Title: Water Policy/Property Rights
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00001791/00001
 Material Information
Title: Water Policy/Property Rights
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Letter Water Policy/Property Rights To: Victoria J. Tschinkel -Secretary Department of Environmental Regulation From: Gerald A. Figurski -Pasco County Attorney July 20, 1981
General Note: Box 9, Folder 6 ( SF- State Water Policy/Property Rights Issue - 1980-1981 ), Item 48
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001791
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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4025 Moon Lake Road
S.......New Port Richey, FL 33552
PHONE: (813) 847.8120

Gerald A. Figurski, Esq.
County Attorney

Scott L. Knox, Esq. July 20, 1981
J. Ben Harrill, Esq.
Christopher G. Miller, Esq.

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

Re: Water Policy/Property Rights

Dear Secretary Tschinkel:

The Board of County Commissioners of Pasco County
respectfully submits that the Rule regarding water policy
must include a statement concerning property rights. This
commitment by the Pasco Commissioners was evidenced at the
July 7th workshop where three Commissioners were present.

As to the nature of a statement on property rights,
rather than being repetitive, I am enclosing a copy of the
Commissioners' proposed policy statement on "Property Rights",
which I handed to you at the July 7th workshop. The Commission-
ers' concern is threefold:

1. The Rule, as currently adopted, does not require
the permitted to provide redress if harm occurs to a citizen's

2. The Rule must recognize the rights of overlying
property owners to make a reasonable-beneficial use of an
equitable portion of the waters; and

3. When water is to be transported from one county to
another, the Rule should address conservation in the receiving
county and self-sufficiency of supply in the supplying county.

Suggested language is included within the enclosed state-
ment. Please know I will continue to review this language and
other suggestions in order that Pasco County might aid you in

Hon. Victoria J. Tschinkel, Sec'y
Dept. of Environmental Regulation
July 20, 1981
Page #2

your deliberations on this issue. In accordance with your
direction, I shall provide you with any revisions and a legal
brief on the issue, as soon as possible.

Thank you for your concern regarding this issue. If
I may be of any assistance, please do not hesitate to contact


Gerald A. Figurski
County Attorney

cc: Honorable Commissioners
Mr. Joe Mandy, Utilities Director

.. . .


Proposed Policy Statement on "Property Rights"

The recently adopted "Water Policy" addition to the

Rules of the Department of Environmental Regulation sets forth.

a number of factors for District consideration in determining

whether a water use is a reasonable -- beneficial use. However,

after a thorough review, the Board of County Commissioners of

Pasco County has concluded thai Chapter 17-40 totally fails to

address the rights of individual citizens and governmental en-

tities from whose land or jurisdiction water is being siphoned.

First, although potential harm to other property owners'

lands is to be considered in the permitting process, the Rule

does not specifically direct the District to require redress if

harm does occur. Recent cases have indicated that no matter how

thoroughly an investigation and analysis may be, people and their

lakes, streams, and wells are being harmed more than wellfield

design predictors indicated. Under such circumstances, the Rule

must require an investigation, evaluation and solution of the

citizen's difficulty. Such research should be performed by the

District, and not by the permitted who may be causing the damage.

Second, the Rule does not address the "property rights"

of the citizen, nor the governmental entity. Pasco County recog-

nizes that the Supreme Court of Florida has held in Tequesta that

the property right of a landowner is to the usufruct of the water,

not to the water itself. However, Pasco County further recognizes

that the Court stated that the Legislature, by adoption of the



Water Resources Act, placed the responsibility for the permitting

and, thus, the allocations of water in the hands of the Districts.

Therefore, although "property rights" may be, to some degree, a

misnomer, it does emphasize that citizens ought to be able to

demand consideration, and the District ought to respond. Other-

wise, the end result can only be that the citizen and the govern-

mental entity may not be able to supply their own needs from

their own lands in order to benefit the continued development

of other areas of the State. Water may be a state resource, but

this should not be an excuse to divert water to one county at the

expense of another.

Therefore, the Rule should be further amended to state as

follows: "In implementing a consumptive 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-beneficial use of an equitable

portion of the adjacent surface waters". Where the water is to

be transported and used in another county, 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

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required to satisfy its projected water demands.without ab-

sorbing adverse environmental damage".

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