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
