Title: Addition of a statement in the proposed State Water Policy
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 Material Information
Title: Addition of a statement in the proposed State Water Policy
Alternate Title: Letter to Victoria J. Tschinkel, DER, from L. M. Blain stating the position of SWFWMD in favoring the addition of a statement in the proposed State Water Policy relating to the rights of property owners, including historical background
Physical Description: 4p
Language: English
Publication Date: July 20, 1981
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
General Note: Box 5, Folder 25 ( SF STATE WATER POLICY - VOL. III ), Item 9
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: UF00052893
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



LAW OFFICES
BLAIN & CONE, P. A.

L.M. BLAIN 202 MADISON STREET
THOMAS E. CONE. JR. P. O. BOX 399
RUSSELL M. BLAIN TAMPA, FLORIDA 33601
GARY A. GIBBONS (813) 223-3888
FRED A. McCORMACK
e 20, 1981 206 SOUTH MONROE STREET
OF COUNSEL P. O. BOX 10449
GEORGE O. WILSON II TALLAHASSEE. FLORIDA 32301
(904) 222-0960


REPLY TO: Tampa



The Honorable Victoria J. Tschinkel, Secretary
Florida Department of Environmental Regulation
Twin Towers Office Bu'lding
2600 Blair Stone 0;f
Tallahassee, Florida 32301

Re: State Water Policy Property Rights

Dear Secretary Tschinkel:

The Governing Board of the Southwest Florida Water Management District
has gone on record favoring the addition of a statement in the proposed
State Water Policy relating to the rights of property owners. The
Board has not taken action on specific wording, but has been provided
with copies of the language appearing in the proposed draft dated
May 27, 1981, a copy of which is attached. No objections have been
voiced by the Board concerning this language. The language in the
draft proposal of May 27, 1981 is consistent with and descriptive
of current law. It does not create new law, nor does it modify or
change existing law.

We recognize that others feel that the language in the draft of
May 27, 1981 reestablishes a connection between the right to make
use of water and the ownership of overlying lands. They argue that
the Florida Water Resources Act of 1972 (Ch. 72-299, Laws of Florida)
severed this connection and abolished private property rights in water.
With this, we disagree. Ch. 72-299 did not abolish the right of a
property owner to make use of the water beneath the land. Instead,
the legislation limited the right to the use of the water.

In Florida, prior to the adoption of the Florida Water Resources Act
of 1972, the right of the property owner to ground water underlying
his land was to the usufruct of the water and not to the water itself.
Ownership of the land did not carry with it any ownership of vested
rights to underlying groundwater not actually diverted and applied
to beneficial use. There was a right of use as the water passed, but
there was no ownership in the absolute sense. It belonged to the
overlying owner in a limited sense, that is, he had the unqualified









The Honorable Victoria J. Tschinkel, Secretary
Florida Department of Environmental Regulation
July 20, 1981
Page 2





right to capture and control it in a reasonable way with an immunity
from liability to his neighbors for doing so. Village of Tequesta
v. Jupiter Inlet Corporation, 371 So.2d 663, (Fla.1979). This
"right of use" was a proprietary right, appurtenant to the land.
However, it was not an unlimited right. Florida follows the "reason-
able use rule" which has been described by the State Supreme Court
as:

"A land owner who, in the course of using
his own land, obstructs, diverts, or
removes percolating water to the injury
of his neighbor...must be (making) a
reasonable exercise of his proprietary
right, i.e., such an exercise as may
be reasonably necessary for some useful
or beneficial purpose, generally relating
to the land in which the waters are found."
Village of Tesquesta, at page 666.

Some believe that the Florida Water Resources Act of 1972 abolished
the "right of use" which was formerly appurtenant to the ownership of
overlying lands. To the contrary, we believe that this "right of use"
was limited and regulated by the legislation. This "right of use"
formerly held by property owners continues to survive under Florida
law. Although we have not thoroughly completed our analysis at this
point, we believe three good reasons exist to support our conclusion:

1. In the Village of Tequesta case, the Supreme
Court clearly acknowledged the existence of
the "right of use" formerly held by property
owners under the common law in Florida. The
court construed the Florida Water Resources
Act of 1972 to be legislation "limiting the
right to the use of water". It did not construe
the Act as abolishing the right to the use of
water. See Village of Tequesta, ibid., at
page 670.

2. Under Ch. 373, Fla. Stat., property owners are
not denied the right to make use of the water
flowing or percolating beneath their land,
provided the owner meets the statutory criteria
applicable to the proposed use. See, Sections
373.223 and 373.226, Fla. Stat.

3. If there is no connection whatsoever between the
right to use water percolating in the ground and









The Honorable Victoria J. Tschinkel, Secretary
Florida Department of Environmental Regulation
July 20, 1981
Page 3




ownership of the land, then one need have no
ownership interest in order to commence with-
drawals from a particular site. Anyone could
go on to the property of another and commence
withdrawals. If this seems objectionable, it
is because the person desiring to make the
withdrawals should have some proprietary right
under the land in order to allow him to bring
his trucks, pipes, and pumps on to the proposed
withdrawal site. There will always exist a
connection between the right to the use of the
water and the right to the use of the land.

There exists a property right which is incident and appurtenant to
land ownership and it is the right to the use of the water. Even
though the exercise of this right has been regulated by the Florida
Water Resources Act of 1972, the right continues to exist.

This right will continue to exist regardless of whether or not a
statement such as that proposed is included in the State Water Policy.
The inclusion of such a statement is not inappropriate and is completely
consistent with current Florida law.

Sincerely,



L. M. Blain



LMB/cer
Attachment


P.S. Please note that we propose changing the word "users" to "uses"
in subparagraph (6) of the proposed statement, as indicated.








k~r








May 27, 1981

RE: Proposed Policy Statement on Property Rights



Add paragraphs (5) and (6) to Rule 17-40.04 to read:

17-40.04 Water Use
The following shall apply to those areas where the use
of water is regulated pursuant to Part II of Chapter 373,
Fla. Stat.

(5) In implementing consumptive use permitting programs, the

department and districts shall recognize the rights of property

owners, as limited by law, to withdraw and make consumptive uses

of groundwater from their land for reasonable-beneficial uses.



S(6) The department and districts shall continually seek to maintain

a balance between competing/uses to protect the interests of all

"V affected persons in a manner consistent with the public interest.

O 0p.0





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