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PLEASE RCPLY TO:
FOR HAND DELIVERY
September 21, 1981
Ms. Victoria J. Tschinkel
Secretary, Department of
Twin Towers Office Building
2600 Blair Stone Road
Tallahassee, FL 32301
Re-: State Water Policy (Chapter 17-40, Florida
Administrative Code) Property owners'
Dear Secretary Tschinkel:
During a workshop on Chapter 17-40 last July 7th,
you called for briefs regarding a proposed statement on
property owners' rights in water. On behalf of the Florida
Phosphate Council, we have prepared a review of the current
law regarding this subject, which is enclosed. We hope the
discussion will be helpful to you.
We feel that a statement on property owners'
rights such as the one currently under consideration cannot
change the existing law, but can restate and affirm for the
benefit of the Department and the Water Management Districts
the basic criteria that should be observed and implemented
in the future. To this end, such a statement is worthwhile
and should be adopted.
The Florida Phosphate Council is vitally interested
in Chapter 17-40, and we appreciate the opportunity to
Ms. Victoria J. Tschinkel
September 21, 1981'
participate in this review of Florida law.
cc: Chuck Littlejohn (w/attach.)
Mary Clark (w/attach.)
Homer Hooks (w/attach.)
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REVIEW OF FLORIDA WATER LAW WITH REGARD TO
PROPERTY OWNERS' RIGHTS
-Submitted on behalf of the
Florida Phosphate Council, Inc.
September 21, 1981
I. PROPERTY OWNERS POSSESS QUALIFIED RIGHTS TO USE WATER UNDER-
LYING OR ADJACENT TO THEIR PROPERTY.
A. UNDER THE COMMON LAW, FLORIDA PROPERTY OWNERS
POSSESSED RIGHTS TO USE WATER.
The transitory nature of water has historically presented
problems to legal scholars. Legal theories have ranged from
concepts of community ownership to absolute and exclusive ownership
of water by the riparian owner. Maloney, Ausness, Morris,
A Model Water Code, 165-166 (1972). In the United States, the
common law developed which described the water rights of property
owners as rights, not to own the water itself, but to make use of the
water. Thus, in this country, the right to water has traditionally
been a usufructuary right. Id. at 167-168.
In the eastern United States, the standard which
developed was one of "reasonable use." The consumptive use of water
by riparian owners had to be reasonable with respect to the rights
and uses of other riparian owners and its effect upon the public
interest. See, Maloney, Capehart, and Hoofman, Florida' s
"Reasonable Beneficial" Water Use Standard: Have East and West
Met?, 31 U.Fla.L.Rev. 253, 255 (1979). Under this theory, every
riparian owner may use water for any beneficial purpose provided
that the intended use is reasonable jin view of the needs and uses of
other such owners. The object of the reasonable use rule is to
promote the fullest beneficial use of water. Maloney, Plager,
Ausness, Canter, Florida Water Law 1980, 12 (1980). A reasonable
use rule similar to that governing riprarian rights.developed with
respect to ground water. Maloney, Plager, Baldwin, Water Law
and Administration: The Florida Experience, 157-158 (1968).
Florida has subscribed to the view, as have most eastern
states, that riparian rights are a form of property. This property
interest has been limited to the right to use water.
Water Law and Administration, supra at 31-32. Furthermore, Florida
has adopted the eastern reasonable use rule with respect to both
riparian waters and percolating ground water. See
Cason v. Florida Power Company, 74 Fla. 1, 76 So. 535 (1917);
Koch v. Wick, 87 So.2d 47 (Fla. 1956). In Koch, the Florida Supreme
Court stated that:
American courts have receded from the old
common law rule that an owner had an
unrestricted right to draw percolating
water from his land and to adopt the rule
that the right is bounded by
reasonableness and beneficial use of the
land. Koch at 48.
The most recent comprehensive analysis of the evolution
of common law in Florida with respect to water rights is contained in
Village of Tequesta v. Jupiter Inlet Corporation, 371 So.2d 663
(Fla. 1979). Here, the Florida Supreme Court noted that overlying
owners never possessed an absolute property right to water at common
law. It confirmed that "[t]he right of the owner to ground water
underlying his land is to the usufruct of the water and not to the
water itself." Tequesta at 667. Moreover, it described the
reasonable use rule as adopted in Florida to allow a property owner
the right to use water in the course of using his land to the extent
"'reasonably necessary for some useful or beneficial purpose,
generally relating to the land in which the waters are found'."
(citation omitted) Tequesta at 666.
Thus, in Florida, under the common law, property owners'
rights to water were not absolute but were restricted to a reason-
able and beneficial use of the water so as not to interfere
unreasonably with the existing and reasonable uses of other users.
Tequesta, supra; Koch v. Wick, supra; Labruzzo et ux v. Atlantic
Dredging & Construction Co., etc., 54 So.2d 673 (Fla. 1951).
B. THE FLORIDA WATER RESOURCES ACT OF 1972 DID NOT
ABROGATE PROPERTY OWNERS' COMMON LAW RIGHTS TO USE WATER
BENEATH OR ADJACENT TO THEIR PROPERTY.
When the supply of water was abundant, the concept of
relative reasonableness under the common law reasonable use
standard was sufficient to resolve competing demands for water.
A Model Water Code, supra at 156. As Florida and its economy
developed it became clear that careful management of water resources
was of critical importance. Although Florida has abundant water
resources, with its rapid growth and development, the demand for
water became very great. Moreover, Florida's particular topography
and extremely variable weather conditions, alternately causing
years of drought and years of flooding, created a situation in need
of effective statewide administration. Florida Water Law 1980,
supra at 205-207.
In the past, mechanisms for resolving controversies among
water users were severely limited. "The judicial system was ill-
equipped to deal with such conflict and became oriented to a case-.
by-case approach to solving disputes." Tequesta at 670.
Consequently, in 1972, the Florida Legislature enacted the Florida
Water Resources Act providing a system to regulate the use of water.
Ch. 373, Fla. Stat. (1972). Chapter 373 provided a rational,
orderly administrative system of water management.
This legislation was enacted pursuant to the state's
police power. "[A]11 property is held subject to reasonable
regulation by the state under its police power; no assertion of a
property right is so unlimited that it is superior to the public
good." (Footnote omitted.) A Model Water Code, supra at 163.
Under the police power the state can regulate and protect the
health, safety and general welfare of the public. State regulation
of water resources stems from its authority under the police power
to promote and protect the general welfare. Due to the significance
of water to the public welfare, the U. S. Supreme Court has
traditionally upheld state regulation of water. Id. at 165. Thus,
it is clear that the right to use water is subject to equitable rules
for distribution. Id. at 168.
1. Legislative History of The Florida Water Resources
Act of 1972.
The Florida Water Resources Act of 1972 regulates the use
of waters in Florida through various mechanisms, including a
consumptive use permitting system. The administrative system
provided for by statute was deemed necessary to monitor the demands
for water and to eliminate wasteful practices and assure maximum
beneficial utilization of the water. See Letter from Representative
Jack Shreve, Select Committee on Water Resource Management, Florida
House of Representatives, April 3, 1972. See generally Tequesta,
supra. There is no clear, express intent in Chapter 373 to abolish
property owners' common law right to use water. Indeed, there is a
direct indication in the Act's legislative history that the legis-
lation was intended "to codify the correlative rights and duties of
those who consume or manipulate waters." Summary of Staff Proposal,
House Select Committee on Water Resources Management, 2/16/72. The
principle object of Chapter 373 is the same as the objective under
the common law and that is to accommodate as many reasonable uses as
is possible and beneficial. The Act embodies the riparian
reasonable beneficial use system in a modified form by imposing an
administrative structure upon it. The common law as developed in
Florida is the fundamental basis of the legislation. See
Florida Water Law 1980, supra at 222-225. The right continues to
exist as long as the property owner complies with the statutory
criteria contained in the Florida Water Resources Act.
2. Statutory Construction.
Moreover, the position that Chapter 373 does not abrogate
the common law is supported by the tenets of statutory construction.
In general, statutes either remedy a defect in common law or codify
the existing common law to achieve clarity and uniformity. Statutes
that impose duties or burdens or establish rights or provide-
benefits which were not recognized by common law have frequently
been held subject to strict or restrictive interpretation. Such
statutes are generally given an effect which makes the least rather
than the most change in the common law. 3 Sutherland
Statutory Construction 61.01 (1974). Laws are generally construed
as making no change in the common law unless such change is fairly
and clearly expressed. See Carlile v. Game & Fresh Water
Fish Commission, 354 So.2d 362 (Fla. 1977).
It is also a well-established doctrine that all statutes
are to be construed with reference to the common law.
Ellis v. Brown, 77 So.2d 845 (Fla. 1955). These principles are an
extension of the same logic which leads courts to read statutes with
the presumption against giving them the effect of changing prior
law. An interpretation which preserves rights or benefits enjoyed
under the common law is favored, as long as the result is in keeping
with good public policy and consistent with what is otherwise
indicated to be the purpose of the statute. Sutherland, supra at
3. Chapter 373.
Under the Florida Water Resources Act, regulation of
water use has been implemented in various areas through a
consumptive use permitting system. In areas that have not
implemented the permitting process, the common law right to use
water applies unfettered by the regulatory structure provided for in
Chapter 373. Florida Water Law 1980, supra at 224.
Property owners' rights have been affected by Chapter 373
in that they now must obtain a permit authorizing consumptive use of
water in order to perfect their rights. See Tequesta at 670. The
permitting system is the structure by which the common law
reasonable and beneficial use standard is uniformly applied on the
basis of the statutory definition of those terms. Under Chapter
373, the term reasonable-beneficial use means "the use of water in
such quantity as is necessary for economic and efficient utilization
-rr 6. -9 1
for a purpose aPd in a manner which i, boi rian-a te af iC*;n Qetnt
with as pebUoa nefart,. *7&a.ot9(4 fl9s }1-9f1. Mn
applicant kc a cnU utfl wa
that ast u A Wll 'i^^^^Ke^^^':j^'1pritabl 9le1ig
UMJ aws (3) that iOa na $r coneautett with the lit interest.
S373.223(t),I (1i tat. (19h).
Under the comQmar w, Pla ropty ownrs.v- w* atted to
bartfic at .i r tttf*a t. vttb.n
ZI. PROPOSED WODhIG OF PRQVIS ION
Tobme .f to r Il 17-40.04, Water Use:
(5p In il p'Swantt cenmaaPit us gsnLtting
W.. p a E" 4~. ,- .Utnt t' tL
not tetfrw any pI y l
( Ion: .,pksmot. *.. c..m.pae,..e r-tting
IIs. Hsr wa.lraowai ml BH2mO^^Otf. 1U80CiATIN fiS 'r B STATUThRY
usei. Th ptropoa poi cy .-. . 4 wttI r
criteria and ViII fit within th establiahe)d k.
IV. EFFECT OF PROPOSED PROVISION UPON THE PERMIT SYSTEM.
The proposed provision reflects existing law and will
serve to provide consistency among the various water management
V. ECONOMIC IMPACT OF PROPOSED RULE.
There appears to be no economic impact which will result
from adoption of the proposed language in view of the fact that the
language is consistent with existing law.