Water Rights Shift in Florida Could Foreshadow Debates to Come

Is reclaimed water a basic public resource or a privately manufactured product? That’s the question before the Florida legislature this session, as it decides how to classify the state’s large supply of wastewater that’s treated and used again, often for lawn irrigation or recharging aquifers. Environmentalists are nervous as lawmakers prepare to enact the largest overhaul to state water law in 40 years, changing the state’s very definition of water. 

Current Florida law subjects all state waters to permitting based upon “beneficial use” in the public interest. But the bill up for debate would exclude reclaimed water from “waters of the state,” granting sole ownership of the resources to the utilities that produce it. Many of these utilities are public entities, but some are privately owned.

Under the bill , state water management districts could not dictate how reclaimed water is used, even during an emergency shortage. Backed by several powerful interest groups, the bill appears destined to become law.

Supporters say the overhaul would protect Florida’s dwindling water supply by incentivizing production and use of reclaimed water through eased restrictions.”Local governments need the certainty,” says state Representative Dana Young, a Tampa Republican who teamed up with city representatives to write the bill. “If they build the system, they need guarantees that they can use the water as they see fit.”

But environmentalists describe the shift as a business-friendly legislature’s attempt to erode state water protections, placing much of the resource in the hands of private interests. “It has the potential to be the first step toward eventual privatization,” says Bob Graham, the former Democratic governor and longtime U.S. senator. Graham and other environmentalists say they too favor the reuse of water as a means of conservation, but not through redefining its ownership.

Reclaimed water accounts for less than one percent of water use across the United States. But it’s becoming more viable for dangerously dry communities, thanks to technological advances that have lowered treatment costs and improved its quality, according to a study released last week by the National Research Council.

 Leader in reuse

Water questions loom large in Florida, where climate change and decades of residential development have eroded the coastline, enabling saltwater to seep into aquifers and contaminate the basic water supply. Those conditions, along with recent drought, have stirred fears the state may one day struggle to slake the thirst of the nation’s fourth most-populous state.

Reclaimed water is a key to dealing with this problem in Florida; the state leads the nation in its use. Each day, Florida reuses over 660 million gallons — about 10 percent of the state’s total demand for water. No longer a commodity to be disposed of, used water is increasingly seen as a moneymaker, sometimes netting as much as $3.50 per thousand gallons.

But those who want to cede reclaimed water rights to utilities say that too much state authority has retarded investment in the technology. Though the state’s five water management districts rarely assert their power over reclaimed water, they have tried to do so on recent occasions, critics say, causing uncertainty for utilities that treat wastewater. 

 In 2009, a water shortage prompted the St. Johns River Water Management District to consider placing limits on the use of reclaimed water. Florida’s other districts were set to follow, says Jan McLean, a Tampa attorney working on the issue. But the City of Tampa, along with several other utilities, objected and eventually put a stop to the plan. Under the restrictions, McLean says, millions of gallons of water fit for reuse would have been wasted.

Young’s bill would prevent this by letting utilities make their own choices about how to use the reclaimed water they generate. As McLean sees it, “The city just wants to have some certainty over what we view as an asset.”

 Fears of privatization

But environmentalists worry about the consequences of that assurance, saying the move would lead others in farming and industry to clamor for ownership of their wastewater. Mary Jean Yon, who works with the Audubon Society in Florida, says the change would be part of the “continual erosion of power” of state water managers. 

Indeed, Republican Governor Rick Scott slashed state funding for water management districts by more than $700 million for 2012, a decrease of 40 percent. And Florida’s Republican-dominated legislature will take up a separate bill this session that would extend the life of some water consumption permits to 30 years, up from 20. “That’s an incremental privatization of water,” says Richard Hamann, a professor of water law at the University of Florida.

Representative Young, the bill’s author, says complete privatization is not the goal. “This bill is narrowly tailored to deal with a narrow question,” she told Stateline .  

 National concerns

Environmentalists also question whether the bill would protect the water supply as advertised. “We need to encourage reuse, but not all reuse is equal,” says Hamann. The shift could give utilities more incentive, for instance, to sell reclaimed water to a golf course for irrigation than to use it to recharge an aquifer.

Robin Craig, a water law expert at Florida State University, says predicting the effect of the shift in water policy is difficult.”It’s going to depend on how much reclaimed water is flowing back into the system, compared to return flows now, ” she says. 

Florida wouldn’t be the first state to privatize some of its waters. Utilities in most Western states — with the exception of Utah — retain absolute rights over reclaimed waters under the long-held doctrine of prior appropriation. But public officials in those states tend to monitor closely the way the recycled water is used. In Washington State, for instance, the Department of Ecology recently drew up new rules that would prohibit reclaimed water use from interfering with rights downstream.

Supporters of the Florida bill say the state would still oversee reclaimed water use through a detailed permitting process in the lead-up to its production. McLean, the Tampa attorney, says the change would require more foresight from water planners who issue the permits, prohibiting them from changing the rules for utilities after the fact. Additionally, the bill would allow water management districts, under some circumstances, to require utilities to use reclaimed water in lieu of making withdrawals from an aquifer.

Nevertheless, environmentalists in Florida tend to see the legislation in their state as creating more problems than it is likely to solve. “[Reclaimed water] is the same as all other water,” says Hamann. “We should use it wisely.”