Title: Case No. 79-2325R, Pinellas County vs. SWFWMD
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Title: Case No. 79-2325R, Pinellas County vs. SWFWMD
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Case No. 79-2325R, Pinellas County vs. SWFWMD
General Note: Box 10, Folder 7 ( Unknown - 1979-1980 ), Item 2
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00002183
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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S79
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RECEIVED

STATE OF FLORIDA NOV 1 1979
DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY, a political )
subdivision of the State of )
Florida, )

Petitioner, ) CASE NO: 7

vs. )

SOUTHWEST FLORIDA WATER MANAGEMENT )
DISTRICT, an administrative agency )
of the Spate of Florida,
)
Respondent.)


PETITION FOR DETERMINATION OF THE
INVALIDITY OF AN EXISTING RULE

This is a proceeding for the determination of the invalidity

of a rule of the Southwest Regional Water Management District

pursuant to 120.56, Florida Statutes and 221-2.32, Florida

Administrative Code.

1. Petitioner is Pinellas County, a political subdivision

of the State of Florida, with responsibility to supply water

for the consumptive use of its population, and a member of the

West Coast Regional Water Supply Authority. The West Coast

Regional Water Supply Authority is an interlocal governmental

agency duly created and validly existing under and by virtue of

Chapter 373, Florida Statutes, and is authorized thereunder to

acquire water and water rights; develop, store and transport

water; and to provide, sell and deliver water for county or

municipal purposes and uses.

2. Respondent is the Southwest Florida Water Management

District, an administrative agency of the State of Florida.

Respondent is charged, under Chapter 373, Florida Statutes,

with the responsibility to promulgate proper rules to regulate

the withdrawal of water from the aquifer for consumptive use

purposes in the geographical area of their jurisdiction, which

includes Pinellas County, Hillsborough County, and Pasco

County.








3. The Respondent has adopted a rule in 16J-2.11(3),

Florida Administrative Code, which is the rule in dispute.

That rule requires that an application to withdraw water for

consumptive use purposes be denied if the "water crop" limit-

ations imposed by the rule are exceeded. A copy of said rule

is attached to this petition as exhibit "A."

4. The rule substantially affects Petitioner in the following

manner:

a. Pinellas County provides water for the consumptive

use of its population by withdrawing water from wellfields owned

by Pinellas County, and by receiving water supplied by the West

Coast Regional Water Supply Authority. Those withdrawals of

water are regulated by Respondent under their rules.

b. Without an increase in the amount of water it receives,

Pinellas unty will not have an adequate supply of water for

the consumptive use of its population from the calendar year 1980,

forward in time. Thus, unless increased amounts of water with-

drawals for consumptive use purposes are permitted by Respondent,

Pinellas County will suffer irreparable harm to its population.

c.The West Coast Regional Water Supply Authority owns

and operates a wellfield in Pasco County known as Cross Bar Well-

field. Together with co-petitioner Pinellas County, it presently

possesses a consumptive use permit to withdraw a maximum daily

amount of 20 million gallons and an annual average of 15 million

gallons per day for the consumptive use of its members under

permit number 204290.

d. In August 1979, West Coast Regional Water Supply

Authority and Pinellas County, as co-applicants, filed an

application for a modification of their consumptive use permit

at the Cross Bar Wellfield to authorize a maximum withdrawal of

45 million gallons per day and an annual average withdrawal of

30 million gallons per day. A formal hearing pursuant to 120.57(1),

Florida Statutes has been requested; however that hearing has

S not yet been held. The modification requested is the only reason-

L able method for the Petitioner to meet the consumptive water use

needs of its population beginning in 1980.


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e. The requested modification will not comply with the

"water crop" limitation of Respondent rule set out in 8 16J-2.11(3),

Florida Administrative Code, and will, therefore, probably be

denied by Respondent on that basis.

5. Rule 16J-2.11(3), Florida Administrative Code, is invalid

because it is an invalid exercise of delegated legislative author-

ity or because it is an exercise of invalidly delegated legislative

authority, for the following reasons:

a. The rule exceeds Respondent's statutory authority,

pursuant to Chapter 373, Florida Statutes, to adopt administrative

rules.

b. The rule impermissibly conflicts with the provisions

in Chapter 373, Florida Statutes.

c. The rule creates a property right to water, by virtue

of land ownership, contrary to Chapter 373, Florida Statutes and

the decision of the Florida Supreme Court in Village of Tequesta

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

d. The rule is arbitrary and without a rational basis in

fact because it is a hydrologically invalid method to determine

the reasonable, beneficial use of water.

e. The Florida Joint Administrative Procedures Committee

has held on three occasions that Respondent's rule exceeds the

statutory authority granted Respondent under Chapter 373, Florida

Statutes.

WHEREFORE, the Petitioner respectfully requests that the

Director of the Division of Administrative Hearings-enter a find-

ing that this petition complies with the requirements of 120.56,

Florida Statutes, and .221-2.32, Florida Administrative Code,

and assign it to a hearing officer within 10 days of the receipt

thereof, said hearing officer to conduct a final hearing within

30 days of the assignment and that a final order be entered deter-

mining that the rule is invalid within 30 days of the final hear-

ing. A


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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing has been furnished by mail this a nay of

November, 1979 to: Jay T. Ahern, Esq., Attorney for Southwest

Florida Water Management District, 5060 U.S. 41 South, Brooksville,

Florida 33512; L.M. Blain, Esq., General Counsel for Southwest

Florida Water Management District, 202 Madison St., Tampa, Florida

33602. .A


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Objections may be filed with Southwest

S41, seven (7) miles south of
rooksville, Florida, 5060 U.S. 41
south, Brooksville, Florida 33512 and
ust be received by the Board not later
:han _
A Hearing will be held at (Place)
on (Date) at
(Time) before (Board or Hear-
ng Officer) to consider the application.
he application is on file at the District
office and available for inspection..
alternate No. 1 Application for less
:han one hundred thousand (100,000)
gallons per day may be considered to-
gether with objections filed thereto
without holding a hearing.
Alternate No. 2 Applications for one
hundred thousand (100,000) gallons per
day or more may be approved, after
proper investigation by the District
staff, without a hearing if no objec-
tions are filed to said application;
but when objections are filed to an -
application a hearing will be held at
(Time) on (Date)
before a Hearing Officer at (Place)
,Florida.......
-. ..... o d .. ... -- ..
General Authority 373.044. .373.113. 373149. 373.171.
373.216. 373.249 FS. Law Iniplemeaned 316 373.1163.229
FS. lbutory-Readopted 104-74.

16J-2.08 Publication and Distribution of
Notice of Application.
(1) The Board shall cause the Notice of
Application to be published once a week for two (2)
consecutive weeks in a newspaper having general
circulation within the affected area.
(2) The Board shall cause copies of the Notice
of Application to be mailed to all owners of real
property set forth in the Affidavit of Ownership
required in Rule 16J-2.06(2). Such notification shall
be sent by certified mail return receipt requested.
posted not later than the first date of publication.
(3) The board shall cause copies et sueI Notic
of Application to be mailed tg persons who have filed
written requests within the immediately preceding six
(6) months for notification of any pending
applications affecting the particular designated area.
Such notification shall be sent by regular mail posted
not later than the first date of publication.
(4) The Board may cause
notices to be posted in prominent
locations at or near the locations'
of withdrawal and if'.the withdrawal
during any single day is to exceed
ten million (10,000,000) gallons


average per day on an annual basis
the Board shall cause not fewer
than two (2) such notices to be
posted not later than the first date
of publication of the Notice of
Application. Notices to be posted
shall be in substantially the follow-
ing form.: .. ...
NOTICE
Application has been made to
the Southwest Florida Water
Management District for a
SConsumptive Use Permit to
withdraw water at or near
This location and is on
i file at the District Office.
*Any objections must be received
not later than

Board of Governors
Southwest Florida Water
Management District
5060 U.S. 41 South
Brooksville, Florida 33512
General Autbodly 373.044. 373.113 .49. 373.171.
373.216. 373.249 FS. Law Impleeatmed 313.116. 373.229
rs. Htorrs-Readepted 10-6.74.
16J-2.09 Times for Receiving Objections and
for Hearing. The deadline for receiving objections to
the application shall be a day not sooner than
fourteen (14) days after the date of first publication
of the Notice of Application required in Rule
16J-2.08; the date of bearing shall be a day not
Sooner than seven (7) days after such deadline.
I General Authority 373.044. 373.113. 373.149. 373.171.
373.216. 373.249 FS. Law lmplemstefd 373.116. 373.339
SFS. Hitory-R-eadoptep 10.-.-4.
S 16J-210 Permit Processing Fee. A permit
i processing fee shall be paid to the District at the time
I a permit application is filed in the amount prescribed
SIn the schedule set forth in Rule 16J-0.11.
General Aptherity 33.044. 3 37&.113, t.149. 373.171.
' 73.216. 373.24 FS. Law Implemmesed 373.109 373.223
FS. Hisoerr-Readopted 105744
16J-2.11 Conditions for a Consumptive Use
Permit.
S (1 The intended consumptive use:
(a) Mst be a reasonable, beneficial use. ... -
(b) Must be consistent with the public interest.
(c) Will .not interfere with any legal use of
water existing at the time of the application.
(2) Issuance of a permit will be denied if the
withdrawal of water:
(a) Will cause the rate of flow of a stream or other
watercouse to be lowered bdow the minimum rate or ow
established by the Board.
(b) Will cause the level of the potentiometric
surface to be lowered below the regulatory level
established by the Board.


EXHIBIT A


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(c) Will cause the level of the surface of water
to be lowered below the minimum level established
by the Board.
(d) Will significantly induce salt water
encroachment.
(e) Will cause the water table to be lowered so
that the lake stages or vegetation will be adversely
and significantly affected on lands other than those
owned, leased, or otherwise controlled by the
applicant.
(3) Issuance of a permit will be denied if the
amount of water consumptively used will exceed the
water crop of lands owned, leased, or otherwise
controlled by the applicant. (Except where
determined otherwise, the water crop (precipitation
less evapotranspiratioln throughout the District will
be assumed to be three hundred sixty-five thousand
(365,000) gallons per year per acre.)
(4) The withdrawal of water:
(a) From a stream or other watercourse must
not reduce the rate of flow by more than five percent
(5%) at the time and point of withdrawal.
(b) Must not cause the level of the
potentiometric surface under lands not owned,
leased, or otherwise controlled by the applicant to be
lowered more than five feet (5).
(c) Must not cause the level of the water table
under lands not owned, leased, or otherwise
controlled by the applicant to be lowered more than
Three feet (3').
(d) Must not cause the level of the surface of
water in any lake or other impoundment to be
lowered more than one foot (1') unless the lake or
impoundment is wholly owned, leased, or otherwise
controlled by the applicant.
(e) Must not cause the potentiometric surface
to be lowered below sea level.
(5) The Board for good cause shown may grant
exceptions to the provisions of paragraphs. (2), (3),
and (4) above when after consideration of all data
presented, including economic information, it finds
that it is consistent with the public interest.
(6) The Board may condition the granting of a
permit so as to require:
(a) Notification of the date on which
withdrawals are commenced with such notification to
be postmarked no later than five (5) days after the
date of such commencement.
(b) Installation of flow metering or other
measuring devices.
(c) Reports of withdrawals on forms to be
provided which shail be submitted within the times
prescribed.
(d) Installation of observation wells or other
monitoring facilities and may establish regulatory
levels.
(e) Future reductions in withdrawals or
diversions, provided the schedule of any such
reductions or withdrawals shall be set forth
specifically on the face of the permit.
(7). The Board may reserve water from use by
permit in such locations and quantities, and for such
seasons of the year, as in its judgement may be
required for the protection of fish and wildlife or the
public health and safety. Such reservations shall be
subject to periodic review and revision in the light of
changed conditions. However, all legal uses of water
existing January 1, 1975, will be protected so long as
such use is not contrary to the public interest.
(8) In considering applications for permits
under this Rule, the portion of water consumptively
used will be determined based on available data, or in
the absence of such data, it shall be established by
reasonable calculations approved by the Board.


(a) Permits for withdrawal of water from an
area owned, leased, or otherwise controlled by an
applicant to be used on such area to Irrigate fruit
trees, seed and plant beds, vegetables, other food
crops, and forage crops, including pasturage, and to
irrigate nursery stock, including ornamental plants,
trees and shrubs, will be issued if there is no surface
runoff from the area from such irrigation. If surface
runoff occurs, the amount of the runoff shall be the
primary consideration in determining tle amount of
consumptive use.
(b) Permits for water to be applied to plants,
trees and shrubs, and to nursery stock, including
ornamental plants, trees and shrubs, and fish farming
ponds, as a direct means of frost or freeze protection
during time when temperatures are below or near
freezing, will be issued even though such application
may cause temporary surface runoff.
(e) Permits for removing water from fish
farming ponds periodically for the primary purpose
of harvesting the fish or for treating, reconditioning
or restocking such ponds, and for filling or
maintaining such ponds, will be issued without
Considering such activity to be a consumptive use of
water.
S (d) Water removed during temporary
dewatering for construction of building or other
Foundations and roadways, or during installation of
Utility pipelines, cables, culverts and catch basins, will
Snot be considered to be consumptively used. -
S (9) Flow metering devices will not be required.
to be installed at applicant's expense when all the
water to be withdrawn will be used for irrigation or
for frost or freeze protection. The Board may supply
and install such-devices for the purpose of testing and
monitoring methods of applying water but the cost of
such activity shall be borne by the District.
General Authority. 373.044. 373.113. 373.149, 373.171,
3713.21, 313.249 VS. Law Implemented 373.223 FS.
iistory-Rleadopted 10-5-74. Amended 12-31-74.
16J-2.12 Competing Applications.
(1) If two (2) or more applications for permits,
which otherwise comply with these rules and
Regulations and with any requests and instructions by
the Board, are pending for a quantity of water that is
.inadequate for both or all, or which for any other
reason are in conflict, the Board shall have the right
to approve or modify the applications in a manner
which best serves the public interest as determined by
the Board.
(2) In the event that two (2) or more
competing applications qualify equally under the
provisions of subsection (1), the Board will give
preference to a renewal application over an initial
application.
General Authority 373.044. 373.113, 373.149. 373.171,
373.216. 373.249 FS. Law Imptemented 373.233 FS.
*Hitory-Readopted 10-5-744.
16J-2.13 Duration of Permit.
(1) Unless otherwise provided herein, each
consumptive use permit issued prior to the expiration
of five (5) years from the date of implementation as
set forth in Rule 16J-2.03, shall terminate upon the
expiration of six (6) years from such date of
Implementation or at such earlier date as may be
determined by the Board and set forth on the face of
the permit. Consumptive Use Permits issued after
expiration of five (5) years from such date of
Implementation shall terminate upon the expiration
of twenty (20) years from date of issuance or at such
Earlier date as may be determined by the Board.
(2) Any first renewal permit issued, whether
: otherwise modified or not, shall terminate upon the
expiration of twenty (20) year periods or for such
lesser periods as may be determined by the Board and
set forth on the face of the permit.


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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS


PINELLAS COUNTY, a political sub- )
division of the State of Florida, )
and WEST COAST REGIONAL WATER )
SUPPLY AUTHORITY, an interlocal )
governmental agency, )
Petitioners, )
)
vs. ) CASE NO. 79-2325R
)
SOUTHWEST FLORIDA WATER MANAGE- )
MENT DISTRICT, an administrative )
agency of the State of Florida, )
)
Respondent. )

PINELLAS COUNTY'S MEMORANDUM OF LAW
IN SUPPORT OF ITS PETITION TO INVALIDATE
THE WATER CROP RULE RULE 16J-2.11(3) F.A.C.



THE LEGAL REASONS WHY SWFWMD HAS NO LEGISLATIVE
AUTHORITY TO ENACT THE WATER CROP RULE 16J-2.11(3)

A INTRODUCTION THE PLEADINGS

PINELLAS COUNTY has requested determination of the

validity of Rule 16J-2.11(3) F.A.C. The water crop rule

strictly prohibits withdrawal in excess of one thousand

gallons per day for every acre of land owned or leased by

the applicant. In other words, the amount of water withdrawn

is actually limited to the amount of land that is owned,

leased or controlled. Pinellas County is presently adversely

affected by the rule since the rule is now strictly applied

to limit water withdrawal in its consumptive use permit

obtained for its East Lake Wellfield located in Pinellas

County. In addition, Pinellas County as a co-applicant with

the West Coast Regional Water Supply Authority (WCRWSA) now

has an application pending before the Southwest Florida Water

Management District (SWFWMD) requesting additional water with-

drawal which exceeds the water crop from its Cross Bar Ranch


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Wellfield in Pasco County. Pasco County has intervened in

these consumptive use proceedings and now contends that

SWFWMD must strictly apply the water crop rule and deny

Pinellas County and the Water Authority's permit since it

requests withdrawal of more than one thousand gallons of

water per acre of Cross Bar land. Thus, if SWFWMD fails

to strictly apply to the letter its water crop rule, Pasco

County may appeal any granting of a consumptive use permit

with substantial legal chance of requiring the District to

enforce its arbitrary rule. Obviously, under these conditions,

Pinellas County and the Water Authority have standing to chal-

lenge the rule. D & w oil Company, Inc. v. O'Malley, 293

So.2d 128 (Fla. 1st D.C.A. 1974); State Dept. of Administra-

tion, Division of Personnel v. State Dept. of Administration,

Division of Administrative Hearings, 326 So.2d 187 (Fla. 1st

D.C.A. 1976).

Agrico Chemical Company v. State of Florida Department

of Environmental Regulation, 365 So.2d 759 (Fla. 1st. D.C.A.

1978) specifies the grounds upon which a rule promulgated by

an agency may be invalidated:
The burden is upon one who attacks
the proposed rule to show that the agency,
if it adopts the rule, would exceed its
authority; that the requirements of the rule
are not appropriate to the ends specified in
the legislative act; that the requirements
contained in the rule are not reasonably re-
lated to the purpose of the enabling legis-
lation or that the proposed rule or the
requirements thereof are arbitrary or cap-
ricious." (Opinion at 763)

Pinellas County in its petition has chosen the following

grounds sanctioned by Agrico, supra:

(a) The rule exceeds SWFWMD's statutory
authority.

(b) The rule impermissibly conflicts with
the provisions in Chapter 373, Fla.Stat.

(c) The rule creates a property right to
water by virtue of land ownership contrary
to Chapter 373 Fla.Stat. and the inter-
pretation of Chapter 373 Fla.Stat. in


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Village of Tequesta v. Jupiter Inlet Corpora-
ation, 371 So.2d 663 (Fla. 1979).

(d) The rule is arbitrary and without a
rational basis in fact because it is a
hydrologically invalid method to determine
the reasonable beneficial use of water.

(e) The Florida Joint Administrative Pro-
cedures Committee has held on three occasions
that SWFWMD's rule exceeds the statutory
authority granted respondent under Chapter
373 Fla.Stat. (See 120.54(10)(a) Fla.Stat.
1975, now 120.545 Fla.Stat. 1979.)

B WHAT IS THE WATER CROP THEORY?

The cardinal point in these proceedings is that water

withdrawal is directly tied in proportion to land ownership.

The concept had its genesis in the reasoning of SWFWMD's

staff prior to adoption of rules for the District. A report

on the amount of available water entitled "The Mid-Gulf

Report" which was a study of one of the hydrologic basins

in the District, showed that there were thirteen inches of

water available for consumption. (Rainfall less evapotrans-

piration.) Evapotranspiration is the amount of rainfall lost

through evaporation, consumption by plants *and all other

natural phenomena which would reduce the amount of water

available for consumption. This concept was applied district-

wide. The amount of land in the District was thusapplied to

the amount of rainfall and allocated on the basis of the

amount of land in the District. It was reasoned that if

someone applied for a permit, each could only receive one

thousand gallons for every acre of land owned. The rule was

adopted despite the fact that: No hydrology textbook recog-

nizes the water crop rule as written; no other water manage-

ment district in Florida applies the rule to grant or deny

a consumptive use permit; no other state in the Union uses

the rule to regulate water withdrawal. There are a number of

reasons why the application of the water crop theory is not

hydrologically sound which will be addressed in another

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memorandum submitted after trial. The District itself will

admit that there is no hydrological basis upon which to deny

a consumptive use permit solely upon the ground that the

application exceeds the water crop. Instead of implementing

the rule as written, the District has used water crop as a

tool in considering the impact of water withdrawal upon a

particular parcel of land upon which an application is pend-

ing. No applicant has been denied to date based upon the

rule. This fact constitutes a clear admission by SWFWMD that

the rule is hydrologically unreasonable and unsound. The

District will admit it can regulate water withdrawal without

the rule.

The question addressed in this memorandum is, Did the

Legislature of Florida intend to grant SWFkD. the authority

to allocate water on the basis of land ownarsh4p? The Legis-

lature has itself addressed this specific question on three

different occasions which is the subject of comment in another

section of this memorandum.

In short, the water crop rule limits rather than maxi-

mizes water resource use in contravention of the dictates of

F.S. 373.016(1) which states that it is the policy of the

State of Florida that the resource use be maximized:

"373.016 Declaration of policy.--

(1) The waters in the state are among its
basic resources. Such waters have not hereto-
fore been conserved or fully controlled so as
to realize their full beneficial use."

The theory has been found to be arbitrary by the author

of Chapter 373 Fla.Stat., Dean Maloney of the University of

Florida. In Florida's "reasonable beneficial" water use

standard: "Have East and West Met?" by Dean Maloney, 21 Univ-

ersity of Florida Law Review 253 at Page 281-282 (Footnote 197),

Dean Maloney states:


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"The water crop approach to permitting ties
the size of the allocation to the amount of
land used. This determination appears arbit-
rary. It is certainly possible that a permit
applicant could satisfy all of the factors
which determine a 'reasonable beneficial' use
and still be denied a permit.because his land
ownership or use was not extensive enough to
allow the needed amount of water." (Statement
at Page 282.) (Emphasis supplied)

C THE LEGAL REASONS THE WATER CROP RULE
HAS BEEN ENACTED WITHOUT LEGISLATIVE AUTHORITY

Simply stated, in order to lawfully withdraw large

quantities of water, a consumptive use permit must be ob-

tained from the District. The statutory section requiring

the obtaining of such permit is found in Part II of Chapter

373 Fla.Stat., commencing with 373.203 and ending with

5 373.249.

The reasons that there does not exist legislative author-

ity permitting allocation of water upon the basis of amount

of land ownership are:

I THERE IS NO SPECIFIC LANGUAGE IN CHAPTER 373
FLA.STAT. PERMITTING WATER WITHDRAWAL
TO BE DEPENDENT UPON LAND OWNERSHIP

Nowhere in Chapter 373 Fla.Stat. is there any hint that

the Legislature intended to grant SWFWMD authority to tie the

amount of water withdrawal to the amount of land ownership.

No such direct language can be found in Part II of Chapter 373

Fla.Stat. or anywhere else in the Chapter. In none of the sections

claimed by SWFWMD in its answer to interrogatories purporting

to support its position of legislative authority is there to

be found direct language permitting such a rule. Therefore, it

must be found to exist by "necessary implication" in Chapter

373 Fla.Stat. if such legislative authority is to be found at

all. Fund v. National Trucking Co., 107 So.2d 397 (Fla. 1st

D.C.A. 1958). Later analysis of the pertinent sections involved

will adequately demonstrate that no such implication can be

found in Chapter 373 Fla.Stat.


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The legislative notes on Chapter 373 Fla.Stat. do not

indicate consideration of a water crop theory by the Legis-

lature. In fact, since this concept is unique to SWFWMD and

was literally thought up after enactment of Chapter 373 Fla.

Stat., it can hardly be said that the concept could have

reasonably been considered by the Legislature in delegating

authority to water management districts under Chapter 373

Fla.Stat. Again, no textbook, other water management districts

in other states, other water management districts in Florida,

etc., acknowledge existence of a theory allocating water upon

the basis of land ownership. Therefore, upon this basis alone,

legislative intent is patently lacking.


II THE RULE ENLARGES THE LEGISLATIVE CRITERIA
SPECIFIED BY THE LEGISLATURE FOR
OBTAINING CONSUMPTIVE USE PERMITS
/
The Legislature specified three criteria for obtaining

a consumptive use permit by an applicant in F.S. 373.223:

"373.223 Conditions for a permit.--

(1) To obtain a permit pursuant to the pro-
visions of this chapter, the applicant must
establish that the proposed use of water:

(a) Is a reasonable-beneficial use as defined
in 373.019(5); and

(b) Will not interfere with any presently
existing legal use of water; and

(c) Is consistent with the public interest."

Reasonable beneficial use is defined in 373.019(5) as

"the use of water in such quantity as is necessary for economic

and efficient utilization for a purpose and in a manner which

is both reasonable and consistent with the public interest."

As will be seen in a subsequent section, the Administrative

Procedures Committee has directly held that the rule under dis-

cussion lacks legislative authority in that it directly violates

the enunciated criteria in 373.223 Fla.Stat.


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SWFWMD rules addressing the permitting of consumptive

use permits contain all of the three criteria specified in

5 373.223, [see 16J-2.11(1)(A)(B)(C)]; however, the rule

impermissibly adds a fourth standard for obtaining consumptive

use permits, namely Rule 16J-2.11(3), the water crop. Under

District rules, an applicant must show reasonable beneficial

use, noninterference with other water users, that the water

withdrawal is consistent with the public use and that he

possesses one acre of land for every one thousand gallons of

water applied for.

Clearly, SWFWMD in promulgating its rules did not have

authority to amend F.S. 373.223 to provide four rather than

three standards for obtaining consumptive use permits. The

prohibition against actions is set forth in 1 Fla.Jur. 2d

38, pp. 586-588:

"S 38. NECESSITY FOR COMPLIANCE WITH STATUTE

Administrative agencies created by statute have
only such powers as are conferred on them by
statute, and action taken by them pursuant to
a statute must accord with the provisions
thereof. -Every exercise of authority by admin-
istrative agencies or officers musp be authorized
by controlling law and be exerted in accordance
with the requirements of such law. If admin-
istrative agencies proceed without authority,
their acts are invalid, and will not be en-
forced.

Administrative authority can be exercised only
as the statutes provide, and statutory proced-
ure must be strictly pursued. When the legis-
lature provides that an administrative power
shall be exercised in a certain way, such
prescription precludes the doing of it in
another way.

The intent of a statute is the gist of the
enactment, and a material disregard of the
statutory intent by an administrative agency is
a violation of the substance of the enactment.

An administrative agency cannot repeal a law
enacted by the legislature, and an adminis-
trative agency's failure to enforce the law
or to administer the law as established by the
legislature does not effectuate a repeal of such
law."


7 -




f
-c:




,,!. iI I ,l J l .. .11 ..A ... l I. I.


The cases cited under this section hold that an agency

is not permitted to expand criteria established in an act

thus changing the intent of the legislature in delegating

the power under the statute. Administrative agencies have

only those powers which are legally conferred upon them by

statute. There must be some basis in a statute for the exer-

cise of jurisdiction or power assumed by an agency.

In Lewis v. Florida State Board of Health, 143 So.2d

867 (Fla. 1st D.C.A. 1962), the rule was established that

when a legislature provides that an administrative power shall

be exercised in a certain way, such prescription precludes the

exercise of the power in another way. In Lewis, the court

stated:
"* The rule-making power of the Board
is limited to the making of rules and
regulations necessary to the enforcement
of the act. It is incumbent upon an agency
relying on an act as authority for its regu-
lations to prescribe only such regulations
as come within the specifications laid down.
'When regulations are to be imposed in order
to promote health, welfare, safety and morals
it is necessary that exactions be fixed in
the ordinance with such certainty that they
not be left to the whim or caprice.of the
administrative agency. *~:**.' (Opinion at
875-876)

The hearing officer will note that, consistent with this

law, F.S. 373.171 [Rules and Regulations] prohibits the Dis-

trict from enacting inconsistent rules with statutory provisions

of Chapter 373 Fla.Stat.:

"(1) In order to obtain the most beneficial
use of the water resources of the state and
to protect the public health, safety, and
welfare and the interests of the water users
affected, local boards by action not inconsist-
ent with the other provisions of thEs law and
w lho u impairing property rights may:" (Emphasis
supplied)

The hearing officer will note that following the rule

under attack, there is a provision which entitles the Board to

grant an exception to the water crop rule:




8 -


_ __ _~~_~~ ___~~~~__ _~__~ -.. -- iilJ~'---


-. I .. ..: '.Z .




SI I II


"16J-2.11(5). The Board for good cause shown
may grant exceptions to the provisions of para-
graphs (2), (3), and (4) above when after con-
sideration of all data presented, including
economic information, it finds that it is con-
sistent with the public interest."

This provision is patently violative of the holding in

Lewis, supra. Not only does it violate the specific mandate

of F.S. 373.223 but the provision permits the Board to grant

an exception without specifying any legal standard which pro-

vides an applicant with notice as to what must be shown in

order to be granted an exception. In short, the principles

in Lewis are violated by leaving to the whim or caprice of

the administrative agency the granting of exceptions. This

rule grants to the District Board complete discretion to

grant or deny an exception. There are no objective standards

which establish criteria whereby all applicants will be treated

equally. This rule violates the established law of Florida

prohibiting such rules. Phillips Petroleum Co. v. Anderson,

74 So.2d 544 (Fla. 1954); City of West Palm Beach v. State

ex rel. Duffey, 158 Fla. 863, 30 So.2d 491 (1947); North Bay

Village v. Blackwell, 88 So.2d 524 (Fla. 1956); city of St.

Petersburg v. Schweitzer, 297 So.2d 74 (Fla. 2nd D.C. A. 1974).

In conclusion of this section, there are only three

criteria for obtaining the right to withdraw water under

F.S. 373.223. SWFW4D has enacted through its rules an addit-

ional standard establishing the amount of land ownership as

a criteria for water withdrawal. Such a rule enlarges the

power granted by the legislature in F.S. 373.223. The Dis-

trict can make no rule which is inconsistent with the specific

provisions established in F.S. 373.223. Thus, there is no

legislative authority to enact a rule establishing the water

crop concept as a condition for granting or denying a con-

sumptive use permit.


-9-




. 1 I II


The District has compounded this prohibition by permitting

itself within its unbridled discretion at its whim or caprice

the prerogative to grant exception to the water crop rule.

This policy is of no avail in establishing the validity of

Rule 16J-2.11(3); to the contrary, it mandates its removal.


III THE SECTIONS OF CHAPTER 373.FLA.STAT.
ADVANCED BY THE DISTRICT AS GRANTING AUTHORITY
FOR ENACTMENT OF THE WATER CROP RULE DO NOT
GRANT LEGISLATIVE AUTHORITY TO THE DISTRICT
TO MAKE LAND OWNERSHIP A CONDITION FOR
GRANTING CONSUMPTIVE USE PERMITS.

Initially, the District only would state it had authority

under Chapter 373 Fla.Stat. to enact the water crop rule.. Upon

motion to compel answers to interrogatories, the District was

forced to specify the statutes upon which it relies to validate

the water crop theory. In its answers the District employed a

S shotgun approach to the critical question in these proceedings.
No less than fifteen statutes or subsections are relied upon;

a tack not taken in any of the three A.P.A. Committee hearings.

(See A.P.A. records in evidence.). Each of the sections listed

will be addressed. All of the sections relied upon have the

major flaw of not directly or clearly specifying that the Dis-

trict may grant or deny a consumptive use permit upon the basis

of the amount of ownership of land owned, leased or controlled.

The principle of law which controls the District's contention

as to all of these sections is that if there is ANY REASONABLE

DOUBT AS TO THE LAWFUL EXISTENCE OF A PARTICULAR POWER THAT

IS BEING EXERCISED BY AN ADMINISTRATIVE AGENCY, IT MUST BE

RESOLVED AGAINST THE EXERCISE OF SUCH ASSUMED POWER. In 1 Fla.

Jur. 2d, Administrative Law, 5 37, pp. 584-585, it is stated:
"* Any reasonable doubt as to the lawful
existence of a particular power that is
being exercised by an administrative agency
must be resolved against the exercise thereof,
and the further exercise of the power should
be arrested." (Quotation at p. 585)


- 10 -


1 ~ '




1L i I I


For instance, in City of Cape Coral v. GAC Utilities, Inc.,

of Florida, 281 So.2d 493 (Fla. 1973), the Supreme Court held:

"All administrative bodies created by the
Legislature are not constitutional bodies,
but, rather, simply mere creatures of stat-
ute. This, of course, includes the Public
Service Commission. In Re Advisory Opinion
to the Governor. As such, the Commission's
powers, duties and authority are those and
only those that are conferred expressly or
impliedly by statute on the State. State
ex rel. Burr v. Jacksonville Terminal Co.
Any reasonable doubt as to the lawful exist-
ence of a particular power that is being
exercised by the Commission must be resolved
against the exercise thereof, Southern Armored
Car Service, Inc. v. Mason, and the further
exercise of the power should be arrested,
State ex rel. Burr v. Jacksonville.Terminal
Company. *"

This principle which appears in numerous Florida cases

applies to each of the sections cited by the District as granting

it legislative authority to promulgate the water crop rule. Not

only is there reasonable doubt concerning.their authority, there

is no doubt such authority was not granted by the legislature.

THE HEARING OFFICER WILL NOTE THAT IN THE FLORIDA ADMIN-

ISTRATIVE CODE, AUTHORITY FOR THE ENACTMENT OF THE ENTIRE

SECTION OF 16J-2.11 ENCOMPASSES MANY RULES AND STATES:

"General authority 373.044, 373.113, 373.149,
373.171, 373.216, 373.249 F.S. law implemented
373.223 F.S."

Only F.S. 373.223 and 373.171 are included in the list

contained in the interrogatories of SWFWMD. The invalidity of

the Water Management District's argument is established by this

fact alone.

A SECTION 373.223(1)(2)(3).

The District cites F.S. 373.223 in its entirety to sub-

stantiate the water crop rule. This is the section providing

criteria for consumptive use permits argued by Pinellas County

to the effect that there are only three criteria permitted in

determining the right of an applicant to consumptive use permits.


- 11 -


I -


,'- "*-:'- ; "




l,1 L .11A Jl. ,-I I I


Subsection (1) on its face cannot apply because it simply

does not tie land ownership to the amount of withdrawal. This

is the key provision. If it is not contained in subsection (1)

of this section of the Act, any other provision in any other

statute would of necessity not add any additional criteria

needed for obtaining a consumptive use permit. It must be in

subsection (1) or not at all.

Subsection (2) provides that water may be transported from

the property. This has nothing to do with tying land ownership

to amount of water withdrawal and demonstrates the fallacious-

ness of the approach taken by the District.

Subsection (3) deals with reserving from any permit water

for fish and wildlife:

"(3) The governing board of the Department
by regulation may reserve from use by permit
applicants water in such locations and quan-
tities, and for such seasons of the year, as
in its judgment may be required for the pro-
tection of fish and wildlife or the public
health and safety. Such reservations shall
be subject to periodic review and revision
in the light of changed conditions. However,
all presently existing legal uses ,of water
shall be protected so long as such use is not
contrary to the public interest."

Subsection (3) of F.S. 373.223 is implemented in 16J-2.11(7)

F.A.C., which provides:

"(7) The Board may reserve water from use by
permit in such locations and quantities and for
such seasons of the year, as in its judgment may
be required for the protection of fish and wild-
life or the public health and safety. Such re-
vision shall be subject to periodic review and
revision in the light of changed conditions.
However, all legal uses of water existing
January 1, 1975, will be protected so long as
such use is not contrary to the public interest."

How the District could claim that Subsection (3)ggrants

authority for enactment of 16J-2.11(3) when it has enacted the

very words of Subsection (3) in Section 7 of Section 16J-2.11

is unknown. Such a contention if it is actually being made is

ludicrous.


- 12 -


I




d I I


There is no provision in the District rules designating

certain areas where water may not he withdrawn for protection

of fish and wildlife. This section envisions designating

certain areas as water protected areas prior to filing of

permit applications. This subsection of F.S. 373.223 simply

does not apply.

B SECTION 373.219.

This section provides that the District may require con-

sumptive use permits and "impose such reasonable conditions

as are necessary to assure that such use is consistent with

the overall objectives of the District or Department and is

not harmful to the water resources of the area."

When an applicant applies for a consumptive use permit,

the District usually provides conditions which must be complied

with during water withdrawal. Examples of such conditions are

requiring of monitor wells at the site, requiring water levels

and withdrawals be reported, etc. A condition contained in a

permit is imposed after the permit is granted. It is not a

threshold criteria for granting or denying a permit. The thres-

hold criteria are provided in F.S. 373.223, not F.S. 373.219.

The word "condition" is a term of hydrological art and

does not relate to tying the amount of land to the amount of

water which may be withdrawn. Certainly there must be grave

doubt as to the application of this section. The section does

not reasonably imply authority of the District to enact a

water crop rule. Thus, it fails theexistence-of-reasonable-

doubt test.

C SECTION 373.171.

This subsection states in part:

"(1) In order to obtain the most beneficial
use of the water resources of the state and to
protect the public health, safety, and welfare
and the interests of the water users affected,
local boards by action not inconsistent with
the other provisions of this law and without
impairing property rights may:"


- 13 -


t ..- ~C_~-FC1--~IIII~bI




I ; I I I I l


The District is not permitted to enact a rule which is

inconsistent with other provisions of Chapter 373 or violates

property rights. The water crop rule violates both of these

prohibitions:

1. It is directly inconsistent with the criteria estab-

lished for obtaining a consumptive use permit set forth in

F.S. 373.223(1).

2. The right to withdraw water is a usafunctory property

right which cannot be impaired by the water crop theory.

Here is an analysis of each subsection of subparagraph

(1):

(a) This section deals with regulatory use of water, not
withdrawal of water, and does not apply.

(b) This section deals with use of water areas, not

withdrawal, and permits rotating uses if there is a water

shortage.

(c) The making of rules in the public interest does not

give District authority to limit water,withdrawal to land

ownership.

Subsection (2) provides:

"(2) In promulgating rules and regulations
and issuing orders under this law the local
board shall act with a view to full protection
of the existing rights to water in this state
insofar as is consistent with the purpose of
this law."

This subsection prohibits a rule adversely affecting

water rights. The water crop rule obviously affects adversely

water rights.

Subsection (3) prohibits a rule affecting existing users

and is immaterial to the issues in this case. Subsections (4)

and (5) are procedural in nature and also immaterial.

D SECTION 373.036(2).

This section deals with the State Water Use Plan. The

Department of Environmental Regulation, not SWFWMD, is directed

by the statute to develop a plan. In no way can water crop as


- 14 -


1- --- -L~-----~--- j ---- ---- -- --










applied to consumptive use permits be said to be the subject

of this section of Chapter 373 Fla.Stat.

E SECTION 373.023(1).

This subsection states:

"All waters in the state are subject to
regulation under the provisions of this
chapter unless specifically exempted by
general or special law."

Petitioner does not understand the rationale for claim

of support for statutory authority for the water crop under

this section. How can a department derive legislative auth-

ority to tie water to amount of land owned by this section???

F SECTION 373.016(1), (2)(a), (2)(b), (2)(c), (2)(e),
(2)(g).

The remainder of the legislative authority claimed by

SWFWMD is found is F.S. 373.016. These subsections will be

addressed. The subsections deal with announced policy of the

chapter and do not purport to delegate rule-making power. If

this argument were invalid, there would be no need. for specific

provisions in Chapter 373 Fla.Stat. dealing with rule-making

powers. Therefore, all subsections cited are not applicable.

(1) 373.016(1) states:

"The water in the state are among its basic
resources. Such waters have not heretofore
been conserved or fully controlled so as to
realize their full beneficial use."

The water crop restrains full development of the resources.

It does not maximize water use.

(2) 373.012(2)(a)(b)(c)(e)(g) states:

(2) It is further declared to be the policy
of the legislature:

(a) To provide for the management of water
and related land resources;

(b) To promote the conservation, develop-
ment, and proper utilization of surface and
ground water;

(c) To develop and regulate dams, impound-
ments, reservoirs, and other works and to
provide water storage for beneficial purposes;



15 -


Ir _
')~ -










(e) To preserve natural resources, fish and
wildlife;



(g) Otherwise to promote the health, safety,
and general welfare of the people.of this state.

All these sections on their face do not remotely suggest

to the reader that the legislature is requiring a management

district to allocate water on the basis of amount of land owned.

Reasonable interpretation cannot sanction water crop under these

subsections.

G CONCLUSION

None of the sections cited by respondent SWFWMD substantiate

the water crop restriction of consumptive use permits. At the

least, these subsections by a fair reading create substantial

doubt as to the validity of SWFWMD's position. Therefore,

applying Florida's law requiring all reasonable doubt to be exer-

cised against rule validation, the water crop rule cannot be

validated through a strained interpretation of the cited sec-

tions.


D THE ADMINISTRATIVE PROCEDURES COMMITTEE OF
THE FLORIDA LEGISLATURE HAS DETERMINED THE
WATER CROP RULE TO BE INVALID WITHOUT
LEGISLATIVE AUTHORITY.

The records of the Joint A.P.A. Committee clearly indicate

that the Committee on three occasions found the water crop rule

to be enacted without legislative authority. On February 9,

1976, the Committee voted 16J-2.11(3) to be invalid as not sup-

ported by legislative authority. SWFWMD tried to revise the

rule by use of semantics. On June 2, 1976, the Committee again

unanimously held the attempted amendment to be outside the auth-

ority of Chapter 373 Fla.Stat. Senator Ware commented that the

Legislature did not consider the water crop concept in enacting

Chapter 373 Fla.Stat.:


- 16 -


L__~ ___ I 1 ____ __











Senator Ware:




















Senator Lewis:


(Inaudible) But I think we ought to be
considering this too. My concern is was
this the legislative intent when we did it.
In fact this reminds me of the DER rules on
changing the wetlands to the vegetation in-
stead of the high water level. This was
something the legislature didn't consider.
We objected to it and the DER proposed
through a bill that is probably going to
pass this year. And I think that is the way
we ought to do it. And so before we impose
a restrictive rule throughout the state of
Florida which probably would go if it goes
in one water management district. I want
to know what it is going to cost Broward
County, I want to know it is going to cost
Pinellas County, and let the legislature
handle this thing. Because this wasn't
something that we considered. It wasn't
brought up when we passed this legislation.
The first time I heard about it was when the
hearings (inaudible) SWFWMD.

Well, then what you're saying is that in fact
that we could save the legislature a lot of
trouble as far as the water crop theory as
such, we will object.


Senator Ware: That is what my motion is, yes sir.

Senator Lewis: It is a substantive motion, Mr. Chairman.
Well, it looks like I'll have to get defeated
again.


Rep. Riser:

Rep. Hector:

Senator Ware:



Mr. Webb:







Senator Ware:

Mr. Webb:

Senator Ware:

Mr. Webb:

Rep. Hector:


(Inaudible)

Do you want to restate your motion, then,
Senator.

Now, I am concerned a little about the pro-
cedure that we are having here. We filed an
objection to a rule. .an old rule. And
there has been no new adopted. .

Well, that is not exactly right, because they
are proposing it as an amendment to the old
rule and what, we are not, well actually I
guess what we are saying is that we are bring-
ing to you the amendment as a proposed amend-
ment to an old rule. And we issued...in other
words we are saying that we don't have an
objection to the proposed amendment.

Well, Senator Lewis has (inaudible) that we
do object to the proposed amendment.

So, as a motion would be...

Well, I go along with Senator Lewis that we
object to the proposed amendment.

Right, that would be the proper motion.

When would you want to meet again on this.


- 17 -











Mr. Blain:


Are you passing a motion that you object to
the proposal, or are you wanting to keep it
open until we can adequately present it to
you.


Senator Ware: No, its a motion.


Senator Lewis:

Mr. Blain:


Rep. Kiser:

Mr. Webb:










Senator Ware:


Rep. Hector:


A motion to object, on the basis of the water
crop that is in the law.

Then, Mr. Chairman, what it leaves us with is
the old rule still in effect.

True, I recognize that, but that is what
happens.

But, you have objected to the old rule, and
they have not responded or changed the bld
rule, so it leaves the old rule but as ob-
jected to previously. Which it amounts to,
in fact, the old rule having been objected
to this is your attempt to modify to meet
the objection, and they are, in fact, if
they do vote to object to these that modify
it, then there would be the old rule or the
effective rule and its attempted modification
would carry an objection.

We would hope that since you're meeting that
perhaps this could be considered in your
meeting.

All those in favor of the motion say aye,
those opposed. (All responded aye)


Senator Lewis: Sorry about that."

Again, SWFWMD tried to uphold the concept by changing the

language of the rule. Again, the Committee rejected the attempt

on August 24, 1976.

Initially, the Committee's specific objection to the rule

was that:


"SPECIFIC OBJECTIONS:

Rule 16J-2.11(3) exceeds the authority granted
to Southwest Florida Water Management District
under 373.223, F.S., insofar as it attempts
to restrict the reasonable beneficial use stand-
ard as defined in S 373.019(5), F.S., to 1,000
gallons per day per acre on land owned, leased or
otherwise controlled by the applicant.

373.019 Definitions.--When appearing in
this chapter or in any rule, regulation,
or order adopted pursuant thereto, the
following words shall, unless the context
clearly indicates otherwise, mean:
*


- 18 -











(5) 'Reasonable-beneficial use' means the
use of water in such quantity as is necessary
for economic and efficient utilization for a
purpose and in a manner which is both reason-
able and consistent with the public interest.


Under this rule, if a land owner wishes to withdraw
more than 1,000 gallons per day per acre on land
owned, leased or otherwise controlled by him, the
issuance of the permit will be denied unless the
Board granted an exception to the rule under sub-
section (5) of the rule for good cause shown.

The legislature of Florida did not delegate to the
management district the authority in F.S. 373.042
to set water withdrawal levels according to the
amount of land an individual owned. Florida law
now permits any landowner to withdraw all the water
from his land he can reasonably and beneficially
use, provided that he does not injure adjacent
lands. This principle of law, the common law con-
cerning water and withdrawal, and the right of
the Florida legislature to determine what law should
govern water withdrawal has been ignored by the
promulgation of the water crop theory contained in
the district's rule.16J-2.11(3).

It is respectfully submitted that the Legislature
in enacting Chapter 373, F.S., never intended to
limit consumptive use withdrawal of water to 1,000
gallons per day per acre, nor did it intend for the
criteria to be used as a condition for the granting
of a consumptive use permit under Part II of that
chapter."

In Florida Administrative Commission v. bpistrict Court of

Appeal, First District, 351 So.2d 712 (Fla. 1977), opinion at

715, our Supreme Court acknowledged the effect of the A.P.A.

Committee upon proposed rules. When the Committee objects to

a rule, an agency must respond to the objection. Here, SWFWMD

has not responded at all to such an objection. When the A.P.A.

Committee objected to the water crop rule, no specific statutory

prohibition occurred because 120.54(10)(a) Fla.Stat. 1975 (now
120.545 Fla.Stat. 1979) did not exist in its present form.

The Florida Administrative Commission case, supra, does indicate

that the agency is required to take action when an objection is
filed. Since the objection SWFWMD has done nothing but thumb its

nose at three unanimous decisions by the Committee. Enforcement
is still advocated -- the rule should be declared invalid.

19 -











E THE WATER CROP RULE IS INVALIDATED BY TEQUESTA

In Village of Tequesta v. Jupiter Inlet Corporation, 371

So.2d 663 (Fla. 1979), Exhibit A to this memorandum, Jupiter

sued Tequesta for inverse condemnation because of water with-

drawn by Tequesta from underneath Jupiter's adjoining land.

Counsel for Pinellas County was amicus curiae in this case.

The Court ruled with Pinellas County's position.

Tequesta operated a municipal wellfield next to Jupiter's

property. Tequesta had obtained a permit from the Southern

Water Management District to withdraw all available water from

the Biscayne Aquifer which is the shallow aquifer overlying the

deep well aquifer along the east coast of Florida. Water from

the Biscayne Aquifer is more potable than that taken from the

deep well aquifer. When Jupiter wanted to develop its land, it

could not obtain a water supply from the Biscayne Aquifer because

it was all taken by Tequesta. Jupiter had to go to the more

expensive deep well aquifer to obtain water. Jupiter claimed

it owned the water underneath its land which Tequesta had taken

and brought suit for inverse condemnation. summary judgment was

awarded against Jupiter and it appealed. The Fourth District

Court reversed, holding the theory of inverse condemnation viable

in Jupiter Inlet Corporation v. Village of Tequesta, 349 So.2d

216 (Fla. 4th D.C. A. 1978). The question was certified to the

Supreme Court to quash the Fourth District's decision holding

that there is no ownership right in the water below one's land:
"It is incumbent upon Jupiter to show, not
only a taking, but also that a private prop-
erty right has been destroyed by governmental
action. Jupiter did not have a constitution-
ally protected right in the water beneath its
property. In the cases cited by Jupiter, the
courts supported compensation for the taking
of a use which was existent and of which a party
was deprived. Jupiter seeks to be compensated
for a use which it had never perfected to the
point that it was in existence. Jupiter had a
right to use the water, but the use itself is
not existent until this right is exercised."


This aquifer does not exist in SWFWMD's district.


- 20 -


,i 11












"The State of Florida operates under an admin-
istrative system of water management pursuant
to the terms of the Florida Water Resources Act.
Ch. 373, Fla.Stat. (1972). The law prior.to the
Florida Water Resources Act did not allow owner-
ship in the corpus of the water, but only in the
use of it. Even then, the use was bounded by
the perimeters of reasonable and beneficial use.
Legislation limiting the right to the use of
the water is in itself no more objectionable
than legislation forbidding the use of property
for certain purposes by zoning regulations. *"
*

"The Water Resources Act of 1972 recognizes
a right to use water under the common law as
separate from the right to use water under a
permit granted pursuant to the act. This is
done by a provision concerning the termination
of the common-law right and a transitional pro-
cedure. The holder of such a common-law water-
use right was given two years to convert the
common-law water right into a permit water
right. 373.226(3) Fla.Stat. (1973). In
order to qualify for the initial permit under
section 373.225(2) Florida Statutes (1973), the
right must have been exercised prior to the im-
plementation of the Florida Water Resources Act
by a water management district with geographical
jurisdiction in that area. Otherwise the right
is abandoned and extinguished requiring a new
application for a permit. Tequesta had acquired
the permit and Jupiter was merely a proposed
.user. The Florida Water Resources Act makes no
provision for the continuation of an unexercised
common-law right to use water. Jupiter had per-
fected no legal interest to the use of the water
beneath its land which would support.an action in
inverse condemnation." (Emphasis supplied)

Therefore, the law of Florida has been clarified to the

extent that just because one owns land, there is no right to

the water beneath it. This principle prohibits a rule estab-

lishing the water crop theory. The theory banks water by

allocating water on the basis of land ownership. Strictly

applied, only one thousand gallons per acre is permitted. If

other land holders do not wish to use or withdraw their water

resources, the water is therefore banked and not used and pre-

served to them since they are entitled to their allocated share

at any time in the future they wish to use it simply because they

own a certain quantity of land. Tequesta directly holds that

such landowners are entitled to none of the water unless they


- 21 -


-ll-.--L---- I











get a permit for its withdrawal; first come, first served, is the

watchword -- not water reserved based upon amount of land owned.

The water crop concept cannot stand in the face of the Tequesta

decision. Chapter 373.Fla.Stat. has been interpreted as elim-

inating the common-law right to water under one's land. Rule

16J-2.11(3) has been invalidated by Tequesta.


F CONCLUSION
Pinellas County has shown the hearing officer conclusive

legal proof that the water crop rule has been enactediwithout

legislative authority. The A.P.A. Committee's decision supports

this view. Its determination should be given great weight.

This District has impermissibly added a fourth ground to

Section 373.223(1) Fla.Stat. which establishes standards which

must be met before an applicant can apply for a consumptive use

permit. The Management District cannot show beyond and to the

exclusion of every reasonable doubt that it has authority to

tie land ownership to the amount of water withdrawal. The

foundation of this theory must rest upon the common-law right

to the water itself under one's land. The Supreme Court in

Tequesta interpreted Chapter 373 Fla.Stat. as abrogating this

common-law right and with it any legal argument that the water

crop theory is supported by authority of Chapter 373 Fla.Stat.

THE RULE MUST BE INVALIDATED.

Respectfully submitted,


J8 Central vAve '
t. Petersburg, 33711
(813) 321-3273
Special Counsel for Pinellas
County on Water Matters


- 22 -












CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing Memorandum

of Law has been furnished by hand delivery to JAY T. AHERN,

ESQ., Attorney for Southwest Florida Water Management District,

5060 U.S. 41 South, Brooksville, Florida 33512; L. M. BLAIN,

ESQ., General Counsel for Southwest Florida Water Management

District, 202 Madison Street, Tampa, Florida 33602; KENNETH E.

APGAR, ESQ., 403 North Morgan Street, Suite 102, Tampa, Florida

33602; ROBERT BRUCE SNOW, ESQ., County Attorney for Hernando

County, P.O. Box 2060, Brooksville, Florida 33512; GERALD A.

FIGURSKI, ESQ., County Attorney for Pasco County, 4025 Moon

Lake Road, New Port Richey, Florida 33552; JEANNETTE M. HAAG,

ESQ., Attorney for Withlacoochee Regional Water Supply Authority,

1900 West Main Street, Inverness, Florida 32650; RANDALL N.

THORNTON, ESQ,, P. O. Box 58, Lake Panasoffkee, Florida 33538;

Attorney for Sumpter County Recreation and Water Conservation

and Control Authority and Sumpter County, Florida; JOHN F.

WENDEL, ESQ., of Wendel, Broderick, Chritton & Klepetko, Chartered,

P.O. Box 5378, Lakeland, Florida 33803, Attorney for Citrus

County; and CARL R. LINN, ESQ., 214 Municipal Building, St.

Petersburg, Florida 33701, Attorney for City of St. Petersburg,

this 21st day of January, 1980.


- 23 -


V 1. 1- .-- --I-






















VILLAGE OF TEQUESTA v. JUPITER INLET CORP.
CaeM. F8.n SOM 113


The VILLAGE OF TEQUESTA, etc.,
et al., Petitioners,

JUPITER INLET CORPORATION,
S etc., Respondent.
No. 52223.
Supreme Court of Florida. ,
May 3, 1979.
Rehearing Denied June 26, 1979.


Owner instituted ction for inverse
condemnation and injunction on .theory
that, due to depletion by village of shallow-
water aquifer beneath its property, owner
was effectively deprived of beneficial use of
its property rights in such aquifer. The
Circuit Court, Palm Beach County, Lewis
Kapner,, J., granted summary judgment in
favor of village, and owner appealed. The
District Court of Appeal, 349 So.2d 216,
reversed and certified question whether
municipality could be held responsible
-through inverse condemnation for taking of
underground shallow aquifer water to ex-
tent that owner was deprived of beneficial
use of aquifer. The Supreme Court, Ad-
kins, J, held that: (1) diversion of water
from shallow-water aquifer was not a "tak-
ing" or appropriation of property for public
use requiring condemnation proceeding; (2)
owner did not have constitutionally protect-
ed property right in water, requiring com-
pensation for taking of water when used
for a public purpose; (3) owner's only reme-
dy was through proper application for per-
mit under Water Resources Act, and (4)
village could not be held responsible for
damages for inverse condemnation.
Decision of District Court of Appeal.
quashed and cause remanded with instruc-
tions.

1. Waters and Water Courses s=101
Prior to adoption of Water Resources
Act, Florida followed reasonable use rule;
that is, a landowner, who in the course of
using his own land removed percolating


water to the injury of his neighbor had to
be making a reasonable exercise of his pro-
prietary rights, i. e., such an exercise as
might be reasonably necessary for some
useful or beneficial purpose, generally relat-
ing to land in which waters were found.
West's F.S.A. 873.012 et seq.
2. Waters and Water Courses -101
Reasonable use rule afforded landown-
er no ownership in waters blow land, as
right of owner to ground water underlying
his land was to use of water and not to
water itself.
& Waters and Water Courses c*=101
Percolating water, which is migratory
in nature and is part of land only so long as
it is in it, belongs to overlying owner in
limited sense that he has unqualified right
to capture and control it in reasonable way
with immunity from liability to his neigh-
bors for doing so but, if it flows or perco-
lates from his land, he loses all right and
interest in it the instant it passes beyond
property boundaries.
4. Waters and Water Courses =101
Right of owner to ground water under-
lying land is to usufruct of water and not to
water itself; ownership of land does not
carry with it any ownership of vested rights
to underlying ground water not actually
diverted and applied to beneficial use.
5. Eminent Domain =>84
Right to use water does not carry with
it ownership of water lying under land, and
thus, although "right of user" may be pro-
tected by injunction or regulated by law,
right of user is not "private property" re-
quiring condemnation proceedings unless.
property has been rendered useless by di-
version of water for certain purposes; over-
ruling Vails v. Arnold Industries, Inc., et
al., 328 So.2d 471.
6. Eminent Domain e=-2(1)
When governmental action is such that
it does not encroach on private property but
merely impairs its use by owner, action does
not constitute a "taking" but is merely con-
sequential damage and owner is not enti-


EXHIBIT A


Fla. 663


r;
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;
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i


:S
1
1


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il


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S 371 SOUTHERN REPORTER, 2d SERIES


tied to compensation. West's F.S.A.Const.
art. 10, 6.
7. Eminent Domain =-270
If damage suffered by owner is equiva-
lent of a taking or an appropriation of
property for public use, then Constitution
recognizes owner's right to compel compen-
sation; on the other hand, if damage suf-
fered. is not taking or appropriation within
limits of organic .law, then damages suf-
fered are damnum abeque injuria and dom-
pensation therefore by the public agency
cannot be compelled. West's FS.A.Const.
art. 10, 6.
& Waters and Water Courses 0=-144
"Reasonable use" rule, insofar as pro-
prietary beneficial use. of water is con-
cerned, has no application where court is
concerned with proprietary use of land, and
in which water is only incidentally affected.
9. Eminent Domain ="84, 270
Where village utilized all available per-
colating water of shallow-well aquifer in
area of owner's land, owner decided to be-
come competing user, which desire was
thwarted because village had utilized all
water that could be safely withdrawn from
aquifer, and owner then had to go deeper to
Floridan aquifer to obtain its water, owner,
which had right to use water but which had
never perfected use to point that it was in
existence, was not entitled to compensation
on inverse condemnation theory for "tak-
ing" or appropriation of property for public
use as result of village's diversion of water
from shallow-water aquifer. West's F.S.A.
Const. art. 10, 6.
10. Eminent Domain =84
Landowner does not have constitution-
ally protected property right in water be-
neath property, requiring compensation for
taking of water when used for a public
purpose. West's F.S.A.Const. art. 10, 6.
11 Waters and Water Courses c=144
Just as legislation may limit use of
property for certain purposes by zoning, so
right to use of water may also be limited or
regulated. West's F.S.A. 373.012 et seq.


12. Waters and Water Courses *=101
Owner, in serving a 120-unit condomin-
ium, did not qualify as individual user and
thus, in order to draw water from beneath
its property, it had to secure a permit under
the Water Resources Act, which now con-
trols use of water, and without a permit
owner had no property right to use of water
beneath its land for deprivation of which it
had to be compensated through inverse con-
demnation. West's F.S.A.- 373.016, 87.-
023(1), 78.219(1). -
13. Eminent Domain e266
Where village: which had utilized all
available percolating water of shallow-well
aquifer in area of owner's land, had ac-
quired permit under Water Resources Act
and owner was merely a proposed user that.
had not exercised its common-law water
right, owner had no perfected legal interest
to use of water beneath ,its land which
would support action in inverse condemna-
tion against village. West's F.S.A. 373.-
226(2, 3).
14. Eminent Domain =3
Statutory prohibition of use of eminent
domain in one situation cannot be used as
authority for its use by implication in an-
other, as statute must be strictly construed.
West's F.S.A. 373.1961(7).

SJohn C. Randolph of Johnston,. Sasser &
Randolph, West Palm Beach, for betition-
era.
SMarjorie D. Gadarian of Jones, Paine &
Foster, West Palm Beach, for respondent.
Robert Grafton, Thomas J. Schwartz,
John H. Wheeler and Stephen A. Walker,
West Palm Beach, amicus curiae for South
Florida Water Management District.
John T. Allen, Jr., St. Petersburg, amicus
curiae for Pinellas County.
Louis de la Parte, Jr., Tampa, amicus
curiae for West Coast Regional Water Sup-
ply Authority.
Jacob D. Varn, of Carlton, Fields, Ward,
Emmanuel, Smith & Cutler, Tampa, amicus
curiae for Pasco County, S. C. Bexley,.Jr.,
L. S. B. Corporation, and Angeline Corpora-
tion.


13


I1






I


64 Fla.
























VILLAGE OF TEQUESTA v. JUPITER INLET CORP.
ct.Fb ia.l71 s&2dM S


min-
and
oath
nder
con-
:rmit
after
ch it
con- ."-;
373.-


d all
-well
A e
sAct '
that



emna-
-373.- -


ninent









wate &
sad as
in an-
strued.


isser & S
,-tition- -,'

:inie & ":'
,ndent. -
hwartz,
Walker,
SSouth

amicuss

amicus '
icr Sup-

., Ward,
amicuss '..
dey, Jr.,
Corpora-


John F. Wendel, of Wendel, I
Chritton, Lakeland, amicus curi
rus County.

ADKINS, Justice.
Pursuaht to article V, secti
Florida Constitution, the Four
Court of Appeal in Jupiter Inl
Village of Tequesta, 349 So.2d 2
DCA 1971) certified to this Cour
ter of great public interest thi
question:
Can a municipality be held
-through inverse condemnation
ing, from private ownership
purposes, of underground shal
*iater, to the extent that th
deprived of the beneficial use
fer?
Jupiter Inlet Corporation, pLai
trial court, will be referred to
and The Village of Tequesta, de
the trial court, will be referred
quest.
Jupiter owned property near T
which it planned to build a 120-
minium project, "Broadview." I
ty was located approximately
from Tequesta's well field nu
This well field contained seven w
ty-five to ninety feet deep, whi
in excess of a million gallons of
from the shallow water aquifel
Tequesta residents with water.
tively inexpensive to withdraw
the shallow-water aquifer.
As a result of the excessive
water withdrawn by Tequesta
shallow-water aquifer, the fresh
ply was endangered and salt
the intercoastal waterway intrude
shallow-water aquifer. There w
ny from a hydrologist that salt
sion was caused by a reduction ii
levels in the interior to a point
that the fresh-water level could
stand the pressure of the saltwa
the intercoastal. The water wh
ta withdrew came from the sha
aquifer beneath its property. B
quest would not supply Jupite


Iroderick & was necessary for Jupiter to secure a spe-
ae, for Cit- cial exception from the county. Tequesta
opposed the permit application and it was
denied. Jupiter was not permitted to drill
wells to withdraw water from the shallow,
ion 3(bX3), water aquifer because of the endangered
th District condition of the aquifer due to the excessive
et Cop. v. withdrawals made by Tequesta.
16(Fla. 4th The only means by .which Jupiter could
t as a mat- supply water to its property was to drill a
e following well to the Floridan aquifer located 1200
feet below the surface, at a substantially
responsible greater cost.
for a tak- Jupiter instituted an action for inverse
for public condemnation and injunction due to the ex-
low aquifer cessive pumping by Tequesta. The theory
e owner is of Jupiter's action was that due to depletion
of the aqui- by Tequesta of the shallow-water aquifer
Beneath its property Jupiter was effectively
ntiff in the deprived of the beneficial use of its proper-
as Jupiter, ty rights in the shallow-water aquifer.
defendant in Considering any factual conflicts in the
I to as Te- light most favorable to Jupiter, the trial
judge granted a summary judgment in fa-
requesta on vor of the Village of Tequesta. Viewing
unit condo- the facts in the same light as did the trial
Ihis proper- court, the district court of appeal said:
1200 feet The owner has been deprived by govern-
mber four. ment action of the use and enjoyment of
rells, seven- what was his, and so through a suit in
ich pumped inverse condemnation he can compel the
water a day government to pay for what it has taken.
r to supply 349 So.2d at 217. The district court of
It was rela- appeal then certified the above question to
water from this Court for consideration.
The following hydrological statements
amount of are fully supported by F. Maloney, S. Plag-
from the er, and F. Baldwin, Water Law and Admin-
-water sup- istration, page 141 (1968) (hereinafter re-
water from ferred to as Water Law) as well as the.
led into the discussion in City of St. Petersburg v.
,as testimo- Southwest Florida Water Management Dis-
rater intru- trict, 355 So.2d 796 (Fla. 2d DCA 1977).
n the water Water-bearing zones under the earth's
low enough surface capable of receiving, storing, and
1 not with- transmitting water are called aquifers.
ter level in Most aquifers in Florida are cavernous
ich Teques- limestone or sand and shale beds. Aquifers
illow-water are separated by relatively impervious lay-
lecause Te- ers of shales and clays which are called
r water, it aquicludes.


Fla. 665


V-























371 SOUTHERN REPORTER, 2d SERIES ;


There are two basic types of acquifers.
One is the unconfined aquifer associated
with the water table. It is free to rise and
fall with the amount of rainfall and other
surface-water influences such as rivers,
lakes, irrigation, etc. Near the coast the
water level in this aquifer fluctuates with
the tidal action. It is referred to as the
ground-water aquifer, water-table aquifer,
and the shallow aquifer.
The other type of aquifer is an artesian
. aquifer. Water in this aquifer is confined
within aquicludes. Water will either not
pass through these aquicludes or will do so
at a much slower rate than it can travel
within the aquifer itself. Water enters
artesian aquifers slowly through the sur-
rounding aquiclude by virtue of fissures,
sinkholes, or other openings in the aqui-
dude. Water in the artesian aquifer is
under pressure. One artesian aquifer is
known as the Floridan aquifer. It underlies
most of the state and furnishes most of the
well-water supplies of the state.
In an early decision, Tampa Watchworks
Co. v. Cline, 87 Fla. 586, 20 So. 780 (1896),
we made a classification of water passing
over or through'lands as follows:
(1) In respect to surface streams which
flow in a permanent, distinct, and well-
defined channel from the lands of one
owner to those of another; (2) in respect
to surface waters, however originating,
which, without any distinct or well-
defined channel, by attraction, gravita-
tion, or otherwise, are shed and pass from
the lands of one proprietor to those of
another; (3) subterranean streams which
flow in a permanent, distinct, and well-
defined channel from the lands of one to
those of another proprietor; (4) subsur-
face waters which, without any perma-
nent, distinct, or definite channel, perco-
late in veins or filter from the lands of
one owner to those of another.
20 So. at 782.
Although we classified water as if its
different physical states were separate and
distinct, we recognize that these classes are
interrelated parts of the hydrologic cycle.
We are primarily concerned in this case


with the rights of landowners in the shal-
low-water aquifer.

[1] Ancient law gave no special consid-
eration to ground water, treating all water
like the air, the sea, and wild animals, as
the property of no one or the property of
everyone. Trelease, Government Owner-
ship and Trusteeship of Water, 45 Calif
Law Review 638, 640 (1957). Technological
ignorance about the existence, origin, move-
ment and course of percolating ground
waters resulted in the so-called "English
rule" which essentially allowed a land own-
er to take or interfere with percolating
waters underlying his.land, irrespective, of
any effects his use might have on ground
water underlying his neighbors' lands. This
doctrine, first enunciated in 1843 in an Eng-
lish case, Acton v. Blundell, 152 Eng.Rep.
1235 (1843) was based upon the maxim, "To
whomsoever the soil belongs, he owns also"
to the sky and to the depths." See Water
Law at 155. With the growth of hydrologi-
cal capabilities in pumping technology, the
English rule was repudiated in most Ameri-
can, jurisdictions. See Annots. 29 A.L.R2d
1354, 1361-65 (1953); 109 A.L.R. 895, 399-
403 (1987); 55 A.L.R. 1385, 1398-1408
(1928), and cases cited therein. The so-
called "American," or "reasonable use," rule
rejected the "to the sky and to the depths"
notion for another maxim, "use your own
property so as not to injure that of anoth-
er." See Koch v. Wick, 87 So.2d 47 (Fla.
1956); Cason v. Florida Power Co., 74 Fla
1, 76 So. 585 (Fla.1917); Bassett v. Sals-
bury Manufacturing Co., 43 N.H. 569 (1862).
The reasonable use rule adopted by most
Eastern states, including Florida, was stat-
ed by one court as follows:
[A] landowner, who, in the course4of us-
ing his own land, obstructs, diverts, or
removes percolating water to the injury
of his neighbor must be [mak-
ing] a reasonable exercise of his proprie-
tary right, i. e., such an exercise as may
be reasonably necessary for some useful
or beneficial purpose, generally relating
to the land in which the waters are
found.


Fink

1968

Coui
the
take
we
-ow
wat

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VILLAGE OF TEQUESTA v. JUPITER INLET CORP.
CIe as FIa., 371 S&M


r



f.
at
e-
id
sh
nn-
ng
of
ind
his
ng-
.ep.
.To
also
,iter
ogi-
the
ieri-
R.2d
399-
11408
so-
rule
pths"
own
noth-

SFla.
Salis-
18I2).
most
slat-

of us-
rts, or
injury
[mak-
'roprie-
as may
useful
relating
vrs are


Fla. 667


Finley et ux. v. Teeter Stone, Inc, 251 Md.
428, 435, 248 A.2d 106, 111-12 (Md.App.
1968). See also Water Law at 158.
In applying the reasonable use rule this
Court has not given definite answers as to.
the actual amount of water that may be
taken by overlying land owners, nor have
we considered the meaning of the term
"ownership" as applied to percolating
water.
In 98 CJ.S. Waters section 90, page 765
(195), the rule is stated thus:
There can be no ownershi in seeping and
percolating waters in the absolute sense,
because of their wandering and migrato-
ry character, unless and until they are
reduced to the actual possession and con-
trol of the person claiming them. Their
ownership consists in the right of the
owner of the land to capture, control, and
possess them, to prevent their escape, if
he can do so, from his land, and to pre-
vent strangers from trespassing on his
land in an effort to capture, control, or
possess them. If percolating waters es-
cape naturally to other lands, the title of
the former owner is gone; while a land-
owner may prevent the. escape of such
waters from his land, if he can do so, yet
he has no right to follow them into the
lands of another and there capture, con-
trol, or reduce them to possession. [Foot-
notes omitted].
[2] The comnon-law concept of absolute
ownership of percolating water while it is in
one's land gave him the right to abstract
from his land all the water he could find
there. On the other hand, it afforded him
no protection against the acts'of his neigh-
bors who, by pumping on their own land,
managed to draw out of his land all the
water it contained. Thus the term "owner-
ship" as applied to percolating water never
meant that the overlying owner had a prop-
erty or proprietary interest in the corpus of
the water itself.
[3] This necessarily follows from the
physical characteristic of percolating water.
It is migratory in nature and is a part of
the land only so long as it is in it. There is
a right of use as it passes, but there is no


ownership in the absolute sense. It belongs
to the overlying owner in a limited sense,
that is, he has the unqualified right to
capture and control it in a reasonable way
with an immunity from liability to his
neighbors for doing so. When it is reduced
to his possession and control, it ceases to be
percolating water and becomes his personal
property. But if it flows or percolates from
his land; he loses all right and interest in it
the instant it passes beyond the boundaries
of his property, and when it enters the land.
of his neigfibor it belongs to him in the
same limited way. "

[4] The:right of the owner to ground
water underlying his land is to the usufruct
of the water and not. to the water itself.
The ownership of the land does not carry
with it any ownership of vested rights to
underlying ground water not actually di-
verted and applied to beneficial use.
In Valls v. Arnold Industries,' nc. et a,
328 So.2d 471, 473 (Fla. 2d DCA 1976) the
court said:
Water, oil, minerals and other substances
of value which lie beneath the surface are
valuable property fights which cannot be
divested without due process of law and
the payment of just compensation.
This case involved a post-trial apportion-
ment award in condemnation as between
fee-title owners and owners of reserved
mineral rights. In order to effect a pay-
ment to the holders of the mineral rights, it
was necessary for the court to find that
these mineral rights were property rights
and therefore subject to condemnation.
The court relied upon Copello v. Hart, 293
So.2d 734 (Fla. 1st DCA 1974) and Dickin-
son et al. v. Davis et a., 224 So.2d 262
(Fla.1969). These cases held that minerals,
gas, and oil are separate properties from
the surface and may be conveyed and taxed
separately. Neither case referred to prop-
erty rights in water.
[5] We overrule the dicta in Valls, su-
pra, that water beneath the surface is a
private property right which cannot be di-.
vested under any circumstances without
due process of law and the payment of just


4




A.2i

A












2a
r


11. :


I A .






















371 SOUTHERN REPORTER, 2d SERIES


compensation. The right to use water does
not carry with it ownership of the water
lying under the land. Of course, "property"
in its strict legal sense "means that domin-
ion or indefinite right of user and disposi-
tion which one may lawfully exercise over
particular things or objects." Tatum
Brothers etc. v. Watson, 92 Fla. 278,109 So.
628, 626 (1926). This "right of user" may
be protected by injunction, Koch r. Wick,
supra, or regulated by law, Pounds v. Dar-
in& 75 Fla. 125,77 So. 666 (1918); Broward
v..Mabry, 58 Fla. 898, 50 So 826 (1909), but
the right of user is not considered "private
property" requiring condemnation proceed-
ings unless the property has been rendered
useless for certain purposes. For example;-
in Kendry et aL v. State Road Department,
213 So2d 23 (Fla. 4th DCA 1968), the state
agency caused such flooding on the owner's
property that it was rendered useless for
residential purposes. This was a "taking."
In the case sub judice, Jupiter was only
subjected to the consequential damages in-
curred when it was required to draw water
from the Floridan aquifer instead of the
shallow-water aquifer. It still had a "right
of user." .
There is a distinction when this right of
user as to water has been invaded by cir-
cumstances showing an intentional invasion
in an unreasonable manner or an uninten-
tional invasion when the conduct was negli-
gent, reckless, or ultrahazardous, resulting
in a destruction of the right of user as to
land.
For example, in Labruzzo et ux. v. Atlan-
tic Dredging & Const. Co. etc., 54 So.2d 673
(Fla.1951), plaintiff sued for damages for
the interruption and diversion of the natu-
ral flow of the underground waters which
fed plaintiffs spring. The defendant con-
tended that there was-no indication of the
existence of a well-defined subterranean
stream feeding plaintiffs spring. There-
fore, the source of the spring should have
been considered percolating waters, the
flow of which had been interrupted by the
defendant in the lawful and reasonable use
of its property. Under the reasonable use
rule, defendant contended that plaintiff had


no cause of action. The trial judge agreed
and, upon appeal, this Court reversed, say-
ing:
At the outset, it should be noted that we
are not here dealing with a problem in-
volving a proprietary competition over
the water itself-that is to say, there is
no conflict here between the respective
rights of persons to make competing pro-
prietary uses of subterranean waters to
which they both have access. In such
cases, the present trend among the courts
of this country is away from the old
common-law rule of unqualified and abso-
lute right of a landowner to intercept and
draw from his land the percolating
waters therein; and the latter cases hold
that the right of a landowner to subterra-
nean waters percolating through his own
land and his neighbor's lands is limited to
a reasonable and beneficial use of such
waters.
In the instant case, however, we are con-,
cerned with an interference with plain-
tiffs' use'of the spring on their land,
caused by conduct of the defendant not
involving a competing use of water and
in which the effect on the subterranean
water is only incidental to the defend-
ant's use of its land. Obviously, then, the
rule of "reasonable use," as engrafted
upon the old common-law rule of absolute
and unqualified ownership of percolating
waters, insofar as the proprietary benefi-
cial use of the water is concerned, has no
application here where we are concerned
with the proprietary use of land, and in
which the water is only incidentally af-
fected. Under such circumstances, even
at common law, a person was subject to
liability for interference with another's
use of water, either for (1) an intentional
invasion when his conduct was unreason-
able under the circumstances of the par-
ticular case, or (2) an unintentional inva-
sion when his conduct was negligent,
reckless or ultrahazardous. Restatement
of Torts, Vol. IV, Section 849, and Sec-
tions 822-840. In the absence, then, of
surface indications, an interference with
subterranean water is, or course, uninten-
tional and damnum absque injuria unless


the conduct
Sreckless or
Since the a
ration music
rer, it is cl
a cause of
sio: by del
for which i
its conduct
* particular
tions omiti
54 So.2d at (
Article X;
tuition forb
erty except
full coinpeos
-of several e
tuition does
to proert
Arundel CA
Fla. 128, 10
[61 Whe
such that I
property bI
owner,. th
"taking b
age and tl
pensation.
ville 28 P
In Poe
So.2d 898,
said:
It is uni
the con
by obsi
the floi
not as
by the
ing lan
suiting
domain
ered it
note o
.. 7 I]
er is lh
appropri
then out
right to
er hand
taking <


668 Fla.






















VILLAGE OF TEQUESTA v.:JUPITER INLET CORP.
Caie ,Fsa. 71 S&eral


the conduct resulting therein is negligent,
reckless or ultrahasardous. :
Since the allegations of plaintiffs' decla-
ration must be taken as true on demur-
rer, it is clear that plaintiffs have stated
a cause of action for an intentional inva-
sion by defendant of their water rights,
for which it must respond in damages if
its conduct was unreasonable under the
particular circumstances.. [Cita
tions omitted ]. : .
54 So2 at 675-77.
Article Xsection 6, of the Florida Consti-
tution forbids the "taking" of private prop-
erty except for a public purpose and with
full compensation. Unlike the constitutions
of several other states, the Florida Consti-
tution does not expressly forbid "damage"
to property without just compensation.
Arundel Corp. et al v. Griffin et al., 89
Fla. 128,103 So. 422 (1925).
[6] When the governmental action is
such that it does not encroach on private
property but merely impairs its use by the
owner, the action does not constitute a
"taking" but is merely consequential dam-
age and the owner is not entitled to com-
pensation. Selden et al. v. City of Jackson-
ville, 28 Fla. 558, 10 So. 457 (1891).
In Poe v. State Road Department, 127
So.2d 898,901 (Fla. 1st DCA 1961) the court
said:
It is universally recognized that injury by
the condemnor to remaining land caused
by obstructing, diverting or increasing
the flow of surface waters, but which do
not amount to a permanent deprivation
by the owner of the use of such remain-
ing lands, is a consequential damage re-
sulting from the taking in an eminent
domain proceeding, and must be recov-
ered in that proceeding, if at all. [Foot-
note omitted].
[7] If the damage suffered by the own-
er is the equivalent "of a taking" or an
appropriation of his property for public use,
then our constitution recognizes the owner's
right to compel compensation. On the oth-
er hand, if the damage suffered is not a
taking or an appropriation within the limits


of our organic law, then the damages suf-
fered are damnum absque injuria and com-
pensation therefore by the public agency
cannot be compelled. Weir v. Palm Beach
County, 85 So.2d 865 (Fla.1956).
The district court of appeal, in its opinion,
relied upon White v. Pinellas County, 185
So.2d 468 (Fla.1966), as authority for the
. principle that a taking can occur when any
property rights are involved. This case in-
volved trees and shrubs located on the prop-
erty which were used as a windbreak and a
privacy screen. In White there was a phys-
ical invasion of the property when the state,
through its agents, cut down. large trees
and shrubs. In the case sub judice there
was no physical invasion of Jupiter's prop-
erty by the agents of Tequesta, so no com-
pensation is due for consequential damage.
The cases relied upon by respondent in-
volve situations where there was damage to
the land itself, a result which does not exist
in this case. Cason v. Florida Power Co.,
supra, dealt with resulting damage to the
fee because of the diversion of percolating
water. Koch v. Wick, supra, dealt with
damage to the fee by diversion of water
therefrom to the point that the fee would
become infertile and unsuitable for cultiva-
tion. In State Road Department et a. v.
Tharp, 146 Fla. 745, 1 So.2d 868 (1941), the
construction of a highway embankment im-
peded the flow and raised the level of a
millrace to such an extent as to destroy the
use of plaintiffs grist mill. This was held
to be a taking.
[8] The "reasonable use" rule insofar as
the proprietary beneficial use of water is
concerned has no application where the
court is concerned with the proprietary use
of land, and in which the water is only
incidentally affected. See Labruzzo v. At-
lantic Dredging and Construction Co., su-
pra.
Property owners have been successful in
seeking relief under the theory of inverse
condemnation against the appropriate au-
thority as a result of the excessive noise
from low-flying jet aircraft. See Hillsbor-
ough County Aviation Authority v. Benitez,
200 So.2d 194 (Fla. 2d DCA 1967). The


Fla. 669




















670 Fla.


371 SOUTHERN REPORTER, 2d SERIES


"taking" of an airspace above the land is
not comparable to the "taking" of the
water located in a ground aquifer beneath
the land in the absence of a trespass on the
land itself. The damage to the airspace
was such as to deprive the property owners
of all beneficial use of their property. The
alleged damage to the shallow-water aqui-
fer deprived Jupiter of no beneficial use of
the land itself. Jupiter developed the prop-
erty to its highest and best use and has
suffered no more than consequential dam-
age which is not compensable through in-
verse condemnation. ...
[9] The bare essential facts controlling
this case are simple and direct. Tequesta
utilized all of the available percolating
water of the shallow-well aquifer in the
area of Jupiter's land. Jupiter decided to
become a competing user. This desire was
thwarted because Tequesta had utilized all
of the water which could be safely with-
'drawn from the shallow-well aquifer. This
meant Jupiter had to go deeper to the Flori-
dan aquifer to obtain its water and to spend
more money than it would have if allowed
to use the shallow-well aquifer. The costs
were increased both in drilling and treat-
ment of the water. It is a hydrologic im-
possibility to place a value upon the water
which was withdrawn from underneath Ju-
piter's land.
It is incumbent upon Jupiter to show, not
only a taking, but also that a private prop-
erty right has been destroyed by govern-
mental action. Jupiter did not have a con-
stitutionally protected right in the water
beneath its property. In the cases cited by
Jupiter, the courts supported compensation
for the taking of a use which was existent
and of which a party was deprived. Jupiter
seeks to be compensated for a use which it
had never perfected to the point that it was
in existence. Jupiter had a right to use the
water, but the use itself is not existent until
this right is exercised.
The property rights relative to waters
that naturally percolate through the land of
one owner to and through the land of an-
other are correlative. Reasonableness could
only be determined after the conflict arises


between users. The "reasonableness" of a
given use depends upon many variables
such as: the reasonable demands of other
users; the quantity of water available for
use; the consideration of public policy.
Even an allocation between conflicting
users has no durability, for the decision by
another land owner to exercise his previous.
ly neglected right to use water could easily
render all other uses unreasonable. A per-
son developing his own land could make a
substantial investment with no way of de-
termining whether reasonable use by others
would limit or destroy his development
right even though it was the first in time.
[10] The judicial system was ill-
equipped to deal with such conflict and
became oriented to a case-by-ease approach
to solving disputes. This Court recognizes
that all conflicts between competing users
must be determined from the facts and
circumstance of particular cases as they
arise. Cason v. Florida Power Co., supra
This "right to use" is not "private property"
as contemplated by article X, section 6,
Florida Constitution requiring full compen-
sation before taking for a public purpose.
[11] The State of Florida operates un-
der an administrative system of water man-
agement pursuant to the terms of the Flori-
da Water Resources Act Ch. 78, Fa.Stat.
(1972). The.law prior to the Florida Water
Resources Act did not allow ownership in
the corpus of the water, but only in the use
of it. Even then, the use was bounded by
the perimeters of reasonable and beneficial
use. Legislation limiting the right to the
use of the water is in itself no more objec-
tionable than legislation forbidding the use
of property for certain purposes by zoning
regulations. Village of Euclid v. Ambler
Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71
LEd. 303 (1926); 54 A.LR. 1016 (1928).
[12] .The Florida Water Resources Act,
in recognizing the need for conservation
and control of the waters in the state (Sec-
tion 373.016, Fla.Stat. (1973)) makes all
waters in the state subject to regulation,
unless otherwise specifically exempt.
373.023(1) Fla.Stat. (1973). The Depart-


II


*1







I


meant of' Env
various wat
given the In
conservation
control of tl
016(3) Fla.S
such control
lished which
tive use of
consumption
from the re
219(1) Pla.S
a 120-unitc
an individu
permit in oi
its property
no such- pni
beneath. Hi
tion, it m
verse cond
[I5] Th
recognizes
common ih
use water
to the ad
concerning
law right I
older of
right-was
common4-
water rig
In order
under se
(197, th
prior to I
Water RI
ment.disl
in that a
doned ai
applicath
quired th
proposed
sources A
tinuatio
right to
no legal
beneath
'action ii
Sectic
provides
the gov4


'1























VILLAGE OF TEQUESTA v.JUPITER INLET CORP.
Ck as Fla., 37 So.2dW


ment of Environmental Regulation and the
various water management districts are
given the responsibility to accomplish the
conservation, protection, management, and
control of the waters of the state.: 873.-
016(3) Fla.Stat (1973). In order to exercise
such controls a permitting system is estab.
lished which requires permits for consump-
tive use of water, exempting only "domestic
consumption of water by individual users"
from the requirements of a permit 373.-
219(1) Fla.Stat. (1973). Jupiter, in serving
a 120-unit condominium, does not qualify as
an individual user and- thus must secure a
permit in order to draw water from beneath
its property. Without a permit Jupiter has
no such property right to the use of water
beneath its land for which, upon depriva-
tion, it must be compensated through in-
verse condemnation.
[131 The Water Resoures Act of 1972
recognizes a right to use water under, the
common law as separate from the right to
use water under a permit granted pursuant
to the act. This is done by a provision
concerning the termination of the common-
law right and a transitional procedure. The
holder of such a common-law water-use
right was given two years to convert the
common-law water right into a permit
water right. 87.226(3) Fla.Stat. (1973).
In order to qualify for the initial permit
under section 873.226(2) Florida Statutes
(1973), the right must have been exercised
prior to the implementation of the Florida
Water Resources Act by a water manage-
ment district with geographical jurisdiction
in that area. Otherwise the right is aban-
doned and extinguished requiring a new
application for a permit. Tequesta had ac-
quired the permit and Jupiter was merely a
proposed user. The Florida Water Re-
sources Act makes no provision for the con-
tinuation of an unexercised common-law
right to use water. Jupiter had perfected
no legal interest to the use of the water
beneath its land which would support an
action in inverse condemnation.
Section 373.1961 Florida Statutes (1975)
provides additional powers and duties for
the governing boards of the water manage-


meant district. Subsection (7) provides that
the governing board:
May acquire title to such interest as is
necessary in real property, by purchase,
gift, devise, lease, eminent domain, or
otherwise, for. water production and
Transmission consistent with this section.
However, the district shall not use any of
the eminent domain powers herein grant-
ed to acquire water and water rights
Already devoted to reasonable and benefi-
cial use or any water production or trans-
mission facilities owned by any county,
municipality; or regional water supply au-
thority. [Emphasis supplied].

[14] Condemnation of "water rights" is
not granted in the first sentence of this
subsection. The authority granted is spe-
cifically limited to the acquisition of lapd
for the purpose of constructing and operat-
ing well fields and other withdrawal facili-
ties and for the right-of-way necessary for
the transmission of water to consumers.
The second sentence prohibits *he use of
eminent domain to acquire .such "water
rights" which were already being put to a
reasonable and beneficial use. The statuto-
ry prohibition of the use of eminent domain
in one situation cannot be used as authority
for its use by implication in another, as the
statute must be strictly construed. Canal
Authority v. Miller, 243 So.2d 193 (Fla.
1970). All that Section 373.1961(7) Florida
Statutes (1975) accomplishes is to further
protect presently existing legal uses of
water. No implication can be drawn that
this section intends to include any "water
right" other than the permit that may be
granted by a water management district.
After all, if a use of water is both preexist-
ing and also reasonable and beneficial, after
two years, it must be either under permit or
it is conclusively presumed to be abandoned.
There was no necessity for the Water Re-
sources Act to provide for the condemnation
of an unexercised right to use water, as the
owner became subject to the permit provi-
sions of the law. There was no "taking" of
this right


Fla. 671


fli
.; i i
I I'
*:'l '!* '


ii
iiiIII






















672 Fla


371 SOUTHERN REPORTER, 2d SERIES


In summary, we hold:
L Prior to the adoption of the Water
Resources Act, Florida followed the reason-
able use rule; that is, a landowner, who, in
the course of using his own land, removes
percolating water to the injury of his neigh-
bor, must be making a reasonable exercise
of his proprietary rights, i. e, such an exer-
cise as may be reasonably necessary, for
some useful or beneficial purpose, generally
relating to the land in which the waters are
found; .. : .
2. There was no ownership in the waters
below the land, as the-right of the owner to
ground water underlying his, land was to
the use of the water and not to the water
itself;
& In applying the reasonable use rule,
this Court has not given definite answers as
to the actual amount of water that may be
taken by overlying landowners;
4. The diversion of water from the shal-
low-water aquifer is not a "taking" or an
appropriation of property for public use re-
quiring condemnation proceeding unless
there is a resulting damage to the land
itself, for example, a diversion of water to
the extent that the land becomes unsuitable
for cultivation, raising the level of flowihg
waters to the extent that land is flooded,
etc.;
5. The landowner does not have a con-
stitutionally-protected property right in the
water beneath the property, requiring com-
pensation for the taking of the water when
used for a public purpose;
6. Just as legislation may limit the use
of property for certain purposes by zoning,
so it is that the right to the use of the
water may also be limited or regulated.
7. The Water Resources Act now con-
trols the use of water and replaces the ad
hoc judicial determination in water man-
agement districts where consumptive use
permitting is in force.
& Jupiter's remedy is only through
proper application for a permit under the
Florida Water Resources Act
For the above reasons, we answer the
certified question in the negative and hold
that Tequesta cannot be held responsible
for damages through inverse condemnation.


The decision of the district court of ap-
peal is quashed and this cause is remanded
with instructions to affirm the summary
judgment entered by the trial judge in fa-
vor of Tequesta.

ENGLAND, C. J., and BOYD, OVER-
TON AND SUNDBERG, JJ., concur.



S m ..M
KMUISYSTEM
DIUmmessystEK


Melody ROSENBERG, Petitioner,
V.
Michael ROSENBERG, Respondent
No. 53082


Supreme Court of Florida.
May 31, 1979!


:.~ i



I
I



'i




I


Certiorari to the District Court of Appeal,
Third District Case No. 76-1628.
James O. Nelson, Miami, for petitioner.
Charles R. Lipcon, Miami, for respondent.

PER CURIAM.
This court adopts the dissenting opinion
by Judge Hubbart, reported at 352 So.2d
867 (Fla.d DCA 1977).
Accordingly, the opinion of the Third Dis-
trict Court of Appeal is quashed, and the'
case remanded with directions that the trial
court set attorney's fees for Petitioner's
counsel.

ENGLAND, .C. J., and SUNDBERG,
HATCHETT and ALDERMAN, JJ., concur.


BOYD, J., dissents.
Order on mandate, 372 So.2d 1022.


Adele l

Irvin W. LA
Insurance


District 0




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