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Publication #FE799

Public Policy and Water in Florida1

Tatiana Borisova and Roy R. Carriker2

Introduction

In other documents in this series, we discussed Florida water resources and their use (EDIS documents FE757 and FE797). This publication describes the state policies and regulations that provide the framework for water resources use and the impact of human activities on water resources in Florida. This document is intended to provide an overview of the history and the current status of Florida's state regulations and policies.

Water Allocation Policy

The early history of water policy in Florida dealt mostly with drainage and flood control, especially in central and southern Florida (SJRWMD 2013a). Between 1907 and 1929, the Everglades Drainage District constructed 440 miles of canals in the Everglades area. In the 1930s, the Hoover Dike around Lake Okeechobee was built to protect the surrounding communities from floods associated with heavy precipitation during tropical storms.

In 1949, the United States Congress authorized the Central and Southern Florida Flood Control Project. Constructed by the United States Army Corps of Engineers over a period of about 15 years, this new infrastructure altered the hydrology of the entire Kissimmee, Okeechobee, and Everglades Basins to provide flood control, drainage, and water supply for all of southern Florida. The Florida legislature created the Central and Southern Florida Flood Control District (later to become the South Florida Water Management District) as the state partner for the United States Army Corps of Engineers. After floods in 1959 and 1960, the Southwest Florida Water Management District also was created. In the late 1960s, both Water Management Districts began requiring permits for water withdrawals.

Prior to 1972, Florida's water law was based in common law doctrines that had evolved through custom and case law in the eastern United States beginning in colonial times. For example, the riparian doctrine guiding water use gave riparian landowners a protected right to withdraw and use water from water bodies adjoining their lands (for additional discussion about the origins of the riparian doctrine, see Lauer [1963]). According to the reasonable use rule, riparian landowners were allowed to use surface water as long as such use did not unreasonably interfere with another riparian's use. Furthermore, according to the ground water reasonable use doctrine, landowners were essentially allowed to extract all the ground water they needed for reasonable use on their overlying land, disregarding the adverse impacts on neighboring lands. The common law approach to settling disputes over water rights was of limited effectiveness because it operated on a case-by-case basis, rather than in a comprehensive manner, and it could be invoked only after damage had occurred. This approach prevented landowners from managing water resources with a forward-looking view.

During the 1950s and 1960s, Frank E. Maloney, a professor and later a dean of the College of Law at University of Florida, conducted extensive research on Florida case law pertaining to surface water, ground water, diffused surface water, and water pollution. Maloney published his findings, including his analysis of deficiencies in the common law dispute-settlement process as the mechanism for water management in Florida's environment of rapid population and industrial growth, in a series of law journal articles (Maloney 1957; Maloney and Ausness 1971a,b; Maloney, Capehart, and Hoofman 1979; Maloney and Sheldon 1957, 1960, 1967, 1968). The capstone of Maloney's work (conducted in collaboration with several of his colleagues) was A Model Water Code, published in 1970 (Maloney, Ausness, and Morris 1972). The code was offered as a model for legislation that would create a form of administrative water law—administered by agencies of the state pursuant to legislated authority and mandates (Ausness 1987). The code integrated codified concepts from the common law water rights doctrines, such as the rule that water uses be reasonable and consistent with the public interest.

When Florida's population began to grow rapidly in the 1950s, policymakers and water managers began to argue for a more cohesive solution to water quality and quantity problems, and for a more integrated regulatory structure at the state level. In 1972, the Florida legislature met during one of Florida's periodic, extended droughts to address growing concerns about deficiencies in the institutional mechanisms for water management. The 1972 legislature responded by enacting the Florida Water Resources Act of 1972.

The Florida Water Resources Act of 1972 (Chapter 373, Florida Statutes) is largely based on Maloney's A Model Water Code. The Act established a form of administrative water law that brought all waters of the state under regulatory control. The Act included provisions for (1) the establishment of a state water regulatory agency and five water management districts (WMDs) that, taken together, encompass the entire state; (2) water planning requirements; and (3) a permit system administered by the WMDs for water use, well construction, and the storage and management of surface water. The Act differed from Maloney's code in that it omitted the sections on water pollution control.

Pursuant to the provisions of the Florida Water Resources Act, the Central and Southern Florida Flood Control District was transformed into the South Florida Water Management District (SFWMD 2013), the largest of the five water management districts, encompassing sixteen counties from Orlando to the Florida Keys. The regulatory programs of the pre-existing Southwest Florida Water Management District (SWFWMD) were expanded from flood control to a more broad-based water resource management. Three more WMDs were created: the St. Johns River Water Management District (SJRWMD), the Suwannee River Water Management District (SRWMD), and the Northwest Florida Water Management District (NWFWMD). Under the Water Resources Act, all five WMDs (Figure 1) were assigned the same mandates and responsibilities.

Figure 1. 

Florida WMDs (Source: SJRWMD 2013a).


[Click thumbnail to enlarge.]

The policymaking body for each water management district is a governing board of nine members who reside within the district (except the SWFWMD, which has 13 board members). The members are appointed by the governor and confirmed by the Florida senate to serve staggered four-year terms.

The WMDs are required by legislation to implement regulatory programs for well construction, alterations to the hydrologic regime (management and storage of surface water), and consumptive water use. Well construction permits may be required prior to installation of a well. The design standards that must be met under conditions of these permits ensure that wells meet standards for safety and durability. In turn, Environmental Resource Permits are required for activities that change surface water flow (e.g., a construction project that will increase stormwater flow, see FDEP 2013b). Consumptive water use permits (or water use permits) allow surface and ground water withdrawals for beneficial use such as public water supply, agricultural and landscape irrigation, industrial use, and power generation (Florida's Water Management Districts Permitting Portal 2013). The permits are required for water withdrawals above certain limits (set for annual average daily withdrawal volumes or well diameters). Applicants for permits must establish that the intended use is a reasonable-beneficial use, that it is consistent with the public interest, and that it does not interfere with any existing permitted water uses, as well as Minimum Flows and Levels set for lakes, wetlands, and aquifers. For more information about the regulations related to the consumptive use permits, see EDIS documents FE594 and FE604.

In addition to their permitting authority, the WMDs have broad powers to maintain, regulate, alter, or construct waterways and appurtenant facilities. An important source of funding for the districts is the ad valorem tax. A constitutional amendment, passed by statewide referendum in 1976, granted ad valorem taxing power to the WMDs (Table 1).

According to the Florida Water Resources Act, statewide authority for water resource management is vested in the Florida Department of Environmental Protection (FDEP 2013a). The FDEP has general supervisory authority over the WMDs and delegates water resources programs to the WMDs wherever possible. The legislative intent was to provide for the continuity of the water management policy, statewide, with regional implementation taking into account the variability of water resources in the state.

The five WMDs were directed to develop regional water supply plans. Specifically, a five-year water resource development work program must describe water supply components to guarantee the water supply needs of existing and future reasonable-beneficial uses for a 1-in-10-year drought event (373.536(6)(a)4, Florida Statutes). Annually, FDEP submits to the governor and the state legislature a report about the status of regional water supply planning (373.709(6), Florida Statutes). Note that Florida's water allocation policy is very different from the policies developed in other southern states (Smolen, Mittelstet, and Harjo 2012). For more information on Florida water laws, as well as a description of citizen involvement opportunities, visit the FDEP web page at http://www.protectingourwater.org/florida_water_story/waterlaw/).

Public Policy for Protection of Water Quality

The Air and Water Pollution Control Act as amended (Chapter 403, Florida Statutes), along with several other pieces of legislation, provides the statutory basis for the regulation of most of the aspects of water quality in Florida. It provides the FDEP with broad powers and duties to accomplish the statutory goal of protecting and improving water quality throughout the state. These include the power to classify surface and ground water bodies according to their most beneficial uses; establish ambient water quality criteria within each classification for various parameters of water quality; develop standards of quality for wastewater discharges; and implement a permit system for the operation, construction, or expansion of any installation that may be a source of water pollution, and require posting bond to operate any such installation.

The Environmental Regulation Commission (ERC), established by the Florida Environmental Reorganization Act of 1975, is empowered to act as an adjudicatory body for final actions taken by the FDEP and is the exclusive standard-setting authority of the FDEP.

The Total Maximum Daily Load (TMDL) program is among the major programs implemented by the FDEP to address water quality issues in the state (FDEP 2013c). The establishment of the TMDL program is grounded in the federal Clean Water Act, which requires states to submit a list of impaired surface waters that do not meet water quality standards, and to establish TMDL limits for these waters. A TMDL is the total amount of pollution that a water body can receive over a certain period of time (usually, a year) and still meet water quality standards. In Florida, the TMDL process includes the identification, verification, and listing of impaired waters; development of the TMDL plan with the initial allocation of allowable loads among polluting sources; and completion of the TMDL implementation plan, referred to as the Basin Management Action Plan (BMAP), with detailed allocations of allowable loads and evaluation of strategies to achieve these allocations. These steps are followed by BMAP implementation, progress monitoring and evaluation, and BMAP modifications if water quality targets are not achieved.

The FDEP conducts TMDL assessments of water bodies, and is also the lead agency in coordinating the implementation of the TMDL program and developing basin plans and suitable measures to reduce pollution from nonagricultural nonpoint (diffused) pollution sources. The FDEP also regulates point source discharges (i.e., discharges through a confined discharge point, such as a pipe) of industrial and domestic wastewater facilities by issuing and enforcing surface water discharge permits. The regulation of point sources of water pollution, as required by the federal Clean Water Act, is called the National Pollution Discharge Elimination System (NPDES).

The Florida Department of Agriculture and Consumer Services (FDACS) is responsible for developing and adopting best management practices (BMPs) manuals, and assisting agricultural producers in implementing BMPs to improve water quality (FDACS 2013). The FDACS, Office of Agricultural Water Policy (OAWP) works to establish best management practices (BMPs) with input from the University of Florida, Institute of Food and Agricultural Sciences (UF/IFAS).

Other State Programs

State policymakers have a menu of policy tools with which to implement water quality and quantity goals. These tools include regulations, taxes and monetary incentives, land acquisition programs, and research and education programs. Agencies, individuals, and organizations also retain recourse in the common law approach to dispute settlement through litigation.

In the main, however, Florida's approach to water management and pollution control is built on a framework of comprehensive regulation. Florida has made significant use of public acquisition and management of land for water management purposes. Research, education, and technical assistance have been used in supplemental ways, often incidental to regulatory approaches. Taxes and other monetary incentives have not been widely used as a mechanism to influence behavior.

Since the 1970s, the Florida legislature has created programs for the restoration and protection of state water quality. These include the following:

  • The Florida Safe Drinking Water Act of 1977 provided for the adoption and enforcement of state primary and secondary drinking water regulations and standards, and allowed the state of Florida to assume primacy for implementing, within the state, provisions of the federal Safe Drinking Water Act of 1976.

  • The Water Quality Assurance Act of 1983 was divided into 12 separate parts, each of which addressed a distinct ground water or hazardous waste problem. The Act addressed the need to compile data relating to water resources; prevent contamination of potable water supplies; plug abandoned artesian wells; regulate the siting of septic tanks; clean up existing contamination sites; prevent pollution from leaking from underground fuel storage tanks; and require the proper treatment, storage, and/or disposal of all hazardous wastes.

  • The State Underground Petroleum Environmental Response Act of 1986 further addressed the need to prevent pollution from leaking from underground storage tanks and to fund the cleanup of existing pollution sites.

  • The Surface Water Improvement and Management Act of 1987 (SWIM) promised state funding to water management districts for remedial measures to restore water quality in surface water bodies that had been contaminated in the past.

  • The Marjory Stoneman Douglas Everglades Protection Act of 1991 combines provisions for taxes, land acquisition, and regulations designed to resolve a complex and controversial lawsuit concerning water quality impacts of irrigation drainage on the Everglades marsh ecosystem in south Florida.

  • The Florida Cooperative Extension Service and the University of Florida's Institute of Food and Agricultural Sciences conduct research, education, and demonstration projects specifically directed at minimizing water quality impacts of agricultural operations. These projects often involve cooperation with FDEP, WMDs, and/or Natural Resource Conservation Service (NRC) of the United States Department of Agriculture (USDA).

  • FDEP, FDACS, WMDs, and USDA have provided both cost-share and technical assistance to farmers to help reduce point-source and nonpoint-source pollution from agriculture operations, especially dairies.

  • FDACS administers a pesticide review and registration program to assure that pesticides labeled for use in Florida have been tested under Florida's conditions and will not pose an unreasonable threat to water quality.

  • The Florida Spring Initiative was established by Governor Jeb Bush in 2001. It provides funding for research, monitoring, education, and landowner assistance to improve spring water quality and flow.

  • Development of a Comprehensive Everglades Restoration Plan (CERP) was required by the federal Water Resources Development Act of 2000. CERP was approved by the United States congress in a later amendment to the Water Resources Development Act. CERP is the framework for the restoration and protection of water resources in central and southern Florida. Plan components include surface water storage reservoirs, water preserve areas, underground water storage, water reuse and conservation, Lake Okeechobee management, and improved water delivery to estuaries (CERP 2013).

Conclusions

This document provides a short overview of the water quality and allocation policies in Florida. A more detailed description of specific regulatory documents is presented in the EDIS series http://edis.ifas.ufl.edu/topic_series_handbook_of_florida_water_regulation (Olexa et al. 2011). More information is available from excellent websites maintained by the resource and environmental management agencies in Florida. Active websites as of December 2013 include the following:

• South Florida Water Management District, West Palm Beach, http://www.sfwmd.gov

• Southwest Florida Water Management District, Brooksville, http://www.swfwmd.state.fl.us

• Saint Johns River Water Management District, Palatka, http://floridaswater.com

• Suwannee River Water Management District, Live Oak, http://www.srwmd.state.fl.us

• Northwest Florida Water Management District, Havana, http://www.nwfwmd.state.fl.us

• Florida Department of Environmental Protection, Tallahassee, http://www.dep.state.fl.us

• Florida Department of Agriculture and Consumer Services, Tallahassee, http://www.freshfromflorida.com/#Water

Each of these agencies maintains service centers at locations remote from the main office locations listed above.

References

Ausness, R.C. 1987. Influence of the model water code on water resources management policy in Florida. Journal of Land Use and Environmental Law 3(1): 1-32. http://ufdc.ufl.edu/WL00001941/00001

Borisova, T. and R. Carriker. 2009. Water Use in Florida. EDIS #797. UF/IFAS Extension, Gainesville, FL. http://edis.ifas.ufl.edu/FE797

Carriker, R. and T. Borisova. 2008. Florida's Water Resources. EDIS #757. UF/IFAS Extension, Gainesville, FL. http://edis.ifas.ufl.edu/FE757

CERP. 2013. Comprehensive Everglades Restoration Plan (CERP) Website. http://www.evergladesplan.org/

FDACS. 2013. Fresh from Florida. Florida Department of Agriculture and Consumer Services, Tallahassee, FL. http://www.freshfromflorida.com/#Water

FDEP. 2013a. Florida Water Program Website. Florida Department of Environmental Protection, Tallahassee, FL. http://www.dep.state.fl.us/water/

FDEP. 2013b. What Is the Environmental Resource Permit (ERP) Program? http://www.dep.state.fl.us/water/wetlands/erp/

FDEP. 2013c. TMDL Website. Florida Department of Environmental Protection, Tallahassee, FL. http://www.dep.state.fl.us/water/tmdl/

Florida Statutes. 2013. Florida Water Resources Act of 1972. Chapter 373, Florida Statutes, Tallahassee, FL. http://www.dep.state.fl.us/water/stormwater/npdes/docs/ch373.pdf

Florida Water Law. 2013. The Laws of Water: A Primer on Florida Water Law. Florida Department of Environmental Protection, Tallahassee, FL. http://www.protectingourwater.org/florida_water_story/waterlaw/

Florida's Water Management Districts Permitting Portal. 2013. http://flwaterpermits.com/

Lauer, T.E. 1963. The common law background of the Riparian Doctrine. Missouri Law Review 28(1):60-107 (Article 7). http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=1798&context=mlr

Maloney, F.E. 1957. Florida's new water resources law. University of Florida Law Review 10(2): 119-153.

Maloney, F.E. and R.C. Ausness. 1971. Administering state water resources: The need for long-range planning. West Virginia Law Review 73(3-4): 209-229.

Maloney, F.E. and R.C. Ausness. 1971. A modern proposal for state regulation of consumptive uses of water. The Hastings Law Journal 22(February): 523-560.

Maloney, F.E., R.C. Ausness, and J.S. Morris. 1972. A Model Water Code: Text and Commentary. Gainesville, FL: University of Florida Press.

Maloney, F.E., Capehart L.C., and R.S. Hoofman. 1979. Florida's “reasonable beneficial” water use standard: Have east and west met? University of Florida Law Review 31(2): 253-283.

Maloney, F.E. and J.P. Sheldon. 1957. Florida's streams—water rights in a water wonderland. University of Florida Law Review 10(2): 294-331.

Maloney, F.E. and J.P. Sheldon. 1960. Florida's lakes: Problems in a water paradise. University of Florida Law Review 13(1): 1-81.

Maloney, F.E. and J.P. Sheldon. 1967. Florida's ground water: Legal problems in managing a precious resource. University of Miami Law Review 21: 751-776.

Maloney, F.E. and J.P. Sheldon. 1968. Diffused surface water: Scourge or bounty? Natural Resources Journal 8: 72-113.

NWFWMD. 2013. Northwest Florida Water Management District Website. http://www.nwfwmd.state.fl.us/

Olexa, M.T., Borisova, T., and Z. Broome. 2011. Handbook of Florida Water Regulation (EDIS documents FE580–617). UF/IFAS Extension, Gainesville, FL. http://edis.ifas.ufl.edu/topic_series_handbook_of_florida_water_regulation

Olexa M.T., Borisova, T., and Z. Broome. 2011. Handbook of Florida Water Regulation: Water Management Districts. EDIS Publication #FE594, University of Florida, Gainesville, FL. http://edis.ifas.ufl.edu/fe594

Olexa M.T. and Z. Broome. 2011. Handbook of Florida Water Regulation: Consumptive Use. EDIS Publication #FE604, University of Florida, Gainesville, FL. http://edis.ifas.ufl.edu/fe604

SFWMD. 2013. South Florida Water Management District Website. http://www.sfwmd.gov/

SJRWMD. 2013a. A Time Line of Water Management in Florida: Perspectives on the History of the St. Johns River Water Management District. http://www.sjrwmd.com/history/1900-1949.html

SJRWMD. 2013b. St. Johns River Water Management District Website. http://floridaswater.com/

Smolen, M.D., Mittelstet, A., and B. Harjo. 2012. Whose Water Is It Anyway? Comparing the Water Rights Frameworks of Arkansas, Oklahoma, Texas, New Mexico, Georgia, Alabama, and Florida. Southern Region Water Program. Report to the Water Policy and Economics Team, Oklahoma State University, Stillwater, OK. http://waterquality.okstate.edu/uploads/ANNC/wq/E-1030%20Water%20(2).pdf

SRWMD. 2013. Suwannee River Water Management District Website. http://www.srwmd.state.fl.us/

SWFWMD. 2013. Southwest Florida Water Management District Website. http://www.swfwmd.state.fl.us/

Tables

Table 1. 

Excerpts from the budgets for Florida's water management districts.

Water Management Districts (WMDs)

Total Budget for 2014

For comparison: Total Budget for 2009

Ad valorem Tax Rate, per $1,000 of Property Value after Deductions

Ad valorem Tax Contribution to Budget

Major Expenditure Items

 

(million $)

(million $)

 

(%)

 

South Florida

622

2,974

0.3279 or 0.4110, depending on basin

43%

Comprehensive Everglades Restoration Plan

         

Operation and maintenance of lands and works

         

District Everglades (including Everglades Agricultural Area A1 flow equalization, restoration strategies, etc)

Southwest Florida

171

377

0.3818

59%

Sustainable alternative water supply development and other water supply management projects

         

Minimum flows and levels establishment and recovery; natural systems conservation and restoration

         

Water quality assessment and planning, maintenance, and improvement

St. Johns River

136

376

0.3283

59%

Springs protection

         

North Florida Regional Water Supply Partnership

         

Upper, Middle, and Lower St. Johns River Basin restoration; Lake Apopka and Upper Ocklawaha River Basin restoration and lake level management

Suwannee River

29

70

0.4143

18%

Ichetucknee Springshed Water Quality Improvement project a

         

Middle Suwannee River Restoration and Aquifer Recharge project

         

Suwannee River Partnership to reduce nutrient loadings in the Suwannee River Basin

Northwest Florida

48

119

0.04

7%

Water supply development

         

Apalachicola River and Bay watershed protection and restoration

         

St. Andrews Bay watershed protection and restoration

* Sources: Based on budget documents found on FWMDs’ websites (SFWMD 2013); SWFWMD (2013); SJRWMD (2013b); SRWMD (2013); NWFWMD (2013).

Footnotes

1.

This is EDIS document FE799, a publication of the Food and Resource Economics Department, UF/IFAS Extension, Gainesville, FL. Published May 2009, revised December 2013. Please visit the EDIS website at http://edis.ifas.ufl.edu.

2.

Tatiana Borisova, assistant professor, and Roy R. Carriker, professor emeritus, and Food and Resource Economics Department, UF/IFAS Extension, Gainesville, FL 32611.


The Institute of Food and Agricultural Sciences (IFAS) is an Equal Opportunity Institution authorized to provide research, educational information and other services only to individuals and institutions that function with non-discrimination with respect to race, creed, color, religion, age, disability, sex, sexual orientation, marital status, national origin, political opinions or affiliations. For more information on obtaining other UF/IFAS Extension publications, contact your county's UF/IFAS Extension office.

U.S. Department of Agriculture, UF/IFAS Extension Service, University of Florida, IFAS, Florida A & M University Cooperative Extension Program, and Boards of County Commissioners Cooperating. Nick T. Place, dean for UF/IFAS Extension.