Title: Letter from L. M. Blain re: attached State Water Policy
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 Material Information
Title: Letter from L. M. Blain re: attached State Water Policy
Alternate Title: Letter from L. M. Blain to Jacob Varn, Secretary, Department of Transportation, re: attached State Water Policy and also with attached Memorandum from Terry Cole, DER, to L. M. Blain, containing additional proposals from others
Physical Description: Book
Language: English
Publication Date: May 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 36
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00052920
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.

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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 May 22, 1981
206 SOUTH MONROE STREET
OF COUNSEL P. O. BOX 10449
GEORGE O. WILSON MI TALLAHASSEE, FLORIDA 32301
(904) 222-0960


REPLY TO: Tampa office


Mr. Jacob Varn, Secretary
Department of Transportation
535 Burns Building
Tallahassee, Florida 32301

Re: State Water Policy

Dear Jake:

I am attaching a copy of material I just received from
Terry Cole which relates to our discussion yesterday.

As I mentioned to you, the Governing Board of Southwest
Florida Water Management District has authorized me to
work toward including a statement in the State Water
Policy regarding the water rights of property owners.

I am not optimistic about getting this accomplished because
of the strong emotions that have manifested themselves.

Please let me know if you have any suggestions.

Sincerely yours,



L. M. Blain







LMB/sb
Attachments






DEPART M. r OF ENVIRONMENTAL R.LAULATION

,BOO (C;AI'/
TWIN TOWF.HS OrFICF IF UII.DING OV lf ,N
2600 BLAin STONl FROAD
TALLAHASSEE, FLORIDA 32301 VICTORIA J. TSCHIN .
S8ECRETA




MEMORANDUM


TO: L/'Mr. Buddy Blain
Southwest Florida WMD

j Mr. Tom Brown
j Suwannee River WMD

Mr. Doug Stowell
Northwest Florida WMD

Mr. Lee Worsham
St. Johns WMD

Mr. Steve Walker
South Florida WMD

FROM: Terry Coleo'.
General Counsel

DATE: May 20, 1981

RE: Property Rights in the Use of Water


Last week Buddy Blain sent to each of you another draft of .,
proposed section dealing with property rights in the use of water.

Attached for your consideration and comment is a slightly
modified draft under my name of another proposed statement which
is derived from the version drafted in my office just before the
last workshop on water policy.

Secretary Varn has submitted another proposal which is
attached separately.

"I would l al))pprciate your written comments regarding the thr,,
recent proposed drafts and, if possible, a memorandum on the legal
basis for your comments. Any alternative language you might
suggest would be welcomed. I have attached for your information
a compilation of all known drafts of a property rights section for
the water policy.

(I




j Prolectin,, Florida and Your Ouality of Life
U










/ Please try to have your comments back to me by June 3 if
i at all possible. All of the help you have given in the drafting
and adoption of the water policy is appreciated.




TC: ac
attachment

cc: Vicki Tschinkel
Ken Woodburn
Dave Pingree
John Wehle













































o_ .. .. -. ... ....-










Drafted by Secretary Varn May 19, 1981


17-40.04

(5) 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.





Terry Coleo '

"I I n i nitp] i.til ilj irj ia co Lnsu;lt)tivc use pI)r' i tt:ti t 'im lro( r.'i:, the

Slepa.rlm'.'nt and Dis).;rict sh;I1all rccognlizc tlfiL I i lhtL rf ,on c:.:i:;ting

user of wuLer to:() Lcont.inue I thle use sulj!ct to the reclui j.nre ts of

SectLion 373.226, F.S., i f tie existing u.sL i ; a caiscn.ibl .:-flenefici l1

Use a;rcnd would be a l] owtl)]e under the common law. PermnitI renewal

app)ication.s shall be? t:reatc(d i n the sa.mL manirer as the initial

pcrmi.t ijppjilications.






List of suggest, versions of property rigl, 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.





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April 23, 1981
A.PR 27 1.<.

1 ^ n'w-n.'.K iai 7
The H,.1 norabil, Po ) Grahamv .e LI ,,:.a; ..
(Gvernor' of f lori da
Thel C.pi tol
T Ila hassee, Florida 32301

Dear Bob:

We hdve been following the development of the state water policy
v,'ry closely, rind would like to address two issues that deserve your atten-
tion prior to the next hearing on the policy in Jtune. lFir.( it is
important thit the policy fits clearly in the state cmprehensive planning
proc('ess, as Lstu:- Whitfiel d has pointed out i n his rMlarch r.ic.,o. Second,
w,, are concerrned about a potential t.hrieat to use the policy as a vehicle
for asserting private property rights in water that no longer have a solid
legal basis in llorida law.

On the first point, the state water policy represents a significant
step in Florida', develop1iient of a state pllamning and policy fi.mework.
!'he policy provide, general guidance on an important st:te coL2ern in a
fairly concise manner. It also has specific legal and adi L!i i':.rative
r:',c hanic. ms for r.- for(em:'.nt, through i ts adoption under tlce APA. Both are
nhces'rsary attribute: of an reflective s ate planning and policy framework.
The policy, upon adoption, will also become a part of the state comprehen-
sive plan by virtue of being included as plrt of the state water use plan.
llh result is that the vwater policy will be the only part of the State
Comprehensive Phln to date to be adopted by rule.

Water has received special attention as a state resource by the
legislature not onlpy in Chapter 373, hut in the 1980 legislation regard-
ing regional planning councils. Chapter 160.07 requires the -,egional
councils to adopt regional comprehensive policy plans, and mandates that
these 01 plans be (consistent. wi th Chapter 373 and 4103. Th: -PC legislation
s' ts up a general mechani sm for detenining this consi s tency. The councils
are to present their plan, to the appropri a te wa teor management district
or the .Secretary of thle DLR for resolution of inconsistencies.

In the same spirit L with which you have directed tint state policy
guidelines hbe' developed for the regional plans in advance of tIhe regional
planning effort, we would suggest that guidelines for the 3/3 and 403
consi ,tency dct.en.ina tion als';o be developed in advance I or the use of the
councils;. We believe that tue state water policy would be quite


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* i n1 n11. If; 11 It.:A ill NAL I Vi II Y ;I ,Ar (:CI.NI IIN 3.1?0. P.AY VISIA C/MlF'tu.. NOt T) rTIAf.. l 33181 (305) 94 ,a1 1 '






"1 Ihe HIonorable Bob Gra lii -
April 23, 1931
'Paue 2



appropriate as partial guidance to the councils on matters of Chapter 373.
A stated intent of the policy is "to clarify water policy as expressed
in Chapter 373... and to otherwise provide guidance to the Department and
Districts in the development of programs, rules and plans." District
rules; are to be made consistent with the policy. The policy can be parti-
cularly helpful in those planning regions where water management districts
have not yet adopted water plans. As the primary guiding docurcent, the
water policy could give the general level of guidance appropriate to the
planning process and thus perhaps give better notice of stale and district
expectations than the alternative of simply a compilation of statutory
and rules provi sions.. We feel that it is important that DLLR take the lead
in giving this guidance to Lhe planning councils.

W:e have discus:,sed this idea in a preliminary wy with Vickie and
the OLR General Counsel, as well as the OPB. We are not necec:sarily sug-
!jgs:'.inj thAlt the content of the proposed water policy be cchlangd for this
purpose but w; o hope this will bring attention to tL.e rined to work
in adlv,:nce with t.he councils, in some systematic anid coordinated way, in
the policy planning process.

The second concern we have is that any misguided attempt to use the
w l.Ur policy to a.sure proprietary rights; i.n wa ter beyond tha i envisioned
in Chapter 3/3, and detemiijned in the T.eyt!ista case, be strongly discour-
a(Id. The notion of private property rights in alitr is one whose time
has long II st, and should not be allowed to (haunt the serious, long standing,
and forvard-looking attempt on the part of Florida to adopt a strong water
policy and to manage its water resources as a public resource held in
couuion for all the people of the stotc.

Sincerely,


Johnn M. DeGrove
Director, Joint Center



lancy 1:. Sttroud
Senior Research Associatel

JI.):" LS: im







LAW OFFICES
LAIN c& 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 May 11, 1981
206 SOUTH MONROE STREET
OF COUNSEL P. 0. BOX 10449
GEORGE O. WILSON II TALLAHASSEE. FLORIDA 32301
(904) 222-0960


REPLY TO: Tampa office


Terry Cole, Esquire Steve Walker, Esquire
Department of Environmental Regulation P. O. Box V
Twin Towers Office Building West Palm Beach, Florida
2600 Blair Stone Road
Tallahassee, Florida 32301 Lee Worsham, Esquire
P. O. Box 1429
Douglas Stowell, Esquire Palatka, Florida 32077
P. O. Box 1019
Tallahassee, Florida 32302

Thomas Brown, Esquire
P. O. Box 1029
Lake City, Florida 32055

Re: State Water Policy-Rights of
Property Owners

Gentlemen:

The Governing Board of Southwest Florida Water Management District
has gone on record as favoring the addition of a statement in
the proposed State Water Policy relating to the rights of
property owners.

Since there are many diverse opinions relating to the rights of
riparian owners, I have just about abandoned any effort to come
up with a statement that would meet universal acceptance for
property owner's rights to surface water.

Please review the following statement relating to rights of property
owners to use ground water:

In implementing consumptive use permitting programs,
the Department and Districts shall recognize the
qualified right of property owners to use the ground-
water under their land for reasonable-beneficial purposes
and shall continually seek to maintain the proper balance
between competing users.

Please see Village of Tequesta v. Jupiter Inlet Corp., Fla., 371









Terry Cole, Esquire, et al
May 11, 1981
Page Two



So.2d 663, at 667 in which the Supreme Court states: "the right
of the owner to groundwater underlying his land is to the usufruct
of the water and not to the water itself."

Please also review Paragraphs 2, 6 and 7 of the Court's summary
at page 672 of the Tequesta opinion.

I would appreciate your comments and suggestions.

Sincerely yours,
./(../ AfH^ENCE T;7O AVOID DEtIJ^
S'N MAKING
L. M. BlainMAILING










LMB/sb
cc: Mr. Wm. McCartney
Mr. Donald Morgan
Mr. E. D. Vergara
Mr. Jack Malloy
Mr. Donald R. Feaster
SWFWMD Board members











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