Reuse of Reclaimed Water and Florida s Consumptive Use Permit Program The Legal Aspects

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1 Reuse of Reclaimed Water and Florida s Consumptive Use Permit Program The Legal Aspects AWRA National Conference November 2016 Presented by: Beth Ross

2 Presentation Overview Historical Perspective on Reuse in Florida Legal background Reuse in Florida Underlying Principles of Florida Water Law Relationship to legal framework for Reuse Anticipated Topics

3 Historic Perspective Legal Background Why learn about Florida water law? Florida s Definition of Reclaimed water Water that has received at least secondary treatment and basic disinfection and is reused after flowing out of a domestic wastewater treatment facility Reuse is managing reclaimed water as an alternative water supply source, and recognizing aquifer recharge

4 Historic Perspective Legal Background When reclaimed water becomes an alternative water supply source it takes on a new character and has new implications End user Provider WMDs/State To understand these implications, and reuse in Florida, must understand Florida water law Reclaimed water becomes the basis of a water right and can affect resource availability

5 Historic Perspective Legal Background SB 536 Report Figure Early 1980 s No Florida Statutes or agency rules directly address reuse of reclaimed water 1982 Internal SFWMD Memo Authority existed to require irrigation user to reuse reclaimed water Lowest quality source of water available for purpose No further regulatory structure Water management districts acted as facilitator between potential end users and utilities Chapter 403, F.S., amended in late 1980 s stating reuse was a state objective in the public interest

6 Historic Perspective Legal Background Early WMD efforts: Facilitating reuse by managing variety of influences End users: Availability of fresh supply source? Anticipated demand? Requested use class (irrigation?) Location of use (coastal?) Public opinion issues Utilities: Disposal options (deep well, ocean outfall, and surface water discharge) Infrastructure costs Basically - is there a need? Alternative supply? Disposal? Answers varied across Florida

7 Historic Perspective Reuse in Florida The Numbers 1986: Facilities: 118 Reuse capacity: 362 mgd Reuse flow: 206 mgd 2015: Facilities: 478 Reuse capacity: 1,668 mgd Reuse flow: 738 mgd Projected population growth: 23.6 million people by million new Floridians Increased potable demands Increased wastewater flow Other use classes also have increasing demands

8 Historic Perspective Reuse in Florida Traditional supply sources increasingly constrained WMD restrict water available for allocation Demand for alternative water supplies is increasing Limitations on disposal options and increasing wastewater flow Reclaimed supplies available for use Have demand; have supply How to match-make? Regulatory structure evolving to foster alternative water supply project opportunities

9 Underlying Principles of Florida Water Law - #1 Because water constitutes a public resource benefiting the entire state, it is the policy of the Legislature that waters be managed on a state and regional basis. (s (4)(a), F.S.) Available to permitted and exempt users at no cost Reclaimed water is purchased pursuant to contract negotiated between end user and wastewater treatment facility Match-making is complex

10 Underlying Principles of Florida Water Law - #2 Water use is authorized by consumptive use permit in Florida Required to legally use water Traditional source of water Hold that thought Not like the western U.S. No property right in water in Florida Water management districts (or FDEP) issue permits establishing water right based on 3 prong test

11 Underlying Principles of Florida Water Law - #2 3 Prong Test - Consumptive use permit issued if use is: Reasonable-beneficial use Not interfere with ELU Consistent with the public interest Reasonable-beneficial use Term of art; historic origins Examine use in relation to other users and in terms of the resource E.g.: conservation / efficient? Study of R-B common law yielded Rule , F.A.C. Reasonable-beneficial factors Suitability of use to source Use of lowest quality water for the intended purpose

12 Underlying Principles of Florida Water Law - #3 Water management districts have the exclusive authority to issue consumptive use permits Field of regulation entirely preempted to WMDs Mandatory reuse zone / service areas Local government may adopt Reconcile with pre-emption Emerging Question: Landscape Irrigation users Purchasing reclaimed now, but may want to shift to fresh General permit by rule Conditions Maintaining customers issue

13 Underlying Principles of Florida Water Law - #4 WMDs do not regulate use of reclaimed water Only if reclaimed water is discharged into a water of the state does WMD have jurisdiction to permit Use occurs via contractual relationship between end user and treatment facility Typical role: WMDs facilitate Permit applicant Info exchange Feasibility study Continue to permit traditional source as supplemental or backup source to reclaimed supply Volumes permitted examined to avoid double allocation of water

14 Underlying Principles of Florida Water Law - #5 Water use in Florida must be efficient Reflects beneficial use requirements Not applicable to reclaimed water use Reuse Incentive Evolving topic Currently: typical conservation measures are not imposed on reclaimed water use E.g.: Use of reclaimed water is allowed at anytime No irrigation BMP s Even if supplemented by reclaimed water Declared water shortage restrictions may apply E.g.: Rule 40E , F.A.C.

15 Underlying Principles of Florida Water Law - #6 WMDs do not double allocate sources of water ( R- B use) No need to allocate two sources for one demand Supplemental permit from traditional source often requested for irrigation users Peaks and valleys Careful not to lock-up traditional source for infrequent use 2 nd Prong not interfere with existing legal users Locks up water Utility / End User contract May not provide sufficient water supply to meet irrigation needs

16 Underlying Principles of Florida Water Law - #7 Users Need Certainty of Water Rights (Investments made) Includes reclaimed water end users Physical certainty Water is actually present when needed During dry conditions; e.g. 1 in 10 Permit would allocate this volume Reclaimed water end user contracts for the volume WWTF try to minimize disposal by maximizing reclaimed commitments Reclaimed supplies stretched in dry conditions Supplemental source allocation needed Tenure certainty Permit duration; contract duration All traditional source allocated? Legal certainty Permitted ELU protected as first in time user Contract right

17 Underlying Principles of Florida Water Law - #8 During droughts available water is equitably distributed between all use classes and environment Shared adversity Not 1 st in time gets all Distribute hardship / losses Recognize reclaimed water not rainfall driven source; incentive to reuse Not applicable to reclaimed water use Water shortage order may be tailored to address supplemented reclaimed water uses

18 Upcoming Issues Florida s water law has adapted over the years to incentivize reuse of reclaimed water Work in progress Many key principles adapted to accomplish overarching public interests Safe disposal of treated wastewater Use of lowest quality source of water for purpose Funding as AWS Making delivery of reclaimed worth utility investment and suited to end user needs

19 FDEP s SB 536 Report on Expansion of Reclaimed, etc. Water quality topics Relationship to TMDLs and BMAPs Emerging substances of concern Outstanding Florida Springs Priority focus areas Septic tanks Regionalization of reuse systems Funding Infrastructure Pipes and pumps Recharge also? Dependency established Converting irrigation users to new reclaimed source; addressing domestic irrigation wells Upcoming Issues

20 For more information: Beth Ross AWRA National Conference - November,