Title: Memorandum re: State Water Policy Public Hearing
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 Material Information
Title: Memorandum re: State Water Policy Public Hearing
Alternate Title: Memorandum re: State Water Policy Public Hearing held on June 8 to adopt Rule 17-40.03 F.A.C.; Secretary Tschinkel adopted the rule with minor amendments (Attachment I); Several minor revisions in Chapter 17-21 adopted (Attachment II), and suggested polic
Physical Description: Book
Language: English
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
General Note: Box 5, Folder 25 ( SF STATE WATER POLICY - VOL. III ), Item 21
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00052905
Volume ID: VID00001
Source Institution: University of Florida
Holding Location: Levin College of Law, University of Florida
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f.A.C. nte rln Itd Rg tte tevar 8 patleg btr s itn ftl id. A copy o
the lemIgmge SapteS oi atthd (Attacimt II).
Another me.l t topic dimastae as tine Inelat. f water rtihts of prm-
arty marM s This tp ha ig rated a gret dei f iNtent, saed a .n-
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the prem ) pItliy largely ma free ltural Itnterests wh aeld 11ke
to be anurd thet martlj eimurstp vi l be a casridmettn 1i the alloca-
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1 17-40.03 General Water Policy

2 The following statement of general water policy shall provide

3 a basis for Department review of water management programs, rules,

4 and plans. Water management programs, rules and plans, where

5 economically and environmentally feasible, not contrary to the

6 public interest, and consistent with Florida laws, shall seek to:

7 (1) Assure availability of an adequate and affordable
8 supply of water for all reasonable-beneficial uses. Uses of water

9 authorized by a permit shall be limited to reasonable-beneficial

10 uses.

11 (2) Reserve from use that water necessary to support

12 essential non-withdrawal demands, including navigation, recreation,

13 and the protection of fish and wildlife.
a.Ad re A5 e.
14 (3) Promote water conservation as an integral part of
nc rdae
15 water management programs, rules, and plans.nd the use -" -eue-

16 of water of the lowest acceptable quality for the purpose intended.

17 (4) Utilize, preserve, restore, and enhance natural water

18 management systems and discourage the channelization or other

19 alteration of natural rivers, streams and lakes.

20 (5) Protect the water storage and water quality enhancement

21 functions of wetlands, floodplains, and aquifer recharge areas

22 through acquisition, enforcement of laws, and the application of
23 land and water management practices which provide for compatible

24

25 (6) Mitigate adverse impacts resulting from prior altera-
tion of natural hydrologic patterns and fluctuations in surface
26
and ground water levels.
27
(7) Establish minimum flows and levels to protect water
28
resources and the environmental values associated with marine,
29
estuarine, freshwater, and wetlands ecology.
30
















1 (8) Encourage non-structural solutions to water resource

2 problems and give adequate consideration to non-structural alterna-

3 tives whenever structural works are proposed.

4 (9) Encourage the management of floodplains and other flood

5 hazard areas to prevent or reduce flood damage,consistent with

6 establishment and maintenance of desirable hydrologic characteristics

Sof such areas.

8 (10) Manage the construction and operation of facilities
9 which dam, divert, or otherwise alter the flow of surface waters to

10 prevent increased flooding, soil erosion or excessive drainage.

11 (11) Encourage the development of local or regional water

12 supplies within districts rather than transport water across District

13 boundaries.

14 (12) Control point and non-point sources of water pollution

15 to the greatest degree feasible as provided in Chapters 17-3, and

16 17-6, F.A.C.
16

17 (13) Develop interstate agreements and undertake coopera-

18 tive programs with Alabama and Georgia to provide for coordinated

1 management of surface and ground waters.

20

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23

24

25

26

27

28

29

30






CODING: Words underlined are additions; words
struek-thkregh type are deletions from existing
law.








List of suggested versions of property rights in the use of
water.

Terry Cole

In implementing a consumptive use permitting program, the

Department and District shall recognize the right of an existing

user of water to continue the use subject to the requirements of

Section 373.226, F.S., if the existing use is a Reasonable-

Beneficial Use and would be allowable under the common law.

Permit renewal applications shall be treated in the same manner

as initial permit applications.


Steve Walker

In implementing a consumptive use permitting program, the

Department and District shall recognize the right of an applicant

to make a reasonable-beneficial use of any water which has not

previously been reserved or allocated to another use in accor-

dance with the provisions of Chapter 373.


Secretary Jacob Varn

In implementing a consumptive use permitting program,

the Department and District shall recognize the rights of the

riparian owners to make a consumptive use of an equitable

portion of the surface waters. Further, the Department and

District shall also recognize the rights of the overlying prop-

erty owners to make a consumptive use of an equitable portion

of the underlying groundwaters.


Buddy Blain

In implementing consumptive use permitting programs,

the Department and Districts shall recognize the rights of

property owners to make consumptive uses of underlying ground

water and of adjacent surface water for reasonable-beneficial

purposes.

In implementing consumptive use permitting programs,

the Department and Districts shall recognize the qualified

right of property owners to use the groundwater under their

land for reasonable-beneficial purposes and shall continually

seek to maintain the proper balance between competing users.










Buddy Blain (continued)

In implementing a consumptive use permitting program, the

Department and District shall recognize the rights of overlying

property owners to make consumptive uses of underlying ground

waters for reasonable-beneficial purposes consistent with the

Water Resources Act.


In implementing a consumptive use permitting program the

Department and Districts shall recognize the rights of property

owners to make a reasonable-beneficial use of both adjacent

surface waters and underlying ground waters.


In implementing consumptive, use permitting programs, the

Department and Districts shall recognize the rights of property

owners to make consumptive uses of underlying ground water and

of adjacent surface water for reasonable-beneficial purposes

consistent with the Water Resources Act.



Secretary Varn May 19, 1981

In implementing a consumptive use permitting program,

the Department and District shall recognize the rights of the

overlying property owners to make a reasonable-beneficial use

of an equitable portion of the underlying ground water and of

the riparian owners to make a reasonable-beneficial use of an

equitable portion of the adjacent surface waters.







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.



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

a balance between competing users to protect the interests of all

affected persons in a manner consistent with the public interest.





Comments:

A property owner in Florida does not own the water beneath

his land in the absolute sense, and never did. Instead, the prop-

erty right of the owner is to the usufruct of the water, not to the

water itself. Village of Tequesta v. Jupiter Inlet Corporation,

371'So.2d 663, (Fla. 1979). Even before the adoption of the Florida

Water Resources Act of 1972, the owner's right of use was not

absolute. Florida followed the reasonable use rule adopted by most

eastern states. Koch v. Wick, 87 So.2d 47, (Fla. 1956). The right

of use "was bounded by the perimeters of reasonable and beneficial

use." Village of Tequesta v. Jupiter Inlet Corporation, 371 So.2d

663, 670, (Fla. 1979).





2 -



This "right of use," held by property owners, was not

abolished by the adoption of the Florida Water Resources Act of

1972 (Ch. 373, Fla. Stat.) but rather was further limited and

qualified by the provisions of Part II of the Act.

Within those water management districts where consumptive

use permitting has been implemented, the owner with an existing

use of water from his land is entitled to secure an initial permit

authorizing the continuation of that use if the use is a reasonable-

beneficial use, as defined in Section 373.019, Fla. Stat., and is

allowable under the common law of the state. Section 373.226(2),

Fla. Stat.

Owners who seek to commence new uses after a consumptive use

permitting program has been implemented must meet different, limiting

requirements. These are set forth in Section 373.223, Fla. Stat.

and require that the applicant must establish that the proposed use

of water:

(a) is a reasonable-beneficial use;

(b) will not interfere with any presently existing

legal use of water; and

(c) is consistent with the public interest.

In the event the existing use or the new use requirements

are not satisfied, the property owner has no right to make con-

sumptive use of underlying groundwater or of surface water.

Owners of overlying property and riparian owners do not have an

absolute right to use any particular quantity of water adjacent to or

beneath their property. Unless the proposed use meets the require-

ments of the administrative system of water management stated in






R JDRAnT REGULATION




1 RULES OF THE DEPARTMENT OF ENVIRONMENTAL REGULATION

2 DIVISION OF ENVIRONMENTAL PERMITTING

3 CHAPTER 17-21

4 RULES AND REGULATIONS GOVERNING WATER WELLS IN FLORIDA

5 Formerly 16C-8

6 17-21.02 Definitions. The following words and phrases,

7 when used in these rules and regulations, shall have the

3 following meaning, except where the context clearly indi-

9 cates a different meaning:

10 (a) (d) no change.

11 (e) "Abandoned water well" means a well whose the use

12 of which has been permanently discontinued or-a-well-whose

13 water-is-not-being-put-to-a-reasonabie-beneficial-use. Any

14 well shall be deemed abandoned which is in such a state of

15 disrepair, as determined by a representative of the Depart-
b
16 ment or the District, that continued use for the purpose of

17 obtaining ground water or disposing of water or liquid

18 wastes is impracticable. IR-additieon-any-well-shall-be

19 deemed-abandoned-whieh-is-in-such-a-state-of-disrepair-that

20 ia6-eeaein4ed-exi6eseee-e3?-Hse-we d-be-sigg fieaH ly-dam-

21 agi3g- e-he-waer ee6e see6s-ee-eeeegy-ef-he-aaea7-a6

22 determined-by-a-representative-of-the-Bepartment-or-BDis

23 reiert-er-is-in-a-sh-a-state-ef-disrepair-that-if-ean-ne

24 ionger-be-sed-for-te-sd-fr- -purpose-intended-

25 (f) no change.

26 (g) "Water Well" means any-exeavation-that-is-driiiedT

27 eered7-bored7-washed7-driven7-dng7-jetted7-or-otherwise

28 eens raeted-when-the-intended-use-of-snech-exeavation-is-or

29 the-iocation7-evauation7 -aqiusition7-deveopment7-or-arti-

30 fieial-reekharge-ef-greHRd-waeer--e--he-iHReSieRal-iHrme-




-1-
CODING: Words underlined are additions; words
straek-threagh type are deletions from existing
law.





DRAFT REGULATION





1 dueaieH-ef-wae ea?-irae-aey-uAdesgieed-feetieB--bt-9h

2 eera-dees-Ret-itenl8de-sand-peiBS-wella-as-heseiR-defined-

3 aay-weI-fe l-the-purpese-ef-ebtaifiag-er-fer-pve8peetiRg- fe

4 ei-aaa al-gaS-amieral97-er-pedues9-ef-amiiag-er-quar-

5 ryings-er -fer-inserting-media-ee-diapese-ef-eil-bsiaes-es-

6 repressure-eil-er-iaetaai-gas-bearigg-fer-aaien9-e-f3

7 seegirg-efetle3ewB7-eg-aafga-gaa7-"Well" as defined by

8 Section 373.303(6), Florida Statutes.

9 (h) (q) no change.

10

11

12

13

14

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19

20

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-2-

CODING: Words underlined are additions; words
sfcaiek-fhstgh type are deletions from existing
law.





* .


3 -



Sections 373.226 and 373.223, Fla. Stat., an owner is not

authorized to make a consumptive use of any water other than

for domestic consumption by individual users. Section 373.216

and 373.219, Fla. Stat.

For example, the owner of a parcel of land adjacent to the

Gulf of Mexico may not have the right to withdraw and use any of

the water beneath that land if, by withdrawing the water, the water

resources in the area are threatened with imminent damage from

salt water intrusion. That property owner has no absolute right

to any finite portion of water beneath his land. Under Ch. 373,

Fla. Stat., the overriding interest of the public can operate to

preclude any use of the underlying ground waters in appropriate

circumstances.

The balance between competing applications is struck at that

point which best serves the public interest. Section 373.233(1),

Fla. Stat. In the event competing applications are equally

qualified, perference is given to renewal applications over initial

applications. Section 373.233(2), Fla. Stat. This should become

a continuous balancing process because, as situations and climatic

conditions change, the location of the balance point between

competing uses will shift to preserve what is best for the public

interest.











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