País Verde, Sunshine State:País Verde, Sunshine State:Comparative Analysis of Costa Rica and Comparative Analysis of Costa Rica and

Florida Water Allocation LawFlorida Water Allocation Law

Viviana Cover Ruiz, Licda. CandidataViviana Cover Ruiz, Licda. CandidataJoanna Reilly-Brown, M.S. & J.D. Joanna Reilly-Brown, M.S. & J.D.

CandidateCandidateVeronica Saavedra, M.S. & J.D. Veronica Saavedra, M.S. & J.D.

CandidateCandidate

Supervised by:Supervised by:Thomas AnkersenThomas Ankersen

Director, Jt. Program & Conservation ClinicDirector, Jt. Program & Conservation Clinic

Richard Hamann, Supervising AttorneyRichard Hamann, Supervising AttorneyUniversity of Florida, Levin College of LawUniversity of Florida, Levin College of Law

Presentation OverviewPresentation Overview

Introduction: Why is Costa Rica’s Introduction: Why is Costa Rica’s water law in need of reform?water law in need of reform?

Why compare Florida’s water law?Why compare Florida’s water law? Legal status of water under common Legal status of water under common

law and civil lawlaw and civil law Comparative analysis of legal basis Comparative analysis of legal basis

for water allocation under 1942 law, for water allocation under 1942 law, Florida law, and popular initiativeFlorida law, and popular initiative

Presentation OverviewPresentation Overview Analysis of the governance structure for Analysis of the governance structure for

water allocation decisions under both water allocation decisions under both Florida law and the popular initiativeFlorida law and the popular initiative

Analysis of the relationship between Analysis of the relationship between water allocation decision-making and land water allocation decision-making and land use planning under both systemsuse planning under both systems

Analysis of the legal mechanisms and Analysis of the legal mechanisms and standards for challenging allocation standards for challenging allocation decisions made by governance entities decisions made by governance entities under both systemsunder both systems

Conclusions and RecommendationsConclusions and Recommendations

Importance of ReformImportance of Reform

Costa Rica currently operates under 1942 water law Costa Rica currently operates under 1942 water law Recent water shortages, conflicts among competing usesRecent water shortages, conflicts among competing uses

Sardinal caseSardinal case Demonstrates need for water law reformDemonstrates need for water law reform

Bill for Integrated Management of Water Resources by Popular Bill for Integrated Management of Water Resources by Popular Initiative Initiative Draft lawDraft law Result of pressure from water policy advocatesResult of pressure from water policy advocates

Why Compare Florida Water Why Compare Florida Water Law?Law?

Florida’s 1972 Water Florida’s 1972 Water Resources ActResources Act Hailed as national modelHailed as national model

Evaluate water Evaluate water allocation decision-allocation decision-making under proposed making under proposed law and make law and make recommendations for recommendations for reform in Costa Rica reform in Costa Rica based on Florida water based on Florida water law successes and law successes and failuresfailures

Background: Common and Background: Common and civil law of watercivil law of water

Common Law Common Law (United States)(United States)

Civil Law Civil Law (Costa Rica)(Costa Rica)

DoctrineDoctrine Riparian Riparian DoctrineDoctrine

(East)(East)

Prior Prior Allocation Allocation DoctrineDoctrine

(West)(West)

Dominio Publico Dominio Publico DoctrineDoctrine

OwnershipOwnership People own People own under under Public Trust Public Trust (FL)(FL)

Privatization Privatization of rights to of rights to useuse

Sovereign owns for Sovereign owns for public usepublic use

UseUse •Reasonable Reasonable Use Use•Equitable Equitable DistributionDistribution

11stst in time, 1 in time, 1stst in rightin right

•Public right to usePublic right to use•Analogous to FL Analogous to FL Public Trust Public Trust DoctrineDoctrine

Legal standard for permit Legal standard for permit issuanceissuance

1942 Ley de 1942 Ley de Aguas 276Aguas 276Should not Should not affect any affect any existing existing legally legally acquired useacquired useShould not Should not affect public affect public waters for waters for public public servicesservices

Florida LawFlorida Law Reasonable Reasonable beneficial use beneficial use - - EconomicEconomic

- - EfficientEfficient

No No interference w/ interference w/ existing usersexisting users Public interestPublic interest Interpreted Interpreted through state through state water policy water policy and WMDsand WMDs

Popular Popular InitiativeInitiative ConcessionsConcessions

- - No harm to No harm to human human

healthhealth

Use permitsUse permits - - Explotación Explotación racionalracional

- - Consider Consider ecological ecological

and water and water channel channel

impacts impacts

Procedures for issuance of Procedures for issuance of permits/concessionspermits/concessions

1942 Ley 1942 Ley de Aguas de Aguas 276276

Florida Florida LawLaw

Popular Popular InitiativeInitiative

Required Required forfor

All uses, All uses, except except “domestic “domestic use”use”

All uses, All uses, except except “domestic “domestic use”use”

All uses, All uses, except except “domestic “domestic use”use”

Issued byIssued by ICE/MINAETICE/MINAET WMDs/FDEPWMDs/FDEP New Nat’l New Nat’l Dir. of Water Dir. of Water ResourcesResources

DurationDuration 30 years max30 years max 20 years max20 years max 20 years max20 years max

Existing Existing usersusers

GrandfathereGrandfathered ind in

Must apply Must apply for permitfor permit

Not explicitly Not explicitly mentionedmentioned

FeesFees Lump sum Lump sum plus variable plus variable fee based on fee based on water usedwater used

Vary within Vary within each district, each district, based on based on amount usedamount used

Depend on Depend on type of type of activity and activity and pollution pollution dischargeddischarged

Procedures for issuance of Procedures for issuance of permitspermits

1942 Ley 1942 Ley de Aguas de Aguas 276276

Florida Florida LawLaw

Popular Popular InitiativeInitiative

Revocation Revocation of permits/of permits/

Permit Permit violationsviolations

Non-use for Non-use for 3-5 years3-5 yearsUnauthorizeUnauthorized transfer of d transfer of permitpermitPurpose no Purpose no longer longer applicableapplicable Use of water Use of water for different for different purposepurpose

Non-use for Non-use for 2 years2 yearsFalse False statementsstatements Willful Willful violations of violations of termsterms Violations of Violations of lawlawWith written With written consent of consent of permitteepermittee

Non-use for Non-use for 2 years2 yearsUnauthorizeUnauthorized transfer of d transfer of permitpermit Breach of Breach of permit permit

conditionsconditions Alteration Alteration or or contaminaticontaminationon Non-Non-paymentpayment

Protection of natural Protection of natural resourcesresources1942 Ley 1942 Ley

de Aguas de Aguas 276276

Florida Florida LawLaw

Popular Popular InitiativeInitiative

Minimum Minimum flows and flows and levelslevels

Not explicitly Not explicitly mentionedmentioned

Minimum flow or Minimum flow or water level at water level at which further which further withdrawals withdrawals would be would be significantly significantly harmfulharmful to the to the water resourcewater resourceWMDs, DEP, or WMDs, DEP, or

governing boardgoverning board

Environmental Environmental flow required to flow required to satisfy satisfy permanent permanent minimum minimum ecosystem ecosystem needsneedsDirectorate of Directorate of Water Water ResourcesResources

ReservationsReservations

Not explicitly Not explicitly mentionedmentioned

Board or DEP Board or DEP may reserve may reserve from permitting from permitting use water use water required for required for protection of protection of fish and fish and wildlife or wildlife or public health public health and safetyand safety

MINAET can MINAET can regulate, restrict, regulate, restrict, condition partial condition partial or total use of or total use of water for:water for: Vulnerable water Vulnerable water bodies and any bodies and any other area other area declared as a declared as a restricted area restricted area for technical for technical reasonsreasons

Water allocation priority Water allocation priority standards (hierarchy of standards (hierarchy of

uses)uses)1942 Ley de 1942 Ley de Aguas 276Aguas 276 Public servicePublic serviceDomestic use, Domestic use, supply stocks, supply stocks, waterholeswaterholesRailways and Railways and transporttransportHydraulic and Hydraulic and hydroelectric hydroelectric power utilitiespower utilities

Florida lawFlorida lawDomestic useDomestic use

No permit No permit requiredrequired

All other usesAll other uses Permit Permit requiredrequired

Popular Popular Initiative Initiative (approved (approved uses)uses)Public supplyPublic supplyDomestic useDomestic useIrrigation for Irrigation for agricultural agricultural purposespurposesIrrigation for non- Irrigation for non- agricultureagricultureHydroelectric Hydroelectric powerpower

Water allocation priority Water allocation priority standards (hierarchy of uses) - standards (hierarchy of uses) -

ContinuedContinued1942 Ley de 1942 Ley de Aguas 276Aguas 276AgricultureAgricultureIrrigationIrrigationHydraulic and Hydraulic and hydroelectric forhydroelectric for

private useprivate useNavigation Navigation channels channels Nursery pondsNursery ponds

More important More important utility companies will utility companies will be preferred over be preferred over other companiesother companies

Florida lawFlorida law Popular Popular Initiative Initiative (approved (approved uses)uses) Development of Development of hydropowerhydropowerTourismTourismAgribusinessAgribusinessAquacultureAquacultureIndustrialIndustrialRecreationalRecreationalTransportationTransportationOtherOther

Florida Governance Florida Governance StructureStructure

FDEP - state agency with FDEP - state agency with supervisory authoritysupervisory authority

5 regional WMDs5 regional WMDs Subject to DEP authoritySubject to DEP authority Based primarily on Based primarily on

watershed boundarieswatershed boundaries Permitting and planning Permitting and planning

authorityauthority CUP - consumptive use CUP - consumptive use

permitspermits ERP - land development ERP - land development

permitspermits Taxing authorityTaxing authority

Property taxProperty tax Land acquisition authorityLand acquisition authority

Water ManagementDistricts

Proposed Initiative Proposed Initiative Governance StructureGovernance Structure

MINAETMINAET National National

Directorate of Directorate of Water ResourcesWater Resources

National Water National Water Resources CouncilResources Council

Hydrological unitsHydrological units Agency of Natural Agency of Natural

Water ResourcesWater Resources Watershed CouncilWatershed Council

Link between water allocation Link between water allocation decision-making and land use decision-making and land use

planning in Floridaplanning in Florida Explosive population growth Explosive population growth

- increased demands for - increased demands for waterwater

Water allocation and land Water allocation and land use planning historically use planning historically poorly coordinatedpoorly coordinated

Local governments Local governments responsible for land use responsible for land use planningplanning Must consider WMDs Must consider WMDs

regional supply plansregional supply plans Districts have “review and Districts have “review and

comment” functioncomment” function Concurrency legislationConcurrency legislation

““adequate water suppliesadequate water supplies”” added to Section added to Section 163.3180(2)(a), Florida 163.3180(2)(a), Florida Statutes in 2005Statutes in 2005

Water allocation decision making Water allocation decision making and land use planning under and land use planning under

proposed initiativeproposed initiative Water Planning instrumentsWater Planning instruments

National Water BalanceNational Water Balance National Water PlanNational Water Plan Plans Water Hydrologic UnitPlans Water Hydrologic Unit National sectoral policies and National sectoral policies and

plansplans Classification of Water Bodies Classification of Water Bodies Land use plans, regulatory Land use plans, regulatory

plans by counties and plans by counties and watershed management planswatershed management plans

Impressive frameworkImpressive framework Need to establish clear Need to establish clear

relationship between relationship between government authority to government authority to approve development plans approve development plans and water availabilityand water availability

Challenging allocation Challenging allocation decisions - Floridadecisions - Florida

Remedies:Remedies: Order agency action of lawOrder agency action of law Order agency exercise of Order agency exercise of

discretion of law; discretion of law; Set aside agency action; Set aside agency action; Remand for agency Remand for agency

proceedings; proceedings; Decide rights, privileges, Decide rights, privileges,

obligations, requirements, obligations, requirements, or procedures at issueor procedures at issue

Order such ancillary relief Order such ancillary relief court finds necessary to court finds necessary to redress effects of official redress effects of official action wrongfully taken or action wrongfully taken or withheld.withheld.

Standing: Standing: Any person Any person

substantially affected substantially affected by a final action of any by a final action of any agency with respect to agency with respect to a permit a permit

Administrative Administrative Procedure Act Procedure Act Ch. 120.68 Judicial Ch. 120.68 Judicial ReviewReview

Challenging allocation Challenging allocation decisions under the proposed decisions under the proposed

initiativeinitiative Remedies available Remedies available

and procedure for and procedure for decision-making decision-making NOT mentioned.NOT mentioned.

No appeal after No appeal after grant deniedgrant denied

Other available Other available path: Art. 50 of CR path: Art. 50 of CR ConstitutionConstitution

Standing:Standing: Those of the public Those of the public

who are negatively who are negatively affectedaffected

National Water National Water Resource Resource Directorate Directorate Art. 57 OppositionArt. 57 Opposition

RecommendationsRecommendations

Popular initiative should:Popular initiative should: Explicitly establish permitting requirements for Explicitly establish permitting requirements for

existing usersexisting users Require that each hydrological unit establish its Require that each hydrological unit establish its

water allocation priorities/hierarchy of uses water allocation priorities/hierarchy of uses within a specified period of time (~ 1 year)within a specified period of time (~ 1 year)

Establish a clear relationship between Establish a clear relationship between government authority to approve development government authority to approve development plans and water availabilityplans and water availability

Add a specific article to allow the public to Add a specific article to allow the public to challenge water allocation decisionschallenge water allocation decisions

Create a separate funding authority to collect Create a separate funding authority to collect taxes, fees, and payments for environmental taxes, fees, and payments for environmental servicesservices

Secondary RecommendationsSecondary Recommendations

Popular initiative should:Popular initiative should: Establish environmental flows first as basis for Establish environmental flows first as basis for

determining amount of available water, rather determining amount of available water, rather than delaying establishment of minimum flowsthan delaying establishment of minimum flows

Allocate water to specific uses consistent with Allocate water to specific uses consistent with the regional water use plans or land use plans the regional water use plans or land use plans rather than a hierarchyrather than a hierarchy

Include internet-based participation (email Include internet-based participation (email notices, searches) to publish and notify and notices, searches) to publish and notify and challenging decisions rather than relying on challenging decisions rather than relying on antiquated paper notificationantiquated paper notification

Questions?Questions?