[*] The author wishes to thank Donna R. Christie, Will Murphy, and Molly A. Langer for their comments on earlier drafts of this Comment. Return to text.

[1] In the 40 years between 1950 and 1990, the population in Florida increased nearly 370 percent. Memorandum from Becky Everhart, Chief Legislative Analyst, Fla. H.R. Select Comm. on Water Policy, to Committee Members, Fla. H.R. Select Comm. on Water Policy (Sept. 11, 1995) (on file with comm.) [hereinafter Everhart Memo]. Florida's population in 1950 was 2.77 million; in 1990, it was 12.94 million. 1990 FLORIDA CENSUS HANDBOOK 3 (1994) [hereinafter CENSUS]. Return to text.

[2] DEPARTMENT OF THE INTERIOR, U.S. GEOLOGICAL SURVEY, WATER WITHDRAWALS IN FLORIDA DURING 1990, WITH TRENDS FROM 1950 TO 1990, OPEN- FILE REPORT 92-80 (on file with dep't). Return to text.

[3] Everhart Memo, supra note 1, at 1. Consumptive use is defined as "any use of water which reduces the supply from which it is withdrawn or diverted." FLA. ADMIN. CODE ANN. r. 62-40.210(2) (1995). Water is defined as "any and all water on or beneath the surface of the ground or in the atmosphere, including natural or artificial watercourses, lakes, ponds, or diffused surface water and water percolating, standing, or flowing beneath the surface of the ground, as well as all coastal waters within the jurisdiction of the state." FLA. STAT. § 373.019(8) (1995). To date, the Florida Water Management Districts have indicated through their rules that they do not regulate the consumptive use of seawater. See, e.g., SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, WATER USE PERMIT INFORMATION MANUAL B-xiii (1994) (defining consumptive use as "[a]ny use of fresh or saline water which reduces the supply from which it is withdrawn or diverted") [hereinafter PERMIT MANUAL]. Return to text.

[4] See Deseret Ranches of Fla., Inc. v. St. Johns River Water Management Dist., 406 So. 2d 1132, 1139 (Fla. 5th DCA 1981); Richard G. Hamann, Consumptive Water Use Permitting, in FLORIDA ENVIRONMENTAL AND LAND USE LAW 10-1, 10-3 (1993); Andrew A. Dzurik, Water Use and Public Policy in Florida, in FLORIDA'S WATER FUTURE: CRISIS OR OPPORTUNITY? 17, 17 (1987); Richard C. Ausness, The Influence of the Model Water Code on Water Resources Management Policy in Florida, 3 J. LAND USE & ENVTL. L. 1, 3 (1987) (citing F. MALONEY ET AL., WATER LAW AND ADMINISTRATION—THE FLORIDA EXPERIENCE § 11 (1968)). Return to text.

[5] EDWARD FERNALD & DONALD J. PATTON, WATER RESOURCES ATLAS OF FLORIDA 12 (1984). The state receives an average of 150 billion gallons per day (bgd) in rainfall and 25 bgd inflow from Georgia and Alabama. Id. Return to text.

[6] Aquifers are defined as "[w]ater-bearing zones under the earth's surface capable of receiving, storing, and transmitting water." Village of Tequesta v. Jupiter Inlet Corp., 371 So. 2d 663, 665 (Fla.) ("Most aquifers in Florida are cavernous limestone or sand and shale beds. Aquifers are separated by relatively impervious layers of shales and clays which are called aquicludes."), cert. denied, 444 U.S. 965 (1979). For a discussion of aquifers, see Paul R. Gougelman III, The Partnership of Water and Land Management, in FORGING PARTNERSHIPS IN LAND AND WATER MANAGEMENT: THE CENTRAL FLORIDA EXPERIMENT 4 (1987); David J.L. Blatt, From the Groundwater Up: Local Land Use Planning and Aquifer Protection, 2 J. LAND USE & ENVTL. L. 107, 110 (1986). Return to text.

[7] FERNALD & PATTON, supra note 5, at 39. Return to text.

[8] Everhart Memo, supra note 1, at 1. Return to text.

[9] FLORIDA STATISTICAL ABSTRACT 283 (1994). Return to text.

[10] Id. Of that 7.5 billion gallons of fresh water, 2.8 billion gallons are drawn from surface water and the remaining is drawn from groundwater. Id. The difference between the total water used per day and the freshwater used per day results from saline water use. Id. Return to text.

[11] CENSUS, supra note 1, at 532. Those cities are West Palm Beach, Boynton Beach, Delray Beach, Boca Raton, Coral Springs, Davie, Deerfield Beach, Ft. Lauderdale, Hollywood, Lauderhill, Margate, Miramar, Pembroke Pines, Plantation, Pompano Beach, Sunrise, Tamarac, North Miami Beach, North Miami, Hialeah, Miami Beach, Coral Gables, and Miami. Id. Return to text.

[12] Tampa is the third largest city and its neighbor St. Petersburg is the fourth. Id. Return to text.

[13] Sidney F. Ansbacher & Doug Brown, A Proposal for Regional Water Management Districts To Regulate Consumptive Use in Minnesota, 10 HAMLINE J. PUB. L. & POL'Y 235, 246 (1989). The aquifers in these coastal regions tend to register greater concentrations of brackish water, tainted by seawater intrusion from the Atlantic Ocean or the Gulf of Mexico; such water is a viable option for some consumptive uses, but it is nonpotable without expensive reverse osmosis treatment or desalination. FLA. H.R. COMM. ON NATURAL RESOURCES, ANALYSIS AND MODELING OF WATER SUPPLY ISSUES FOR THE REGION BOUNDED BY HILLSBOROUGH, MANATEE, PASCO, AND PINELLAS COUNTIES 30, 35 (1994) (on file with comm.) [hereinafter NATURAL RESOURCES REPORT]. Return to text.

[14] See Ausness, supra note 4, at 3. Return to text.

[15] CHARLES J. MEYERS ET AL., WATER RESOURCE MANAGEMENT 2 (1988). Meyers notes that "increasingly serious water supply problems are ironically being felt in the humid eastern states where political inattention to water needs and decentralized allocation systems have allowed growth in demand to overtake available supplies." Id. This Comment makes an argument that the same type of decentralized allocation system has hindered the most efficient allocation of water in Florida. Return to text.

[16] 1972, Fla. Laws ch. 72-299 (codified as amended at FLA. STAT. §§ 373.012-.197 (1995)). Return to text.

[17] FLA. STAT. § 373.016(2)(a) (1995). Return to text.

[18] FRANK E. MALONEY ET AL., A MODEL WATER CODE (1972) [hereinafter MODEL WATER CODE]. Proofs of the book were made available to the Legislature before publication. Hamann, supra note 4, at 10-3. Return to text.

[19] Ausness, supra note 4, at 3. Return to text.

[20] Hamann, supra note 4, at 10-14. For a thorough, yet early discussion of the common law traditions, see JOHN NORTON POMEROY, A TREATISE ON THE LAW OF WATER RIGHTS (1893). Return to text.

[21] Some sources note that "the dichotomy is not absolute," indicating that Florida's current system does borrow from the prior appropriation system of western states. Hamann, supra note 4, at 10-4. Return to text.

[22] JOSEPH L. SAX & ROBERT H. ABRAMS, LEGAL CONTROL OF WATER RESOURCES 154, 158-62 (1986). This system is said to have grown out of the English common law. NATURAL RESOURCES REPORT, supra note 13, at 9. Return to text.

[23] City of St. Petersburg v. Southwest Florida Water Management Dist., 355 So. 2d 796, 798 (Fla. 2d DCA 1977); L.M. Buddy Blain, A History of Water Management—An Overview, in WATER USE—DIFFICULT DECISIONS FOR THE 90'S 1.1, 1.12 (1988); Hamann, supra note 4, at 10-4. "In its earliest form, the natural flow doctrine, each riparian owner was entitled to receive the full flow of the stream undiminished in either quality or quantity." Hamann, supra note 4, at 10-4. However, this early rule was modified during the Industrial Revolution to allow for the degradation of water. Id. The reasonable use rule was thus created during this period. Id. Return to text.

[24] See, e.g., Valls v. Arnold Ind., Inc., 328 So. 2d 471, 473 (Fla. 2d DCA 1976) (stating that "water[s] . . . which lie beneath the surface are valuable property rights which cannot be divested without due process of law and payment of just compensation"), overruled, Village of Tequesta v. Jupiter Inlet Corp., 371 So. 2d 663 (Fla. 1979). Return to text.

[25] FLA. STAT. § 373.016(10) (1995). Return to text.

[26] Id. § 373.016(9). The current statutory definition of groundwater does not distinguish between those waters that are flowing through known and definite channels and those that are not. Id. However, this was not the case under the earlier common law of riparian rights. NATURAL RESOURCES REPORT, supra note 13, at 9. Return to text.

[27] Sayles v. Mitchell, 245 N.W. 390 (1932) ("Legally defined, a riparian owner is an owner of land bounded by watercourse or lake or through which a stream flows."). This definition, excluding groundwater from the scope of riparian rights, was made "[b]efore much was understood about hydrological cycles and the interconnectedness between groundwaters and surface waters." NATURAL RESOURCES REPORT, supra note 13, at 9. Return to text.

[28] Percolating waters are defined in Black's Law Dictionary as follows:

Percolating Waters. Those which pass through the ground beneath the surface of the earth without any definite channel, and do not form part of the body or flow, surface or subterranean, of any water-course. They may be either rain waters which are slowly infiltrating through the soil or waters seeping through the banks or bed of a stream, and which have so far left the bed and the other waters as to have lost their character as a part of the flow of that stream. Those which ooze, seep or filter, through the soil beneath the surface without a defined channel, or in a course that is unknown and not discoverable from surface indications without excavation for the purpose.
BLACK'S LAW DICTIONARY 1427 (6th ed. 1991) (citation omitted). Return to text.

[29] Nourse v. Andrews, 255 S.W. 84 (1923).

The only classification of subterranean waters made by the common law is based on the method of transmission through the ground, and is that they belong to one of only two classes, namely: (1) Underground currents of water flowing in known and defined channels or water courses. (2) Water passing through the ground beneath the surface in channels which are undefined and unknown. The rights of the waters of the first class are governed by the rule of law governing surface streams, while the waters of the second class are treated as mere percolations, and, therefore, as belonging to the owner of the soil wherein they are found.
Hamann, supra note 4, at 10-4. Return to text.

[30] Nourse, 255 S.W. at 84. Return to text.

[31] Tampa Waterworks Co. v. Cline, 20 So. 780, 782 (Fla. 1896). Return to text.

[32] Hamann, supra note 4, at 10-4. Return to text.

[33] 152 Eng. Rep. 1235 (1843). Return to text.

[34] Village of Tequesta v. Jupiter Inlet Corp., 371 So. 2d 663, 666 (Fla. 1979); MALONEY ET AL., supra note 4, at 155; Labruzzo v. Atlantic Dredging & Const. Co., 54 So. 2d 673, 675 (Fla. 1951). Return to text.

[35] NATURAL RESOURCES REPORT, supra note 13, at 9. Return to text.

[36] See, e.g., Koch v. Wick, 87 So. 2d 47, 48 (Fla. 1956); Labruzzo, 54 So. 2d at 675. For a discussion of the reasonable-beneficial use doctrine, see Phyllis Park Saarinen & Gary D. Lynne, Getting the Most Valuable Water Supply Pie: Economic Efficiency in Florida's Reasonable-Beneficial Use Standard, 8 J. LAND USE & ENVTL. L. 491 (1993). Return to text.

[37] See Village of Tequesta, 371 So. 2d at 666; Koch, 87 So. 2d at 47; Cason v. Florida Power Co., 76 So. 535, 536 (Fla. 1917); Bassett v. Salisbury Mfg. Co., 43 N.H. 569, 574, 579 (1862); see also City of St. Petersburg v. South West Florida Water Management Dist., 355 So. 2d 796, 798 (Fla. 2d DCA 1977). Return to text.

[38] NATURAL RESOURCES REPORT, supra note 13, at 10; Finley v. Teeter Stone, Inc., 248 A.2d 106, 111-12 (Md. App. 1968). The rule also applied to percolating waters. Cason, 76 So. at 536; Koch, 87 So. 2d at 48. Return to text.

[39] Taylor v. Tampa Coal Co., 46 So. 2d 392, 394 (Fla. 1950); Lake Gibson Land Co. v. Lester, 102 So. 2d 833, 834-36 (Fla. 2d DCA 1958). Return to text.

[40] RESTATEMENT (SECOND) OF TORTS § 850A (1979). The Restatement lists a number of factors to be considered in determining reasonableness. These include:

(1) the purpose of the use; (2) the suitability of the use to the watershed or lake; (3) the economic value of the use; (4) the social value of the use; (5) the extent and the amount of the harm it causes; (6) the practicality of avoiding the harm by adjusting the use or method of use of one proprietor or the other; (7) the practicality of adjusting the quantity of water used by each proprietor; (8) the protection of existing values of water uses, land, investments and enterprises; and (9) the justice of requiring the user causing harm to bear the loss.
Id. Return to text.

[41] Village of Tequesta, 371 So. 2d at 667. Return to text.

[42] Hamann, supra note 4, at 10-5. Return to text.

[43] WILLIAM GOLDFARB, WATER LAW 25 (2d ed. 1988) ("Comprehensive record-keeping and water supply planning are impossible in a pure riparian state."). Return to text.

[44] Id. Return to text.

[45] Id. Return to text.

[46] Hamann, supra note 4, at 10-5. Return to text.

[47] NATURAL RESOURCES REPORT, supra note 13, at 10. The administrative system that Florida currently employs relies somewhat on administrative hearings for resolving disputes between competing uses. Return to text.

[48] MEYERS ET AL., supra note 15, at 238-43. Return to text.

[49] Of course, such a right is restricted by law. Territory of Montana v. Drennan, 1 Mont. 41 (1868). Return to text.

[50] NATURAL RESOURCES REPORT, supra note 13, at 10. Return to text.

[51] Hamann, supra note 4, at 10-5; NATURAL RESOURCES REPORT, supra note 13, at 11; Saarinen & Lynne, supra note 36, at 499; DAVID H. GETCHES, WATER LAW IN A NUTSHELL 5 (1984). Return to text.

[52] Hamann, supra note 4, at 10-5; NATURAL RESOURCES REPORT, supra note 13, at 11; GETCHES, supra note 51, at 5, 79. Return to text.

[53] Hamann, supra note 4, at 10-5. Return to text.

[54] NATURAL RESOURCES REPORT, supra note 13, at 11 (emphasis added). Return to text.

[55] Hamann, supra note 4, at 10-5. Return to text.

[56] Saarinen & Lynne, supra note 36, at 500. It has been argued that without the development of the beneficial use standard in western states, prior users could have legally diverted all of the water from a water course with no regard for the conservation of that resource. NATURAL RESOURCES REPORT, supra note 13, at 11. The development of the beneficial use standard in those western states gave those whose rights were subjugated to prior users "recourse to ensure that water was not wasted." Id. In Florida, uses of water that were existing at the time the Water Resources Act was passed in 1972 were subject to alternate permitting criteria. FLA. STAT. § 373.226 (1995). Return to text.

[57] Frank E. Maloney et al., Florida's "Reasonable Beneficial" Water Use Standard: Have East and West Met?, 31 U. FLA. L. REV. 253, 265 (1979). For a recent discussion on western water law, see A. Lynne Krogh, Water Right Adjudications in the Western States: Procedures, Constitutionality, Problems & Solutions, 30 LAND & WATER L. REV. 9 (1995); Charles F. Wilkinson, Aldo Leopold and Western Water Law: Thinking Perpendicular to the Prior Appropriation Doctrine, 24 LAND & WATER L. REV. 1 (1991). Return to text.

[58] NATURAL RESOURCES REPORT, supra note 13, at 11 ("For example, the holder of a superior claim could use all the water in a stream to the detriment of a later claimant, whose use would have produced more wealth per unit of water."). Return to text.

[59] GOLDFARB, supra note 43, at 40. Return to text.

[60] Hamann, supra note 4, at 10-5. Return to text.

[61] Id. Instream use is defined as "[a]ny use of water that does not require diversion or withdrawal from the natural watercourse, including in-place uses such as navigation and recreation as well as power generation that requires a continuous flow." Elizabeth Slusser Kelly, Glossary of Water-Related Terms, in WATER AND WATER RIGHTS 885, 919 (1991); see also James W. Johnston, Environmental Significance of Instream Flows, 17 ST. MARY'S L.J. 1297 (1986); Gregory J. Clifton & Paul J. Zilis, Recent Developments in Appropriations for Instream Uses, 22 COLO. LAW. 987 (1993). Return to text.

[62] GOLDFARB, supra note 43, at 41. Return to text.

[63] For a discussion of the evolution of Florida's common law regulation of water rights, see Village of Tequesta v. Jupiter Inlet Corp., 371 So. 2d 663 (Fla. 1979). Return to text.

[64] 1913, Fla. Laws ch. 6458. Return to text.

[65] NATURAL RESOURCES REPORT, supra note 13, at 11. Return to text.

[66] Id. at 11-12.

Florida enacted its first major multipurpose water management district, the Central and Southern Florida Flood Control district, in 1949 in response to a major flood which had occurred two years earlier. Other multi-purpose districts were created in the mid-1950s, but no single entity was able to supervise or oversee their projects and operations.
Id. Return to text.

[67] Id. at 12. The task of this commission was to determine "whether Florida needed a statewide framework for comprehensively dealing with water management, and if so, how it would be established." Id. Return to text.

[68] FLA. STAT. §§ 373.071-.251 (1967) (repealed by 1972, Fla. Laws ch. 72-299). Return to text.

[69] Ansbacher & Brown, supra note 13, at 246. Return to text.

[70] NATURAL RESOURCES REPORT, supra note 13, at 12. Return to text.

[71] Id. Return to text.

[72] Ausness, supra note 4, at 9; Ansbacher & Brown, supra note 13, at 246.

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.
Ausness, supra note 4, at 9 n.63 (citing FLA. STAT. § 373.141(1) (1967)). Return to text.

[73] NATURAL RESOURCES REPORT, supra note 13, at 12. Return to text.

[74] Ausness, supra note 4, at 3. Return to text.

[75] NATURAL RESOURCES REPORT, supra note 13, at 12; Frank E. Maloney & Richard C. Ausness, A Modern Proposal for State Regulation of Consumptive Uses of Water, 22 HASTINGS L.J. 523, 534 (1971) (stating that the reasonable-beneficial use standard of the Model Water Code "is an attempt to combine the best features of the reasonable use and beneficial use rules"). Return to text.

[76] Ausness, supra note 4, at 16-18; Frank E. Maloney & Richard C. Ausness, Water Quality Control: A Modern Approach to State Regulation, 35 ALBANY L. REV. 28 (1970) (introducing chapter five of the proposed Model Water Code as a basis for a state program of water quality control). Return to text.

[77] Ausness, supra note 4, at 18. Return to text.

[78] 1972, Fla. Laws ch. 72-299 (codified as amended at FLA. STAT. §§ 373.012-.197 (1995)). Return to text.

[79] NATURAL RESOURCES REPORT, supra note 13, at 12. Return to text.

[80] 1972, Fla. Laws ch. 72-299 (codified as amended at FLA. STAT. §§ 373.012-.197 (1995)). Return to text.

[81] FLA. STAT. § 373.016(3) (1995). This occurred primarily as a result of the Legislature's recognition that the water resource problems of the state vary from region to region, both in magnitude and complexity. Id. Return to text.

[82] Id. § 373.069. The statute originally created five permanent districts and a sixth temporary district. Summary: 1976 Water Resources Legislation, SB 1274. In 1976, the sixth district was incorporated into the St. Johns River Water Management District. 1976, Fla. Laws ch. 76-243 (codified as amended at FLA. STAT. § 373.069 (1995)); see also Deseret Ranches of Florida, Inc. v. St. Johns River Water Management Dist., 406 So. 2d 1132, 1135 (Fla. 5th DCA 1981); Hamann, supra note 4, at 10-3; Richard Hamann & Jeff Wade, Regulating Agricultural Surface Water Management in Florida: The Implementation of Chapter 373, Part IV, in WATER RESOURCES LAW: PROCEEDINGS OF THE NATIONAL SYMPOSIUM ON WATER RESOURCES LAW 225, 228 (1986); Donna R. Christie, Forward, in FLORIDA'S WATER FUTURE: CRISIS OR OPPORTUNITY? ii (1987). Return to text.

[83] Ansbacher & Brown, supra note 13, at 248; Donna R. Christie, Florida, in WATER AND WATER RIGHTS 289 (1991 & Supp. 1995). These districts are the Northwest Florida, Suwannee River, St. Johns River, Southwest Florida, and South Florida water management districts. Ansbacher & Brown, supra note 13, at 12; Christie, supra note 82, at 289. Return to text.

[84] FLA. STAT. § 373.0693(1)(a) (1995). Return to text.

[85] Hamann & Wade, supra note 82, at 228. Return to text.

[86] The statute reads: "The respective basins may, pursuant to s. 9(b), Art. VII of the State Constitution, by resolution request the governing board of the district to levy ad valorem taxes within such basin." FLA. STAT. § 373.0697 (1995); see infra notes 148-162 and accompanying text. Return to text.

[87] FLA. STAT. § 373.026 (1995). In 1993, all of the existing legal duties and programs of the Department of Environmental Regulation and the Department of Natural Resources were transferred to the Department of Environmental Protection. 1993, Fla. Laws ch. 93-213, § 3(3). Return to text.

[88] 1975, Fla. Laws ch. 75-22 (codified as amended at FLA. STAT. § 403.801 (1995)); see also Joseph W. Landers, Jr. et al., Environmental Regulatory Streamlining: A State Perspective, 2 J. LAND USE & ENVTL. L. 1, 5 (1986). Return to text.

[89] 1993, Fla. Laws ch. 93-213; Christie, supra note 82, at 289; see also Bruce Weiner & David Dagon, Wetlands Regulation and Mitigation After the Florida Environmental Reorganization Act of 1993, 8 J. LAND USE & ENVTL. L. 521 (1993). Return to text.

[90] FLA. STAT. § 373.026 (1995). Return to text.

[91] Christie, supra note 82, at 289. Return to text.

[92] NATURAL RESOURCES REPORT, supra note 13, at 13. Return to text.

[93] See, e.g., 1993, Fla. Laws ch. 93-213 (codified at FLA. STAT. § 373.441 (1995); Thomas T. Ankersen & Richard Hamann, Ecosystem Management and the Everglades: A Legal and Institutional Analysis, 11 J. LAND USE & ENVTL. L. 473, 484 (1996); Christie, supra note 82, at 290. For instance, permitting was transferred to the water management districts, and all permits involving dredging and filling of wetlands impacts, management and storage of surface waters, including stormwater control, and the alteration of mangroves were consolidated into a single permit. See, e.g., FLA. STAT. § 373.427 (1995); FLA. ADMIN. CODE ANN. r. 62-330 (1995). However, in 1996, some authority was taken back from the water management districts. See Donna R. Christie & Ronald A. Christaldi, Florida, in WATER AND WATER RIGHTS (Supp. 1996) (forthcoming). CS/HB 2385 and CS/HB 2399 give the Executive Office of the Governor the authority to disapprove, in whole or in part, the budget of each water management district. Id. Return to text.

[94] FLA. STAT. § 373.073 (1995). Return to text.

[95] Id. § 373.073(2) Return to text.

[96] Id. § 373.073(3) ("The chairman and members of the board shall receive no compensation for services as such . . . ."). Return to text.

[97] Hamann, supra note 4, at 10-3. Return to text.

[98] Christie, supra note 82, at 290 ("Because each district also has independent rule-making authority to implement these programs, rules and procedures may vary from district to district."). Return to text.

[99] Frank E. Maloney & Richard C. Ausness, Administering State Water Resources: The Need for Long Range Planning, 73 W. VA. L. REV. 209, 213 (1971) ("The state administrative structure must be constituted so that planning responsibility is concentrated within one agency."); Ausness, supra note 4, at 13 ("The drafters of the Model Water Code wanted to establish a regulatory structure at the state level that would take account of the hydraulic cycle.") (emphasis added). Return to text.

[100] Ausness, supra note 4, at 13 (emphasis added). Return to text.

[101] FLA. STAT. § 373.103(1) (1995). Return to text.

[102] Id. § 373.103 Return to text.

[103] Id. § 373.103(4) Return to text.

[104] Id. § 373.113 Return to text.

[105] Letter from Ben Parks, Chairman, Florida Agricultural Coalition, to the Honorable John Rayson, Chairman, H.R. Select Committee on Water Policy 4 (Sept. 19, 1995) (on file with comm.). The Florida Agricultural Coalition is made up of A. Duda & Sons, Dairy Farmers, Inc., Florida Cattlemen's Association, Florida Citrus Mutual, Florida Citrus Processors Association, Florida Farm Bureau Federation, Florida Fertilizer and Agrichemical Association, Florida Forestry Association, Florida Fruit & Vegetable Association, Florida Land Council, Florida Nurserymen & Growers Association, Florida Phosphate Council, Florida Poultry Federation, Florida Pulp & Paper Association, Florida Strawberry Growers Association, FLO-SUN, Inc., Gulf Citrus Growers Association, Indian River Citrus League, Jack M. Berry, Inc., Jefferson Smurfit, Inc., Lykes Brothers, Inc., Peace River Valley Citrus Growers Association, St. Joe Forest Products, Sugar Cane Growers Cooperative of Florida, Turner Foods Corporation, U.S. Sugar Corporation, and Western Agricultural Region. Id. at 1. Return to text.

[106] Ausness, supra note 4, at 14. Return to text.

[107] FLA. STAT. § 373.039 (1995) ("The state water use plan together with the water quality standards and classifications of the department or its successor agency shall constitute the Florida water plan."). Return to text.

[108] Id. § 373.036. Return to text.

[109] Id. § 373.039. Return to text.

[110] Id. § 373.036(1). Return to text.

[111] Id. §§ 373.036(2)(a)- (h). Return to text.

[112] Id. § 373.0391; NATURAL RESOURCES REPORT, supra note 13, at 14. Return to text.

[113] FLA. STAT. § 373.042(1) (1995) ("The minimum flow for a given watercourse shall be the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area."); see also infra notes 122-25 and accompanying text (discussion of groundwater availability). Return to text.

[114] FLA. STAT. § 373.042(2) (1995) ("The minimum water level shall be the level of ground water in an aquifer and the level of surface water at which further withdrawals would be significantly harmful to the water resources of the area."). Return to text.

[115] 1985, Fla. Laws ch. 85-55 (codified as amended in scattered sections of FLA. STAT. chs. 161, 163, 380 (1995)). For discussions of the Growth Management Act, see Mary Dawson, The Best Laid Plans: The Rise and Fall of Growth Management in Florida, 11 J. LAND USE & ENVTL. L. 325 (1996); Donna R. Christie, Growth Management in Florida: Focus on the Coast, 3 J. LAND USE & ENVTL. L. 33 (1987); Charles Siemon, The Growth Management Act of 1985: A Bitter Pill, But Better than "Growth Management Anarchy," 16 ENVTL. & URBAN ISSUES 1 (Winter 1988); JAMES A. KUSHNER, SUBDIVISION LAW AND GROWTH MANAGEMENT (1992). Return to text.

[116] NATURAL RESOURCES REPORT, supra note 13, at 14-15; Pinellas County v. Southwest Fla. Water Management Dist., FLWAC Case No. RFR 95-001 (Final Order, Feb. 14, 1996) ("Over twenty-three years after the adoption of the Florida Water Resources Act of 1972, neither the Department of Environmental Protection, the Department's predecessors, nor the water management districts have been entirely successful in the adoption of minimum flows and levels on a broad scale."). Return to text.

[117] FLA.STAT. §§ 373.0391(2)(g), .0395(4) (1995); Maloney & Ausness, supra note 99, at 226-27 (outlining Model Water Code approach to minimum flows and levels). Return to text.

[118] NATURAL RESOURCES REPORT, supra note 13, at 14.

The Southwest Florida Water Management District has developed minimum flows for almost all the surface watercourses, and expects to establish minimum levels for its aquifers by the end of 1994. The remaining districts are at various stages in completing their minimum flows and levels determinations. The Northwest Florida and Suwannee River Water Management Districts assert they have been unable to complete these studies due to lack of funding.
Id. at 14-15; see also Concerned Citizens of Putnam County for Responsive Gov't, Inc. v. St. Johns River Water Management Dist., 622 So. 2d 520, 522 (Fla. 5th DCA 1993) (finding that the St. Johns River Water Management District has "ignored for twenty years" the requirement of establishing minimum flows and levels under section 373.042, Florida Statutes, and enjoining the District from issuing any additional permits until such levels are established under legislative mandate); Lake Brooklyn Civic Assoc., Inc. v. St. Johns River Water Management Dist., DOAH Case No. 92-5017 (Sept. 30, 1993) (before the Land and Water Adjudicatory Commission) (finding that "the fact that this case is before the Commission illustrates the importance of the establishment of minimum flows and levels"); Pinellas County v. Southwest Fla. Water Management Dist., FLWAC Case No. RFR 95-0001 (final order, Feb. 14, 1996) (requiring the Southwest Florida Water Management District to "set forth a clear, detailed schedule for establishing minimum flows and levels").

In 1996, the Legislature enacted CS/HB 2385 and CS/HB 2399, which require the Southwest Florida Water Management District to develop, by November 1, 1996, a priority list of water resources in Hillsborough, Pasco, and Pinellas counties for which minimum flows and levels must be established. See Christie & Christaldi, supra note 93. The law then directs the Southwest Florida Water Management District Governing Board to set the levels by October 1, 1997. See id. Return to text.

[119] FLA. STAT. § 373.039 (1995). Return to text.

[120] NATURAL RESOURCES REPORT, supra note 13, at 15. Return to text.

[121] Id.; see also W. VIESSMAN ET AL., COMPREHENSIVE REVIEW OF WATER RESOURCES POLICIES, PLANNING AND PROGRAMS IN FLORIDA 14 (1986) (report to the Florida Water Management Districts); LAND USE AND WATER PLANNING TASK FORCE, FINAL REPORT 21 (1994). Return to text.

[122] 1982, Fla. Laws ch. 82-101, § 6 (codified at FLA. STAT. § 373.0395 (1995)). Return to text.

[123] FLA. STAT. § 373.0395 (1995). Return to text.

[124] Id. A groundwater basin resource availability inventory is commonly called a "safe yield study." NATURAL RESOURCES REPORT, supra note 13, at 15 ("This inventory, once completed, must be given to each affected municipality, county, and regional planning agency. These agencies in turn are required to review the inventory for consistency with local government comprehensive plans and consider the inventory in future revisions of the plans."). Return to text.

[125] NATURAL RESOURCES REPORT, supra note 13, at 15. Return to text.

[126] FLA. STAT. §§ 373.203-.249 (1995). Return to text.

[127] Hamann, supra note 4, at 10-6. Return to text.

[128] FLA. STAT. § 373.219(1) (1995) ("[N]o permit shall be required for domestic consumption of water by individual users."); Maloney & Ausness, supra note 75, at 524. Return to text.

[129] Section 373.226 states:

(1) All existing uses of water, unless otherwise exempted from regulation by the provisions of this chapter, may be continued after adoption of this permit system only with a permit issued as provided herein.

(2) The governing board or the department shall issue an initial permit for the continuation of all uses in existence before the effective date of implementation of this part if the existing use is a reasonable-beneficial use as defined in s. 373.019(4) and is allowable under the common law of this state.

(3) Application for a permit under the provisions of subsection (2) must be made within a period of 2 years from the effective date of implementation of these regulations in an area. Failure to apply within this period shall create a conclusive presumption of abandonment of the use, and the user, if he or she desires to revive the use, must apply for a permit under the provisions of s. 373.229.

FLA.STAT. § 373.226 (1995). Return to text.

[130] Id. § 373.226(3). Return to text.

[131] Id. § 373.226(2). At common law, a landowner could withdraw from his or her property all the groundwater that landowner could possibly use to the extent that it did not injure the adjacent owner's property. City of St. Petersburg v. Southwest Fla. Water Management Dist., 355 So. 2d 796, 798 (Fla. 2d DCA 1977). Return to text.

[132] West Coast Regional Water Supply Auth. v. Southwest Fla. Water Management Dist., Fla. Admin. Order 10 F.A.L.R. 4239-4260 (May 17, 1988) (invalidating the "5-3-1 Rule" of the district, which prohibited the issuance of permits that would result in withdraw causing levels to drop below a certain threshold, because the rule was an improper expansion of the delegated statutory authority beyond the statutory criteria). Return to text.

[133] FLA. STAT. § 373.223(1)(a) (1995). For a discussion of Florida's reasonable-beneficial use standard, see Maloney et al., supra note 57, at 253. Return to text.

[134] FLA. STAT. § 373.019(4) (1995); see, e.g., Miakka Community Club v. El Jobean Philharmonic Group, Fla. Admin. Order 89 ER F.A.L.R. 124 (Sept. 26, 1989); Friends of Fort George v. Fairfield Communities, Fla. Admin. Order, 24 Fla. Supp. 2d 192 (Dec. 9, 1986). Return to text.

[135] MODEL WATER CODE, supra note 18, at 40. The authors wrote that the code "includes the standard of reasonable use but it also requires efficient economic use of water, a characteristic of beneficial use." Id. at 86. Return to text.

[136] FLA. STAT. § 373.223(1)(b) (1995). Return to text.

[137] Hamann, supra note 4, at 10-8; West Coast Regional Water Supply Auth. v. Southwest Fla. Water Management Dist., Fla. Admin. Order 89 ER F.A.L.R. 166 (Aug. 30, 1989) (holding that a farmer who depended on soil moisture levels was not an existing use and that lakes and wetlands were not protected as existing uses because "[w]ater must be physically withdrawn or diverted to qualify as a legal use of water"); Harloff v. City of Sarasota, Fla. Admin. Order 91 ER F.A.L.R. 40 (Fla. 2d DCA 1991) (holding that a municipal wellfield was an existing use entitled to protection against a new user). For a discussion of the court's decision in Harloff, see Johnny C. Burris, Administrative Law: 1991 Survey of Florida Law, 16 NOVA L. REV. 7, 108-11 (1991). Return to text.

[138] FLA. STAT. §§ 373.239, .243 (1995). The water management districts have claimed such authority. FLA. ADMIN. CODE ANN. r. 62-40.401(6) (1995). This is part of the state water policy. It should also be acknowledged that this is an administrative rule promulgated by the DEP and, as such, is inherently less authoritative than a statute. It is debatable whether Rule 62-40.401(6), Florida Administrative Code, is within the statutory scope of authority. FLA. STAT. § 373.171 (1995). Return to text.

[139] FLA. STAT. § 373.223(1)(c) (1995). Return to text.

[140] Hamann, supra note 4, at 10-8. Return to text.

[141] 24 Fla. Supp. 2d 192, DOAH Case Nos. 85-3537, 85-3596 (Final Order dated Dec. 9, 1986). Return to text.

[142] Id. Return to text.

[143] See Saarinen & Lynne, supra note 36, at 491. Return to text.

[144] Id.; Carlyn Harper & Elizabeth D. Ross, The Reasonable-Beneficial Test: Maximizing the Water Supply Pie Before Relinquishing the Last Piece, FLA. B.J., May 1990, at 68. Return to text.

[145] FLA. STAT. §§ 373.495-.501 (1995). Return to text.

[146] Id. § 373.563. Return to text.

[147] Id. § 373.503. Return to text.

[148] Id. In 1976, the Florida Constitution was amended to authorize the water management districts to assess such taxes. FLA. CONST. art. VII, § 9(6); Ansbacher & Brown, supra note 13, at 254. Return to text.

[149] THE FLORIDA LEGISLATURE WATER MANAGEMENT DISTRICT REVIEW COMMISSION, BRIDGE OVER TROUBLED WATER: RECOMMENDATIONS OF THE WATER MANAGEMENT DISTRICT REVIEW COMMISSION 4 (December 29, 1995) [hereinafter REVIEW COMMISSION]. Return to text.

[150] FLA. STAT. § 373.073(2) (1995). Return to text.

[151] Id. § 373.503; FLA. CONST. art. VII, § 9(6). Return to text.

[152] FLA. CONST. art. VII, § 1(a) (emphasis added). Return to text.

[153] FLA. STAT. § 373.503(2)(a) (1995). Return to text.

[154] 406 So. 2d 1132 (Fla. 5th DCA 1981). Return to text.

[155] FLA. CONST. art. VII, § 9(a). Return to text.

[156] Deseret Ranches, 406 So. 2d at 1140. Return to text.

[157] Id. Return to text.

[158] Memorandum from W. Ray Scott, Legislative Analyst, H.R. Select Committee on Water Policy, to the Members of the H.R. Select Committee on Water Policy 1 (Sept. 18, 1995) (on file with comm.) [hereinafter Scott Memo]. Return to text.

[159] Id. at 2.

The total amount of water use fees collected was to be capped at a level such that the combined annual sum of water use fees and ad valorem revenues would not exceed an amount that would be generated by an ad valorem assessment of 1.0 mill within the district—an interesting attempt to equalize the District's revenue generating capability without increasing its ad valorem taxing authority.
Id. Return to text.

[160] Id. at 1-2. Return to text.

[161] Id. at 2. Return to text.

[162] Id. Return to text.

[163] For another area of law where the Florida Legislature has clearly dictated that a citizen should bear only his or her fair share of a burden resulting from public need, see 1995, Fla. Laws ch. 95-181 (codified at FLA. STAT. § 73.001 (1995)). See Ellen Avery, The Terminology of Florida's New Property Rights Law: Will It Allow Equity to Prevail or Government to be "Taken" to the Cleaners?, 11 J. LAND USE & ENVTL. L. 181, 183 (1995). The Bert J. Harris, Jr., Private Property Rights Protection Act, requires a governmental agency under certain circumstances to compensate a landowner for an inordinate burden resulting from a state action to benefit the general public. 1995, Fla. Laws ch. 95-181, § 1(4)(d) (codified at FLA. STAT. § 73.001(4)(d) (1995)). Return to text.

[164] Scott Memo, supra note 158, at 2. Return to text.

[165] Id. ("In addition, this 'conservation effect' is enhanced when credit is awarded for the use of alternative water supplies."). Return to text.

[166] Id. at 2-3. Water may have different values depending on its availability and its potential to produce monetary returns. Return to text.

[167] Id. at 3. Return to text.

[168] Although additional issues, such as varying water utility rates, arise in the assessment of water use fees, the equity concerns involved seem to outweigh these difficulties. Return to text.

[169] See supra notes 126-44 and accompanying text. Return to text.

[170] NATURAL RESOURCES REPORT, supra note 13, at 38-47; see also Appendix. Return to text.

[171] NATURAL RESOURCES REPORT, supra note 13, at 38-47. Return to text.

[172] Id. Return to text.

[173] See, e.g., In re Emergency Conditions Existing Within the Region of the West Coast Regional Water Supply Central Well Field System, Executive Director Order No. 94-58 (June 29, 1994). Return to text.

[174] See, e.g., DER v. Falls Chase Special Taxing Dist., 424 So. 2d 787 (1st DCA 1982) ("At times in the past, portions of this property have been subject to inundation by waters of the lake, but a sinkhole development in the lake, a natural phenomenon, has caused the lowering of the water level."); Teresa D. Brown, Sinkhole Opens Wide, Guzzles 2 Retention Ponds, ST. PETE. TIMES, Aug. 31, 1995, at A1. ("Sinkholes occur when limestone is close to the ground surface and there is a high rainfall for a long period. The rainfall gradually will dissolve the limestone, creating cavities. Over time, the cavities will get larger and the ground eventually will collapse."). Return to text.

[175] In 1987, Richard C. Ausness, one of the drafters of the Model Water Code wrote: "Many of today's water management problems have existed for years. In the late 1960s, some areas of south and central Florida were beginning to experience periodic water shortages." Ausness, supra note 4, at 6 (citing Neitzke, Salt Water Intrusion: Florida's Legal Response, 55 FLA. B.J. 759, 759 (1981)); see also Pinellas County v. Lake Padgett Pines, 333 So. 2d 472 (Fla. 2d DCA 1976) (determining whether consideration must be given to the detrimental effects of withdrawal in suit to enjoin the continuation of a well field project). Return to text.

[176] The Southwest Florida Water Management District comprises several counties in southwest Florida and includes the large coastal cities of Tampa, St. Petersburg, and Clearwater. For the legal boundaries of the district, see § 373.069(2)(d), Florida Statutes (1995). Return to text.

[177] One solution to which most parties can agree is conservation. Measures implemented to reduce water use are critical to preservation of Florida's ecosystem and to such practical factors as maintaining reasonable water rates. However, even the best conservation measures do not totally remove the need for consumptive uses of water. Thus, for the purposes of this Comment, conservation of water will be assumed as a goal and the resulting discussion will address measures to alleviate Florida's water problems beyond conservation. Return to text.

[178] PERMIT MANUAL, supra note 3, at B-xiii (defining desalination as "[t]he process of removing or reducing salts and other chemicals from seawater or highly mineralized water"); Jean Heller, Water Woes May Find Salty Solution, ST. PETE. TIMES, Apr. 2, 1995, at B1 ("It can turn the salt water of the Gulf of Mexico or the brackish water that long ago overwhelmed the aquifer beneath Pinellas County into reliable sources of fresh drinking water.").

In 1996, the Legislature enacted CS/HB 831, which deregulates the sale of desalinated water to governmental authorities by making such sales exempt from regulation by the Florida Public Service Commission. See Christie & Christaldi, supra note 93. The exemption applies to desalination of both seawater and brackish water. See id. Return to text.

[179] CRAIG W. DYE ET AL., SEAWATER DESALINATION: AN INVESTIGATION OF CONCENTRATE DISPOSAL BY MEANS OF A COASTAL OCEAN OUTFALL 1 (Sept. 1995) ("Desalination is utilized extensively throughout Florida which has the most such facilities of any state in the U.S. Currently, Florida has 176 desalination plants, all brackish water except for a sea water facility in Key West.") (emphasis added). Return to text.

[180] The district wants the West Coast Regional Water Supply Authority to construct the plant. It is important to note that although the water management district has offered some funds, these funds would cover only about one percent of the cost of construction of the plant, and the district has generally refused to allow any of its funds to be used in a feasibility study. Return to text.

[181] See, e.g., Desalination Cost May Be Lower than Purported, CITRUS COUNTY CHRONICLE, Mar. 27, 1995, at B1; Carlos Moncada & Kathleen Beeman, Water Solution Sought, TAMPA TRIB., Mar. 28, 1995, at B1; Michael D. Bates, Desalination Plant Seen as "Wave of the Future," HERNANDO TODAY, Apr. 1, 1995, at A1. Return to text.

[182] This is because the public is aware that about 97.5 percent of the earth's water is contained in the oceans. A. DAN TARLOCK, LAW OF WATER RIGHTS AND RESOURCES § 2.02 (1992). Return to text.

[183] Earle Kimel, Two Companies Eye Desalination, CITRUS COUNTY CHRONICLE, Mar. 31, 1995, at A1. While the Kimel article sets the production at 50 mgd, other estimates claim that a 20 mgd output is "about as big a plant as is practical from a cost standpoint." Heller, supra note 178, at B7. This does not include operational costs. See infra note 187 and accompanying text. Return to text.

[184] NATURAL RESOURCES REPORT, supra note 13, at 39; see Appendix. Return to text.

[185] NATURAL RESOURCES REPORT, supra note 13, at 39; see Appendix. Return to text.

[186] NATURAL RESOURCES REPORT, supra note 13, at 39. Return to text.

[187] Seawater desalination would cost $3.40 to $5.80 in operational costs per 1000 gallons of sellable water. JOHN E. POTTS, PRESIDENT, SOUTHEAST DESALTING ASSOCIATION, ADVANTAGE AND COSTS OF SEAWATER VERSUS BRACKISH WATER 3 (undated report, prepared for the Florida Water Law and Regulation Conference). Conventional water, in comparison, costs $0.85 to $1.90 per 1000 gallons in operational costs. Id. The average home uses 10,000 gallons per month. Id. Return to text.

[188] Heller, supra note 178, at B7. Return to text.

[189] Id. Return to text.

[190] DYE ET AL., supra note 179, at 4 ("A forty percent recovery of fresh water (60 percent [by-product] concentrate) was generally obtained when running the RO [reverse-osmosis] unit."); Heller, supra note 178, at B7 (setting the rate at about fifty percent.). Return to text.

[191] Heller, supra note 178, at B7. Return to text.

[192] This by-product is referred to as concentrate. DYE ET AL., supra, note 179, at 4. Tests have shown that concentrates from seawater desalination can show chloride values exceeding state standards. Id. at 5. Return to text.

[193] Id. Return to text.

[194] Id. at 5-6. Acute toxicity means:

The presence of one or more substances or characteristics or components of substances in amounts which:
(a) are greater than one-third (1/3) of the amount lethal to 50 percent of the test organisms in 96 hours (96 hr LC50) where the 96 hr LC50 is the lowest value which has been determined for a species significant to the indigenous aquatic community; or (b) may reasonably be expected, based upon evaluation by generally accepted scientific methods, to produce effects equal to those of the concentration of the substance specified in (a) above. DEP 62-301.100 REG Files (1995). Some sources claim that such toxicity is not a problem because potentially adverse environmental effects could be lessened through dilution and mixing with normal saltwater. DYE ET AL., supra note 179, at 6. Return to text.

[195] Id. Return to text.

[196] The West Coast Regional Water Supply Authority was created on October 25, 1974, pursuant to ch. 74-114, Laws of Florida. Pinellas County v. Lake Padgett Pines, 333 So. 2d 472, 478 n.6 (Fla. 2d DCA 1976); Jan Platt, A Local Experience—Hillsborough County, in FORGING PARTNERSHIPS IN LAND AND WATER MANAGEMENT: THE CENTRAL FLORIDA EXPERIMENT 21 (1987). Return to text.

[197] Heller, supra note 178, at B7. Return to text.

[198] Id. Return to text.

[199] NATURAL RESOURCES REPORT, supra note 13, at 32. Return to text.

[200] Florida has 175 brackish water desalination facilities. DYE ET AL., supra note 179, at 1. "About 1,000 desalting plants are in operation nationwide. Most United States plants are used to clean brackish (moderately salty) groundwater, a less expensive process than seawater desalting, or to produce highly purified water for industrial uses." AMERICAN DESALTING ASSOCIATION, DESALTING FACTS 1 (undated). Return to text.

[201] NATURAL RESOURCES REPORT, supra note 13, at 53. "The treatment also is used to remove lead and other minerals from groundwater." Id. Return to text.

[202] See supra notes 183-98 and accompanying text. Return to text.

[203] NATURAL RESOURCES REPORT, supra note 13, at 53. Return to text.

[204] ALA. CODE § 9-10B-1 (Supp. 1995); William S. Cox, III, An Introduction to the Alabama Water Resources Act, 55 ALA. LAW. 176 (1994). Return to text.

[205] Cox, supra note 204, at 176. The common law of riparian rights in Alabama was expressed by the supreme court of that state as follows:

[E]very riparian proprietor has an equal right to have [a] stream flow through his lands in its natural state, without material diminution in quantity or alteration in quality. But this rule is qualified by the limitation . . . that each of said proprietors are entitled to a reasonable use of the water for domestic, agricultural, and manufacturing purposes.
Crommelin v. Fain, 403 So. 2d 177, 184 (Ala. 1981) (citations omitted). For a history of Alabama's water policy, see William L. Andreen, Alabama, in WATER AND WATER RIGHTS 185, 185-90 (1994). Return to text.

[206] ALA. CODE § 9-10B-27 (Supp. 1995). Return to text.

[207] "Prior to the enactment of the Alabama Water Resources Act, the State of Alabama lacked a statewide agency or office charged with the management of quantitative water resources within the state." Cox, supra note 204, at 177; William S. Cox III, The Alabama Water Resources Act: A Hybrid Model of "Regulated Riparianism," in WATER LAW: TRENDS, POLICIES, AND PRACTICE 151, 153 (1995). Return to text.

[208] ALA. CODE § 9-10B-4 (Supp. 1995). Return to text.

[209] Id. § 9-10B-5. Return to text.

[210] Cox, supra note 204, at 177. Return to text.

[211] ALA. CODE § 9-10B-12 (Supp. 1995). The Commission acts "as an advisor on matters relating to the waters of the state; develops, promulgates, adopts, and repeals the rules and regulations authorized by the Act; and hears appeals of administrative actions of the [Office of Water Resources]." Cox, supra note 204, at 177; ALA. CODE § 9-10B-16 (Supp. 1995). Return to text.

[212] ALA. CODE § 9-10B-3(7) (Supp. 1995). Return to text.

[213] Andreen, supra note 205, at 190-91. Return to text.

[214] Cox, supra note 204, at 179. Return to text.

[215] United States v. State Water Resources Control Bd., 227 Cal. Rptr. 161, 166 (Ct. App. 1986). Return to text.

[216] Frederick M. Muir & Virginia Ellis, Unprecedented 7th Year of State Drought Forecast, L.A. TIMES, Nov. 17, 1992, at A1. Return to text.

[217] Although California has experienced some negative effects from certain attempted remedies to its water supply problems, these effects stem mainly from the fact that California does not have the tradition of balancing environmental concerns with development that Florida has. Hence, the positive aspects of California's water transfers can be applied, within the scope of attempting to find an ecological balance in the State of Florida, to provide all water users with an ample supply while preserving the environment. Additionally, it should be noted that "only fifteen percent of California's water is used for drinking and bathing by people, or by industry." LAURENCE PRINGLE, WATER: THE NEXT GREAT RESOURCE BATTLE 106 (1982). Agriculture uses the remaining eighty-five percent. Id. Return to text.

[218] Morris Israel & Jay R. Lund, Recent California Water Transfers: Implications for Water Management, 35 NAT. RESOURCES J. 1, 2 (1995); Matthew Levinson, Comment, California Water: An Economic Consideration, 12 UCLA J. ENVTL. L. & POL'Y 183, 183 (1993). Recent statistics show the major California cities as large importers of water: San Diego, eighty-eight percent; Los Angeles, eighty-four percent; and San Francisco, eighty percent. Robert E. Beck, The Water Resource Defined and Described, in WATER AND WATER RIGHTS 3, 45 n.37 (1991 & Supp. 1995) (citing U.S. WATER NEWS, June 1989, at 1). Return to text.

[219] This term refers to the amount of water necessary to cover an acre of ground to a depth of one foot. An acre-foot equals roughly 320,000 gallons of water. Levinson, supra note 218, at 184. It has been remarked that an acre-foot of water is "enough water to flush approximately 60,000 suburban toilets simultaneously." ROBERT H. BOYLE ET AL., THE WATER HUSTLERS 135 (1971). Return to text.

[220] Levinson, supra note 218, at 183 (arguing for water transfers in western states with increased government intervention); Israel & Lund, supra note 218, at 21-22. Return to text.

[221] Levinson, supra note 218, at 188. Return to text.

[222] Id. Return to text.

[223] Id. Return to text.

[224] Id. Return to text.

[225] Id. Return to text.

[226] Martha H. Lennihan, The California Drought Emergency Water Bank: A Successful Institutional Response to Severe Drought, in WATER LAW: TRENDS, POLICIES, AND PRACTICE 127 (1995); Israel & Lund, supra note 218, at 21-22. Return to text.

[227] Lennihan, supra note 226, at 128-30. Return to text.

[228] Id. at 130. The California Legislature soon afterward enacted legislation dealing with the transfers. Id.; CAL. WATER CODE §§ 1745.02-.11, 1011.5 (1992). Return to text.

[229] Harrison C. Dunning, California, in WATER AND WATER RIGHTS 243, 246-47 (Supp. 1995). Return to text.

[230] Lennihan, supra note 226, at 127. Return to text.

[231] See supra notes 4-15, 169-72 and accompanying text. Return to text.

[232] Dialogue with Pam McVety, Assistant Secretary, Florida Department of Environmental Protection, in FLORIDA ENVIRONMENTS, Mar. 1996, at 12 ("The fact is that water is not limited in this state. What is limited is deep easily accessible water, but there is plenty of water for all users and natural systems in this state.") [hereinafter Dialogue]. Return to text.

[233] This policymaking authority is subject to the state water policy. Return to text.

[234] But see Osceola County v. St. Johns River Water Management Dist., 504 So. 2d 385 (Fla. 1987) (finding that the Legislature enacted the Florida Water Resources Act "in order to implement a statewide and comprehensive administrative system of regulation, resource protection, and water use permitting"). Return to text.

[235] Hamann, supra note 4, at 9-10. Return to text.

[236] To be certain that water resources legislation is a key issue, Florida Environments, a journal of Florida's environmental industry, had predicted water resources to be the top issue with Florida's law makers in the 1996 session. Kathleen Laufenberg, Water District Legislation To Make a Big Splash This Year, FLORIDA ENVIRONMENTS, Jan. 1996, at 6. Return to text.

[237] Hamann, supra note 4, at 9-10 ("Despite the statutory directive, no funds were appropriated at the state level for several years to undertake planning."). Return to text.

[238] A recent report of the Water Management District Review Commission suggested the creation of both a permanent position in the executive office of the Governor and a standing legislative committee on water resources to oversee the financial and programmatic activities of the five water management districts. REVIEW COMMISSION, supra note 149, at 6-7. The House Select Committee on Water Policy interim project report for 1995 calls the legislation an attempt to clarify "the relevance of political boundaries in providing for the development of water supplies." H.R. SELECT COMMITTEE ON WATER POLICY STAFF, WATER SUPPLY POLICY CONSIDERATIONS: INTERIM PROJECT REPORT 28 (Dec. 1995). Return to text.

[239] For a discussion of the interstate use of water, which is outside the scope of this Comment, see Frank J. Trelease, Interstate Use of Water—Sporhase v. El Paso, Pike & Vermejo, 22 LAND & WATER L. REV. 315 (1987); GETCHES, supra note 51, at 383-406. Return to text.

[240] Ansbacher & Brown, supra note 13, at 253 (quoting W. EARL & T. ANKERSON, COMPETING APPLICATIONS, INTER-DISTRICT TRANSFERS, AND ASPECTS OF COMPETITION FOR CONSUMPTIVE WATER USE 3 (Undated)). Return to text.

[241] 504 So. 2d 385 (Fla. 1987). Return to text.

[242] Id. at 387. Return to text.

[243] Id. Return to text.

[244] Id. The writ was filed before the St. Johns River Water Management District was able to hold a public hearing on the permit, but after the district staff had recommended its denial. Id. Return to text.

[245] Id. Return to text.

[246] Id. Return to text.

[247] Id. at 388. Return to text.

[248] Id. Return to text.

[249] Id. Return to text.

[250] Id. Return to text.

[251] Id. Return to text.

[252] 1987, Fla. Laws ch. 87-347, § 1 (codified at FLA. STAT. § 373.2295 (1995)). Return to text.

[253] FLA. STAT. § 373.2295(6)(c) (1995). The governing board of the agency in which the groundwater is to be withdrawn is to issue a notice of intended agency action. Then, under section 373.2295(8), the DEP shall issue a final order.

In 1996, the Legislature proposed a bill requiring DEP and the water management districts, when evaluating applications for water transport, to consider the proximity of the proposed water source to the area in which it is to be used and other environmentally, economically, and technically feasible alternatives to the proposed water transfer, including, but not limited to, desalination, reuse, stormwater, and acquifer storage and recovery. See Christie & Christaldi, supra note 93. However, this bill ultimately did not pass. See id. Return to text.

[254] The rule in question in the Osceola County case was Florida Administrative Code rule 17-40.05. However, the law enacted in 1987 grants the authority to review the application to the district from which the water is to be withdrawn. FLA. STAT. § 373.2295(2) (1995); cf. id. § 373.2295(5) (authorizing the district to which the water will be transferred to comment on the application); see also Ansbacher & Brown, supra note 13, at 254. Return to text.

[255] FLA. STAT. § 373.2295 (1995). Return to text.

[256] Ansbacher & Brown, supra note 13, at 254. Return to text.

[257] TVA v. Hill, 437 U.S. 153, 188 (1978). Return to text.

[258] A. DAN TARLOCK, LAW OF WATER RIGHTS AND RESOURCES § 2.02(2) (1994).

The persistence of these categories makes it difficult to subject physically interrelated sources of water to a common system of property rights or regulatory regime. The result is that water laws and policies designed to conserve water often fail to achieve their objective because not all sources of a common supply are subject to the same limitations. For example, what good does it do to limit surface withdrawals if the extraction of sub-surface flows that support the stream . . . are not similarly restricted?
Id.; see also NATURAL RESOURCES REPORT, supra note 13, at 9 ("Before much was understood about hydrological cycles and the interconnectedness between groundwaters and surface waters, courts made legal distinctions between [groundwaters] . . . and surface water courses."). Return to text.

[259] Beck, supra note 218, at 46 n.37 (citing U.S. WATER NEWS, June 1989, at 1). Return to text.

[260] See, e.g., Pinellas County v. Lake Padgett Pines, 333 So. 2d 472, 478 (Fla. 2d DCA 1976).

Environmental aspects were emphasized by the Legislature in 1974, when it amended Ch. 373 to direct that the water management districts and the regional water supply authorities develop, store, and supply water . . . in such a manner as will give priority to reducing any adverse environmental effects of excessive or improper withdrawals of water from concentrated areas.
Id. (citations omitted). Return to text.

[261] For an excellent discussion of the balance needed between property rights and environmental concerns, see Heather Fisher Lindsay, Balancing Community Needs Against Individual Desires, 10 J. LAND USE & ENVTL. L. 371 (1995). Return to text.

[262] Id. at 402. Return to text.

[263] Dialogue, supra note 232, at 12. Return to text.

[264] Id. Return to text.

[265] See generally Leonard Shabman & William E. Cox, Costs of Water Management Institutions: The Case of Southeastern Virginia, in SCARCE WATER AND INSTITUTIONAL CHANGES 134, 153-69 (Kenneth D. Frederick ed., 1986) (analyzing proposed water transfers in Virginia and concluding that ample water supplies exist and that "water transfer conflicts arise and persist because of institutional inadequacies that could be remedied by reforms tailored to the specific nature of the state's water problem"). Return to text.

[266] See, e.g., Savannah Blackwell, Water Wars Loom on Florida's Horizon, TALL. DEM., Apr. 2, 1995, at B1; Mary Ward, Water Wars: Does Florida Have a Water Crisis? Some Say There Is No Crisis But That the State Is Faced with a Critical Water Management Problem, FLORIDA AGRICULTURE, Jan. 1995, at 1; Phillip Longman, What Water Crisis?, FLORIDA TREND, June 1991, at 49-50. Return to text.

[267] This table is reprinted from the NATURAL RESOURCES REPORT, supra note 13, at 39. Return to text.