Title: Opinion File 76-73 thru 76-93
CITATION THUMBNAILS ZOOMABLE
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STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003462/00001
 Material Information
Title: Opinion File 76-73 thru 76-93
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 76-73 thru 76-93
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 15
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003462
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
( ( /I7/

? I CARLTON. F-.DS. WARD. EMMANUEL. SMITH & e"TLER. P A. 7
ATTORNEYS AT LAW '
GImIS E. C.jaR 1877-1968 TAMPA ORLANDO PENSACOLA JOHN G. BAKER
O. REAVES 1877-1970 MARVIN GREEN
DO L E. CA.ON 1885-1972 DAVID ELMER WARD
OF COUNSEL
.l TTHE EXCHANGE NATIONAL BANK BUILDING
". LO M. /BOALLA STEPHEN T DEAN R 0. BOX 3239
EoWAR C. INS DAVISSON F. DUNLAP TAMPA. FLORIDA 33601
THOMAS O. ITKEN JosEPm D. EDWARDS
MICHAEL D. NNIS CHARLES H. EGERTON TEL. (813) 223-536 KEY WORD
JAMES W. ALT MICHEL G. EMMANUEL .
RICHARD H. 3ARRY JAMES O. FERGESON. JR.
DARnYL M. BLOODWOR D. WALLACE FIELDS
JOHN W. Bo 'LT LEONARD H. GILDERT
STEPHEN J. 3OZARTH EURCH Z. GRIFFIN
PATRICK B( WN RUTH B. HINES
ALBERT D. C POUANO HAROLD C. HUSKA
THOMAS A.CARK THOMAS F ICARO. JR. R; ,' e /c i
PRESTON O. COCKEY. R WILLIAM D. KEETTEL
ERNEST L.C RRIN CHARLES F KETCHEY. JR. C T 3-73
EDWARD I. CI TLER EMILY WORTMAN LAwYER

MEMORANDUM



TO: Lieutenant Governor J. H. Williams
Chairman, Governor's Property Rights Study
Commission

FR M: Peter M. Dunbar, Esquire, Pasco County Attorney
Jacob D. Varn, Esquire
Roger D. Schwenke, Esquire

RE: Rights to Consumptive Use of Ground Water


i I. INTRODUCTION


For many years people have generally believed that Florida
is blessed with an unlimited supply of water. It has been
as med that "underground riverst or some other unknown and
un plainable source will provide the citizens of the State of
Flrida with an over-abundant supply of water. We now recog-
nip that there are no undergroundd" rivers" or unknown sources,
th t water is a limited resource and that the demand is approach-
in or exceeding the supply in certain areas of the state.
As demands for water continue to increase, competition for the
wa er will also increase. In recognition of these facts, we
art now implementing and devising various regulatory efforts
to (1) achieve maximum and efficient utilization of our
wa:er resources, (2) meet our increasing demands for water,
(3 protect and conserve our water resources, (4) maintain
ou high quality of life, and (5) protect our natural
resources.

The purpose of this memorandum is to describe the nature
of the property rights that a property owner has to the con-
sui tivc use of water. We are considering any use of water
thia decreases the quantity of water available for use by
r ot rs as a consumptive use. Additionally, we are limiting


I I







Mem randum to Lieutenant Governor J. H. WilliLms
Pag 2


our efforts to describing the nature of-the rights with
res ect to ground water that is, water which flows or is
con ined in the ground. We will not describe the nature of
the rights to surface water -that is, water which flows or
is contained on the surface, such as, rivers, lakes, streams,
and ponds. Since surface waters currently account for only
107 pf the fresh water we use in Florida and the problems
ass ciated with the allocation of surface water are so
di ferent than ground water, we have elected not to include
su ace water in our discussions, except to the extent that
it as a bearing on ground water rights.

As indicated above, we have no unknown or mysterious
sol ces of water. Water has an identifiable source. When
gro nd water withdrawals are made, we can determine where the
wat r is coming from and we can measure to some extent the
ef cts of the withdrawals. Withdrawals of ground water from
an rtesian aquifer will cause some changes in the potentiometric
su ace of the aquifer; will cause changes to take place,
sut equently, in the water table of the shallow aquifer; and
wi ultimately be reflected in a change in the amount of water
av4 lable as surface runoff. These changes in turn cause
chi ges in the ground water supply itself, in the water re-
lat d surface conditions, and through some mechanism, in the
ch acter of the land surface. The resultant effects may be
low red water levels in wells, declines in the potentiometric
sur ace, lowered lake levels, reduced stream flow, salt water
int usion, the formation of sinkholes, vegetation changes or
an combination of the foregoing. In determining what consti-
tu- s a safe withdrawal from an area, all of these effects
mu be considered. In this memorandum we are concerned with
th allocation of water among those parties who have a right
to he water. We are not concerned with determining how much
wal r can be safely withdrawn.

As we pursue our efforts to maximize the utilization of
ou water resources, it is imperative that we be ever mindful
th such regulatory devices will require the regulation of
pr ate property and that these regulations will bring charges
by the landowner that his property is being taken without full
coi ensation.

II. NATURE OF PROPERTY RIGHTS IN WATER

Water rights are classified, protected and administered
un er two principle doctrines in the United States, the
re sonable use doctrine, also referred to as the riparian
ri hts doctrine, and the prior appropriation doctrine.1


I






e. ierandum to Liee nant Governor J. H. Willms -"
Pa e 3


Un er both doctrines, water rights are considered as "usufru ar
a cLght of use and not an interest in the corpus of the water
su ly. It is the use of water and not the water itself which
is he subject of the property right.

That right to the use of water under both the prior appro-
pr ition doctrine and the reasonable use doctrine is generally
co idered to be an interest in real property.2 Most juris-
di ions treat this water right as an interest in real property
fo the purposes of determining title in a quiet-title action 3
a nrtgage-recording requirement, satisfying the statutes of
fr ads, descent and inheritance, and taxation.4 Likewise, a
wa er right, like other property interests, may be sold or
ot rwise transferred, such as by leasing the right to another
pacty or by descent through the provisions of a will.5
FlI ida, like most eastern states, recognizes riparian
ri gts as property.6

Several aspects of the reasonable use/riparian rights
do trine are worthy of further mention. The major feature
of he reasonable use doctrine is that it affords similar
ri ,ts to each riparian owner or to the owners of land
ov flying the same source of water supply. Moreover, under
th reasonable use doctrine a riparian right to water exists
wh her or not the use is being exercised. Consequently, a
ri nrian can initiate a use any time and insist that his
ri ,ts be respected or that a share be allotted to him.

The rule of correlative rights is almost identical to
th reasonable use rule and has been followed in California.
UnC r the correlative rights rule the water users are afforded
a proportionate share of the water based on land ownership.
Wa ir users under the reasonable use doctrine are treated /
sit larly but the method of allocation is not fixed. While
Fla ida courts have traditionally followed the reasonable use
do rine, the Florida'Supreme Court has also said that "the
pr )erty rights relative to the passage of waters that naturally
pe colate through the land of one owner to and through the land
of another are correlative."7 This at least suggests that the
cou ts may apply the rule of correlative rights.


III. GROUND WATER RIGHTS

(A) REASONABLE USE DOCTRINE

Ground water falls into two legal classifications, either
uno ground streams or percolating waters. Depending upon the


..(C~. I


I


------1---+7





6(76
Men nrandum to Lieutenant Governor J. H. Williams
Pag 4


leg l classification of the ground water, ground water has
tr nationally been subject to two separate and distinct
bo des of legal rules. It should be noted, however, that
th e legal classifications are artificial. Today hydrologists
gen rally agree that ground water is but one phase of the
hy< ologic cycle and that ground water is in constant move-
me i. Most importantly, hydrologists know that all water is
in relatedd and interdependent and should not be dealt with
as :hough it had separate and distinct classes. Nonetheless,
we continuee to use different legal principles for each
cl asification.

The Florida Supreme Court has followed the traditional
cl sifications of ground waters either as underground
steams or as percolating waters.) Accordingly, the Florida
Su eme Court has recognized that an underground stream must
hae the same characteristics as a surface stream, that is, / -
it ust have a permanent, distinct and well-defined channel.,.-'
Th Court went on to recognize that the rules of law which
govern the use of surface stream are applicable to underground
streams and that ground water is presumed to be percolating
unless it is affirmativelyshown that the water is flowing
in an underground stream.,S)

/ Percolating waters include all waters which pass through
the ground beneath the surface of the earth without a definite
c nnel and which are not shown to be supplied by a definite
fl wing stream. These waters ooze, seep, filter and otherwise
ciculate through the interstices of the subsurface strata
without definable channel, or in a course that is not discoverable
f m surface indications without excavations for that purpose.ll
C pling the presumption that all ground waters are percolating
wih the understanding that hydrologists have of our ground
w er system, we will base our discussions on the notion that
a] ground waters are percolbating waters.

The English Common Law with respect to rights in perco-
1 ing waters was not developed until 1843 in the case of
A on v. Blundell,12 Under this doctrine, percolating waters
c6 stitute part and parcel of the land in which they are found
ai belong absolutely to the owner of such land who may without
1- ability withdraw any quantity of water for any purpose even
th ugh the result is to drain all water from beneath the
a oining lands. At an early date, the American courts ex-
pr ssed dissatisfaction with the absolute ownership rule and
b, an applying what has come to be known as the "reasonable


r^





^ .-^ 60-- 77
Me orandum to Lieutenant Governor J. H. Williams--
Pale 5


us rule". Generally, the rule of reasonable use is an ex-
pr ssion of the maxim that each landowner is restricted to a
re sonable exercise of his own rights and a reasonable use
of his own property, in view of the similar rights of others.13

In 1956, the Florida Supreme Court followed the reaso--
a e use rule in a case involving percolating ground waterl)
In this case, the Florida Supreme Court rejected the absolut
oviership rule and expressed its version of the reasonable use
r e as follows:

"The opinions expressed in these cases
harmonize the pronouncements in Labruzzo
v. Atlantic Dredging Const. Co., 54 So.
2d 673, 29 A.L.R. 1346, that the American
courts have receded from the old common
law rule that an owner had an unrestricted
right to draw percolating water from this
land and to adopt the rule that the right
is bounded by reasonableness and beneficial
use of land. 15

Under the reasonable use rule, as applied to surface water,
ec h riparian owner has the right to make use of the water
sA ject to the equal rights of the other riparian owners. Conse-
q ntly, no riparian owner can withdraw all of the surface water
si ice this would be unreasonable because it would interfere
wi h the equal rights of the other riparians. Under a "pure"
re .sonable use rule as applied to percolating water, an over-
ly .ng landowner could withdraw a quantity of water that damages
a neighboring landowner so long as the water were being used
fc a beneficial purpose on the overlying land.16 A number
of eastern states have abandoned this "pure" reasonable use
ru e for percolating water and have adopted a reasonable use
r .e as to percolating waters that is similar to the reason-
ab e use rule governing riparian rights in surface waters.17

To date, the Florida Supreme Court has followed the trend
so by other eastern jurisdictions in following the/reasonable
us rule similar to that governing riparian rights.8)

Based on the Florida cases to date and the common law,
gr und water rights can be characterized as follows:

1. Owners of land overlying a ground water basin
have the right to withdraw water and that
right is bounded by reasonableness and
beneficial use of such waters.19


I




( ::7 (

7 6--78
Memo .ndum to Lieutenant Governor J. H. Williams
Page

S/ 2
The rights to the water are property rights
and the rights of one landowner wA- re-
spect to another are correlative 0, O,

The rights of each landowner are restricted
to a reasonable use of his property as it
affects the waters underlying the adjacent
properties.21

4. The right of each landowner is equal and
correlative to the right of all other
owners similarly situated, and the right
exists whether or not it is presently
being exercised.22

consider the case of two adjacent landowners who are with-
draw ig ground water for use of their overlying property where
their is insufficient water to supply fully the requirements
of b th. Under this set of circumstances, in a jurisdiction
such as Florida, one or both of the landowners would have to
redu e their withdrawals depending upon the amount of water
avai able. Based on the quantity of water available, a court
would equitably apportion or distribute that quantity of
wat to the landners after considering the purposes and
uses to which these landowners would be placing the water. The
ulti ate decision will depend on the particular facts of the
indi idual case. It should be recognized, however, that as
addi ional landowners want to initiate new water uses that
are reasonable uses, the landowners will once again face the
prol em of equitably distributing the water.

If in this example, it could be shown that one of the
lan owners was wasting the water or making an unreasonable use
of te water, the other,landowner could seek the appropriate
judj ial relief to eliminate or prohibit the wasteful or un-
rea nable use.

In all of the cases above, it should also be remembered
tha: priority of use establishes no priority of right, i.e.,
one cannott claim superior right merely because he used the-
wat first.

The problem becomes somewhat more complex when a land-
own : begins transporting the water beyond his overlying land.
In )56 when the Florida Supreme Court23 adopted the reasonable
use ule, the court clearly stated that the right to withdraw
wat "is bounded by reasonableness and beneficial use of the





6 ( 6-79
Me irandum to Lieutenant Governor J. H. Williams
Pa 7


la ". In this case, the Supreme Court reinstated a complaint
to allow the affected landowner the opportunity to prove his
al gations that the large withdrawals of water were unreason-
.* ab and would result in irreparable injury to his property.
;* .' n his same case, the Court recognized that a governmental
bo "is not in a favorable position siy because the
wa r drawn is to furnish the public" _---- ---- .
If the Florida courts followed the strict common law rule,
th overlying landowner will be confined to using the water
foL reasonable and beneficial uses on the overlying land, just
as he riparian owners are confined to use.on the riparian
la In 1927 the Florida Supreme Court25 elected to modify
it application of the surface riparian rule by finding that any
pe on may divert the flood or excess waters to lands not
ri rian and even beyond the watershed of the stream. The
col t reasoned that these types of diversions should be
all able since the water is of "no substantial benefit to
the riparian or his land". Assuming that the Florida courts
wo id continue to apply the same reasonable use rule to
gro nd water as has been applied to surface water, it is
rea unable to suggest that the courts will permit the diversion
of excess ground waters to non-overlying nds, as the ,
Flo ida Supreme Court did in Koch v. Wick i In this context
ex ss ground waters means the amount or water not needed for
' rea onable and beneficial purposes on the overlying lands.


mad that would enable the water resources of Florida to be
"pi to the most beneficial use of which they are reasonably
ca ble, and so that waste and unreasonable use may be
mi mized", the Florida Water Resources Study Commission in
191 recommended to the Governor and the Legislature certain //c=-'
le station to accomplish these objectives. Included in the
le slative package was a proposal, which was enacted, to author
th diversion of all water in excess of reasonable use beyond
ril irian or overlying land.27 The adopted provision that
au orizes these diversions clearly implies that the uses on
ov lying land have a priority and that the right to divert
on applies as long as excess water is available.

Outside of the limited insight provided by these two Florida ,
cas s and the single statutory provision, it is helpful to
lo to other jurisdictions to establish an opinion on modern
de .sions concerning the transportation of water from the over-
ly g lands.


I _







Men randum to Lieutenant Governor J. H. Williams
Pagl 8


Clearly, the trend of modern decisions has been towards
the adoption of the reasonable use doctrine. Many states
ha~t had to resolve the conflict where there is competition
for water between a governmental unit, which wants to transport
gro nd water beyond the overlying lands, and the landowners
adj cent to the governmental wells or well field. As the i1
pub .ic water systems seek new sources of water to meet their
evo -increasing water needs, these conflicts are destined to
oc< r and recur.28

These decisions agree that under the reasonable use
do :rine an overlying landowner, including a municipality,
may not withdraw water and transport it from the overlying land
for sale or use away from the land from whence it was with-
drain, if the withdrawals impair the supply of an adjoining
lan owner to his injury. The use has been characterized as un-
rea unable because it is non-beneficial and is not for a
"li tful purpose within the general rule concerning percolating
war rs".29 One court went further and specifically recognized
th: the right to make a reasonable use of the percolating
wa: rs underlying one's land is a property right and is
us' iructary in nature.30

The courts have acknowledged that the principal diffi-
cu y in applying the rule of reasonable use is in determin-
ina what constitutes a reasonable use. Many factors, such
as the persons involved, the effects of the withdrawals, the
relative positions of the persons involved, the quantity of
water available, the nature of the uses, the dependability
of the supply, the climatic conditions, and the comparative
va le of their uses, have been considered when determining
whet is a reasonable use.31

Stated generally, the reasonable use doctrine provides
that "each landowner is restricted to a reasonable exercise of
hiE own rights and a reasonable use of his own property, in
view of the similar rights of others".32 A municipal corpo-
ration or a county water system seeking water for its resi-
derts or customers is subject to the same rules of law con-
ceining rights in ground water as is a private individual.33
Th( city or county is a private owner of land and the furnish-
inr of water to its inhabitants is its private business. As
onr court commented, "while it is imperative that the people
of the city have water, it is not imperative that they secure
it at the expense of those owning" lands adjacent to munici-
pa well fields.34




-( (-;

Me randum to Lief"hnant Governor J. H. Wil* 0ms
Paee 9 0-81


Although California has adopted the correlative rights
do trine, a review of the California cases is very helpful
be cause of the many similarities between the correlative rights
do trine and the reasonable use doctrine. Because the
co relative rights doctrine is almost identical to the reason-
ab le use doctrine, it is not uncommon to see courts in juris-
di tions that have adopted the reasonable use doctrine to dis-
cu s correlative rights as though it were the same as the rule
of reasonable use.35 Theonly difference in the two doctrines
is that when there is an insufficient supply.ofwater avail-
ab e the correlative rights doctrine allocates the water among
th reasonable beneficial users in proportion to land owner-
sh p J'whereas, under the reasonable use doctrine, there is
no fixed method for allocating the water among the reasonable
us rs. -

The Cal ornia Supreme Court in City of Pasadena v. City
of Alhambra, in an action to determine the ground water
ri hts within a basin and to enjoin an alleged annual over-
dr ft in order to prevent eventual depletion of the supply,
sz d:

"Generally speaking, an overlying right,
analogous to that of a riparian owner in
a surface stream, is the right of the
owner of the land to take water from the
ground underneath for use on his land
within the basin or watershed; the right
is based on ownership of the land and is
appurtenant thereto.... it is now clear
that an overlying owner or any other
person having a legal right to surface
or ground water may take only such amount
as he reasonably needs for beneficial
purposes.... In California surplus water
may rightfully be appropriated on
privately owned land for non overlying
uses, such as devotion to a public use or
exportation beyond.the basin or water-
shed....

... Proper overlying use, however, is
paramount, and the right of an appropriator
[earlier the California court noted that
this term refers to any taking of water for
other than riparian or overlying uses],
being limited to the amount of surplus,
must yield to that of the overlying owner


I"-






Meorandum to Li tenant Governor J. H. Wil ams 6y( 82
Page 10 -


in the event of shortage, .... As between
riparians, are correlative, and are re-
ferred to as belonging to all in common;
each may use only his reasonable share
where water is insufficient to meet the
needs of all."37

The position taken by the California Supreme Court under
tle correlative rights doctrine is.harmonious with the reason-
ab e use doctrine. The distinction between the correlative
ri hts doctrine and the reasonable use doctrine is that when
tl supply is inadequate to meet the reasonable beneficial
ne ds of the overlying owners; the correlative rights doctrine
re uires a sharing of withdrawals among landowners overlying
a common basin based upon his surface ownership.

There are areas in the State where we have a very good
ur erstanding of our ground water system. These understand-
ir s are possible primarily because of years of data collec-
ti n, study and experiences with the system. If the State
ad pts the correlative rights doctrine, in those areas where
we have a good understanding of the ground water system, the
ov relying owners will be able to make fairly close estimates
of the quantities of water they will have available when the
we cr resources are fully developed. This certainty is lack-
ir under the reasonable use doctrine. While the correlative
ri hts doctrine is capable of providing this certainty, it is
pc sible only if we have an understanding of the ground water
sy tem. There are many areas of the State where we have little
kr wledge of our water resources. In these areas we must
in tiate data collection programs and special investigations
il we are to engage in responsible regulatory management
decisions. The absence of an understanding of the ground
we er system cannot be cured by the adoption of any legal
pi nciple or concept.

Based upon the Florida cases, the trend of authority
in other "reasonable use" jurisdictions and the California
cc es, the water rights of an overlying owner who transports
th0 water for use on distant lands can be described as
fo lows:

1. The overlying owner has a qualified right to
use the water for reasonable and beneficial
purposes on non-overlying lands.38

2. The withdrawals for non-overlying uses must
not interfere with the reasonable uses of
the overlying owners on the land from which
the water is withdrawn.39




t


4-


( (

Memorandum to Lieutenant Governor J. H. Williams
Pa e 11


3. A property owner may not transport water off
his land if it results in damage or injury
to another landowner's water supply.0

4. When there is not sufficient water to meet
the reasonable uses of the overlying owners,
those owners who are transporting water off
the overlying lands must recognize the prior
right of the overlying owners, since such
transportation is not a "lawful purpose".
It is "unlawful" since reasonableness is
limited to purposes incident to the bene-
ficial enjoyment of the land from which the
water is withdrawn.4

5. The reasonable uses on overlying lands are
paramount and the rights of those who trans-
port for non-overlying purposes is limited
to the amount of the surplus or excess.42


(B) REASONABLE BENEFICIAL USE

With the passage of the Florida Water Resources Act of
19 2 (Chaptr 373, Flori-da Statutes), the legislaLure provided
th authority for the Department of Natural Resources to set
up a program for regulating the consumptive use of water.43
The Act requires that in order to obtain a consumptive use
permit, an applicant must establish that his use of the water
(1) is a reasonable-beneficial use, (2) will not interfere
with any presently existing legal use of water and (3) is
consistent with the public interest.44 "Reasonable-beneficial
use" is defined as "the use of water in such quantity as is
necessary for economic and efficient utilization, for a pur-
pose and in a manner which is both reasonable and consistent
with the public interest". As explained in the commentary
of the Model Water Code,'which is the foundation for the
Florida Water Resources Act of 1972, "the reasonable-
beneficial use" standard ... is an attempt to combine the
beit features of the reasonable use and beneficial use
rules.45

The net result of adopting the "reasonable-beneficial
us<" standard is to place the beneficial use limitation on
the present "reasonable use" doctrine. We have not replaced
the reasonable use rule, we have made an addition or limita-
tion to the doctrine. In spite of the inclusion of the word
"beneficial", the statutory definition is basically a restate-
mert of the present common law test for reasonable use.





r ,76-84
Me randum to Lieutenant Governor J. H. Williams
Pag 12


Practically, in the cases where the demands for water
ex ed the available supply, the results obtained under the
"re sonable use doctrine" will be the same as those obtained
un r the "reasonable-beneficial use standard".

The adoption of the "reasonable-beneficial use" standard
ha not moved Florida into the position of adhering to the
"p or appropriation doctrine". Throughout the Commentary
of he Model Water Code the drafters carefully pointed out
th r refusal to adopt such a system.46 Likewise, the 1957 /
Flo ida Water Resources Study Commission in its "Reportb o- .
th Governor and the 1957 Legislature" also rejected the
"p or appropriation" doctrine as a means for managing our
wat r resources. 1


IV. PROBLEM AREAS

(1) The Taking Issue

Because the right to the use of water is a property right,
th regulation of water use must be done in a manner that will
not be construed as a taking of property without just compen-
sat on. With various regulatory.efforts being undertaken
wit in the State, it is imperative that we regulate the re-
sou ce in a manner that recognizes the property rights of the
aff cted landowners, but also is fair and equitable.

Throughout most of the State the water supply is adequate
to ieet the present needs of all water users without damage
to property, persons or the resource. In these areas there
is little need for stringent regulation. However, as these
are s grow and the demands for water increase, the time will
con when the supply will be inadequate. When this time comes,
as t has in a few areas of the State, regulatory programs
wil be devised to allocate the water resources. It is im-
pox ant that these programs be set up so as not to restrict
unc institutionally a landowner's right to water.

To guide the implementation of these regulatory programs,
we eel that the State, through the Department of National
Res urces, must adopt a formalized policy. It is our recom-
mer ation that the State adopt the correlative rights doctrine
in he implementation of its various regulatory programs and
in he development of the State Water Use Plan. The correlative
rig ts doctrine has the advantages of (1) being almost identi-
ca] to the reasonable use doctrine, (2) utilizing a reasonable






7 6 -785
Me orandum to Lieutenant Governor J. H. Williams
Page 13


beneficial use standard that is comparable to the reasonable-
b eeficial use standard of Chapter 373, Florida Statutes, and
(3 having a definite method of allocation, when the supply is
inadequate to meet the needs of all users. Because the
co relative rights doctrine is virtually identical to the
re sonable use doctrine, it is unlikely that it could be
s: cessfully challenged as a taking of property without just
compensation.

If the State adopts such a policy, each landowner will
kn w the minimum amount of water that he.can reasonably
e >ect to always have available for reasonable-beneficial
uses. Presently, a landowner has no idea of the amount of
wa er that he has available for reasonable-beneficial pur-
p 3es. As pointed out earlier, under the correlative rights
d.:trine, the distribution of water for reasonable-beneficial
p.cposes is made in proportion to the ownership of the over-
lyLng land. However, the allocation is only necessary if
thi water needs exceed the available water supply.

In keeping with the foregoing, we recommend the adoption
of the following policy statement:

The landowner's ability to withdraw ground
water for use on the overlying land is a basic ele-
ment of the ownership and is a right inherent
therewith. It is a correlative right, co-extensive
and co-equal with that of the adjoining landowners,
and is a legally protectable right, whether or not
it is presently being exercised.

While the need exists to protect this property
right, there is also a need to protect the resource
itself. The challenge is to accomplish both ob-
jectives. The implementation of a regulatory pro-
gram and the adoption of the State Water Use Plan
incorporating the "correlative rights" doctrine of
reasonable and beneficial use achieves these ob-
jectives and is consistent with the Constitution,
case law, the statutory standard of reasonable
beneficial use and the trend of modern decisions in
other common law jurisdictions.

It is important to recognize that, if properly
implemented, this doctrine will minimize the
problem of the taking issue, and make moot the ques-
tion of compensatory damages for this property
right. This standard is one by which water may be


f 4-







Memorandum to Lieutenant Governor J. H. Williams
Pai e 14


allocated most equitably and beneficially among
competing water users, private and public, while
at the same time providing for the maximum protec-
tion, conservation and utilization of the resource.

A significant benefit to be gained from the adoption
of such a policy is that Florida could expect a different
ty e of well field development in the future. Historically,
tl city and county water systems have purchased small tracts
of land for the development of well fields. From these small
ti cts of land the cities and counties have pumped enormous
qu titles of water. This type of concentrated withdrawal
hat created problems for the water systems and the adjacent
p perty owners. For the adjacent property owners the con-
c treated withdrawals have led to lowered water levels in
th ir wells, lowered lake levels and sinkholes. For the well
f ld owners, the problems have come with the development of
ti property adjacent to the well field and the increased
de hands for water. As water is needed on the adjacent lands,
th well fields have had to reduce their withdrawals. Hope-
fuLly, if this policy is adopted, well field developers
wo ld be encouraged to develop well fields that were spread
ou over larger areas, thereby reducing the effects of the
w: hdrawals and, in all probability, prolonging the life of
th well field.

If the water rights are defined as recommended, we can
e minate the necessity of purchasing the fee simple title
f well field development. All the city or county will have
t purchase is the water rights to the property. This will
1 eve the landowner with the ability to utilize the overlying
a d for any number of purposes. There are a great many land
us s that are compatible with the development of a well field.
Al itionally, this should serve to decrease the cost of land
acquisition for water supply purposes.

(2) State Water Policy

At the present time there are five water management
districts in the State. Two of these districts have imple-
me ted regulatory programs for the consumptive use of water
p suant to Part II, Chapter 373, Florida Statutes. These
to districts utilize different permitting procedures and
f rs and, although both are in the early states of imple-
mentation, it appears that different concepts of allocation
ae being utilized. Consequently, depending on which district
is involved, water rights may be determined by the common
lw rule of reasonable use or a regulatory scheme based on
the reasonable-beneficial use standard. Assuming the same





( (


Me orandum to Lieutenant Governor J. H. Williams
Pae 15


fa ts were presented to each of the districts presently
exercising a regulatory function, it is possible and probable
tt t each district will make a different determination.
S1 uld this occur and an administrative appeal be taken to
th Governor and Cabinet, functioning as the head of the
De artment of Natural Resources, it is unrealistic to expect
af irmation of both actions.

This example points out the need and necessity for a
we l-defined state water policy. We must have a uniform state
wa er policy. Once this policy is defined, each of the water
management districts can implement the policy in such a manner
tl t it is capable of handling those situations that are
ur que to it because of a particular hydrologic or geologic
fD tor. Since each district is implementing the same statutory
pr visions through a delegation of authority from the Department
of Natural Resources, it is difficult to imagine that the
Le islature intended to establish different systems and
me hods for establishing water rights in Florida.

If the Department of Natural Resources establishes model
ru es and regulations with which the water management districts
m t substantially comply, but also provide for variances and
ex options because of unique or unusual circumstances, the
St te will have taken the first step towards the implementation
of a uniform state water policy.

(3) State Water Use Plan and the Implementation
of Consumptive Use Regulations

Efforts are now underway for the preparation of the State
W :er Use Plan, pursuant to Section 373.036, Florida Statutes.
In the absence of a well-defined state water policy, it is
d:ficult to envision how the State Water Use Plan can be
d eloped. Additionally, parts of the State Water Use Plan
art being developed by some of the water management districts,
co sequently, the possibility and probability of inconsistent
o hectives and methodology is present.

As noted earlier, two of the water management districts
hare implemented consumptive use permitting programs. From
a planningg viewpoint, the development of the State Water Plan
should be the first step. It is implied in Chapter 373 that
thM implementation of the consumptive use permitting programs
sh uld be consistent with the State Water Use Plan. With these
pr grams being implemented without a State Water Use Plan, it


__ __







Me orandum to Lieutenant Governor J. H. Wilxiams ------
Pa e 16


cai be expected that some of the approved consumptive use
pe mits will be in conflict with the State Water Use Plan. To
a< id this problem, during these early stages our efforts should
be directed towards the development of the State Water Use
P n rather than consumptive use permitting programs. Only
i those instances where we have a water shortage or a probable
we er shortage in the near future is there an immediate need
f consumptive use permitting programs. In the absence of a
c Qar state water policy and a State Water Use Plan, can it
be determined that a use will be a reasonable-beneficial one?
Pz bably not.

Another potential problem in the implementation of a
cc sumptive use permitting program is the possibility of
de eloping into a prior appropriation system. As pointed out
in the two reports that have served as the foundation for
tl statutes enacted by the Florida legislature, the prior
ap ropriation approach has been considered and specifically
re ected. Since the legislature has rejected the prior appro-
p: action doctrine, it is unlikely that a court would uphold a
re ulatory program based on prior appropriation.

A prior appropriation system, if implemented, can
g(q rate numerous problems. For example, if implemented,
t i day will come when a district will have allocated all of
t1i water on the basis of "first in time, first in right";
at that point, all future applicants will have to be denied
be cause there is no water available. Since the right to
w er exists even though it isn't being exercised, it is
do ibtful that this right can be denied in the absence of
co sensation.

Provision was made in the Water Resources Act of 1972
fo" instances where there was not a sufficient quantity of
wa er to meet all the.demands for water. A careful reading
o' Chapter 373 and Section 373.246, Florida Statutes, clearly
in icates that the watei shortage condition contemplated is
a emergency type situation, a rare event of the type that
ma has little control over, such as a prolonged drought.
It was not envisioned that water shortages would be created
b the implementation of consumptive use permitting programs.
I: doesn't seem realistic to implement a system that will
le d to a shortage or disaster. These problems can be
av ided by the adoption and implementation of the recommended
po icy statement.


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Menorandum to LiC.enant Governor J. H. Willams -
Pale 17


s (4) Coordination and/or Consolidation of Land
Use Regulation and Water Use'Regulation

On the state, regional and local levels of government,
invariably one body is engaged in land use regulation and
another in water use regulation. Local government makes land
use decisions daily, while at-the same time, the water manage-
me t districts are regulating water use. -On the state
le el, the Division of State Planning is preparing a State
La d Use Plan and the Department of Natural Resources is
pr paring a State Water Use Plan. Land use cannot be separated
frm water use. What can someone do with a piece of property
wi hout water? What you do with a piece of property affects
the water resources. What you do with the water resources
a ects the land. Land use activities must go hand in hand
wilh water use. Regulatory and planning activities for land
us and water use on all levels should be placed in one
agency or unit. This is the best way to insure a fully
coordinated planning and regulatory process. Too often, re-
zling a piece of property for residential or industrial
pu poses carries an assumption, perhaps erroneous, that there
w 1 be an adequate water supply.

The Green Swamp is an excellent example of why land use
ar water use must be regulated and planned by a single
Se. ity. In recent years, the citizens have learned of how
th Green Swamp is the head waters for the Peace River,
Hi sborough River, Oklawaha River, Withlacoochee River and
R dy Creek as well as a major recharge area for the Floridan
at lifer. Recognizing the significance of the Green Swamp to
th water resources of this State is one of the reasons why
it was designated as an "area of critical state concern".

(5) Regulating, Protecting and Conserving Our
Resources

As government continues to provide additional services
to the citizens, in efforts to economize and be efficient care
mm t be taken with the duties and responsibilities vested
in governmental agencies. For flood control, conservation,
dr inage and water supply purposes, rivers have been channel-
i ,d and straightened, lake levels have been stabilized,
w lands have been permanently flooded and drained and canals
ha e been constructed to the Gulf and Atlantic Ocean. Recently,
i: has been shown that some of these projects were mistakes;
i: under consideration today, many would never be constructed.
Th adverse effects of many of these projects will be felt
fo years to come and, if correctible, they will require




"p-\






M orandum to Lief'nant Governor J. H. Wily'ms i62 L
P e 18


v t expenditures of public funds. Many of the agencies
t t have created the problem and damaged the resource are
n responsible for protecting and regulating the resource.

As power is granted to agencies,.consideration must always
be given to the other functions which the agencies exercise.
re roles are compatible, one agency should handle the
d 1 roles. Where the roles are incompatible, two agencies
s >uld handle them; Those agencies charged with the responsi-
bb ity of protecting, regulating and conserving our resources,
s muld not also be charged with the responsibility of develop-
i the same resource it regulates. With two agencies, each
s king to perform its own function, a healthy conflict
s uld exist and in the end the public interest should be
b t served. For example, an agency which is vested with
t i authority of regulating our water resources should not
e .rcise a water supply function, since these roles are
i compatible. However, an agency exercising flood control
f actions could also be vested with water supply functions
s ce flood control and water supply are compatible.

V. SUMMARY


The right to the use of water is a property right.
ile there exists the need to protect this property right,
a eed also exists to protect our water resources. The
r source cannot be considered inexhaustible. Water demands
11 continue to increase and this continued development
S1 modify and complicate the water system. If Florida is to
Sieve optimum development and management of our water re-
s rces, it must define what a water right is, establish a
ate water policy, develop a State Water Use Plan and,
Sally, implement a regulatory program in conformity with
is definition, policy-and plan.


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'* J


t7


S76 91
FOOTNOTES 0 .-
~ ..Jc- /Q c "-- + ... .. '-+#".2

1 F. Trelease, H. Bloomenthal and J. Geraud,- I
Cases on Natural Resources 1-8 (1965).

2. Jarvis v. State Land Department, 479 P.2d 169 (1969).
See also, R. Clark, Water and Water Rights 53,345 (1967).

3. California Water Service Company v. Edward Sidebotham "
and Sons, Inc., 37 Cal. Rptr. 1 (1964); Higday v.
Nickolaus, 469 S.W.2d 859 (1971).
4. R. Clark, Water and Water Rights 53, 345 (1967).

5. Id. at 455.
6. F. Maloney, S. Plager, and F. Baldwin, Water Law and
Administration the Florida Experience, 31 (1968).
SI/VCason v. Florida Power Co. _6 So. 535, 536/ (1917). 7L4 1
8 Tampa Waterworks v. Cline, 20 So. 780 (1896). -'7 F4. ST
9 Id. at 782. /
10 Id. at 784.
1: 93 C.J.S. Water 86.
12 Acton v. Blundell, 12 M & W 324 (1843).
13 Farnham, Water and Water Rights, Vol. II,-2718, 2719.

4. Koch v. Wick, 87 So.' 2d 47 (1956).
15 Id. at 48.
16 F. Maloney, S. Plager and F. Baldwin, Water Law and
Administration the Florida Experience, 157 (1968).
17 Id. at 156, 157, 158.
I1l Cason v. Florida Pow& Co., 76 So. 535 (i-9t77-Koch v.
S Wick, 87 So. 2d 47 (1956); Labruzzo v. Atlantic
Dredging and Construction Co. 54 So. 2d 673 (1951).1"
.) Labruzzo v. Atlanti redg' g and Construction Co.,
54 So. 2d 673, 675 1951);/Koch v. Wick, 8So. 2d
47, 48 (1956).



/ 'I
)'I S




( <

2 Labruzzo v. ,lantic dredging and Consup on Co.
54 So. 2d 673, 676 (1951); Cason v. Fl ida Power Co.,
76 So. 535, 536 (1917).
,(21 Labruzzo v. Atlantic Dredgirigand Construction Co.,
54 So. 2d 673, 676 (1951).

22 City of Pasadena v. City of Alhambra, 207 P.2d 17, 45
(1949); W. Fischer, Natural Resources Lawyer, Management
of Interstate Ground water, vol. Vii, No. ., 521, 525
(1974).
2 Kock v. Wick, 87 So. 2d 47 (1956).\V
24 Id. at 48.
(2 Tilden v. Smith, 13 So. 708 (1927). 3 i5
St 13-- (1956.
SKoch v. Wick, 87 So. 2d 47 (1956JL-$

i/- l Section 373.141, Florida Statutes (1971).
/' Koch...7.r 87 So. 2d_ 47_ 1956); Jarvis v. State Land
Department, 479 P~2d 169 (1969); Higday v. Nickolaus,
469 S.W. 2d 859 (1971); Schenk v. City of Ann Arbor,
163 N.W. 109 (1917); Meeker v. City of East Orange,
74 A. 379 (1909); Rouse v. City of Kinston, 23 S.E. 482
(1924); Canada v. City of Shawnee, 64 P.2d 694 (1937);
Rathrauff v. Sinking Spring Water Co., 14 A.2d 87 (1940);
f Township of Hatfield v. Lansdale Municipal Authority,
168 A.2d 333 (1961).

25. Higday v. Nickolaus, 469 S.W.2d 859, 866 (1971).
3C. Higday v. Nickolaus, 469 S.W.2d 859 (1971).
31. Id. at 866.

32. Canada v. City of Shawnee, 64 P.2d 694 (1936).
3-. Id. at 695.

34. Schenk v. City of Ann Arbor, 163 N.W. 109 (1917).

(' Labruzzo v.Atlantic Dredging and Construction Co., (
S 54 So. 2d 673 (1951); Cason v. Florida Power Co., 76 So. 535
(1917); Meeker v. City of East Orange, 74 A. 379 (1909).
SCity of Pasadena v. City of Alhambra, 207 P.2d 17 (1949).
SId. at 28; See also, California Water Service Co. v.
E. Sidebotham and Sons, Inc., 37 Cal. Rptr. 1 (1964).


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* I-





71793
(3p/ Koch v. Wick, 87 So. 2d\47, 8 (1956); Labruzzo v.
Atlantic Dredging and Co ruction Co., 54 So. 2d 673,
675 (1951).
39 Kock v. Wick, 8 So. 2d 47, 48 (1956); Higday v. Nickolaus,
469 S.W.2d 859, 866 (1971); Schenk v. City of Ann Arbor,
163 N.W. 109 (1917); Jarvis v. State.Land Department,
479 P.2d 169, 171 (1969); Meeker v. City of East Orange,
74 A. 379, 380 (1909).
4 Kock v. Widk 37 So. 2d 47, 48 (1956); Higday v. Nickolaus,
469 S.W.2d 859, 866 (1971); Rathrauff v. Singing Spring
Water company, 14 A.2d 87, 90 (1940); City of Pasadena v.
City of Alhambra, 207 P.2d 17, 28 (1949); Jarvis v. State
Land Department, 479 P.2d 169, 170 (1969); Meeker v. City
of East Orange, 74 A. 379, 382 (1909).

41 Higday v. Nickolaus, 469 S.W.2d 859, 866 (1971); City of
Pasadena v. City of Alhambra, 207 P.2d 17, 28 (1949);
Rathrauff v. Sinking Spring Water Company, 14 A.2d 87, 90
(1940); Township of Hatfield v. Lansdale Municipal
Authority, 168 A.2d 333 (1961).

42 City of Pasadena v. City of Alhambra, 207 P.2d 17, 28
(1949); Jarvis v. State Land Department, 479 P.2d 169,
172 (1969).

43 Section 373.219. Florida Statutes (1973).

44 Section 373.223, Florida Statutes (1973).
4 F. Maloney, R. Ausness & S. Morris A Model Water Code
173 (1972).
4i Id. at 81 and 158-159.


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