ABOUT THE AUTHOR

ANDY GOWDER

E: wag@wiselaw.com
P: 843.727.2229
F: 843.805.6512
Andy focuses his practice on land use, state and local government, business litigation (banking, intellectual property, construction and real estate), business entity formation and governance.

Grounded is a special topic area focusing on land use rights and other issues. Written by Andy Gowder, you'll find insights into land use and other matters.

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Live from the ABA Spring Meeting: Water Supply in a Time of Climate Change

The second outstanding program at the ABA Spring Meeting was a panel sponsored by the SLG Environmental Law Committee entitled: “Water Supply in a Time of Climate Change.”

The panel was moderated by Michelle Diffenderfer, with the West Palm Beach, Florida office of Lewis Longman & Walker, P.A. where her practice includes seeking consumptive use permits for local governments, Native American tribes and others.

Michelle outlined the basic differences between Western and Eastern water law and how both strains were blended in the law in Florida.

The “Western Way” is based on prior appropriation.  Water is a property right and belongs to the land owner, not the state.  The principle can be summarized as “first in time, first in right,”   and those rights date back to the first settlers.  As long as those owners are using the water for “beneficial use” the law maintains that use as long as the use lasts, to the extent of the use. What this encourages is, of course, ongoing, substantial use.  There are fights under this system around whether the use is, in fact, beneficial and whether it is ongoing.

Eastern water law has developed more recently, since water in the East has historically been more abundant than in the West.  Water is seen as a natural resource that is shared in common by riparian owners and the public.  The law in the East centers more on reasonable use of available water resources.

The law that applies in any particular jurisdiction has to do both with geography, water abundance or scarcity, and that state’s history of development.

In Florida, a “modified riparian state,” [my home state of South Carolina is a riparian rights state], water is held in trust for the benefit of its citizens.  Ownership of land does not equal ownership of water.  In Florida, the right to use is regulated by that state through regional water management districts.

Even in Florida, a “wet” state that usually receives an annual rainfall amount of 54” annually, the issue is not supply, but storage.  In earlier times, landowners drained the Everglades and built canals to get rid of water, seen by many as a natural enemy.  With dramatically increased year- round water use caused by increased development, the question is now how to save water for the months when it stops raining?   The system of consumptive use permitting (CUP) regulates the consumption of water by municipalities and industrial users. The water management districts (WMD) use minimum flow levels as a regulatory tool and have identified water as a limited resource.  These WMDs restrict new users, issue limited duration permits (5 years) and emphasize the need to conserve and look for alternative sources of water.

Scott Cole, with the Atlanta law firm of HBSS, spoke on the tri-state water litigation involving the states of Georgia, Alabama and Florida, and the US Army Corps of Engineers. Recently the presiding federal judge in that case ruled that based on his interpretation of Congressional action in 1946, the only authorized purposes for Lake Lanier are hydropower, flood control and navigation. The court gave a window of three years to obtain approval from Congress for the operational changes that are necessary to allow water from Lake Lanier to continue to be used for water supply purposes. Failing that, the operation of Buford Dam will revert to “base line” operations of the mid-1970s, which will require Georgia to stop withdrawal of water from that source, upon which much of the metropolitan Atlanta area relies.  Consequently, Georgia is being forced to assess its available resources, address gaps between the current demand and anticipated supply, and identify management practices to deal with the gap.

One traditional tool for supplying growing metropolitan areas with water from remote locations has involved transferring water from one basin to another.  In Atlanta, located in the headwaters of 5 river systems, there has been extensive use of interbasin transfers.  Recently, though, there has been much more concern over the impacts of these transfers, particularly on donor basins?  Minimum flows have been imposed to avoid damages to flora, fauna, and water quality.  Some jurisdictions, like the Great Lakes system have prohibited interbasin transfers altogether.  Others allow it, but balance the need versus the impact on donor basin.

[South Carolina has just such a system.  See, for example, S.C. Code Sec. 49-21-20: Permit required for certain transfers.

Following the effective date of this chapter, no person shall withdraw, divert, pump, or cause directly the transfer of either five percent of the seven-day, ten-year low flow, or one million gallons or more of water a day on any day, whichever is less, from one river basin and use or discharge all or any part of the water in a different river basin unless the person shall first obtain a permit from the department. “]

Ken Ramirez, of the Austin, Texas office of Brown McCarroll, whose practice focuses on Texas water law, explained how water is allocated in Texas, a western water law state allocating rights in water use based on the principal of prior appropriation (“first in time, first in right.”). In Texas, as in other western states, water rights are a property right, so there is no need to renew permits if you are priority owner, and new water rights are practically useless. However, “new” water rights are being mined from older, abandoned rights.  If a water right is not used, it is lost, and the State is actively searching for unused rights to cancel.  As opposed to surface water, ground water in Texas is the private property of the owner. Even with regard to well water, though, ground water conservation districts have been formed that now require permits and regulate the use of ground water.

Since in Texas all surface water has been spoken for, the battle has turned to who owns effluent from sewerage treatment plants.  Does effluent belong to the municipality that treated it, or is it the water of the state, once it is discharged in the water course.  A fierce battle has been fought over the last 7-8 years over the concepts of direct and indirect reuse.  You can use and reuse all water you are allocated, as long as it is not discharged.  If it is discharged, though, there is a question of whether you can you take it out again a mile or so downstream.  Once removed and stored, is the stored water a new appropriation, or the old appropriation of the “original” water?

Water coming out of a treatment plant is pretty clean, but not potable, yet, so there have been innovations in the area of further treatment to discharge so that it can be reused as drinking water. Dallas is currently using a system of discharging the effluent, letting it run down stream for a mile, into a new wetlands area, where the water seeps through the wetlands, before storage in a reservoir for later use as potable water.

Finally, Richard Lotspeich of the Tampa Water Authority reviewed the Model Water Code, which employs a 3-prong test:  (1) a use is a reasonable beneficial use (2) that does not interfere with an existing legal use; (3) and is consistent with public interest.  The Code thus incorporates aspects of both eastern and western water laws.   The Code is administered by water management districts, using the concept of “local sources first.”  The latest amendments to the code, prefers use of water nearest of the source of use and encourages use of alternate sources, including reuse and desalinization over transfer of water from remote sources.  In Florida, with significant annual rainfall, water is harvested during the wet season and is put in reservoirs for the dry season.

In a time of climate change, then, traditional principles of water ownership, use and regulation, which vary across jurisdictions in the United States, are also changing to adapt to the demands of a growing population serviced by diminishing supplies of water.

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