To: State Water Policy
Re: Land Owner's Rights
The December 16 draft provided that 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 the 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 hearing draft currently provides that in determining whether
a water use is a reasonable -beneficial use, consideration should
be given to any evidence presented concerning the following factors:
"Whether the impact of the withdrawal extends to land not
owned or legally controlled by the user."
Riley Miles of the Water Users Association proposed that the
state water policy contain the following statements:
"In carrying out this policy, the constitutional right
of private ownership of land shall be fully protected.
"Permitted uses of water shall be limited to reasonable-
beneficial uses and water conservation shall be a condition
of water use."
Florida has almost always had too much water and water law in this
state has not evolved into adoption of the correlative right 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.)
As a result of 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 economic and efficiency found
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MEMORANDUM re State Water Policy
March 23, 1981
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
The concept relies on the principle that an overlying land owner
has a qualified right to use the water under his land for
reasonable-beneficial purposes on non-overlying lands. With-
drawals for use in such non-overlying areas, however, must not
interfere with the reasonable uses of overlying owners of land
from which their water is withdrawn.
If withdrawals for transportation to non-overlying areas results
in damage or injury to the supply of water available to another
land owner for overlying land purposes, transportation of water
to non-overlying areas no longer remains a lawful purpose.
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
(Jupiter) 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 results miaht 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
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MEMORANDUM re State Water Pblicy
March 23, 1981
of another are correlative.
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 Teauesta was the
actual 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 users still
face is uncertainty. Uses of water change over a time and each
time one property owner applies for a consumptive use permit to
draw water of a certain amount, his neighbor'sneeds and his must
be balanced. On top of that, the 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 to know 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 use by each user. They could plan and
provide for shortages on their own. But water is not the type
of resource that allows for that. It belongs to all property
owners, and at the same time it belongs to none of them.
It has been suggested that an additional paragraph be added to the
water use section of the policy. The introductory provision in the
policy states that the following shall apply to those 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 owners 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-
Under current Florida law, riparian owners do not have a right to
the surface water adjacent to their property that is not also
MEMORANDUM re State Water Policy
March 23, 1981
enjoyed by non-riparian users. No where 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 non-existent 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.
It also suggests that overlying property owners should have the
right to make a consumptive use of "an equitable portion" of
The term "equitable portion" has never been applied to allocation
"Equitable" means just, fair, and right, in cbnsideration 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.
A more suitable approach to setting forth landowners' rights
would be to include a provision which more accurately tracts
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
ground waters for reasonable-beneficial purposes
consistent with the Water Resources Act.
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