Title: Ridge and Lower Gulf Coast Water Management District
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Title: Ridge and Lower Gulf Coast Water Management District
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Ridge and Lower Gulf Coast Water Management District
General Note: Box 10, Folder 12 ( SF Water Rights-Water Crop - 1973, 1976-77 ), Item 27
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Volume ID: VID00001
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RIDGE & LOWER GULF COAST WATER MANAGEMENT DISTRICT

BACKGROUND MEMORANDUM
ON CONSUMPTIVE USE PERMITTING

Introduction


Several theories of water allocation have been

used by the courts in other states to decide among

competing demands for available water supplies. The

following is a brief summary of the major water allo-

cation theories as well as an examination of the

reasonable-beneficial use concept incorporated in

Chapter 373, F. S.

Many of the examples and much of the information

contained in this memorandum were summarized and adapted

from two excellent books on water resource allocation.

Maloney, Ausness and Morris, A Model Water Code,

University of Florida Press (1972), and Maloney, Plager

and Baldwin, Water Law and Administration, University

of Florida Press (1968).

This memorandum also examines some of the issues

that must be considered in instituting consumptive use

permitting. It is offered as background material for

Board Members prior todiscussions of permitting systems

presently being administered by the Central and Southern

Florida Flood Control District and the Southwest Florida

Water Management District.


Prior Appropriation


Some western states have utilized the doctrine of

prior appropriation to determine which competing claim

should be given priority in allocating available water

resources. Under this doctrine, the initial claimant

to a given supply of water has an absolute right to the

amount of water diverted for use. A subsecrent claimant


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may divert any amount of water for his use, so long as

the diversion does not impair the amount claimed by the

"senior" claimant. Among co-peting claims, the doctrine

holds that the claim first in time is first in right to

the available water supply.

The two major criticisms of this system of alloca-

tion are: (1) the lack of a requirement that a use be

either reasonable or beneficial; and (2) the fact that

the system encouraged waste. A senior claimant may be

encouraged to appropriate more water than needed to

insure a sufficient supply of water in the event of ex-

panded water needs. Such action may result in both

unacceptable levels of waste and inefficient utilization

of available water resources.


Correlative Rights


This doctrine allocates available water resources

on the basis of land ownership. For example, if user

X owns 100 acres of land and user Y owns 50, user X

has a correlative right to twice as much water as Y.

A criticism of this doctrine is that the area of

land owned bears no particular relation to the quantity

of water a user may require. Strict application of

the correlative rights doctrine would require in-

tensive users to purchase large areas of land in order

to accrue sufficient water rights. The result would be

an inefficient use of land.

The correlative rights doctrine does have the

advantage of providing at least some degree of certainty

as to the quantity of water available to a given land

holder. By apportioning the available water supply

based on a known proportion (land area), each indivi-

dual has some basis for determining the quantity of


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water available to him. It also merges individual

rights in land and water into a single right and

recognizes these rights are interrelated.


Reasonable Use


The reasonable use doctrine originated in the

eastern states. It provides each riparian owner with

a right to the reasonable use of water consistent with

the same rights of other riparians. If the available

water is insufficient to meet all competing demands,

the courts will apportion available water among the

riparian owners.

A major drawback of the reasonable use doctrine

is the lack of certainty as to the continued availability

of water in sufficient quantities. Since the right to

water under this rule exists whether or not a landowner

is presently exercising that right, a change in an

adjoining landowner's demand for water would change the

amount of water available to the remaining landowners.

In addition, the usual method of determining the

landowner's water rights is through litigation. That

determination can be both costly and time consuming.


Water Allocation Under Chapter 373, F. S.


The Florida system of apportioning water rights

represents an attempt to avoid the pitfalls of the

above mentioned doctrines. The permitting procedure

allows water rights to be determined with some certain-

ty before large investments have been made, and without

the expense of litigation. Consistent with this aim,

the Southwest Florida Water Management District has

employed extensive hydrological testing to determine

the approximate supply of water available within its

jurisdiction. The results of these tests provide

some certainty as to water allocation without the


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need for constant revision of rights as the demand

for water changes.S16-J-2.11(3), F. A. C.

In addition, the legislature, through implemen-

tation of the reasonable-beneficial use standard, has

recognized the need to require consumptive users to

achieve some degree of efficiency in their use of water.

By demanding efficiency in utilization and encouraging

uses that comport with public policy, the legislature

has given to the water management districts the

necessary tools to responsibly manage the state's

water resources (S373.016, F. S.)

To obtain a permit for the consumptive use of water,

the applicant is required by statute to show that the

proposed use:

a. is consistent with the public interest;

b. will not interfere with any presently

existing legal use of water; and

c. is a "reasonable-beneficial" use. (S373.223, F. S.)

Since the permitting decision rests largely on

a determination as to whether a proposed use is one that

is reasonably-beneficial,discussion of that standard is

imperative.

Reasonable-Beneficial Use


Reasonable-beneficial use is defined in S373.019

(5), F. S., 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." Although some-

what illuminating, this definition affords little

assistance in determining whether a specific proposed

use comports with.the legislative standard.

The reasonable-beneficial use standard combines

two separate limitations on water use. Both the

reasonable use doctrine and the beneficial use doctrine


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were incorporated into water allocation svste_-s to

make those systems more efficient. The reasonable-

beneficial use standard represents an effort to cc=-

bine the best features of each allocation system.

The reasonable use limitation recognizes the

interdependency of the water system. Under this

rule, each user is entitled only to such quantities

of water as are reasonable under the circumstances,

taking into consideration the needs of adjacent

property owners. The rule is designed to protect

property owners from undesirable diminution of the

available water supply that could result from un-

controlled water use by adjoining property owners.

The beneficial use limitation originated as an

additional restriction on the prior appropriation

method of allocation. It is triggered to prohibit

appropriation by senior users of more water than is

needed and essentially holds that no rights are acquired

in a quantity of water in excess of actual water require-

ments. The aim is to decrease waste.

Under the reasonable-beneficial use rule, as re-

flected in the Model Water Code, water is perceived as

a raw material. Some degree of economic efficiency is

required in the utilization of the material through

consumptive use. Thus, if a particular process can be

accomplished using 5,000 gallons of water per day, it

would be unreasonable to use 10,000 gallons per day for

that same process because no economic benefit would be

gained from the extra 5,000 gallons of water expended.

This does not mean, however, that water use must be

limited to the lowest level of technical feasibility.

In some cases, the utilization of larger amounts of

water may result in substantial savings through the

operation of economies of scale and thus justify the

expenditure of greater amounts of water.


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It has been argued that the reasonable use require-

ment should not weigh the economic value of the use

itself as compared to other uses. For example, the tesr

should not prompt denial of a permit for agricultural use

because the use of the requested water for manufacturing

might be of greater economic benefit to the community.

It has been further suggested that a permit applicant

seeking to use water for irrigation should not be re-

quired to raise a particular crop because it produces

a greater dollar value per gallon of water expended than

does another crop. Per this argument, the rule requires

only that the use to which the water is put must be

efficient and economical.

In addition, the beneficial use aspect of the rule

requires some assessment of the proposed use in com-

parison to other uses. Hence, the use must be consis-

tent with public policy and reasonable in relation to

other uses.

Toward this end, the Flood Control District, by rule,

has established a policy for deciding among two or more

competing consumptive use applications. (S16K-2.07,

F. A. C.) The Governing Board will give preference,

under the rule to public uses over private uses, and

economically more productive uses obtain preference over

less productive uses.(Id.)


Developing Permitting Procedures


Having briefly discussed water allocation theories,

as well as Florida's position per Chapter 373, F. S.,

analysis of several potential issues that must be resolved

in instituting a consumptive use permitting procedure

may be helpful.

Defining the Resource and Regulated Area


It would be difficult to establish a rational

allocation system without obtaining a reasonably accurate


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estimate of the availability of the resource on which

permitting decisions are based. Therefore, the first

priority in establishing a con-sumptive use permitting

program should be to determine the quantity of all

water available for consumptive use in a given area

and the quantity that may be permitted without major

detrimental impact on the supply. As noted, the

Southwest Florida Water Management District has.adopted

the "water crop" concept as a basis for its permitting

system. (516J-2.11 (3), F. A. C.) Minimum flow and

ground water levels are also incorporated into the South-

west Florida Water Management District's system (S16J-2.11

(4), F. A. C.)

There does not appear to be any statutory require-

ment that permits must be required throughout the entire

District. (S373.219, F. S.) Permitting could, therefore

be required in particular basins or subdistricts provided

a reasonable basis exists for singling out a specific

area. Southwest Florida Water Management District has

explicitly identified in its rules the basins subject

to permits. (Sl6J-2.03, F. A. C.)

Defining Consumptive Use


A definition of consumptive use could be formulated

by regulation. Although domestic use of water by indi-

viduals is exempted from the permitting procedure

(S373.219, F. S.), any other use, diversion or with-

drawal of water above a certain number of gallons per

day may be subject to Chapter 373 permits. It appears

that special and particular uses may be permitted. The

minimum rate of consumption, below which a permit will

not be required could be set. The Districts that have

instituted consumptive use permitting have required


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permits for uses that exceed an average d4ily consumption

of 100,000 gallons per day (16J-2.03(1)(a), F. A. C.), or

merely exceed this quantity on a single day (S16K-2.C3

(1)(a), F. A. C.)

Developing Permitting Guidelines


Various factors significant to the decision making

process could be identified by rule to guide the Board

and potential permit applicants. Some of these factors

are:

A. Growth patterns -

Florida, perhaps more than any other state, has

seen the speed at which population, and thus demand for

water, can grow. Since a consumptive use permit may

last for up to 20 years, (S373.236, F. S.), and since

all consumptive uses of water have at least a potential

impact on adjoining users, consideration could be given

to the projected demand for water in the desired area

as evidenced by applicable land use plans and regulations.

B. Seasonal permitting -

In areas where water is in short supply, the Board

may find that seasonal permitting would maximize the

efficient utilization of the available resource. For

example, an agricultural user could obtain a seasonal

permit to irrigate leaving the resource available for

other seasonal uses when irrigation is unnecessary.

C. Permit priorities -

Inevitably, the Board will be faced with consumptive

use applications that are incompatible, or proposed uses

that cannot be accommodated with the available water

supply. The Board could establish guidelines as to

those uses that will be given priority in such instances.

As noted, the Flood Control District, by rule, has

developed such guidelines. Public uses are given priority

over private; economically more productive uses over less

productive; renewal applications over initial applications;

and Chapter 373, F. S. purposes are preferred over others.




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(S16K-2.07, F. A. C.), The Southwest Florida Water

Management District gives preference to renewals and

has adopted a subjective public interest test in case

of competing applications. 21J1-2.12, F. A. C.)

D. Duration of per i- -

Permits for consumpti-e -se of a non-municipal

nature may not exceed 20 years in duration (S373.236, F. S.).

Duration of permits may be based on a "reasonable system

of classification according to source of Supply or type

of use, or both."

Two conflicting interests impact on Getting the

duration of permits. First, each consumptive use

of water necessarily entails some investment of labor,

capital, or both. Users could be granted permits for

sufficient duration to allow them to recover that

investment. At the same time, changing economic and

population conditions require allocation flexibility

that may not be attainable through long duration permits.

The establishment of permitting categories can help

accommodate these competing policies. In establishing

categories, the Board could consider, among other factors,

capital investment involved in the proposed use, the

level of consumption, the available resources, and com-

peting uses in the area.

When considering the duration of permits, the Board

may also consider the possibility of a change in juris-

diction over the permit holder. For example, if a long

duration permit is granted by this Board under criteria

that are inconsistent with those employed by an incoming

Board, unnecessary problems could be presented the permit

holder.

E. Modification and revocation procedures -

The Board could also establish clear procedures for

modifying or revoking existing permits. The Board, under

s373.243, F. S. may revoke a permit for violation of the

statute, the conditions of the permit, or falsification


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of the application. The procedure followed to revoke

this sanction could be set out clearly in the Board's

regulations [See S16K-2.09, 2.10, F. A. C. and 516J-

2.14, 2.15, F. A. C.]

F. Emergency water -s;; age plan -

The Board is granted cr-t=in emergency powers

under S373.246, F. S., in c-se of water shortage. It

is required to formulate a p-an for implementation during

periods of declared water shortage. As part of the plan,

the Board must adopt a permit system based on water supply

source, method of extraction or diversion, or use. To

implement this provision, the Flood Control District has

developed classifications based on source and use and

has reserved the authority to restrict any and all users

during a shortage. (S16K-2.12, F. A. C.) The Southwest

Florida Water Management District has not adopted such

classifications, but has reserved authority to impose

necessary restrictions on users during a shortage.

(16J-2.20(2), F. A. C.)

G. Adoption of existing rules -

As mentioned earlier, there exists the possibility

that the area presently under this Board's jurisdiction

will be absorbed into other water management districts.

In view of this possibility, the Board may consider

adopting the permitting procedures of the potential

successors.





















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