The history of stormwater and drainage law in Florida is complex, but can be summarized down to this: Don’t flood your neighbors and don’t take all the water.
In the early 1900’s, Florida followed the common-law doctrine and had few or no defined regulations around matters of stormwater and drainage. Essentially, landowners had absolute rights to water on their properties, as long as their use was reasonable. Agricultural landowners were especially important around this time and water uses typically revolved around access to water for irrigation and basic flood protection. Commonly, landowners would extract water from surface water bodies such as rivers and lakes and use that water for irrigation on their property. A reasonable use of this water meant one could extract as much water as they needed without impacting others that had rights to it. For example, one could not take all the water from a stream if it meant the downstream property owner had none for themselves.
“Common law is law that is derived from judicial decisions instead of from statutes. American courts originally fashioned common law rules based on English common law until the American legal system was sufficiently mature…” – Cornell Legal Information Institute
Wetlands were a nuisance to agriculture and ditching was extensive. Networks of artificial drainage ditches were dug to keep normal water levels low, which freed up rich soil for crops. Under the common-law and riparian rights, landowners could freely create these ditches and send more water to their downstream neighbors as long as it didn’t unreasonably impact them. During this period, it was more important to allow upstream neighbors to drain their lands freely through yours (if that was the historic condition). Therefore, landowners couldn’t dam or restrict flows across their property, as that would cause flooding upstream. This compounded into more and more artificial drainage in Florida, which drained wetlands and ultimately increased flood risks downstream, everywhere.
The main point here is that before 1972, drainage law was a subjective art.
Let’s now consider ourselves a new landowner in Florida in the early 1900’s. We want to grow citrus (obviously) and plan on digging a lattice of ditches. How big do these ditches need to be? Can I put a small pond on my site? Can I build a huge barn? The answer: just feel it out. If you’re wrong, then your upstream neighbor will complain and you’ll make your ditches and streams even wider. If a hurricane comes and floods your downstream neighbor, then just call it an act of god.
Just like how gravity didn’t exist before Newton, probabilistic flood risk didn’t exist until… well… sometime after this period. This framework based on reasonable use had holes in it. Throughout this period, wetlands were drained and conveyance features were expanded. Infrastructure was sized based on rules-of-thumb and no one considered the stormwater runoff that would be produced by a hurricane with a 1% annual exceedance probability (a 100-year flood). A natural system that attenuated and captured rainfall was replaced with a man-made system intended on forcing water downstream as fast as possible.
Overall, things could have been worse. The common-law doctrine handled many of the problems that those in Florida faced at the time, which were mainly disputes between adjacent landowners. Wetlands were abundant and seen as a nuisance. Stormwater runoff was seen as a miniscule impact to the overall hydrologic cycle. Hurricanes and floods were seen as unavoidable disasters and it was impossible to notice how these small man-made changes were affecting our resilience against them.
Unsurprisingly, management approaches were based on the rights of the individual and addressed the most prominent issues to them. Collective responsibility and oversight of these issues was nonexistent or severely lacking. As population growth exploded, however, things had to change…
Up next, we move into the 1950’s and beyond, when the common-law doctrine beings to shift to actual statutory regulations for stormwater.
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