Christine A. Klein, Mary Jane Angelo, & Richard Hamann, Modernizing Water Law: The Example of Florida

61 Fla. L. Rev. 403 (2009) | | | |

INTRODUCTION :: At the beginning of the twenty-first century, the Earth, with its diverse and abundant life forms, including over six billion humans, is facing a serious water crisis. All the signs suggest that it is getting worse and will continue to do so, unless corrective action is taken. This crisis is one of water governance, essentially caused by the ways in which we mismanage water.

One of the defining issues of the twenty-first century will be the allocation of fresh water supplies. Population growth, increased per capita consumption in some areas, water pollution, and climate change challenge the water allocation systems of even the wettest states. For example, Florida, which enjoys an average annual precipitation of more than fifty inches, has begun to experience regional water shortages, with more predicted for the future.


This Article takes a national view of the modernization of water law. Using Florida as an example, it identifies some of the most important and controversial challenges faced by states. Part II provides an overview of the process of water law reform. As states attempt to improve water management, they have modified their common law water allocation systems with an overlay of statutory law. Often, the process occurs in a piecemeal fashion, resulting in a patchwork of rules-common law and statutory, old and new. In rare cases-including that of Florida-the process may be more comprehensive, one through which states supplement or supplant their common law with modern statutory codes. Part III examines the evolutionary path of Florida, a state that has adopted a generally wholesale reform in modern times. Because this reform took place in 1972-at the dawn of the environmental era-the reform reflects modern environmental and public interest sensibilities. Part IV turns from process to substance, identifying five challenges that plague virtually all states: (1) advancing the public interest while allocating water among competing users; (2) retaining sufficient water in natural streams, lakes, and aquifers to maintain vibrant aquatic ecosystems; (3) ensuring that adequate water supplies will be available for future needs; (4) determining the extent to which managers should “transfer” water from places of relative abundance to places of relative scarcity; and (5) determining the role, if any, of the “free” market in allocating water resources within states.

We hope that our focus upon Florida will be illuminating to water experts in other states, as well as in Florida. We place each of the challenges identified in Part IV into a national context to provide a clearer view of the problem. Then, for each challenge we describe the experience of Florida as a case study of a modern state undertaking a second wave of water reform. Finally, we present our own views as to the best resolution of each of the five challenges and how these views may apply to other states facing challenges similar to those of Florida.

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