País Verde, Sunshine State: Comparative Analysis of Costa Rica and Florida Water Allocation Law

1. País Verde, Sunshine State:Comparative Analysis of Costa Rica and Florida Water Allocation Law Viviana Cover Ruiz, Licda. Candidata Joanna Reilly-Brown, M.S. & J.D. Candidate Veronica Saavedra, M.S. & J.D. Candidate Supervised by: Thomas Ankersen Director, Jt. Program & Conservation Clinic Richard Hamann, Supervising Attorney University of Florida, Levin College of Law

2. Presentation Overview • Introduction: Why is Costa Rica’s water law in need of reform? • Why compare Florida’s water law? • Legal status of water under common law and civil law • Comparative analysis of legal basis for water allocation under 1942 law, Florida law, and popular initiative

3. Presentation Overview • Analysis of the governance structure for water allocation decisions under both Florida law and the popular initiative • Analysis of the relationship between water allocation decision-making and land use planning under both systems • Analysis of the legal mechanisms and standards for challenging allocation decisions made by governance entities under both systems • Conclusions and Recommendations

4. Importance of Reform • Costa Rica currently operates under 1942 water law • Recent water shortages, conflicts among competing uses • Sardinal case • Demonstrates need for water law reform • Bill for Integrated Management of Water Resources by Popular Initiative • Draft law • Result of pressure from water policy advocates

5. Why Compare Florida Water Law? • Florida’s 1972 Water Resources Act • Hailed as national model • Evaluate water allocation decision-making under proposed law and make recommendations for reform in Costa Rica based on Florida water law successes and failures

6. Background: Common and civil law of water

7. Legal standard for permit issuance

8. Procedures for issuance of permits/concessions

9. Procedures for issuance of permits

10. Protection of natural resources

11. Water allocation priority standards (hierarchy of uses)

12. Water allocation priority standards (hierarchy of uses) - Continued

13. Florida Governance Structure • FDEP - state agency with supervisory authority • 5 regional WMDs • Subject to DEP authority • Based primarily on watershed boundaries • Permitting and planning authority • CUP - consumptive use permits • ERP - land development permits • Taxing authority • Property tax • Land acquisition authority Water Management Districts

14. Proposed Initiative Governance Structure • MINAET • National Directorate of Water Resources • National Water Resources Council • Hydrological units • Agency of Natural Water Resources • Watershed Council

15. Link between water allocation decision-making and land use planning in Florida • Explosive population growth - increased demands for water • Water allocation and land use planning historically poorly coordinated • Local governments responsible for land use planning • Must consider WMDs regional supply plans • Districts have “review and comment” function • Concurrency legislation • “adequate water supplies” added to Section 163.3180(2)(a), Florida Statutes in 2005

16. Water allocation decision making and land use planning under proposed initiative • Water Planning instruments • National Water Balance • National Water Plan • Plans Water Hydrologic Unit • National sectoral policies and plans • Classification of Water Bodies • Land use plans, regulatory plans by counties and watershed management plans • Impressive framework • Need to establish clear relationship between government authority to approve development plans and water availability

17. Remedies: Order agency action of law Order agency exercise of discretion of law; Set aside agency action; Remand for agency proceedings; Decide rights, privileges, obligations, requirements, or procedures at issue Order such ancillary relief court finds necessary to redress effects of official action wrongfully taken or withheld. Standing: Any person substantially affected by a final action of any agency with respect to a permit Administrative Procedure Act Ch. 120.68 Judicial Review Challenging allocation decisions - Florida

18. Remedies available and procedure for decision-making NOT mentioned. No appeal after grant denied Other available path: Art. 50 of CR Constitution Standing: Those of the public who are negatively affected National Water Resource Directorate Art. 57 Opposition Challenging allocation decisions under the proposed initiative

19. Recommendations • Popular initiative should: • Explicitly establish permitting requirements for existing users • Require that each hydrological unit establish its water allocation priorities/hierarchy of uses within a specified period of time (~ 1 year) • Establish a clear relationship between government authority to approve development plans and water availability • Add a specific article to allow the public to challenge water allocation decisions • Create a separate funding authority to collect taxes, fees, and payments for environmental services

20. Secondary Recommendations • Popular initiative should: • Establish environmental flows first as basis for determining amount of available water, rather than delaying establishment of minimum flows • Allocate water to specific uses consistent with the regional water use plans or land use plans rather than a hierarchy • Include internet-based participation (email notices, searches) to publish and notify and challenging decisions rather than relying on antiquated paper notification

21. Questions?