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Is Your Alternative Water Supply Source at Risk?

Pursuant to Section 373.907 Florida Statutes, Florida water management districts are required to develop Regional Water Supply Plans ("RWSP") to identify potential water supply development project options. These plans may include both traditional and Alternative Water Supply ("AWS") projects from which water users such as local governments may choose for water supply development. The AWS designation is important because it creates a presumption of consistency with the public interest under consumptive user permitting requirements, provides for longer-term permit durations of at least 20 years (or at least 30 years for permits approved after July 1, 2013), and impacts local governments' comprehensive planning, including their water supply facilities work plans.


However, a long-pending review of how water management districts define alternative water supplies is about to be addressed by the Governor and Cabinet. The outcome of the review could affect whether surface water projects qualify as AWS projects. The issue arose from a challenge to the St. Johns River Water Management District’s ("SJRWMD") 2009 approval of an addendum to its water supply plan. The addendum listed several potential water supply development projects utilizing surface water from the St. Johns and Ocklawaha Rivers as potential project options, and identified those projects as AWS.

After SJRWMD’s approval of the RWSP addendum, the Putnam County Environmental Council ("PCEC") filed a petition with the Florida Land and Water Adjudicatory Commission ("FLWAC") requesting FLWAC review SJRWMD’s designation of the St. Johns and Ocklawaha River projects as AWS in its RWSP. FLWAC is comprised of the Governor and Cabinet and is authorized by Section 373.114, Florida Statutes to review orders of a water management district to ensure consistency with Chapter 373, Florida Statutes. PCEC argued that the designation of the St. Johns and Ocklawaha River projects as AWS is inconsistent with the definition of AWS found in Section 373.019(1), Florida Statutes. After two appeals to address procedural disputes regarding the timing and scope of FLWAC’s review, the First District Court of Appeal instructed FLWAC to address the merits of PCEC’s request. FLWAC is expected to address the request for review at one of its September 2015 meetings.

A determination by FLWAC (or an appellate court) that the St. Johns and Ocklawaha River surface water projects identified in SJRWMD’s RWSP were improperly designated as AWS could affect existing and future consumptive use permits for all potential water supply projects that may have been designated as AWS, since it would significantly limit water management district discretion in which surface water project options may be designated as an AWS.

For additional information on this issue and future impacts of this decision, please contact Nick Porter (nporter@dgfirm.com) or Ed de la Parte (edelaparte@dgfirm.com) or call us at 813-229-2775.