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SPASCO COUNTY, FLORIDA
OFFICE OF THE COUNTY ATTORNEY
4025 Moon Lake Road
S.......New Port Richey, FL 33552
PHONE: (813) 847.8120
Gerald A. Figurski, Esq.
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
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
cc: Honorable Commissioners
Mr. Joe Mandy, Utilities Director
.. . .
PASCO COUNTY, FLORIDA
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".