Title: Reasons for a Regional Water Supply Authority
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 Material Information
Title: Reasons for a Regional Water Supply Authority
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Reasons for a Regional Water Supply Authority Author and Date Unknown
General Note: Box 9, Folder 6 ( SF- State Water Policy/Property Rights Issue - 1980-1981 ), Item 6
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00001749
Volume ID: VID00001
Source Institution: Levin College of Law, 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







There are many changes that have taken place in Florida water law
over the last twelve (12) to fifteen (15) years. During this time the
population of Florida has increased from five million to eight million
people. Many of these newcomers have settled in water deficient
areas of South Florida and in the environmentally fragile regions
of southwest Florida. Florida water law because of the increasing
demand to preserve water uses and competition over uses has changed
significantly.both at the case law level and legislatively. The
1972 Florida Water Resources Act, 1972 Florida Land and Water
Management Act and the 1974 Coastal Mapping Act are examples of
important legislation at the state level. In addition, the National
Environmental Policy Act of 1969, Federal Water Pollution Control
Act of 1972 and the Clean Water Act of 1977 illustrate how federal
legislation has affected Florida's-water resources. Many of you
have been exposed through your various governmental agencies in
one way or another to the various federal and state legislative
mandates that will be addressed in some fashion through other
speakers coming before you today.

What I would like to discuss with you is the approach that courts
have made with respect to your rights in and to water that may be
either under the land that you own, be it private or governmental
ownership and rights to water that flow over your land, be it
private or governmental. It is only through this understanding
that you can better evaluate the need for a common purpose in
preserving the water rights within our area and the utility of
having a vehicle such as a regional water supply authority within
your region.

Although, scientists have long recognized that water moves in what
is a hydrologic cycle, that is, the process of water passing from
atmospheric water vapor into liquid and solid form as precipitation,
thence along and into the ground and finally returning to the
atmosphere, the law has classified it as if the different physical
stages of water are separate and distinct rather than interrelated
parts of a hydrological cycle. This is mainly because lawyers and
judges are not engineers nor hydrologists and we tend to try to
reduce things, be it for better or for worse to simplify concepts
in order to resolve conflicts.

The early case law in Florida generally characterized water into
four (4) classes. Water was considered to be either 1) surface
streams which flowed in a permanent distinct well defined channel,
i.e., a river or lake or 2) surface waters which have no distinct or
well defined channel but simply passed over the lands of one to
another, i.e., natural drainage patterns or rainfall in water shed
areas or 3) subterranean streams which are underground well defined
water flow channels that flow undergone person's land to another
and 4th) and lastly subsurface water which really had no permanent
or distinct definite channel but simply percolated in veins or filters
in a diffused manner from lands of one owner to lands of the other.


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Therefore, with the court's treating water in four (4) categories
they developed a different set of rules and a different approach
to people's rights in and to the four (4) different classifications
of water. Not only has the court treated individuals,' rights to
the water differently based on these classifications, but looking
at the United States as a whole the courts have treated water diff-
erently if we are talking about the western states versus the
eastern states.

The western states have adopted what is called the prior appropriation
rule. It is what I call the gun slinger approach to water law. Its
foundation basically is that whoever begins using the water first
and appropriating the water first in entitled to satisfy all of his
water needs before anyone else second in line may divert water to
his own use. As you can see, in the example of surface streams and
rivers, I would have the right to use whatever water I wanted before
you as a down river owner of property would be able to use it. The
fact that you may own land down stream or owned land upon which the
stream flows in immaterial. Your ownership of the, land has nothing
to do with my first right to use it if I was there before you. There
are some qualifications that exist within the prior appropriation rule
but that is a basic oversimplification of its treatment.

In the eastern states we have treated water under a different concept
called riparian rights. The riparian system of water law actually
paralleled the development of the common law system in England. It is
a system of water rights based initially on ownership of land abutting
on surface water courses including both lakes and streams and the
owners of such lands are called riparian owners. The major doctrine
flowingthrough Florida riparian rights law is that known as "reasonable
use rule." This "reasonable use rule" is now the majority position
in the eastern united states. Under the "reasonable use rule" each
riparian owner may use the water for any beneficial purpose provided
that the intended use is reasonable with respect to the needs of
other owners along a stream or lake and does ,not unreasonably inter-
fere with their legitimate water uses. On a case by case basis the
courts have resolved conflicts between owners as tg what is reasonable
use versus unreasonable use and what is beneficial or non-beneficial
in comparing the owners. According to the past treatment of water
law in this area the traditional riparian doctrine did not give any
superior rights based on priority of use or who was there first.

The Florida Supreme Court first recognized the doctrine of riparian
rights in Tampa Waterworks vs. Cline, decided in 1896. Tampa
Waterworks was supplying the City of Tampa with water from a spring
fed stream. Mr. Cline, a nearby owner, excavated a hole on his land
and exposed the stream. Tampa Waterworks Company fearing that it
would be polluted by surface runoff brought suit to prevent further
excavation and the court denied Tampa Waterworks' request to enjoin
Mr. Cline. The court stated that the same rules apply both to
surface waters as well as underground streams. They basically stated
that Tampa Waterworks did not have a right based on priority to prevent
Mr. Cline from utilizing the water, as long as they were not being


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deprived of the water either. Many other cases followed this
decision but in 1972 the Legislature enacted the 1972 Water
Resources Law and a majority of the riparian system and its case
law was replaced by a statutory allocation scheme in most parts
of Florida. Consumptive use permitting within the water management
districts have eliminated to some degree the judicial system
attempting to arbitrate disputes between land owners over the use
of their water.

Slowly over the years, apparently due to a lack of hydrologic
information provided to the courts, the courts began to consider
underground water in two (2) separate categories. Underground
subsurface streams in well defined channels or Water'courses were
treated differently than underground subsurface water that was
believed to be diffused and had no appearance of being in any kind
of channel or flowing in any kind of direction. This latter water
was often referred to as "percolating water." It is in the area of
diffused subsurface water or percolating water that the major legal
problems have evolved as to competing uses of that water. As you have
seen the courts have consistently in Florida maintained that you do
possess a right to use water that is surface water, running upon
or adjacent to your property, and they have additionally stated that
if the water is underground water and is in a well defined channel
that you have a right as to it. Your right is basically that of use
of the water and the ability to prevent someone else from depriving
you of its reasonable use. You did not have a priority to the water
but you have a joint ability to use the water and'a property right
in it as long as your use is beneficial and the use by your neighbor
is likewise. However, when we get to the area of subsurface water
that has no clearly defined channel but is a diffused type of water
body or sometimes referred to as the "shallow water aquifer," the
question now posed is who does that water belong to? What rights
do I have to it? And if I have any rights to it, how may I protect
it from someone else attempting to use it or redUCe its use or
compete with me for its use. As you will see this issue was never
squarely addressed by the courts until May of 1919 when the Florida
Supreme Court rendered what is being termed as a landmark decision
in the Village of Tequesta vs. Jupiter Inlet Corporation.

The early case law in this area, if you look to the eastern states they
have fragmented in their approach to ownership interest in "percolating"
subsurface diffused water. Early in water law history the courts
tended to reject any attempt to fashion rights t0 this type of water
arin the Supreme Court of Ohio said in 1961 that Ae problem with this
area of water law is "the causes which govern and direct their move-
ments are so secret and occult and concealed that any attempt to
administer a set of legal rules in respect to them would involve
hopeless uncertainty and would be impossible." The Supreme Court
in Virginia in 1927 commented that the problem with percolating water
is that, it oozes and seeps and filters through soil beneath the
surface without any defined channel." Because of what the courts
felt was an apparent inability to develop a rule surrounding classifying
water as well defined subsurface water versus diffused subsurface
waters two (2) doctrines began to spring up in relation to how to


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handle this area. he first and most simplest doctrine was the
doctrine of absolute ownership. That doctrine which was supported and
still followed in Ohio, Maine, Massachusetts, Mississippi, Rhode
Island and Vermont basically holds that a landowner may extract an
unlimited quantity of percolated ground water from his land and use
it on his overlying land regardless of the injury to adjacent owners.
The absolute ownership doctrine recognized a vested property right in
the overlying landowner to the percolating water beneath his land
regardless of whether he actually puts the water to use or not. It
has been said that the percolating water belongs to the owner of the
land as much as the land itself or the rocks and stones in it. The
absolute ownership rule has often been referred to as the English
rule and it was based upon the maxim "to whomsoever the soil belongs,
he owns also to the sky and to the depth." The only problem with the
rule and the jurisdiction that follow the rule (you will note that
I did not mention that Florida was one of those jurisdictions) is
that since a landowner has no rights against an adjoining landowner
who also withdraws groundwater, its somewhat misleading to say that
he owns absolutely the percolating waters under his land. Instead it
would seem that the landowner does not really own the water until he
has reduced it to actual possession. However, possession is always
in competition with his adjoining neighbor who also has the absolute
right to take the water underneath the land and the net result may be
that both of them deprive one another of water by excessive or
irresponsible withdrawal. The doctrine is losing some of its support
in the states that have adopted it, mainly because it fails to account
for the nature of groundwater and because it favors large users who
have the finances and the capability of drilling deeper wells over
small users. The rest of the eastern states have adopted modified
versions of what we call the American rule. It is a reemergence of
the "reasonable use rule" that we discussed earlier but now applies
it to percolating waters somewhat the same fashion that was applied
to well defined surface waters and well defined groundwater. The
American reasonable use rule allows the landowner to use as much
percolating groundwater as he needs regardless of any adverse effect
on other landowners as long as the water use isi-reasonably related
to natural use of his overlying land. The use tust be beneficial
and cannot be malicious or wasteful and the use of water on overlying
land for agricultural, domestic, or mining or manufacturing purposes,
has been deemed to be such a reasonable use. Although the reasonable
use rule is being applied by the courts, it does:not give a definite
answer as to the actual amount of water that may be taken by the
overlying landowners although it does recognize the relationship
of the overlying landowner is similar to that a riparian owner on
a water body.

In the Supreme Court case of the Village of Tequesta vs. Jupiter
Inlet Corporation, the Florida courts for the first time took a very
hard look at the nature of ones ownership interest in percolating
waters underneath the land. The Village of Tequesta is a municipality
which owned and operated a wellfield approximately 1,200 feet from the
Jupiter property which contained 7 wells anywhere between 75 and 90
feet deep which pumped in excess of a million gallons of water a day
from the shallow water aquifer to supply the city residents with water.
As a result of the amount of water withdrawn by the City of Tequesta,
from the shallow water aquifer, there began to be a danger of salt water
intrusion from the intercoastal waterway and there was testimony that


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any further pumpinC f water within the surro )ing area would
reduce water levels and that :salt water intrusion would indeed
occur. Additionally, Tequesta informed Jupiter that it could
not supply water to the condominium project and they would have
to seek permitting to drill their own well which was denied to
them if they intended to drill a shallow well and tap into the
same shallow water aquifer being used by the City of Tequesta.
The only means therefore left for Jupiter to.supply water to its
property was to drill a well to the Floridan Aquifer located
1,200 feet below the surface at substantial greater cost.
Jupiter instituted a lawsuit against the city stating that they
have been deprived of the right to use the water underneath their
property and they should by virtue of being a landowner, have a
vested, unalienable right to water beneath theirground.

The Supreme Court discussed the English rule that I mentioned to
you before which stated that the landowner had a legal right to the
water underneath his ground irrespective of any effects his use
may have on groundwater underlying his neighbor's land. They
discussed the American reasonable use rule which rejected the
English rule and discussed the differences between the two. The
court further stated that the reasonable use rule had been used
before in discussing other water rights but thenistated as follows:

"There can be no ownership in seeping and percolating
waters in the absolute sense because of their wandering
and migratory character unless and until they are reduced
to actual possession and control over the person claiming
it. Their ownership consists in the right of the owner
of the land to capture, control and possess them to prevent
their escape if he can do so from his land and to prevent
strangers from trespassing on his land in an effort to
capture, control or possess them. When the percolating
waters escape naturally to other lands the title of the
former owner is gone. There is a right to use as it
passes but there is no ownership in the absolute sense.
It belongs to the overlying owner in a limited sense
that he has an unqualified right to capture and control
it in a reasonable way with immunity from liability to
his neighbors for doing so. When it is reduced to his
possession, and control, it ceases to be percolating
water and becomes his personal property."

The court then stated the following rule to be applied:

"The right of the owner to groundwater underlying his land
is to the use of the water and not to the water itself.
The ownership of the land does not carry with it any
ownership of vested rights to underlying groundwater not
actually diverted and applied to beneficial use."

The court went on to say that it overruled any prior court opinions
be they lower level courts or even their own that gave anybody
any impression that water beneath the surface with respect to
percolating water was a private property right. '



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The court is not saying however, that once you have obtained
control over the water and y6.i have exercised your dominion
over it that you would not be protected if someone else attempts
to destroy your beneficial use by competing with you for the
same water. Obviously, in the Village Tequesta the court ruled
that since they were using the water first and they were using
it for a beneficial purpose, i.e., for domestic use for the
residents of the city that they had a right to continue its use
free from a detrimental use by an adjacent landowner. If Jupiter
could have drilled a shallow water well without disrupting,
impeding or otherwise endangering the use of Tequesta they would
have been allowed to do so.

What you see the Supreme Court doing, ih my opinion, is in the
area of percolating water beginning to give a little more credence
to a priority concept of water use. Meaning that if you use and
appropriate the water underneath your land first ad you are using
it for a beneficial purpose at that point in time you begin to
have a vested right in the maintenance of that wa er'flow against
someone who has not begun to use water underneath his land. And
if his secondary use (or Johnny come lately use) would injure your
use the Supreme Court stated that the bare essential facts
controlling this case are simple and direct.

"Tequesta utilized all the available percolating water of
the shallow well aquifer in the area of Jupiter's land.
Jupiter decided to become a competing user. Jupiter did
not have a constitutional protected right in the water
beneath its property," and denied to Jupiter the ability
to be compensated for the loss of the water beneath its
land since it had never perfected the use of its water.

The Supreme Court turned to the 1972 Water Resources Act and
upheld the ability of the management districts to deny permitting
to consumptive use applicants if such did not fal within the
criteria of a use that was reasonable and beneficial to the area.

They confirmed that Florida Water Resources Act recognizes the
need for conservation and control of the waters o the state and
that act makes all water of the state subject to he regulation
by the water management districts unless otherwise specifically
exempt. In drawing reference to the act the court stated that
the act never recognized a right to water underneath the land
as separate from the right of the use of the water under a permit
granted. Additionally the court stated that not even the Legislature
in providing the Florida Water Resources Act made any provision
for the continuation of an unexercided common law right to use of
water. And matter of fact, the legislation contained provisions that
any user of water that would be regulated by the management districts
would have to seek a permit for any future use after a two (2) year
transitional period.

The Supreme Court in making the decision that it has in Tequesta,
has for the first time told us that unless we are actually using


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water beneath our n-und it doe6 not belong to s. It belongs
to that person that first drills for it and uses it. Many
individuals and many elected officials were laboring under the
impression for many years that they had a right to protect the
water underneath their jurisdictions from intrusions from counties
from the south who need and must have fresh water supplies whether
we used it or not.

The importance of that decision to this region and the importance of
the water authority become very apparent. If the water authority
begins to become operational as the Legislature intended, and begins
on a region-wide basis to establish wellfields and'water supply
systems for its member counties, it then begins to have vested
interest and the standing to protect its water resources from
competing outside governmental users. The water supply authority
is attempting to delineate the resources of the region in order to
establish those areas that could provide sufficient water supplies
for the regions present and future-needs.

A part of the enabling legislation for the creation of the regional
water supply authorities provides in it that in water scarce times
that affects the region the water supply authority would have the
right to give preferential treatment to its member counties and
its member users over any other user who is a non-member for one
reason or another was being supplied water.

As you can see a regional water supply authority presents a larger
geographical water user and encompasses larger area than each
landowner, be they individual or governmental attempting to
establish their own individual needs against outside users.

You must remember that the Legislature has allowed extra territorial
eminent domain that allows governments to condemn land outside of
their jurisdiction in order to provide among other things water
supplies for their residents. The Regional Water Supply Authority
with a network of regional water supply facilities and aried with
the Corps of Engineers study of the resources of the area and the
effects that any outside user may have on our existing uses is your
key and your legal standing to protect the future water resources
of this region.

Additionally going to a regional water supply system eliminates the
proliferation of wellfields that may adversely because of their
numbers affect existing wellfields or individual wells. It is
believed that it is the most reasonable and rational and efficient
approach to providing the future water needs of the region.

I thank you for your attention and I hope that you have a better
understanding of the legal rights associated with our water
resources.




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