Modernizing Water Law: The Example of Florida

Abstract

One of the defining issues of the twenty-first century will be the allocation of fresh water supplies, both in the United States and abroad. Population growth, increased per capita consumption, water pollution, and climate change all conspire to challenge the water allocation systems of even the wettest states. Florida, for example, which enjoys an average annual precipitation of over fifty inches, currently experiences regional water shortages, with more predicted for the future. This Article takes a broad view of the modernization of water law, considering five of the most pressing and controversial modern challenges into a national and historical context: a) advancing the public interest while allocating water among competing users; b) retaining sufficient water in natural stream, lakes, and aquifers to maintain vibrant aquatic ecosystems; c) ensuring that adequate water supplies will be available for future needs; d) determining the extent to which managers should transfer water from places of relative abundance to places of relative scarcity; and e) determining the role, if any, of the free market in allocating water resources within states. The first part of this Article provides a general overview of the process of water law reform. As states attempt to improve water management, they have modified their common law water allocation systems with an overlay of statutory law. Often, the process occurs in piecemeal fashion, resulting in a patchwork of rules - common law and statutory, old and new. In rare cases - including that of Florida - the process may be more comprehensive, with states supplanting their entire body of common law with modern statutory codes. The second part examines the evolutionary path of Florida, a state that has adopted generally wholesale and comprehensive reform in modern times. Because this reform took place in 1972 - at the dawn of the modern environmental era - the reform reflects modern environmental and public interest sensibilities. The third part turns from process to substance, looking more closely at five problems that plague virtually every state.

Keywords: water, water law, riparian, prior appropriation