The early history of water policy in Florida dealt mostly
with drainage and flood control, especially in central and southern Florida.
Between 1907 and 1929, the Everglades Drainage District constructed 440 miles
of canals in the Everglades area. In the 1930s, the Hoover Dike around Lake
Okeechobee was built to protect the surrounding communities from floods
associated with heavy precipitation during tropical storms.
In 1949, the U.S. Congress authorized the Central and
Southern Florida Flood Control Project. Constructed by the United States Army
Corps of Engineers over a period of about 15 years, this new infrastructure
altered the hydrology of the entire Kissimmee, Okeechobee, and Everglades
Basins to provide flood control, drainage, and water supply for all of south
Florida. The Florida legislature created the Central and Southern Florida Flood
Control District (later to become the South Florida Water Management District)
as the state partner for the United States Army Corps of Engineers. After
floods in 1959 and 1960, the Southwest Florida Water Management District also
was created. In the late 1960s, both Districts began requiring permits for
water withdrawals
Prior to 1972, Florida's water law was based in common law
doctrines that had evolved through custom and case law in the eastern United
States beginning in colonial times. For example, the riparian doctrine gave
riparian landowners a protected right to withdraw and use water from water
bodies adjoining their lands. According to the reasonable use rule, riparian
landowners were allowed to use surface water as long as such use did not
unreasonably interfere with another riparian's use. Furthermore, according to
the groundwater reasonable use doctrine, landowners were essentially allowed to
extract all the groundwater they needed for reasonable use on their overlying
land, disregarding the adverse impacts on neighboring lands. The common law
approach to settling disputes over water rights was of limited effectiveness
because it operated on a case-by-case basis, rather than in a comprehensive
manner, and it could be invoked only after damage had occurred. This approach
prevented landowners from managing water resources with a forward-looking view.
During the 1950s and 1960s, Frank E. Maloney, a professor and
later a dean of the University of Florida College of Law, conducted extensive
research on Florida case law pertaining to surface water, groundwater, diffused
surface water, and water pollution. Professor Maloney published his findings,
including his analysis of deficiencies in the common law dispute-settlement
process as the mechanism for water management in Florida's environment of rapid
population and industrial growth, in a series of law journal articles. The capstone
of Professor Maloney's work (conducted in collaboration with several of his
colleagues) was A Model Water Code, published in 1970. The code was offered as
a model for legislation that would create a form of administrative water
law—administered by agencies of the state pursuant to legislated authority and
mandates. The code integrated codified concepts from the common law water
rights doctrines, such as the rule that water uses be reasonable and consistent
with the public interest.
When Florida's population began to grow rapidly in the 1950s,
policymakers and water managers began to argue for a more cohesive solution to
water quality and quantity problems, and for a more integrated regulatory
structure at the state level. In 1972, the Florida legislature met during one
of Florida's periodic, extended droughts to address growing concerns about
deficiencies in the institutional mechanisms for water management. The 1972
legislature responded by enacting the Florida Water Resources Act of 1972.
The Florida Water Resources Act of 1972 (Chapter 373, Florida
Statutes) is largely based on Frank Maloney's A Model Water Code. The Act
established a form of administrative water law that brought all waters of the
state under regulatory control. The Act included provisions for (1) the
establishment of a state water regulatory agency and five water management
districts (WMDs) that, taken together, encompass the entire state; (2) water
planning requirements; and (3) a permit system administered by the WMDs for
water use, well construction, and the storage and management of surface water.
The Act differed from Professor Maloney's code in that it omitted the sections
on water pollution control.
