Title: Proposed Policy Statement on Property Rights
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00001818/00001
 Material Information
Title: Proposed Policy Statement on Property Rights
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Letter 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 75
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001818
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

Ii *

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 thoQ; areas where the use
of water is regulated pursuant tq 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 competing users to protect the interests of all

affected persons in a manner consistent with the public interest.


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

lpgal 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


ri~c` 3

3 -

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 / tS

circumstances. 0l<

The balance between competing applications is ruck 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



fe______/____________________ _________________ -




TOs Mr. Buddy Blain
Southwest Florida WMD

Mr. Tom Brown
Suwannee River WMD

Mr. Doug Stowell
Northwest Florida WMD

Mr. Lee Worsham
St. Johns WHD

Mr. Steve Walker
South Florida WMD

FROM: Terry Cole1~-
General Counsel

DATE: May 20, 1981

RE: Property Rights in the Use of Water

Last week Buddy Blain sent to each of you another draft of a
proposed section dealing with property rights in the use of water.

Attached for your consideration and comment is a slightly
modified draft under my name of another proposed statement which
is derived from the version drafted in my office just before the
last workshop on water policy.

Secretary Varn has submitted another proposal which is
attached separately.

I would appreciate your written comments regarding the three
recent proposed drafts and, if possible, a memorandum on the legal
basis for your comments. Any alternative language you might
suggest would be welcomed. I have attached for your information
a compilation of all known drafts of a property rights section for
the water policy.

Protcring Florida and Your Qualiy of IfA

S i Jli b i


Please try to have your comments back to me by June 3 if
at all possible. All of the help you have given in the drafting
and adoption of the water policy is appreciated.



Vicki Tschinkel
Ken Woodburn
Dave Pingree
John Wehle

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