Public Policy and Water in Florida

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.