Will DEP's proposed new water permitting rules lead to hoarding and marketing Florida's water?

Our ersatz governor, who has yet to realize he’s running a government instead of a predatory corporation that collects hospitals and feeds on defrauding the federal government of the elderly’s Medicare money, is determined to revert Florida back to the time when environmental conscience was nonexistent.   Despite the flowery crap he spews about how focused he is on water and “getting it right,” he continues to have his DEP boy Vinyard direct the destruction of Florida’s environmental protection programs at every level.

As you might not know, DEP has drafted a comprehensive rewrite of the state’s administrative rules that, if adopted, will significantly change how consumptive use (water use) permits are issued under Chapter 373.  Vinyard and his minions advertise their purpose as needing to create a more common regulatory platform among the five water management districts so water applicants will not have five different processes to follow when seeking water use permits between districts.  Not an unreasonable concept (if one assumes there are a lot of applicants that have to go to more than one district for water permits).

Problem is, none of these clowns were around over the past 40 years it took to develop the current rules which have been recognized nationwide as an equitable and effective way to allow water to be used in ways that are fair among existing and future users and the needs of natural systems.  Consequently, they seem absurdly determined to dredge up problems that were solved years ago by a lot of very brilliant folks, including governors and legislators from both parties and scientists of national repute.  By tweaking good solutions to complex problems they are only trying to make a round wheel more round.  It would be pure silliness if it were not so sinister and costly in its result.

What is so wrong with all this is that their collective justification for undertaking this Quixotic thrust is based upon clearing the path for businesses to be able to make more profits.  They simply will not accept the unalterable fact that some of this state’s most prosperous times took place when environmental regulation was at its most inflexible and rigid best.  So, there just has to be more to it.

(It’s worth noting that during Mitt Romney’s acceptance speech at the RNC in recent weeks, he echoed a lot of Scott-speak, like getting rid of job-killing regulations and creating jobs in numbers only he can make happen.  Florida has always been a bellwether state so if you like what Scott’s doing here, vote for Romney and the whole country will be handed over to special interests.)

Regardless of what their true purposes might be, DEP CEO and cowboy-boot-wearing Herschel Vinyard has launched the comprehensive rewrite and now we are left to watch and wince at the coming disastrous impacts it will likely have upon natural resource management and protection in our state.

The Florida Conservation Coalition (FCC) has sent Vinyard a fairly strong letter that raises issues which hint at what the real reason behind the rewrite could be … and it isn’t to standardize rules between the water management districts.

The letter points out there are two themes apparent in the many significant changes being proposed.  First, it is clear that once a permit is granted, the water pretty much becomes the property of the permit holder during the term of the permit, i.e., nearly permanent, and it is essentially impossible for the agency to review before the end of the term if circumstances change as it can now.  Such changed circumstances might include conservation practices that cause the permittee to need less water, changes in the permittee’s actual need because of changing business economics or long term rainfall patterns, or unanticipated impacts upon natural systems or the hydrologic system.

Under today’s rules, water conserved can be reallocated to others such as a new business.  If an area is suffering from a water shortage where all available water has been committed, freeing up a quantity from an existing user creates additional supply that can then be recommitted for public purposes such as a new user who might bring new jobs to the area.  Everyone wins under this scenario.  The existing user continues his business using less water with no harm to him; the new user can start his new business, and; the public is served because new commerce and jobs are generated. 

Under Vinyard’s proposal, the current permit holder could conceivably sell water he has conserved to a new user and if water is scarce, the price could be hefty.  All the new user would need is to get a nod from the district that the use meets legal requirements, i.e., be reasonable-beneficial and in the public interest, etc.

Needless to say, the public has spent hundreds of millions on programs designed to motivate farmers, miners, power companies, private home owners and you-name-it, to conserve water just so more water would be available to meet more growing demand.  This was purely to foster economic development in a manner that would preserve and sustain existing water supplies and protect the environment.  Scott and Vinyard seem to be completely missing or ignoring this point and they are hell bent on not letting any pesky truth, fact or incontrovertible reality convince them otherwise.

The second theme mentioned in the FCC letter relates to the 20-year term of the permits which would be basically automatic and, again, the inability of the permits to be reviewed at any given point even if it should be done in the public interest.  This total control of a quantity of water, whether or not it continues to be a reasonable and beneficial use (as required by current law), begins to smell a lot like ownership of water instead of a permit to use.

This isn’t the first time water permit holders have tried to make water a marketable commodity.  The most recent was the city of Tampa when it proposed legislation that would remove the treated waste water it discharges into Tampa Bay from the water permitting process as long as the water remained in a contained condition.  The maneuver would have removed it from public stewardship and created virtual ownership of water under their control.  As demand for water increases, the city appeared to be posturing itself to be able to sell its treated water to others.  The problem is that this situation would not be limited to just the City of Tampa. It would been operative for any permit holder that treats and contains used water before discharging it, like farmers, power and mining companies, etc., all of which are users and re-users of huge quantities of water.

The fact that DEP is continuing this path toward drastically changing the current water use permitting rules, suggests we need to ask, why?

In response, we are left with two nefarious, for lack of any other way of putting it, scenarios: 1) either they are incredibly oblivious to all the careful thinking that has gone into the development of Florida’s water laws over the last 40 years, or; 2) the Department is in bed with some very large water users who have some very collusive designs on what they want to do with “their” water in the future.

Current Florida law is based upon the concept that water is a public resource owned by no one and, by law, is managed in a manner that is intended to serve public interests.  These interests would include an equal-footing opportunity to apply for its use, assurance that the use is reasonable and beneficial and does not interfere with other existing legal users or cause environmental harm, and, if certain circumstances change, providing that the use may be modified in a way that will continue to serve the interests of the public. (These are my paraphrased words.  I fully appreciate that there will be lawyers, which I am not, who will argue some nuance that is contra to what I say here or reference a court case to prove I’m not saying it correctly.  My response is that if it always takes a lawyer to determine how we’re to discuss what all Floridians need to understand, we’re in deep trouble.)

Certainly, permit holders need to have a degree of certainty that the water use they are granted will continue to be available as prescribed for a reliable period of time.  There are valid public interest reasons, however, that justify a permitting agency’s opportunity to review a long-term permit before the permit is up for renewal.  And, these reasons need to be set forth in the terms of the permit and authorized by law.  Simply put, issuance of permits for as long as 20 years with no opportunity to be reviewed in the interim reflects an unrealistic level of knowledge about the future that no person, agency or government has.  We’re talking about potentially hundreds of permits for huge quantities in a physical and political world that can change vastly in a matter of months, much less 20 years.

Reasonable circumstances that justify review of a permit, for example, might be when the initial quantity granted is no longer needed by the permittee, or a water shortage condition demands that everyone reduce usage, or if granting the permit is later found to be causing unanticipated adverse impacts either to natural systems or other existing legal users.  There could be other such reasonable circumstances that would justify a review of permitted quantities in certain areas.

If the length and permanence of control of water that the proposed DEP rule would afford permit holders is adopted, it is probable there will be several inevitable and ill-advised results.  First, the water will become owned by definition and, thus, could be sold at a profit to those who need it but can’t get it anywhere else.  Secondly, if the permit holder decides not to allow others to have the water he no longer needs, then the economic benefit from it going to a new use is denied to the area and the state as a whole.  The FCC asks the question, would this “banking” or hoarding of unused water be reasonable and beneficial and in the public interest as required by present law?  These conditions are fundamental tenets for the permitted use of water under Florida water law. 

Florida water law also provides that water use should always be allowed to migrate toward higher orders of use.  A higher order of use for surplus water generated from a farm that has implemented water saving methodologies, for example, would be to allow the conserved water to be available to another farm that has no other alternative.  Since it is a public resource, the new user should not have to pay someone to have access to it. By the same token the needs of the new farmer should not be met at the expense of the existing legal permittee.

To be clear, no water should ever be arbitrarily taken from a permitted legal user during the approved term of the permit and given to another user no matter what the priority.  This is why permits are for limited terms, so a proposed higher use can compete with an existing use when the permit expires and is up for renewal. The only reason a reduction from a permitted amount might be considered would be under such carefully considered circumstances as mentioned earlier, and which would be clearly established in the laws and rules of the state.

So, if the reason for going through this masquerade of rewriting public policy really is to shift the state closer toward making water a sellable, profit-making commodity and removing the public as its proper steward, why doesn’t Scott and Vinyard just say so?  The reason is, of course, is that this represents a tectonic shift from current law that the public would never stand for.  Clearly this is all about serving the interests of large permit holders who have designs to make a lot of money selling water to those who need it at a price that will only go higher as water gets scarcer, and making a lot of money. 

If you don’t think this is a reasonable scenario, just remember the push by the Cattlemen’s Association last legislative session to convert hundreds of thousands of publically owned acres to private ownership simply by changing a few words in the law relating to the Ordinary High Water Line.

Clearly, there is not much thought being given to what they may wreak upon the state’s cherished natural heritage with this so-called re-write of water laws that have evolved over decades.  One has to question the genesis of their motives.  What’s brought them to this position that deems all which has gone before them by so many bright people from all sides of the political spectrum so wrong that they must begin all over again? One thing it certainly is not is public interest.

There’s apparently nothing this governor and his micro-focused band of miscreants will not do out of ignorance, the pursuit of Super PAC money and political power.