June 15, 1981 C
TO: L. M. BLAIN, Esquire, General Counsel
FROM: J. EDWARD CURREN, Attorney, Legal Department A
RE: Proposed Policy Statements on Property Rights
Until this weekend when I compiled a file of documents relat-
ing solely to the issue of a State Water Policy statement on
property rights, I had not been fully aware that you are the
originator of language which in its present form is contained
in the following statement which purports to relate to
"The department and districts shall continually
seek to maintain a balance between competing users to
protect the interests of all affected persons in a
manner consistent with public interest."
As indicated in your June 1, 1981 memorandum with reference
to State Water Policy --Proposed statement on property rights,
you originally suggested 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 quali-
fied 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."
On May 11, 1981, you furnished the above statement to
attorneys for DER and the Water Management Districts. You
also furnished the statement to me and asked me to tell you
whether or not I feel it is consistent with existing Florida
Law. Not knowing the author, I thought the statement came
from "left field" and that it would "never fly", and with
the mid-month Board meeting on Water Shortage coming up and
other major issues pending was not able to formally respond
I still was not aware that you were the author on June 3, 1981
when I reviewed the J. T. Griffiths, Florida Citrus Mutual,
June 15, 1981 (
L. M. Blain
May 28, 1981, letter to Mr. Tatum proposing the same statement
almost verbatum. I immediately wrote you a memorandum to
alert you to the letter and to advise you that in my opinion
the last part of the statement beginning with "and" should be
stricken as being inconsistent with Florida Law. A copy of
that memo of June 3rd is attached to this for reference.
At the time I wrote the June 3rd memo, I believed that perhaps
J. T. Griffiths had been the author all along. You can
appreciate my dismay upon realizing that he was not.
In attempting to rationalize our inconsistent positions, I
analyzed the document (attached to Marcia K. Penman's June 9,
1981 memorandum to Mr. Tatum regarding the June 8 State Water
Policy Public Hearing) dated May 27, 1981 and titled Re:
Proposed Policy Statement on Property Rights. Authorship is
not stated so I will not presume.
The format of the May 27 document makes it appear that
paragraphs (5) and (6) contain the language presently under
consideration by DER. Comments are offered without any
indication as to whether they are offered for or against the
proposals or whether they are directed to one or both of the
sections. A copy of such document is attached to this memo
The comments contain eight paragraphs. The first seven
paragraphs generally comment as to why proposed policy
paragraph (5) contains the language "as limited by law."
The final paragraph seems to address proposed policy para-
graph (6). However, all of the comments including the final
paragraph, address use and not uses. Also, the final para-
graph addresses both competition between applicants and
While to the casual eye it would not appear that the comments
are not supportive of proposed policy paragraph (6), in point
of fact the final sentence of the comments clearly identifies
that proposed policy paragraph (6) is inconsistent with law.
The balance to be struck is a balance which preserves and
protects natural uses with artificial (consumptive) uses.
However, the language in the proposed policy statement (6)
suggests some sort of continuous balancing act by the WMD
and presumes some sort of equitable allocation when a compet-
ing user situation develops. The law in fact does not preserve
a balance between competing users. When two legal users are
competing for a supply inadequate for both, or for some other
reason there is a conflict, the Governing Board has the right
- '^-* L.- >
June 15, 1981 r
L. M. Blain
to approve or modify the use which best serves the public
interest. When both competing uses equally serve the public
interest, preference goes to the existing use. Section 373.233,
If I were to suggest to the author some revision to clarify,
I would suggest that the first sentence be reworded to say:
"As between competing applications, preference is given to
that use which best serves the public interest". Also, the
last sentence should be a separate paragraph with an intro-
ductory sentence which reads: "A balance must continually
be maintained between natural uses, and consumptive uses by
man, to protect the water resources in the public interest".
Then the next sentence is in context, as it relates to the
balance between competing uses, not users.
If the proposed language continues to appear in any form, I
would suggest that the word "users" be changed to "uses".
I would suggest further clarification by inserting a paren-
thetical after "uses"t (natural and artificial) or non-
consumptive and consumptive).
The policy statement then would be consistent with General
Water Policy section statements (1) and (2). Such statement
could then be supportable as consistent with law.
cc: W. C. Tatum
J. T. Ahern
G. W. Kuhl
M. K. Penman
Il 1 i .
June 3, 1981
TO: L. M. BLAIN, Esquire, General Counsel
FROM: J; EDWARD CURREN, Attorney, Legal Department C; 4
RE: J. T. Griffiths, Florida Citrus Mutual
I have just seen J. T. Griffiths' letter of May 28, 1981 and his
proposed language for the State water policy.
The final portion of the language, after the last comma, would
create problems if construed as Dr. Griffiths does. He refers
not only to this "qualified" right to use water already exer-
cised and converted to permitted use, but he goes on to contend
that the "property owner" has a prior right for water either as
a result of his use, or as a result of his potential use.
This proposed language would serve to create conflict between a
permitted use and a new use seeking to exercise a "prior right
This is not only inconsistent with the Tequesta case, but it is
contra to Section 373.233, F.S., that preference be given to a
renewal over an initial use where competing applicants are equal-
ly qualified and there is inadequate water available for both.
I would like to.be supportive of Dr. Griffiths but find that in
this case it would not serve the best interest of water manage-
ment districts or affected water users. Therefore, I have no
problem with the first part of the language:
"In implementing a consumptive use permitting program, the
Department and Districts shall recognize the qualified rights
of property owners to use the ground water under their land for
However, the following proposed phrase should be stricken as
being inconsistent with Florida Law.
"and shall continually seek maintenance of a proper balance
between competing users."
By this memo, your memo of May 11, 1981 is addressed.
cc: J. T. Ahern