Title: State Water Policy -Property Rights
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Permanent Link: http://ufdc.ufl.edu/WL00001781/00001
 Material Information
Title: State Water Policy -Property Rights
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Letter State Water Policy -Property Rights To: Victoria G. Tschinkel, Secretary Department of Environmental Regulation From: John T. Allen, Jr. P.A. September 15, 1981
General Note: Box 9, Folder 6 ( SF- State Water Policy/Property Rights Issue - 1980-1981 ), Item 38
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001781
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












September 15, 1981 ,-



Victoria J. Tschinkel, Secretary ct clet
Department of Environmental Regulation
Victoria J. Tschinkel, Secretary

ITwin Towers Office Building
2600 Blair Stone Road
Tallahassee, FL 32301

Re: State Water Policy Property Rights
Dear Secretary Tschinkel:

At the last meeting on the property rights' issue, it
was understood that the opponents of including a property
rights' statement into the rules of the Department would
have an opportunity to rebut any filed statements which
any of the proponents might make. 'It was further Pinellas
County's understanding that your Department would be for-
warding to us any such documents received so that rebuttal
could be forwarded to your office prior to the next hearing.

I am aware of the fact that on September 1, 1981, Mr.
Buddy Blain, on behalf of the Southwest Florida Water Manage-
ment District, wrote'to you indicating that the Southwest
Florida Water Management District was in favor of inclusion
of a policy statement relating to the rights of property
owners. Apparently, the Management District suggests the
following language:

"In implementing consumptive use permitting
programs, the department and districts shall
recognize the rights of property owners and
users, as limited by law, to make consumptive
uses of water from their land for reasonable
beneficial uses in a manner consistent with
the public interest that will not interfere
with any presently existing legal uses of
water."
Included with the letter is a memorandum of law which
seeks to cover the history of an owner's right to use per-
colating water in Florida. Stream and river flow is also
addressed in Mr. Blain's letter.


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Victoria J. Tschinkel, Secretary
September 15, 1981
Page Two

As you know, Pinellas County opposes any inclusion of
any property rights' statement into the rules. The Secra-
tary is very much aware of the reasons for this position
which Pinellas County has stated on many occasions. [Pinellas
County simply feels that there is no right at all to use
water beneath one's land unless you obtain a permit from a
Water Management District and that under the case of Village
of Tequesta v. Jupiter Inlet Coporation, 371 So.2d 663
(Fla. 1979), a Water Management District may totally reject
a request for use of ground water under one's land. Pinellas
County feels that it worked very hard to achieve the Tequesta
decision and that any statement that there is a property right
to use water serves the purpose of those who would advocate
the Water Crop Theory and who will in the future, if such
language is adopted, be taking not only your Department but
the Water Management Districts to Court contending that the
promulgation of your rule has established a right which they
do not presently have to withdraw water from underneath a
landowner's land.
Of cardinal importance is the fact that none of the
proponents of the rule have been candid with the Secretary
and told the Secretary why they are in favor of such a rule.
Certainly, the Southwest lorida Water Management District
has never told the Secretary why it takes the position that
it does. The Secretary will recall that most of the Water
Management Districts have been opposed to the use of any
such rule -- principally, the South Water Management District.
Mr. Blain simply states that the inclusion of such a rule
would be "a restatement of existing law." It is not my
understanding that the purpose of a rule is to restate existing
law. If existing law is so clear as Mr. Blain contends, then
there is no need for a mere restatement of that law as part of
the Department rules. Then, too, I must ask "what statement"
is the proposed language a restatement of??? Certainly,
nothing in Mr. Blain's memorandum of law specifies the type
of language proposed in the rule.
Unless we get down to brass tacks and realities in this
situation, the merit or lack of merit in the respective
parties' positions cannot be determined. The Southwest
Florida Water Management District should tell the Secretary
the purpose of advocating the language included in Mr. Blain's
letter and what effect, if any, it will have on the Department
and Water Management Districts throughout the state. This


Continued, please ..


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Victoria J. Tschinkel, Secretary
September 15, 1981
Page Three

cardinal inquiry must be made before the Secretary agrees to
put a property rights' statement into the rules. I believe
that none of the proponents of the rule will approach this
subject. To approach the subject would mean to admit that
Pinellas County s position is correct, i.e., that they are
trying to establish through Department rule a right to with-
draw water. We do not need a restatement of existing law.
If that be the case, then the proponents are protected. Why
are they spending so much time, effort and money to obtain a
restatement of already existing law and their supposed rights
which they have to withdraw underground percolating water????
The answer to this question is also obvious. They have no
such rights and they wish to establish them through promul-
gation of a rule.

As stated to the Secretary on many occasions, the pro-
mulgation of such a rule would be totally harmful and raise
serious questions as to its obvious conflict with the Tequesta
decision. It will embroil the Department in needless litiga-
tion and cause problems throughout the State of Florida which
are unnecessary at this juncture in Florida's water history.

In specific rebuttal of the memorandum of law, I do not
believe that a dissertation on what the prior law was prior
to the Tequesta decision and the adoption of Chapter 373,
Fla.Stat., is meaningful to your consideration. The bottom
line of the memorandum sent to you by Mr. Blain is the con-
tention that the Tequesta decision establishes a right to use
percolating water. THIS IS NOT THE HOLDING OF THE TEQUESTA
DECISION. In the Tequesta decision, the Supreme Court held
directly contrary to Mr. Blain's contentions stating:
"We overrule the dicta in Valls, supra,
that water beneath the surface is a private
property right which cannot be divested under
any circumstances without due process of law
and the payment of just compensation. The
right to use water does not carry with it
ownership of the water lying underneath the
land. Of course, 'property in its strict
legal sense 'means that dominion or indefinate
right of user and disposition which one may
lawfully exercise over particular things or
objects.' This 'right of user' may be
protected by injunction or regulated by
law but the right of user is not con-


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Victoria J. Tschinkel, Secretary
September 15, 1981
Page Four

sidered 'private property' requiring con-
demnation proceedings unless the property
has. been rendered useless for certain
purposes.* *"


"The 'reasonable use' rule insofar as the
proprietary beneficial use of water is con-
cerned has no application where the Court
is concerned with the proprietary use of
land, and in which the water is only inci-
dentally affected.* *"

Therefore, Mr. Blain's statement that a property right
was recognized in Tequesta is totally without merit. Our
Supreme Court went on to state that after the creation of
Water Management Districts, the only right to use water is
when Water Management Districts grant a Consumptive Use
Permit. The Court stated:
"* Without a permit, Jupiter has no such
property right to the use of water beneath
its land for which, upon deprivation, it
must be compensated through inverse condem-
nation."

In its summation, the Supreme Court stated:

"5. The landowner does not have a consti-
tutionally-protected property right in the
water beneath the property, requiring com-
pensation for the taking of the water when
used for a public purpose."
*

"7. The Water Resources Act now controls
the use of water and replaces the ad hoc
judicial determination in Water Management
Districts where consumptive use permitting
is enforced."

In sum, if the Supreme Court could totly ny uier
the right to withdraw water, then there i no property right


Continued, please .


I












Victoria J. Tschinkel, Secretary
September 15, 1981
Page Five

in water (as claimed by Mr. Blain\ The Secretary is going
to have to rely on her own legal department to determine
the controversy between the proponents and opponents on
this issue. Pinellas County believes your legal staff will
concur with Pinellas County's position on this question.

On behalf of my client, I wish to thank you for con-
sidering our rebuttal statement to the position of the
Southwest Florida Water Management District.
.Very truly yours,


JTAj r/mt




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