JOURNAL OF LAND USE AND ENVIRONMENTAL LAW
VoLuME 3 SPRING 1987 NUMBER 1
THE INFLUENCE OF THE MODEL WATER CODE ON
WATER RESOURCES MANAGEMENT POLICY IN
SRICHARD C. AusmNES*
Increasing demands of municipal, industrial, and agricultural
water users have taxed existing water supplies in many parts of the
Eastern United States.' Lage rivers and lakes have not been se-
verely threatened, but recurrent drought conditions in some areas
have impaired stream flows and lake levels in smaller water-
courses.' Groundwater problems have also risen as more users
have turned to groundwater sources to meet water needs.' These
S : problems include interference between wells, overdraft of ground-
water aquifers, salt water intrusion, and subsidence.4
Water quality is also a problem in many states. Although sec-
ondary sewage treatment has increased dramatically in recent
years, municipal sewer systems still discharge pollutants into the
nation's rivers and streams.' In addition, stormwater runoff from
urban areas continues to impair surface water quality.' While in-
S William T. Laferty Profeor of Law, University of Kentucky College of aw. BA.
1966, J.D. 1968. University of Florida; LLM. 197, Yale Univerity.
The auto would lie to thank Dona Christie for her comments and sugetions in coin-
nection with this article.
1. Aunes, Water Rights Legislation in the East: A Progr m for Reform, 24 Wu. aV
MARV L Ray. 647, 647 (1963).
2. Butler, Allocatig Conwumptiue Water Rights in a Riporion Jurisdiction: Definine
the Relationship Betuen Public and Priuate Interest, 47 U. Pmrr. L Ray. 95,96-99 (i58).
& Municipal use of groundwater is especially igificiamt Apromimatel 80y of the
water used by cities is groudwater. Note, Hatrdous Waste Injertion Wells: The Need for
,; State Controls, 19 TUsA LJ. 260, 262 (1983).
4. Laes., When the Well Runs Dry: A Proposal for Change in the Common Law of
Ground Water RiAght in Massachusetts 10 B.C. Emwn Arr L Ray. 446, 452-57 (1962).
5. CouWm on EnvmonumwzsA Quma Ewvmmou Naum QIuLm lir AmuAL Rx-
PORT 84-85 (1985) (hereinafter ENamomnummr QUALIT 15r, ANNUALr REPRTl
6. Maloney, Hamann & Canter, Stormwoier Runoff Control: A Model Ordinance for
Meeting Local Water Quality Management Needs, 20 NAT. RRaOUlCLs J. 713, 713-19
2 J. LAND USE & ENVTL. L. [Vol. 3:1
dustrial users have invested heavily in waste treatment facilities
and thus reduced their discharges of organic pollutants,' more
needs to be done to reduce the discharge of chemicals, heavy met-
als, and other toxic substances into surface waters.' Agricultural
users also contribute to pollution through animal wastes, process-
ing wastes, sediments, fertilizers, and pesticides.'
According to the Council on Environmental Quality, ground-
water pollution is now on the increase." This is a matter of great
concern because groundwater pollution is almost impossible to re-
verse once it has occurred." As with surface water, municipal, in-
dustrial and agricultural users all contribute to the pollution prob-
lem. In urban areas septic tanks, municipal waste facilities,
landfills, and contaminated surface water runoff impair ground-
water quality." Industrial users also pollute. Sources of pollution
from industrial activities include seepage from industrial waste
treatment ponds and lagoons, as well as waste from mining and oil
and gas recovery operations." However, the disposal of hazardous
wastes into the ground by means of injection wells is the most seri-
ous form of groundwater pollution by industrial users." Finally,
agricultural operations also threaten groundwater quality. Nitro-
gen in plant fertilizers percolates down through the soil during irri-
gation and eventually reaches underground aquifers." Pesticides
seeping into the soil may also come into contact with
7. ENRvoNmnrrAL QuAurrY 15m ANNUAL REpouR, supra note 5.
& Id. According to the Council, compliance by industrial wers with applicable water
quality standards increased from 36 in 1972 to 78'I" in 1982.
9. Street, Agriculture and the Pollution Problem, 1970 UTAH L Rva. 395, 396-400;
Hinea, PArmers, FWedllt ad Federalism: The Impact of the 1972 Federal Water Pollution
Control Act Amendments on Agriculture, 19 S.DL. Rav. 540, 550 (1974): Jurgens, Agricul-
tural Nonpoint Source Polludtion A Proposed Strategy To Regulate Adverse Impacts, 2 J.
JAND Ua & ENKV. L 195, 196 (1987).
10. EWmmonsmmUAL Qualm 1&m ANNuAL Romrr, supra note 5.
11. Note, Federal Law, Irrigation and Water Pollution, 22 B.D.L Rev. 553, 564 (1977);
Lukas, supra note 4, at 457.
12. Tripp & Jaffee, Preventing Groundwater Pollution- Towards a Coordinated Strat-
egy to Protect Critical Recharge Zones, 3 Hatv. Ewnr. L Rev. 1, 4-8, 85 (1979); English,
Hazardous Waste Regulation: A Prescription for Clean Water, 13 SrroN HALL L. REV. 229,
13. Tripp & Jaffe, supra note 12, at 4-8, 35; English, supra note 12, at 251.
14. Note. supra note 3, at 253.
15. Montgomery. Control of Agricultural Water Pollution: A Continuing Regulatory Di-
lemma, 1976 U. ILL. LF. 533, 536.
16. Note, Draft Proposal for Legislation to Control Water Pollution from Agricultural
Sources, 59 ConnaLL L Rev. 1097, 1102 (1974); Hopping & Preston. The Water Quality
Assurance Act of 1983-Florida's "Great Leap Forward" into Groundwater Protection and
e treatment facilities
lic pollutants,' more
chemicals, heavy met-
imal wastes, process--
tal Quality, ground-
Sis a matter of great
ost impossible to re-
water, municipal, in-
the pollution prob-
noff impair ground-
Sources of pollution
m industrial waste
from mining and oil
disposal of hazardous
els is the most seri-
i users." Finally,
ater quality. Nitro-
Sth l during irri-
qm L.V" Pesticides
into contact with
with applicable water
TA L Rav. 395, 396-00;
7 Pedral Water Pollution
(194) Jurgens Aricul-
late Aderse Impacts, 2 J.
R.D RaY. 553, 664 (1977);
rds a Coordinated Strat-
1, 4-8 35 (1979); Englih,.
3 Samr HAi L RVa. 229,
1ot at 251.
onlinuing Regulatory Di-
ion from Agricultural
hon Water Quality
er Proection and
MODEL WATER CODE
Florida, like many other states, has significant water resource
management problems. Although Florida is a water rich state," the
southern portion of the state faces a chronic water shortage."
Groundwater resources have been heavily drawn upon and, in
some areas, seriously harmed by salt water intrusion as a result of
excessive pumping." Furthermore, surface water and groundwater
supplies in Florida have been threatened by pollution from munici-
pal, industrial, and agricultural sources."
The Florida Legislature has responded to these problems by en-
acting water resource management statutes. The cornerstone of
this regulatory scheme is the Florida Water Resources Act of
1972." To a large extent, the 1972 Act is patterned after a legisla-
tive proposal known as the Model Water Code drafted at the Uni-
versity of Florida between 1967 and 1972 by Dean Frank E. Malo-
ney, Professor J. Scott Morris and myself." This article will
examine the Code's underlying principles and consider the extent
to which these principles are reflected in Florida's water manage-'
I. HYDROLOGY AND WATER MANAGEMENT POLICY
Water, part of the hydrologic cycle," falls to the earth as rain,
flows over the land as diffused surface water, enters a surface wa-
tercourse or percolates into the soil, and becomes groundwater.
Later, water may be returned to the atmosphere by means of evap-
oration or transpiration.'4
Hazardous Waste Management, 11 FLA. Sr. UL Rzv. 599, 002 (1983).
17. For a detailed discumson of Plorida' water resources ee F. MALoun. S. PLAu. F.
BAnLDwn. WATU LAw am ADmm A nmIsi--TH- FLormDA ExRmUncs 111 (1968) [hrinaaf-
ter WATr Law AND An, m rmAnon].
18. See generally Drurik, Water Use and Public Policy in Florida, 110 J. WATn Ra-
oumaW s PLA. & Mamr. 167 (1984); Toomey & WoeMcke, An Analysis of Water Require-
ments dnd Water Demands for the South Florida Water Management District (Tec. Pub.
79-3, Dec. 1979).
19. Fleming, Water Allocation: The Reasonable and Beneficial Use Standards, 53 FLA.
BJ. 25, 25 (1979).
20. Hopping & Preston, supro note 16, at 602; FLODA GRouNDWATEn PaROCTnom TAr
Ponca AnNA Rwa oror lon SY '-86, at 20 (1986) (groundwater contamination from un-
deground petroleum stoge tanks); FIA. Da'T or ENVTi. Bo., 1986 PuA. WAum QuaL r
Amaasumlrr 305(b) TcmNICAL Rp. at iii (June 1986) municipall surface water pollution).
21. 1972 Pla. Laws ch. 72-299 (codified s amended at PRA. STAT. ch. 373 (1986)).
22. F. MALonay. R Ausmss & J. MomRus. A MODEL WATER CODE (1972) (hereinafter
MODEL WATER CODE.
23. Weston, Gone with the Water-Drainage Rights and Stormwater Management in
Pennsylvania, 22 Viu.. L REa. 901, 90 (1977).
24. See Maloney. Florida's New Water Resources Law, 10 U. FLA. L REv. 119, 121-22
i ~ i
4 J. LAND USE & ENVTL. L. [Vol. 3:1
Surface water and groundwater are hydrologically linked so that
interference with one may affect the other." Thus, if water is im-
pounded in a reservoir, groundwater fow may increase in nearby
areas. In the same manner, regulation of surface water flows by
means of reservoirs may affect groundwater recharge downstream.
Further, withdrawals of groundwater may reduce the base flow of a
stream that is normally supplied by groundwater sources, thus
making less surface water available for use downstream." Like-
wise, since surface water and groundwater are closely related, con-
tamination of one often leads to degradation of the other within
the same hydrologic system."
Water supply and water quality are part of water management.
Water quality affects the availability of water for a variety of mu-
nicipal, Industrial, and agricultural purposes." Pollutants in a
water supply increase the cost of treatment, which reduces oppor-
tunities for reuse." Some pollutants, like chemicals or toxic sub-
stances, may render a water source unfit for drinking or other do-
mestic consumptive uses."
Water quality can also affect the amount of water required to
accomplish a particular purpose. The amount of water necessary
for irrigating many crops increases as the concentration of dis-
solved solids in the water increases." There are also more subtle
links between water quality and water availability. Sewer systems
often remove water'from its original watershed and transport it to
a remote plant for treatment and disposal, thus reducing the
amount of water available for recharge."
Consumptive uses of water can significantly affect water quality.
Physical withdrawal of water from a watercourse can affect the
(1957); Bryan, Water Supply and Pollution Control Aspects of Urbanization, 30 LAw &
Caenomm. PrOa. 176, 177-78 (1965).
25. Murphy, The Recurring State Judicial Task of Choosing Rules for Groundwater
Law: How Occult Stil, 66 N. L tav. 120, 136-37 (1987).
26. Bwer, Some Physical, Technological, nd Ecoqomic Characteristics of Water and
Water Resources Systems: Implications for Administration, 3 NAT. RuOUcum J. 215, 218
27. Luuas, supra note 4, at 457; Tripp & Jafee, supra note 12, at 4.
28. Schramm, Integrated River Basin Planning in a Holistic Universe, 20 NAT RE-
sowUe J. 787, 795 (1980); Davis, Groundwater Pollution: Case Law Theories for Relief, 39
Mo. L Ra 117, 118 (1974).
29. Mines, Nor Any Drop to Drink: Public Regulation of Water Quality, Part I: State
Pollution Control Programs, 52 IowA L Ray. 18, 188-90 (1966).
30. Bryan, supro note 24, at 187; EVIROnmrruAL QUALrIY 15 ANNUAL REPORT,
supra note 5.
31. Bower, supra note 26, at 219.
32. Lukas, supra note 4, at 458; Tripp & Jaffe, supra note 12, at 35.
1987] MODEL WATER CODE
;ically linked so that
Phus, if water is im-
Y'increase in nearby
*face water flows by
ice the base flow of a
Water sources, thus
closely related, con-
of the other within
for a variety of mu-
i." Pollutants in a
whichh reduces oppor-
micals or toxic sub-
rinking or other do-
)f water required to
, of water necessary
ncf action of dis-
ire uo more subtle
ility. Sewer systems
Iand transport it to
thus reducing the
affect water quality.
nrse can affect the
f Urbanisation, 30 LAw &
ng Rues for Groundwater
rscterstics of Water and
NAT. ReoumcEs J. 215, 218
12. at 4.
tie Universe, 20 NAT. RI-
Law Theories for Relief, 39
after Quality, Part I: State
- A AL R RT,
S- Iranm ANNUAL REPoaR,
12. at 35.
amount of water in the stream and the rate of fow." Similarly,
heavy withdrawals can lower water levels in fresh water lakes. Re-
duced rates of flow and lowered water levels often diminish the
concentration of dissolved oxygen in the watercourse, impairing its
ability to assimilate organic pollutants and to support fish and
other aquatic life."
The physical withdrawal of groundwater can also affect water
quality. In coastal areas, large withdrawals of groundwater may in-
duce salt water to flow further inland and replace fresh water ini
the aquifer. Salt water intrusion is very difficult to reverse and can
seriously impair drinking water sources for cities along the coast."
Many consumptive uses of water alter the physical or chemical
character of the water that is used. Therefore, the quality of the
receiving waters is inevitably affected when water is returned to
the watercourse after being used consumptively. Effluent produced
by municipal and industrial water users provides an obvious exam-
ple of this principle. However, consumptive uses such as irrigation,
also influence water quality. When water used for irrigation is re-
turned to a watercourse, its mineral content is usually high because
suspended materials in irrigation water remain in solution and do
not evaporate." Return flows from irrigation may also contain sed-
iments, pesticides, organic residues, heavy metals, bacteria, and
Finally, water development projects, typically intended to meet
consumptive water use needs, can have a detrimental effect on
water quality. Dams lower the level of dissolved oxygen, increase
the level of dissolved minerals and nutrients, affect water tempera-
ture, and increase sediment load in the watercourse."
The existence of the hydrologic cycle and the connection be-
tween the availability of water for consumptive purposes and the '
level of water quality have implications for water management pol-
icy. At this point, it is sufficient to observe that substantive rules,
33. Lilly, Protecting Streamflows in California, 8 EcoLOGY LQ. 97, e07-98 (1980).
34. Attey & Liebert, Clean Water, Dirty Dams: Oxygen Depletion and the Clean Water
Act, 11 EcoLooY LQ. 703. 706 (1984).
35. Lukas, supra note 4, at 455. For a discussion of the mechanics of salt water intruswon
ee Maloney & Plager. Florida's Ground Water: Legal Problems in Managing a Precious
Resource, 21 U. Mamln L Ra 761, 760-61 (1967).
36. Note, supra note 11, at 557.
37. Hines, Agriculture: The Unseen Foe in the War on Pollution, 55 CORNeLL L. Rav.
740, 754 (1970).
38. Comment, 7 Suprrot TRANJNAT'L L.J. 513, 515-16, n.13 (1983). See also National
Wildlife Fed'n v. Gorsuch, 693 F.2d 156, 161-64 (D.C. Cir. 1982).
6 J. LAND USE & ENVTL. L. (Vol. 3:1
either common law doctrines or administrative regulations, must
recognize hydrologic realities if they are to be effective. In addi-
tion, if water is to be managed by water resources agencies, it is
desirable that a single agency regulate both surface water and
groundwater." Jurisdiction over consumptive water uses and water
quality control should also be placed in the same agency." If this
cannot be achieved, then the regulatory statutes must provide for
close coordination between water resources and water quality con-
11. FLORIDA WATER LAW PRIOR TO 1972
Many of today's water management problems have existed for
years. In the late 1960s, aome aras of south and central Florida
were beginning to experience periodic water shortages.4 In addi-
tion, overpumping was causing salt water intrusion in the Pinellas
peninsula and along the lower east coast of Florida." Municipali-
ties in these areas had to transport water from distant areas, a
practice which sometimes caused disputes among existing water
Water pollution was also causing concern in Florid at that
time." A 1966 study found that raw sewage discharges from the
city of Jacksonville were impairing water quality in the St. Johns
River." Phosphate mining and pulp mills were the leading indus-
trial polluters at that time." A large-ale fish kill on the Peace
River in 1967 was caused by a phosphate company pipeline."
Farming activities also caused pollution, as illustrated by the eu-
trophication of Lake Apopka due to the nutrient content of agri-
The Model Water Code addressed these conditions. Drafters of
39. Bower, supro note 26. at 219
40. Trelee, New Water Lgislation: Drafting for Development, Efficient Allocation
and Environmental Protection, 12 LANm & WATs L. Ry. 385, 401 (1977); Bower, supra
note 26, at 220.
41. Neitzke, Salt Water Intrusion: Florida's Legal Response, 65 FIA. BJ. 769, 759
43. See generally Maloney, Plager & Baldwin, Water Pollution-Attempts to Decon-
raminate Florida Low. 20 U. FLA. Rz. 131, 132-35 (1967).
44. ST. Jon.m RIvn VAtu. AnvIorY Com... RPoaR To mE GovmuRo oF FLORIDA 1-2
(Dec. 20, 1966).
45. WATR LAw ANt ADMNasTRATON, supra note 17, at I 111.2(b).
47. See generally LA. Bo. or HEALTH. BIOLOGICAL, PHYSICAL & CNEICAL STUDY OF LAKE
APOPKA. 1962-1964 (1965).
e regulations, must
effective. In addi-
irces agencies, it is
surface water and
after uses and water
me agency.4" If this
s must provide for
water quality con-
have existed for
d central Florida
ortages." In addi-
ion in the Pinellas
m distant areas, a
ong existing water
SFlorida at that
isc es from the
y the St. Johns
the leading indus-
kill on the Peace
rated by the eu-
nt content of agri-
tions. Drafters of
n, iNiient Allocation
401 (197); Bower, supra
e. 6 Pa. B.J. 759, 759
on-Attempts to Decon-
;ovarm or FLORIDA 1-2
Cumc.A STuDYv or LAKR
MODEL WATER CODE
the Code felt that the existing system of water allocation needed to
be extensively modified if it was to function effectively in the face
of increasing demand for clean water. While the Code was being
drafted, regulatory authority over water resources in Florida was
spread among a variety of administrative agencies, each of which
had limited jurisdiction. We believed a single agency with compre-
hensive regulatory authority was needed. Further, we felt that
common law allocation doctrines were neither efficient nor hydro-
logically sound and common law principles were inadequate to pro-
tect water quality.
A. Common Law Water Allocation Doctrines
Florida, like many other eastern states, adhered to outmoded
common law water allocation doctrines" which largely ignored the
hydrologic cycle." Consumptive rights to water in lakes and
streams differed significantly from those which applied to percolat-
ing groundwater." Under the reasonable use rule, which governed
the allocation of surface water in the majority of eastern states,"
each riparian landowner could withdraw water from the water-
course and use it for a beneficial purpose as long as the use did not
unreasonably interfere with the legitimate water uses of other ripa-
The reasonable use rule also applied to underground streams."
However, in most American jurisdictions, either the absolute own-
ership doctrine or the American rule determined consumptive
48. Thee doctrine included the riparian natural fow and reasonable ue rules, which
determined consumptive rights to surface waters, and the absolute ownership and American
rules, which defined consumptive rights to percolating groundwater. See infra notes 49-62
and accompanying text
49. Ausness, supra note 1, at 553.
60. See infra notes 51-64 and accompanying text.
51. Ofly Georgia, New Jersey, Pennsylvania, and West Virginia still adhere to the natu-
ral flow doctrine. All other eastern riparian jurisdictions follow the reasonable rule. See
Ausness. Water Use Permits in a Riparian State: Problems and Proposals, 66 Kv. J. 191,
199 n.54 (1977).
52. E., Gehlen Bros. v. Knorr, 101 Iowa 700, 706-08, 70 N.W. 757,758-59 (1897); Strat-
ton v. Mt. Hermon Boys' School, 216 Mass. 83, 85, 103 N.E. 87, 88 (1913); PrWrATam r
(SaCND) or TowmT 860A (1977); Ausmne, supra note 51, at 199-200; Hanks, The Law of
Water in New Jersey, 22 Rtrroas L Rav. 621, 630-33 (1968); Maloney, Capehart & Hoof-
man, Florida's "Reasonable Beneficial" Water Use Standard: Have East and West Met?,
31 U. FIA. L Ra. 253, 254-62 (1979).
53. Nourse v. Andrews, 200 Ky. 467, 471, 255 S.W. 84, 86 (1923); Gagnon v. French Lick
Springs Hotel Co., 163 Ind. 687, 72 N.E. 849 (1904); Weston, Low of Ground Water Rights
in Missouri-A Need for Clarification, 37 Mo. L. Rev. 357, 358 (1972); Comment, The Law
of Underground Water: A Half-Century of Huber v. Merkel, 1953 Wis. L. Ray. 491, 499.
8 J. LAND USE & ENVTL. L. (Vol. 3:1
rights to percolating groundwater." These doctrines were essen-
tially rules of capture which gave little protection to existing water
Diffused surface water" was also treated as a distinct water cate-
gory. Disposal of diffused surface water was governed by an elabo-
rate set of legal doctrines." However, in most states, there were no
rules for allocating diffused surface waters." Landowners were free
54. Underground streams flow beneath the surface of the ground in well-defined chan-
ne. Olson v. City of Wahoo, 124 Nb. 802, 810, 248 N.W. 304, 807 (1933). Percolating
groundwater, on the other hand, seep or filter through the soil beneath the surface and
have no defined channel. Clinchlield Coal Corp. v. Compton, 148 Va. 437, 446, 139 S.E. 08,
66. Tarlock, Supplemental Groundwater Irrigation Law: From Capture to Sharing, 73
Ky. LJ. 695, 703 (1985). According to the Enlish, or absolute ownership rule, a landowner
may pump an unlimited quantity of percolating groundwater from beneath his land and use
it on overlyng or distant land, regardless of injury to adjacent landowners. Stoner v. Patten,
132 Ga. 178.63 E. 897 (1909); Edwards v. Haeer, 180 IlL 99, 54 N.E 176 (1899); Hanks &
Hanks, The Law of Water in New Jersey: Groundwater, 24 Ruvans L Rrv. 621, 631-33
The America, or groundwater reasonable rule, also allows a landowner to extract as
much groundwater as he needs, notwithstanding any adverse effects on neighboring land-
owners, if the use is reasonably related to the natural uses of his overlying land. However,
the landowner is not permitted to transport ground water beyond overlying land, if this
would cause injury to other water users. Forbel v. City of New York, 164 N.Y. 522, 58 N.E.
644 (1900); Sycamore Coal Co. v. Stanley. 166 8.W.2d 243, 249 (Ky. 1942); Aiken, Nebraska
Ground Water Law and Administration, 59 Nma L R v. 917, 924-25 (1980); Harnm erger,
Oeltjn & Fischer, Ground Water: From Windmills to Comprehensive Publie Management,
62 NEa. L Rev. 179, 205 (1973).
:A few states applied the correlative rights doctrine to percolating ground water. Under
this approach, each landowner over a common groundwater pool has an equal and comrla-
tive right to make a beneficial use of water on his overlying land. Katz v. Walkinshaw, 141
Cal. 138, 70 P. 663 (1902), adhered to 141 CaL 116, 74 P. 766 (1903); Jones v. Oz-Ark-Val
Poultry Co., 228 Ark. 76, 306 &W.2d 111 (1957); MacArtor v. Graylyn Crest Il Swim Club,
Inc., 41 Del. Cas. 26, 187 A.2d 417 (1963); Nashville, C. & S. L. Ry. v. Rickert, 19 Tenn. App.
446. 89 S.W.2d 889 (Tenn. 1936); Hanks & Hanks, supra at 637-39.
66. Diffused surface water includes waters from falling rain or melting snow, as well as
rising to the surface from springs, which have not yet reached a lake or stream. Sullivan v.
Hoffman,207 Neb. 166,172, 296 N.W.2d 707. 710 (1980); REzSATrMusa (SBCOND) OF Torrs
I 846 (1979); Maloney & Plager. Difused Surface Water: Scourge or Bounty?, 8 NAT. Ri-
souncs J. 72, 72 (1968). Flood waters which have become detached from a natural water-
course are also characterized as diffused surface water. Hengelfelt v. Ehrmann, 141 Neb.
822, 3 N.W.2d 576 (1942); Crawford v. Rambo, 44 Ohio St 279, 7 N.E. 429 (1886).
67. Most states followed either the common enemy rule, the civil law le, or the reason-
able use rule. For a discussion of these doctrines see Note, Diffused Surface Water
Problems and A Current of Anomalous Remedies, 1 J. MIA. L & POL'Y 299, 304-12 (1985);
Note, Landowner's Right to Fight Surface Water: The Application of the Common Enemy
Doctrine in Indiana, 18 VL. U.L REV. 481,483-91 (1983-84); Weston, supra note 23, at 906-
11; Maloney, Capehart & Hoofman, supro note 52, at 265 nn.75-81.
68. Florida's common law water allocation doctrines at this time were somewhat more
unified than those of other eastern states. Florida courts applied the riparian reasonable use
rule to surface waters and underground streams. Taylor v. Tampa Coal Co., 46 So. 2d 392,
1987] MODEL WATER CODE
trines were essen-
n to existing water
distinct water cate-
erned by an elabo-
ates, there were no
downers were free
und in well-defined han-
307 (1933). Percolating
beneath the surface and
a. 437, 446, 19 S.E. 308.
SCapture to Sharing, 73
breath his land and use
we. Stoaer v. Patten,
N. Is6 (1899); Hanks a
L Rev. 621, 631-33
a landowner to extract ap
rs on neighboring land-
oeryig land. However,
ad o ng land, if this
ik, I .. 6 522, 58 N.E.
S1942); Aiken, Nebraska
4-25 (1960); Harnsberger,
u Public Management,
Ground water. Under
has an equal and correla-
Kate v. Walkinshaw 141
)M); Jnes v. Oz-Ark-Val
tyyn Crest III Swim Club,
v. Rickert, 19 Tenn. App.
aeltig snow, as well as
ie or stream. Sullivan v.
mnrr (SacoNo) or Toars
Sor Bounty,, 8 NAT. Ra-
d from a natural water-
it v. Ehrmann, 141 Neb,
SN.E. 429 (1886).
il law rule, or the reason-
Diffused Surface Water
PaO'Y 299. 304-12 (1985);
n of the Common Enemy
on, supra note 23, at 906-
me were somewhat more
riparian reasonable use
SCoal Co., 46 So. 2d 392,
to use as much diffused surface water as they could capture."
Place-of-use restrictions also caused problems, particularly for
users of surface water. Generally, only riparian owners were al-
lowed to withdraw water from a lake or stream and water use was
largely confined to riparian land," a practice which often led to
inefficient water use patterns." Florida's 1957 Water Resources
Law" gave the State Board of Conservation the power to authorize
withdrawal of surplus waters in some circumstances." However,
the statute was not successful since apparently no water user ever
applied for a permit from the Board."
394 (Fla. 1960); Tampa Waterworks Co. v. Clie, 37 Fla. 5865, 6,20 So. 780, 782 (1896);
Lake Gibson Land Co. v. Lester, 102 So. 2d 883 (Fla. 2d DCA 1958). Additionally, the rule
was applied to percolating groundwater. Cason v. Florida Power Co., 74 Fla. 1, 7, 76 So. 535,
636 (1917); Koch v. Wick 87 So. 2d 47, 48 (Fla. 1956). See also Maloney & Plager, supr
note 35. Several other states have applied reasonable ue principles to percolating ground
water. Hanks & Hanks, supra note 66, at 638-9.
50. Taylor v. Fickas, 64 Ind. 167 (1878); Pettigrew v. Village of Evansville, 25 Wis. 223
(1869); Washington County I. Dist. v. Talboy, 55 Idaho 382, 43 P2d 943 (1935); WArn
LAw AND ADMINITATION, spra note 17, 1 57.1. According to one commentator, this rule
favors agricultural users who are often able to capture diffused surface water before it
reaches a stream or lake. Davis, The Law of Diffused Surface Waters in Eastern Riparian
States. 6 CoNN. L Rzv. 227, 238-40 (1973-74).
60s Bank of Hopkinsville v. Western Ky. Asylum for the Insane, 108 Ky. 357, 56 S.W.
525 (1900); Butler, supr note 2, at 105-06; Kemp, Interbasin Transfers of Water in Flor-
ida: Common Law and Water Resources Act, 56 FLA. B. 9,9-13 (1962). For a discussion of
the legal definition of riprian land ee Maloney & Plager, Florida's Streams:Water Rights
in a Water Wonderland, 10 U. FL. L REv. 294, 306-07 (1957); Farnham, The Permisible
Extent of Riparian Land, 7 LAND & WATra L Rva. 31, 43-58 (1972); Levi & Schneeberger,
The Chainand Unity of Title Theories for Delineating Riparian Lands: Economic Analy-
sis as an Alternative to Cse Precedent, 21 Burtto L Rev. 439, 439-42 (1972).
Some states also limited th e of water to riparian land that lay within the same water-
shed. Eg., Stratton v. M. Hermon Boys' School, 216 Mass. 83, 85, 103 N.E. 87, 88 (1913);
Harrell v. City of Conway, 224 Ark. 100, 104, 271 S.W.2d 924, 927 (1954); Sturtevant v.
Ford, 280 Mass. 303, 182 N.E 560 (1932); McCarter v. Hudson County Water Co., 70 NJ.
Eq. 695, 70-0, 6 A. 489, 494-95 (1908); Town of Gordonsville v. Zinn, 129 Va. 542, 55
106 S.E. 08, 614 (1921). See also Ausness, supra note 51, at 203-04; Johnson & Knippe,
Transbasirf Diversion of Water, 43 Tx. L Rav. 1035, 1036 (1965).
61. Davis, Australian and American Water Allocation Systems Compared, 9 B.C. INDUS.
& COM. L Rev. 647, 680 (1968); Farnham, Improvement and Modernisation of New York
Water Law Within the Framework of the Riparian System, 3 LAND & WATER L Rav. 377,
413 (1968); Marquis, Freeman & Heath, Movement for the New Water Rights Laws, 23
TaN L Rva. 797, 832 (1955).
62. FPuA STAT. 373.071-.241 (1967) (repealed by 1972 Fla. Laws ch. 72-299).
63. The 1957 Act allowed a nonriparian to withdraw only when the amount of water in
the stream exceeded the average minimum flow at the point of capture. Lake diversion was
permitted only in excess of the average minimum level. Ground water users were allowed to
extract water only above the mean low level at the point of capture, unless depletion below
that level would not harm the aquifer. FLA. STAT. 1 373.141(1) (1967). See also Maloney,
supra note 24, at 132-33.
64. See WATnR LAW AND ADMINISTRATION, supra note 17, at I 62.3(b).
\ r -
10 J. LAND USE & ENVTL. L. [Vol. 3:1
B. Common Law Water Pollution Control Doctrines
Common law doctrines also failed to provide sufficient protec-
tion against water pollution." Suite by landowners against surface
water polluters were usually based on riparian rights or private
nuisance theories. Riparian owners generally claimed that the dis-
charge of pollutants into a lake or stream constituted an unreason-
able use, and therefore, infringed upon their riparian rights."
However, the courts normally allowed such discharges to continue
as long as they were considered reasonable." A discharge was not
regarded as unreasonable, unless the harm to the lower riparian
landowner outweighed the utility of the defendant's activity."
However, most courts applied private nuisance principles rather
than riparian rights theories in surface water pollution cases." To
constitute a private nuisance, the defendant's conduct had to
amount to a substantial interference with the use and enjoyment
of the plaintiff's land." The utility of the defendant's conduct was
balanced against the plaintiffs harm."
The courts applied the surface water riparian doctrines" or nui-
sance principles" in cases where underground streams were alleg-
edly polluted, while both negligence" and nuisance" were used in
66. Hines, supra note 29, at 196-201.
66. Note, Private Remedies for Water Pollution, 70 COLUM. L REv. 734, 735-36 (1970);
Hanks, supra note 52, at 628-29.
67. Davis, Theories of Water Pollution Litigation, 1971 Wa. L Rav. 738, 753.
68. Eg., State ex rel. Harris v. City of Lakeland, 141 Fla. 795. 193 So. 826 (1940); Par-
sons v. Tennueee Coal, Ion & R. Co., 186 Ala. 84, 64 So. 591 (1914); Clark v. Lindsy Light
& Chem. Co., 341 Il. App. 816, 93 N.E2d 441 (1950); Panther Coal Co. v. Looney, 185 Va.
758, 40 S.2d 296 (1946); Maloney, Judicial Protection of the Enironment: A New Role
for Common-Law Remedies, 25 VAD. L Rrv. 145, 151 (1972).
69. Eg., American Cyanamid Co. v. Sparto, 267 F.2d 425 (5th Cir. 1959); Newton v.
Grundy Center, 246 Iowa 916.70 N.W.2d 162 (1955); Liveey v. Bel Air, 174 Md. 568,199 A.
838 (1938); Thomas v. Clear Lake, 270 Wis. 630, 72 N.W.2d 541 (1955). See also Davis,
supr note 28, at 138.
7d. RarrATucwr (SeOND) o TOmT 1 821A-832 (1977).
71. Note, supra note 66, at 738-44; Maloney. upra note 68, at 146-49.
72. E.., Rose v. Socony-Vacuum Corp., 64 R.I. 411, 173 A. 627 (1934), overruled on
other grounds in Wood v. Picillo, 443 A.2d 1244 (R.I. 1982); Tampa Waterworks v. Cline, 37
Fla. 586. 20 So. 780 (1896); Kevil v. Princeton, 118 S.W. 363 (Ky. 1909); Masten v. Texas
Co., 194 N.C. 40, 140 S.E. 89 (1927); Good v. Altoona, 162 Pa. 493, 29 A. 741 (1894).
73. E.g. Swift & Co. v. People's Coal & Oil Co., 121 Conn. 579, 186 A. 629 (1936); Love
v. Nashville Agricultural & Normal Inst., 146 Tenn. 550, 243 S.W. 804 (1921).
74. E.g., O'Brien v. Primm, 243 Ark. 186, 419 S.W.2d 323 (1967); Adams v. Weingarten,
166 Colo. 402, 399 P.2d 774 (1965); Gagnon v. Landry, 103 R.I. 45, 234 A.2d 674 (1967). See
also Davis, supra note 28, at 150-52.
75. E.g., Hodge v. Marmaduke, 255 Ark. 789, 503 S.W.2d 174 (1973); Kostyal v. Cass, 163
Conn 92. 302 A.2d 121 (1972). See also Davis. supra note 28, at 152-55.
1987) MODEL WATER CODE
rights or private
ed that the dis-
ted an unreason-
arges to continue
discharge was not
e lower riparian
ution cases." To
conduct had to.
t's conduct was
doctrines" or nui-
eams were alleg-
ce" were used in
734 735-36 (1970);
Rav. 738 753.
93 So. 826 (1940); Par-
Clark v. Lindsay Light
Co. v. Looney, 185 va.
onment: A New Role
Cir. 1959); Newton v.
r, 174 Md. 568, 199 A.
196). See also Davis,
(1934), overruled on
Wterworks v. Cline, 97
909); Masten v. Texas
29 A. 741 (1894).
86 A. 629 (1936); Love
Adams v. Weingarten,
A.2d 674 (1967). See.
); Kostyal v. Cass, 163
connection with pollution of percolating groundwater.
Water pollution cases were rare in Florida. In Tampa Water-
works Co. v. Cline," which involved pollution of an underground
stream, the Florida Supreme Court applied the riparian reasonable
use rule. Alternatively, suits were brought against surface water
polluters based on public or private nuisance."
However, common law tort liability was not an effective tool for
controlling water pollution. Plaintiffs often had difficulty proving
that the defendant's conduct caused harm." Defendants success-
fully raised statute of limitations, laches, prescription, and consent
defenses. Even When pollution was shown to have caused harm,
courts frequently applied the balance of convenience doctrine and
denied injunctive relief."
C. Fragmentation of State Regulatory Authority
A third concern was the jurisdictional fragmentation that typi-
cally existed among state and local water resources regulatory
agencies. In many states, water management authority was spread
among a multitude of state, regional, and local administrative
agencies. Moreover, responsibility for water resource development
and conservation was often divorced from control over water qual-
ity. The situation in Florida at that time was similar to that which
prevailed in Other states.
In Florida, the Board of Conservation" administered various
water resources programs. For example, the Division of Water Re-
sources and Conservation enforced the 1957 Water Resources
Laws," the artesian well regulation statutes," and Florida's salt
water barrier legislation." Other divisions within the Board dealt
with salt water fisheries, geology, waterways development, and
76. 37 Fla. 586, 20 So. 780 (1896).
77. Northi Dade Water Co. v. Adken Land Co., 130 So. 2d 894 (Fla. 3d DCA 1961); State
ex rel. Harris v. City of Lakeland, 141 Fla. 795, 193 So. 826 (1940).
78. Note, Groundwater Contamination: A Demonstrated Need for Legislative Action,
62 U. Dir. L Rav. 697, 698-99 (1985).
79. WATER LAW AND ADMINIrmAToN. supro note 17, at 1 112.3.
80. The Board of Conservation was an ex officio board composed of the Governor, Secre-
tary of State, Attorney General, Comptroller. State Treasurer, Superintendent of Public In-
struction, and the Commissioner of\Agriculture. See FLA. STAT. 5 370.02(1) (1967).
81. FLA. STAT. 5 373.141 (1967). See also WATER LAw AND ADMINISTRATON, supra note
17, at 94.4(a).
82. FLA. STAT. $ 373.021-.051 (1967); Maloney & Plager, supra note 35, at 775-76.
83. FLA. STAT. If 373.194-.221 (1967). See also WATER LAW AND ADMINISTiTION, supra
note 17, at 94.3.
12 J. LAND USE & ENVTL. L. [Vol. 3:1
beaches and shores." In addition, single-purpose districts were cre-
ated to construct and operate drainage ditches and canals." Two
multi-purpose flood control districts, the Central and Southern
Florida Flood Control District and the Southwest Florida Water
Management District, constructed and operated flood control
structures and engaged in other water development activities." Fi-
nally, the 1957 Water Resources Law authorized the creation,
where necessary, of water regulatory districts with the power to
control consumptive uses of water."
The State Board of Health was primarily responsible for en-
forcement of state water pollution control legislation." The Board
had jurisdiction over natural watercourses, ditches and canals,
groundwater, and coastal waters, but its primary focus was on the
health aspects of water quality." However, in 1967 the Florida
Legislature enacted the Air and Water Pollution Control Act.
The 1967 Act created a new agency, the Florida Air and Water
Pollution Control Commission," and gave it greater enforcement
powers over polluters than those of the Board of Health." How-
ever, the act had shortcomings. Responsibility for water quality
and responsibility for water conservation and development contin-
ued to be vested in two separate state agencies." The Board of
84. FLA STAT. I 370.02(2) (1967). See also WATn LAw Anm ADMsmTATnoN, supro note
17, at ii 90.2-9&5.
85. WAT LAW AN AND ADwNRATIoN supra note 17, at 1 100. Drainage districts were
authorized by the General Drainage Act of 1913, FLA STAT. ch. 298 (1967). County level
drainage activities were authorized by the Drainage of Swamps and Overflowed Lands Act
of 1893, FLA. STAT. h. 156 (1967), and the Drainage by Counties Act of 1901, FLA. STAT. ch.
86. The powers of multi-purpose districts are discussed in WATn LAW AND ADMINISTRA-
TON, supro note 17, at i 101.
87. Under the 1957 Water Law, either the State Board of Conmervation or a water man-
agement district could create a water regulatory district. FLA STAT. 1 373.142(1) (1967).
These districts were authorized to regulate consumptive uses of water. FLA. STAT. I
373.171(1) (1967). See Maloney, supra note 24, at 144-46.
8.* The Board was composed of five members appointed by the Governor. Membership
included two medical doctors, one dentist, one pharmacist, and a "discreet citizen." FLA.
STAT. i 381.011 (1967).
89. FLA. STAT. i 381.251 (1965). For a discussion of the Board's jurisdiction and enforce-
ment powers see Maloney, Plager & Baldwin, supra note 43.
90. 1967 Fla. Law ch. 67-437, iJ 1-27.
91. The Commission was composed of the Governor, Secretary of State, Attorney Gen-
eral, Commissioner of Agriculture and two discreet citizens appointed by the Governor and
confirmed by the state Senate. 1967 Fla. Laws ch. 67-436, i 5.
92. WATER LAW AND ADMINITRA1TION, supra note 17, at S 113.7(a).
93. However, some ex officio members of the Air and Water Pollution Control Commis-
sion also served in an ex officio capacity on the Board of Conservation. Id. at 5 113.7.
1987] MODEL WATER CODE
,e districts were cre-
; and canals." Two
itral and Southern
west Florida Water
ated flood control
nent activities." Fi-
rized the creation;
with the power to
responsible for en-
lation." The Board
itches and canals,
focus was on the
1967 the Florida
tion Control Act."
ida Air and Water
of Health." How-
for water quality
es." The Board of
Mnam o, supra note
Draiae district were
.29 (1967), County level
Ovm owed Lands Act
Act of 1901. FL. STAT. h.
SLW AND AD AMITRA-
er or a water man-
T. 5 373.142(1) (1967).
Sowater. FLA STAT.
he Governor. Membership
a "dimeet citizen." Ft
a jurisdiction and enforce-
of State, Attorney Gen-
nted by the Governor and
oflutiom Control Commis-
vation. Id. at i 113.7.
Health, however, retained its jurisdiction over groundwater pollu-
tion." Thus, authority over pollution control remained fragmented
at the state level, notwithstanding the reforms of the 1967 Act.
III. THE MODEL WATER CODE
The drafters of the Model Water Code wanted to establish a reg-
ulatory structure at the state level that would take account of the
hydrologic cycle. In addition, the drafters wanted to encourage
states, like Florida, to seek an integrated solution to water supply
and water quality problems. Consequently, the Code contained
provisions that were designed to meet these goals. First, we recom-
mended the creation of a state agency which would have authority
to regulate consumptive uses and water pollution. Second, the
Code provided for a comprehensive planning process that would
address water supply and water quality issues. Finally, the Code
created a permit system which would enable planning decisions to
be implemented at the operational level.
A. Regulatory Structure
Section 1.05 of the Model Water Code called for the creation of
a State Water Resources Board." The Board was to exercise a
number of research, planning, and cooperative functions." In addi-
tion, it was authorized to supervise the activities of the water man-
agement districts." Under the Code's regulatory scheme, the water
management districts, rather than the Board, administered most of
the permit programs. Thus, activities such as waste withdrawals,"
well drilling," construction of dams, reservoirs and impound-
ments,'" construction of waste treatment or discharge facilities,"1
and the discharge of pollutants into surface watercourses'" or
groundwater aquifers'" were all regulated at the local level.
Weather modification operations were the only activities regulated
FLA. STAT. ch. 387 (1967).
MonoD WATR CODE. supra note 22, i 1.05.
Id. II 1.06-.0.
Id. J 1.05(10).
Id. I 2.01(1).
Id. Ut 3.10(1), 3.11(1).
Id. I 5.07(1).
Id. i 5.09(1).
14 J. LAND USE & ENVTL. L. (Vol. 3:1
exclusively at the state level.'"
At first blush, delegation of extensive regulatory authority to the
various water management districts appears to be inconsistent
with the Model Water Code's goal of consolidating water manage-
ment responsibility in the hands of a single agency. The Code's
drafters yielded somewhat to political expediency in choosing this
approach. At the time the Code was being written, the Florida
Legislature had shown little interest in providing substantial
amounts of funding at the state level for water management pur-
poses. On the other hand, the water management districts had
both the financial resources and the political will to initiate a ma-
jor water resources regulation effort. Water management districts
were established political entities in Florida and their staffs were
already familiar with local water resource characteristics and use
patterns.t" Consequently, we felt that the water management dis-
tricts could effectively carry out regulatory activities, subject to su-
pervision at the state level, as long as the State Board remained
responsible for planning and policymaking.
B. Comprehensive Planning
The drafters of the Model Water Code believed that comprehen-
sive water resources planning was an essential prerequisite to effec-
tive regulation.'" Planning would have to be done on a hydrologi-
cally sound basis and take account of the interrelationship between
consumptive uses and activities that affect water quality.'" The
Code's drafters concluded that planning responsibility should be
concentrated within a single state agency.'" Provisions of the Code
would require the State Board to develop a State Water Plan
which would include water use and water quality elements.'" The
Code made it clear that these respective portions of the State
Water Plan would constitute a single unified plan for water re-:
sources use, conservation, and development."s
104. Id. I 6.08(l).
105. The Central and Southern Florida Flood Control District, predecessor of the Flor-
ida Water Management District, was created by a special act in 1949. See 1949 Fla. Laws ch.
25-270. The Southwest Florida Water Management District wa created in 1961. See 1961
Fla. Laws ch. 61-691. 1.
106. Mom. WATn CODs. Supra note 22, at 74-76.
107, Maloney & Ausness, Administering State Water Resources: The Need for Long-
Range Planning, 73 W VA L Rsv 209, 213-14 (1971).
108. Id. at 213.
109. MODEL WATER CODE. supra note 22, 5 1.07, 1.08, and 5.04.
110. Id. 1.08.
1987) MODEL WATER CODE
authority to the
Icy. The Code's
in choosing this
en, the Florida
it districts had
o initiate a ma-
heir staffs were
eristics and use
s, subject to su-
qisite to effec-
on a hydrologi-
iity should be
ons of the Code
te Water Plan
s of the State
for water re-
decessor of the Flor-
ce 1949 Fla. Laws ch.
ed in 1961. See 1961
The Need for Long-
1. The State Water Use Plan
The Code imposed a duty on the State Water Resources Board
to develop a State Water Use Plan to achieve (1) reasonable bene-
ficial use"' of available water supplies; (2) proper economic devel-
opment of the state's water resources; (3) control of public waters
for navigation, drainage, sanitation, and flood control; and (4) ade-
quate water quality as expressed in the State Water Quality
The Code provided that the State Water Use Plan be supported
by appropriate studies"' and that it contain minimum flows and
levels for surface water and ground water."' Water withdrawal
permits issued under chapter two were to be conditioned in such a
way as to preserve these minimum flows and levels."' The Code
also authorized the State Board to prohibit or restrict activities on
designated watercourses to protect recreational or environmental
2. The State Water Quality Plan
The Code directed the State Water Resources Board to formu-
late a State Water Quality Plan."' This Plan was to contain: (1)
water quality standards and, where necessary, effluent standards;
(2) water quality objectives for the improvement of existing water
quality; and (3) an implementation program for those waters that
failed to meet established water quality standards."' The Code
also provided that the water management districts would not be
allowed to issue any discharge permit that would cause water qual-
ity to fall below established water quality standards or contravene
the Plan's water quality improvement objectives."'
The drafters of the Code also attempted to ensure that the plan-
ning process would adequately reflect the interrelationship of
111. For a discussion of the reasonable beneficial use concept in the Model Water Code
me Maloney & Ausness, A Modern Proposal for State Regulation of Consumptive Uses of
Water, 22 HArmos U. 623, 633-36 (1971); Maloney, Capehart & Hoofman, supro note 52,
at 269-70; Fleming, Water Allocation: The Reasonable and Beneficial Use Standards, 63
FL. BJ. 25, 25 (1979).
112. MoomE WATwt CODn, supra note 22, 1 1.07(1).
114. Id. |I 1.07(4), (5).
115. Id. 1 1.07(6).
116. Id. 5 1.07(7).
117. Id. 5 5.04.
118. Id. 1 5.04(1). Water quality standards were described in section 5.05 of the Code.
119. Id. 5 5.08(2).
[ Vol. 3:1
16 J. LAND USE & ENVTL. L. (Vol. 3:1
water use and water quality issues. Thus, the Code specifies that
each portion of the State Water Use Plan and the State Water
Quality Plan be developed together to achieve maximum coordina-
tion.'" In addition, the State Board was expressly required to ad-
dress water quality concerns in the State Water Use Plan"' and
was to consider under the State Water Quality Plan, the effect of
water development projects on water quality."* Finally, the Code
included existing and potential consumptive water uses to be taken
into account by the State Board when it established water quality
standards for a particular watercourse."'
C. Coordination of Water Use and Water Quality Regulations
State programs to regulate water resources must take into ac-
count the hydrologic cycle and must recognize the physical rela-
tionship between water use and water quality. The Code's system
of permits was intended to implement this objective at the opera-
This policy was exemplified by the Code's regulation of con-
sumptive water uses. According to the Code, the governing board
of the appropriate water management district had to authorize vir-
tually all withdrawals, diversions, or impoundments of water.'"
The Code's definition of water included: contained surface water,
diffused surface water, and groundwater.'" The Code's regulatory
provisions extended to all forms of water, except coastal waters,'"
and also required all water users, except domestic users, to obtain
Additionally, the Model Water Code's regulatory provisions ad-
dressed water quality concerns. The governing board of each water
management district was assigned the responsibiHty for regulating
the construction or modification of new discharge outlets, sewage
disposal systems, and waste treatment facilities." A permit from .
the governing board was also required for any discharges that
120. Id. j 1.08(2). Because of the maitude of the state water plan. the drafters of the
Code contemplated that work on the Plan would proceed tep by step on a geographic
basis. See id. 1 1.07(1).
121. Id. I| I.0(2)(d). See also id. |S 1.07(7), (8).
122. Id. I 6.04(1)(b).
123. Id. I 5.05(3)(c).
124. Id. I 2.01(1).
125. Id. I 1.03(8).
126. Id. 2.01(3).
127. Id. 2.01(1).
128. Id. 5.07(I).
1987] MODEL WATER CODE
ode specifies that
the State Water
ly required to ad-
r Use Plan"' and
Plan, the effect of
Finally, the Code
r uses to be taken
bed water quality
Lust take into ac-
the physical rela-
'he Code's system
tive at the opera-
egulation of con-
, governing board
i to authorize vir-
ied surface water,
c users, to obtain
ry provisions ad-
ard of each water
ity for regulating
e outlets, sewage
SA permit from
r discharges that
lan, the drafters of the
step on a geographical
would affect existing water quality.'*' Injection wells and other de-
vices that discharged pollutants into groundwater aquifers were
Other regulatory provisions of the Code were directed at water
quality problems. The governing boards of the various water man-
agement districts were authorized to license well drillers'" and es-
tablish well construction standards.1' In addition, well drillers
were required to obtain a permit from the governing board before
beginning the construction of a well.'" These provisions were
designed, in part, to prevent contamination of groundwater aqui-
fers."4 Finally, governing boards were authorized to establish a salt
water barrier line to combat contamination of surface waters from
the intrusion of salt water.'"
The drafters of the Code attempted to ensure that water use and
water quality problems were not segregated at the regulatory level.
Some coordination was assured simply because the governing
boards of the water management districts administered consump-
tive use and water pollution permit systems. However, the Code's
regulatory provisions also contained some explicit cross-referencing
as well. Thus, the Code declared that each applicant for a water
use permit must establish that the proposed use was consistent
with the public interest and the State Water Plan.'" Because the
State Water Plan included a Water Quality Plan, this provision
would allow a governing board to deny a consumptive permit when
the proposed water withdrawal would impair water quality.
Another subsection authorized governing boards to reserve water
from use by new applicants to implement a provision of the State
Water Plan.'" This authority, for example, would allow a gov-
erning board to maintain existing water quality standards in a wa-
tercourse by limiting future withdrawals.
In the same manner, the Code enabled governing boards to con-
sider water use concerns when issuing discharge permits. Thus, the
129. Id. 5.08(1).
130. Id. 1 5.09(1).
131. Id. 3.04.
132. Id. i 3.14(1)-(3).
133. Id. 3.10.
134. Id. at 197. See also Aiken, supra note 55, at 941.
135. MODEL WATlR CODE, supra note 22, 1 1.24. The Code authorized the governing
boards to fight salt water contamination of groundwater by recharging the aquifer with
water from other sources. See id. 5 3.16(2).
136. Id. | 2.02(1).
137. Id. 2.02(3).
J. LAND USE & ENVTL. L.
governing board could revoke or modify a discharge permit to pro-
tect any domestic consumptive water use or one authorized by a
water use permit."* Presumably, the governing board could refuse
to issue a discharge permit for the same reason.
D. The Model Water Code and the 1972 Florida Water
In 1972, the Florida Legislature repealed the 1957 Water Re-
sources Law'" and replaced it with a more comprehensive statute.
This statute, known as the Florida Water Resources Act of 1972,"1
was largely based on the Model Water Code. Like the Code, the
Florida Water Resources Act provided for the creation of a state
water regulatory agency with supervisory authority over the water
management districts4"' and directed it to formulate a state water
plan.'14 In addition, the Act authorized water management dis-
tricts to regulate consumptive uses of water,4' well-drilling activi-
ties,"' and the construction of dams, reservoirs, and
However, the Florida Water Resources Act did not exactly follow *
the Model Water Code."* A few deviations were inconsistent with
the Code's underlying regulatory philosophy. One such change was
the omission of all sections of the Code which dealt with water
pollution control."' By failing to enact the Code's provisions on
water quality, the legislature effectively divided authority over
water management between two state agencies. The Department of
Natural Resources, the successor to the old Board of Conservation,
assumed responsibility for administering the provisions of the 1972
Water Resources Act," while the Air and Water Pollution Control
138. d. t 0(5)(f).
139. 1972 Fla. Laws ch. 72-299.
140. F. STAT. i 37.013 (1965).
141. FLA STAT. 37.026(7) (Supp. 1986).
142. FLA. STAT. 373.036(1) (1985).
143. PLA. STAT. 373.216 (1985).
144. FLA. STAT. 73.309 (1985).
145. FLA. STAT. U1 373.413(1) (1985).
146. For example, the 1972 Florida Water Resources Act omitted language in the Code's
declaration of policy that stated that all waters of the state were held in trust for the benefit
of its citizens. See F. MALowNE. S PLG. R. AusNass & B. CArmn. FLORIDA WATR
LAw-1980, 223 n.173 (1980) [hereinafter FLORIDA WATL LAW].
147. See generally, MoDL WATER CODE. supro note 22, 1f 5.01-.16.
148. The Governmental Reorganization Act of 1969, 1969 Fla. Laws ch. 69-106, 1 25
(codified at FLA. STAT. ch. 20 (1985)), created the Department of Natural Resources, abol-
ished the State Board of Conservation, and transferred the Board's functions to the new
1987] MODEL WATER CODE
large permit to pro-
mne authorized by a
board could refuse
he 1957 Water Re-
arces Act of 1972,'"
Like the Code, the.
creation of a state
rity over the water
late a state water
r management dis-
Snot exactly follow
e inconsistent with
ne change was
Sdalt with water
e's provisions on
led authority over
The Department of
rd of Conservation,
visions of the 1972
r Pollution Control
ed language in the Code's
ed in trust for the benefit
CANRa. FLORIDA WarTE
la. Law ch. 69-106, 5 25
SNatural Resources, abol-
rds functions to the new
Authority retained its jurisdiction over water quality."'
In fairness to the legislature, the enactment of the Code's water
quality provisions would have made little sense in light of what
was then taking place at the federal level. At the same time the
1972 Water Resources Act was under consideration by the Florida
Legislature, Congress was engaged in passing the 1972 Federal
Water Pollution Control Act.'" This statute replaced the 1965
Federal Water Quality Act"' and greatly enhanced the federal role
in water pollution control. The Model Water Code's water quality
provisions were designed to mesh with the regulatory framework of
the 1965 federal Act,'" but, the Code's approach to water pollution
control was out of harmony with the regulatory philosophy of the
1972 federal Act.'"
Department. The Florida Water Resources Act of 1972 gave the Department of Natural
Reeoures authority over water management planning and regulation. LA. TrAT. 373.026
149. The Florida Air and Water Pollution Control Act, 1967 Fla. Laws ch. 67-46 (codi-
ied at A. STAT. ch. 403 (1965)), created the Florida Air and Water Pollution Control Com-
mission and transferred to it most of the State Board of Health' pollution control jurisdic-
tion. See Maloney, Plager & Baldwin, supro note 43, at 145-49.
150. Pub. L No. 92-00. 86 StaL 816 (1972) (codified at 33 U.S.C. if 1251-1376 (1965)).
For an overview of the 1972 Federal Water Pollution Control Act see generally Comment,
The Federal Water N caution Control Act Amendments of 1972,14 B.C. LiDu & Cou. L
Ray. 672 (1973); Coament, The Federal Water Pllution Control Act Amendmente of 1972,
11 LAND & WAmm L Rev. 1 (1976); W. Reoms. HANemoo on Enmommu r.AL LAw 54.2-
4.21 (1977) Zener, The Federal Law of Water Pollution Control 682, 682-770, in Famam .
BNVmmn rraTAL Law (E. Dolgin & T. Gilbert ed. 1974).
151. Pub. L. No. -2834, 79 Stat. 903 (1965) (codified at 33 US.C. I 466 (1965)). For a
discussion of the 1965 Water Quality Act ee Hines, Nor Any Drop to Drink: Public Regula-
tion of Water Quality, Por 11, 52 Iowa L Rva. 79, 825-5. The 1965 Act wa amended in
1970. Pub. L No. 91-224,84 Stat. 91 (1970). These amendments are dicused in Barry, The
Evolution of the Enforcement Provisions of the Federal Water Pollution Control Act: A
Study of the Difficulty in Developing Effective Legislation. 68 Matc L Ray. 1103, 1126-29
152. The Model Water Code, like the 1965 Water Quality Act, relied heavily on water
quality standards a an enforcement technique. Compare MoDLm WATn CODE, supra note
22, 5.05 wita 33 U.S.C. I 466(c) (1985). The federal Act also relied heavily on state efforts
to control water pollution, and federal enforcement authority was largely limited to inter-
state waters. 83 US.C. I 466g(c)(5) (1985). See also Barry, supra note 151, at 1118-19. The
Model Water Code also envisioned a regulatory system in which the state sunmed primary
responsibility for water quality. MoDaL WATlm ConD, supra note 22, 1 1.02(4).
153. Water quality standards proved to be cumbersome and neffective as a pollution
control device. Hall, The Control of Toxic Pollutants Under the Federal Water Pollution
Control Art Amendments of 1972, 63 IOWA L RVa. 609, 611-12 (1978). Consequently, the
1972 Water Pollution Control Act replaced water quality standards with technology-based
efluent standards as its primary regulatory tool. Gaba, Federal Supervision of State Water
Quality Standards Under the Clean Water Act, 36 VAND. L R a 1167. 1169 (1983). Water
quality standards were left in the 1972 Act. but they served only a minor function. Fisher,
Hou Florida Can Simplify Water Pollution Control, 52 FLA BJ 67, 68 (1978). In contrast,
20 J. LAND USE & ENVTL. L. [Vol. 3:1
The Florida Act allowed the state agency to delegate consump-
tive use permitting authority to the water management districts,
rather than impose this responsibility on the districts, at the out-
set.'" The Department of Natural Resources delegated permitting
power to the water management districts, but did not compel them
to exercise it.'" Consequently, only the South Florida Water Man-
agement District and the Southwest Florida Water Management
District immediately implemented the Act's regulatory scheme,'"
while the common law allocation doctrines continued to prevail in
the remaining water management districts. "
In retrospect, the Florida Water Resources Act of 1972, notwith-
standing the deficiencies mentioned above, was a considerable im-
provement over the previous water regulatory system. Moreover,
some of these weaknesses were subsequently remedied.
IV. WATER MANAGEMENT IN FLORIDA SINCE 1972
Enormous changes have taken place in Florida's water manage-
ment system since the passage of the Water Resources Act in 1972.
Among the problems remaining are the structure of the state regu-
latory agency and its relationship to the water management dis-
tricts, the status of comprehensive water resources planning, the
scope of permit systems, and the relationship between consump-
tive use and water quality concerns.
A. DER and the Water Management Districts
Shortly after passage of the 1972 Water Resources Act, the Flor-
ida Legislature passed the Florida Environmental Reorganization
Act'" to centralizee the state's numerous environmental protection
programs within a single agency.'" The Act created a new agency,
known as the Department of Environmental Regulation (DER),'"
fluent standards played a secondary role under the Model Water Code's regulatory
scheme 8 MosL WAIU Cos, supra note 22. 5 6.05(6) (state may impose effuent stan-
dards when necessary to meet water quality goals).
154. See FLA. STAT. 1 373.216 (1985).
155. FLORIDA WATRs Law, supra note 146, at 224 n.177.
16i. .at 235-37.
157. Id. at 224.
158. 1976 Fla. Laws ch. 75-22 (codified at FLA. STAT. 1 403.801 (1985)). See also Landers,
Lotapeich & Oslason, Environmental Regulatory Streamlining: A State Perspective, 2 J.
LAo USE & ENvTL. L. 1, 4-6 (1986).
169. Landers, Function of the Department of Environmental Regulation, 50 FLA. BJ.
269, 270 (1976).
160. The Legislature established three divisions within DER: (1) the Division of Envi-
. 'I; ,
1987] MODEL WATER CODE
to delegate consump-
districts, at the but-
did not compel them
SFlorida Water Man-
ntinued to prevail in
Act of 1972, notwith-
as a considerable im-
y system. Moreover,
t SINCE 1972
rida's water manage-
esources Act in 1972.
ure of the state regu-
Ler management dis-
ources planning, the
p b *en consump-
sources Act, the Flor-
heated a new agency,
I Water Code's regulatory
Smay impose effluent stan-
I (1985)). See also Landers,
SA State Perspective, 2 J.
al Regulation, 50 FLA. BJ.
: (1) the Division of Envi-
and transferred to it the powers of various state agencies.'" The
new agency assumed the powers of the old Department of Natural
Resources'" and the Department of Pollution Control.'"
The Florida Environmental Reorganization Act gave DER the
power to administer most of the state's environmental permitting
programs.'" Thus, the new agency assumed regulatory responsibil-
ity for air pollution, water pollution, drinking water standards,
noise, solid waste, and power plant siting, as well as dredge and fill
activities in navigable waters.'"
In addition, DER was authorized to supervise the activities of
the water management districts.'" However, DER found it difficult
to exercise control over the districts. In the first place, the legisla-
ture directed DER to delegate its power "to the greatest extent
practicable" to the governing boards of the water management dis-
tricts."' Also short of funding, DER was forced to concentrate on
air and water pollution control, where it had primary jurisdiction.
On the other hand, two water management districts South Flor-
ida and Southwest Florida had the financial resources and the
staff to undertake ambitious regulatory programs.'" Finally, DER
had no authority to review or rescind rules or orders of the water
management districts.'" Instead, this power was vested in the
Land and Water Adjudicatory Commission."1
At first, DER delegated a great deal of authority to the water
ronmental Permitting; (2) the Division of Environmental Program; and (3) the Division of
Administrative Services. See id. at 270-71; FPLOem WATR LAw, supra note 146, at 106-19.
161. Earl & Kole, The Environmental Reulation Commission, 66 FL. BJ. 805, 805
(1982); Wershow, An Update-Legal Impliations of Water Management in Florida's Fu-
ture, 54 Pi.J. 625, 527 (1980).
162. 1975 Fla. Laws ch. 76-22, i 11. See alo Wershow, Water Management: The Future
of Florida Legal Implications, 51 PA. 8J. 18, 140 (1977).
163. 1975 Fla. Laws ch. 75-22, i 8. See aleo Wershow, supra note 161, at 527. The Gov-
ernmental Reorganization Act of 1969, 1960 Fla. Laws ch. 69-106, had replaced the Air and
Water Pollution Control Commission with the Department of Air and Water Pollution Con-
trol. This was later renamed the Department of Pollution Control. See Earl & Kole, supra
note 161, at 805.
164. Shields, How Reorganization Affected the Department of Natural Resources, 50
FLA. BJ. 266, 267 (1976); Barron, Environmental Reorganization Act-The Legislative Per-
spective, 50 PLA. BJ. 264, 264 (1976).
165. P A. STAT. i 403 (19n5) Lnders, supro note 159, at 270.
166. FLA. STAT. 373.103 (1985).
167. FA. STAT. i 373.016(3) (1985).
168. FLomRDA WATR LAw, supra note 146, at 235-40.
169. 1977 Op. Att'y Gen. Fla. 077-95 (1977); Kemp, supra note 60, at 16.
170. FLA. STAT. i 373.114(1) (1985). See also Rhodes, Environmental Agency Reorgani-
zation: The Practitioner's Perspective, 50 LA. B.J. 272, 273 (1976).
22 J. LAND USE & ENVTL. L. (Vol. 3:1 198'
management districts."' In recent years, however, DER has at- Cor
tempted to assert more control over the districts. In 1983, DER pro
issued a state water policy to "provide guidance to [DER] and the ph>
districts in the development of programs, rules, and plans.""' (DE
DER was also given the exclusive power to review district rules to istr
assure consistency with the state water policy."' Coi
At the present time, DER and the water management districts ate
seem to have achieved the sort of working relationship that was a
contemplated by the drafters of the Model Water Code."4 DER nat
and the districts have cooperated in such areas as water resources the
planning, wetlands protection, and land use planning."' In addi- dis
tion, DER and the districts seem to have resolved their earlier dif- I
ferences over water management policies and the respective roles tial
of state and regional institutions in the implementation of such to
B. Comprehensive Planning
The 1972 Water Resources Act directed DER's predecessor, the pr<
Department of Natural Resources (DNR), to formulate a State sul
Water Use Plan.'" The Water Use Plan was supposed to establish vie
a uniform water resources policy to ensure that the Act's regula- I
tory provisions were administered consistently at the district wh
level."' However, for the most part the Water Use Plan failed to 19'
achieve this goal. dif
One problem was that the State Water Use Plan was subsumed be
into a larger, more ambitious planning effort known as the State Us
171. See Christie & Jurgens, The Legal Environment for Water Resources Planning in
Florida, in 5 CoumPmsN va Rzvmw or WATNE Rouces Poucus. PLANmNG ANnD Pao- s
ouu s IN FPLRIDA 2-3 (June 1986) (hereinafter Lgal Environment for Water Resources].
172. FaA. ADi. CODE ANN. r. 17-40 (1986). B
173. FlA. STAT. 373.114 (1985). DER Is required to review the adoption or revision of 1
any water management district rule within 30 days of its adoption or revision. However, if Sec
DER orders amendment or repeal of the rule because it is inconsistent with the State Water 1
Policy, the district may appeal this decision to the Land and Water Adjudicatory Mo
174. MODna WATER CODa, supra note 22, 11.02.
175. May & Snaman, A Critique of Water Planning in Florida-State, Regional, and
Local, in 4 Cour'mawsv R avsw or WAlTR Rasousc Poucas. PLANNING AND PROG AMS
I FLORIDA 54 (Apr. 1986) [hereinafter Water Planning in Floridal.
176. Id. at 556-6.
177. FLA STAT. 5 373.036(1) (1985)
178. Rea, Drought in Florida Nature's Response to "Comprehensive" Planning, 57 FLA.
BJ 266. 266 (1983).
MODEL WATER CODE
however, DER has at-
stricts. In 1983, DER
nce to [DER] and the
rules, and plans."'7"
eview district rules to
relationship that was
Water Code.'" DER
ms as water resources
planning."' In addi-
lved their earlier dif-
d the respective roles
plementation of such
ER's predecessor, the
to formulate a State
supposed to establish
hat_ Act's regula-
ntly at the district
r Use Plan failed to
Plan was subsumed
known as the State
Vater Resources Planning in
OLcS c PLANNING AND PRO-
et for Water Resources].
Sthe adoption or revision of
ion or revision. However, if
sitent with the State Water
I and Water Adjudicatory
wida-Stale, Regional, and
SPLANMNG AND PROGRAMS
ehensive" Planning, 57 FLA.
Comprehensive Plan."" The Comprehensive Plan was intended to
provide "long-range guidance for the orderly social, economic, and
physical growth of the state."'" The Division of State Planning
(DSP), a new agency established within the Department of Admin-
istration, was given the task of overseeing the preparation of the
Comprehensive Plan."' The Legislature directed DNR to cooper-
ate with DSP, since it intended for the Water Use Plan to become
a "functional element" of the Comprehensive Plan.'" Unfortu-
nately, disagreements arose between DSP and other participants in
the planning process, .particularly the water management
Inadequate funding also hampered the planning process.'" Ini-
tially, the legislature failed to provide DNR with sufficient funding
to carry out its planning mandate.'" As a consequence, DNR did
nothing to prepare a plan".' Instead, it delegated this responsibil-
ity to the water management districts.'" The South Florida Water
Management District and the Southwest Florida Water Manage-
ment District responded by embarking on substantial planning
programs with little or no oversight at the state level.'" As a re-
sult, these districts developed strong, and somewhat divergent,
views on water management policy.'"
DER attempted to assert some control over the planning process
when it assumed DNR's water management responsibilities.'"" By
1976, DER had reached an agreement with the water management
districts on a common set of assumptions and a common format to
be used in preparing the Water Use Plan."' As a result, a Water
Use Plan was completed in 1978,'" but was never formally
179. The Plan was mandated by the Florida State Comprehensive Planning Act of 1972.
See FLA SAT. It 186.001-.031 and 186.801-.911 (1985).
180. FLA. STAT. 186.007 (195).
181. FLA. STAT. 1 23.012(1) (1972). See Brindell, Planning for Florida's Future, 52 FLA.
BJ. 247, 247 (1978).
182. Florida State Comprehensive Planning Act of 1972, 1972 Fla. Laws ch. 72-295 (codi-
fied at FLA STAT. ch. 186 (1985)); Water Planning in Florida, supra note 175, at 23.
183. FLORIDA WATlR LAw, supra note 146, at 217; Fleming. Water Allocation: The Rea-
sonable and Beneficial Use Standards, 52 FLA. BJ. 2. 25-26 (1979).
184. Water Planning in Florida, supra note 175, at 24-25.
186. FLORIDA WATra LAW, supra note 146, at 215.
187. Water Planning in Florida, supra note 175, at 25.
188. Id. at 26.
189. Rea, supra note 178, at 266.
190. Water Planning in Florida, supra note 175, at 26.
192. Phase I, State Water Use Plan (Dec. 1978).
24 J. LAND USE & ENVTL. L. (Vol. 3:1
adopted by DER.'" Meanwhile, DSP completed work on the rest
of the State Comprehensive Plan. However, the Plan was rejected
when it was submitted to the legislature for approval.-"
In 1984, a new attempt to draft a State Water Use Plan was
begun under the Florida Regional Planning Council Act.." The
1984 Act called for the formulation of a new State Comprehensive
Plan as well as state agency functional plans and comprehensive
regional policy plans for each of the state's comprehensive plan-
ning districts.'" The legislature directed DER to prepare a State
Water Use Plan within six months.'"
The State Comprehensive Plan was prepared by the Governor's
Office and was adopted by the legislature in 1985.'" DER, with
some assistance from the water management districts, completed a
new State Water Plan and submitted it to the Executive Office of
the Governor for review.'"
With the development of the state water policy and the State
Water Use Plan, DER and the water management districts have
taken the first step toward implementing a comprehensive plan-
ning process. This experience has not been without difficulties, but
it seems to have reduced some of the tension between DER and
the districts over water management policy.
C. Coordination of Water Use and Water Quality Regulations
1. Consumptive Use Regulation at the District Level
As mentioned earlier, the Model Water Code's permitting
scheme for consumptive uses of water was carried over into the
1972 Water Resources Act.' The authority to issue consumptive
use permits was vested exclusively in DER and the water manage-
ment districts."' DER then delegated this authority to the water
management districts, as contemplated by the Act."
193. WLOUA WATBR LAW. supr note 146, at 217.
194. FA. STAT. 23.013(2) (1972). PFtouuA WATR LAW. eupra note 146, at 217 n.139.
195. 1984 Fla. Law ch. 84-257 (codified at FLA. STAT. j5 186.501-.513 (1985)).
197. FLA. STAT, 186.021(3) (1985).
198. Viessman, An Assessment of Water Resource Management Issues and Options, in
1 CouPRmmewNSV Rvayw or WATER RsouRacs Pouaas PLANNING Am PaRAo Im FLon-
IDA 1 (Jan. 1986) hereinafter Water Resource Minagenment).
199. Legal Environment for Water Resources, supra note 171, at 16.
200. FLA. STAT. ch. 373 (1985).
201. 1976 Fla. Laws ch. 76-243, f 9. See also Wershow, supro note 162, at 140.
202. Each water management district now regulates consumptive water uses. See FLA.
1987] MODEL WATER CODE
leted work on the rest
the Plan was rejected
- Water Use Plan was
ig Council Act.'" The
v State Comprehensive
ns and comprehensive
to prepare a State
by the Governor's
in 1985.'" DER, with
districts, completed a
SExecutive Office of
policy and the State
cement districts have
thout difficulties, but
n between DER and
e District Level
r Code's permitting
carried over into the
to issue consumptive
the water manage-
ity to the water
pro note 146. at 217 n.139.
meant Issues and Options, in
NO AND PROGRAMS IN FLO-
7l. at 16.
note 162, at 140.
ive water uses. See FLA
For the most part, the consumptive use permit system appears
to have functioned smoothly. At first, some of the districts exper-
ienced difficulty in applying the concept of reasonable-beneficial
use.'" However, DER's state water policy has now provided addi-
tional guidance to the districts." Water shortage plans were an-
other problem area." At the present time, though, each of the dis-
tricts has developed a water shortage plan."
The water management districts have shown considerable imagi-
nation and initiative in their responses to particular water manage-
ment concerns. For example, several of the districts have enacted
well-spacing regulations to protect against salt water intrusion.m
In addition, the South Florida Water Management District encour-
ages wastewater reuse for irrigation purposes in certain instances
as an alternative to groundwater use." Finally, several of the dis-
tricts embarked on programs to identify and protect groundwater
Of course, some consumptive use problems have not been fully
resolved. One of the most controversial issues is whether interdis-
ADrN. CODs ANN rr. 40E-2 (SFWMD); 40A-2 (NWFWMD); 40C-2 (SJRWMD); 40B-2
(SRWMD); 40D-2 (SWFWMD) (196).
203. Fleming Water Allocation- The Reasonable and Beneficial Use Standards, 52 Fa..
BJ. 25, 28-29 (1979). See also City of St. Petersbu v. Southwest Florida Water Manage-
ment Dist, 355 So. 2d 796 (Fla. 2d DCA 1976Hdiapute over whether the "water crop" the-
ory was consistent with the principle of ronable-beficial use).
204. FLA. ADIN. Cows ANN. r. 1740.040(2) (196). The water management district
should take the following factors into account in order to determine if a requested e of
water is a reasoable-beneicial one: (1) purpose of the ue; (2) stability of the me; (3)
economic value of the use; (4) social value of the se; (5) extent and amount of harm the use
causes; (6) ability of the user to avoid hrm to others by adjusting the method of we; (7)
ability of the user to avoid harm to others by adjusting the quantity of water wed; (8)
protection of existing value; (9) justice of requiring the user to ompemnate other mes for
causing harm; (10) whether the withdrawal wi have an adverse impact on ad not owned
by the war, (11) the method and eficency of the se; (12) whether conervatio measure
are being taken; (13) whether water can be reed or water of poorer quality can be used;
(14) the future demands of competing wen; (15) the safe yield of the water body, and (16)
whether the use would degrad water quality. The birt nine factor are taken from RaTna-
marr (ScomND) or TOirT | 8OA (1977). TaB aumaumm rAvrosA w ArsD w DER To
Yts RreTrrATumr's warnoimooo O mseWMm urL KaMP. supra note 60, at 15.
205. FLORIDA WATR LAw. supra note 146, at 250-68.
206. Viesman. Florida's Water Resources--rends, Issues, Strategies, in 2 CowYmaN-
gaIV Rzvm OF WATEB RaPouncss Poua s. PLANNING AND PROGAMus IN FLORDA 19 (Jan.
1986) Ihereinafter Trends, Issues, Strategies].
207. Neitzke, Solt Water Intrusion. Florida's Legal Response, 55 FLA BJ 759, 761
208. Niego, Wastewuater Re-Use in Florida An Idea Whose Time Has Come. 57 FLA.
BJ. 337, 339 (1983).
209. Water Resource Management, supra note 198. at 9-10; Niego, supra note 208, at
26 J. LAND USE & ENVTL. L. (Vol. 3:1
trict transfers of water should be allowed."' At the present time,
DER's water policy provides that both districts must approve such
a transfer.'" Presumably some other agency, such as DER or the
Land and Water Adjudicatory Commission, would have to decide
the issue if the donor district refused to approve a requested
2. Regulation of Water Quality by DER
Florida's primary water pollution control statute in 1972 was the
Air and Water Pollution Control Act."' Under this statute, an in-
dependent board administered the state's water pollution permit
system."* The 1972 Water Resources Act did not change this regu-
latory scheme."' Later, the 1975 Environmental Reorganization
Act gave DER the power to administer the state's water pollution
DER requires that any installation may reasonably be expected
to be a source of pollution must obtain a permit."' Before DER
issues this permit, it must determine that the installation is
equipped with pollution control facilities that will enable the per-
mittee to comply with applicable water quality standards."' DER
also requires that domestic and industrial pollution sources obtain
separate construction and operating permits."' Applicants for con-
struction permits must comply with design criteria established by
DER."' Applicants for operating permits must show that the pro-
posed discharge will not cause water quality to fall below the clas-
sification established for the watercourse.'"
DER has also adopted effluent standards and guidelines for do-
mestic and industrial facilities which parallel those adopted by the
United States Environmental Protection Agency under the Clean
Water Act."' In addition, the 1967 Act has been amended to give
210. Water Resource Management, supra note 198, at 11.13.
211. FLA. AnMIN Con ANN. r. 17-40.050 (1986). See also Kemp, supra note 60, at 16.
212. 1967 Fla. Laws ch. 67-436 (codified at Fai STAT. f 403.011-.261 (1967)).
213. FiA. STAT. 1403.061(14) (1986).
214. 1972 Fla. Laws ch. 72-299.
215. FLA. STAT. $ 403.087 (1985).
216. Id. For a general discussion of DER's pollution control activities see FLORIDA
WAran LAW, supro note 146, at 377-92.
217. FLA. STAT. 5 403.087(4) (1985).
218. FLA. ADMIN. CODE ANN. rr. 17-4.210 to 17-4.240 (1986).
219. FLA. STAT. i 403.087(4) (1985).
220. FLA. STAT. I 403.088(2)(b) (1985).
221. Compare FLA. ADIN. CODE ANN. r. 17-6.010 (1986) with Clean Water Act 33 U.S.C.
1987] MODEL WATER CODE
At the present time,
ts must approve such
such as DER or the
would have to decide
approve a requested
atute in 1972 was the
,r this statute, an in-
iter pollution permit
not change this regu-
ate's water pollution
onably be expected
rmit*" Before DER
the installation is
will enable the per-
y dstdards."' DER
uti[ sources obtain
Applicants for con-
iteria established by
it show that the pro-
Sfall below the clas-
id guidelines for do-
ose adopted by the
my under the Clean
en amended to give
emp, supra note 60, at 16.
3t3 1-.261 (1967)).
trol activities see FLOmDA
i Clean Water Act 33 U.S.C.
DER the power to adopt drinking water standards,'" monitor
groundwater sources,"' and regulate dredge and fill operations in
3. Overlapping Authority between DER and the Water
Neither the 1972 Water Resources Act nor the 1975 Environ-
mental Reorganization Act gave the water management districts
any direct pollution control authority." This has caused problems
because water use and water quality issues cannot be separated at
the operational level any more than at the planning level.
In the course of administering the provisions of the Water Re-
sources Act, the water management districts make numerous deci-
sions that affect water quality. The districts take water quality
concerns into consideration when they issue consumptive use per-
mits."* This practice is supported by an opinion of the State At-
torney General*" and by language in DER's state water policy."
In addition, the districts can take water quality into account when
issuing permits for the construction of dams, impoundments, and
other surface water structures."'
The water management districts also engage in planning and
other activities that involve water quality. They cooperate with lo-
cal governments in developing hazardous and nonhazardous waste
1 1311 (1982). Florida's pollution control program, which i based on the 1967 Air and
Water Pollution Control Act. does not pesently meet the requirements for participation in
the federal NPDES program. Therefore, perons who discharge pollutants into Florida wa-
ters must obtain a permit from both EPA and DER. Se generally Fisher, supra note 153,
222. Florida Safe Drinking Water Act, 1977 Fla. Laws ch. 77-337 (codified at FLA. STAT.
II 403.850-.864 (195)). Seeolao Green & Preston, Florida's Neu' Groundwater Regulations,
57 FLA. BJ. 345 (1983).
223. 1983 Fla. Laws ch. 83-310 (codified at FLA STAT. 403.063 (1985)).
224. Warien S. Henderson Wetlands Protection Act, 1984 Fla. Law ch. 84-79 (codified
at F SAT. STA 403.91-.929 (1986 & Supp. 1986)). See also Note, Warren S. Henderson
Wetlands Protection Act of 1984, 9 Nov LJ. 141 (1984); Smallwood. Alderman & Dix, The
Warren S. Henderson Wetlands Protection Act of 1984: A Primer, I J. LAND UE & EmnTL
L 211 (1985).
225. 1972 Water Resources Act, 1972 Fla. Laws ch. 72-299; 1975 Environmental Reor-
ganization Act, PA. STAT. 403.801 (1985).
226. Wershow, supra note 161, at 528-29.
227. 1975 Op. Att'y Gen. Fla. Ann. Rep. 075-16.
228. FLA. ADMuN. CoDE ANN. r. 17-40.040(2) (1986).
229. For example, the South Florida Water Management District requires an applicant
to provide reasonable assurances that a proposed use of diversion or storage work will not
degrade water quality. FLA ADMIN CODE ANN. r. 40E-6.301(1l(C) (1986). See also Landers,
Lotspeich & Osiason, supra note 158, at 21.
28 J. LAND USE & ENVTL. L. [Vol. 3:1
management programs.'" The districts also participated with local
governments in the formulation of Section 208 water quality
plans,"' and comprehensive plans for land use control purposes."
Finally, the water management districts provide technical assis-
tance to regional planning councils in connection with develop-
ments of regional impact.""
The overlapping interests of DER and the water management
districts in the water quality area may give rise to conflicts over
regulatory policy. Where both agencies regulate a particular activ-
ity, water users may have to apply for two permits instead of only
one. A serious problem would be presented if the regulatory stan-
dards of the two agencies were in conflict. However, even if they
were consistent, a wasteful dual permitting system would still ex-
ist." Furthermore, planning and other nonregulatory activities of
a district can undermine state water management efforts if the dis-
trict and DER do not subscribe to common water quality goals.
There are two potential solutions to the problem of overlapping
jurisdiction over water quality. Under the first, DER could dele-
gate a substantial portion of its water quality permitting authority
to the water management districts. Under the second approach,
DER and the districts could apportion regulatory authority among
themselves in a manner that avoids dual permitting.
The first response, delegation of permitting authority to the
water districts, is similar to the Model Water Code's original
scheme." It will be recalled that the 1972 Water Resources Act
provided that DER should delegate its power "to the greatest ex-
tent practicable... to the governing boards] of [the] water man-
agement districtss].'" This provision, however, did not extend to
water quality regulation." At one time, another statute authorized
DER to delegate its water quality duties to a water management
district if the district had sufficient financial and technical re-
230. Water Resource Management, supra note 198, at 60-61.
231. Water Planning in Florida, supra note 175, at 33-34.
232. Nieo. Water Management in South Florida: Setting the Record Straight, 57 FLA
BJ. 337, 8337-88 (1983). The Local Government Comprehensive Planning and Land Develop-
ment Regulation Act requires local governments to formulate comprehensive plans to con-
trol the use of land. FiA. STAT. 1 163.3161 (1986). This statute also mandates that these
comprhensive plans include water supply and conservation elements. FLA STAT II
233. Legal Environment for Water Resources, supra note 171. at 7-8.
234. Wershow, supro note 161. at 529.
235. MODEL WATER CODE, supra note 22. at 292-93.
236. FLA STAT. 373.016(3) (19851.
19871 MODEL WATER CODE
participated with local
,n 208 water quality
se control purposes.'"
ovide technical assis-
lection with develop-
ie water management
rise to conflicts over
ate a particular activ-
ermits instead of only
if the regulatory stan-
iowever, even if they
system would till ex-
egulatory activities of
nent efforts if the dis-
water quality goals.
problem of overlapping
rat, DER could dele-
the second approach,
tory authority among
ing Ithority to the
later Code's original
Water Resources Act
r "to the greatest ex-
] of [the] water man-
, did not extend to
ier statute authorized
a water management
lal and technical re-
the Record Straight, 57 FLA.
Planning and Land Develop-
comprehensive plans to con-
ute also mandates that these
mI elements. FLA. STAT. I
171, at 7-8.
sources to assume such responsibilities." However, the legislature
revised this provision in 1983 and limited potential DER delega-
tion to stormwater regulation."
The second alternative would allow DER and the water manage-
ment districts to apportion regulatory responsibilities by agree-
ment. Under one proposal, one agency would be designated the
"primary" agency for a specific permitting function. The "second-
ary' agency would not regulate the same activity but would be en-
titled to comment on permit applications."' This would allow
DER and the districts to agree on a uniform water quality strategy,
and it would eliminate duplicative permitting procedures. Shortly
after its creation by the Environmental Reorganization Act, DER
and the water management districts undertook a study to identify
areas of overlapping responsibility and formulate a response to the
problem."' However, it is not clear whether the parties reached
any agreements with respect to regulation of water quality.
The drafters of the Model Water Code intended what its name
suggested-a "model" statute for states to adapt to their unique
situations.u" The Florida Legislature used the Code as the model
for the 1972 Water Resources Act, but also modified it to fit the
needs of the state. Since that time, DER and the water manage-
ment districts have fleshed out this basic statutory framework. The
result of this process is a water management program that has
adapted, and will continue to adapt, to changes in the physical on-
vironment, as well as to changes in popular attitudes about eco-
nomic development and the environment.
A number of problems have been identified in this brief survey
of Florida water management law. One problem is the relationship
between DER and the water management districts." We conclude
that this relationship is not that of superior and subordinate, but
238. FLA STAT. $ 403.812 (1975). DER is required to establish environmental districts
and allow them to process permit applications. These district offices are supposed to be
located in the same area as the central offices of the various water management districts.
See FLA. STAT. I 403.809 (1985). However, environmental districts are equivalent to branch
offices of DER and have no official tie to the water management districts.
239. 1983 Fla. Laws ch. 83.310, 68. See also 1984 Fla. Laws ch. 84-79, 6; 1985 Fla.
Laws ch. 85-154. I 3. These provisions are now codified at FLA. STAT. 5 403.812 (1985).
240. Wershow, supra note 162. at 142-43.
241. Id. at 141-42.
242. MODEL WATER CODE, supro note 22, 1.02.
243. See supra notes 159-176 and accompanying text.
30 J. LAND USE & ENVTL. L. [Vol. 3:1
rather more like a partnership."* A second area of concern is the
status of water resources planning in Florida."' Our conclusion is
that water resources planning must be an ongoing process.'" Plan-
ning should not be confined to state agencies, but must be shared c
by DER and the water management districts."' The final problem
is the state's failure to integrate consumptive use regulation with r
water quality controls." Since water use and water quality issues s
are closely interrelated, ideally, the same agency should regulate I
both activities."' If this does not occur, procedures must be devel- t
oped to ensure coordination between consumptive use and water c
pollution permitting." I
Considerable progress has been made toward defining an appro-. p
private relationship between DER and the water management dis-
tricts."' The development of a state water policy provides a mech-
anism by which DER can establish statewide water management u
goals and policies. At the same time, since water resource problems r,
vary from area to area, the districts must be given discretion to
implement these statewide policies in their own way. d
This approach makes sense from a managerial viewpoint. More-
over, it is consistent with political reality. Since the water manage- f
ment districts, at least in the southern half of the state, seem to a
have more financial, political, and technical resources than DER, it
is likely that more would be accomplished if DER and the districts
act together as partners, rather than compete for exclusive control tj
over water management decisionmaking.'" This was the approach
to water management envisioned by the drafters of the Model tl
Water Code." r
As was mentioned earlier, DER and the districts drafted a Water o
Use Plan as required by the State and Regional Planning Act." n
This plan is a good start. However, adequate water resource plan-
ning requires accurate technical information about the physical re- ,
sources along with present and projected demands on resources.
245. See supra notes 180-199 and accompanying text. t]
248. See supra notes 200-226 and accompanying text.
251. See supra 159-170 and accompanying text.
252. See supra notes 171-176 and accompanying text.
253. MODEL WATER CODE, supra note 22, at 292-93.
254. FLA. STAT. ch. 187 (1985).
MODEL WATER CODE
a of concern is the
SOur conclusion is
ng process." Plan-
mt must be shared
' The final problem
me regulation with
rater quality issues
icy should regulate
res must be devel-
tive use and water
defining an appro-
r management dis-
y provides a mech-
r resource problems
given discretion to
d viewpoint. More-
the water manage-
th. te, seem to
urc. than DER, it
R tnd the districts
or exclusive control
B was the approach
ters of the Model
cts drafted a Water
al Planning Act."
rater resource plan-
ut the physical re-
This data must then be classified and analyzed. Finally, planners
must utilize this data to formulate policy choices and develop
strategies for decisionmakers to employ to implement these
This is an ongoing process that requires considerable financial
resources and expertise. Consequently, no version of the State
Water Use Plan should ever be regarded as a finished product.
Furthermore, a water quality plan should be developed as part of
the same process that produces a Water Use Plan. This was the
original idea behind the Model Water Code's State Water Plan."
If two separate plans are produced in Florida, at the very lent,
provisions should be made for proper coordination of the planning
It is not enough to acknowledge the interrelationship of water
use and water quality concerns at the planning level; hydrologic
reality must prevail at the operational level as well." Although
some progress has been made, DER and the water management
districts must resolve this issue once and for all. The best solution
would be for DER to delegate water pollution permitting authority
to those districts that have the technical and financial resources to
administer such a program." DER should retain sum cient respon-
sibility to ensure that statewide standards are enforced and that
water quality regulations are administered uniformly throughout
This article has emphasized the hydrological unity of water and
the physical connection between water use and water quality." Of
course, there are links between water resources management and
other activities as well. However, it is undesirable to inject too
many factors into the decisionmaking process of a particular
agency. A water management agency should not be required to
consider every possible problem before it grants a consumptive use
permit. Noq only would this concentrate too much power in one
entity, but it would diffuse the agency's focus on water manage-
ment issues. The better approach is to assign responsibility for
these interests to other agencies but provide for DER or water
management input or participation in agency decisionmaking.
Land development regulation provides a good example of how
255. MODEL WATER CODE. supra note 22, at 72-75
256. See supra notes 95-138 and accompanying text
257. See supra notes 235-239 and accompanying texl.
258. See supra notes 225-234 and accompanying text
. LAN at w. L.
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