Title: Laws of Florida Governing Water Use
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Title: Laws of Florida Governing Water Use
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Publisher: Reprinted From and Copyrighted as a Part of Journal American Water Works Association Vol. 47, No. 5, 1955
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Richard Hamann's Collections - Laws of Florida Governing Water Use
General Note: Box 12, Folder 8 ( Collected Materials on Water Law - 1952 -1957 ), Item 8
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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REPRINTED FROM AND COPYRIGHTED AS A PART OF
JOURNAL AMERICAN WATER WORKS ASSOCIATION
Vol. 47, No. 5, May, 1955
Printed in U. S. A.


Laws of Florida Governing Water Use

,Frank E. Maloney-
A paper presented on Nov. 9, 1954, at the Florida Section Meeting,
St. Petersburg, Fla., by Frank E. Maloney, Prof. of Law, University
of Florida, Gainesville, Fla.


DURING the last 50 years, use of
water from public, industrial, and
irrigation supplies has increased tre-
mendously in the United States. Not
only has the per capital use grown, but
the water-using population has doubled
during the same period, thus further
multiplying the demand (1). Between
1890 and 1945 water use increased
from 2,050 mgd to 12,030 mgd (2),
almost sixfold in 55 years, and growth
since 1945 has been at an even faster
pace.
The former chairman of the Na-
tional Water Resources Committee
predicted in 1952 that industrial de-
mand for water in the United States
would double in the next 10 years and
that this increased demand would still
represent only about 25-35 per cent of
the total water consumption because
the demand for other uses, such as irri-
gation and steam power, would corre-
spondingly increase (3). An exten-
sive growth of industrial demand in the
Southeast is occurring. Two of the
industries which are expanding-pulp
and paper, and steel-lead all others
in industrial water requirements. Fur-
ther, the use of water for irrigation,
although still in its infancy in this re-
gion, is showing signs of rapid and
vigorous growth. A recent survey in
South Carolina, now blessed (like
Florida) with an abundant water sup-
ply, indicates that between 1945 and


1950 industrial use of water in that
state increased 350 per cent; use by
cities in the same period increased 80
per cent; and use on farms almost dou-
bled (4). Farmers in South Carolina,
as elsewhere, are suddenly realizing the
tremendous value of irrigation in in-
creasing farm production and reducing
the risk of damage from droughts. A
similar upsurge in the demand for
water for irrigation in Kentucky has
led to several recent studies of the
laws governing use of water for that
purpose in the state (5, 6).*
Florida Problem
Past and potential increases in irri-
gation and industrial demand in Flor-
ida (7), added to the problems created
by salt water intrusion in many areas
along the coasts (8), call for a re-
evaluation of Florida's water laws in
the light of present and future needs.
Other southeastern states are already
tackling the problem-South Carolina
in 1953 created a water policy com-
mittee to recommend steps to bring
about full use and protection of state
water resources. This committee,
guided in part by a study made in
*This problem and its legal aspects are
also discussed, with particular reference to
North Carolina, by Beverly C. Snow, in
"Eastern Water Shortage and Drought
Problems-Growth of Eastern Irrigation
Demands," Jour. AWWA, 47:226 (Mar.
1955) .-Editor.


-11-3131









FLORIDA WATER LAWS


1952 by the US Soil Conservation
Service (9), has recommended legisla-
tion drastically changing South Caro-
lina water laws. A similar study is
being conducted in Mississippi and
another, with proposed corrective leg-
islation, was made in Wisconsin in
1953 (10).
One of the first projects of the new
Bureau of Water Research, following
activation in July 1955 at the Univer-
sity of Florida, will be a complete re-
view of the state statutory and common
law having to do with the conservation
and use of surface and ground water.
It may be appropriate at this time,
however, to consider in broad outline
the present state of Florida water law
and to point out the need for more
detailed study aimed at corrective
legislation.
This survey does not consider the
legal problems involved in pollution,
although that naturally affects the
amount of water available for use in
Florida. Further, the survey does not
deal with flood control, although im-
poundments for this purpose will make
tremendous additional quantities of
water available in certain areas of
southern Florida.

Law of Watercourses
There are three different judicial
views on the use of water from running
streams. The oldest is the English
natural-flow rule, under which an upper
riparian owner may not alter the natural
flow of a stream except to make use of
the water for purely domestic purposes.
This rule was adopted in England when
the use of water for industry and irri-
gation was still on a very minor scale
and the predominant problem was pre-
vention of pollution. The law met the
social needs of the time, but it is not


adequate for today's greatly expanded
economy. Rigid adherence to this anti-
quated doctrine aggravated the prob-
lems in South Carolina and helped
bring about proposals for a compre-
hensive code providing for a modified
system of prior appropriation (4).
The recommendations follow closely the
present Kansas code (11).
Under the prior-appropriation doc-
trine as judicially enunciated in the
western and Rocky Mountain states, a
riparian or other owner could appro-
priate the right to use as much water
as he could successfully divert and
beneficially employ, so long as his ap-
propriation was prior in time to that
of others; in an extreme case, his right
(on a sort of first come, first served
basis) might extend to exhausting the
flow of the stream. This doctrine, with
modifications, is now confirmed by leg-
islation in most western states (12).
The third approach is through the
theory of reasonable use. This modi-
fication of the natural-flow rule entitles
a riparian complainant to protection
only when the defendant's diversion
unreasonably interferes with the com-
plainant's use of the water. The doc-
trine emphasizes full use of the avail-
able water supply, and each riparian
owner may make beneficial use of the
water for any purpose to the extent
that his use does not unreasonably in-
terfere with the beneficial uses of
others (13).
The exact state of the law as to
supply from watercourses in Florida is
not too clear. In one early case, where
the primary consideration was the pol-
lution of an "underground stream"
used as a source of water supply by
Tampa, the Supreme Court of Florida
restated the common-law riparian rule
along with the reasonable-use modifi-
cation (14) :


__


May 1955








442 FRANK E.

The right to the benefit and advantage
of the water flowing past one owner's
land is subject to the similar rights of all
proprietors on the banks of the stream
to the reasonable enjoyment of a natural
-bomnty, and it is therefore only for an
unauthorized and unreasonable use of a
common benefit that any one has just
cause to complain.
Because the court was not called
upon to consider to what extent the
doctrine of reasonable use in Florida
may permit the diversion and use of
surface water for such purposes as ir-
rigation or manufacturing, the case
does not establish a binding precedent
on those points. In the absence of a
legislative adoption of the prior-
appropriation doctrine, it is probable
that when the problem is squarely pre-
sented to the Florida court, it will fol-
low in the path of most of the other
southeastern states: placing the stress
on the reasonable-use aspect of the
common-law doctrine and permitting
diversions which do not unreasonably
interfere with use by other riparian
owners.
The reasonable-use theory, although
it permits much broader and more
nearly complete utilization of the water
than the older natural-flow theory, has
two disadvantages. It lacks certainty,
because what constitutes reasonable use
depends, among other things, on the
prospective use of all other riparian
owners on the stream. Further, the
theory allows use of the water only by
riparian owners and does not permit
diversion for use on nonriparian lands.
The doctrine does have the advantage
of being flexible as against the prior-
appropriation theory. The latter tends
to fix the use of water in a permanent
pattern which, although it may be in
the public interest today, may be con-


MALONEY Jour. A W WA

sidered wasteful in the light of later
technical developments.

Ground Water
Legally speaking, ground waters are
of two types: those which flow in defi-
nite channels, and those without defi-
nite channels, classified as percolating
waters.* In the Tampa case (14),
Florida applied the principle of reason-
able use to an underground stream,
treating it in the same manner as a sur-
face stream. The real problem in such
cases is the practical one of proving
that the stream has a definite under-
ground channel. Most ground water,
however, falls within the percolating-
water classification. Concerning the
use of such water, there are again three
legal approaches. The first of these,
the so-called English rule, rests on the
concept that he who owns the surface
of the earth owns from the center of
the earth to the center of the heavens.
In a jurisdiction applying this concept,
an owner has an absolute right to sink
a well on his land and withdraw all the
percolating water he can, without re-
gard to the effect on adjoining owners.
There is some language in the Tampa
case that seems to support this view.
The western states differ from the Eng-
lish view and apply the doctrine of
prior appropriation to both ground
water and surface streams.
In Florida a modification of the Eng-
lish rule has developed and may have
become the law. This view, sometimes
referred to as the doctrine of correlative
rights, parallels the reasonable-use the-
ory, which developed out of the ear-
For a discussion of the divergence be-
tween legal and hydrological concepts of
ground water, see the article by Thad G.
McLaughlin in this issue (p. 447).-
Editor.







FLORIDA WATER LAWS


lier natural-flow doctrine in the case
of surface watercourses. Under the
correlative-rights theory as applied in
some jurisdictions, a taker is limited to
his proportionate share of ground water
according to his surface area as com-
pared with the whole area overlying
the water supply. Other courts have
used the term as limiting the taker not
on a proportionate basis, but rather on
a reasonable-use basis. This interpre-
tation places no limitation upon the
quantity of water to be taken so long
as the use is reasonable and is made in
connection with the utilization of the
surface. Under this rule, however, a
court may prevent the transfer of
ground water from the land from which
it is lifted if this operation is detri-
mental to a neighbor's extraction and
use on his own premises.
In two recent cases (15, 16) the Su-
preme Court of Florida has apparently
adopted the doctrine of correlative
rights with respect to percolating water,
but in neither instance was the court
concerned with the problem of how
much water a defendant could take.
The issue of the right of a municipal
water works to make unlimited with-
drawals was presented in 1953 (17).
Because of salt water intrusion along
the coast, the county-owned Pinellas
County water system decided to sink
wells in an inland county road right-of-
way. The circuit court for the county
enjoined the drilling of the wells but
did not, however, pass on the basic
problem of the amount of water that
could be withdrawn. Instead, the court
granted the injunction on the ground
that the county had only an easement
for road purposes and that the abutting
owners possessed the fee interest in the
road where the wells were to be drilled.
The county would therefore be required


to condemn a fee interest before it
could drill the proposed wells. How
much water it could withdraw after
acquiring such an interest is still un-
determined, but that question may be
answered in pending litigation involv-
ing another well field in the same
system.
It is evident that in ground water,
as in surface watercourses, the law of
Florida does not provide very definite
answers about the amount of water that
may be taken by an overlying land-
owner, nor does the current law give
to the first user any assurance that he
will be permitted to continue appropri-
ating the same amount of water when
later users begin to compete for a lim-
ited supply. Moreover, even if the
legal rules governing use under the
doctrine of correlative rights are for-
malized, the practical difficulties in es-
tablishing the land area overlying the
water supply and the extent of the sup-
ply itself might place the cost of ground
water litigation beyond the reach of the
individual landowner. In that event,
in areas of shortage, economic competi-
tion might well take the place of litiga-
tion, with those who could afford the
highest lift getting the water. Such
has apparently been the experience in
parts of California (18).
Possible Legislation
One remedy for the uncertainties in
Florida's water law would be the re-
placement of case law with a compre-
hensive water code. The code could
establish a new administrative agency
with power to allocate and control the
use of water in Florida, perhaps plac-
ing usage on a prior-appropriation
basis, as has recently been done in Kan-
sas (11, 19) and has been suggested
in South Carolina (4). Such a solu-


May 1955







FRANK E. MALONEY


tion provides a certain and definite
guide for future users, and is, there-
fore, attractive. Legislative adoption
of the prior-appropriation doctrine in
the Southeast has been urged (9).
Any attempt to change the water law
of Florida drastically would raise seri-
ous legal problems. The Fourteenth
Amendment to the US Constitution
provides that no state shall deprive any
person of his property without due
process of law. The Declaration of
Rights of the Florida Constitution con-
tains a similar due-process provision.
The common law has traditionally
looked upon water rights as property
rights rather than rights of use, and
such property rights, attached to the
land to which they are appurtenant,
are not lost through nonuse. Hence,
to extinguish water rights legislatively
without compensation, by establishing
the doctrine of prior appropriation,
under which the total supply might go
to a prior appropriator, would seem to
be a violation of due process of law.
A state does, however, have a right
under the police power to regulate vari-
ous activities of its citizens, including
the use of their property, if such regu-
lation is necessary to protect health,
safety, and welfare. It is upon this
basis that Kansas, where the supply of
water is limited, can legally bring about
a statutory change from the common-
law approach to the doctrine of prior
appropriation (20). It is one thing,
however, to use this justification in a
semiarid state like Kansas, and another
to argue it successfully in a state like
Florida, in most parts of which the
supply far exceeds the demand. If an
attempt is made to introduce prior ap-
propriation, a preamble to the statute
might be helpful. Such a preamble,


indicating that changed economic con-
ditions have created an emergency in
which the public welfare demands the
maximum beneficial use of this natural
resource, might provide justification for
the legislation. Even so, it seems
doubtful that such a law would be held
constitutional in Florida under present
conditions of water use. It is pointed
out, however, that a change to a modi-
fied form of appropriation, justified as
a legitimate exercise of the police
power based on economic necessity, is
feasible in Wisconsin, a state with
problems like those of Florida (10).
An alternative approach is suggested
by recent legislation in New Jersey.
The legislature in 1947 empowered the
division of water policy and supply of
the State Dept. of Conservation to de-
lineate areas where diversion of the
subsurface and percolating waters ex-
ceeds or threatens to exceed the natural
replenishment (19, 21). In these spe-
cial areas, the law forbids new with-
drawals in excess of 100,000 gal with-
out a permit from the Division of
Water Policy and Supply, and the per-
mit may be refused if necessary to con-
serve the subsurface waters. The law
also provides for the sealing of aban-
doned wells and for supervision of the
drilling of new wells in such areas.
A law allowing all landowners to
make sufficient withdrawals for domes-
tic use, but regulating excessive with-
drawals in designated areas of control
while protecting already existing inter-
ests, is clearly a justifiable exercise of
the police power when limited to criti-
cal areas where demand exceeds sup-
ply. Moreover, it avoids one objec-
tionable feature of the prior appropri-
ation doctrine: it does not freeze the
use of water in what may become an


Jour. A W WA








FLORIDA WATER LAWS


uneconomic pattern, but is sufficiently
flexible to adjust to the changing needs
of the times.

Summary and Conclusions
As water use in certain areas of
Florida approaches or overruns the
available supply, the public interest de-
mands an accommodation of the in-
creasing uses to constant supply, so
that the maximum economic advan-
tage, both for the present and future,
can be secured from the resource. The
attainment of that end will depend upon
the state's water law, which will deter-
mine whether maximum economic
benefits are to be obtained or whether
one segment of the economy is to bene-
fit to the detriment of the rest.
The present status of the laws gov-
erning use of water in Florida is ex-
tremely uncertain. Older case law,
enunciated before the turn of the cen-
tury, adopts the English common-law
approach of maximum protection of
riparian owners on surface streams
while allowing complete freedom of
withdrawal to the owners of land over-
lying ground water supplies. Deci-
sions in later cases seemingly modify
these rules by engrafting the principle
of reasonable use as a limitation on the
landowner's absolute rights, thus mak-
ing the supply at least partially avail-
able for other uses. These rulings,
however, have not yet attained the
stature of precedent. The resulting
uncertainty may have the disadvantage
of discouraging potential users whose
presence would be of great economic
benefit to the state. Because in most
areas of Florida, supply still exceeds
demand, it may be fortunate that the
law has not yet become fixed. Correc-
tive action can be taken if the state


becomes aware of the need for laws
to encourage the most beneficial use
of the available water supply. As more
extensive demands are made, there will
be a rapidly increasing need to de-
velop an integrated system of laws for
controlling the use of both surface and
ground water. These laws must be
specific enough to encourage maximum
use by agriculture, industry, and the
public. At the same time they must
be sufficiently flexible to permit the
state to benefit from technological ad-
vances, and must not freeze water use
in a pattern that may at some later
date prove uneconomical.
A study is now needed to determine
and evaluate the existing water law of
Florida, both statewide and local. In
addition, a thorough study should be
made of the water law of those states
where the problem became acute at an
earlier period and resulted in legisla-
tion which has been in operation long
enough to be intelligently appraised.
Any such study must necessarily in-
clude an evaluation of the measures
adopted to control pollution which
blights the usable supply. These stud-
ies would provide the basis for a water
doctrine under which the surface and
ground water resources of the state
could be developed with maximum
benefit to the overall economy.
Florida is awakening to the prob-
lem. One of the first acts of its new
governor has been the appointment of
a citizens' committee on water re-
sources. When this committee be-
comes aware of the need, it may supply
the impetus for the development of up-
to-date water laws designed to make
and keep available Florida's greatest
natural resource for the best use of all
its people.


May 1955








FRANK E. MALONEY


References
1. SILLCOX, L. K. The Problem of Water
Resources. Jour. AWWA, 46:593
(Jul. 1954).
2. LANGBEIN, W. B. Municipal Water
Use in the United States. Jour.
AWWA, 41:997 (Nov. 1949).
3. WOLMAN, ABEL. Characteristics and
Problems of Industrial Water Supply.
Jour. AWWA, 44:279 (Apr. 1952).
4. Report of the Water Policy Committee,
General Assembly of South Carolina
(1954).
5. EVANS, HUGH C. Irrigation in Ken-
tucky as Affected by the Law of Ri-
parian Rights [Note]. Ky. Law J.,
40:423 (1952).
6. BAKER, G. B., JR. Irrigation With Non-
riparian Surface Water and Subter-
ranean Water in Kentucky. Ky. Law
J., 42:493 (1954).
7. BLACK, A. P. & EIDSNESS, F. A. In-
dustrial Water Supply in Florida.
Univ. of Florida Economic Leaflets,.
11:2 (Jan. 1952).
8. BLACK, A. P.; BROWN, E.; & PEARCE,
J. M. Salt Water Intrusion in Flor-
ida. Water Survey & Research Paper
No. 9, Florida Div. of Water Survey
& Research (May 1953).
9. BUSBY, C. E. The Beneficial Use of
Water in South Carolina-A Prelimi-
nary Report. US Soil Conservation
Service, Spartanburg, S.C. (Jun.
1952).


10. COATES, GLENN R. Present and Pro-
posed Legal Control of Water Re-
sources in Wisconsin. Wis. Law Rev.,
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11. Kan. Stat. Ann., chap. 82a, Art. 7
(1949).
12. PRESIDENT'S WATER RESOURCES POLICY
COMMISSION. III. Water Resources
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dix 3.
13. MALONEY, F. E. The Balance of Con-
venience Doctrine in the Southeastern
States, Particularly as Applied to
Water. S.C. Law Quart., 5:159
(1952).
14. Tampa Waterworks v. Cline. 37 Fla.
586, 595, 20 So. 780 (1896).
15. Cason v. Florida Power Co. 74 Fla. 1,
76 So. 535 (1917).
16. Labruzzo v. Atlantic Dredging Co.
[Fla.]. 57 So. 2d 673 (1951).
17. Koch v. Pinellas County. 5 Fla. Supp.
116, Circuit Ct., Pinellas Co. (Apr.
24, 1953).
18. HARDING, S. T. Water Law in the
United States With Particular Refer-
ence to the Western States. Civ.
Eng., 22: 696 (Sep. 1952).
19. BECHERT, C. H., ET AL. Current Devel-
opment in Ground Water Law. Jour.
AWWA, 41:1002 (Nov. 1949).
20. SCURLOCK, JOHN. Constitutionality of
Water Rights Regulation. Kan. Law
Rev., 1:125, 298 (1953).
21. NJ. State Ann. Tit. 58, chap. 4A
(1939).


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