Title: Rights to Consumptive Use of Ground Water
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 Material Information
Title: Rights to Consumptive Use of Ground Water
Physical Description: Book
Language: English
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Memorandum Rights to Consumptive Use of Ground Water To: Lieutenant Governor, J.H. Williams -Chairman, Governor's Property Rights Study Commission From: Peter M. Dunbar, Esquire, Pasco County Attorney, Jacon D. Varn Esquire and Roger D. Schwenke, Esquire
General Note: Box 9, Folder 8 ( SF -State Water Policy/Property Rights Issue -Supporting Documents - 1977-1981 ), Item 5
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00001869
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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CARLTON, FIELDS, WARD. EMMANUEL. SMITH & CUTLER. P A.
ATTONI4EYS AT LAW
GrOioINo C. MAerT 7117-130 TAMPA OPLANOO PENSACOLA JOEN G.B*Er
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uWYmAI C.AOKINS DAVISSON F DUNLA TAMPA. FLOiIA a33eo A. BUOAoOUS LIVINOsros Je rrrc T SAUCR
THOMAS 0. AITIwN JOSEPo 0. EoWAROS WILLIAN F. MCGOWAN. JR. RoPca 0. SCHWCNKa
WMICHAL 0. ANNOS CHANLI H. EgerONw TEl. (ta3) 8 a-93e R. W MAO. J. G. TwomAs SMITH
JAMcE W. AULT MICHCL G. EMMANUCL STEPMeN J. MITCHELL ROOCEr W. SMITH
RICNAMO H. BASRY JAIC O0. FenIR soN. Jr. RANIm J. MOICLL WN. RccCE SMITHr. JR.
DOe. AL. IMLOOWORTN 0. WAL.LACE FIeLO JOE HORN MOUNT McErtL B. STAINTON
JOIN W. SouLT LCONARO H. GIL C r OAVIS G. MULOCK JACOs 0. VARN
Step"MN J. SOZAmT' EumICn Z. Grnirit MIc:HAC. F NuCCHTCLtmIN JOHNCE.VCN
PATRICK BROWN RurTH MNlMS DOAV C. PARK SYLVIA H. WALSOLT
ALUIr D. CAPOUANO MHAROL C. MUSIA Ro ErT W. PASS LAWRCNCC M. WATSON. J.
TWOMA4 A. CLARK THOMAS F ICARO. JR ORsGeRt J. PLUS, JR. RONALD L.W AVCR
PewrTN O0. CoCCe. JR. WILL.AM 0. KCcTTCL WILUJA M. RetoSTER. JR. PCTER J. WINOCRS
CICST L. CURIN CHARLES F. KeTCMcy. JR. JUDITH F RIoSKY RoIrTO L.YOUNO
EaOwu I. CurTLcm ECMI WONTMAN LAWYER TTOMAS J. ROCMn PCTCR W. ZINONER

MEMORANDUM



TO: Lieutenant Governor J. H. Williams
Chairman, Governor's Property Rights Study
Conrission

FROM: Peter M. Dunbar, Esquire, Pasco County Attorney
Jacob D. Varn, Esquire
Roger D. Schwenke, Esquire

RE: Rights to Consumptive Use of Ground Water


I. INTRODUCTION


For many years people have generally believed that Florida
is blessed with an unlimited supply of water. It has been
assumed that "underground rivers or some other unknown and
unexplainable source will provide the citizens of the State of
Florida with an over-abundant supply of water. We now recog-
nize that there are no "underground" rivers" or unknown sources,
that water is a limited resource and that the demand is approach-
ing or exceeding the supply in certain areas of the state.
As demands for water continue to increase, competition for the
water will also increase. In recognition of these facts, we
are now implementing and devising various regulatory efforts
to (1) achieve maximum and efficient utilization of our
water resources, (2) meet our increasing demands for water,
(3) protect and conserve our water resources, (4) maintain
our high quality of life, and (5) protect our natural
resources.

The purpose of this memorandum is to describe the nature
of the property rights that a property owner has to the con-
sumptive use of water. We are considering any use of water
that decreases the quantity of water available for use by
others as a consumptive use. Additionally, we are limiting


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Memorandum to Lieutenant Governor J. H. Williams
Page 2

our efforts to describing the nature of the rights with
respect to ground water that is, water which flows or is
contained in the ground. We will not describe the nature of
the rights to surface water -that is, water which flows or
is contained on the surface, such as, rivers, lakes, streams,
and ponds. Since surface waters currently account for only.
10% of the fresh water we use in Florida and the problems
associated with the allocation of surface water are so
different than ground water, we have elected not to include
surface water in our discussions, except to the extent that
it has a bearing on ground water rights.

As indicated above, we have no unknown or mysterious
sources of water. Water has an identifiable source. When
ground water withdrawals are made, we can determine where the
water is coming from and we can measure to some extent the
effects of the withdrawals. Withdrawals of ground water from
an artesian aquifer will cause some changes in the potentiometric
surface of the aquifer; will cause changes to take place,
subsequently, in the water table of the shallow aquifer; and
will ultimately be reflected in a change in the amount of water
available as surface runoff. These changes in turn cause
changes in the ground water supply itself, in the water re-
lated surface conditions, and through some mechanism, in the
character of the land surface. The resultant effects may be
lowered water levels in wells, declines in the potentiometric
surface, lowered lake levels, reduced stream flow, salt water
intrusion, the formation of sinkholes, vegetation changes or
any combination of the foregoing. In determining what consti-
tutes a safe withdrawal from an area, all of these effects
must be considered. In this memorandum we are concerned with
the allocation of water among those parties who have a right
to the water. We are not concerned with determining how much
water can be safely withdrawn.

As we pursue our efforts to maximize the utilization of
our water resources, it is imperative that we be ever mindful
that such regulatory devices will require the regulation of
private property and that these regulations will bring charges
by the landowner that his property is being taken without full
compensation.

II. NATURE OF PROPERTY RIGHTS IN WATER

Water rights are classified, protected and administered
-under two principle doctrines in the United States, the
reasonable use doctrine, also referred to as the riparian
rights doctrine, and the prior appropriation doctrine..


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Memorandum to Lieutenant Governor J. H. Williams
Page 3

Under both doctrines, water rights are considered as "usufructary",
a right of use and not an interest in the corpus of the water
supply. It is the use of water and not the water itself which
is the subject of the property right.

That right to the use of water under both the prior appro-
priation doctrine and the reasonable use doctrine is generally
considered to be an interest in real property.2 Most juris-
dictions treat this water right as an interest in real property
for the purposes of determining title in a quiet-title action,J
a mortgage-recording requirement, satisfying the statutes of
frauds, descent and inheritance, and taxation.4 Likewise, a
water right, like other property interests, may be sold or
otherwise transferred, such as by leasing the right to another
party or by descent through the provisions of a will.5
Florida, like most eastern states, recognizes riparian
rights as property.6

Several aspects of the reasonable use/riparian rights
doctrine are worthy of further mention. The major feature
of the reasonable use doctrine is that it affords similar
rights to each riparian owner or to the owners of land
overlying the same source of water supply. Moreover, under
the reasonable use doctrine a riparian right to water exists
whether or not the use is being exercised. Consequently, a
riparian can initiate a use any time and insist that his
rights be respected or that a share be allotted to him.

The rule of correlative rights i. almost identical to
the reasonable use rule and has been followed in California.
Under the correlative rights rule the water users are afforded
a proportionate share of the water based on land ownership.
Water users under the reasonable use doctrine are treated
similarly but the method of allocation is not fixed. While
Florida courts have traditionally followed the reasonable use
doctrine, the Florida Supreme Court has also said that "the
property rights relative to the passage of waters that naturally
percolate through the land of one owner to and through the land
of another are correlative."7 This at least suggests that the
courts may apply the rule of correlative rights.

III. GROUND WATER RIGHTS

(A) REASONABLE USE DOCTRINE

Ground water falls into two legal classifications, either
underground streams or percolating waters. Depending upon the


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Memorandum to Lieutenant Governor J. H. Williams
Page 4


legal classification of the ground water, ground water has
traditionally been subject to two separate and distinct
bodies of legal rules. It should be noted, however, that
these legal classifications are artificial. Today hydrologists
generally agree that ground water is but one phase of the
hydrologic cycle and that ground water is in constant move-
ment. Most importantly, hydrologists know that all water is
interrelated and interdependent and should not be dealt with
as though it had separate and distinct classes. Nonetheless,
we continue to use different legal principles for each
classification.

The Florida Supreme Court has followed the traditional
classifications of ground waters, either as underground
streams or as percolating waters.8 Accordingly, the Florida
Supreme Court has recognized that an underground stream must
have the same characteristics as a surface stream, that is,
it must have a permanent, distinct and well-defined channel.9
The Court went on to recognize that the rules of law which
govern the use of surface stream are applicable to underground
streams and that ground water is presumed to be percolating
unless it is affirmatively shown that the water is flowing
in an underground stream. 0

Percolating waters include all waters which pass through
the ground beneath the surface of the earth without a definite
channel and which are not shown to be supplied by a definite
flowing stream. These waters ooze, seep, filter and otherwise
circulate through the interstices of the subsurface strata
without definable channel, or in a course that is not discoverable
from surface indications without excavations for that purpose.11
Coupling the presumption that all ground waters are percolating
with the understanding that hydrologists have of our ground
water system, we will base our discussions on the notion that
all ground waters are percolating waters.

The.English Common Law with respect to rights in perco-
lating waters was not developed until 1843 in the case of
Acton v. Blur.dell,12 Under this doctrine, percolating waters
constitute part and parcel of the land in which they are found
and belong absolutely to the owner of such land who may without
liability withdraw any quantity of water for agt purpose even
though the result -is to drain all water from beigath the
adjoining lands. At an early date, the American courts ex-
pressed dissatisfaction with the absolute ownership rule and
-began applying what has come to be known as the "reasonable


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I -
7
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Memorandum to Lieutenant Governor J. H. Williams
Page 5


use rule". Generally, the rule of reasonable use is an ex-
pression of the maxim that each landowner is restricted to a
reasonable exercise of his own rights and a reasonable use
of his own property, in view of the similar rights of others.13

In 1956, the Florida Supreme Court followed the reason-
able use rule in a case involving percolating ground water.14
In this case, the Florida Supreme Court rejected the absolute
ownership rule and expressed its version of the reasonable use
rule as follows:

"The opinions expressed in these cases
harmonize the pronouncements in Labruzzo
v. Atlantic Dredging Const. Co., 54 So.
2d 673, 29 A.L.R. 1346, that the American
courts have receded from the old common
law rule that an owner had an unrestricted
right to draw percolating water from this
land and to adopt the rule that the right
is bounded by reasonableness and beneficial
use of land. 15

Under the reasonable use rule, as applied to surface water,
each riparian owner has the right to make use of the water
subject to the equal rights of the other riparian owners. Conse-
quently, no riparian owner can withdraw all of the surface water
since this wculd be unreasonable because it would interfere
with the equal rights of the other riparians. Under a "pure"
reasonable use rule as applied to percolating water, an over-
lying landowner could withdraw a quantity of water that damages
a neighboring landowner so long as the water were being used
for a beneficial purpose on the overlying land.1 A number
of eastern states have abandoned this pure reasonable use
rule for percolating water and have adopted a reasonable use
rule as to percolating waters that is similar to the reason-
able use rule governing riparian rights in surface waters.17

To date, the Florida Supreme Court has followed the trend
set by other eastern jurisdictions in following the reasonable
use rule similar to that governing riparian rights.18

Based on the Florida cases to date and the common law,
ground water rights can be characterized as follows:

1. Owners of land overlying a ground water basin
have the right to withdraw water and that
right is bounded by reasonableness and
beneficial use of such waters.19


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Memorandum to Lieutenant Governor J. H. Williams
Page 6


2. The rights to the water are property rights
and the rights of one landowner wi h re-
spect to another are correlative.2

3. The rights of each landowner are restricted
to a reasonable use of his property as it
affects the waters underlying the adjacent
properties.21

4. The right of each landowner is equal and
correlative to the right ofall other
owners similarly situated, and the right
exists whether or not it is presently
being exercised.22

Consider the case of two adjacent landowners who are with-
drawing ground water for use of their overlying property where
there is insufficient water to supply fully the requirements
of both. Under this set of circumstances, in a jurisdiction
such as Florida, one or both of the landowners would have to
reduce their withdrawals depending upon the amount of water
available. Based on the quantity of water available, a court
would equitably apportion or distribute that quantity of
water to the landowners after considering the purposes and
uses to which these landowners would be placing the water. The
ultimate decision will depend on the particular facts of the
individual case. It should be recognized, however, that as
additional landowners want to initiate new water uses that
are reasonable uses, the landowners will once again face the
problem of equitably distributing the water.

If in this example, it could be shown that one of the
landowners was wasting the water or making an unreasonable use
of the water, the other landowner could seek the appropriate
judicial relief to eliminate or prohibit the wasteful or un-
reasonable use.

In all of the cases above, it should also be remembered
that priority of use establishes no priority of right, i.e.,
one cannot claim superior right merely because he used the
water first.
The problem becomes somewhat more complex when a land-
owner begins transporting the water beyond his overlying land.
In 1956 when the Florida Supreme Court23 adopted the reasonable
use rule, the court clearly stated that the right to withdraw
-water "is bounded by reasonableness and beneficial use of the


t~II __ __ ,_ ma llJII*






S-L

Memorandum to Lieutenant Governor J. H. Williams
Page 7


land". In this case, the Supreme Court reinstated a complaint
to allow the affected landowner the opportunity to prove his
allegations that the large withdrawals of water were unreason-
able and would result in irreparable injury to his property.
In this same case, the Court recognized that a governmental
body "is not in a favorable position ssjply because the
water drawn is to furnish the public".4
If the Florida courts followed the strict common law rule,
the overlying landowner will be confined to using the water
for reasonable and beneficial uses on the overlying land, just
as the riparian owners are confined to use on the riparian
land. In 1927 the Florida Supreme Court25 elected to modify
its application of the surface riparian rule by finding that any
person may divert the flood or excess waters to lands not
riparian and even beyond the watershed of the stream. The
court reasoned that these types of diversions should be
allowable since the water is of "no substantial benefit to
the riparian or his land". Assuming that the Florida courts
would continue to apply the same reasonable use rule to
ground water as has been applied to surface water, it is
reasonable to suggest that the courts will permit the diversion
of excess ground waters to non-overlying lands, as the
Florida Supreme Court did in Koch v. Wick. z In this context
excess ground waters means the amount of water not needed for
reasonable and beneficial purposes on the overlying lands.

Recognizing that several changes in the law could be
made that would enable the water resources of Florida to be
"put to the most beneficial use of which they are reasonably
capable, and so that waste and unreasonable use may be
minimized", the Florida Water Resources Study Commission in
1957 recommended to the Governor and the Legislature certain
legislation to accomplish these objectives. Included in the
legislative package was a proposal, which was enacted, to authorize
the diversion of all water in excess of reasonable use beyond
riparian or overlying land.27 The adopted provision that
authorizes these diversions clearly implies that the uses on
overlying land have a priority and that the right to divert
only applies as long as excess water is available.

Outside of the limited insight provided by these two Florida
cases and the single statutory provision, it is helpful to
look to other jurisdictions to establish an opinion on modern
decisions concerning the transportation of water from the over-
lying lands.


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Memorandum to Lieutenant Governor J. H. Williams
Page 8


Clearly, the trend of modern decisions has been towards
the adoption of the reasonable use doctrine. Many states
have had to resolve the conflict where there is competition
for water between a governmental unit, which wants to transport
ground water beyond the overlying lands, and the landowners
adjacent to the governmental wells or well field. As the
public water systems seek new sources of water to meet their
ever-increasing water needs, these conflicts are destined to
occur and recur.28

These decisions agree that under the reasonable use
doctrine an overlying landowner, including a municipality,
may not withdraw water and transport it from the overlying land
for sale or use away from the land from whence it was with-
drawn, if the withdrawals impair the supply of an adjoining
landowner to his injury. The use has been characterized as un-
reasonable because it is non-beneficial and is not for a
"lawful purpose within the general rule concerning percolating
waters". One court went further and specifically recognized
that the right to make a reasonable use of the percolating
waters underlying one's land is a property right and is
usufructary in nature.30

The courts have acknowledged that the principal diffi-
culty in applying the rule of reasonable use is in determin-
ing what constitutes a reasonable use. Many.factors, such
as the persons involved, the effects of the withdrawals, the
relative positions of the persons involved, the quantity of
water available, the nature of the uses, the dependability
of the supply, the climatic conditions, and the comparative
value of their uses, have been considered when determining
what is a reasonable use.31

Stated generally, the reasonable use doctrine provides
that "each landowner is restricted to a reasonable exercise of
his own rights and a reasonable use of his own property, in
view of the similar rights of others".32 A municipal corpo-
ration or a county water system seeking water for its resi-
dents or customers is subject to the same rules of law con-
cerning rights in ground water as is a private individual.33
-The city or county is a private owner of land and the furnish-
ing of water to its inhabitants is its private business. As
one court commented, "while it is imperative that the people
of the city have water, it is not imperative that they secure
it at the expense of those owning" lands adjacent to munici-
pal well fields.3


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Memorandum to Lieutenant Governor J. H. Williams
Page 9


Although California has adopted the correlative rights
doctrine, a review of the California cases is very helpful
because of the many similarities between the correlative rights
doctrine and the reasonable use doctrine. Because the
correlative rights doctrine is almost identical to the reason-
able use doctrine, it is not uncommon to see courts in juris-
dictions that have adopted the reasonable use doctrine to dis-
cuss correlative rights as though it were the same as the rule
of reasonable use.35 The only difference in the two doctrines
is that when there is an insufficient supply of water avail-
able, the correlative rights doctrine allocates the water among
the reasonable beneficial users in proportion to land owner-
ship, whereas, under the reasonable use doctrine, there is
no fixed method for allocating the water among the reasonable
users.

The Cal ornia Supreme Court in City of Pasadena v. City
of Alhambra, in an action to determine the ground water
rights within a basin and to enjoin an alleged annual over-
draft in order to prevent eventual depletion of the supply,
said:

"Generally speaking, an overlying right,
analogous to that of a riparian owner in
a surface stream, is the right of the
owner of the land to take water from the
ground underneath for use on his land
within the basin or watershed; the right
is based on ownership of the land and is
appurtenant thereto....it is now clear
that an overlying owner or any other
-person having a legal right to surface
or ground water may take only such amount
as he reasonably needs for beneficial
purposes.... In California surplus water
aay rightfully be appropria-ed on
privately owned land for non overlying.
uses, such as devotion to a public use or
exportation beyond the basin or water-
shed....

... Proper overlying use, however, is
pa amount, and the right of an appropriator
earlier the California court noted that
this term refers to any taking of water for
other than riparian or overlying uses],
being limited to the amount of surplus,
mast yield to that of the overlying owner


is ENNIA.









Memorandum to Lieutenant Governor J. H. Williams
Page 10


in the event of shortage, ... As between
riparians, are correlative, and are re-
ferred to as belonging to all in common;
each may use only his reasonable share
where water is insufficient to meet the
needs of all."37

The position taken by the California Supreme Court under
the correlative rights doctrine is harmonious with the reason-
able use doctrine. The distinction between the correlative
rights doctrine and the reasonable use doctrine is that when
the supply is inadequate to meet the reasonable beneficial
needs of the overlying owners, the correlative rights doctrine
requires a sharing of withdrawals among landowners overlying
a common basin based upon his surface ownership.
There are areas in the State where we have a very good
understanding of our ground water system. These understand-
ings are possible primarily because of years of data collec-
tion, study and experiences with the system. If the State
adopts the correlative rights doctrine, in those areas where
we have a good understanding of the ground water system, the
overlying owners will be able to make fairly close estimates
of the quantities of water they will have available when the
water resources are fully developed. This certainty is lack-
ing under the reasonable use doctrine. While the correlative
rights doctrine is capable of providing this certainty, it is
possible only if we have an understanding of the ground water
system. There are many areas of the State where we have little
knowledge of our water resources. In these areas we must
initiate data collection programs and special investigations
if we are to engage in responsible regulatory management
decisions. The absence of an understanding of the ground
water system cannot be cured by the adoption of any legal
principle or concept.

Based upon the Florida cases, the trend of authority
in other "reasonable use" jurisdictions and the California
cases, the water rights of an overlying owner who transports
the water for use on distant lands can be described as
follows:
1. The overlying owner has a qualified right to
use the water for reasonable and beneficial
'purposes on non-overlying lands.38

2. The withdrawals for non-overlying uses must
not interfere with the reasonable uses of
the overlying owners on the land from which
the water is withdrawn.39


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Memorandum to Lieutenant Governor J. H. Williams
Page 11


3. A property owner may not transport water off
his land if it results in damage or injury
to another landowner's water supply.Q

4. When there is not sufficient water to meet
the reasonable uses of the overlying owners,
those owners who are transporting water off
the overlying lands must recognize the prior
right of the overlying owners, since such
transportation is not a "lawful purpose".
It is "unlawful" since reasonableness is
limited to purposes incident to the bene-
ficial enjoyment of ,he land from which the
water is withdrawn.4

5. The reasonable uses on overlying lands are
paramount and the rights of those who trans-
port for non-overlying purposes is limited
to the amount of the surplus or excess.42


(B) REASONABLE BENEFICIAL USE
With the passage of the Florida Water Resources Act of
1972 (Chapter 373, Florida Statutes), the legislature provided
the authority for the Department of Natural Resources to set
up a program for regulating the consumptive use of water.43
The Act requires that in order to obtain a consumptive use
permit, an applicant must establish that his use of the water
(1) is a reasonable-beneficial use, (2) will not interfere
with any presently existing legal use of water and (3) is
consistent with the public interest.14 "Reasonable-beneficial
use" is defined as "the use of water in such quantity as is
necessary for economic and efficient utilization, for a pur-
pose and in a manner which is both reasonable and consistent
with the public interest". As explained in the commentary
of the Model Water Code, which is the foundation for the
Florida Water Resources Act of 1972, "the reasonable-
beneficial use" standard ... is an attempt to combine the
best features of the reasonable use and beneficial use
rules.45

The net result of adopting the "reasonable-beneficial
use" standard is to place the beneficial use limitation on
the present "reasonable use" doctrine. We have not replaced
the reasonable use rule, we have made an addition or limita-
tion to the doctrine. In spite of the inclusion of the word
"beneficial", the statutory definition is basically a restate-
ment of the present common law test for reasonable use.


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Memorandum to Lieutenant Governor J. H. Williams
Page 12


Practically, in the cases where the demands for water
exceed the available supply, the results obtained under the
"reasonable use doctrine will be the same as those obtained
under the "reasonable-beneficial use standard".
The adoption of the "reasonable-beneficial use" standard
has not moved Florida into the position of adhering to the
"prior appropriation doctrine". Throughout the Commentary
of the Model Water Code the drafters carefully pointed out
their refusal to adopt such a system.46 Likewise, the 1957
Florida Water Resources Study Commission in its "Report to
the Governor and the 1957 Legislature" also rejected the
"prior appropriation" doctrine as a means for managing our
water resources.

IV. PROBLEM AREAS

(1) The Taking Issue
Because the right to the use of water is a property right,
the regulation of water use must be done in a manner that will
not be construed as a taking of property without just compen-
sation. With various regulatory efforts being undertaken
within the State, it is imperative that we regulate the re-
source in a manner that recognizes the property rights of the
affected landowners, but also is fair and equitable.

Throughout most of the State the water supply is adequate
to meet the present needs of all water users without damage
to property, persons or the resource. In these areas there
is little need for stringent regulation. However, as these
areas grow and the demands for water increase, the time will
come when the supply will be inadequate. When this time comes,
as it has in a few areas of the State, regulatory programs
will be devised to allocate the water resources. It is im-
portant that these programs be set up so as not to restrict
unconstitutionally a landowner's right to water.

To guide the implementation of these regulatory programs,
we feel that the State, through the Department of National
Resources, must adopt a formalized policy. It is our recom-
mendation that the State adopt the correlative rights doctrine
in the implementation of its various regulatory programs and
in the development of the State Water Use Plan. The correlative
rights doctrine has the advantages of (1) being almost identi-
cal to the reasonable use doctrine, (2) utilizing a reasonable


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Memorandum to Lieutenant Govern6r J. H. Williams
Page 13


beneficial use standard that is comparable to the reasonable-
beneficial use standard of Chapter 373, Florida Statutes, and
(3) having a definite method of allocation, when the supply is
inadequate to meet the needs of all users. Because the
correlative rights doctrine is virtually identical to the
reasonable use doctrine, it is unlikely that it could be
successfully challenged as a taking of property without just
compensation.

If the State adopts such a policy, each landowner will
know the minimum amount of water that he can reasonably
expect to always have available for reasonable-beneficial
uses. Presently, a landowner has no idea of the amount of
water that he has available for reasonable-beneficial pur-
poses. As pointed out earlier, under the correlative rights
doctrine, the distribution of water for reasonable-beneficial
purposes is made in proportion to the ownership of the over-
lying land. However, the allocation is only necessary if
the water needs exceed the available water supply.

In keeping with the foregoing, we recommend the adoption
of the following policy statement:

The landowner's ability to withdraw ground
water for use on the overlying lmad is a basic ele-
ment of the ownership and is a right inherent
therewith. It is a correlative right, co-extensive
and co-equal with that of the adjoining landowners,
and is a legally protectable right, whether or not
it is presently being exercised.

While the need exists to protect this property
right, there is also a need to protect the resource
itself. The challenge is to accomplish both ob-
jectives. The implementation of a regulatory pro-
gram and the adoption of the State Water Use Plan
incorporating the "correlative rights" doctrine of
reasonable and beneficial use achieves these ob-
jectives and is consistent with the Constitution,
case law, the statutory standard of reasonable
beneficial use and the trend of modern decisions in
other common law jurisdictions.
It is important to recognize that, if properly
implemented, this doctrine will minimize the
-problem of the taking issue, and make moot the ques-
tion of compensatory damages for this property
right. This standard is one by which water may be


~i r I I II I II 'H1-









Memorandum to Lieutenant Governor J. H. Williams
Page 14


allocated most equitably and beneficially among
competing water users, private and public, while
at the same time providing for the maximum protec-
tion, conservation and utilization of the resource.
A significant benefit to be gained from the adoption
of such a policy is that Florida could expect a different
type of well field development in the future. Historically,
the city and county water systems have purchased small tracts
of land for the development of well fields. From these small
tracts of land the cities and counties have pumped enormous
quantities of water. This type of concentrated withdrawal
has created problems for the water systems and the adjacent
property owners. For the adjacent property owners the con-
centrated withdrawals have led to lowered water levels in
their wells, lowered lake levels and sinkholes. For the well
field owners, the problems have come with the development of
the property adjacent to the well field and the increased
demands for water. As water is needed on the adjacent lands,
the well fields have had to reduce their withdrawals. Hope-
fully, if this policy is adopted, well field developers
would be encouraged to develop well fields that were spread
out over larger areas, thereby reducing the effects of the
withdrawals and, in all probability, prolonging the life of
the well field.
If the water rights are defined as recommended, we can
eliminate the necessity of purchasing the fee simple title
for well field development. All the city or county will have
to purchase is the water rights to the property. This will
leave the landowner with the ability to utilize the overlying
land for any number of purposes. There are a great many land
uses that are compatible with the development of a well field.
Additionally, this should serve to decrease the cost of land
acquisition for water supply purposes.

(2) State Water Policy

At the present time there are five water management
districts in the State. Two of these districts have imple-
mented regulatory programs for the consumptive use 'of water
pursuant to Part II, Chapter 373, Florida Statutes. These
two districts utilize different permitting procedures and
- forms and, although both are in the early states of imple-
mentation, it appears that different concepts of allocation
are being utilized. Consequently, depending on which district
is involved, water rights may be determined by the common
law rule of reasonable use or a regulatory scheme based on
the reasonable-beneficial use standard. Assuming the same


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Memorandum to Lieutenant Governor J. H. Williams
Page 15


facts were presented to each of the districts presently
exercising a regulatory function, it is possible and probable
that each district will make a different determination.
Should this occur and an administrative appeal be taken to
the Governor and Cabinet, functioning as the head of the
Department of Natural Resources, it is unrealistic to expect
affirmation of both actions.

This example points out the need and necessity for a
well-defined state water policy. We must have a uniform state
water policy. Once this policy is defined, each of the water
management districts can implement the policy in such a manner
that it is capable of handling those situations that are
unique to it because of a particular hydrologic or geologic
factor. Since each district is implementing the same statutory
provisions through a delegation of authority from the Department
of Natural Resources, it is difficult to imagine that the
Legislature intended to establish different systems and
methods for establishing water rights in Florida.

If the Department of Natural Resources establishes model
rules and regulations with which the water management districts
must substantially comply, but also provide for variances and
exceptions because of unique or unusual circumstances, the
State will have taken the first step towards the implementation
of a uniform state water policy.

(3) State Water Use Plan and the Implementation
of Consumptive Use Regulations

Efforts are now underway for the preparation of the State
Water Use Plan, pursuant to Section 373.036, Florida Statutes.
In the absence of a well-defined state water policy, it is
difficult to envision how the State Water Use Plan can be
developed. Additionally, parts of the State Water Use Plan
are being developed by some of the water management districts,
consequently, the possibility and probability of inconsistent
objectives and methodology is present.

As noted earlier, two of the water management districts
have implemented consumptive use permitting programs. From
a planning viewpoint, the development of the State Water Plan
should be the first step. It is implied in Chapter 373 that
the implementation of the consumptive use permitting programs
should be consistent with the State Water Use Plan. With these
programs being implemented without a State Water Use Plan, it


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Memorandum to Lieutenant Governor J. H. Williams
Page 16


can be expected that some of the approved consumptive use
permits will be in conflict with the State Water Use Plan. To
avoid this problem, during these early stages our efforts should
be directed towards the development of the State Water Use
Plan rather than consumptive use permitting programs. Only
in those instances where we have a water shortage or a probable
water shortage in the near future is there an immediate need
for consumptive use permitting programs. In the absence of a
clear state water policy and a State Water Use Plan, can it
be determined that a use will be a reasonable-beneficial one?
Probably not.

Another potential problem in the implementation of a
consumptive use permitting program is the possibility of
developing into a prior appropriation system. As pointed out
in the two reports that have served as the foundation for
the statutes enacted by the Florida legislature, the prior
appropriation approach has been considered and specifically
rejected. Since the legislature has rejected the prior appro-
priation doctrine, it is unlikely that a court would uphold a
regulatory program based on prior appropriation.
A prior appropriation system, if implemented, can
generate numerous problems. For example, if implemented,
the day will come when a district will have allocated all of
the water on the basis of "first in time, first in right";
at that point, all future applicants will have to be denied
because there is no water available. Since the right to
water exists even though it isn't being exercised, it is
doubtful that this right can be denied in the absence of
compensation.
Provision was made in the Water Resources Act of 1972
for instances where there was not a sufficient quantity of
water to meet all the demands for water. A careful reading
of Chapter 373 and Section 373.246, Florida Statutes, clearly
indicates that the water shortage condition contemplated is
an emergency type situation, a rare event of the type that
uan has little control over, such as a prolonged drought.
It was not envisioned that water shortages would be created
by the implementation of consumptive use permitting programs.
It doesn't seem realistic to implement a system that will
lead to a shortage or disaster. These problems can be
avoided by the adoption and implementation of the recommended
policy statement.


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Memorandum to Lieutenant Governor J. H. Williams
Page 17


(4) Coordination and/or Consolidation of Land
Use Regulation and Water Use Regulation

On the state, regional and local levels of government,
invariably one body is engaged in land use regulation and
another in water use regulation. Local government makes land
use decisions daily, while at the same time, the water manage-
ment districts are regulating water use. On the state
level, the Division of State Planning is preparing a State
Land Use Plan and the Department of Natural Resources is
preparing a State Water Use Plan. Land use cannot be separated
from water use. What can someone do with a piece of property
without water? What you do with a piece of property affects
the water resources. What you do with the water resources
affects the land. Land use activities must go hand in hand
with water use. Regulatory and planning activities for land
use and water use on all levels should be placed in one
agency or unit. This is the best way to insure a fully
coordinated planning and regulatory process. Too often, re-
zoning a piece of property for residential or industrial
purposes carries an assumption, perhaps erroneous, that there
will be an adequate water supply.

The Green Swamp is an excellent example of why land use
and water use must be regulated and planned by a single
entity. In recent years, the citizens have learned of how
the Green Swamp is the head waters for the Peace River,
Hillsborough River, Oklawaha River, Withlacoochee River and
Reedy Creek as well as a major recharge area for the Floridan
aquifer. Recognizing the significance of the Green Swamp to
the water resources of this State is one of the reasons why
it was designated as an "area of critical state concern".

(5) Regulating, Protecting and Conserving Our
Resources

As government continues to provide additional services
to the citizens, in efforts to economize and be efficient care
must be taken with the duties and responsibilities vested
in governmental agencies. For flood control, conservation,
drainage and water supply purposes, rivers have been channel-
ized and straightened, lake levels have been stabilized,
wetlands have been permanently flooded and drained and canals
have been constructed to the Gulf and Atlantic Ocean. Recently,
it has been shown that some of these projects were mistakes;
if under consideration today, many would never be constructed.
The adverse effects of many of these projects will be felt
for years to come and, if correctible, they will require


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Memorandum to Lieutenant Governor J. H. Williams
Page 18


vast expenditures of public funds. Many of the agencies
that have created the problem and damaged the resource are
now responsible for protecting and regulating the resource.

As power is granted to agencies, consideration must always
be given to the other functions which the agencies exercise.
Where roles are compatible, one agency should handle the
dual roles. Where the roles are incompatible, two agencies
should handle them. Those agencies charged with the responsi-
bility of protecting, regulating and conserving our resources,
should not also be charged with the responsibility of develop-
ing the same resource it regulates. With two agencies, each
seeking to perform its own function, a healthy conflict
should exist and in the end the public interest should be
best served. For example, an agency which is vested with
the authority of regulating our water resources should not
exercise a water supply function, since these roles are
incompatible. However, an agency exercising flood control
functions could also be vested with water supply functions
since flood control and water supply are compatible.

V. SUMMARY

The right to the use of water is a property right.
While there exists the need to protect this property right,
a need also exists to protect our water resources. The
resource cannot be considered inexhaustible. Water demands
will catinus to increase and this continued development
will modify and complicate the water system. If Florida is to
achieve optim development and asageBet of our water re-
sources, it uast define wdat a water right is, establish a
state water policy, develop a State Water Use Plan and,
finally, implement a regulatory program in conformity with
this definition, policy and plan.


P I I III I I _~asrriP ..A


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FOOTNOTES


1. F. Trelease, H. Bloomenthal and J. Geraud,
Cases on Natural Resources 1-8 (1965).

2. Jarvis v. State Land Department, 479 P.2d 169 (1969).
See also, R. Clark, Water and Water Rights 53,345 (1967).

3. California Water Service Company v. Edward Sidebotham
and Sons, Inc., 37 Cal. Rptr. 1 (1964); Higday v.
Nickolaus, 469 S.W.2d 859 (1971).
4. R. Clark, Water and Water Rights 53, 345 (1967).

5. Id. at 455.

6. F. Maloney, S. Plager, and F. Baldwin, Water Law and
Administration the Florida Experience, 31 (1968).

7. Cason v. Florida Power Co., 76 So. 535, 536 (1917).

8. Tampa Waterworks v. Cline, 20 So. 780 (1896).

9. Id. at 782.

10. Id. at 784.

11. 93 C.J.S. Water 586.

12. Acton v; Blundell, 12 M & W 324 (1843).

13. Farnham, Water and Water Rights, Vol. III, 2718, 2719.

14. Koch v. Wick, 87 So. 2d 47 (1956).

15. Id. at 48.

16. F. Maloney, S. Plager and F. Baldwin, Water Law and
Administration the Florida Experience, 157 (1968).

17. Id. at 156, 157, 158.

18. Cason v. Florida Power Co., 76 So. 535 (1917); Koch v.
Wick, 87 So. 2d 47 (1956); Labruzzo v. Atlantic
Dredging and Construction Co., 54 So. 2d 673 (1951).

19. Labruzzo v. Atlantic Dredging and Construction Co.,
54 So. 2d 673, 675 (1951); Koch v. Wick, 87 So. 2d
47, 48 (1956).


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20. Labruzzo v. Atlantic Dredging and Construction Co.,
54 So. 2d 673, 676 (1951); Cason v. Florida Power Co.,
76 So. 535, 536 (1917).

21. Labruzzo v. Atlantic Dredging and Construction Co.,
54 So. 2d 673, 676 (1951).
22. City of Pasadena v. City of Alhambra, 207 P.2d 17, 45
(1949); W. Fischer, Natural Resources Lawyer, Management
of Interstate Ground water, Vo'. VI, No. 3,5 521, 525
(1974).
23. Kock v. Wick, 87 So. 2d 47 (1956).
24. Id. at 48.
25. Tilden v. Smith, 113 So. 708 (1927).
26. Koch v. Wick, 87 So. 2d 47 (1956).
27. Section 373.141, Florida Statutes (1971).
28. Koch v. Wick, 87 So. 2d 47 (1956); Jarvis v. State Land
Department, 479 P.2d 169 (1969); Higday v. Nickolaus,
469 S.W. 2d 859 (1971); Schenk v. City of Ann Arbor,
163 N.W. 109 (1917); Meeker v. City of East Orange,
74 A. 379 (1909); Rouse v. City of Kinston, 23 S.E. 482
(1924); Canada v. City of Shawnee, 64 P.2d 694 (1937);
Rathrauff v. Sinking Spring Water Co., 14 A.2d 87 (1940);
Township of Hatfield v. Lansdale Municipal Authority,
168 A.2d 333 (1961).

29. Higday v. Nickolaus, 469 S.W.2d 859, 866 (1971).
30. Higday v. Nickolaus, 469 S.W.2d 859 (1971).
31. Id. at 866.
32. Canada v. City of Shawnee, 64 P.2d 694 (1936).
33. Id. at 695.
34. Schenk v. City of Ann Arbor, 163 N.W. 109 (1917).
35. Labruzzo v. Atlantic Dredging and Construction Co.,
54 So. 2d 673 (1951); Cason v. Florida Power Co., 76 So. 535
(1917); Meeker v. City of East Orange, 74 A. 379 (1909).
36. City of Pasadena v. City of Alhambra, 207 P.2d 17 (1949).
37. Id. at 28; See also, California Water Service Co. v.
E7 Sidebotham and Sons, Inc., 37 Cal. Rptr. 1 (1964).


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P Ir II I I In I ~rzrull -----r.










38. Koch v. Wick, 87 So. 2d 47, 48 (1956); Labruzzo v.
Atlantic Dredging and Construction Co., 54 So. 2d 673,
675 (1951).
39. Kock v. Wick, 87 So. 2d 47, 48 (1956); Higday v. Nickolaus,
469 S.W.2d 859, 866 (1971); Schenk v. City of Ann Arbor,
163 N.W. 109 (1917); Jarvis v. State Land Department,
479 P.2d 169, 171 (1969); Meeker v. City of East Orange,
74 A. 379, 380 (1909).

40. Kock v. Wick, 37 So. 2d 47, 48 (1956); Higday v. Nickolaus,
469 S.W.2d 859, 866 (1971); Rathrauff v. Singing Spring
Water company, 14 A.2d 87, 90 (1940); City of Pasadena v.
City of Alhambra, 207 P.2d 17, 28 (1949); Jarvis v. State
Land Department, 479 P.2d 169, 170 (1969); Meeker v. City
of East Orange, 74 A. 379, 382 (1909).

41. Higday v. Nickolaus, 469 S.W.2d 859, 866 (1971); City of
Pasadena v. City of Alhambra, 207 P.2d 17, 28 (1949);
Rathrauff v. Sinking Spring Water Company, 14 A.2d 87, 90
(1940); Township of Hatfield v. Lansdale Municipal
Authority, 168 A.2d 333 (1961).

42. City of Pasadena v. City of Alhambra, 207 P.2d 17, 28
(1949); Jarvis v. State Land Department, 479 P.2d 169,
172 (1969).
43. Section 373.219, Florida Statutes (1973).
44. Section 373.223, Florida Statutes (1973).
45. F. Malocey, I. Ausness & S. Morris A Model Water Code,
173 (1972).
46. Id. at 81 and 158-159.


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