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