee River water bodies, sources hydrologically connected to the reservation water bodies, including wetlands, lakes, surface waters and the surficial aquifer, will be limited to the extent proposed withdrawals would indirectly deplete reserved water quantities.

Reserved water quantities are identified based on scientific and hydrologic evaluations contained in a technical document to be revised and released during the first part of January 2015.

Comments on the draft Kissimmee River reservation rule and technical document are due to the SFWMD by January 15, 2015.

If you are interested in submitting comments or learning more about this water reservation rule, please contact Gunster attorneys Luna Phillips (954-712-1478) or Cecile Piverotto (561-804-4387).

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. 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 Fort Lauderdale, Jacksonville, Miami, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, The Florida Keys, Vero Beach and its headquarters in West Palm Beach. With more than 170 attorneys and 200 committed support staff, Gunster is ranked among the National Law Journal’s list of the 350 largest law firms. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.