Part II of the Florida Water Resources Act of 1972, as
amended, provides a different permitting standard for the continuation
of "existing uses". A permit is required to be issued if the existing
use is a reasonable beneficial use and is allowable under the common
law of the state. Section 373.226(2), Florida Statutes.
At common law, riparian owners and the owners of overlying
property were preferred over non-riparian, non-overlying users.
See, generally, 78 Am.Jur.2d, Waters 285; and 14 ALR 330. However,
even at common law, the right of the abutting owner to take water
from a stream or body of water was not an absolute right. Rather,
it was a qualified right limited to the reasonable use of such waters
with due regard to the rights and necessities of all others interested.
78 Am. Jr.2d, Water 283. Each riparian owner had the right to use
the water for all lawful purposes, so long as his use of the water
was not detrimental to the rights of the other riparian owners.
Taylor v. Tampa Coal Company (Fla.1950) 46 So.2d 392. Similarly,
the property rights relative to waters that naturally percolate
through the land of one owner to and through the land of another
were correlative. The right of the overlying owner to make use of
the ground water was bounded by the perimeters of a reasonable and
beneficial use. Village of Tequesta v. Jupiter Inlet Corporation
(Fla. 1979) 371 So.2d 663.
To the extent the policy statements recited above suggest that
riparian owners and the owners of overlying property have an un-
qualified right to use a portion of surface or ground water, the
statements are not consistent with Florida common law, insofar as
the same will now apply to the continuation of existing uses under
the Florida Water Resources Act of 1972.
March 23, 1981
RE: Riparian Consumptive Uses/
State Water Policy Provisions
Whether the following statements are consistent with current
1. In implementing a consumptive use permit program, the
Department and District shall recognize the rights of the riparian
owners to make a consumptive use of an equitable portion of the
2. In implementing a consumptive use permitting program,
the Department and District shall recognize the rights of the
overlying property owners to make a consumptive use of an equitable
portion of the underlying ground waters.
Under current Florida law, riparian owners do not have a right a
tz- mm ;. Vitiil rcn l uf the surface water adjacent to their prop-
erty that is not also enjoyed by non-riparian users. Similarly,
overlying property owners do not have a right to use -. -. -'-f
the water beneath their property which is not also enjoyed by the
owners of non-overlying property.v -t ,-4 ,n, "f a/- 4A A I
ANALYSIS : F-.
The regulation of the consumptive use of water within this
state has been preempted by Part II of the Florida Water Resources
Act of 1972, as amended. Section 373.217(4), Florida Statutes.
Under this law, in order to obtain a permit for a new consumptive
use, the applicant is required to establish the criteria enumerated
in Section 272.223(1), Florida Statutes. These criteria are applicable
to all applicants. Riparian owners are required to meet the same
criteria as are non-riparian owners. Similarly, the owners of over-
lying property are required to meet the same requirements as those
who own non-overlying land. Rather, the permitting criteria address
the anticipated impact of the proposed use, without regard to the
location of the property owned by the applicant. The two proposed
provisions recited above suggest that riparian owners)and the owners
of overlying property, have a right to make a consumptive use of a
portion of the surface or ground water which is different from the
right of non-riparian owners or the right of non-overlying property
owners. This is not consistent with the current Florida law concerning
new consumptive uses.