PPI P A...
184 STATUTORY MODIFICATIONS OF Ch. 6
62.2(c). Compulsory Permits for Use of Surface Water in the
-" Central and Southern Florida Flood Control District '
In contrast with the to-date unsuccessful attempts at water use regulation in
Florida through the establishment of water regulatory districts, the Central and
Southern Florida Flood. Control District presently regulates the consumptive
use of vast quantities of surface water in the District through a compulsory
permit system governing withdrawal and drainage of water into the works of
the District. Implementing the authority conferred by its enabling legislation
to regulate withdrawals from all water bodies in the District,"" the District has
issued numerous permits to agricultural users who want either to discharge into
or to withdraw from District waterways." The permits arc issued for a limited
period,*' thus making it possible to assess the effect of the water management
f/'.M' program after a reasonable interval. This eliminates one of the most serious
Swai.nesses of the "prior appropriation" system, under which such re-evaluation
often is impossible.88
/ The Central and Southern Florida Flood Control District, by its enabling
legislation, is authorized to "make and adopt reasonable rules, regulations, and
/ orders consistent with law.""s It has published an appliralle- pamphlet, entitled '
""Standards of Construction and Permit Procedures," which in part paraphrases
the District's rules and regulations as set out in the Florida Administration
S 1 Code. 0 Under the authority of Rule 152-3.09, th;i pamphlet specifically is made
a part of the District's regulations.
As a condition to receiving permits, permittees are acquired to agree to alter
or cease withdrawals if such action is Qbquired in the interest of the flood
control program.91 The ia:t z :t conditions of permit issuance, printed1 on the
\ reverse of the pern.it appi-atiar- form, are illustrative of the broad powers the
District has reserve.3. to itself'
7. A; pernnittee, I will hold and save the Flood Control District and its
succe.- .r;, harmic'.s from any and all damages, claims or liabilities which
may .ariae by reason of the construction, operation, maintenance, or use
0 o. the work or structure involved in the permit.
3. It is further understood and agreed that any other requirements con-
"tained in Standards of Construction and Permit Procedures are binding
upon me, the applicant and owner, and I do hereby indicate acceptn.. ce|'
of this notice thereof.
The pamphlet contains the following policy statement on the issuing of peu, its.
"The amending or changing of any policy, practice, procedure or regulation,
shall in no way constitute a basis for any claims for damages nor shall bec,;ne
"t '" 85. FLA. STAr. 378.151, 378.17(1) 90. II FLA. ADM'N CODE Chs. 152-1
S, (1967). through 152-11 (1966).
86. II FLA. ADM'N CODE Ch. 152-3 (1966). 91. CENTRAL & SOUThrERaN FLORIDA CON-
\ 87. II FLA. ADM'N CODE 152-3.01(2) TROL DiSTRICT [hereinafter C. & S.F.F.C.D.J,
(1966). STANDARDS OF CONSThUCTION & PERMIT
"88. See discussion 60 supra. PROCEDURES ii (1967).
89. FLA. STAT. 5 378.151 (1967). 92. Id. at .4.
PAGE 1" JF K 1 U
62.2(c) EASTERN CONSUMPTIVE USE DOCTRINES 185
"the basis of a legal suit by any permittee." And finally, "No permit will be
Granted for any use of District's works when granting such would be incon-
sistent with the Comprehensive Plan for Water Control in Central and Southern
Florida."'4 Criteria for withdrawal of water are set by the Hydraulic, and
Hydrology Branch of the Engineering Division of the District.. ,
Are these rules and regulations sufficient to withstand judicial scrutiny? To
date they have not been challenged, although hundreds of permits have been
issued under their authority. The test may well come when a long period of
drought compels the Flood Control District to undertake some sort of enforced
If suit were brought challenging the validity of such regulations, it is doubtful
that a permitted could raise the constitutional claim .of a taking of property
without due process of law.)0 While under the easterti riparian system riparian
owr.ers on natural waterbodies might be able to make such an argument,0' users e,
of water from the artificial canals and waterways of the District do not have
such common law property rights. The District's position is stated in the Rules:
"Permits for the use of the District's right of way convey no property rights
in the right of way, nor any other rights or privileges other than those specified
in the permit."9' A leading early authority on water law agrees: "Long receipt .
by them [users from an artificial water course] of the water itself gives no
permanent right to have the discharge continued, whether by appropriation,
prescription, or estoppel, even though the lower claimants built exp-ensive ditches
*I or flumes to catch the waste."99 Some writers have argued h. u sub!iantial
expectancy of governmental largess may be a quasi-pr:,; r,- .r :' ; ,-, '
this type of property right and due process argument prrboablt wct d fail una ,
the current state of the law.
If, however, a landowner b use permit were revoked summarily, he migni well -'
have a cause of action based on absence of equal protection or on the arbi(ari-
ness of the District'- ,ction.101 Even though the permit procedures make it
clear that the permit-ee has no property right in the use of water, he nevertheless
must Le accorded the fundamental procedural fairness that all governmental
officials who ,are engaged in essentially proprietary activities are bound to
observe." This standard is not as exacting as constitutional due process de-
n mands, but it is a standard employed in cases .in which permittees are said to
be exercising a privilege rather than a right.0.
\. 9;1. Id. at 2. .(1904).
S ;. r'. 100. See Reich, The New Property, 73
') I 95. ii. 't 17. YALE L.J. 733 (1964).
". 96. IExcept perhaps a riparian permitted 101. North Broward Hospital Dist. v.
on a natural watep.bcdy; as to such see dis, Mizcll, 148 So. 2d 1 (Fla. 1962).
cuss! 63.2 infra. 102. See Bryant v. City of Lakeland, 28
C -'97. C. & S.F.F.C.D., note 91 supra, at 17. So. 2d 106, 110 (Fla. 1946). 1/
9.' II FLA. ADoM'N CODE 152-3.01(1) 103. North Broward Hospital Dist. v.
<(i9<:.5). Mizell, 148 So. 2d 1 (Fla. 1962); Barrow
"! .. 99. WrI., WATER RIGHTS IN THE WEST- Holland, 125 So. 2d 749 (Fla. 1960); Lewiss
raRN STATES 52 (3d ed.) (1911); but see 3 v. Florida State Bd. of Health, 143 So. 2d
FARNnAM, WArs & WATER RIGHTs 629 867 (1st D.C.A. Fla. 1962).
186 STATUTORY MODIFICATIONS OF Ch. 6
Because the Central and Southerin Florida Flood Control District filed under
"the Florida Administrative Procedure Act,10' a permitted may claim the advan- .
ages of the act's rcquirements. Initially it was questionable whether the District
Swas contemplated by the Administrative Procedure Act's provisions. The act
is applicable to "state agencies,""'0 which is a classification that only partially ,
describes the Central and Southern Florida Flood Control District. The Dis-
trict, in the words of one Attorncy(9eneral, "is a cooperative project carried on
jointly by the State of Florida and the United States Government."""' It validly
",* levies ad valorem taxes on the residents of counties in which the District's works
,are located,o07 something the state is prohibited from doing by the Florida Con-
stitution.108 It is designated a public corporation'1' created by the legislature as
a governmental agency of the state for certain definite purposes.110 .
In similar factual circumstances the North Dakota Supreme Court held that
"the Heart River Irrigation District and its board of directors were not adminis-
trative agencies within the meaning of the rules of appellate procedure because
S. the District lacked the requisite of state-wide jurisdiction.111 In Florida, however,
"several Attorney Generals' opinions have designated the Central and Southern
Florida Flood Control District as a state agency,112 and one opinion in particular,
060-114 (1959-1960) set out specific connections the District had with the
state that.justified its categorization as a governmental agency of the state, at
least for many purposes."a
The language of the Florida Administrative Procedure Act broadly extends
Sits coverage to any party's legal rights, duties, privileges, or immunities that
have been adjudicated by a state agency, thus establishing minimum due process
requirements."4 This means that the permitted will be guaranteed a public
hearing, unless the right to such hearing is waived by him.n" Concerning judicial
\ review, the permitted may obtain a declaratory judgment as to the validity of
any rule that has affected him,"0 this action to be brought in the circuit court
of the agency's executive offices or in the circuit court of his residence county.
The Florida Administrative Procedure Act also makes it possible for the final
10-. FLA. STAT. Ch. 120 (1967). of the state legislature (Ch. 25214. 1949).
105. FLA. STAT. 120.021 (1967). The district is comprised of numerous coun-
106. [1965-1966] Fr.A. \ r'v GEN. BIEN* ties covering a large portion of the state
"NIAL REP. 066-19. ( 2. Ch. 25214; -pra). The members of
107. Bair v. Central & S.F.F.C.D., 144 the board of the district are appointed by
So. 2d 818 (Fa. 1962). the governor and confirmed by the state ,
108. FLA. CONsT. art IX, 2. senate ( 378.13(3), F.S.). The district de.
109. FLA. STAT. 378.01 (1967). rives its taxing power from state legislative
110. Forbes Pioneer Boat Line v. Board enactments ( 3, Ch. 25214, 1949; 378.20.
of Comrm'rs of Evergladel Drainage Dist., and 378.29, F.S.). The district's accounts
""77 Fla. 742, 82 So. 346 (1919). are subject to audit by the state auditor
"111. In re Heart River Irrigation Dist., ( 378.43, F.S.). The legislative appropria-
/ 49 N.W.2d 217 (N.D. 1951); ci. Bryson v. tion for Florida flood control districts for
1, llHigh Plains Underground Water Conserva- the biennium period 1959-1961 was
l tion .Dist. No. 1, 2 S.W.2d 117 (Tex. $3,250,000 (Ch. 282, F.S.)." [1959-19601-
: 1956). FLA. ATT'Y GEN. BIENNIAL REP. 060-114.
S112. [1961-1962] FLr.A. Arr'Y GEN. BIEN- 114. FLA. STAT. 120.20, 120.26 (1967).
N MAL REP. 062-115: [1965-1966] FLA. Artr'Y 115. FLA. STAT. 120.22 (1967).
SGEN. BIENNIAL REP. 065-72, 066-19. 116. FLA. STAT. 120.30 (1967).
113. "The district was created by an act
62.2(c) EASTERN CONSUMPTIVE USE DOCTRINES 187
order of the agency's proceeding to be reviewed by certiorari in the district
court of appeal."T The statute further states: "If the order has the effect of
suspending or revoking a license, supersedeas shall be granted, as of right, upon
such conditions as shall be reasonable.. .""8 Finally, when appropriate, an
adverse order of the District could be attacked by m*andamus, prohibition, or
SThe Administrative Procedure Act probably would have little real effect on
9the outcome of a challenge to the District's rules. It is a commonplace attitude
of Florida courts, that they will not attempt to interfere with the action of
administrative agencies unless the invalidity of the administrative act is not
subject to reasonable differences of opinion,120 and only where there is a clear
violation of constitutional and statutory rights of affected parties.121 A broad
generalization, such as "The amending or changing of any policy, practice,
procedure or regulation shall in no way constitute a basis for any claims for
Damages : shall become the basis of a legal suit by any permitted,"'22 would
probably ie. held a constitutional exercise of rule-making by the simple expedient
S+ of implvilg reasonability in the exercise of authority under such sweeping
Slanguage. The District's acts of amending or changing policies, practices,
procedures, and regulations would be upheld so long as they were "reasonable."
If a District order were unreasonable and prejudicial to the permitted, the .
courts probably would invalidate only the specific order affecting the permitted,
-. but :iot the rule. In this way the rule would be saved and the final order referred
back to the District so that it could be made reasonable in application to the
particular case.123 The kind of vague standards found in the District's permit
rules generally are not invalid where the public interest is sufficient to require
them. In view of the difficulty of drafting more precise substantive regulations
j prior to unforeseen emergencies, the District has left the rules broad in order to
meet specific rationing demands.
"Though the modem tendency would be for courts to uphold the rules of the
District, even though broad, on the ground that they constitute a reasonable in-
terpretation of the statutes authorizing them, at least one Florida case suggests
that rules such as have been promulgated by the Flood Control District could be
too vague to afford the permittees sufficient guidelines with which to comply.
In this case the First District Court of Appeal held that the State Board of Health
f had no specific grant of authority to regulate commercial spraying of lawns and
", ornamental shubbery in residential areas with toxic pesticides. In particular the
court invalidated a licensing regulation which stated that in order for sprayers
to conduct their business, a license application must be filled out on the Board's
forms, "which forms shall embody such information as the Board may require."
The court stated that under this provision the Board would have the unmitigated
i discretion to change its form requirements as it saw fit. In the words of the court,
1. 117. FL.A. STAr. 120.31 (1) (1967). 121. Tampa Port Authority v. Deen, 179
118. FL.A. STAr. 120.31(3) (1967). So. 2d 416 (2d D.C.A. Fla. 1965).
I 119. FL.A. STAT. 120.31(4) (1967). 122. See text accompanying note 93 supra.
i 120. Odham v. Foremost Dairies, Inc., 123. See Conner v. Sullivan, 160 So. 2d f
1 28 So. 2d 586, 593 (Fla. 1961). 120 (1st D.C.A. Fla. 1963).
i i ,4,
/ j OF
S188 STATUTORY MODIFICATIONS OF Ch. 6
i "S S action would open the door to rank discrimination as bctwccn applicants
without any means of redress."''14
i In granting permits for withdrawal of water from artificial bodies, the Central
and Southern Florida Flood Control District sometimes attaches conditions it
Considers equitable. Thus, when the city of Fort Pierce recently applied for a
Permit to draw surface water from a canal in the District for municipal water
I supply purposes, the District indicated it would issue the permit if the city would
i' agree that in the event of a shortage it would, upon request of the District, cease
withdrawals before agricultural users. The District imposed the condition be.
1 -cause the canal in question initially was part of a system privately constructed
| by agricultural users and later taken over by the District. The District, which
normally would have given priority to human consumptive use, took the.
position that the agricultural users' construction of the canal entitled them to first
consideration. Not willing to accept this condition, the city resorted to ground
water as its source of supply.121 The District's statutory authority to regulate
S. withdrawals seemingly is broad enough on its face to permit its decision,12 but
t. he District would do well to set forth in more detail its criteria for the issuance
S of permits to avoid attack on the ground of arbitrary administrative action.
SIt would still be able to retain its flexibility in unforeseen emergencies under
section 120.041(4) of the Florida Administrative Procedure Act. This section
permits a state agency, under a written statement of facts that an alleged emer-
agency exists, to adopt and effectuate for ninety days such rules as are "necessary
for the immediate preservation of the public health, peace, and safety or general
S" welfare." In view of this emergency rule-making authority, the District could
safely make its criteria for permit issuance and withdrawal more explicit.
S 62.3. Permissive Permit Systems
62.3(a). In General
j., In a few states legislation exists which permits administrative agencies to au-
jthorize the withdrawal and use of excess water as a means of encouraging further
use of the resource. In Ohio, for example, while there is no permit system gov-
erning the allocation of either surface or ground waters, legislation enacted in
1914127 provides for organization of conservanc-y .districts; these districts may
be created for the regulation of the flow of streams and pro iding)a water supply
i .or use.128
i The districts created are legal subdivisions of the state and operate on a re-
gional basis. They do not alter or modify water-use rights in existence and being
used at the time the district is organized. When increased water is made avail-
.able through improvements of the district, it becomes property for which use
124. Lewis v. Florida State Bd. of Health, 126. FLA. STAT. 378.01(3), 378.16(2),
143 So. 2d 867 (1st D.C.A. Fla. 1962), cert. 376.17(1), 378.17(2), 378.151 (1967).
denied, 149 So. 2d 41 (Fla. 1963). 127. 104 Laws of Ohio 14 (1914).
S 125. Conference with firm of Black, Crow, 128. OHIo REs. CODE ANN. 6101.04
&. Eidsness, Gainesville, Fla., sanitary engi- (Supp. 1965).
ners, July 9, 1967. .