Title: Draft of Speech L. M. Blain is schedule to present to the Annual Technical Conference of the Florida Section of the American Waterworks Association/ F
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Title: Draft of Speech L. M. Blain is schedule to present to the Annual Technical Conference of the Florida Section of the American Waterworks Association/ F
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An address delivered by L.M. Blain Zf0 %*'%1
on November 11, 1981 at the Carillorn
Beach Hotel, Miami Beach, Florida, to
The Annual Technical Conference of the
Florida Section of the American Waterworks
Association/ Florida Pollution Control
Association and Florida Water and Pollution Control
OPerators' Association

Good afternoon and thank you all for the opportunity to

appear before yourwr. When I first glanced at the

impressive title of this meeting and studied the lengthy

and imcama- important-sounding names of the organizations

represented, I realized that to merely recite these names

in full and to say a word or two about each group's officers

would use up three fourths of my allowed speaking time.

So, I'm not going to do that.

But I am going to thank(n Vwea% 6 %aar c for his

very flattering introduction; extemporee humorous

reference to your introducer). And I can't resist telling

you(additional extempore humorous reference to the master

of ceremonies, or head man, or conference organizer).

I want to talk to you about a topic which appears on its

face to be very simple but which, in reality, is complex,

dynamic and of crucial importance to you and to all

Floridians: the ownership of our state's most vital resource--


It is particularly appropriate that I was asked to

address this topic at this time. ( For years, and '
in Florida,
particularly since the passage of the Water Resources Act

of 1972, the management and regulation of the state's

groundwater supplies has been in the hands of the state's

water management districts. The problems faced by the

professionals in these districts, and the practices they

devised to solve these problems l recognized throughout

the industry as perhpas the most innovative and comprehensive

in the nation.

But e while Florida's approach to water management

won praise from professionals, these efforts ve been,

until recently, largely unheralded by the general public.

The times are changing, though, and public, political

and jurisprudential attention is being increasingly focused

on the problems of water supply.

The focus is honing down now in a serious way on how

uxch water we've got, how much we need, how long its going
to last, how we can best preserve what we've got 'nd---

--as a direct result of these concerns, the question of

who owns the state's groundwater.

Let me give you some ex)ifples of the measures of


---This year, The Florida Legislature passed landmark

legislation called the Save Our Rivers Act. This new law

will raise $320 million during the next 10 years by increasing

by five cent 4 per hundred dollars the documentary tax

paid when deeds are recorded. The money is to be allocated

among the five water management districts, to be used for

the acquisition of crucial recharge areas.

h'e significant part of this was that the bill, heavily

supported by the water managmet districts and their

governing boards, sailed through the Legislature with

extrmeley scant opposition. And this during a session

characterized by G otherwise

vehement opposition to ned taxes.

--Hn thonands of Floridans began thinking

seriously about water supply this spring and summer as

serious shortfalls of rain caused dimunition of groundwater

and surface water supplies from one end of the state to

the other.

Public interest in water supplies was more than picqued;

the issue suddenly became a universal one and a personal

one at the same time. And don't expect this concern to

diminish----predicitions are that 1982 may h m. a
X",e. %jet,co %P f" I+ ,,.,,,^ I,, %

--The concern is political, as well.

Gov. Bob Graham, speaking about water sources to

more than 300 water managmenet professionals at the annual

meeting of the Nprthwest Florida Water M)$agment District

on Oct. 29 this yearTaid that as far as water resources

go, we have "moved from a period of abundance to one of


The governor said that since the turn of the century

Florida has been transformed from a state where a great

co rn was one of an a excess of water to a state in

which the greatest concern is one of water scarcity.

As those of us actively engaged in water management

observed these developments, we began to expect a corollarly

and consequent development---( emphasis on a basic and

underlying question, the topic of my address to you <

who really owns all that water thenmnem m aux about which

we are so concerned.

We have not been disap3nted in that expectation.

I am 9r going to try to answer that question by

discussing two major efforts to address the issue of

ownership and"h ~ by offering you a home- and

bucolic litLe analogy as a way of furl er explanation.

,, _---._- .--I -

--The first major effort occurred in 1979 in the

form of a Florida Suprreme Court decision known as the

Tequesta decision.

wntil this decision, there were nomxx

major judicial opinions as to how much water overlying

landowners might actually take and no real understanding

of ownership in the context of ercolating water beneath

the earth's surface. More about ftat later.

--The second major effort was the emergence of a

coi hensive state water policy, promul ated as a rule by

the state's Department of Environmental Regulation.

This policy was the subject of intense discussion over

many m hs by represel tives of water mar ,mefmet districts

and industry alike The policy is a rule now, with the

exception of one crucial section---a controversial section

onithe rights to water of property owners. A public hearing

on that section will take place in Tallahassee on November

17, and we expect 4 recognizing the ghts to

water of property owners to be a part of the new state

water policy beforA the end of this year. Ag in, more

on this later.

--My home-spun analogy has to do with land ownership,

shotgun shells, daily bag limits and neighbors. But

you'll have to wait a few minutes to find out how successful

I am in relating all those things to water.



The Tuesta decision came about this way:

A d e $^r called the Jupiter Inlet Corporation developed I

plans to build a condominium project on its p operty

located about 1,200 feet from am a wellfield owned by the

Village of Tequesta.

The Village had refused to supply water to the condominium

project, so Jupiter applied for a mlhA pama permit

which would allow it to supply its condominiums with water

from the sha Wow-water acquiferY Prior to this time,

however, Jupiter had withdrawn excessive amounts of water

from this shallow aciuifer Iand had drawn downM the fresh

water level so far that salt water intrustion from the

nearby Intracoastal Waterway was threatening. The county,

alarmed at this threat, refused to issue the building permit

to Jupiter.

The-hy alternative open to Jupiter was to drill into

the deeper Floridan Aquifer Instead, .Mm Jupiter

sued the Village of Tequesta and sought an injunction to

prevent thejillage from pumping what Jupiter deemed to

be excessive amounts of water from the wellfield.

The basis of Jupiter's cliam was that Tequesta's alleged

excessive pumping f om .bne th Jipitor's prcprty had

effectively deprived Jupiter of the future beneficial use

of its property rights in the shallow acquifer. Jupiter

wanted to be compensated for this loss.

The suit went to Circuit Court, where a trial judge ruled

that Jupiter had no case. Jupiter appealed and the District

Court of Appeal, the next ste4p up on the appellate ladder,

reversed the trial court and found that the shallow acquifer

under Jupiter's property was a form of private property and

could not be taken without the due process of law and

parent of compensation.

Tequesta appeal ed this decision to the Florida Supreme

Court, the final step in the state appellate ladder.

The Supreme Court ruled in favor of Tequesta. In so

doing, it gave us the first judicial pronouncement of water

ownership rights since the Water Resources Act of 1972.

Here's what the court said: M/

--A property owner does not have ownership rights

in the underlying groundwater as long as it's still in

the ground.

Water wanders and migrates. When someone takes itf--

draws the water out of the ground and takes possession of it--

he owns it, but not before he does that.

--Water, unlike oil, minerals and other substances of

value, can be divested without due process and just

compensation. Jupiter had a right to use the water beneath

its land, but o own that water until it had the water in

its possession.

--Because Jupiter had no property rights in the water

beneath its land--because the water itself was not Jupiter's

property- ~here was no physical invasion of anything by agents

of Tequesta that could be called Jupiter's property. The

provisions in the state Constitution which protect property

owners from "a taking" of th)r property without due process

and without full compensation Mr did not plug in to

Jupiter's situation.

--That Jupiterjad been damaged by Tequesta's actions--

it had to spend more money to get at the water beneath itt'

- -rT~L --but that there had been no "taking" for which

Jupiter could receive compensation.

Now, from what we've heard so far, it appears that the

Court condoned the unlimited withdrawal of water. Not true.

Remember---Jupiter claimed that it should be compensated

for its loss. The Court said no. If Jupiter had asserted

its right to take water in competition with Tequesta, for

example, kthe results might have been different.


This is so because the court's opinion clearly recognized

that principle that is now a part of the Florida Water

Recousrces Act: that a property owner has rights to the

reasonable use of water. The opinion said that property

rights relative to waters whic+ercolate th ugh the land of

one owner to and through the land of another porpety owner

are correlative.

But who is to do this balancing? Who is to make the

decision as to who geti how much water. Again, the opinion

was clear: The balancing of these correlative rights should

be left to the administrative system of water management

under the Water Resources Act' in short, ML to the 3ater

Management Districts.

The opinion held that the Village of Tequesta was the actual

user of the water and Jupiter was merely a proposed user.

Jupiter had no protection for a right it had not exercised.

There was no need for a right to condemn and pay for an

un cercised right to use water because an owner can use

the permit provisio7of the Water Resources Act. Jupiter's

remedy thus, was applying for permit under the Act.

The Tequesta decision, then, leaves the balancing of competing

uses of water up to the state's five water management

districts 'nd to the state's Department of Environemntal

regulation, which ome coordinates the activities of the

districts while recognizing the autonomy of the dintrizto

Of each district to operate independently to meet the

regional needs of its par ular jurisdiciton.

What are we left with?

Basically, this; Through Tequesta, the state's highest

court has declared that property owners have the right to

use the water beneath their land but they don't own it until

they h ve it in their possession. At the same time, he

court recognized the concept of competitive usage of water

and endorsed the balancing procedure embodied by the

reasonable-beneficial use language in the Water Resources


Does this solve all our problems?

Of course not.

The problem we face as users of water, and as owners of u

property under which water lies, is one of uncertainty.

My uses of water change over time, as do my n hgbor's.

Each time one of us applies for a consumptive use permit to

draw water of a certain amount, our neighbor's needs have'*p

'be balanced with ours and with the public interest. How do

we know what is reasonable and beneficial when we don't

know---and varying amounts of rainfall from year to year

are an example of why we can't know--how much water is going

to be available from year to year.

We have, then, ap ~me- t from the court as to

who owns how much, under what conditions, of that wet stuff

we all depend upon so heavily. To implement this pronouncement,

however, i' are dependent upon the intelligent functioning

of the adminsitrative regulatory machinery to insure that

all of us---the property owner, his neighbor, and the

public at large--receive a fair share.

What is the answer, then, to the question of who

owns Florida's water? Simply, we might say that it belongs

to all of us'jnid, at the same time, it belongs to none of us.


The State Water Policy promulgated as a rule by the

Department of Environmental Regulation and scheduled to

be finalized after the Nov. 17, hearing I mentioned earlier

is yet another example of the growing concern over Florida's

water problems.

The policy provides guidelines of varying degrees

of broadness and specificitylas to Florida's use a and

conservation of its most pji~ resource.

among other things, it urges water management

distrcits to:

--Assure the availability of adeu jte and

affordable supplies of water for all reasonable and beneficial

--Promote water conservation as At an integral

part of water mana ement progri$s, rules, and plans.

--Protect the water storage and water quality

enhancement functions of wetlands, floodplains, and aquifer

rechar4 areas through acquisition, enforcement of laws

and the application of land and water management practices

which proivde for compatible uses.

The State Water B3 y Policy amplifies the considerations

water management districts must make in determining

reasonable=beneficial use--that term that was so important

in the Tequesta de' ion we just discussed. These consideration

inc~ de the following:

S--The quartty of water requested for the use.

--the demonstrated need for the use.

--The suitability of the use to the source of water,

--The purpose and value of the use.

--The extent and amount of harm caused.

--The practicality of mitigating any harm by

adjusting the k y- method of use,

--Whether the impact of the withdrawal extends to land not

owned or legally controlled by the user

--The method and efficiency of use.

--Water conservation measures taken or availab e to be


--The practicality of reuse, or th use of waters of

more suitable quality

--The present and projected demand for the source of


--The long term yield available from the source of


--The extent of water quality degradation caused

--Whether the pr sed use would cause or contribute

to flood damage

--Whether the proposed use would significantly induce salt

water intrusion.

--The amount of water which can be withdrawn without

causing harm to the resource.





The missing link in the policy, though--the one which

is the subject of the hearing in T/llahassee leas than

a week from today, focies on the topic we have been

discussing today: Property rights to water.

Let me read to you the language which is being

being proposed to be added to the State Water PAlicy:

( (pick up language, k 17-40.04 Water Use, (5) and)

(6 ) : ^^oWA

I think you all can tell just from my reading of this

language that what is being proposed is not an earth-shaking

new declaration of rights or even a bold assertion of

new doctrine.


RULE MAKING AUTHORITY: 373.026, 373.043, 403.805, F.S.

LAW IMPLEMENTED: 373.036, Part II, 373, F.S.


along with the rest of Chapter 17-40 already adopted, are to be used

as a policy guide for future water-related State a.nd Water Management

District Plans. Many of these policy directives are taken from

existing law and do not constitute incremental changes in and of

themselves. The proposed subsections are not expected to have any

effect on competition or employment in the State of Florida, and will

have insignificant economic impacts beyond those described in the

adoption of the rest of Chapter 17-40, Florida Administrative Code.

TIME: 10:00 A.M.

DATE: November 17, 1981

PLACE: Department of Environmental Regulation, 4th Floor Conference

Rooms B and D, Twin'Towers Office Building, 2600 Blair Stone Road,

Tallahassee, Florida.


IMPACT STATEMENT IS: Terry Cole, Assistant Secretary, Department of

Environmental Regulation, Twin Towers Office Building, 2600 Blair

Stone Road, Tallahassee, Florida 32301.


17-40.04 Water Use

/(5) In implementing consumptive use permitting programs, the

department and the districts shall recognize the rights of property

owner to make consumptive uses of water from their land and the

rights of other users to make consumptive uses of water, as both

limited by law, for reasonable beneficial uses in a manner consistent

^> >.

with the public interest that will not interfere with any presently

existing legal use of water.

/(6) Nothing in this Chapter shall be deemed to authorize a

permitted to make consumptive uses of water which cause significant

adverse impact on off-site land uses or legal uses of water, or

abridge the right of affected persons to seek redress or mitigation

of such significant adverse impacts, in an appropriate forum.

Specific Authority: 373.026, 373.043, 403.805, F.S.

Law Implemented: 373.036, Part II, 373, F.S.

History: New.


It is, however, a powerful indicator of the importance

of fre y rights as to water in Florida and a significant

measure of the importance this issue will assume in the


I urge all of you to carefully monitor the development

of this language within the State Water Plicy. Public

input will characterize the Nov. 17, amM hearing and the

language which eventually emerges may be different from

what I have just read to you. Significant, though, is

that some language recognizing Iroperty rights as to

water will become an official part of Florida's state water





Lift the portion on "Water or Quail" from existing

speech, A.

Yes, we need good water management board members, but we

need concerned professionals like you, too, to do the

spadework to take the samples, to design the testing
procedures, to analyze the data, to analyze the past and

to predict the future so that these difficult decisio#a

can be made.

_ _~_ ~~

Groundwater and water retained in clouds ready to be
released in one place or another suggests to us the difficult
question of how to allocate "mobile resources" that migrate
from one place to another.


I've often compared water to quail. If I own a
tract of land in this part of the state, there just may well
be quite of number of coveys of quail living on that land. I
4\ own the land but do I own those quail? Not really not until
I have either shot or trapped the birds. True, I am the only
one who has the right to come onto my property and trap or
shoot those birds, unless I give someone else permission to do
so or charge him a fee to allow him to come onto my property
and hunt.

Then too, I, as the owner, and my guest, as the
licensee, can't shoot or trap those birds unless we have
hunting licenses. Even with a hunting license we have to hunt
in a particular manner. We can't shoot the quail with the
rifle, or on the ground, and we can't use a shot gun unless it
is plugged to limit the number of shells in the gun. We can't
hunt on certain days, and even when we can hunt, each of us is
limited to a certain number of birds we can kill on any
particular day. We are also limited as to the number of birds
we can possess at any one time.

The ownership of water is quite similar. If I own a
piece of property, I can prevent anyone from coming onto my
property and taking the water that lies under the land. But
both of us are still limited by government regulation in the
amount of water we can take per day and in the manner in which
we can do so. In the meantime, the water really doesn't
belong to me because I don't have possession of it. Before
taking it out of the ground, all I really have is a right to
use it and a right to prevent someone else from coming onto my
property and using it without my permission. If the water
flows underground from my property into the area underlying
someone else's property, all the potential use I could have
made from that water is gone, just as the quail that run or
fly away from my property to my neighbor's property are no
longer mine to hunt or to trap.

- 8 -

The thing we all want in government regulation is a
system that that will allow us to do whatever we want to do
with our water while at the same time will protect us from our
neighbors so our neighbors won't do anything with the water
under their land that will hurt us.

Sometimes this is tough to do. That's why we need
good people serving on our Water Management Boards. People
j r o e e

- 9 -

_ --

- -- ____-LIIIIIIIIIYLIII~~ll~13lll -~ -I

A a op

I hope I've left you this afternoon with the impression

that there are no absolutes when it comes to answering

the question of who owns Florida's water.

I hope I've been able to convey to you the nature

of the diffio t decision) that are involved in allocating

our stateli ited groundwater supplies in an equitably

reasonable and beneficial manner.

The one thing I want you to uerstand with all

claim' y, though, is that all of you are vitally and crucially

important, by Ar6 e of your education, your training and

your expertise, in providing the scientific, teY'hnical

and intellectual lase upon which all these difficult

decisiosI must be made.

Thank you very much.

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