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