A Comparison of Florida and California Water Law

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A Comparison of Florida and California Water Law


Subjects / Keywords:
Groundwater ( jstor )
Water rights ( jstor )
Water usage ( jstor )
Spatial Coverage:
North America -- United States of America -- Florida


A Comparison of Florida and California Water Law By: N. Gregory Taylor and Sabina Bhalla
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Box 8, Folder 7 ( Vail Conference, 1997 - 1997 ), Item 16
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A Comparison of Florida and California Water Law

N. Gregory Taylor* and Sabina Bhalla**

This paper will discuss the differences and

similarities between Florida and California water law.

Specifically, the paper will compare and contrast California

and Florida surface and groundwater rights, as well as each

state's water regulatory system.

I. Brief History

California and Florida face similar water allocation

problems based on the geographical make up of each state.

California has over 70 percent of the fresh water in the

state north of Sacramento, but nearly 80 percent of the

demand for water originates in southern California.1

Florida experiences the same geographical dilemma, since

most large cities are located on the coastline, and most of

the fresh water in the state is found in the middle and

northern regions of the state.2

N. Gregory Taylor is the General Counsel at Metropolitan Water
District of Southern California, which employs more than 2,000
personnel and delivers supplemental water to more than 16 million
Southern Californians.
SSabina Bhalla is a law clerk for the Metropolitan Water District's
Legal Department. She is a third year law student at the University of
Southern California Law Center.
1 Christaldi, Sharing the Cup: A Proposal for the Allocation of
Florida's Water Resources (1996) 23 Fla. St. U. L. Rev. 1091-1092.
2 Id. at 1064-1065.

While the geographic water problems are similar, the

history of water law in the two states are quite different.

Florida, and other states east of the Mississippi River

developed the riparian water law system to create efficiency

in land use for agricultural purposes.3 Under this system,

landowners had the right to appropriate and utilize water

adjacent to, or otherwise associated with their property so

long as they do not unreasonably interfere with another

user's right. So, water rights were invariably linked to

the ownership of land and were inherently limited by the

rights of other riparian owners.4

Under a riparian system, all surface and groundwater

were subject to the "reasonable use" standard. This maxim

mandates that one should use their own property so as not to

injure another. The only condition for water use is that it

must be reasonably related to the natural use of the

landowner's overlying land.5 The reasonable use doctrine

provided equal rights to make equal use of the water, but

did not ensure the right of overlying landowners to withdraw

quantities equal to their neighbor's withdrawal.

California and most western states developed their

water laws quite differently. In the West, mining ventures

were the original main users of water, and not agriculture.

SId. at 1068.
4 Id. at 1066.
s Id. at 1068.

The right to use water was considered a property right,

instead of a license granted by the state. The theory

behind water distribution is the prior appropriation

doctrine. Simply stated, whomever used the water had a

right to continue using that source and amount of water.

This practice created an incentive to withdraw as much water

as possible in order to establish rights to that quantity of

water. As the population grew and water became scarce,

courts developed the "beneficial use" standard to prevent

waste. This standard was the western counterpart to the

eastern riparian states' concept of reasonable use.

Beneficial use is seldom defined with precision. In general

it covers the two different, but related concepts of type of

use (such as irrigation or mining) and efficiency.6

Thus, the eastern states developed a system of law

which avoided harming other water users. The western

states, on the other hand, attempted to allocate water

rights based on the type of use and efficiency of that use.

II. Florida

Florida water law is based on the Florida Water

Resources Act. This act created five regional water-

management districts for the entire state drawn on

6 Wright, Water Rights of the 50 States and Territories (1996) p.10

hydrologic boundaries.' All the districts are under the

direction of the Department of Environmental Protection,

which is in charge of developing a Florida water plan and

state water use plan under the Act.8 Accordingly, Florida

has five distinct boards, each formulating independent rules

and procedures for their respective districts. One

criticism of this system is that it leads to regional

instead of centralized water management for the state.9

The districts are given the authority to subdivide

themselves into smaller subdistricts or basins. These

districts may levy taxes, enter into interagency or

interlocal agreements with any water management district,

and are given a considerable amount of policymaking

authority. The districts have governing boards, which are

composed of nine members who are residents of the respective

districts which they serve. Board members are appointed by

the Governor, confirmed by the Senate and serve without


These districts regulate the state's water by

distributing consumptive use permits for ground and surface

water. Since both ground and surface water are regulated by

permits given out by regional Boards, the riparian system is

7 Christaldi at 1073.
8 Wright at 43.
9 Christaldi at 1078.
10 Id.

virtually abolished. Florida essentially erased the

riparian system by requiring all existing water users to

acquire permits within 2 years following the implementation

of the permit system in 1972. If a user failed to apply for

a permit his rights were considered abandoned. The outcome

of this statutory change is that water rights in Florida can

currently only be obtained by permit.11

Permits are distributed based on the reasonable use

doctrine. This doctrine is not the same as the reasonable

use doctrine of the former riparian system, but clearly has

its roots in that early definition. The modern doctrine

requires water use to be reasonable and beneficial and

involve only the amount of water necessary for that

particular use.12 Florida's Water Act delineates a test for

giving out consumptive use permits in part II of chapter

373. First, the use must be a reasonable-beneficial use,

defined as, "the use of water in such quantity as is

necessary for economic and efficient utilization for a

purpose and in a manner which is both reasonable and

consistent with the public interest."13 Second, the use

must not cause harm to others. Finally, the use must be

consistent with the public interest.14 There is no set

11 Dewnsup and Jensen, A Summary Digest of State Water Laws (1973) p.
206-207; Christaldi at 1079.
12 Wright at 43.
13 Christaldi at 1080.
14 Id.

criteria for guiding the Board as to what is a public

interest, so this determination is made on a case-by-case

basis. Water management districts allocate water on a

"first-come, first-serve" basis while nominally meeting the

consumptive use permit criteria.15

Water use permits are subject to statutory

restrictions. Water use permits are issued for specific

amounts of water, for particular uses, subject to

appropriate conditions and reservations, and are of limited

duration, not to exceed 20 years.16 The buying and selling

of these water permits is not allowed in Florida.17 The

only class of users which need not obtain permits are

individuals who use the water for domestic consumption.18

Florida has a highly regulated, yet decentralized

system of water law. There are 5 independent regulatory

boards which distribute permits for both groundwater and

surface water use. The criteria for these permits are

described in the Florida Water Act. Finally, no common law

system is necessary because the riparian system of Florida's

past has been replaced by the statutory permit requirements

for all consumptive uses of water under Florida's Water Act.

15 Id.
16 Id at 208.
17 Wright at 43.
18 Dewnsup and Jensen at 207.

III. California

California water law is exceedingly more complex than

Florida water law. While Florida water law involves the

appropriation of water through permits, California law is

not as well organized or as regulated. The first difference

between California and Florida water law is the structure of

their regulatory bodies.

A. Administration

California has a highly centralized system of

coordinating water management. The entity which is

statutorily in charge of water management is the State Water

Resources Control Board.19 The State Board licenses

appropriative rights and adjudicates disputed water rights.

The State Board is located within the California

Environmental Protection Agency, and consists of five full-

time members appointed for four-year terms. The statutory

appointment categories for the five positions ensure that

the State Board collectively has experience in fields which

include water quality and rights, civil and sanitary

engineering, agricultural irrigation and law.20

State Board activity in California operates at regional

and state levels. The state is divided into nine regions,

each with a regional water quality control board composed of

19 Water Code 174 et. seq.
20 Selvidge, Water Resources Control Board, (1995) 15-Fall Cal. Reg. L.
Rep. 184.

nine members appointed for four-year terms.21 Each Regional

Board adopts Water Quality Control Plans (Basin Plans) for

its area and performs any other function concerning the

water resources of its respective region. Most Regional

Board action is subject to State Board review or approval.

Furthermore, the State Board has quasi-legislative powers to

adopt, amend, and repeal administrative regulations for

itself and the Regional Boards.22 So, unlike Florida's five

independent regional boards, the California regional boards

are heavily controlled by the State Board, which coordinates

the water management planning for the state.

B. Surface Water Rights

The State Board and its regional entities distribute

consumptive use permits for surface water and some types of

ground water. Most surface water rights are governed by the

riparian doctrine and the doctrine of prior appropriation.

As stated before, a riparian right is the right to the use

of water as a result of the ownership of property that

abuts a natural watercourse.23 The riparian water right

gives the owner of a parcel of land, which is contiguous to

a watercourse, the right to divert water for reasonable,

beneficial use on that property. The riparian right does

not create a predetermined amount of water for that piece of

21 Id.
22 Id.
23 Littleworth and Garner, California Water (1995) p. 38.

land. A riparian right is not gained by use, nor generally

lost by disuse, but is part and parcel of the land.24

Ownership of riparian rights are typically acquired by

riparian landowners. In order to obtain the riparian right,

the property must be contiguous to the water course.

Second, the riparian parcel may never become larger than the

original parcel size. Third, the land must be within the

"watershed" of the watercourse. Property is considered

within the watershed if the water used upon the land, or

rain runoff from the land, naturally returns to the original

water source. Riparian water may only be used on or in

connection with any portion of the riparian property, and it

cannot be used off the property.25 Once these rights are

acquired, riparian rights are fully transferable. Thus, two

defining characteristics of riparian land are that: a

riparian right is created if the landowner's property is

adjacent to the watercourse, and a riparian right does not

limit the amount of water one user may use.

The second doctrine governing surface water use is the

doctrine of appropriative rights. This doctrine creates the

right to divert and use a specific quantity of water for

reasonable, beneficial use at a specific location.26 Unlike

the riparian rights doctrine, the historic principle of the

24 Id. at 29.
25 Id. at 33-34.
26 Id.

prior appropriation doctrine is "first in time, first in

right." An individual who first appropriates and uses water

for a reasonable beneficial purpose has a right which is

superior to that of later appropriators.27 Thus, the

appropriative right doctrine allows any user to appropriate

a limited amount of water for use at a specific location.

Before 1914, appropriative water rights could be

acquired in either one of two ways. First, an approriative

water right could be acquired by taking water and putting it

to reasonable use. Second, the water user could post a

notice with the county recorder as to the amount of water to

be diverted and the place of use.28 The amount of water

used could not exceed the amount stated in the notice. The

priority for the entire amount of water related back to the

time the appropriation began. These rights are still

retained after 1914, but after 1914 the user has to apply to

the state for a permit to obtain an appropriative right for

surface water.

All water in excess of the reasonable and beneficial

needs of lawful users, including riparians, are considered

unappropriated waters and are available for appropriation

for beneficial use. The ability to appropriate surface

water is very broad. Individuals, firms, associations,

27 Id.; Water Code 100.
28 Id. at 41, see also Miller & Lux v. Enterprise Canal & Land Co.
(1915) 169 Cal. 415.

organizations, partnerships, state and federal agencies and

municipal corporations are all entitled to appropriate

water.29 However, water may not be appropriated if the

purpose of the appropriator is to leave the water in the

watercourse, instead of using it for consumptive use.30

Limits exist on appropriative water rights. First,

there is a hierarchy of rights for surface water. For

example, domestic uses are considered higher than others.

Other limits exist based on the timing of recordation of the

right. In general, the party who first posts and records a

notice for use prevails.31

All surface water rights acquired after 1914 are

controlled by permit, but only water which has never been

appropriated under the prior appropriation doctrine or the

riparian doctrine is available for a permit.32 Also, water

which had been appropriated and subsequently abandoned may

be appropriated by a permit. Surface water permits are

issued by the California State Water Resources Control

Board.3 In order to establish an appropriative right, the

party seeking the right must show due diligence. Due

diligence depends on many factors, such as the type of

terrain, climate, construction difficulties, time

29 Id. at 44; Water Code 106.5, 1203, 1460-1464.
30 Id.
31 Id. at 45.
32 Id. at 115.
33 Garner et. al., Institutional Reforms in California Groundwater Law,
(1994) 25 Pac. L.J. 1024.

requirements, and the time that water can be used.

Furthermore, if there is a conflict between two parties, the

Board must grant the water right to that entity with a

higher priority. For example, municipalities have a higher

priority in the use of water.3

Another restriction on diversions of surface water is

the public trust doctrine. The public trust doctrine can

apply to ground water as well as surface water, and has been

applied to surface water recently in the Mono Lake case. The

public trust doctrine posits that certain property should

not be owned by private parties but should be held by the

government for the benefit of all its citizens.35 This

concept of common ownership historically encompassed

unlimited public rights for commerce, fishing and

navigation. The California Supreme Court has since applied

the public trust doctrine beyond its traditional purposes to

include environmental and aesthetic purposes, such as the

protection of inland waters.36 The inherent tension in the

public trust doctrine is between the ability of the state to

protect trust values and the ability of the state to dispose

of trust resources.

34 Littleworth and Garner at 46.
35 Sax, The Public Trust Doctrine in Natural Resource Law: Effective
Judicial Intervention (1970) 68 Mich.L.Rev. 471.
36 People v. Gold Run Ditch & Mining Co. (1884) 66 Cal. 138, 151-152.

This tension is illustrated in the Mono Lake case.3

In that situation, permits were given to the Los Angeles

Department of Water and Power (LADWP) to withdraw water from

Mono Lake and take that water to the City of Los Angeles

through a 300 mile aqueduct. An environmental group sued

after the ecosystem surrounding the lake was negatively

affected, and claimed that Mono Lake was under the public

trust of California. The California Supreme Court found

that both the appropriative water rights system and the

public trust doctrine had to be accommodated. The court

held that parties acquiring rights in trust property hold

those rights subject to the trust and cannot assert a vested

right to use those rights in a manner harmful to the

trust.38 So, both groundwater and surface water allocations

are subject to the public trust doctrine, and consumptive

uses will be balanced against the public trust doctrine.

A judicial restriction on water rights is found through

the pueblo water right. The pueblo water right extends to

the use of all surface and ground waters that flowed through

the original pueblo. The pueblo is the area which was

considered a city by Mexico or Spain before the land was

claimed by the State of California.39 The city as the

successor of the pueblo has the prior and paramount right to

37 Nat'1 Audubon Society v. Superior Ct. (1983) 33 Cal.3d 419.
38 Id. at 437.
39 Hutchins at 258.

use these waters.40 While the historical validity of the

pueblo water right is suspect, the California Supreme Court

continues to allow cities to claim water rights based on the

pueblo water right allocation.41

C. Groundwater Rights

Unlike surface water, all types of groundwater in

California are not regulated by a statewide permit system.

Groundwater is divided into three categories: the underflow

of a surface stream, a definite underground stream and

percolating waters. The underflow of a surface stream

consists of water in the soil, sand, and gravel in the bed

of a stream in its natural state and essential to its

existence. An underground stream is a known and definite

channel in a subterranean watercourse. All water other

than the underflow of a surface stream, or an underground

stream is considered percolating water. Both the underflow

of a surface stream and all underground streams are governed

by the same laws, and permit requirements of surface

water.42 Percolating water is not governed by permits.

The doctrine of reasonable use, which is set forth in

Article X, section 2 of the California Constitution, limits

40 Feliz v. Los Angeles (1881) 58 Cal. 645, 652-653.
41 City of Los Angeles v. City of San Fernando (1975) 14 Cal.3d 199.
The pueblo right was allegedly derived from Spanish and Mexican law.
The defendants argued that this right was invalid because it was based
on erroneous translations and this right had never exited in Spanish or
SMexican law. The court upheld the pueblo water right irrespective of
this fact.
42 Id. at 48.

a groundwater user to the amount of water reasonably needed

for beneficial purposes. The governing doctrine for

percolating groundwater is the correlative rights doctrine,

which gives each overlying property owner a common right to

the reasonable, beneficial use of the basin supply over

land. The correlative doctrine allows all land over a

groundwater basin equal right to the water, and equal shares

in any water shortages.43 The upshot of these doctrines is

that most property owners with land overlying groundwater

can simply drill wells and extract water.

A landowner whose land is directly over the groundwater

is considered to have a higher claim to the water than a

user whose land is not overlying the water. The rationale

for this rule is that the water used away from the overlying

property cannot return for further use, thus depleting the

waters underlying the land.4

Because the permit system is less developed for ground

water than surface water, other regulatory mechanisms were

created by the Legislature and the courts to control ground

water use. The first mechanism is found in the judiciary's

use of adjudication. All water rights, except percolating

water rights are subject to adjudication.45 In general, the

adjudicatory situations involve a physical solution to the

43 Garner et. al. at 1024.
44 Id. at 1025.
'5 Hutchins, The California Law of Water Rights (1956) p. 494.

water allocation problem through the determination of water

rights. The typical case involves a physical solution to

prevent a junior water right holder from taking too much

ground water from a prior right holder."4 The trial court

retains continuing jurisdiction over the action in order to

effect the court's declaratory judgment and physical

solutions to the water controversies.47 According to the

courts, jurisdiction must be retained to safeguard the

rights of the parties.48 The retention of continuous

jurisdiction can last decades. To illustrate this point,

there are currently 13 adjudicated groundwater basins in

California and some of these basins were created decades

ago.49 Therefore, the courts can adjudicate all groundwater

rights, except percolating water rights, and retain

continuing jurisdiction over declaratory decrees in order to

protect the rights of the parties.

Recently the California Legislature created a second

groundwater governing mechanism by authorizing the formation

of local groundwater districts through Assembly Bill 3030.50

46 See Montecito Valley Water Co. v. Santa Barbara (1904) 144 Cal. 578,
Eckel v. Springfield Tunnel & Development Co. (1927) 87 Cal.App. 617.
r Hutchins at 500.
48 Peabody v. Vallejo (1935) 2 Cal.2d 351, 383-384.
49 Garner et al. at 1043 fn 72. The adjudicated basins are: Siskiyou
County (the Scott River Stream System and Scott River Valley), Kern
County (Tehachapi Basin), Cummings Basin in San Bernardino and Ken
Counties, Los Angeles County's Central Basin, West Basin, Upper Los
Angeles River Area, Raymond Basin and Main San Gabriel Basin, San
Bernardino County's Warren Valley Basin, Cucamonga Basin and San
Bernardino Basin Area, Chino Basin in Riverside County, and the
recently added Mojave Basin.
50 Littleworth and Garner at 57.

In general, any local agency whose service area includes a

groundwater basin may adopt or implement a groundwater

management plan. However, these statutes do not authorize

the local agency to make a binding determination of the

water rights of any person or entity. The AB 3030 provision

requiring local agencies to work cooperatively to manage

groundwater within their jurisdiction has already been


A third mechanism allows groundwater governance by

county ordinance. In Tehama County, a county ordinance

regulating pumping practices and the uses of groundwater was

held invalid for failure to comply with the aforementioned

provision of AB 3030.51 This decision was overturned by the

appellate court because the court did not find that the

county regulation was preempted by AB 3030.52 It is unclear

as to what the impact of this decision will be on the

effectiveness of AB 3030, but several counties have followed

Tehama's lead and enacted groundwater ordinances.

Thus, the centralized State Board and the nine regional

boards may allocate permits for nonappropriated or abandoned

water based on various criteria. The doctrines of prior

appropriation and the riparian doctrine are both still used

in California to create valid water rights. The judiciary

51 Baldwin v. County of Tehama (1994) 31 Cal.App.4th 166.
52 Id.

and Legislative branches continue to develop refine water

policies such as the public trust doctrine, the pueblo water

rights doctrine, the use of county ordinances and the

creation of special districts to regulate groundwater use.

IV. Conclusion

Florida and California have developed different methods

of managing and distributing surface and groundwater.

Florida has a highly decentralized water management system,

with the 5 regional boards acting alone according to each

region's needs. There are several advantages to Florida's

regulatory system. The most obvious advantage is that the

system is easy to administer and understand.

California, on the other hand, is highly centralized,

with each of the 9 regional boards reporting to and

following the direction of the State Water Resources Board.

California does not follow the Florida permit system.

California instead relies on a complex mix of surface and

groundwater permit requirements, as well as rights earned,

and still valid, under the prior appropriation doctrine and

the riparian doctrine. The advantage to California's

complex system is its ability to address potential shortages

at a statewide, rather than a regional, level.

Overall, even though both states are geographically

(ON similar coastal state with most of the water located far

from the main water users, both have created dramatically

different water management and distribution systems.