The Florida Senate

Interim Report 2010-114 September 2009

Committee on Environmental Preservation and Conservation

CHAPTER 373, F.S., WATER RESOURCES

Issue Description

During the past two regular sessions, legislation has been filed which proposes to reorganize and create a new Part

VII of Chapter 373, F.S.1 Chapter 373, F.S., represents the cornerstone of laws related to creation and operation of

the water management districts (WMD), planning and regulating the use of water, Everglades and Lake 

Okeechobee restoration, water supply, and wetlands. The focus of this report will examine several aspects of the 

law governing Florida’s water resources, including:

The development of the Riparian Rights Doctrine,2

The history that led up to the creation of Chapter 373, F.S.,

The construction and evolution of Part I of this chapter,

Analysis of the sections governing water resources in Part I,

Findings and conclusions, and

Recommendations.

Background

Riparian Rights Doctrine

There are two distinct ideological underpinnings of laws governing water usage in the United States. Western, 

drier states use the law of prior appropriation. Users have a priority property right in the water they have 

appropriated. It is often called the “first in time, first in right” doctrine.

3 Eastern states, including Florida, 

generally follow the doctrine of riparian rights. This doctrine is rooted in English common law4and was upheld in 

Tyler v. Wilkinson.

5 There are several characteristics unique to riparian rights:

All water rights are equal for riparian owners. There are no priority rules. 

The quantity of water used is the amount that can be reasonably and beneficially used by the riparian 

owner.

Consumptive use is permissible as long as it is reasonable and does not deprive other users of their rights.

The rights are conferred on riparian lands only. They cannot be transferred or used on other non-riparian 

parcels.

The riparian rights are not extinguished when the land is sold. They run with the land. 

Riparian owners do not lose their water rights by non-use and may resume reasonable usage at any time.

The Water Resources Act of 1957

Florida is well known for its abundance of rain during the rainy season and, to a lesser extent, its cyclical 

 

1

Senate Bill 2088 (2008); House Bill 1111 (2009).

2 Riparian land abuts the bank of a stream, river, or other water body. (Black’s Law Dictionary)

3 Charles R. Fletcher, Florida Water Resource Development: A Call for Statewide Leadership, 18:1 J. of Land Use 113 

(2002) (citing Sax and Abrams, Legal Control of Water Resources 154, 158-62 (1986)).

4

Id. at 126. 

5

24 F.Cas. 472 (C.C.D.R.I 1827). The case involved Rhode Island mill owners who used a stream to power their mills. The 

dispute over water arose when downstream mill owners accused upstream mill owners of using too much water. The court 

held the upstream mill could not deprive the downstream mill of its use of the stream, even though it was first in priority. 

They each had an equal right to the stream’s flow as long as such use was reasonable and beneficial.
Page 2 Chapter 373, F.S., Water Resources

droughts. The wet season usually lasts from May to October with significant year-to-year variations.

6 What is less 

well known about the state today is its history of flooding in the 1920s and 1940s. The resultant call for flood 

control by property owners and farmers changed how the state managed water. The floods from multiple 

hurricanes and tropical storms in the late 1920s and again in the 1940s killed thousands of people and decimated 

livestock and other property in South Florida below Lake Okeechobee. These storm events coupled with a 

crippling drought during the interim years led to a public outcry for water management south of the lake.

7

The federal government responded by authorizing the Central and Southern Florida Flood Control Project 

(C&SF) in 1948.8It represents the first step in significant water management that continues today. In fact, the 

C&SF project spawned the first multipurpose WMD, the Central and Southern Florida Flood Control District, 

which is the direct predecessor of the South Florida WMD.

9

In 1955, the Florida Legislature established the Water 

Resources Study Commission to conduct a study and report its findings on the possible enactment of 

comprehensive water legislation. The Commission studied existing water law in Florida and recommended 

creating new legislation to govern water usage. The Commission’s report resulted in Florida’s first comprehensive 

water legislation, the Florida Water Resources Act of 1957, codified as Chapter 373, F.S. Under the 1957 Act, 

existing WMDs were authorized to regulate water usage as long as its regulation did not preempt existing 

reasonable and beneficial uses of water.10 However, flood control was the primary goal of the 1957 Act, not 

comprehensive water resources regulation.

Development of A Model Water Code11

In 1967, Frank E. Maloney, former Dean of the University of Florida Law School, set out to create a model water 

code for Florida. He realized that neither the riparian rights doctrine nor prior appropriation was sustainable for 

the state’s water resources. Over the next five years, he and his team created a hybrid regulatory scheme that 

would take the best parts of both. The authors designed the model with three purposes:

to take into account the hydrologic interrelationship of all types of water resources in the state; to 

provide greater certainty than is possible under a court-administered reasonable use approach; yet 

to retain sufficient flexibility to make possible realistic long-range plans for the conservation and 

wise use of water resources and the elimination of waste.12

The authors envisioned an administrative regulatory structure based on a riparian-appropriation hybrid system to 

meet the last of these purposes. A Model Water Code was published in 1972 and its first four chapters are the 

basis for much of the Water Resources Act of 1972.

13

Evolution of Chapter 373, Florida Statutes

The Water Resources Act of 1972

The 1972 Act significantly modified Chapter 373, F.S., principally addressed flood control, the management and 

storage of surface water, the regulation of consumptive use of water including wells, and the governance of the 

WMDs. The 1972 Act provides for a two-tiered administrative structure governing water quality and 

consumption. The Department of Natural Resources (now the Department of Environmental Protection (DEP))

was given general supervisory authority to coordinate statewide efforts for water management.14 The second tier 

 

6 Randy Lascody, The Onset of the Wet and Dry Seasons in East Central Florida - A Subtropical Wet-Dry Climate? available 

at http://www.srh.noaa.gov/mlb/wetdry/WetDrySeason.html (last visited Sep. 17, 2009).

7 Comprehensive Everglades Restoration Plan. Everglades: A Brief History. available at 

http://www.evergladesplan.org/about/learn_everglades.aspx (last visited Sep. 20, 2009).

8

Id.

9

Frank E. Maloney, et al., Florida Water Law 1980 (Univ. of Fla. Publication No. 50).

10 Fletcher, supra note 3, at 117.

11 Frank E. Maloney, et al., A Model Water Code with Commentary (Univ. of Fla. Press 1972).

12 Id. at vii.

13 Fla. Stat. 373 (2009). The first four chapters of A Model Water Code were enacted as the Water Resources Act of 1972

with only minor changes.

14 § 373.026(7), F.S. (2009). 
Chapter 373, F.S., Water Resources Page 3

was the creation of six WMDs along hydrological boundaries.15 Each WMD has broad regulatory authority for 

managing water resources and ad valorem taxing authority to raise revenue for water projects. However, the 1972 

Act did not address water supply, which was wholly managed under the state’s water plan. Since the 1972 Act’s 

passage, Chapter 373, F.S., has been amended numerous times to address burgeoning problems with water 

resources of the state.

One of the most important aspects of the 1972 Act was the establishment of minimum flows and levels for the 

state’s surface waters and groundwaters.16 The goal of establishing such levels was to ensure there would be 

enough water to satisfy consumptive use and public purposes. Maloney, et al., commented that commercial 

navigation, recreational boating, fishing, swimming, hunting and ecological protection are public purposes that 

needed protecting.17 By establishing minimum flows and levels for non-consumptive use, water managers, 

theoretically, would then be able to establish how much water was available for consumptive use. Unfortunately, 

a 1994 report by the Florida House of Representatives showed that only two minimum flows were established by 

rule.18 In addition, Pinellas County and Concerned Citizens of Putnam County filed lawsuits against the 

Southwest and the St. Johns River WMDs, respectively, to enforce establishment of minimum flows.19

1997 Amendments

The report and lawsuits spurred the Legislature to action. In 1997, it amended the Act to include additional 

initiatives for water development projects by the WMDs.20 The primary goals of the 1997 amendments were to 

identify scarcities, develop additional water resources to accommodate those shortfalls and provide water 

necessary for continued growth.21

The statute requires the five water management districts to initiate regional water supply planning in all areas of 

the state where reasonably anticipated sources of water were deemed inadequate to meet year 2020 projected 

demands. Plans have been completed by all districts, except for the Suwannee River Water Management District 

which anticipates no shortages during the planning horizon. The districts are now undertaking the required 5-year 

update of these plans.22 The statute also requires that the plans contain a list of “water supply development 

projects” and a list of water resource development projects that support water supply development.23

The 1997 amendments made a distinction between water supply and water resource development. Water supply 

development is primarily the responsibility of water utilities and other water users and is defined as the planning, 

design, construction, operation and maintenance of public or private facilities for water collection, treatment and 

distribution for sale, resale or end use.24 Water supply development assistance represents water management 

district financial assistance for regional or local water supply development projects.

Water resource development is primarily the responsibility of the water management districts and includes such 

things as collection and evaluation of water data, structural and non-structural programs to manage water 

resources, construction and operation of major public works facilities for flood control and water storage, and 

technical assistance to water utilities.25 Water resource development projects are considered a subset of water 

resource development.

 

15 In 1977, the Florida Legislature dissolved the Ridge and Lower Gulf Coast WMD and divided its territory between the 

South Florida and Southwest Florida WMDs. (§ 113, ch.77-104, L.O.F.)

16 Maloney, supra note 11; Fla. Stat. § 373.042(1) (2009).

17 Id. at 106.

18 Fla. H.R. Comm. on Natural Res., Analysis and Modeling of Water Supply Issues for the Region Bounded by 

Hillsborough, Manatee, Pasco and Pinellas Counties 13-15 (1994).

19 Fletcher, supra note 3, at 120.

20 §§ 3, 4, ch. 97-160, L.O.F.

21 Fletcher, supra note 3, at 120.

22 Fla. Stat. § 373.0361(2) (2009).

23 Fla. Stat. § 373.0831(4) (2009).

24 Fla. Stat. § 373.019(24) (2009).

25 Fla. Stat. § 373.019(22) (2009).
Page 4 Chapter 373, F.S., Water Resources

2005 Amendments

Largely heralded as the most significant bill of the 2005 Legislative Session, SB 444 added major revisions to

Chapter 373, F.S. Historically, water resources management in Florida regulated water for flood, drought, 

consumptive uses and public purposes. SB 444 was the first time in Florida that alternative water resource 

development, and the money for such, was implemented. The amendments provided numerous changes to Florida 

water protection and alternative water supply development programs. The primary goal of SB 444 was to create a 

$100 million annual funding program entitled the “Water Protection and Sustainability Program” to assist in the 

implementation of many existing water protection and development programs.26 In addition, funding was

provided for a new alternative water supply development program. The 2005 amendments also created definitions 

for “alternative water supplies,” “capital costs,” and “multijurisdictional water supply entity.”27 The WMDs and 

local governments roles and responsibilities for developing alternative water supplies were defined and clarified 

or expanded where necessary. Additionally, developing alternative water supplies was declared in the public 

interest.

28 Finally, the 2005 amendments updated and further clarified how regional water supply plans were 

developed.29

Specific Water Resources Sections of Chapter 373, Florida Statutes

It is important to understand how the various sections of and amendments to Chapter 373, F.S., fit together when 

evaluating the chapter as a whole. The following sections of Chapter 373, F.S., specifically regulate or control

water supply policy, planning and production in the state:

§ 373.016, F.S., Declaration of policy

§ 373.019, F.S., Definitions

§ 373.036, F.S., Florida water plan; district water management plans

§ 373.0361, F.S., Regional water supply planning

§ 373.0391, F.S., Technical assistance

§ 373.0831, F.S., Water resource development; water supply development

§ 373.196, F.S, Legislative findings

§ 373.1961, F.S., Water production

§ 373.1962, F.S., Regional water supply authorities

§ 373.1963, F.S., Assistance to West Coast Regional Water Supply Authority

Section 373.016, F.S., Declaration of policy

Section 373.016, F.S., was an original section of the 1972 Act. At that time, it did not embody a strong policy 

towards water supply planning and production. Section 373.016, F.S., was amended in 1997 to add what is now 

paragraph (3)(d). This paragraph establishes that the “availability of sufficient water for all existing and future 

reasonable-beneficial uses and natural systems” shall be promoted.

30 One year later, paragraphs (4)(a) and (b) 

were added to encourage consumptive uses of local water resources first before transporting water across county 

boundaries.

31

Section 373.061, F.S., Florida water plan; district water management plans

Section 373.061, F.S., was also an original section of the 1972 Act. The statute directed the Department of 

Natural Resources to study the state’s water resources and formulate a state water plan.32 Maloney, et al., realized 

that duplication of effort and lack of communication over the state’s water resources resulted in inefficiencies.33

 

26 § 3, ch. 2005-291, L.O.F.

27 § 1, ch. 2005-291, L.O.F.; “alternative water supplies” means water developed from any non-traditional source, including 

salt water, brackish water, additional storage capacity, reclaimed water, etc. 

28 § 2, ch. 2005-291, L.O.F.

29 § 3, ch. 2005-291, L.O.F.

30 § 11, ch. 97-160, L.O.F.

31 § 1, ch. 98-88, L.O.F.

32 §§ 6, 7, part I, ch. 72-299, L.O.F.

33 Maloney, supra note 11, at 109.
Chapter 373, F.S., Water Resources Page 5

The Florida water plan was designed to combine the state water use plan with water quality standards to create a 

master plan for Florida.34 There have been two significant amendments to this section since its enactment in 1972.

In 1997, this section was amended to require each WMD governing board to develop a district water management 

plan.35 The key provision directed the governing boards to use a 20-year planning horizon in evaluating whether 

existing and reasonably anticipated sources of water could meet their current and future needs. The plans had to 

account for water used for both consumptive uses and natural systems.36 The section was amended again in 2005 

and directs the governing boards to include alternative water supplies in their updated plans.37

Section 373.0361, F.S., Regional water supply planning

In 1997, the Legislature addressed water supply planning at the regional level. Section 4 of Chapter 97-160, 

L.O.F., created the regional water supply planning process. In 2004, the Legislature revised this section further, 

clarifying the requirements for the regional water supply plan (RWSP).38 The amendments regulate the water 

supply development component of the RWSP and include: 

Requiring WMDs to hold at least one public workshop prior to completion of a RWSP to discuss the 

technical data and modeling tools anticipated to be utilized in its development,

Identifying the best available data for utilization to project populations,

Allowing the use of water conservation and demand management measurements as water source options 

in water supply development,

Including reservation of water as a component of the RWSP, and

Requiring reporting progress made in developing water supplies consistent with a RWSP.

In 2005, the Legislature substantially reworked s. 373.0361, F.S.39 The revision added new language regarding 

public education and assessment of the impacts of minimum flows and levels on water supply needs. It also added

listing of water supply development projects, the joint development of RWSP and annual reporting requirements 

to the DEP on the status of regional water supply planning. A new subsection was added requiring the WMDs to 

notify the affected local governments and make every reasonable effort to educate and involve local public 

officials in working toward solutions when the water supply component demonstrates a need for one or more 

alternative water supply projects. An additional provision allows local governments to prepare their own water 

supply assessments to determine if existing water sources are adequate. This assessment must be submitted to the 

appropriate WMD to be considered when the RWSP is being developed or updated.

Section 373.0391, F.S., Technical assistance to local governments 

Section 373.0391, F.S., was added to Chapter 373, F.S., in 1989 and requires the WMDs to provide a range of 

technical services to assist local governments. The primary assistance is in the preparation and implementation of 

local comprehensive plans and public facilities reports.

Section 373.0831, F.S., Water resource development; water supply development

In association with regional water supply planning, s. 373.0831, F.S., was another significant section added in 

1997.

40 This section provides for legislative findings and intent relating to the planning and development of water 

resources and the production of water supplies from those water resources. This section was revised in 2004 to 

add subparagraph (4)(c). It dealt with permitting and funding for the development of alternative water supplies but 

the Legislature repealed it in 2005 in favor of larger reforms in this area.41 This section was again amended in 

 

34 Id. at 110.

35 § 3, ch. 97-190, L.O.F.

36 Id.

37 § 4, ch. 2005-36, L.O.F.

38 § 9, ch. 2004-381, L.O.F.

39 § 9, ch. 2005-291, L.O.F.

40 § 11, ch. 97-160, L.O.F.

41 § 4, ch. 2005-291, L.O.F.
Page 6 Chapter 373, F.S., Water Resources

2008 to include priority funding assistance for projects that implement reuse strategies that lead to the elimination 

of domestic wastewater ocean outfalls.42

Section 373.196, F.S., Alternative water supply development

Section 373.196, F.S., was created in 1974.43 It contains provisions regarding the need for cooperation between 

local governments and the WMDs in order to meet the needs of the increasing demand on water resources of the 

state. It also authorizes the creation of regional water supply authorities. Subsection (2) of section 373.196, F.S., 

was amended in 1998 and provided that the WMDs are to have the power to engage in functions “that are related 

to water resource development pursuant to s. 373.0831.”44 This amendment reconciles the powers given to the 

WMDs in 1997, specifically granting them responsibility for water supply planning and water resource 

development.

In 2005, the Legislature substantially revised s. 373.196, F.S., by passing SB 444.45 The amendments made 

changes to legislative findings regarding state water policy.

These findings acknowledge that:

Demand for natural supplies of fresh water will continue to increase,

There is a need for development of alternative water supplies to sustain the state’s economic growth and 

its natural resources,

Cooperation among all interest groups is required to develop adequate and dependable supplies of water 

and such efforts should use all practical means,

Regional Water Supply Authorities are encouraged and used to facilitate the development of county-wide 

and multi-county projects that achieve necessary economies of scales and efficiencies,

Public moneys and services provided to alternative water supply development, even to private interests 

for this purpose, serve a public interest, and

In order to provide sufficient water and to avoid the adverse impacts of competition for limited supplies, 

coordinated efforts with the WMDs are required, and creating funding sources necessary to develop 

alternative water supplies is a shared responsibility.

The primary roles of the WMDs, local governments, and others regarding alternative water supply development 

were refined. The roles of the WMDs are the formulation and implementation of strategies and programs; 

collection and evaluation of data; construction, operation and maintenance of facilities for flood control, storage, 

and recharge; planning for development in conjunction with local governments and others; and providing 

technical and financial assistance.46

The primary roles of local governments, regional water supply authorities, special districts, and water utilities are

planning, design, construction, operation, and maintenance of alternative water supply development projects; 

formulation, development, and implementation of alternative water supply development; planning, design, 

construction, operation, and maintenance of facilities to collect, divert, produce, treat, transmit, and distribute 

water; and coordination of activities with appropriate WMDs.47

Section 373.1961, F.S., Water production

Section 373.1961, F.S., was enacted in 197448 and has been amended several times since, with the most 

significant and recent changes stemming from the passage of SB 444 in 2005.49 This section contains four 

 

42 § 2, ch. 2008-232, L.O.F.; according to a University of Florida report, domestic wastewater ocean outfalls in Miami-Dade, 

Broward and Palm Beach Counties accounted for nearly 400 million gallons per day in 2005. By 2025, those estimates rise to 

475 million gallons per day and exceed the permitted capacities (available at

http://www.dep.state.fl.us/water/reuse/docs/OceanOutfallStudy.pdf (last visited Sep. 30, 2009)).

43 § 1, ch. 74-114, L.O.F.

44 § 2, ch. 98-88, L.O.F.

45 § 2, ch. 2005-291, L.O.F.

46 Id.

47 Id.

48 § 2, ch. 74-114, L.O.F.
Chapter 373, F.S., Water Resources Page 7

subsections: Subsection (1) sets forth the powers and duties of the WMD governing boards with respect to the 

production of water; Subsection (2) sets forth the identification and reporting of alternative water supply 

development funding in the WMDs’ budgets; Subsection (3) sets forth the allocation, allowed uses, and 

conditions of funding provided through the Water Protection and Sustainability Program and its Trust Fund; and 

Subsection (4) sets forth the conditions a WMD may attach to reuse projects that receive funding assistance.

The revisions of SB 444 include:

Identification of water supply needs in WMD budgets, new subsection (2), requires the WMDs to identify in their 

annual budgets the amount needed to implement alternative water supply development projects, as prioritized in 

their RWSP.50

A dedicated source of funding was developed in subsection (3), and established several provisions:

51

Distributes state funding granted to the WMDs for use in developing alternative water supply projects 

under the Water Protection and Sustainability Program. 30 percent of the funds go to the South Florida 

WMD, 25 percent each to the Southwest Florida and St. Johns River WMDs and the remaining 20 percent 

is split evenly between the Suwannee River and Northwest Florida WMDs. 

Allows funds to be used for other water resource development projects including springs protection, if the 

WMD is without a RWSP (Suwannee River) or has no alternative water supply development project 

needs.

Requires all applicants to submit the total capital cost of their projects. 

Requires all applicants to provide, at a minimum, 60 percent of the total capital costs of the project. The 

magnitude of state and WMD funding is determined per project.

Provides the WMDs the latitude to grant waivers for the match requirement for financially disadvantaged 

small local governments.

Allows the WMDs to accept non-state funding to meet match requirements.

Gives the governing boards the flexibility to use up to 20 percent of these funds for projects not 

specifically identified in the RWSP, but that are consistent with it.

Requires that utilities receiving funds establish rate structures that promote conservation of water and 

promote development of alternative water supplies.

Establishes additional factors to be used by the governing boards in prioritizing and funding projects. The 

factors that require significant weight in the governing funding decision include: 

o Whether the project provides substantial environmental benefits by limiting adverse water 

resource impacts.

o Whether the project reduces competition for water.

o Whether the project brings about replacement of traditional water sources to aid in the 

implementation of minimum flows and levels, or reservations.

o Whether the applicant is achieving goal based targets for water conservation.

o The quantity of water supplied compared to its cost.

o Projects in which reuse is a major component.

o Whether the applicant is a regional water supply authority or multi-jurisdictional water supply 

entity.

The WMDs are required to conduct at least one public hearing prior to adopting a priority list of projects eligible 

for funding.52

Section 373.1962, F.S., Regional water supply authorities

In 1974, the Legislature established a process for the creation of regional water supply authorities in s. 373.1962, 

F.S.53 Numerous minor amendments have been made to the section since then. The establishment of regional 

water supply authorities requires approval by the Secretary of the DEP. They may be created to develop, recover, 

 

49 § 3, ch. 2005-291, L.O.F.

50 Id.

51 Id.

52 Id.

53 § 7, ch. 74-114, L.O.F.
Page 8 Chapter 373, F.S., Water Resources

store, and supply water for county or municipal purposes. Those activities must be prioritized to reduce adverse 

environmental effects of excessive or improper withdrawals of water from concentrated areas.54

Section 373.1963, F.S., Assistance to West Coast Regional Water Supply Authority

Section 373.1963, F.S., was created in 1976 to address issues relating to the governance of the West Coast 

Regional Water Supply Authority.

55 The section has been substantially rewritten three times with the last rewrite 

coming in 1998.

56 The West Coast Regional Water Supply Authority is currently known as Tampa Bay Water. 

Tampa Bay Water is a special district that serves as a water wholesaler for its member governments: Hillsborough 

County, Pasco County, Pinellas County, New Port Richey, St. Petersburg and Tampa.

House Bill 1111, 2009 Legislative Session

HB 1111 was introduced during the 2009 Legislative session. It proposed creating a new Part VII of Chapter 373, 

F.S., to include all sections of Part I of Chapter 373, F.S., that address water supply policy, planning, production 

and funding. The bill passed unanimously through both the House Government Accountability Act Council and 

the House General Government Policy Council before ultimately being indefinitely postponed. The goal of the 

bill was a non-substantive reorganization of the relevant sections. Unfortunately, detailed analysis of the bill 

illuminated numerous substantive changes. One such change was repealing the “local sources first” exemption for 

reuse of reclaimed water and stormwater and use of reclaimed water by electrical utilities.57

Findings and/or Conclusions

Water Use in Florida

Water is the lifeblood of Florida. It provides for our economic growth, natural beauty, food and electricity. 

Unfortunately, Florida’s existing natural water resources will not be sufficient to supply Florida’s needs in the 

future. Florida is the fourth most populous state with over 18 million residents. By 2020, Florida expects to climb 

into the third spot with an estimated 23.5 million residents.58 Additionally, more than 80 million tourists visit the 

state each year.59 By 2020, total water use is expected to be about 9.3 billion gallons per day, an increase of nearly 

2 billion gallons per day over 1995 levels.60

Within water use sectors, agriculture is projected to account for 47 percent of the 2020 demand, followed by 

public water supply at 33 percent. Recreational irrigation will account for 8 percent with an additional 8 percent 

going to industrial, commercial, and power generation activities. While the projected growth in water demand is 

not as rapid as the growth in population, it is substantial.61

Because of the significant growth in demand and the realization that traditional sources will not be sufficient, the 

development of alternative water supplies is necessary. Alternative water supplies typically take many years to 

plan, design and construct, and are more expensive than traditional sources. Due to these higher costs, many 

suppliers have chosen not to develop alternative water supplies. For those projects that have been undertaken, 

significant cost-share arrangements must be utilized.

 

54 § 5, ch. 2005-191, L.O.F.

55 § 13, ch. 76-243, L.O.F.

56 § 4, ch. 339, L.O.F.; § 30, ch. 97-160, L.O.F.; and § 2, ch. 98-402, L.O.F.

57 § 373.701(3), HB 1111 (2009)

58 U.S. Census Bureau, available at http://quickfacts.census.gov/qfd/states/12000.html (last visited Sep. 30, 2009)

59 VisitFlorida.org, Research FAQ, available at

http://www.visitflorida.org/Content/NavigationMenu/PromoteYourBusiness/ToolsResources/Research/ResearchFAQ/default

.htm (last visited Sep. 30, 2009).

60 Florida Water Plan, 2004 update.

61 Id.
Chapter 373, F.S., Water Resources Page 9

Chapter 373, Florida Statutes, Revisions

Chapter 373, F.S., has undergone multiple revisions and additions since its enactment in 1957. The various major 

revisions have rendered the sections regulating water resources difficult to read as a whole, let alone navigate and 

understand from a regulatory perspective. This complexity, and the resultant inherent regulatory difficulties, stem 

from the multiple purposes of Chapter 373, F.S. as it has evolved over the last 50 years.

As originally enacted in 1957, the primary purpose of Chapter 373, F.S., was flood control. The regulatory 

structure was not built for water resource planning or development as no substantial need existed at the time. The 

1972 revisions focused more on water resource management, for example codifying the creation of the five 

WMDs. Unfortunately, the regulatory structure set in place then, which still exists today, created water managers 

that are both regulators and suppliers.

Both the 1997 and 2005 major additions required water managers to forecast and plan for future water use, 

looking at 10-, 15- and 20-year planning horizons. The studies and data collected by the state’s water managers 

show that traditional sources of water are not going to be sufficient to meet Florida’s need in 2020. Yet, it was not 

until SB 444, passed in 2005, that a dedicated funding source was created for the development of alternative water 

projects. Since SB 444’s enactment in 2005, funding for alternative water supply development has subsequently 

been stripped from the Water Protection and Sustainability Trust Fund due to budget shortfalls.62 Thus the focus 

of Chapter 373, F.S., has evolved from flood control to resource management to planning and forecasting to 

alternative resource development.

Although Florida is rich with water, the greatest demand is in the southern part of the state, while the majority of 

water resources (supply) is in the northern part. This disparity in resources creates concerns that the thirstier 

southern population will try to draw off water from the north. In response to these concerns, the “local sources 

first” policy was part of the 1998 amendments to s. 373.016, F.S. The policy discourages transmission of water 

over distance until all reasonable traditional and alternative water resources have been exhausted.63 The 

unintended consequence of this policy and state water management at the district or regional level is counties and 

regions believe that water in their region is “their” water. Florida law is clear that water is a public resource of the 

state and cannot be owned by anyone.64 The WMDs are designed to regulate water within their hydrological 

boundaries, while the DEP has general supervisory authority.65 However, each WMD has its own governing 

board, taxing authority and policies, which marginalizes the DEP’s actual oversight authority.

Options and/or Recommendations

First, given the complexity and the various purposes and goals of Chapter 373, F.S., it is recommended that those 

sections that regulate water resources of the state should be combined into a new Part VII. Although difficult, 

non-substantive reorganization should be possible. Subsequent incarnations, if any, should be able to reorganize 

the relevant sections of Chapter 373, F.S., without substantive changes. In fact, there are current drafts that 

succeed in doing so that have been completed by experts in water law.

Second, annual funding for alternative water supply projects should be restored. Since enactment of SB 444, 

funding for alternative water projects has been steadily siphoned off.66 Funding was completely removed for the 

2009-2010 fiscal year.67 A dedicated source of funding should be developed through either existing or new 

sources of revenue. In addition, projects that result in quantifiable water supply from best-management 

conservation efforts should be considered alternative water supply and be eligible for such grants. Alternative 

water supply projects benefit the state as a whole and the cost should be borne by all. Bonding is just one 

mechanism that may be utilized for alternative water projects.

 

62 2008-2009 Florida Budget.

63

 § 373.016(4)(a), F.S. (2009).

64 Id.

65 § 373.026(7), F.S. (2009).

66 FY 2005-06, 100 million; FY 2006-07, 60 million; FY 2007-08, 52 million; FY 2008-09, 7.7 million; Projected FY 2009-

10, unfunded.

67 In 2009, the Legislature passed SB 1750 directing documentary stamp revenue to the General Revenue Fund.
Page 10 Chapter 373, F.S., Water Resources

Third, the “local sources first” policy should be reviewed. Successes and failures of the policy should be 

examined and evaluated to identify inefficiencies and possible alternative solutions, if warranted. The impact to 

both economic growth and environmental protection also needs assessment. Changes to the policy, if any, must

safeguard water supplies in counties that currently have abundant water resources to ensure those counties can 

meet their forecasted needs.

Last, establish a central regulatory commission that oversees Florida’s water resources and supply development, 

or review the DEP’s role as a general supervisory authority. Currently, there is no centralized body that has 

responsibility for a statewide vision of water resource management or development. Frequently, the five WMDs 

lack consistency in regulation and policy development for a statewide resource that is regionally significant. There 

are many examples of centralized authorities from which to choose: the Florida Board of Governors, the 

Environmental Regulation Commission, The Governor and Cabinet, etc. The people of Florida own the water 

collectively, irrespective of regional jurisdiction, and a statewide body should govern Florida’s water supply 

accordingly.