Title: Proposed Water Policy Statement: Property Rights in the Use of Water
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 Material Information
Title: Proposed Water Policy Statement: Property Rights in the Use of Water
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Proposed Water Policy Statement: Property Rights in the Use of Water May 26, 1981
General Note: Box 9, Folder 6 ( SF- State Water Policy/Property Rights Issue - 1980-1981 ), Item 80
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001823
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 26, 1981


RE: Proposed Policy Statement:

Property Rights in the Use of Water














A property owner does not own the water beneath his land in

the absolute sense. Instead, the property right of the owner is

to the usufruct of the water and not to the water itself. Village

of Tequesta v. Jupiter Inlet Corporation, 371 So.2d 663, (Fla. 1979).

In Florida before the adoption of the Florida Water Resources Act

of 1972, the owner's right of use was not absolute. Instead, Florida

followed the reasonable use rule adopted by most eastern states. The

right of use was bounded by reasonableness and beneficial use of the

land. Koch v. Wick, 87 So.2d 47, (Fla. 1956) and Village of Tequesta

v. Jupiter Inlet Corporation, 371 So.2d 663, (Fla. 1979).

This "right of use" owned by property owners was not abolished

by the adoption of the Florida Water Resources Act of 1972. (Ch. 373,

Fla. Stat.) However, the "right of use" was further limited and

qualified by the provisions of Part II of that Act, within those

water management districts where consumptive use permitting has




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been implemented. Under the Act, the owner who is presently

using water from his land is entitled to secure an initial permit

authorizing the continuation of that use (when permitting is

implemented) 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 consumptive uses must meet the different require-

ments in Section 373.223, Fla. Stat. In the event the existing

use or new use requirements are not satisfied the property owner

has no right to make consumptive use of underlying or surface

waters.

It has been suggested that each riparian owner has a right to

an equitable portion of adjacent surface waters. It has also been

suggested that the owner of overlying property has a right to an

equitable portion of the underlying ground water. This is mis-

leading because under present law, the owners of overlying property

or riparian owners do not have an absolute right to any particular

quantity of water adjacent to or beneath their property. Unless

the proposed use meets the requirements of law (Section 373.226 or

373.223, Fla. Stat.), an owner is not authorized to make a con-

sumptive use of any portion of the water.* (See 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. The suggestion that this property owner has an

absolute right to some finite portion of the water beneath his land






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is not supported by law. 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.












* Domestic consumption of water by individual users is exempted
from the consumptive use permit requirements of the Act.
Section 373.219(1), Fla. Stat.


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