Title: State Water Policy/Property Rights
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 Material Information
Title: State Water Policy/Property Rights
Physical Description: Book
Language: English
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Letter State Water Policy/Property Rights To: Victoria J. Tschinkel -Secretary Department of Environmental Regulation From: Gerald A. Figurski -Pasco County Attorney September 8, 1981
General Note: Box 9, Folder 6 ( SF- State Water Policy/Property Rights Issue - 1980-1981 ), Item 39
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00001782
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
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Gerald A. Figurki, Eq.
County Attorney


PASCO COUNTY, FLORIDA

OFFICE OF THE COUNTY ATTORNEY
4025 Mooe Lak Road
Nw Port RlUhy, FL 33852
PHONE: (813) 847-8120


Scott L. Knox, Eaq.
J. Ben Harrin, Esq.
Christopher G. Miller, Esq.


Hon. Victoria J. Tschinkel
Secretary Department of Environ-
mental Regulation
Twin Towers Office Building
2600 Blair Stone Road
Tallahassee, Florida 32301


Re: State Water Policy/Property Rights

Dear Secretary Tschinkel:

Pursuant to your request, enclosed is a Memorandum
which I am forwarding to you on behalf of the Board of County
Commissioners of Pasco County. I hope it is of aid to you in
addressing the question of a policy statement on property
rights.

As I indicated to you in a previous letter, Pasco
County unequivocably favors inclusion of a statement in the
State Water Policy relating to the rights of property owners.


If I may be of any
hesitate to contact me.







GAF/eem
Enclosure \ '


further assistance, please do not


September 8, 1981


SEP 14 1981


Office of te Secretary












MEMORANDUM RE PROPOSED

WATER POLICY STATEMENT ON

PROPERTY RIGHTS


PASCO COUNTY, FLORIDA



The Board of County Commissioners of Pasco County,

Florida, respectfully submits to the Secretary of the Depart-

ment of Environmental Regulation that the Rule regarding water

policy must include an unequivocable statement concerning the

rights of the property owner. The, recently adopted Water

Policy addition to the Rules of the Department of Environmental

Regulation sets forth a number of factors which.are to be con-

sidered by the various water management districts in determining

whether a proposed water use is a reasonable-beneficial use. How-

ever, after a thorough review, the Board of County Commissioners

of Pasco County has concluded that Chapter 17-40 totally fails to

address the rights of individual citizens and governmental entities

from whose land or jurisdiction water is being transported. Al-

though the current concern before the Department is the property

rights of the individual owner, Pasco County believes that the

concern, in reality, ought to be threefold. Prior to addressing

the question of the individual owner's property rights, therefore,

Pasco County wishes to just briefly address these two other

"property rights" concerns.










First, although potential harm to other property

owners' lands is to be considered in the consumptive use per-

mitting process, the Rule does not specifically direct the

Districts to require redress if harm does occur. Recent factual

cases have indicated that no matter how thorough. an investiga-

tion and analysis may be, people and their lakes, streams, and

wells are being harmed more than wellfield design predictors in-

dicated. Under such circumstances, the Rule must require an in-

vestigation, evaluation and solution of the citizen's difficulty.

Such research should be performed by the District, and not by

the permitee who may be causing the damage.

Second, Pasco County is concerned about the transportation

of water from one county to another. When such water transporta-

tion does occur, the Rule should address conservation in the re-

ceiving county and self-sufficiency of supply in the supply county.

Pasco County, therefore, believes that in order to address this

question of inter-county transfer, the Rule should be amended to

add the following language: "In deciding whether the District shall

approve a consumptive use permit for water to be transported and

used in another county, the District shall consider the extent to

which: (a) comprehensive water conservation and reuse programs are

implemented and enforced in the area of need; and (b) the supplying

county will be able to maintain a self-sufficient water supply and

guarantee all areas within such county the use, when needed, of

that portion of the local water supply required to satisfy its pro-

jected water demands without absorbing adverse environmental damage".


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With these two salient concerns addressed, Pasco County

now wishes to address the specific concern of the Secretary as

to the rights of the individual property owner. Pasco County

would specifically suggest that the Rule should be further

amended to add the following statement: "In implementing a con-

sumptive use permitting program, the Department and District shall

recognize the rights of the overlying property owners to make a

reasonable-beneficial use of an equitable portion of the underlying

ground water and of the riparian owners to make a reasonable-bene-

ficial use of an equitable portion of the adjacent surface waters".

After reading this suggested addition on property rights,

some quarters will suggest that Pasco County and those of like mind

are simply ignoring the law of 1981. They will suggest that state-

ments on property rights do not belong in a state water policy.

They will suggest that this matter has been resolved by the Tequesta

decision. My only hope is that John Locke and Thomas Jefferson do

not hear such statements.

In order to justify their position, the critics of a state-

ment as has been suggested above, rely heavily on Village of Tequesta

vs. Jupiter Inlet Corporation, 371 So.2d 663 (Fla.1979). There is

no question that this specific Supreme Court decision and law which

existed before such decision expressed the holding that a property

owner in Florida does not own the water beneath his land in the

absolute sense. There is no question further that the property right

of a landowner is to theubeof the water, not to the water itself.

It is absolutely clear that the State of Florida rejected the English


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concept of the owner's right of use being absolute.

However, the Tequesta decision does not hold that pro-

perty rights of the individual landowner need not, nor should

not, be considered in the consumptive use permitting process.

The decision further didinot say that the Department of En-

vironmental Regulation and the Water Management District should

ignore the rights of the individual riparian property owner so

that governmental entities from other jurisdictions might take

the water, nor that DER or the Water Management District should

ignore the future needs of areas of land. which have yet not been

developed. We must all remember that the factual pattern in

the Tequesta case was that the developer was seeking to be- compen-

sated for his loss within the context of an inverse condemnation

proceeding. The Court, within such factual context, and also

within the context of a body of condemnation law that had been long

developing, found that there was no taking. The important question

is what would the Court have said if the developer had submitted

to the Court the question of its right to take water in competition

with the municipality.

The Supreme Court in Tequesta, specifically recognized the

eternal principle of the common law that a property owner has rights

to the reasonable use of water, whether that be surface waters or

ground water. The Court further found that property rights relative

to waters which percolate to the land of one owner to and through

the land of another are correlative. Specifically, the Court, at

page 670, stated:


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"The property rights relative to waters that
naturally percolate to the land of one owner
to and through the land of another are correla-
tive. Reasonableness could only be determined
after the conflict arises between users. The
'reasonableness' of a given use depends upon
many variables such as: the reasonable demands
of other users; the quantity of water available
for use; the consideration' of public policy."'

The Court further went on to state that the judicial system was

ill equipped to deal with this kind of conflict. Consequently,

the Court was happy to note that Florida was now operating under

an administrative system of water management pursuant to the

Florida Water Resources Act. Under such Act, organizations like.

the developer in Tequesta,. eeto apply for a consumptive use per-

mit to the administrative agency, Chapter 373 specifically puts

into the hands of DER and the Water Management Districts the

balancing of competing uses of water. In terms of evaluating and

establishing criteria for this balancing process, the standard

is reasonable-beneficial use.. Nowhere within the Tequesta decision

does the Supreme Court of the State of Florida state that the rights

of the individual property owner should be ignored. As a matter of

fact, it would appear that the ashes which gave rise to the phoenix

which we now know as the Florida Water Resources Act, demand that

the rights of the individual property owner from whose land water

is being withdrawn are to be fully considered.

The basic point is that the word, "reasonable", in the

phrase, "reasonable-beneficial use", is a word that was not born

naked at the time of the adoption of the Florida Water Resources

Act. The word had a history. It had a meaning within the context


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, i r II f I I III




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of the case law as it related to the rights of riparian and

overlying landowners. A property owner had a right to the

reasonable use of both surface and ground waters, whether those

ground waters be in well defined channels, (sic), or of the per-

colating variety.. The authors of the model Water Code and of

Chapter 373 knew of these rights. No. matter what the high priests

of the new religion, which has as its basic tenent, that water

is a state resource may say, the right to use water underneath

one's property is part of the reasonable-beneficial use concept.

The State Water Policy to be found itn DER's Rules need. not

guarantee absolute ownership of water by property owners. But,

it must address those "property rights" as a part of the guidelines

in the consumptive use permitting process. To do otherwise is

simply error. It must first be remembered that Chapter 373 was

developed within the context of a recognition of the rights of

overlying landowners. There is no need here to repeat the histori-

cal discussions found in texts relating to ground waters being

classified as underground streams or as percolating waters. In

light of the presumption that gound waters are percolating along

with current hydrological information, it is obvious that most of

the discussion relating to ground waters relate to percolating

waters. As stated above, the American Courts, including the

State of Florida, rejected the English Common Law with respect to

rights of landowners in percolating waters as such principle of

law was expressed in the case of Acton v. Blundell, 12 M &W 324

(1843). The absolute ownership rule as discussed in this English


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case was rejected by the American Courts in favor of the reason-

able use Rule. This American principle of law was followed by

the Florida Supreme Court in 1956 in a case involving percolating

ground waters. The case known as Koch v.. Wick, 87 So.2d 47 (Fla.)

1956, involved the Board of County Commissioners of Pinellas

County and their sinking of wells on road right-of-way adjacent

to the plaintiff's property. In this particular case, the Florida

Supreme Court rejected the absolute ownership rule of the English

Courts and expressed its version of the reasonable use Rule as

follows:

"The opinions expressed in these cases har-
monize the pronouncementsin Labruzzo v.
Atlantic Dredging Construction Company, 54
So.2d 673, 29 A.L.R. 1346, that the American
Courts have receded from the old Common Law
Rule that an owner had an unrestricted right
to draw percolating water from this land and
to adopt the Rule that the right is bounded by
reasonableness and beneficial use of land." Id.
at page 48.

In Cason v. Florida Power Company, 76 So.535 (Fla.1917), the Court

again addressed this particular question and stated that the same

principle of reasonable use applicable to a surface stream should

be applicable to percolating water. The Supreme Court of Florida

stated:

"The reasonableness of the use of property by
its owner must of necessity be determined from
the facts and circumstances of particular cases
as they arise, by the application of appropriate
provisions or principles of law and the dictates
of mutual or reciprocal justice." Id. at 536.

Due to a concern by experts in the area that the reasonable

use Rule as it was being utilized in Florida and other states led


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to wastefulness and also created difficulties in terms of

transporting water to uses on non-overlying land, the Florida

Water Resources Study Commission recommended, in 1957, to the

Governor and to the Legislature a package which would address

these particular kinds of concerns. This legislative package

included a proposal, which was enacted, which authorized water

diversion in excess of reasonable use beyond riparian or over-

lying land. However, the important point to note is that the

adopted provision that authorized these diversions clearly im-

plied that the uses on overlying land have a priority and that

the right to divert only applies as long as water is available

which is in excess of that needed on riparian or overlying land.

See Section 373.14-1, Florida Statutes (1971).

The salient point to be understood is simply that the

authors of the Model Water Code and later, Chapter 373, knew of

this body of law which existed in the State of Florida. If one

reads the Commentary to A Model Water Code, it is absolutely clear

that the purpose of the reasonable-beneficial use standard was

not to replace the reasonable use Rule. No matter how much some

may argue that the new standard should ignore the rights of riparian

and overlying landowners, it is clear that the new phrase fully

incorporates a restatement of the then existing Common Law test

for reasonable use. Florida has not become a "prior appropriation"

state by virtue of the adoption of the Florida Water Resources Act.

"Reasonable Beneficial Use" is defined by the liodel Water

Code as "the use of water in such a quantity as is necessary for

economic and efficient utilization, for a purpose and in a manner


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which is both reasonable and consistent with the public interest".

According to the Commentary to A Model Water Code, it is stated

that the reasonable-beneficial use Rule is a term of art

and should not be confused with either the western prior appropria-

tion term 'beneficial use' or the riparian term 'reasonable use'.,

It includes a standard of reasonable use, but it also requires

efficient economic use- of water, a characteristic of beneficial use".

Such Commentary is found on page 86 of Section 1.03 of such Code.

Such specific section of the Commentary goes on to say: "In addi-

tion to the rights of other riparians, under the Code a water user

must now consider the rights of the general public. Wasteful use

of water will not be permitted under the reasonable-beneficial use

standard, regardless of whether or not there is sufficient water

to meet the needs of other riparian owners. This provision is

original". (Id. at pages 86, 87. Emphasis Supplied.) The point is

simply that the authors of the Model Water Code were aware of the

rights of other riparians and did not intend that those rights

would be ignored. The emphasis on the rights of the general public

and the public interest does not mean that the rights of the individual

property owner should somehow be shelved without any concern for one

of the most essential rights existing in: the American Democracy..

This emphasis on the rights of riparians and overlying

landowners is also evident in the Commentary to the model Water

Code, for example, at page 168, where the authors are discussing

riparian rights as property. There, it is stated:
"To the extent that a change in the riparian
system destroys equitable distribution, such a


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change may be unconstitutional as an in-
vasion of property rights. However, if
the rules are rationally changed, reflect-
ing changing needs or a more realistic aware-
ness of hydrologic phenomena, such legisla-
tion should be upheld as constitutional. The
property interest each riparian has is not an
interest in the rules. as they existed in the
given time -- an interest which prevents the
change of these rules or the introduction of
any new ones.. The property interest is
rather a right to make use of the water under
a system of reciprocal rights".

At page 170, the authors state:

"The reasonable-beneficial use standard is
intended to protect other water users and the
general public- from wasteful uses of water".

At pages 171 and 172 of the Commentary, the authors state:

"The reasonable-beneficial use standard of the
model Water Code is- an attempt to combine the
best! features.of the reasonable use and beneficial
use- rules. *~ The reasonable-beneficial use
standard also requires that the water (regard-
less of amount) be used 'for a purpose .
which is both reasonable and consistent with the
public interest.r The requirement means that
the. purpose must be reasonable in relation to
other uses. This criterion does not require that
the use be the- most economical use of water
possible, but only that the use not be detri-
mental to other users or totally inconsistent
with the character of the water course from
which the supply is taken. The use must also
be consistent with the public interest".

Again, the words of the authors of the Model Water Code which were

the basis for the Water Management Acts to follow basically make

it absolutely clear that the reasonable-beneficial use phrase, the

public interest phrase, etc., were not an attempt to eradicate the

rights of the riparian or overlying landowner. Their concern was

to address the wastefulness and the inability to transfer excess

water that was caused by the reasonable use standard. This was,


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C.


obviously, accomplished by the enactment of the provisions in

Chapter 373. But, the reasonable use Rule was not erased. It

was fully incorporated within the meaning of these various

statutory phrases.
In summary, therefore, the basic point which I have- been

attempting to make is simply that the reasonable-beneficial use
standard still gives full credence to the reasonable use Rule

as it developed in the State of Florida. The authors of Chapter

373 were aware of this Rule and were fully cognizant of the:
rights of riparian and overlying landowners. In terms of the
discussion of property rights, the Tequesta decision fully leaves
the glancing of competing uses of water to the Department of
SEru'nnnAntal Regulation and to the five Water Management Districts.

Sucovernmental agencies must not ignore the basic right of

proity and the history in which consumptive use permitting

aed within the State of Florida. Based on this rationale

foregoing discussion, Pasco County again submits that the

ter Policy,as found in the Florida Administrative Code,

gnize the rights of riparian and overlying landowners to

le portion of the water adjacent and underneath their


Respectfully submitted,

PASCO COUNTY, FLORIDA


County Attorney
Pasco Government dnter
4025 Moon Lake Road
New Port Richey, FL 33552
Phone: (813) 847-8120


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