Title: Response to Legal Issues Raised by Letter of March 20, 1981
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00001842/00001
 Material Information
Title: Response to Legal Issues Raised by Letter of March 20, 1981
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Memorandum Response to Legal Issues Raised by Letter of March 20, 1981 March 24, 1981 To: L.M. Blain, General Counsel From: J. Edward Curren, Attorney, Legal Department
General Note: Box 9, Folder 6 ( SF- State Water Policy/Property Rights Issue - 1980-1981 ), Item 99
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001842
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

March 24, 1981


TO: L. M. BLAIN, General Counsel

FROM: J. EDWARD CURREN, Attorney, Legal Department S-

RE: Response to legal issues raised by letter of
March 20, 1981

This will confirm my oral response to your letter of March 20,
regarding the two State Water Policy statement proposals. We
did not receive it until the 23rd and you needed immediate

My comment was that each statement is inconsistent not only with
current Florida Law but also with the common law of the State
and would be onerous to the State Water Policy.

My quick research provides the following:

(1) Regarding the concept of proportionate share or "equita-
ble portion", the comment appearing on page 12 of the Water
Resource Research Center's Florida Water Law 1980 seems on point:

"Moreover, neither the priority of use nor the extent
of riparian frontage or riparian land are generally
considered in determining reasonableness. Although
riparian rights are regarded as equal or correlative,
each riparian user is not necessarily entitled to a
proportionate share of the available water."

(2) Regarding a riparian right to the consumptive use of
the water, the law recognizes only the riparian right to the use
of water and this right is equal, not proportionate. Each riparian
owner has the right to use the water so long as his use is not
detrimental to the rights of other riparian owners. One riparian
owner may choose to use the water in its natural state for recrea-
tion (non-consumptive) while another may desire to divert it for
an artificial use such as irrigation (consumptive). The consump-
tive user has no "superior right to take water to the detriment of
the non-consumptive user. Taylor vs. Tampa Coal Co., (Fla. S.C.
1950) 46 So. 2d 392.

(3) Regarding the rights of the overlying property owner to
use groundwater, Village of Tequesta vs. Jupiter Inlet Corporation
(Fla. S.C. 1979) 371 So. 2d 661, should have settled the question.
The "right to use" is not "private property". The ownership of
the land does not carry with it any ownership of vested rights to

March 24, 1981
L. M. Blain
Page -2-

underlying groundwater not actually diverted and applied to
beneficial use. An unexercised common-law right to use water
is extinguished at such time as a consumptive using permitting
program is implemented. The right of a property owner to the
usufruct of the water underlying his land is correlative.

(4) As you pointed out in your May 19, 1980 "Water, Oil &
Quail", talk, "the balancing of those correlative rights was
left by the court to the administrative system of water manage-
ment under the Water Resources tct." Accordingly, "under the
Water Resources Act, the reasonable-beneficial use standard
remains the controlling criterion for evaluating uses of water".

Thank you for the opportunity to comment. My only suggestion
for alternative language that would be consistent with law is
a paraphrase of Section 373.171(2), to wit:

"In implementing a consumptive use permitting program,
the Department and District wh&ll act with a view to
full protection of the existing rights to water in
this State insofar as is consistent with the purpose
of Chapter 373, Florida Statutes."


cc: J. T. Ahern

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