Pending Case Tests Which Water Supply Sources May Be Designated As “Nontraditional”

Pending Case Tests Which Water Supply Sources May Be Designated As “Nontraditional”

A potentially important case, which is been pending before the Florida Land and Water Adjudicatory Commission (FLWAC) for several years, may be heating up. The case is pending before FLWAC under its jurisdiction to review water management district orders which raise issues of policy, statutory interpretation, or rule interpretation that have regional or statewide significance from the standpoint of agency precedent.

The petition which initiated the case, brought against the St. Johns River Water Management District by the Putnam County Environmental Council, alleges that what is at issue is whether the District has the statutory authority to designate certain water supply sources as “nontraditional”, effectively elevating the sources to the status of an alternative water source, which would increase their availability as a permittable source of supply and possibly provide subsidies for their allocation and use. The petition alleges that the District has characterized certain stretches of the St. Johns River, Taylor Creek, and the Ocklawaha as nontraditional water supply sources and that the designation is contrary to statute because it is not limited to “capture during wet weather flows”.

A procedural aspect of this matter has already gone before the first District Court of Appeal. The court ruled in Putnam County Envtl. Council v. St. Johns River Water Mgmt. Dist., 136 So. 3d 766 (Fla. 1st DCA 2014), that the Putnam County Environmental Council’s interests are affected by the District’s actions because “the addition of an option to the plan would indicate the district’s approval, objective, and goal regarding this option.” Putnam County Envtl. Council, at 769. Petitioners argue that District funding and technical assistance will follow the characterization of these certain waters as nontraditional water supply sources. The Petitioners also contend that the District’s “predetermination” can result in a project being deemed by statute to be consistent with the public interest under Section 373.223, Florida Statutes.

On August 31, 2015, the Petitioners filed a lengthy pleading demanding that the matter move forward and arguing that the District’s actions are contrary to statute. The ultimate decision in this case could have a significant effect on the availability of these particular water sources and on the present authority of any of the water management districts to designate non-wet weather surface water captures as a nontraditional water source. On September 3, FLWAC set the matter for hearing in Tallahassee on September 29.

Dean Mead will continue to monitor progress of this case. For more information, please contact John L. Wharton, attorney in Dean Mead’s Tallahassee office at jwharton@www.deanmead.com.

About the Author:

John L. Wharton is a member of Dean Mead’s Litigation department and the Governmental Relations, Lobbying & Administrative Law Industry Team. He represents both public and private clients in cases from application creation to administrative litigation before state and federal agencies. He also practices general litigation in state and federal courts. Mr. Wharton has over 25 years of experience in Tallahassee practicing before and often litigating against numerous state agencies in the areas of water resource planning; permitting and regulation; mitigation banking; utility law and utility regulation; professional regulation and environmental law. He may be reached at jwharton@www.deanmead.com.