Title: Property Rights in the Use of Water
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00001801/00001
 Material Information
Title: Property Rights in the Use of Water
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Memorandum of Law To: Victoria J. Tschinkel -Secretary Department of Environmental Regulation From: E. Lee Worsham -Staff Attorney
General Note: Box 9, Folder 6 ( SF- State Water Policy/Property Rights Issue - 1980-1981 ), Item 58
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001801
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

.9 Ut &N4PJU FIV..

"' 'I 0011116wl I








July 2, 1981

Victoria J. Tschinkel, Secretary
Department of Environmental Regulation

A. Ray Beville, Chairman
Governing Board

E. D. Vergara
Executive Director

E. Lee Worsham /y
Staff Attorney C,'

"Property Rights in the Use of Water"

Pursuant to the request of Terry Cole on May 20, 1981 for written
comments and the Memorandum of Law and the letter of Chairman Ray
Beville dated June 18, 1981, the following is a Memorandum of Law
on the so-called "Property Rights in the Use of Water" concept.

The proposal for addition to the water policy Rule 17-40.01, et al.,
F.A.C. is as follows:

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.

Chairman Fernandina Beach

Vice Chairman Orlando Secretary Titusville
Pierson I Jacksonville
Executive Director

Treasurer Cocoa


.,1 K;-^ i i ,1. mn.il n

* *

Memorandum of Law to
Victoria J. Tschinkel, Secretary
Department of Environmental Regulation
July 2, 1981

Page two

(6) The department and districts hall continually seek to main-

tain a balance between competing users to protect the interests

of all affected persons in a manner consistent with the public


The Governing Board of the St. Johns Ri
on June 10, 1981 at the regularly sched
discussion on the property rights propo
posal or any variation of it as being c

This "property rights" proposal, and nu
to it, arise out of concern for the lac
part of the drafters of the Model Water
373 was derived, to more overtly cbnnec
with land ownership. Therefore, the va
pure allocation-ownership theory, attack
Griffiths, Florida Citrus Mutual, dated
"qualified rights" equity approach lang
memorandum attached as Exhibit II, date
randum will explore whether the sotcall
is now or ever has been the law of Flor
alleviating the concerns which have bee

Because of the dynamic nature of water
absolute ownership of water in the trad
the issue, but the concern is with a cc
water into the future which can be defe

In Florida, prior to the enactment of C
landowner to use ground water beneath h
use of that water as long as it did not
another. Village of Tequesta v. Jupite
(Fla. 1979). It was succinctly stated
quoted in Tequesta at 667):

ver Water Management District
aled Board meeting after a
sal voted to oppose this pro-
ontrary to law.

onerous other proposals prior
k of apparent attempt on the
Code, from which Chapter
t the right to use water
rious proposals range from
hed memorandum of J. T.
May 8, 1981, Exhibit I, to
uage of L. M. Blain. See
I June 1, 1981. This memo-
ed "property rights" approach
ida and some proposals for
n raised.

in the hydrologic cycle,
itional sense is really not
ntinuing right to use ground
nded against competitors.

chapter 373, the right of a
is land was the reasonable
injure the property of
r Inlet Corp., 371 So.2d 663
by one court as follows (as

[A] landowner, who, in the course of using his own
land, obstructs, diverts, or removes percolating
water to the injury of his neighbor must
be [making] a reasonable exercise of hisgro- .
priest right, i.e., such an exercise as may
be reasonably necessary for some useful or bene-
ficial purpose, generally relating to the land
in which the waters are found. Finley et ux. v.
Teeter Stone, Inc., 251 Md. 428, 435, 248 A.2d
106, 111-12 (Md.App. 1968).


a #

Memorandum of Law to
Victoria J. Tschinkel, Secretary
Department of Environmental Regulation
July 2, 1981 Page three

The rule as it had evolved in Florida was explicated in the Koch
case. Koch v. Wick, 87 So.2d 47 (Fla. 1956). In Koch, the Supreme
Court of Florida reiterated that it was the rule that the right of
a user to withdraw percolating water was bounded by reasonableness
of the use and beneficial use of the la~d. The Plaintiff, a farmer,
sued to enjoin the County of Pinellas from pumping large amounts of
ground water from the property adjacent to the farmer's property.
The Court in that case failed to prohibit transfers away from the
overlying land for the County of Pinellas water supply for that
reason alone, but limited proof on remand for trial on the issue
of whether the withdrawal was reasonable with respect to the farmer's
nearby land use in view of the Plaintiff's allegation that the with-
drawals would render his land unusable for agriculture.

The rule said to have been adopted by the line of cases ending with
Koch was that the law as to percolatin a ilar to that
of riparian owners on a water body. ort owner at common
law, could withdraw from his property al the ground water he could
use in a reasonable manner to the extent that it did not injure the
adjacent landowners' property or unreasonably interfere with their
legitimate water uses. Paradoxically, 4 new user could come on line
and render all other water users of a given source unreasonable and
required to yield to the new user.

Under the common law, it was therefore concluded by the Florida
Supreme Court in Tequesta that the right to use water did not carry
with it ownership of the water lying under the land. Tequesta at
668. Plaintiff Jupiter which desired to use the surficial water
table aquifer which was then being utilized by the City of Tequesta
was held to not have a constitutionally protected property right in
the shallow water table water beneath its property to entitle it to
compensation from the City for a taking.

Chapter 373, enacted in 1972, was intended to combine the best quali-
ties of the western prior appropriatio law and the eastern riparian
law and provide for administration of water allocation by an adminis-
trative body, either DER or the water management districts. For an
excellent analysis of the fac make up the reasonable-
beneficial test, see Maloney,( Capehart &hd Hoofman, Florida's
"Reasonable Beneficial" Water Sn A rd: Have East and West Met?
31 Pla.L.Rev. 253 (1979). However, such an historic analysis is
beyond the scope of this memorandum, although pertinent parts of
the reasonable-beneficial test are relevant.

The 1972 Act, hereinafter Chapter 373, provides that holders of
common law water rights are "grandfathered" as long as their use
is reasonable-beneficial and they apply within two years of


Memorandum of Law to
Victoria J. Tschinkel, Secretary
Department of Environmental Regulation
July 2, 1981 Page four

implementation of the consumptive use permitting program, other-
wise their water use is deemed abandoned and they must apply for
water use as a new or proposed user. $373.226, F.S. Consistent
with the intent of comprehensive water regulation- Chapter 373
makes no provision for the continuation of an unexercised common
law right to use water. Tequesta at 671. All water uses are in-
tended to ultimately be under permit except domestic uses. The
import of Chapter 373 is clearly that a prospective water user
must apply for and receive a Chapter 373 water use permit in order
to legally withdraw or divert water to his use, regardless of
whether the water use predated enactment of Chapter 373.

In a recent article, Dean Maloney, author of the Model Water Code,
stated that following enactment of Chapter 373, water use in Florida
no longer requires ownership of riparian land and that there is no
statutory requirement that land ownership or dominion over land be
a factor in the permit pr cess. It may be made a consideration,
however, but Dean Maloney suggested that permit programs should not
be based solely on ownership or control of land unless it satisfies
a factor of the reasonable-beneficial test such as social value
(public interest) or economic value. Maloney, supra at 281.

Briefly, the factors which make up the statutory reasonable-beneficial
test are as follows:

1. Purpose of use;
2. Economic value of use;
3. Social value of use (public interest);
(includes suitab lity of use to watercourse);
4. Harm caused and ability to avoid harm; and
5. Protection of ex sting values.

Without providing a detailed evaluation of the above factors which
would necessitate further anal sis of case law, it would r
that, as a mhc icy, oar cou adopt
a rule preferring uses on overlying and over other uses. This would
be consistent with historic development of the common law, and pre-
servation of good agricultural land would be a purpose consistent
with the public interest. It s also likely that well spacing from
a hydrologic and economic perspective would tend to favor uses on
overlying land due to well int reference and with the setting by the
Governing Board of regulatory ground water levels. Since with all
other factors being equal, renewal applications get preference in
the statute, thus providing existing uses a further preference.
As technology develops and the need for more efficient agricultural
and industrial water uses to save energy arise, water formerly used
will be available for allocation, thus allowing for further economic

Memorandum of Law to
Victoria J. Tschinkel, Secretary
Department of Environmental Regulation
July 2, 1981 Page five

In conclusion, historically, in Florida, water rights have never
been a species of property but have been a reciprocal right sub-
S ject to "divestment" by the reasonable use of another riparian or
ground water user. Chapter 373 continues the right mainly unfet-
tered and allows the certainty to encourage investment in private
or public water efficient Works, protection of the environment
along with a shifting of water uses as society dictates but with
a great deal of protection to those requiring water for continuing
economic activities.


--__-___d-_ L


ISSUE: Is it possible through economic penalties or incentives
to establish a system by which all legal entities within
Florida might share in available water in such an
equitable manner that there would not be economic loss
to the individual in the event of water shortages and
no opportunity to put strains on the system by the over
use of water by individual entities under any circum-

FACTS: 1. The water available for use by entities in Florida
is a combination of the annual rainfall and the
volume of water in the Floridan or other major

2. The rise or fall of the potentiometric surface of
the underlying deep aquifer is a function of water
withdrawal from that aquifer and recharge caused
by rainfall.

3. The amount of recharge capability has been re-
duced over the past 100 years by manmade drainage
of many natural water storage areas. This has to
some extent been compensated for by the manmade
creation of reservoirs to further increase, the
time that water is stored and thus allow increased
percolation into their aquifer.

4. Probably the net effect of drainage and manmade
resevoirs represents a net reduction capability
in recharging the Floridan Aquifer and a net in-
crease in recharging the Biscayne Aquifer.

5. There is no inalienable right, moral or legal, for
any individual entity to have a given volume of
water per day.

6. It is generally considered that an individual
should have sufficient water to drink and probably
enough additional with which to keep clean.

7. Some enterprises of which agriculture is an excel-
lent example require certain quantities of water
at certain times of the year if profits from the
enterprise are to be maximized.

8. Operations such as a citrus processing plant or a
vegetable processing plant must have sufficient
water at the time when the agricultural commodity
is mature to process the crop or an economic loss
will ensue.


9. Probably most industrial users and individuals re-
quire a relatively cons tnt amount of water per
day, per week or per monlh with very little sea-
sonable adjustment requi ed.

10. The use of water for maintaining green lawns,
green parks, green golf courses, clean cars, run-
ning fountains, and probably numerous other acti-
vities provide personal satisfaction to the in-
dividual or to the users of those facilities, but
these uses are non-essential if a critical water
supply shortage exists.

11. All of the land in Florida has a certain innate
capability to permit te percolation of rainwater
into the Floridan or s me other aquifer. The
ratio between water percolated to the aquifer and
surface runoff are affected by the soil structure;
the. nature of the undelying hardpan or clay layers;
the depth to such confining layers, and the natural
or manmade drainage or water storage which has oc-
curred and which directly affects a specific parcel
of land.

12. Under present conditions there is probably suffi-
cient recharge capacity over any ten year period
that recharge to the aquifer and withdrawal from
the aquifer are roughly equal, except for some
individual local areas where water has actually
been mined. Most areas represent no significant
long-term change in the potentiometric surface
over the past 50 years of recordings.

13. Surface water retention has been dramatically
changed in many local areas as the result of
water management. Some changes have been designed
and intended to take place and others have oc-
curred inadvertently, Most of the changes insofar
as lake levels are concerned has been deleterious
and unplanned. Most of the change in terms of re-
duced standing water, drier soil, etc., has been
the result of planned drainage and increased run-
off in individual local areas.


Water management should include the following goals and
probably the priorities are'about in the order listed:

1. Maintenance of the quantity and quality of the
water currently in the deep aquifer.

2. The provision for reasonable beneficial use of
water by all entities within the state. Water
should be available at the time, both daily and
seasonal when it is required.

0 -3-

3. A procedure for the equitable reduction for the short-
term of use for non-essential purposes.

4. A procedure to equitably allocate water in the event
of continuing .ong-term water shortages so as to
minimize the economic impact upon individual or
corporate activities.

Procedures for implementing restricted use, as well as
average or maximum use, should wherever..possible be designed so
that regulation requires the user to pay for the cost of the
water which he requires. This may involve a much higher charge
for water during shortage periods than in periods of plenty.
the -initial-alocation -of -watervto1Mant' -individual or -to :-busi-
ness .enterprise -shoauldbear a -direct.relationship to "the-ex+
tant- tatt bthe- ..amd nvlved"cont ibutes to' the total -recharge
capacity ,or-to-'the.--total 'ra ssevoir;. storage cpacity-from. which
taterzwil t-aiumate*3aalve-oobe -withdrawn. The following
examples might serve to illustrate the suggested capabilities:

1. An acre of citrus sand land on the ridge in Polk
County which is planted to fully mature citrus
probably requires something in the neighborhood
of 40 inches of water for maximum citrus produc-
tion properly distributed throughout the year.
Under average rainfall conditions of 50 inches
or more than land contributes the difference be-
tween the evaportransporation and the rainfall
almost completely to the Floridan Aquifer.

2. A paved parking lot one acre in size at River
Ranch Acres in Polk County probably contributes
the same 50 inches of annual rainfall as direct
runoff into the Kissimmee River and thence into
Lake Okeechobee. It would thus contribute
nothing to the Floridan Aquifer and its right to
water would, if carried to an extreme, require
that it get its water from Lake Okeechobee or
the Kissimmee River rather than from a shallow
or deep well.

3. An acre of pasture land adjacent to River Ranch
Acres contributes water to both the deep aquifer
and to the runoff reaching the Kissimmee River
with the ratio depending upon the extent of
drainage canals and the rapidity of the rainfall.

4. An individual Aomeowner on a 50 or 100 foot lot
contributes some water to the deep aquifer and
maybe most or all of the rainfall if the home is
located on deep sand without a close confining
layer of clay or hardpan. The larger the house
in proportion to the size of the lot the greater
the tendency to reduce recharge and increase
contribution to runoff. The closer to the ocean
the greater t e contribution to runoff which


cannot be stored for f ture use.

The water storage problems which are continuing to occur
in dry springs on a more frequent kasis than in the past are the
direct result of the. increase in the population in the State of
Florida; the increase in industrial capability, and the increase
in the water utilized by agriculture. Of these three far and
away the greatest increase in use and reduction in the capability
of the natural soil and water resources of the state to be re-
charged and maintained is the result of increased population in
the state. That problem further exacerbates the water problem
because the population has tended to cluster along the coastal
areas. Many such areas maintain a continuing, negative impact
upon the water resources of the state.

If one starts with the basic water crop concept, one
has a basic and objectively definable criterion for the per-
mitting of water withdrawal and for the restriction of water
usage during times of shortage. !If this criterion were con-
sidered to be a property right which pertains to the land,
then a device is created by which water transfer from one
parcel of land to another, from one basin to another, or from
one county to another might be possible with a bargaining
procedure which permits the individual entity that contributes
insufficient resources to the total recharge capacity to arrive
at a price to pay for the water which he, or he and his neigh-
boring entities, collectively require.

This cost might well be nct only the cost of pumping
and transporting the water, but a fee to the individual en-
tities which furnished that water for those needs. Thus, if
1,000 acres of sand land produced a 10,000 acre inch contri-
bution to the Floridan Aquifer, but had an annual requirement
of only 5,000 acre inches, it would have an ability to sell
an interest in the Floridan Aquifer based on its water rights
to a shortage area along the west 'coast of Florida, and by
so doing would forever negate its right to more than 5 acre
inches per acre per year, but wold give the west coast entity
the right to that 5 inches in perpetuity, or for at least the
length of the contract.

Such a system might require that within a municipality
each individual home or apartment might be allocated an
amount of water through the municipal system that is sufficient
for drinking, washing, cooking, etc., and this volume of water
would be charged at a standard minimal rate. If an individual
user desires more water than that which is contributed by the
land upon which the home or the apartment is located, an extr
charge would be made. This would result in higher costs per
gallon of water used in a condominium as compared with a home
with a 100 x 100 foot lot. It would be higher for a shopping
center than for the individual homeowner.


If, for example, a citrus processing plant owned insuf-
ficient land to permit it to pump from the ground sufficient
water to process the volume of fruit which it runs on an annual
basis, it might have to call upon the growers who delivered
fruit to that plant to transfer a portion of their water rights
from their lands to that plant to assure that it had adequate
water to process that individual grower's fruit.

Such a system would permit those who contribute little
to have whatever volume of water they need and want provided
they are willing to pay for it. It would permit those who
contribute to the water resource to utilize at minimal expense
that water which they actually contribute.

Suchda-slyten.-.houd-providt.that,- 'ihe individual-.who 4
iequires,.water- at..a. speak iitie~oof-'ihe year -once permitted?,
*haulata ah e.a right-ato *;hat --ater-at.he -ttnme -specified- even
though;it -is-a dry -period a Uaouldaot be-curtailedexcept .for
uarymextremesrand-urgent conditions. This should be specified
as a part of the permitting process. Qn. the-other hand, the
homeowner, the golf course operator, the individual- business
orj- i nusalt al-enterprisewould -be -required to curtail -water
us ..inxsods. .of. moderate shortages so long as--the reduction
iknwater-did not affect the annual income e .of that-entity,.
Thus, some industrial plants can curtail water usage in one
month, but with adequate water in succeeding months can make
up its lost production with no overall loss to the enterprise.
Others cannot do this and the-ability.:to recover-.-the.-lost
time-dshould be -a -factor-in .the -amount of curtailment required.

Green lawns have a higher esthetic value to some indi-
viduals and very little value to others. If a provision
exists so that the individual homeowner can maintain a green
lawn if he is willing to pay for it, then he makes the
decision how much he curtails water use based on his willing-
ness to pay.

While most of the examples cited above pertain to the
Southwest Florida Water Management District, a similar set of
criteria could be evolved and worked out county-by-county
throughout the state. Certain initial assumptions and criteria
would have to be arbitrarily set as the result of negotiations
through various special interest groups, but it should be pos-
isible to arrive at criteria for location contribution to water
storage. If.-a; system is-to-guarantlee every individual entity
the-opportunity-to use water when he needs it, and whenever-
possiblesi -.the. water, which-he wants and is willing to pay .for;
an- equitable-mechanism to restrict water use and minimize
economic '-Ioss: :during -periods of -moderate -water -shortages, as
well' -ss-an'-equi -ableS mechanisms 'for -the -restriction of water


~' ?

*;C -6- r

'~aao -.am4.rcadi-tians--whe re-t-h-total& source in-the state is 51
actually. being ediminished:ron-&-...continuing basis- can bel' develope4
based on contribution r:to water. storage, -Zull-:knowledge of wateI4
- requirementsj .-isnd-tvoluntary sale. cr learne'of L-ater rights.
SudrFusEacedinuwimi& "brden-41pon -the propose
---such -thart-m'tinatelyA"2 ill- limit,
ulatio-rand-inrusi L&I. dve lopment -In -us-imm -areasw and antaiwn
gi-ic ultuwal- I aird-i n- 'others.



June 1, 1981



RE: State water policy--proposed statement on property rights

On March 19, 1981, (8 days before the hearing on water policy) a
proposal, purportedly from "agriculture" was distributed for
discussion purposes during a meeting at DER. This meeting had
been going on all day and the statement was distributed in mid-
afternoon. It read:

In implementing a consumptive use permitting program,
the department and District 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 property owners to make a consumptive
use of an equitable portion of the underlying ground-

In the discussion that followed, it was pointed out that the proposed
language, while generally consistent with practices of SWFWMD, may
need some revisions because of the specific language.

Steve Walker from SFWMD stated that his District would have problems
with the proposed language.

This subject was researched hurriedly during the next few days and
discussions were held by telephone by various attorneys.

During the hearing on March 27, 1981, the following proposal was
distributed and considered:

In implementing consumptive use permitting programs,
the department and Districts shall recognize the rights
of property owners to make consumptive uses of under-
lying groundwater and of adjacent surface water for
reasonable beneficial purposes.

Secretary Tschinkel specifically asked the attorney for DER and the
attorneys for each of the.water management districts if they concurred
in the proposed wording.

Buddy Blain, representing SWFWMD, advised Ms. Tschinkel that it had
been researched hurriedly and that he felt that the statement was
consistent with existing Florida law and was compatible with practices

Steve Walker, representing SFWMD, stated that South Florida would be
opposed to the statement.

L ._,-L, ......i 1 .,

June 1, 1981
Page Two

Lee Worsham, representing SJRWMD, stated that they had some
problems with the statement and needed more time to study it.

Doug Stowell, representing NWFWMD, stated that he wanted more
time to research it and to check with his board.

Tom Brown, representing SRWMD, stated that he needed more time
to research it.

terry Cole, DER's general counsel, stated that he had some
problems with it and wanted more time for research.

Representatives from the various agricultural interests were
present and said they were willing to have the matter taken
under advisement for subsequent study.

On May 6, 1981, the Governing Board of SWFWMD went on record as
favoring the addition of a statement in the proposed state water
policy relating to the rights of property owners.

On May 11, 1981, Buddy Blain wrote the attorneys for DER and the
water management districts advising them of the board action,
telling them that he had abandoned any effort to come up with a
statement that would meet universal acceptance relating to property
owners' riparian rights to surface water and urging them to review
the following statement relating to rights of property owners to
use groundwater:

In implementing consumptive use permitting programs,
the department and Districts shall recognize the
qualified right of property owners to use the ground-
water under their land for reasonable-beneficial
purposes and shall continually seek to maintain the
proper balance between competing users.

In the meantime, Terry Cole, attorney for DER, has submitted
proposed language which states:

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, Florida
Statutes, 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, attorney for SFWMD, has submitted proposed wording
which reads:


I i .; *i-i- 1 J1

June 1, 1981
Page Three

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 accordance with the pro-
visions of Chapter 373.

Secretary Jacob Varn has also submitted proposed wording which

In implementing a consumptive use permitting program,
the Department and District 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 property owners to make a consumptive
use of an equitable portion of the underlying ground-

Subsequently, Mr. Varn has suggested the following language:

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
groundwater and of the riparian owners to make a reasonable-
beneficial use of an equitable portion of the adjacent
surface water.

Jim Griffiths of Florida Citrus Mutual has distributed the following
proposed language:

In implementing a consumptive use permitting program,
the Department and Districts shall recognize the qualified
rights of property owners to use the groundwater under their
land for reasonable-beneficial purposes, and shall continually
seek maintenance of a proper balance between competing users.

The next hearing on State Water Policy is scheduled for Monday,
June 8, 1981, in Tallahassee at which time the statement on property
rights may be discussed-but no final action is contemplated on this
subject at that time.

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