1984 THIRD ANNUAL WATER
"" Southwest Florida.
Water Manageaenrt District
Phone (904) 796-7211
Volume 11, No. 6 Holidays & Weekends (904) 796-1211 July 1980
OWNERSHIP OF WATER, OIL AND QUAIL
The following article is part of a speech recently delivered by .. M1. "Buddy" Blain, the District's General Counsel, at a symposium
sponsored by Florida Citrus Mutual in Lakeland. It is reproduced here as a service to our readers.
Florida has almost always had too
much water and water law in this state
has not evolved into adoption of the
correlative rights doctrine prevelent in
ome other parts of the country. As a
result of enactment of the Water Resources
Act of 1972, Florida began to follow
what's referred to as the "reasonable-
beneficial use" standard. This concept is
based loosely on the Model Water Code
published in 1972 by the late Dean Frank
Mlaloney and other water scholars at the
University of Florida. The reasonable-
beneficial concept adds to the principle
of reasonableness, the considerations of
economy and efficiency found in the
western states as a guide in applying
the reasonableness standard. But some
governmental entity must apply the
standard and make a determination of the
proper balance between competing land-
The concept relies on the principle
that an overlying landowner has a qualified
right to use the water under his land for
reasonable and beneficial purposes on
non-overlying lands. Withdrawals for us in
such non-overlying areas, however, must
not interfere with the reasonable uses of
overlying owners on land from which
their water is withdrawn. If withdrawals
for transportation to non-overlying areas
results in damage or injury to the supply
of water available to another landowner
for overlying land purposes, transportation
of water to non-overlying areas no longer
remains a lawful purpose.
THE TEQUESTA DECISION
Before last year, however, there
were no court decisions as to how much
water landowners might actually take and
i no real understanding of ownership in the
context of percolating water beneath the
earth's surface. The Florida Supreme
Court took the first step toward meeting
the issue last year in what has come to be
known as the Tequesta decision.
In the Tequesta case, the Jupiter
Inlet Corporation owned property near the
village of Tequesta on which it planned to
build a condominium project. The property
was located only about 1,200 feet from
one of Tequesta's wellfields. Tequesta re-
fused to agree to supply water to the
condominium. Jupiter then applied for a
permit to build its condominium, which it
would supply with water from the shallow-
Prior to this time Tequesta had
withdrawn large amounts of water from
the shallow aquifer which lay beneath
Jupiter's proposed development. Because
the potential for saltwater contamination
was great if more water was withdrawn
from the shallow aquifer, the county
refused to issue a building permit.
Jupiter was left with no alternative
but to drill a well into the deeper Floridan
aquifer, an expensive proposition. Rather
than doing so, it sued Tequesta for inverse
condemnation and sought an injunction to
stop Tequesta from pumping what it
considered excessive amounts of water.
Jupiter also claimed that the pumping by
Tequesta from beneath Jupiter's property
had effectively deprived Jupiter of the
future beneficial use of its property rights
in the shallow aquifer. It thus claimed the
right to be compensated for its loss.
At the first stage of the proceedings,
the trial court ruled that Jupiter had not
stated a cause of action and entered
judgment for Tequesta. Jupiter appealed
and the district court of appeal there
reversed the trial court, ruling that the
shallow aquifer beneath Jupiter's land
was a form of private property. As private
property, it could not be taken without
the due process of law and payment of
Tequesta took the case to the Florida
Supreme Court. That court quashed
the District court decision and held for
Tequesta. Justice Adkins' opinion in the
case provided the first pronouncement of
water ownership rights since enactment
of the Water Resources Act of 1972.
The Supreme Court stated without
reservation that 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 draws the water out of the
ground and takes possession of it, he
owns it, but not before.
Oil, minerals, and other substances
of value, the court said, are valuable
property rights which cannot be divested
without due process and just compensa-
tion. Water is not, said the court. Jupiter
had a right to use the water beneath its
land, but not to own that water until it had
the water in its possession.
Florida's state constitution protects
property owners from a "taking" of their
property without due process and without
paying full compensation. Once the court
found that Jupiter's rights in the water
were not private property rights, the next
step in the court's logic was to look at
what was taken. Not property Jupiter
didn't own the water. There was no invasion
of Jupiter's property. It still had the land
overlying the water, and the water itself
was not j(upiter's property.
In other words, there was no physical
invasion by agents of the city of anything
that could be called Jupiter's property. The
court recognized that Jupiter had been
damaged it had to spend more money
to get at water beneath its property. But
there had been no "taking" for which
Jupiter could receive compensation. rhe
court stated it was impossible to place a
value upon the water that the city had
withdrawn from underneath Jupiter's land.
If you stop reading the decision at
that point, it might appear that the court
condones unlimited withdrawals of water.
But that's not really what the court said.
You have to remember that jupiter's claim
was that it should be compensated for its
loss. If Jupiter had asserted its right to take
water in competition with Tequesta, the
results might have been different. The
court clearly recognized the principle
contained in the Florida Water Resources
Act that a property owner has a right to
the reasonable use of water. The court
said that property rights relative to waters
that percolate through the land of one
owner to and through the land of another
But the balancing of those correlative
rights was left by the court to the adminis-
trative system of water management under
the Water Resources Act. The court found
that Tequesta was the actual user and
Jupiter was merely a proposed user. Jupiter
had no protection under the act for a
right it had not exercised. The court
stated that there was no need for a right to
condemn and pay for an unexercised right
to use water because an owner can use the
permit provisions of the law. The court
thus left Jupiter with the sole remedy of
applying for a permit under the Florida
Water Resources Act.
The Tequesta decision leaves the
balancing of competing uses of water up
" to the Department of Environmental
Regulation, and to the five water manage-
ment districts. Under the Water Resources
Act, the reasonable-beneficial use standard
remains the controlling criterion for
evaluating uses of water. The problem
users still face is uncertainty. Your uses
of water change over time, as do your
neighbor's. And each time a person applies
for a consumptive use permit to draw
water of a certain amount, his neighbor's
needs and his own must be balanced. On
top of that, their needs have to be balanced
with the public's interest in conserving and
protecting the water resource. With the
amount of rainfall so variable, it's less than
reassuring not to know how much water is
going to be available from year to year and
how much consumptive use is going to
be "reasonable" and "beneficial."
Perhaps it would be easier if you
could know that there's a certain definite
SEE QUAIL, poqe 3
QUAIL from oaae 2
amount of water available for use by each
of you. You could plan and provide for
shortages on your own. But water's not the
type of resource that allows for that. Like
it or not, it belongs to all, and at the same
time, it belongs to no one.
In responding to alarm at deteriora-
tion of the environment, government may
have gone too far in regulation. But as long
as we depend on "free flowing resources"
that can't be penned or caged for later use,
close scrutiny may be necessary. There
are other problems, as well.
Consider, for example, a new area of
science and of law known as "weather
modification." Technological advances have
enabled us to seed clouds to produce rain
and snowfall. The potential benefits of
such technology are immense, but so
are the dangers. Flooding, after cloud
seeding, has led to claims that the weather
modification caused the adverse results.
Another problem that has developed in
the area of weather modification is a
direct result of the fact that overuse by
people of a limited resource diminishes
the supply of that resource available to
others. You may have read about this
concept of "rain theft." Cloud seeders in
the state of Washington induced clouds
to release rain before the clouds could
reach Idaho. The result? Year before last
Idaho almost sued Washington for "rain
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 re-
sources" that migrate from one place to
WATER OR QUAIL
I've often compared water to quail.
If I own a tract of land in this part of the
state, there may well be quite of number
of coveys of quail living on that land. I
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.
This document is produced monthly
at an annual printing and postage cost of
$2,372.00 to provide public officials and
private citizens a current source of in-
formation about the Southwest Florida
Water Management District and its pro-
BOARD OF GOVERNORS of the
Southwest Florida Water Management
District, 5060 U.S. Highway 41 South,
Brooksvillc, Florida 33512.
Shen 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 a rifle, or on the
ground, and we can't use a shotgun 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 al.
limited as to the number of birds we ca
oossess at any one time.
The ownership of water is au;.:
similar. If I own a piece of -perty
can prevent anyone from comi.:: c.to r,
property and taking the wat-- -.t
under the land. But both of: .-e
limited by government regul- -
amount of water we can take
in the manner in which we :
the meantime, the water
belong to me because I don
sion of it. Before taking i
ground, all I really have is a .
and a right to prevent some, .
coming onto my property
without my permission. If the
underground from my proper, int .
area underlying someone else'; ope-
all the potential use I could :i.-/e rr.
from that water is gone, just ;: the qc::
that run or fly away from my property
my neighbor's property are no longer mire
to hunt or to trap.
The thing we all want in government'
regulation is a system that will allow us tc
do whatever we want to with our water. A:
the same time we expect it to protect us
from our neighbors so they won't do any-
thing 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
who are willing to serve for no pay except
the satisfaction of serving the public, who
will make the best decisions they can to
balance the interests of the various property
owners and the public. The Southwest
Florida Water Management District has
been particularly fortunate in that regard
over the 19 years it has been in existence.
This is the public's best assurance that the
resource will continue to be managed for
the long term benefit of all residents.
Bruce A. Samson
Wm. O. Stubbs, Jr.
Ronald B. Lambert
B. T. Longino
Arch Updike, Jr.
Donald R. Feaster
Donna K. Paikin-W'el/