Title: Ground Waters
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Permanent Link: http://ufdc.ufl.edu/WL00002949/00001
 Material Information
Title: Ground Waters
Physical Description: Book
Language: English
Publisher: Florida Water Resources Study Commission
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collection - Ground Waters
General Note: Box 12, Folder 3 ( Florida Water Resources Study Commission - Reports of Major Committees - 1956 ), Item 8
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00002949
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text




V. GROUND WATERS

General Consideration

In connection with anti-pollution legislation, the legislature has defined

the term "underground waters of the state" as: "all underground streams and springs and

underground waters within the borders of the state, whether flowing in underground channels

288
or passing through the pores of the rocks. Within this broad classification, ground

waters,, for legal purposes, are usually divided into two classes: (1) underground streams

and (2) percolating waters. Artesian waters are classed as a special type of percolating

waters.

It is, therefore, convenient to consider the rules regarding the use of ground

waters under three subheads: (1) the rules for underground streams, (2) those for

percolating waters generally, and (3) those dealing with artesian waters.

Underground Streams

The distinction between underground streams and percolating waters is based on

the theory that the former flow in permanent, distinct and well-defined channels, the

existence and location of which are known or ascertainable from surface indications or

other means without subsurface excavations289 while percolating waters filter through the

earth without any permanent, distinct or definite channel.290 In Florida, as in most

jurisdictions, the same legal rules are applied to underground streams as apply to surface

streams.291 The difficulty most often encountered in connection with underground streams

is that of proving their existence. In the absence of evidence going to prove the existence

of a stream, such as the presence of heavy vegetation, the reappearance of dye-water at

downstream openings, or, in Florida, a line of surface depressions or sinks.292 The courts

follow the presumption that ground water is percolating water. The Florida Court is in accord

with the majority in applying this important presumption.293








Since the law of surface streams, treated in the first part of this report, applies also

to underground streams, to further treatment of underground streams seems necessary.

Artesian Waters

Artesian waters, described earlier as a type of percolating water, have been

defined indirectly by the Legislature in the statutesdealing with conservation where "An

artesian well is defined as an artificial hole in the ground from which water supplies may

be obtained and which penetrates any water bearing rock, the water in which is raised to

the surface by natural flow, or which rises to an elevation above the top of the water

bearing bed.294 The statute further provides that the Florida geological survey may

determine which of the water bearing beds in Florida are a part of "the artesian water

system" of this state. The definition of artesian water implicit in the language of this

statute seems to be in harmony with the definition used in other jurisdictions.29S

A freely flowing artesian well seems to fit perfectly the definition of a spring296

and the rule elsewhere is that where the water flowing from a spring establishes a permanent

stream or watercourse upon or across adjoining land, riparian rights attach thereto".297

There is no Florida decision on this point. Parenthetically, recent newspaper reports

state that the City of Tampa is negotiating for the purchase of Sulphur Springs, an

artesian spring, for purposes of municipal water supply.

While there does not seem to have been litigation in Florida regarding the use

of artesian waters outside the artesian area, such litigation has occurred elsewhere,

usually in connection with the use of such waters for city water supply. In this setting,

the correlative rights doctrine seems to have been used to protect the owners of lands
298
overlying the artesian area tapped for the supply of the city.2 This doctrine is a

variation on the reasonable use concept. Under the correlative rights doctrine, -


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a use of water, to be reasonable, nmst be limited to the landowners just proportion

according to his surface area. In considering the advisability of recommending adoption

of this correlative rights limitation on the use of artesian waters, the Commission should

consider the problems of proof certain to arise under it. As noted earlier, representa-

tives of the Florida geological survey are designated as the proper parties to determine

the extent of the artesian system of this state. But if artesian basins cover relatively

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large areas, as seems likely to be the case in Florida,299 there would be a tremendous

problem under the correlative concept, of sorting out the rights in respect to the use of

the water.

In 1953 the Legislature acted, apparently for the first time, to provide for

the conservation of artesian waters through regulation of flow and designated representa-

300
tives of the Florida geological survey and sheriffs as the enforcing officials.3 This

law is of general application but, as yet, no cases have been decided under it. Notwith-

standing the existence of the 1953 Act, the problem of unregulated flow from artesian

wells bulks large in the report of the Florida Soil Conservation Districts made in 1954, 301

and in that of the Florida Water Resources Study Commission compiled in July 1956.302

Thus, the lack of effective enforcement of the law now in effect appears to be

a real problem.

Springs (Other than Artesian)

Although this committee has located neither case nor statutory material dealing

with non-artesian springs in Florida, problems concerning the management and use of spring
303
waters were reported in both the 1954 and 1956 Water Problems surveys. As mentioned

earlier, if the water from a spring forms a natural watercourse, the owner on whose land

the spring arises, and downstream owners, have only the usual riparian rights on such a


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watercourse. If the water does not form a stream, the owner of the land on which the
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spring rises may consider its waters his exclusive property and manage them accordingly.3

As explained in the previous sub-section, an underground stream which constitutes

the source of a spring is governed by the same rules that govern surface streams, so that

such a spring has what amounts to a protected source. On the other hand, if the source

of a spring is percolating waters, and wells are drilled near the spring tapping the same

source and reducing or stopping its flow, those interested in the waters of the spring

do not appear to have any remedy so long as the use of water from the wells is permissible

under the doctrine of reasonable use explained in the next sub-section.

Percolating Waters (Other than Artesian)

The English or "common law" rule regarding percolating waters accorded the over-

lying owner the right to capture and dispose of them as he saw fit, regardless of the

effect on his neighbors water supply. Around the turn of the century this seems to have

been the law of Florida. Thus, in 1896 the Court in Tampa Waterworks Co. v. Cline says:

"...the owner of the land through which subsurface water, without
any distinct, definite, and known channel, percolates or filters through
the soil to that of another, is not prohibited from digging into it, and
appropriating it to any useful purpose of his own, though by so doing
the water may be entirely diverted from the land to which it would other-
wise naturally pass.305"

But recently in Florida,306 and generally throughout this country, the English

or "common law" rule has been replaced by the doctrine of "reasonable use." Thus, the
307
very recent case of Koch v. Wick307 states that a landowners right to the use of

percolating waters beneath his holdings is bounded by "reasonableness and beneficial use

of the land." The decisions cited as supporting authority in this case, however, deal

with the use of land rather than water.


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Although the phrase is "reasonableness and beneficial use" it would appear from

the opinion that if the use is reasonable it need not be beneficial to the overlying land.

If this is in fact the position taken by the Florida Court, it constitutes a more liberal

interpretation of the doctrine of reasonable use than exists elsewhere.

In an earlier case the court made it clear that in the use of ones land, as

it affects percolating waters, one is limited to a reasonable use of his property, the

rights of the neighboring owners being described as "correlative".308 The court, however,

was seemingly equating the term "correlative rights" with the reasonable use concept,

rather than using the term in the sense in which it is employed in the discussion of

artesian waters in the previous sub-section.

No general legislation pertaining to the use of percolating waters, as distinguished

from artesian waters, has been located by this committee. Of interest as an example of

one approach to the problem of water conservation in this respect is Chapter 29594, Special

Acts of 1953, creating a water conservation board and district in Volusia County. The

board is vested with extensive powers including the right to plug or cap any abandoned

well, to regulate digging of well's exceeding four inches inside diameter or 1000 feet in

depth, and to prevent the installation of more than one smaller well per acre. The act

does not apply to persons diverting less than 100,000 gallons per day or 75 gallons per

minute of water.

In conluding this discussion of the law of percolating water it is well to

emphasize that such water is regarded by the Florida courts as being as much a part of

the land in which it is located as is the clay, gravel and soil comprising the land. The

Pinellas County Circuit Court spoke recently on this subject saying: "The Court finds

that water ... lying beneath the earth's surface ... (is) property of which the owner
309
cannot be divested except by the procedure outlined in the Constitution." (Emphasis added.)
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Pollution of Ground Waters

Two very early Florida cases establish common law liability for pollution of
310
ground waters. The first of these, Tampa Waterworks Co. v. Cline. involved alleged

pollution of an underground stream which in 1896 was a part of the water supply system

of the City of Tampa. The bill seeking an injunction was dismissed because of lack of

proof of actual or prospective pollution, but the court strongly indicated that if such
311
proof was forthcoming, relief would be granted.
312
In the second case, Pensacola Gas Co. v. Pebley, a gas manufacturing company

was held liable in damages for allowing residue to filter into percolating ground water

on its own premises where such pollution adversely affected a well on adjoining land.

Common law rights with respect to pollution of ground waters have been butressed
313
to some extent by anti-pollution legislation. The first of these statutes, the Pollution

of Waters Act of 1913 appear to be designed primarily to protect the ground water supply

of communities from pollution from sewage. It seems doubtful that this purpose is being

accomplished.314 The act is administered by the State Board of Health, and penalties

are provided for its infringement. It is weakened by its failure to provide against the

discharging of industrial or mining wastes into underground water, and by its lack of

provision for injunctive sanctions. Another statute prohibits draining or discharging
317
deleterious substances into any of the fresh running waters in Florida, if such

substances would injure or kill fish living in these waters. This statute would probably

not cover ground waters. It could not, of course, apply to percolating water.

A third act, Chapter 533 of Florida Statutes prohibiting the discharge of mining

waste into the "rivers and streams of the state" is arguably applicable to subterranean

streams. But the statute would not cover the discharge of mining wastes into wells unless

such wells connected into definite streams rather than percolating underground waters.

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Salt Water Intrusion

A problem closely akin to the problem of pollution is that of salt water intrusion

into fresh water supplies.318 Such intrusion is becoming an increasingly serious problem

in many of Floridats coastalareas. In an effort to alleviate this situation,319 the

legislature in 1945 provided for the creation of water conservation districts in counties

having populations of more than 260,000.320 Since 1945 salt water intrusion has become

a problem in a number of counties not covered by the act.3 This would indicate a need

for a general legislation enabling all affected areas to take action to combat such

intrusion.

Place of Federal Government in Ground Water Regulation

There is no federal legislation, applicable in Florida, that specifically pertains

to ground water. However, federal participation in such areas as flood control can affect

the ground water level and perhaps even the rights to use of such water.

Conclusions

In concluding this section of the report it is well to remember there has

probably been no general permanent lowering of water tables and artesian pressures, although

in some localities heavy pumping of ground water and excessive surface drainage have created

difficulties. The areas of shortage are generally found in highly populated and

industrialized areas but may also be found where heavy withdrawals for irrigation occur.322

The problems in connection with ground water are those of conservation in

recharge areas, control of pollution, regulation of quantities diverted by competing

users, and most important, the problem of salt water intrusion.


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