Plum creek and the Alachua county comp plan

Plum Creek Timber Company (“Plum Creek”), the largest private landowner in Alachua County and the entire nation, proposes to develop a substantial portion of the 65,000 acres of land it owns in Alachua County east of Newnans Lake. To achieve its proposed plan, Plum Creek seeks the Alachua County Board of County Commissioners’ (“County Commission”) approval of amendments the county’s “comprehensive plan” (also known as the “comp plan”). The Plum Creek plan has generated significant debate and controversy in the local community. Through a “community planning process paid for by Plum Creek called Envision Alachua, Plum Creek points to benefits such as economic development combined with land conservation and environmental sustainability. Others in the community, such as the Stand by Our Plan group, don’t quite see it the same way. Despite the overarching controversy, two basic questions are often asked: 1) where does the County Commission get its authority to dictate how Plum Creek uses its land, and 2) what is a comp plan?

Like all other local governments in the United States, the County Commission has significant authority to regulate land use within its jurisdiction. Based on interpretations of the 10th Amendment of the United States Constitution, this authority is deemed a “police power” reserved to the individual states, as opposed to the federal government. The individual states, in turn, delegate this power to local governments either by enabling statues or through the state constitution. “Police powers” are broad inherent powers, allowing local governments to regulate to protect what is often described as the “health, safety, and general welfare” of its citizens. However, while broad, various restrictions also apply to this power. For example, the government may not take private property without providing proper compensation to the property owner.

Originating from these “police powers,” comprehensive plans establish a coherent vision for the extent, distribution, and timing of future development and growth, and thus serve as a guide to future land use decisions. In Florida, state law requires all local governments to adopt comp plans for their jurisdictions. Alachua County’s current comp plan became effective in 2011 and can be viewed here. In addition to adopting comp plans, local governments are also responsible for amending comp plans and implementing the plans through appropriate land development regulations, keeping in mind these regulations must be consistent with the comp plan. Click here to view the statutory provision in Florida law laying out the mandatory and optional elements of a local government comp plan.

Since Plum Creek’s plans contemplate an area of more than 15,000 acres, it seeks amendment to the comp plan through a “sector plan.” A sector plan is essentially an optional land use planning tool that local governments can use to facilitate long term planning for larger geographical areas. Sector plans consist of two planning phases—a conceptual long-term master plan and more specific detailed specific area plans. Plum Creek has submitted a long-term master plan to the Alachua County Growth Management Department, and these types of plans must be adopted through amendment to the comp plan. Click here to navigate to an Alachua County Growth Management Department’s webpage about Plum Creek’s plan. The second phase—detailed specific area plans—comes later, and these specific plans require no comp plan amendment. Click here for the statutory provision in Florida law providing for sector plans. Although the County Commission makes the decision to adopt a sector plan, a variety of other entities have been, may be, or will be involved in the process, such as the regional planning council (the North Central Florida Regional Planning Council in this case), the Alachua County Planning Commission, and the Florida Department of Economic Opportunity.

fracking in florida

Fracking in Florida?

The rapidly growing practice of hydraulic fracturing, also known as “fracking,” has incited significant debate. Some argue that this technology, which involves extracting hard-to-get natural gas and oil deposits by injecting water, sand, and chemicals into wells in order to fracture rock and recover these energy sources, provides substantial revenue and jobs, and helps make the country more energy independent. Others claim it causes a variety of environmental and human health problems ranging from air pollution and groundwater contamination to the overuse of water. Until now, hydraulic fracturing has not been widespread in Florida. Much of the hydraulic fracturing debate has been concentrated in states like Pennsylvania, New York, Colorado, and Texas. However, as oil and gas companies begin to show greater interest in the potential of this technology, it appears fracking in Florida is becoming more and more of a reality.
The Florida Department of Environmental Protection (FDEP) recently approved a permit application for an exploratory well in Collier County. The permit issued to the Dan A. Hughes Company, a Texas oil and gas company, authorizes the drilling of a well in the Big Cypress Swamp watershed, less than a mile from the Florida Panther National Wildlife Refuge and underneath the main public supply wellfield for the City of Naples. Although the Hughes Co. claims that it has no plans to utilize fracking technology, some say nothing prohibits the company from changing its mind and fear that permitting wells in this location may set a precedent for exploration and drilling that will lead to fracking on and beneath sensitive environmental habitats throughout Florida.
Accordingly, two persons — a small South Florida wildlife organization and an adjoining landowner — have filed administrative challenges to FDEP’s proposed permit. Among other bases for the challenges, the petitioners claim that the Texas oil and gas company’s proposal fails to comply with industry standards and would violates Florida law, which prohibits oil and gas drilling activities within a mile of lands with such a designation. The Florida panther is one of the most endangered species in the United States as there are only about 160 Florida panthers remaining. In addition, the Big Cypress Swamp Advisory Committee, established within FDEP to make nonbinding recommendations, recently voted to recommend denial of the permit. Although challenges to the permit currently prohibit the Hughes Co. from constructing the well, an Administrative Law Judge (ALJ) has the final say and is expected to make a decision this spring. Regardless of the ALJ’s decision, FDEP’s intent to approve the permit, combined with other actions by oil and gas companies, signifies an increasing interest in such drilling in Florida and means that the debate over fracking in Florida is likely just beginning.

ANOTHER UPDATE ON FLORIDA POWER & LIGHT CO.’S NATURAL GAS PIPELINE

ANOTHER UPDATE ON FLORIDA POWER & LIGHT CO.’S NATURAL GAS PIPELINE

Sabal Trail Transmission, LLC, the company contracted by Florida Power & Light Co. to build the biggest part of a major interstate natural gas pipeline extending through most of the peninsula of Florida, continues to work towards completing the planning phase for the pipeline. Sabal Trail has been reviewing study corridors and engaging with stakeholders as part of its efforts to establish a preferred route for the pipeline, and the company plans to submit a formal application to the Federal Energy Regulatory Commission (FERC) by the end of this year. Approval by FERC is the last major regulatory step required for the pipeline, which is expected to be up and running by May of 2017. Although FERC’s approval may be subject to route changes, many North Central Florida landowners and residents continue to voice concern over the current route and the effect it may have on their land and their communities. FERC has held several public meetings to receive public input related to the pipeline and its route.
As an example of an instance of landowner concern, click here for a Gainesville Sun video of landowners voicing their concern at the particular site where Sabal Trail plans for the pipeline to cross under the Santa Fe River. You can also view Sabal Trail’s maps of areas in Florida affected by the pipeline here. Finally, click this link for a news story pointing out a somewhat unique, but significant, reason for opposing the pipeline’s route.

Jennifer Springfield, Esq. testifying on behalf of the Alachua County Commission at a public hearing regarding the Minimum Flows and Levels Rule for the Lower Santa Fe and Ichetucknee Rivers

Florida Dept. Environmental Regulation hearing on MFL's

Basic Florida water law III

BASIC WATER LAW

Part III: Florida’s Water Law Innovations

​Like the other eastern states, Florida traditionally followed the Riparian Doctrine. Early attempts to address water management in Florida were mainly focused on surface water drainage, since Florida was wet and water was often seen as a nuisance. However, a variety of problems began to emerge due to both the success of the surface water drainage projects and other factors like drought. After several of years of activity at the state level to try to address developing water-related problems, the Legislature enacted the Florida Water Resource Act in 1972. It was largely based on a model water code (published in 1972 as A Model Water Code) developed by scholars at the University of Florida College of Law. The Act substantially replaced Florida’s common law system of water regulation and the basic structure and policy of the Act remain intact today.
The Water Resource Act created a progressive water law system in a variety of ways. One of the most significant innovations is the Act’s creation of five water management districts with jurisdictions that correspond to the boundaries of the state’s five main watershed basins, rather than to traditional political. This has allowed the water management districts to largely dodge problems that arise in regulating a resource that crosses traditional political boundaries and address water issues that affect the basins in their entirety. The innovations of the Act don’t stop there, though.
Departing from the traditionally distinct treatment of surface water and ground water, the Act comprehensively regulates both surface and ground water by defining water broadly to include both types (and even includes water in the atmosphere). The Act also incorporates environmental protection, water resource planning, and the integration of water quality and quantity into the water management districts’ responsibilities.
For example, the Act’s consumptive use permitting (CUP) program requirements, which are implemented by the water management districts, illustrate the incorporation of these facets of water management, as well as some of the progressiveness of the Act. When a water use comes within a certain threshold amount or type of water use, a CUP must be first be obtained. In order to obtain a permit, the applicant must demonstrate compliance with three basic criteria. The proposed use must (1) be a reasonable-beneficial use of water, (2) not interfere with any existing legal use of water, and (3) be consistent with the public interest. The first criterion combines the Riparian Doctrine’s “reasonable use” requirement with the Prior Appropriation Doctrine’s “beneficial use” requirement. The second criterion pays homage to the “first in time, first in right” principle of the Prior Appropriation Doctrine.
The Florida Department of Environmental Protection’s Office of Water Policy and all five water of the state’s water management districts are currently in the process of revising their CUP rules to achieve as much uniformity as possible across district boundaries in how water uses are regulated in Florida. For more information regarding this effort, visit http://www.dep.state.fl.us/water/waterpolicy/cupcon.htm

Jennifer Burdick Springfield and Alexander Boswell-Ebersole

Florida water Law

FLORIDA WATER LAW

By Attorneys Jennifer Burdick Springfield and Alexander Boswell-Ebersole
Springfield Law, P.A.
October 2013

Eastern versus Western Water Law
Two traditional water law systems, which originally only addressed surface water, correspond geographically with the western and eastern United States, roughly divided along the 100th meridian (which runs north-south through states like Texas, Nebraska, and the Dakotas). In the wetter east, the Riparian doctrine derived from English common law and in the west, the Prior Appropriation doctrine developed from the practices of miners and other settlers.
Under the Riparian Doctrine, also known as riparianism, one’s water rights are dependent on land ownership. All owners of land abutting a defined watercourse—riparian land—have an equal right to use the water. Originally, this common law right was qualified by the “natural flow rule,” whereby riparian landowners had a right to an unimpaired and uninterrupted flow of water adjacent their land. Thus, this rule required “upstream” landowners to use water such that the use did not impair or interrupt the natural flow of the watercourse “downstream.” However, in recognition of the limitations this rule placed on growing industrial and other uses, a new rule of “reasonable use” replaced the natural flow rule.
“Reasonable use,” a term not quantified except through adjudication in a particular case, is a relative term, and what is “reasonable” varies widely from state to state. Nevertheless, riparianism requires landowners who share a watercourse to use water in a way that correlates to other landowners’ needs, including sharing the benefits in times of water abundance and the burdens during scarcity. Another way to view riparianism is essentially as a tort scheme that protects landowners from harm caused by other landowners. As a ususfructory right and not a property right, the right to use water under the Riparian doctrine requires that a landowner avoid unreasonable water detention or diversion.
Moreover, when established, a water right of a riparian landowner exists for an indefinite time period and non-use does not cause a landowner to lose their riparian water right. However, despite this general rule, courts have devised theories to enable them to find that a landowner has involuntarily relinquished a riparian water right; for example, “prescription,” which is where another makes open use of the water for an “appropriate” period of time (similarly to the real property doctrine of adverse possession). At the same time, the doctrine of riparianism has historically prohibited the voluntary transfer of a riparian water right for use by a non-riparian landowner, but this, too, has evolved to allow non-riparian uses that are “reasonable.” The Riparian doctrine boils down to two main premises – riparian landownership and “reasonable use.” The existence of a “reasonable use” depends on the reasonableness of the type, amount, and place of a particular use, which is often dependent on the economic, political, and/or geographic characteristics of the state, and can also change over time.
​Considerably different from riparianism, the Prior Appropriation Doctrine developed out of traditional practices of settlers (especially miners) in the arid and vast West, where it was often necessary to transport water great distances. The Prior Appropriation doctrine requires no riparian landownership, but rather is based on the concept of “first in time, first in right.” Just as it sounds, this concept gives priority to whoever is first, and thereby gives persons who have established their priority, first crack at an allotment of water during times of water shortage, i.e. before later appropriators.
More specifically, the elements of the Prior Appropriation doctrine establish priority for the first person who (1) intends to appropriate an un-appropriated natural watercourse, i.e. a body of water not yet claimed, (2) actually diverts water from the source by physically removing it, and (3) puts the water to beneficial use without waste. The rationale for the diversion requirement is that where labor and capital is invested to accomplish such use, the diverter deserves to have a superior right to that water. It also assured that the amount of a person’s water right could be measured. In more modern times, this requirement is declining in importance and popularity because it does not allow for a broad enough range of uses and many western states now recognize a water right to “in-stream flow” for certain activities, such as recreation. Beneficial use is the counterpart to riparianism’s “reasonable use” limitation and was previously available only for traditional industry uses, such as agriculture and mining, but now often includes other uses such as wildlife protection and recreation.

Eastern versus Western Water Law

Two traditional water law systems, which originally only addressed surface water, correspond geographically with the western and eastern United States, roughly divided along the 100th meridian (which runs north-south through states like Texas, Nebraska, and the Dakotas). In the wetter east, the Riparian doctrine derived from English common law and in the west, the Prior Appropriation doctrine developed from the practices of miners and other settlers.
Under the Riparian Doctrine, also known as riparianism, one’s water rights are dependent on land ownership. All owners of land abutting a defined watercourse—riparian land—have an equal right to use the water. Originally, this common law right was qualified by the “natural flow rule,” whereby riparian landowners had a right to an unimpaired and uninterrupted flow of water adjacent their land. Thus, this rule required “upstream” landowners to use water such that the use did not impair or interrupt the natural flow of the watercourse “downstream.” However, in recognition of the limitations this rule placed on growing industrial and other uses, a new rule of “reasonable use” replaced the natural flow rule.
“Reasonable use,” a term not quantified except through adjudication in a particular case, is a relative term, and what is “reasonable” varies widely from state to state. Nevertheless, riparianism requires landowners who share a watercourse to use water in a way that correlates to other landowners’ needs, including sharing the benefits in times of water abundance and the burdens during scarcity. Another way to view riparianism is essentially as a tort scheme that protects landowners from harm caused by other landowners. As a ususfructory right and not a property right, the right to use water under the Riparian doctrine requires that a landowner avoid unreasonable water detention or diversion.
Moreover, when established, a water right of a riparian landowner exists for an indefinite time period and non-use does not cause a landowner to lose their riparian water right. However, despite this general rule, courts have devised theories to enable them to find that a landowner has involuntarily relinquished a riparian water right; for example, “prescription,” which is where another makes open use of the water for an “appropriate” period of time (similarly to the real property doctrine of adverse possession). At the same time, the doctrine of riparianism has historically prohibited the voluntary transfer of a riparian water right for use by a non-riparian landowner, but this, too, has evolved to allow non-riparian uses that are “reasonable.” The Riparian doctrine boils down to two main premises – riparian landownership and “reasonable use.” The existence of a “reasonable use” depends on the reasonableness of the type, amount, and place of a particular use, which is often dependent on the economic, political, and/or geographic characteristics of the state, and can also change over time.
​Considerably different from riparianism, the Prior Appropriation Doctrine developed out of traditional practices of settlers (especially miners) in the arid and vast West, where it was often necessary to transport water great distances. The Prior Appropriation doctrine requires no riparian landownership, but rather is based on the concept of “first in time, first in right.” Just as it sounds, this concept gives priority to whoever is first, and thereby gives persons who have established their priority, first crack at an allotment of water during times of water shortage, i.e. before later appropriators.
More specifically, the elements of the Prior Appropriation doctrine establish priority for the first person who (1) intends to appropriate an un-appropriated natural watercourse, i.e. a body of water not yet claimed, (2) actually diverts water from the source by physically removing it, and (3) puts the water to beneficial use without waste. The rationale for the diversion requirement is that where labor and capital is invested to accomplish such use, the diverter deserves to have a superior right to that water. It also assured that the amount of a person’s water right could be measured. In more modern times, this requirement is declining in importance and popularity because it does not allow for a broad enough range of uses and many western states now recognize a water right to “in-stream flow” for certain activities, such as recreation. Beneficial use is the counterpart to riparianism’s “reasonable use” limitation and was previously available only for traditional industry uses, such as agriculture and mining, but now often includes other uses such as wildlife protection and recreation.

Florida’s Water Law Innovations

​Like the other eastern states, Florida traditionally followed the Riparian Doctrine. Early attempts to address water management in Florida were mainly focused on surface water drainage, since Florida was wet and water was often seen as a nuisance. However, a variety of problems began to emerge due to both the success of the surface water drainage projects and other factors like drought. After several of years of activity at the state level to try to address developing water-related problems, the Legislature enacted the Florida Water Resource Act in 1972. It was largely based on a model water code (published in 1972 as A Model Water Code) developed by scholars at the University of Florida College of Law. The Act substantially replaced Florida’s common law system of water regulation and the basic structure and policy of the Act remain intact today.
The Water Resource Act created a progressive water law system in a variety of ways. One of the most significant innovations is the Act’s creation of five water management districts with jurisdictions that correspond to the boundaries of the state’s five main watershed basins, rather than to traditional political. This has allowed the water management districts to largely dodge problems that arise in regulating a resource that crosses traditional political boundaries and address water issues that affect the basins in their entirety. The innovations of the Act don’t stop there, though.
Departing from the traditionally distinct treatment of surface water and ground water, the Act comprehensively regulates both surface and ground water by defining water broadly to include both types (and even includes water in the atmosphere). The Act also incorporates environmental protection, water resource planning, and the integration of water quality and quantity into the water management districts’ responsibilities.
For example, the Act’s consumptive use permitting (CUP) program requirements, which are implemented by the water management districts, illustrate the incorporation of these facets of water management, as well as some of the progressiveness of the Act. When a water use comes within a certain threshold amount or type of water use, a CUP must be first be obtained. In order to obtain a permit, the applicant must demonstrate compliance with three basic criteria. The proposed use must (1) be a reasonable-beneficial use of water, (2) not interfere with any existing legal use of water, and (3) be consistent with the public interest. The first criterion combines the Riparian Doctrine’s “reasonable use” requirement with the Prior Appropriation Doctrine’s “beneficial use” requirement. The second criterion pays homage to the “first in time, first in right” principle of the Prior Appropriation Doctrine.
The Florida Department of Environmental Protection’s Office of Water Policy and all five water of the state’s water management districts are currently in the process of revising their CUP rules to achieve as much uniformity as possible across district boundaries in how water uses are regulated in Florida. For more information regarding this effort, visit http://www.dep.state.fl.us/water/waterpolicy/cupcon.htm

Florida Springs, Plum Creek, and Minimum Flows

The St. John’s River Water Management District is gearing up to reconsider “acceptable” minimum flow levels of important waterbodies in North central Florida. This process begins in early 2014. Check out their website for dates, times and location. This “minimum flow” concept and it’s RE-establishment is crucial to the evaluation of the Plum Creek plan. I say “RE-establishment” because the District has minimum flow levels set right now. It is my understanding these levels simply cannot be enforced so they plan to just lower the level.

The Gainesville Sun recently has published and continues to write about the springs in North Central Florida. This is a very worthy environmental and indeed economic issue to the region. But, the minimum flow issue is yet to be decided. Focusing on it now instead of after the decisions are made can lead to a more thorough examination of the water levels affecting us all. Write the Sun; ask what they know; are they planning to cover it? Encourage their publisher to get out in front of the issue instead of writing the post-mortum.

Update on Florida Power & Light Co.’s Natural Gas Pipeline

Update on Florida Power & Light Co.’s Natural Gas Pipeline

A major pipeline that will transport at least 1 billion cubic feet of natural gas each day across a significant portion of the Florida peninsula recently received one of the last two major regulatory approvals needed. The contracts for building the pipeline, which were awarded by Florida Power & Light Co., the utility planning the pipeline, to Sabal Trail Transmission, LLC., received State approval from the Florida Public Service Commission (PSC) in late October. In 2008, the PSC found that there was a need for the pipeline, and thus, the next and final significant regulatory hurdle is obtaining federal approval.

Sabal Trail is currently studying various corridors before it determines a preferred route for the pipeline, which is actually an interstate pipeline that will originate in Alabama and travel through Georgia before reaching Florida. Sabal Trail plans to submit its preferred route, along with alternatives, to the Federal Energy Regulatory Commission (FERC) sometime in 2014. The FERC is a federal agency which has the sole authority to approve interstate natural gas pipelines. The FERC usually does approve these projects subject to a number of limiting conditions. Thus, due to both Sabal Trail’s process and the FERC approval process, the precise route of the pipeline is not yet fixed.

Once the pipeline’s final route is fixed, Sabal Trail must secure legal rights/permission to cross private parcels of land along the route. The company will obtain such permission either by negotiating voluntary contractual relationships with landowners or by forcing sales through the power of eminent domain. Eminent domain authority is explicitly conferred under Florida Statutes to certain companies constructing natural gas pipelines. However, both the Florida Constitution and Florida Statutes provide certain protections to landowners facing eminent domain, such as the right to “just compensation.”

Regardless of the company’s means of acquiring the needed property rights, it will be important for landowners whose property may be within the project area to become involved in these proceedings and, if approached by FP&L or Sabal Trail, to seek legal representation to safeguard their rights.

gainesville sun staff reports on public meeting. our clients will be represented there;

If you have property along state road 20 affected by this road project you should consider talking with us, and attend this meeting. Often times road widening projects require the state’s taking property from private owners along the route. Appraisals of property are required; and “fair” compensation must be paid. You probably have heard the term “eminent domain.” The state has the power to force the sale of property under certain circumstances. Learn more about those circumstances and “fair” compensation by calling us.

Meeting on SR 20 widening set for Thursday

The Florida Department of Transportation will host a public meeting Thursday to discuss plans for widening State Road 20 from two to four lanes between Interlachen and U.S. 301 in Hawthorne.

The format will be an “open house” between 4:30 and 6:30 p.m. in which those interested can drop by at any time to review the plans and speak with FDOT staff. At 6:30 p.m., a brief presentation will be made and followed by public comments.

The meeting will be at the Seventh Day Adventist Conference Center located at 1771 E. SR 20 in Hawthorne. The center is just west of County Road 21 in Putnam County.

The FDOT is finishing a project development and environmental study to determine the transportation needs and possible improvements on the 12-mile-long corridor. The FDOT is proposing widening SR 20 to four lanes and providing enhancements for bicyclists and pedestrians.

The project is currently funded for construction in Alachua County between U.S. 301 in Hawthorne and the Putnam County line in 2015-16 at an estimated cost of $16 million. The remaining segment in Putnam County, which is estimated to cost $85 million, is not yet funded for construction.