Title: Land Owner's Rights (Revision)
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 Material Information
Title: Land Owner's Rights (Revision)
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Memorandum Land Owner's Rights (Revision) March 25, 1981 To: State Water Policy From: LMB
General Note: Box 9, Folder 6 ( SF- State Water Policy/Property Rights Issue - 1980-1981 ), Item 97
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001840
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







MEMORANDUM

March 25, 1981

To: State Water Policy
Fr: LMB
Re: Land Owner's Rights (Revision)




The December 16 draft of the State Water Policy provided that in
determining whether a proposed use of water is a "reasonable-
beneficial" use a Department or District shall consider:

"The amount of land owned or legally controlled by the user."

The January 16 draft changed this provision to provide that in
determining whether a proposed use is a "reasonable-beneficial"
use consideration should be given to:

"Whether the impact of the withdrawal extends to
land not owned or legally controlled by the user."

The later hearing draft provides that in determining whether
a water use is a "reasonable-beneficial" use, consideration should
be given to any evidence presented concerning certain factors,
including:

"Whether the impact of the withdrawal extends to land not
owned or legally controlled by the user."

In the past Florida has almost always had too much water. As
a result, water law in this state has not evolved into adoption
of the correlative rights doctrine. (Under the correlative
rights theory, users are afforded a proportionate share of the
right to water based on the amounts of land owned. This method
thus provides some means of certainty to a land owner facing a
possible water shortage.)

With the enactment of the Water Resources Act in 1972, Florida
began to follow what is referred to as the "reasonable-beneficial"
use standard. The "reasonable-beneficial" concept adds to the
principle of reasonableness, the considerations of economy and
efficiency found in the western system as a guide in applying
the reasonableness standard. But some governmental entity must
apply the standard and make a determination of the proper balance
between competing users.


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MEMORANDUM re State Water Policy
March 25, 1981
Page Two



This balance is struck by the Act on the principle that an
overlying land owner has a qualified right to use the water
under his land for reasonable-beneficial purposes. Under the
Act, withdrawals must not interfere with the existing uses
of others.

If withdrawals for transportation to non-overlying areas results
in damage or injury to the supply of water available to other
users, transportation of water to non-overlying areas may no
longer remain a lwaful purpose since damage to the resource
is not consistent with the public interest.

Before 1979, there were no court decisions as to how much water
overlying land owners might actually take and no real understanding
of ownership and the context of percolating water beneath the
earth's surface. The Florida Supreme Court took the first step
toward meeting the issue in 1979 in what has become to be known
as the Tequesta decision.

The Supreme Court stated, without reservation, that a property
owner does not have ownership rights in the underlying ground
water as long as it is still in the ground. Water wanders and
migrates. When someone takes it, draws the water out of the
ground and takes possession of it, he owns it, but not before.

The court then stated that water is unlike oil, minerals, and
other substances of value. Those things are valuable property
rights which cannot be divested without due process and just -
compensation. Water is not, said the Court. A property owner
has a right to use the water beneath his land, but not to own
that water until he has the water in his possession.

If you stop reading the Tequesta decision at this point, it might
appear that the Court condones unlimited withdrawal of water. But
that is not really what the court said. You have to remember that
Jupiter's claim was that it should be compensated for its loss.
If Jupiter had asserted its right to take water in competition
with Tequesta, the result might have been different. The court
clearly recognized the principle that is now part of the Florida
Water Resources Act that a property owner has rights to the
reasonable use of water. The court said that property rights
relative to waters which percolate through the land of one owner
to and through the land of another are correlative.









MEMORANDUM re State Water Policy
March 25, 1981
Page Three


The balancing of those correlative rights has been left by
the court to the administrative system of water management under
the Water Resources Act. The court found that Tequesta was the
acual user and Jupiter was merely a proposed user. Jupiter had
no protection under the Act for a right it had not exercised.

The Tequesta decision leaves the balancing of competing uses of
water up to the Department of Environmental Regulation and to the
five water management districts. Under the Water Resources Act,
the reasonable-beneficial use standard remains the controlling
criterion for evaluating uses of water. The problem which users
still face is uncertainty. Uses of water change over the years
and each time one property owner applies for a consumptive use
permit to draw water of a certain amount, his neighbor's needs
and his own must be balanced. Additionally, the combined needs
of both must be balanced with the public's interest in conserving
and protecting the water resources. With the amount of rainfall
so variable, it is less than reassuring not knowing how much
water is going to be available from year to year and how much
consumptive use is going to be "reasonable" and "beneficial."

It would be easier if there was a certain, definite amount of
water available for each user. They could each plan and
provide for shortages on their own. But water is not the type
of resource that allows for this. It belongs to all property
owners, and at the same time it belongs to none of them.

SUGGESTED ADDITIONS

It has been suggested that an additional paragraph be added to
the water use section of the policy relating to the water rights
of property owners. An introductory paragraph would be added to
apply to areas where the use of water is regulated pursuant
to Part II (consumptive use permitting) of Chapter 373. The
suggested addition would read:

(5) In implementing a consumptive use permitting program,
the Department and District shall recognize the rights
of the riparian owenrs 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 under-lying ground-
waters.

Under current Florida law, riparian owenrs do not have any greater
right to consume the surface water adjacent to their property


I _


I~LLL~IL~~









MEMORANDUM re State Water Policy
March 25, 1981
Page Four


than is also enjoyed by non-riparian users. The Act does not
accord preferential status to riparian owners. The permitting
standards is the same for riparian and nonriaprian properties.
The impact and manner of use is crucial, the location of the
property is not. Nowhere in Florida law has the term "equitable
portion" been defined or used in connection with allocating
consumptive use permits.

The proposal appears to hold out something that does not exist
in law. For example, it provides that the permitting authority
"shall recognize the rights of the riparian owners" when these
rights are really not special or preferred in Florida law. It
goes on to indicate that riparian owners have the right to make
a consumptive use "of an equitable portion of the surface waters."
This is not contained in the law. Furthermore, introducing the
term "equitable portion" would tend to further confuse the matter.

The proposal suggests that overlying property owners should have
the right to make a consumptive use of "an equitable portion"
of under-lying groundwaters.

The term "equitable portion" has never been applied to allocation
of groundwaters.

"Equitable means fair, just, and right, in consideration of the
facts and circumstances of the individual case.

"Portion" is a part of a whole, whether separated from it or not.
It is an allotment or share.

POSSIBLE ALTERNATIVE

A more suitable approach to setting forth landowners' rights
would be to include a provision which more accurately tracks
the law such as:

(5) In implementing a consumptive use permitting
program, the Department and District shall
recognize the rights of overlying property
owners to make consumptive uses of underlying
groundwaters for reasonable-beneficial purposes
consistent with the Water Resources Act.


LMB/sb


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