Part I: “No, you don’t own the water”
It is no secret that water is very important to all of us. Unfortunately, the fact that water supply problems are growing is no secret either these days. We all need water for drinking and other domestic/household purposes, and we need water for agriculture (the biggest consumer), industry, commerce, recreation, and other uses. Water scarcity often gives rise to significant tension among those competing for water. Moreover, it can also cause political and social instability, as well as cause environmental harm.
So, how do we currently (fairly) allocate water among the various uses that depend on water? Do our laws sufficiently safeguard the environment or protect the needs of industry? How does Florida’s framework compare to other states’?
We need to start by acknowledging a fundamental principle of Florida water law that no one “owns” any water or has a property right interest in the water itself. Practically what this means is that in order to use water for any purpose other than personal drinking, bathing, cooking, or sanitation, you may be required to have a “permit” from one of the five water management districts. For example, if you reside in the St. Johns River Water Management District, you have a permit-by-rule to irrigate your residential landscape; that permit imposes certain conditions on the manner in which you water lawn, etc. such as not allowing you to irrigate between the hours of 10:00 AM and 4:00 PM. Water use permits merely confer the right to use water, a usufructory right, for a particular purpose, in a conditional manner, and for a specified period of time.
The water law systems currently in effect in the United States developed out of two traditional and distinct surface water doctrines – one in the eastern United States and the other in the more arid west, known respectively as Eastern Water Law and Western Water Law. Today, the core principles of these traditional common law doctrines continue to significantly influence how states regulate water use or, i.e. allocate water. With some slight federal overlay, water law is predominantly a creature of state law. Over the years, most states have taken steps to update the common law doctrines through legislation; however, in many cases, these have come in the form of narrow laws addressing specific issues. This approach has generally resulted in a disjointed approach to water management. Florida is one exception to this.
Groundwater withdrawals (from wells) in the United States were historically treated differently than surface water uses. While we now understand the connection between groundwater and surface water in the hydrologic cycle, in the not-too-distant past groundwater was quite mysterious to us. As a result, common law was historically relatively lenient when it came to regulating the use of groundwater. As our knowledge of groundwater improved, groundwater use regulations grew more stringent, but generally remained distinct from surface water regulations. In addition to regulating ground and surface water under one system, Florida’s water laws contain many other progressive features.
Florida’s current water law system was established by the Florida Water Resources Act of 1972, which was based upon the Model Water Code, and is widely viewed as one of the most progressive and comprehensive in the nation. You can read Parts II and III of this article, which will describe the two traditional common law water doctrines and Florida’s statutory system of water law, in upcoming newsletters.