THE CRUX OF PUBLIC INTEREST. Excellent Op-ed by Merrillee Malwitz-Jipson and Jim Tatum in todays Gainesville Sun: The Suwannee River Water Management District has recently issued large water permits to landowners who do not intend to farm their land, but wanted the permits so they could make a bigger profit when the land was sold--even though District staff acknowledge that the withdrawals from at least one of these permits will harm the Ichetucknee. What do you think of this practice, which the folks at Our Santa Fe River label water banking? See the link below for the article in todays Gainesville Sun. Water being sold for private gain, not public benefit By Merrillee Malwitz-Jipson and Jim Tatum Special to The Sun Published: Saturday, July 12, 2014 at 6:01 a.m. Last Modified: Friday, July 11, 2014 at 4:55 p.m. Water for sale: For less than $600 you can purchase approximately 2.3 million gallons per day for 20 years. For less than $600, you can buy approximately 3.2 million gallons per day for 20 years. Even though these withdrawals will damage, reduce the flow and hasten the drying up of nearby springs and rivers, thats OK. And even though you will not use these permits to grow food to feed people, thats also OK. And even though only you as an individual, and not the public, will benefit from this by growing richer, thats OK as well. But whose water is this? Apparently it belongs to the state of Florida, since the state is selling it. But what about the public trust? Does the public not own the states waters? Is it in the publics interest that the state should sell its water for a pittance so that one individual should benefit even while damaging the publics rivers and springs? This is the current situation in Florida as the state water management districts are selling water-use permits to purchasers who do not intend to engage in agriculture with the new withdrawal permits. Instead, they plan to sell the land and want the permits so that the land will be worth more. This type of water banking has traditionally been practiced in the western states, where water has always been much scarcer, hence more valuable. Water banking is the legal transfer and market exchange of water, motivated by the need to move water where it is needed most, or where it will bring the highest price. Now that people in Florida are beginning to see their water disappearing and in shortage, that practice has arrived here. Two different viewpoints have traditionally been accepted in the U.S. regarding water rights: the appropriative system, found mostly in the west where water is scarce, and riparian, mostly in the east where water is more abundant. The appropriative system generally recognizes seniority (first user) and is not connected to the land (one need not own the land, but only use the water). Riparian rights emanate from a persons ownership of land adjacent to a body of surface water or may allow a landowner to withdraw groundwater from wells on the owners land. Florida, while geographically located in the midst of riparian country, has employed both systems. Of pertinent interest is the American tradition of riparian rights, e.g. landowners may withdraw unlimited amounts as long as it is not done for a malicious purpose or in a wasteful manner. California employs what is called the correlative theory, which is a doctrine applied in many jurisdictions across the nation: Landowners have equal rights to withdraw for a beneficial purpose, but do not have the prerogative to seriously deplete a neighbors water supply. In all cases, the state intervenes by providing legal withdrawals, but at the same time must ensure safeguarding of other water rights and avoid injury to the public interest. Which brings us to the crux of the matter: determining what is consistent with the public interest. Private property interests must be subordinated to the interest of the public as a whole. The well-known three-prong test ostensibly applied by the water management districts in order to approve a permit application involves basically using water in a reasonable and beneficial way that is consistent with the public interest, causes no harm to other users, and, again, is in the public interest. Ronald Christaldi, writing of Floridas policy of issuing permits in the Florida State University Law Review, correctly writes that the term public interest presents a challenge to the agency making the determination because it is not definable and that regardless of ecological concerns, permits are issued whenever they meet the three criteria outlined above. Ethically speaking, how can the public interest be served when one individual buys a permit, not to grow crops to feed people, but to make himself richer? And when by doing so, the withdrawal will damage and diminish (this is publicly admitted by the water management district) the precious resources enjoyed by the public? Forty-two years ago the state of Florida mandated the Department of Environmental Protection to protect the water bodies in the state and establish minimum flows and levels necessary to prevent significant harm to natural systems as a result of the withdrawal of water. The department has failed utterly and miserably in this mandate and to this date has not fulfilled this obligation. Even as we witness the continued denigration, significant harm and the drying up and disappearance of our springs and waters, we now see our state officials selling the publics waters to investors and entrepreneurs to benefit the few to the detriment of the public. Merrillee Malwitz-Jipson is president and Jim Tatum is a member of Our Santa Fe River. gainesville/article/20140712/OPINION03/140719932/-1/opinion?p=all&tc=pgall
Posted on: Sat, 12 Jul 2014 15:06:24 +0000
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