Title: Workshop on Property Rights
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 Material Information
Title: Workshop on Property Rights
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Workshop on Property Rights
General Note: Box 9, Folder 6 ( SF- State Water Policy/Property Rights Issue - 1980-1981 ), Item 54
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001797
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






TWIN TOWERS OPICE
2600 @LAIR STONE ROA
TALLAHASSEE. FLORIO


( STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION

BUILDING
A 32301


^^ong!^'


808 GRAHAM
GOVERNOR
VICTORIA J. TSCHINKEL
sICRATARY


cl1


TO:

RE:


WHOM IT MAY CONCERN

WORKSHOP ON PROPERTY RIGHTS


ATTACHED ARE SUGGESTIONS CONCERNING PROPERTY RIGHTS THAT

WILL BE DISCUSSED AT THE WORKSHOP ON TUESDAY, JULY 7.




AC


Protecting Florida and Your Quality of Lif




_ 1_[_ .- L I,.l ,


May 27, 1981

RE: Proposed Policy Statement on Property Rights


Add paragraphs (5) and (6) to Rule 17-40.04 to read:

17-40.04 Water Use
The following shall apply to those areas where the use
of water is regulated pursuant to Part II of Chapter 373,
Fla. Stat.

(5) In implementing consumptive use permitting programs, the

department and districts shall recognize the rights of property

owners, as limited by law, to withdraw and make consumptive uses

of groundwater from their land for reasonable-beneficial uses.



(6) The department and districts shall continually seek to maintain

a balance between competinus to protect the interests of all

Affected persons in a manner consistent with the public interest.




Comments:

A property owner in Florida does not own the water beneath

his land in the absolute sense, and never did. Instead, the prop-

erty right of the owner is to the usufruct of the water, not to the

water itself. Village of Tequesta v. Jupiter Inlet Corporation,

371'So.2d 663, (Fla. 1979). Even before the adoption of the Florida

Water Resources Act of 1972, the owner's right of use was not

absolute. Florida followed the reasonable use rule adopted by most

eastern states. Koch v. Wick, 87 So.2d 47, (Fla. 1956). The right

of use "was bounded by the perimeters of reasonable and beneficial

use." Village of Tequesta v. Jupiter Inlet Corporation, 371 So.2d

663, 670,(Fla. 1979).





- 2-


This "right of use," held by property owners, was not

abolished by the adoption of the Florida Water Resources Act of

1972 (Ch. 373, Fla. Stat.) but rather was further limited and

qualified by the provisions of Part II of the Act.

Within those water management districts where consumptive

use permitting has been implemented, the owner with an existing

use of water from his land is entitled to secure an initial permit

authorizing the continuation of that use if the use is a reasonable-

beneficial use, as defined in Section 373.019, Fla. Stat., and is

allowable under the common law of the state. Section 373.226(2),

Fla. Stat.

Owners who seek to commence new uses after a consumptive use

permitting program has been implemented must meet different, limiting

requirements. These are set forth in Section 373.223, Fla. Stat.

and require that the applicant must establish that the proposed use

of water:

(a) is a reasonable-beneficial use;

(b) will not interfere with any presently existing

legal use of water; and

(c) is consistent with the public interest.

In the event the existing use or the new use requirements

are not satisfied, the property owner has no right to make con-

sumptive use of underlying groundwater or of surface water.

Owners of overlying property and riparian owners do not have an

absolute right to use any particular quantity of water adjacent to or

beneath their property. Unless the proposed use meets the require-

ments of the administrative system of water management stated in









3i

Sections 373.226 and 373.223, Fla. Stat., an owner is not

authorized to make a consumptive use of any water other than

for domestic consumption by individual users. Section 373.216

and 373.219, Fla. Stat.

For example, the owner of a parcel of land adjacent to the

Gulf of Mexico may not have the right to withdraw and use any of

the water beneath that land if, by withdrawing the water, the water

resources in the area are threatened with imminent damage from

salt water intrusion. That property owner has no absolute right

to any finite portion of water beneath his land. Under Ch. 373,

Fla. Stat., the overriding interest of the public can operate to

preclude any use of the underlying ground waters in appropriate

circumstances.

The balance between competing applications is struck at that

point which best serves the public interest. Section 373.233(1),

Fla. Stat. In the event competing applications are equally

qualified, perference is given to renewal applications over initial

applications. Section 373.233(2), Fla. Stat. This should become

a continuous balancing process because, as situations and climatic

conditions change, the location of the balance point between

competing uses will shift to preserve what is best for the public

interest.


/cer








List of suggested versions of property rights in the use of
water.
Terry Cole

In implementing a consumptive use permitting program, the
Department and District shall recognize the right of an existing

user of water to continue the use subject to the requirements of

Section 373.226, F.S., if the existing use is a Reasonable-
Beneficial Use and would be allowable under the common law.

Permit renewal applications shall be treated in the same manner

as initial permit applications.

Steve Walker

-In implementing a consumptive use permitting program, the

Department and District shall recognize the right of an applicant

to make a reasonable-beneficial use of any water which has not

previously been reserved or allocated to another use in accor-

dance with the provisions of Chapter 373.

Secretary Jacob Varn

In implementing a consumptive use permitting program,
the Department and Distkict shall recognize the rights of the

riparian owners to make a consumptive use of an equitable

portion of the surface waters. Further, the Department and

District shall also recognize the rights of the overlying prop-

erty owners to make a consumptive use of an equitable portion

of the underlying groundwaters.

Buddy Blain

In implementing consumptive use permitting programs,
the Department and Districts shall recognize the rights of

property owners to make consumptive uses of underlying ground

water and of adjacent surface water for reasonable-beneficial

purposes.

In implementing consumptive use permitting programs,

the Department and Districts shall recognize the qualified
right of property owners to use the groundwater under their
land for reasonable-beneficial purposes and shall continually

seek to maintain the proper balance between competing users.




fl~ '


9 7



Buddy Blain (continued)

In implementing a consumptive use permitting program, the

Department and District shall recognize the rights of overlying

property owners to make consumptive uses of underlying ground

waters for reasonable-beneficial purposes consistent with the

Water Resources Act.


Zn implementing a consumptive use permitting program the

Department and Districts shall recognize the rights of property

owners to make a reasonable-beneficial use of both adjacent

surface waters and underlying ground waters.

In implementing consumptive use permitting programs, the

Department and Districts shall recognize the rights of property

owners to make consumptive uses of underlying ground water and

of adjacent surface water for reasonable-beneficial purposes

consistent with the Water Resources Act.



Secretary Varn May 19, 1981

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.













Tom Brown's Proposed Change



In implementing consumptive use permitting programs, the department
and districts shall recognize the rights of property owners and users,
as limited by law, to w4thdPaw-and make consumptive uses of greundwater
from their land for reasonable, beneficial uses in a manner consistent
with the public interest that will not interfere with any presently
existing legal use of water.




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