* John J. Fumero, a graduate of the University of Miami School of Law, is GeneralCounsel of the South Florida Water Management District. Mr. Fumero represents the agencybefore State, Federal, and administrative forums on a variety of environmental and water lawissues. Mr. Fumero has been awarded an AV rating in Martindale-Hubbell and is a memberof the U.S. District Court – Southern District and the U.S. 11th Circuit Court of Appeals;Florida Supreme Court certified mediator; Executive Council of the Environmental and LandUse Law Section of The Florida Bar; Palm Beach County Bar Association Environmental,Land Use and Eminent Domain Law Committee; Florida Chamber of CommerceEnvironmental Issues Committee. In addition, Mr. Fumero sits on the Board of Directors ofASPIRA, Leadership Palm Beach County, American Lung Association of South East Florida,American Water Resources Association–Florida Section, the Forum Club of the Palm Beaches,and the Nonprofit Resource Institute. Mr. Fumero is also on the West Palm Beach AdvisoryCommittee of the John S. and James L. Knight Foundation. Mr. Fumero holds certificatesin Environmental Negotiation from the Massachusetts Institute of Technology and HarvardLaw School. He is an author for the Florida Environmental Law Treatise on several wetlandregulatory topics. Mr. Fumero is a frequent author/lecturer on water management andenvironmental law issues.1. FLA. STAT. ch. 373 (2002).2. Pub. L. No. 106-541, Title VI, § 601.FLORIDA WATER LAW AND ENVIRONMENTALWATER SUPPLY FOR EVERGLADES RESTORATIONJOHN J. FUMERO*Table of ContentsI. INTRODUCTION ................................. 379II. FLORIDA WATER LAW 101 ......................... 380A. Common Law ................................ 380B. A Model Water Code .......................... 380C. Florida Water Resources Act of 1972 ............. 381D. Florida Water Law Summary ................... 385III. ENVIRONMENTAL WATER SUPPLYASSURANCES ................................... 386A. Water Reservations Concerning CERP ............ 387B. Summary of Mechanisms in Federal and State Law to Ensure Protection of Environmental Water Supplies .................. 387IV. CONCLUSION ................................... 389I. INTRODUCTIONThis article provides a general overview of Florida's water lawfrom its common law origin through the present day framework setforth in chapter 373 of the Florida Statutes.1 It also surveys keyprovisions of the Water Resources Development Act of 20002("WRDA"), as well as state law, concerning the legal framework forenvironmental water supply assurances in support of Evergladesrestoration.380 JOURNAL OF LAND USE [Vol. 18:23. Florida Water Resources Act of 1972, FLA. STAT. ch. 373 (1972).4. MALONEY, AUSNESS & MORRIS, A MODEL WATER CODE (1972).5. Id. at 156-195.II. FLORIDA WATER LAW 101A. Common LawWater law in the United States stems from two generalcommon law doctrines, divided between eastern states and westernstates. Eastern states, with their more abundant water supply,have developed the riparian system of water use. Western states,with their less plentiful supply, have developed the priorappropriation system.Florida's water law system initially evolved from the easternstates' riparian system. The strict riparian system established anexclusive right of riparians (persons owning land along thewatercourse) to take and use water. The owner of the property wasentitled to receive an unaltered flow of water across the land,without a decrease in quantity or quality. Florida adopted amodified riparian doctrine that employed a reasonable use rule.3Under this doctrine, an upstream riparian owner could reduce orchange the flow of a watercourse as long as they did notunreasonably interfere with another riparian owner's use.The western states' prior appropriation system is oftenreferred to as "first in time, first in right." This rule arose in theearly 1800's during America's Gold Rush. Water was essential tothe development of gold miner's claims. The prior appropriationsystem provided that once water was withdrawn from a stream andput to use, the right to continue that use was perfected andcontinued without interference from new arrivals. These waterrights could be bought and sold and passed down from generationto generation.B. A Model Water CodeFollowing several attempts by the Florida Legislature toaddress Florida's water issues, in 1971 A Model Water Code4 wasdrafted. The goal of the drafters was to create a comprehensiveregulatory system that attempted to combine the best features ofthe riparian and prior appropriation systems, while at the sametime avoiding their pitfalls.5 Primary objectives included morecertainty in water rights, flexibility to adjust water uses whennecessary to accommodate changes in circumstances, and theintegration of planning and regulation for the protection of thequality and quantity of Florida's water resources to maximize theirSpring, 2003] EVERGLADES RESTORATION 3816. Id.7. FLA. STAT. ch. 373 (1972).8. FLA. STAT. § 373.219 (2002).9. FLA. STAT. § 373.216 (2002).10. FLA. STAT. § 373.223(1) (2002).11. FLA. STAT. § 373.223(1)(a) (2002).beneficial uses.6 Thus, the reasonable-beneficial use standard, thestandard still used in Florida today, was introduced. C. Florida Water Resources Act of 1972The Florida Legislature adopted most of the water useprovisions of A Model Water Code unchanged as the Florida WaterResources Act of 19727, ("Act"). Basic premises of the Act includethat:1. east and west common law are blended;2. ownership of land does not carry with it theownership of or the right to use water; and3. Florida's water is held in trust for the benefit ofthe people of the state.The Act established an administrative structure for the regulationof water use through the issuance of permits and water shortagerestrictions. The five water management districts have exclusiveauthority to issue these permits. The Act also included innovativeplanning provisions.1. The Consumptive Use Permit SystemPart II of chapter 373 sets forth the permitting system forconsumptive uses of water. In order to perfect the right to use water,a permit must be obtained.8 Initially, all water uses existing as ofthe date of the Act, other than domestic uses, were required toobtain permits within two years of the Act's effective date or thoseuses would be considered abandoned.9 All applications for water use permits are reviewed under athree-pronged