March 24, 1981
L. M. Blain
underlying groundwater not actually diverted and applied to
beneficial use. An unexercised common-law riaht to use water
is extinguished at such time as a consumptive using permitting
program is implemented. The right of a property owner to the
usufruct of the water underlying his land is correlative.
(4)' As you pointed out in your May 19, 1980 "Water, Oil &
Quail", talk, "the balancing of those correlative rights was
left by the court to the administrative system of water manage-
ment under the Water Resources Att." Accordingly, "under the
Water Resources Act, the reasonable-beneficial use standard
remains the controlling criterion for evaluating uses of water"
Thank you for the opportunity to comment. My only suggestion
for alternative language that would be consistent with law is
a paraphrase of Section 373.171(2), to wit:
"In implementing a consumptive use permitting program,
the Department and District shall act with a view to
full protection of the existing rights to water in
this State insofar as is consistent with the purpose
of Chapter 373, Florida Statutes."
cc: J. T. Ahern
March 24, 1981
TO: L. M. BLAIN, General Counsel
FROM: J. EDWARD CURREN, Attorney, Legal Department --
RE: Response to legal issues raised by letter of
March 20, 1981
This will confirm my oral response to your letter of March 20,
regarding the two State Water Policy statement proposals. We
did not receive it until the 23rd and you needed immediate
My comment was that each statement is inconsistent not only with
current Florida Law but also with the common law of the State
and would be onerous to the State Water Policy.
My quick research provides the following:
(1) Regarding the concept of proportionate share or "equita-
ble portion", the comment appearing on page 12 of the Water
Resource Research Center's Fldrida Water Law 1980 seems on point:
"Moreover, neither the priority of use nor the extent
of riparian frontage or riparian land are generally
considered in determining reasonableness. Although
riparian rights areas regarded as equal or correlative,
each riparian user is not necessarily entitled to a
proportionate share of the available water."
(2) Regarding a riparian right to the consumptive use of
the water, the law recognizes only the riparian right to the use
of water and this right is equal, not proportionate. Each riparian
owner has the right to use the water so long as his use is not
detrimental to the rights of other riparian owners. One riparian
owner may choose to use the water in its natural state for recrea-
tion (non-consumptive) while another may desire to divert it for
an artificial use such as irrigation (consumptive). The consump-
tive user has no superiori right"to take water to the detriment of
the non-consumptive user. Taylor vs. Tampa Coal Co., (Fla. S.C.
1950) 46 So. 2d 392.
(3) Regarding the rights of the overlying property owner to
use groundwater, Village of Tequesta-vs. Jupiter Inlet Corporation
(Fla. S.C. 1979) 371 So. 2d 661, should have settled the question.
The "right to use" is not "private property". The ownership of
the land does not carry with it any ownership of vested rights to