2017: The Year of Water Law

By: Kathryn Rossmell

Although we are only a few days in to 2017, it is already clear that this will be a year of change. While political changes will impact issues across the board, one matter is of special interest to Floridians: water. Legislation and case law both indicate that this year will see significant discussions on this vital resource in the upcoming year, accompanied by updates to the policies and infrastructure that form the basis of our legal interactions with it. Below is a short summary of Florida-focused water issues to watch in 2017.

Florida-Georgia Water Dispute.

Some believe that the biggest Florida-Georgia rivalry occurs at a college football game in Jacksonville at the end of October. Others, though wrong, may disagree. In October 2014, Florida filed a lawsuit against the state of Georgia, claiming that Georgia’s increasing water usage is harming Florida’s environment and economic future. The long-running dispute centers on water from the Apalachicola-Chattahoochee-Flint River Basin. On January 3, 2017, the Special Master presiding over the case ordered the parties to attend mediation no later than January 24 of this year, and to submit a joint, confidential memorandum to him outlining settlement efforts by the 26th of the month. This case is of special concern to those in the northern half of Florida, as the state is claiming that Georgia’s growing water usage increases the salinity of Apalachicola Bay, causing harm to oyster and other wildlife populations. While the case may not be resolved this year, the continuing efforts of the parties may shed light on possible solutions being considered by the parties and the Special Master. The outcome of this dispute will have lasting impacts on the region, and has the potential to reshape the economies of northern Florida and southern Alabama.

Congress for the “WIIN!”

Water Infrastructure and Improvements Act for the Nation, that is.

On December 10, 2016, Congress passed the Water Infrastructure and Improvements Act for the Nation (WIIN Act),[1] which President Obama signed into law six days later. The WIIN Act, which includes the Water Resource Development Act (WRDA) of 2016,[2] contained several Florida-specific provisions, including:

  • a mandate to study the recovery of oyster beds on the Gulf coast that were damaged by Hurricane Katrina in 2008, the Deepwater Horizon oil spill in 2010, and floods in 2011 and 2016;
  • authorization of a feasibility study to examine a project for flood damage reduction in Daytona Beach; and
  • a mandate to provide priority funding and, where justified, expedited completion to a list of specified projects that includes a project for hurricane and storm damage risk reduction in Ft. Pierce.

The Act also contained authorizations for several projects including a Port Everglades navigation project, a Flagler County hurricane and storm damage risk reduction project, an ecosystem restoration project in the Central Everglades, and a Picayune Strand restoration project.

In addition to the provisions that specifically apply to Florida, WRDA 2016 contained appropriations for the Water Infrastructure Finance and Innovation Act (WIFIA) program, which is a federal credit program administered by the U.S. Environmental Protection Agency for eligible water and wastewater infrastructure projects by a federal, state, local, or tribal government, corporations, trusts, or certain other entities. The funds can be used for acquisition of real property, preconstruction activities, construction, replacement, development, or other related needs.[3]

What is a “water,” really?

That is essentially the question posed by cases in the Sixth Circuit Court of Appeal and the Supreme Court of the United States.[4] These cases center on the scope of the U.S. Environmental Protection Agency’s and the U.S. Army Corps of Engineers’ jurisdiction under the Clean Water Act. The parties to these lawsuits disagree over whether the Clean Water Rule issued June 29, 2015 expands the EPA and Corps jurisdiction[5] past a legally acceptable threshold. The outcome of these cases will determine which waters the federal government can regulate under the Clean Water Act. The incoming Trump administration will have some power to influence these cases as it decides how, and if, to defend the Clean Water Rule and EPA and Corps authority.

On a related note, the Trump administration has indicated that it doubts the science of climate change, and that doubt is almost certain to affect the development of policies going forward. Several current cases[6] rely on climate change projections and justifications for Endangered Species Act decisions. Trump-era policies could impact the outcome of these cases and the future use of similar justifications.

Upcoming Florida Legislation.

President of the Florida Senate Joe Negron has proposed a $2.4 billion water redirection plan in the hopes that storing water south of Lake Okeechobee will provide some relief from toxic algae blooms on both the east and west coasts of Florida. The plan involves the purchase of thousands of acres of farmland south of the Lake that could receive some of the water currently discharged into waterways to the east and west. The South Florida Water Management District does not appear to support the plan, explaining that completing current projects north of the lake will alleviate some of the issues, and that it already owns farmland south of Lake Okeechobee. But the impact of any legislation on this issue will not be limited to areas south of the Lake; the hefty price tag of such a measure could impact the availability for funds to cover other water projects around the state.

Parting Thoughts

The year 2017 looks to be the year of water, and citizens, legislators and the judiciary will all have a chance to impact the future of Florida’s most important resource. Stay tuned for updates!

Kathryn Rossmell can be reached at krossmell@llw-law.com or by calling 561-640-0820.

A special thanks to Lori Killinger for insight on legislative issues.

[1] Pub. L. 114-322 (2016).
[2] Congress has previously passed eleven other Water Resource Development Acts, most recently in 2014. Pub.L. 113-121.
[3] https://www.epa.gov/wifia/learn-about-wifia-program#overview
[4] Multiple cases were filed in multiple federal district courts concerning this matter; however, the Sixth Circuit has ruled it has jurisdiction over the matter. See North Dakota et al v. U.S. Environmental Protection Agency et al, Case No. 15-3751, Sixth Circuit Court of Appeals. Rule opponents have challenged this jurisdictional decision with the U.S. Supreme Court in National Association of Manufactures v. U.S. Department of Defense, et al., Case No. 16-299, United States Supreme Court. In an order dated January 13, 2017, the Supreme Court agreed to review the Sixth Circuit’s finding of jurisdiction.
[5] A 2016 case, Army Corps of Engineers v. Hawkes Co. Inc., 136 S. Ct. 1807 (2016) held that Corps “approved jurisdictional determinations” under its Clean Water Act authority are a final agency action, and thus reviewable under the Administrative Procedures Act. This new holding provides an opportunity to challenge the Corps ability to require permitting of certain waters and wetlands.
[6] See Alaska et al. v. Jewell, Case No. 16-596, United States Supreme Court and Alaska Oil and Gas Association et al. v. Penny Pritzker et al., Case No. 16-35380, Ninth Circuit Court of Appeals.