Title: Interrelationships Between Water in Different Categories
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00002952/00001
 Material Information
Title: Interrelationships Between Water in Different Categories
Physical Description: Book
Language: English
Publisher: Florida Water Resources Study Commission
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Richard Hamann's Collection - Interrelationships Between Water in Different Categories
General Note: Box 12, Folder 3 ( Florida Water Resources Study Commission - Reports of Major Committees - 1956 ), Item 11
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00002952
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

relief, in the same action, could obtain a temporary injunction to

maintain the status quo during the pendency of the declaratory judge-
ment proceedings.


Scientists have long recognized that water moves in what is known

as the hydrologic cycle.459 For example, water may pass through various

stages, beginning as atmospheric water which falls to earth as precipa-

tion, flows over land as diffused surface water, runs into surface water-

courses, is stored in lakes and ponds, percolates into ground water

supply, slowly moves into the ocean and becomes tidal water. Finally,

evaporation from the land and ocean combined with transpiration will

continue the cycle.

The historical development of different legal rules for different

"types" of water reveals that the law has been slow to recognize the

interrelationships between what was considered different categories of

water. The common law460 recognized four general categories of water

passing over or through lands: (1) surface water moving in a natural

watercourse;461 (2) diffused surface water;4 (3) ground water in

distinct underground streams;463 and (4) "Percolating" ground water.4

The Florida Court has expressly recognized these separate categories

and also that separate classes of rights attach to the separate

categories.4 Therefore, in order to present a comprehensive survey
of Florida water law, it was found necessary to conform in general to

the established categories.

Achievements in the science of hydrology evince that the under-

lying assumption of the common law courts that water in the different

categories can be treated as separate and distinct is in fact a false

one. This can be illustrated by comparing the traditional legal rules

set out by the courts with the actual physical conditions that obtain.

Under the riparian rights theory, use of water in streams and water-

courses was limited by the natural flow doctrine, with perhaps a

reasonable use modification,466 so that a riparian owner's right to

use water to the detriment of his neighbors was controlled to a greater

or lesser extent. The same owner, however, was permitted to take all

the water he could make use of even to pumping his neighbors dry, as

long as his source was "percolating" ground water.467 And, as we have

seen, the same rules were applied to defined underground streams468

as to surface streams and watercourses, while yet another rule governed

diffused surface water.469

These distinctions cannot be sustained in fact.

"The minimum flow of water in watercourses comes directly

from ground water, whether from defined underground streams or

'percolating' water. The maximum flow of water in watercourses

also comes in part from ground water, but is likely to include a

large proportion of water that was temporarily 'diffused surface

water. '470

"The interrelation and interdependence of the several phases

of the hydrologic cycle are demonstrated in studies of the

processes of precipitation, infiltration, deep percolation,

seepage, and evapotranspiration, by which water moves from one

phase to another."471

1~_1_____ ~_1~11


Viewed in this light, the inconsistencies in the common law rules

are indeed apparent.

Although it may be accurate to say that the law has been slow to

recognize the interrelationship between the different categories of water,

it cannot be said that the law has remained impervious. While never

specifically discussing the interrelationship factor, the Florida Court

has retreated in a series of steps from its earlier position of unlimited
472 473
use of percolating ground waters4 to a reasonable use requirement
similar to that applied to streams and watercourses.

The legislative development in this area has paralleled that of

the courts. Early Florida statutes, especially those establishing

water use and control districts, were generally worded so that any one

district was concerned with one particular type of water and usually

one type of water problem.474 But legislation that regulates only one

"category" of water, such as surface water, can create problems for

the future. Some of the stimulus behind the consideration of a compre-

hensive Florida water law has been the deficiencies of stream flow and

lake levels during rainless periods in recent years. The stream flow

and water in lakes in such periods are derived chiefly from ground water,

and the state cannot therefore guarantee water to surface-water users

unless it has the power to control the development and use of water from

the contributing ground-water reservoirs. If the ground water is

considered to be appurtenant to the land and therefore not subject to

any governmental supervision or limitation as such, the surface-water

users will have no recourse if ground water development depletes the
flow of the stream, as has occurred in a number of instances in Florida.475

in the same manner, overdrainage of diffused surface water either by

476 477
ditching or drainage wells may cause a consequent lowering of the

ground water level over a large area. The problem becomes especially

acute when the area being drained is in fact a natural reservoir and
recharge basin for the underground aquifer in a multi-county region.8

Recent water legislation in Arkansas, Michigan, Mississippi and

South Carolina has been criticized on this ground. Such legislation

". attemptsto set up not only a separate system of allocation for

surface water, but also a separate philosophy of water rights which is

incongruous because of the interrelation of the surface water with
water in the phases of the hydrologic cycle."4

Some of the more recent special acts of the Florida Legislature,

although limited in geographic range, have shown a marked tendency

toward a broader approach to water problems, with a concurrent broaden-
ing of the classes of water encompassed. One of the most compre-

hensive statutes481 of this nature creates the Fresh Water Conservation

Board in Volusia County, and gives the Board authority over "all waters

in, under or adjacent to" the lands included within the designated area.

The developing legislative and judicial awareness of the principles

of hydrology does not necessitate abolishing the recognized common law

categories of water. These categories have been recognized for so

long by the courts that it is questionable whether they could be success-

fully eradicated by legislative decree. The important factor is that

the Legislature and the courts recognize the interrelationship of the

water in the various categories. "A classification can be made to suit

man's convenience. He is likely to become confounded, however, if he

assumes a separation that does not exist in nature, and legislates on

the basis of that false assumption."482


Many of the problems created by the common law classifications, and

perpetuated by narrowly conceived statutes, could be solved by legis-

lation clarifying the rights and responsibilities of water owners and


The extent to which such legislation is successful will depend on

the extent to which the lawmakers, and the courts, are uniform in apply-

ing the same fundamental principles to all water, regardless of the

particular physical state it may be in at the moment. Whether the basic

philosophy is one of reasonable use under a riparian rights doctrine,

or guaranteed use under a prior appropriation doctrine, the necessity

for a consistent theory applicable to all "classes" of water is



Florida, along with thirty other eastern states, follows the

riparian system of water law, a system emphasizing rights of water use

in common, and limiting utilization of water in surface watercourses to

use by owners of riparian land. The riparian doctrine as developed

in Florida apparently includes a reasonable use limitation as to both

surface and ground water.

In the past,Florida, along with most eastern states, has normally

had an excess of water, so that her problems have been problems of

disposal rather than problems of governing water use. With the tremen-

dous increase in Florida's population, problems of supplemental irriga-

tion, pollution, and salt water intrusion in coastal areas, compounded

by several years of drought, have led to a reexamination of the Florida
system of water law. This reexamination indicates many gaps in the

law, and many unsettled areas in need of clarification. Changes

obviously should be made in the law so that the water resources of

University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs