Title: Research Memorandum to Governing Board Members
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 Material Information
Title: Research Memorandum to Governing Board Members
Alternate Title: SWFWMD. Research Memorandum to Governing Board Members. "Prior Rights" defined and analyzed
Physical Description: 5p.
Language: English
Publication Date: October 5, 1981
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
General Note: Box 5, Folder 17 ( SF REASONABLE BENEFICIAL USE ), Item 7
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00052732
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

7


RESEARCH MEMORANDUM


October 5, 1981


TO: Governing Board Members

FR: Buddy Blain and Tom Cone

RE: SWFWMD "Prior Rights"



ISSUE:

What is meant by the phrase "prior right to the rean~; able
and. .iefLial Use .,Qrat.er" which appears in Section 373.1961(5)
and 373.1962(5), Fla. Stat.?

BACKGROUND:

These sections were added to Ch. 373 by Ch. 74-114, Laws of Florida.
This is the law which authorized the establishment of regional water
supply authorities. It took effect October 1, 1974, some two years
after the Florida Water Resources Act of 1972 had been adopted.

The purpose of Ch. 74-114 was to promote cooperative effort between
municipalities, counties, water management districts, and DER...
"in order to meet the water needs of rapidly urbanizing areas in
a manner which will supply adequate and dependable supplies of
water where needed without resulting in adverse effects upon the
areas from whence such water is withdrawn". Sec. 373.196(1),
Fla. Stat.

Regional water supply authorities are formed by interlocal agreement
among municipalities and counties. Once established, a regional
water supply authority is authorized to acquire land and develop
water supplies for distribution to counties and municipalities. The
regional water supply authority is not allowed to engage in local
distribution, rather, it acts as a wholesaler developing and
furnishing supplies of water to municipalities and counties for
subsequent distribution to customers. See generally, Sec. 373.1962,
Fla. Stat.

At the time Ch. 74-114 was adopted, Ch. 373 did not contain any
provision which recognized a preference or "prior right" for any
particular type of use. Although several preferences were established,
none were related to a particular use. For example:

1. Sec. 373.223(1) (b) acknowledges a preference in favor of
presently existing legal uses of water by requiring applicants for
new uses to show that no interference with such uses will occur.








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2. Sec. 373.233(2) requires the Governing Board to give
preference to renewal applications over initial applications in
the event two competing applications equally serve the public
interest.

3. Sec. 373.246 authorizes the Governing Board during periods
of water shortage to impose restrictions on one or more classes of
consumptive use permits, as necessary to protect the water resources.

None of these "preferences" establish a superior right to
withdraw and consume water in favor of any particular use or any
particular user. As a result, at the time Ch. 74-114 was adopted
counties did not have any superior, preferential, or "prior" right
to the water required to adequately supply its reasonable and bene-
ficial needs.

ANALYSIS:

I. The text of Sec. 373.1962(5) is set out in an attachment. It
provides protection for any county where water is being withdrawn
by a regional water supply authority because it prevents the authority
from depriving the county of the "prior right to the reasonable and
beneficial use of water which is required adequately to supply the
reasonable and beneficial needs of the county or any of the in-
habitants or property owners therein".

In trying to determine what is meant by the "prior right to
the reasonable beneficial use of water" held by the county, there are
two possible interpretations:

a. In the first, this language may be viewed as merely
a restatement of the non-interference principle appearing in
Sec. 373.223(1)(b), Fla. Stat. Viewed in this light, the language
would mean that each county will be assured that any prospective use
by a water supply authority within its territory will not interfere
with any existing legal use of water being made by that county. In
other words, the "prior right to the reasonable and beneficial use
of water" is that "right" which each presently existing legal user
has to assurance of non-interference from new uses.

Using this interpretation is not logical because if the
language is viewed in this light, it is surplusage, adding nothing
to Ch. 373 that was not already in place as part of Sec. 373.223.
Further, this interpretation of the language does not provide ad-
ditional assurance or protection to water rich areas confronted with
the prospect of huge demands on the available supply by rapidly
urbanizing areas within a water supply authority. Providing such
additional protection was one of the purposes of the legislation.
The Legislature intended the development of supplies needed for
rapidly urbanizing areas to occur in a manner that would not result
in adverse effects upon the areas from which the water is withdrawn.
See Sec. 373.196(1), Fla. Stat.








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b. A second interpretation, and one which seems more reason-
able, is to construe the phrase in a manner which creates a limited "prio
right" which did not formerly exist. This new "right" is held by
any county in which water is being withdrawn by a regional water
supply authority. The right prevents the authority from with-
drawing water needed by the county to meet reasonable and beneficial
needs of its inhabitants and property owners. It is a right which
exists only against regional water supply authorities and does not
establish county uses to be superior or preferred uses over any
other competing users.

Viewed in this manner, Subsection 5 of Sec. 373.1962
adds a new permitting criteria to be met by regional water supply
authorities before consumptive use permits should be issued under
Part 2 of Ch. 373., i.e., before a consumptive use permit is issued
the water required by the county to adequately supply its reasonable
and beneficial needs should be determined. The authority will not
be allowed to withdraw water which would be needed to satisfy the
county requirements.

This limited priority system reserves for each
county the ability to continue to develop and expand its own water
supply system without fear that an existing legal use of water by a
permitted water supply authority within its territory will prevent
it from securing a permit under Part II of Ch. 373. In other words,
this subsection tends to undercut the prior appropriative features
of the noninterference provision in Sec. 373.223. In situations
where a county wishes to commence a proposed use of water which
otherwise interferes with an existing leqal use of water by
a regional water supply authority, the county may proceed.

Viewed in this light, the "prior right to the
reasonable and beneficial use of water" held by counties against
water supply authorities provides assurance to each county that
water needed by it in the future will not be deprived by large
scale withdrawals for use by other rapidly urbanizing areas. Stated
differently, this phrase means that each water supply authority may
continue to withdraw water from a county only so long as that county
does not, itself, need the water to supply its reasonable and
beneficial needs.

II. The text of Subsection 5 of Sec. 373.1961 is set out in the
attachments. This provision requires each water management district
to protect each county's "prior right to the reasonable and beneficial
use of water required to supply its needs". The District is obligated
to refrain from depriving the county of this right in the performance
of its duties under Ch. 373.

This language is substantially similar to the language appearing
in Subsection 5 of Sec. 373.1962, construed above. This subsection
creates a "prior right" which did not formerly exist in favor of









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each county. This right would operate to establish priority in
favor of the county if a water management district, itself, was
developing water supplies for transmission outside of county bound-
aries. This section was included in Ch. 74-114 because the legis-
lation authorized water management districts (for the first time)
to establish water production and transmission facilities to supply
water to counties, municipalities and regional water supply author-
ities on request. Had this provision not been included, the pos-
sibility existed that water management districts would have possessed
the power to appropriate water for use elsewhere which might someday
be needed by the county of origin. This subsection acts to establish
a governing limit on production by water management districts in
the same manner that Subsection 5 of Sec. 272.1962 limits water
supply authority activities.
Unlike its counterpart in Sec. 373.1962, the prior right
held by counties under Subsection 5 of Sec. 373.1961 is not limited
in scope to a right which exists only against a particular user,
i.e. water management districts. Instead, it operates as a "super
priority" in favor of the county whenever water to be withdrawn for
transfer beyond county boundaries threatens the water required to
supply adequately the reasonable and beneficial needs of the county.
This affords protection to the county from diversions by entities
other than water supply authorities.








TECjr/cer











ATTACHMENT




373.1962 Regional water supply authorities -


(5) In carrying out the provisions of this section,
any county wherein water is withdrawn by the Authority shall not
be deprived, directly or indirectly, of the prior right to the
reasonable and beneficial use of water which is required adequately
to supply the reasonable and beneficial needs of a county or any
of the inhabitants or property owners therein.







373.1961 Water production -

In the performance of, and in
conjunction with, its other powers
and duties, the Governing Board of
a water management district existing
pursuant to Ch. 373:


(5) Shall not deprive, directly or indirectly, any county
wherein water is withdrawn of the prior right to the reasonable and
beneficial use of water which is required to supply adequately the
reasonable and beneficial needs of the county or any of the inhab-
itants or property owners therein.




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