Title: Proposed Policy Statement on Property Rights
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Permanent Link: http://ufdc.ufl.edu/WL00001804/00001
 Material Information
Title: Proposed Policy Statement on Property Rights
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Proposed Policy Statement on Property Rights May 27, 1981
General Note: Box 9, Folder 6 ( SF- State Water Policy/Property Rights Issue - 1980-1981 ), Item 61
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001804
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




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) En-mplementng-eon9m.tive-ese-pe.ittng-pogeams-he
department-and-distriets-sha.i-reeognice-the-rights-et-preperty
ownersg-as-1bmited-by-haw7--wo.thdgaw-and-make-eeneuptve-uses
e-graeundwater-grem-Cheir-and-ogr-reaaensabe-eneTeea3-usegT

(5) In implementing a consumptive use permitting. ~Qgam, the
department and districts shall recognize the mvitr-~0 of
property owners to use the groundwateri un0dei l 1-t*;f f.r,.2 a-t-
sonable-beneficial purposes, and shall ini l imainile
Sof a proper balance between competing-isers. _


i 6 --' he-aetpeP en ne~eaeT-da--"ee -ahe &" '
tan- etbeianee-Qcw'eeA-eempehg e.s to p -
ale-affeeted-persens-en-a-manner-e.ons.tent; interest


Comments:
A property owner in Florida may-does not own the water beneath
Shis land in the absolute sense aend-never-dkd. Instead, the owner
has a the property right oe-the-ewne-eis toL the usufruct of. the
water, net-eo-the-water-itselfv Village of Tequesta v. Jupiter
Inlet Corporation, 371 So.2d 663, (Fla. 1979). Hven-befeoe The
adoption of the Florida Water Resources Act of 1972, did not further
clarify the owner's rights of use. was-net-abseoute. Florida fol-
lowed 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).
This "right of use," held by property owners, was not
abolished by the adoption of the Florida Water Resources Act of





-2 6
1972 (Ch. 373, Fla. Stat.) but rather was futher-~mited-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-extsetng-uee-or-ehe-new-use-requ&remenes-
are-neo-satsf~ied7-the-preperty-ownea-has-ne-rght-te-mBke-een
stmputve-ase-ef-undersying-groandwater-er-of-surace-water
In the absence of a consumptive use permitting system
owners of overlying property and riparian owners do neo have an
abseaiute. a qualified right to use any-partiaeu ar-qantity e.-
water adjacent to or beneath their property. After adoption of
a consumptive use permitting program, unless the proposed use
meets the requirements of the administrative system of water
management stated in Sections 373.226 and 373.223, Fla. Stat.,
an owner's right is qualified is-net-aetherized to make a con-
sumptive use of any water unless a consumptive use permit has
been issued for other than for domestic consumption by indi-
vidual users. Section 373.216 and 373.219, Fla. Stat.
After implementation of a consumptive use permitting pro-
gram by a district, Per-exampie7 the owner of a parcel of land
adjacent to the Gulf of Mexico may not have the right to with-
draw and use any of the water beneath that land if, by with-
drawing the water, the water resources in the area are threatened
with imminent damage from salt water intrusion. That property
owner's has-ne-absolue right is qualified and his use te-any-





-3-
finite-pertion of water beneath his land is limited. Under Ch. 373,
Fla. Stat., the overriding interest of the public may ean operate to
qualify the preeclde-any use of the underlying groundwaters in
appropriate circumstances.
The-balanee-between-eempeting-appeatens- s-struek-at-that
pont-wChaptieh-besr 37-se3.226 ves-rovhe-pbides-that "the oves-Sein board of the
Fiea-Statr--3En-the-event-eompeting-app3ecatons-are-equalfy-qualified7
preerene-t shall issuven--reneiniti-appermit for the continuation of
6eetin-33SrB33-fS7-FPa~-6tatr--haks-shetid-beeeme-a-eentinuoea
baiancing-process-beeeatse7-as-situataoRS-and-e3imat3e-eonditions
change7-the-aeatiaon-of-the-ba3anee-peant-becwsen-cmpeteing-tse9
will-shift-t-preserve-what-is-best-for-fhe-pubare-anterestT
Chapter 373.226 provides that "the governing board of the
department shall issue an initial permit for the continuation of
all uses in existence before the effective data of implementation
of this part. If the existing use is a reasonable-beneficial
use as defined in s. 373.019 (5) and is allowable under the common
law of this state." Thus an owner with a reasonable-beneficial
consumptive use must be given a consumptive use permit. Once
:permitted, a renewal application shall be given preference over
an initial application. Section 373.233 (2), Fla. Stat.
Thus, the right to use prior to a_permitting system is very
little, if any, qualified by Chapter 373. That right which
basically must belong to the property owner or the user of that
specific piece of property appears to be guaranteed and continued
under Section 373.226 (2).


I ,l l




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