Title: Interbasin Transfers of Water in Florida: Common Law and Water Resources Act by Deborah J. Kemp
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00004154/00001
 Material Information
Title: Interbasin Transfers of Water in Florida: Common Law and Water Resources Act by Deborah J. Kemp
Physical Description: Book
Language: English
Publisher: The Florida Bar Journal/January 1982
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Interbasin Transfers of Water in Florida: Common Law and Water Resources Act by Deborah J. Kemp (JDV Box 43)
General Note: Box 18, Folder 1 ( Water Task Force - 1983 ), Item 30
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004154
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















,I














wafer -n I
Z-























. i *** *y


c cmmon rcaw and

- It-er ResOmrCes Acft


By Deborah J. Kemp


This article is an abridged
version of the first place
winner of the 1981 Frank
E. Maloney Environ-
mental Law Writing
Award. Sponsored by
The Florida Bar's Envi-
ronmental Law Section,
the award is given for the
best article on environ-
mental law submitted by
students of Florida law
schools.

Florida appears to be a water para-
dise. blessed i :th an abundance of
lakes, rivers, springs and ocean
shoreline. Unfortunately, water
problems loom on the horizon. South
Florida lh;s experienced a tremen-
do~~s poilpulation increase; St.
P''ti'rstloir, Sarasota anrd Fort Myers
ftre ;ia;n!ir, tlhe fastest growing cities
ir i I, iition. These municipal areas
Iti :;tiiwrs are facing water shortages
i;r1 l)llfi in the near future. North
Floridt, on the other hand, has not
cxperiencedl such a rapid growth in


population, and has seemingly abun-
dant supplies of ground and surface
water.
The possibility of diverting water
from northern Florida to supply
municipalities in southern Florida
has been a recent topic of heated dis-
cussion among administrative
agencies, local municipal planners
and private conservation groups.
This paper will examine the legal
mechanisms that regulate inter-basin
diversions of water. Although
Florida is a riparian state, it has adop-
ted. legislation to more efficiently
manage water. While inter-basin
transfers are common within some of
the districts, large-scale transfers
have not yet been attempted between
districts. The possibility, however, is
being given consideration. South-
west Florida Water Management
District (SWFWMD)) sponsored a
.study examining, among other al-
ternatives, diversion of water from
the Stiwannee River, in the Suwannee
River WMDN) to the Tampa Bay area.'
That idea will serve as an example
during the following discussion of
the means by which inter-basin trans-


fers will be accomplished, or not, in
Florida.
Common law
Florida and most other riparian2
states have adopted the reasonable
use doctrine3 as concerns water use.
The doctrine utilizes a comparative
approach to determine which uses
are reasonable under the circumstan-
ces. The amount consumed, purpose
for which used, and impact upon the
other riparian owner's uses are
factors considered in allocating
water between competing users of a
given water body.4 The most recent
statement of the rule by the Florida
Supreme Court was in Village of
Tequesta v. Jupiter Inlet Corp.,5 a
case concerned with rights to use of
ground water:
A landowner, who, in the course of using his
ox\n land. obstructs, divers, or removes .. .
wattr to the injury of his neighbor ... nimst be
[making] a reasonable exercise of his prolprie-
tary right. i.e., such an exercise as may be rea-
sonabl\ ne-essar\ foi som(e ustfieful lr eneficial
Iprpolse. sencrally relating to the land in
\\lhil thle \ .atirs are found.
A primary objective of the reason-
able use rule is to promote full


---------- ----- --I~






















Interbasin transfers of water


beneficial7 use of a w
riparian and overlying
amount of land owned
not determinative of tl
water he may use.8 Eac
are equal9 and subject
tion should other use
infringed. Hence, apple
doctrine of reasonable
inquiry into factual iss
sions are necessarily mi
by-case basis.'0
Application of the co
the Suwannee River ex
two issues which have
fronted in Florida to th
as other riparian jurisd
Tampa Bay is not a rip
and as such, may have r
the water. Purchase of
of riparian land may


Deborah i. Kemp graduate
versity of Florida law Schoo
a candidate for admission to
She was on Law Review and
for legal writing and appella
gratefully acknowledges tl
Richard lainann, director
Lawt Project of the Ulnivers
connertiont titi Ithis contest
puillishcd ori I4l (ilf of Ti
Env'ironrenthilanl d Land n Us
Gerald Reynohlds, chairman.


ater body by
owners; the
by the user is
he amount of
h user's rights
to modifica-
rs' rights be
ication of the
use requires
ues and deci-


barrier, but some courts have held
that municipalities owning riparian
lands do not have riparian rights, if
the water is not used to benefit ripari-
an land." Second, under the common
law, water use is a private right;
therefore a municipality or other
public entity may not have a right to
use water for a public purpose.'2


ade on a case- Riparian: the watershed limitation
Riparian, while literally referring
mmon law to to the banks of a river,13 has come to
sample raises mean land bordering on any body of
not been con- surface water, including lakes and
e same extent oceans." Courts have necessarily had
actions. First, to determine how far land could lie
arian owner, from the water body and still be con-
1o right to use sidered riparian. Of two competing
a small parcel definitions,"' the most used and least
remove the restrictive is the unit), of title con-
cept.'6 According to this concept, all
contiguous land owned by a single
riparian, regardless of when each
tract was purchased, may be watered
by the water body.17 If the unity of
i title concept were interpreted literal-
ly, a 120-mile strip of land running
from the Suwannee River to Tampa
Bay could be purchased, allowing
the purchaser to be considered a
riparian.
However, the unity of title concept
of riparianism is subject to two re-
lated restrictions. First, the amount
of water removed must be reason-
able with respect to any adverse ef-
ed from the Uni- fects on other riparian uses. 8 Second,
lune 1981,andis the watershed restriction dictates
The Florida Bar. that water drawn from one water-
Sreceived honors.
te advocacy. She body may not be used to water lands
he assistance of which drain into another water-
of Eastern Water shed.'g
itt of Florida, in The rationale is that water used
st. This paper is 1 id).
t Florida ar's land w within the \watershed will
e Law Section, II. drain back into the original water
body, thereby protecting other ripar-
ians' rights by forcing return of the
Water for future use. Implicit in this


.X


rationale is the principle that the right
to use is not limited to existing uses,
but includes future uses also.20 The-
watershed restriction is a vestige of I"
the natural flow doctrine,21 in that it
protects the rights of the downstream '
riparians to a flow undiminished in
quantity. The natural flow doctrine
was rejected by American courts,
which adopted the reasonable use i7
rule instead.2e2
In many riparian states the trend is dil
to permit inter-basin diversions of fall
water absent a showing of injury to
the other riparian lands or to the right he
to use of other riparians.23 Under the re
reasonable use rule, it is likely that
transfer of water outside the water-
shed, i.e., nonriparian use, would eni
merely be a factor to consider in de-
termining whether a use is
reasonable.24
F
Public use itl
Generally, at common law, diver- na
sion of water by a municipality or an
other public entity is not considered fce
reasonable.2s Two principles support iff'
these decisions: first, that a city with rih
many inhabitants is not a riparian C.ail
owner, -since it is not a private en-
tity;26 and second, that use of water t
by nonriparians is unlawful per se.27 Al
Courts have tended to be unsym- te
pathetic to the needs of municipali- b, e
ties when they have gone beyond -|il
their boundaries to take water. If the te
municipality's activity caused harm (r
to a riparian owner's use, the city tribt
would be enjoined from further use. Flori
It would then have to condemn the \etl
injured riparian's water right and pay was
compensation, or would have to pay te I
damages for the injury caused. (live
Public interest has not been a con- 0
sideration in riparian law of reason- Nc
able use.28 Courts have invalidated court
municipal ordinances that prohibited \ate'
exercise of private rights to use of previ
water, including recreational rights Floris
and other nonconsumptive uses, may
when the water body is being used volve
for a municipal supply. The statutes benel
have been held unconstitutional as are f,
takings of private property.29 Addi- Flori
tionally, municipalities and water siono
districts may lack standing to com- ripari
plain of injury because they are not henef
considered riparian owners.30 trollct
A municipality may obtain the niIcnt;
right to use water byI purchase, pre- Xoke
scripti )on, grant or eminent (domaini.31 Zrant
If it purchases the right, it is con- or ov
sidercd derivative, and inferior to the tual ir
reasonable uses of other riparians.3- Floi
If the right is obtained by prescrip-~ tial tr


J_
'~'Aw







tion, the use becomes lawful over
time, perhaps as an absolute right to a
quantity of water,33 or as a transferred
right, subject to other riparians'
claims.3" If the right to use is obtained
by eminent domain or grant, the
power must have been delegated by
the legislature.35
A few states, however, have recog-
nized a right to supply water to muni-
cipalities and courts have upheld
diversions on the basis that the use
falls within the domestic use cate-
gory, giving it high priority,36 or on
the basis that public uses of water
are superior to private uses." Lastly,
by common law, if no injury can be
shown, the municipality will not -be
enjoined from using the water.38

Florida common law
Florida courts have been consistent
with most other riparian states. The
natural flow doctrine was considered
and rejected. The rule of reasonable
use has been adopted for both sur-
face and ground water. Some
differences in treatment of water
rights have occurred, however, be-
cause each riparian state defines rea-
sonable use according to its own sys-
tem of values and priorities.
Although not specifically rejected,
the watershed restriction has not
been applied by Florida courts,
while public and private entities in
the state have been diverting water
for some time. This is perhaps at-
tributable to the conditions in South
Florida when it was being settled; the
wetlands were so vast that drainage
was necessary for economic use of
the land. Florida courts permitted
diversion of water even in the ab-
sence of legislative authorization.39
Notwithstanding this failure of the
courts to adhere to the common law
watershed restriction in the past, the
previously quoted statement by the
Florida Supreme Court in Tequesta
max cause the restriction to be in-
volved. The water should be used to
benefit "the land in which the waters
are found."40 In the early years of
Florida's land development. diver-
sion of water beyond the overlying or
riparian land was believed to be
beneficial to the land; today. uncon-
trolled drainage is known to be cletri-
ii,'tital to the land. A court imay in-
\,,ke the watershed restriction to
t'r.~at an inmnction when the riparian
,* erlyin! landowner proves e ac-
t.. irniljr to his right of n1 e.'1
I lorida declined to give preferen-
ti:tl treatment to water used for a


public purpose in Tampa Water
Works Co. v. Cline42 and later in
Koch v. Wick.43 In Tampa Water
Works the plaintiff was a private sup-
ply company under contract with the
city to provide its inhabitants with
water; the underground water sup-
ply being utilized was within the
municipality's corporate limits. Be-
cause the water supply company
could not show that it would be
damaged by the defendant's acts,
which exposed the ground supply to
the surface, the company was denied
injunctive relief."


In Koch v. Wick, a municipality
was drawing water from beneath
leased property in the county and
transporting it to the municipality.
The Florida Supreme Court reitera-
ted the holding of Tampa Water
Works that no preference is to be
given a use which supplies a public
need.45 Further, the court established
that the test of right to use requires
considering the reasonable and bene-
ficial use of the land. It was implied
that if the landowner could show
actual injury through impingement


^0.


<'N


EPER IENCE


For over fifth ars, Florida National has
invested hundreds millions of dollars for
corporate and individual trust customers. And
our record of performance is impressive.
Together with you and your professional advisors, we
can attain the results that you require from your ac-
count. We offer experienced administration, aggres-
sive cash and portfolio management, automated ac-
counting and securities clearing systems; all with an
emphasis on continual client communication.
Seek the experience and "know-how" of the trust spe-
cialists that are dedicated to helping you reach your
goals the Florida National Trust People.
PEOPLE WHO KNOW HOW.


F2 riMa innal

g Truas &
-.214 Hogan Street
Jacksonville, Florida 32231
Toll Free Telephone #1-800-342-1465, Ext. #5310
Member FDIC


_~~;ijr;r~Lri~Y'bblp~ ~"riYI -~U~^-------Wrpy-- --~-Y--~Y~P I _I -L~~YsePC-UUlr~(B*~(Y~IYC~CY--~- i-.Y~;,


;,
C
4
d




.* .*, ...


.. : : .: ... .





O- -a

: .. -
-- --




e- i f

Interbasin transfers of water


of his right to use of the water to
benefit his land, the municipal use
would be deemed unreasonable,
since it was of no benefit to the over-
lying land.46
At common law, any legal use of
water is equal to any other legal use
with the exception of domestic use.4
In Florida, where nonconsumptive
uses such as recreation and fishing
may compete with consumptive
uses, this concept of correlative
rights48 has had significant applica-
tions.
In Taylor v. Tampa Coal Co.49 the
right to use a body of water for recre-
ational purposes created a cause of
action in the riparian landowner for
another riparian's damage to the na-
tural condition of the waterbody
through consumption of the water
for irrigation purposes.
[The plaintiff's] use of the lake is no different
from the use of the waters of so inmny lakes in
this vicinity by bordering owners, and al-
though such use is to a large extent in the nature
of recreation, it, nevertheless, is entitled to the
same protection from damage and destruction
as that of the defendant ... in his agricultural
pursuits.5*

In view of Taylor c. Tampa Coal
Co. and Koch v. Wick. a public use
may be unreasonable if it impacts on
any other uses of the water body by
the riparian owners. Riparians need
not be using the water for consump-
tive purposes.
In the Suwannee River example,
there is evidence that the water table
at the diversion site would be low-
ered, thus affecting the water supply
of the riparians and owners of over-
lying lands.5" Since removing water
from the river would not constitute a
physical invasion of the land, and it is
unlikely that the affected land would
le rendered useless, the act of divert-
ing water from the Suwannee
)')rmiin.'-lv woI i(L not constitute '


public taking of private property.
The appropriator, however, could be
liable for intentional invasion if a
court finds unreasonable conduct un-
der the circumstances. The owners of
overlying lands would have to show
that an injury resulted from the low-
ered water table. The resulting injury
could be diminished water quantity
or quality.
In addition, there is evidence that
diversion of water from the Suwan-
nee would cause the delta area to
-have increased salinity which would
reduce the supply of marine and
freshwater life that spawns there.
Fishermen who are injured may also
have a cause of action for intentional
invasion. They', however, may be
challenged on their standing to sue if
they are not riparians nor owners of
affected lands.52
It appears that a public entity
shares the same right to use water as
any private party would. If the public
entity's use interferes with an al-
ready existing use that is reasonable
and benefits the surrounding land,
the public entity's withdrawal of
water from the area may be found to
be unreasonable under the circum-
stances.53 In Tequesta the Florida
Supreme Court suggested factors to
consider in determining reasonable-
ness: the reasonable demands of
other users, the quantity of water
available for use, and considerations
of public policy.5"
In Tequesta the court's definition
of reasonable use did not purport to
be inclusive. The Restatement 2d of
Torts has isolated nine factors con-
sidered by riparian law states in de-
termining whether a use is reasonable
with respect to other existing uses of
the waterbody: (1) purpose, (2) suit-
ability of the use, (3) economic value.
(4) social value, (5) extent of harm,
(6) ability to avoid harm. (7) adiustinu


the quantity, (8) protection of exist-
ing values, and (9) compensation.55
Some have not been pertinent
considerations by Florida courts,
while others are among the factors
considered.
The Suwannee River example may
be analyzed by application of the
above factors. First, as was pre-
viously mentioned, all legal uses are
considered reasonable; but when.
they become competing uses a court
will consider reasonableness of a use
under the circumstances. Each state.
has its own value system; Florida
appears to put a high value on pre-
serving recreational uses and on
preservation of the environment.
The latter is mentioned in Article II,
Section 7 of the Florida Constitu-
tion56 and the former was given pri-





Florida appears to put a
high value on preserving
recreational uses and on
preservation of the
environment




ority over irrigation in Taylor v.
Tampa Coal Co.57
The next three factors on the list
and the eighth one are consistent
with these priorities. Tourism is a
major industry in Florida:5" hence
there is great economic value in pre-
serving scenic beauty and maintain-
ing the availability of recreational
activities." A water body whose
primary use is for recreation and
scenic attraction would not be suit-
able for a consumptive use that could
damage the already existing uses.
Public policy would dictate that new
uses be compatible with the current
uses.
Consideration of social value or*
public interest60 would present the
full gamut of ethical and territorial
arguments between the two districts.
Should northern Florida be deprived
of the opportunity to protect its
water resources from depletion and
misuse because southern Florida -
allows unrestricted growth though it I
lhas inadequate water supplies? This .
factor may incorporate considera-
tions of conservation and protection .
of natural environments as provided
in Florida's Constitution. Prior renseN


W(
de
tin
pa
av
t.
CO
Th
tor
in i
be
foi
tiol

in

('01
dal
coi
tak
I-y
con
per
wat

the
eva
the
bad
ildi
deci
iinri
The
or ii

(-()IIf
the
proi
pun
aux-
of a
trim
are
"qui
pow

The
Pard

Ii

W-)

)ist

alre
SWI




- ..-. .


dealt primarily with public interests
as opposed to the interests of private
developers hoping to make a profit
wb building living units in southern
Florida. In contrast, the Suwannee
River example presents two com-
peting "public" interests: the interest
in ensuring a public suply of water,
against the interest in preserving
Florida's natural environment, its
public trust lands.68
Finally, the extent of the harm
-would seem to be considered only in
deciding whether to grant an injunc-
tion or merely to force an offender to
pay damages. Neither the ability to
avoid harm nor adjusting the quanti-
ty has been considered by Florida
courts in water allocation issues.
These concepts are interrelated fac-
tors: if one can avoid harm by adjust-
ing the quantity of water to
he consumed, then the use may be
found to be reasonable. Compensa-
tion, the final consideration, was dis-
cussed by the Florida Supreme Court
in Tequesta.62 Remedies include
damages, forced condemnation with
compensation for governmental
taking, and injunctive relief.
The major problem with use of the
common law to decide whether to
permit an inter-district transfer of
water is not the prejudice against
nonriparian uses incorporated into
the riparian system; this prejudice
evaporates in situations of need for
the sake of expedience. The draw-
back is an inherent quality of the
judicial system itself; courts can only
decide when a use is reasonable or
unreasonable when litigation arises.
The complainant must show loss of,
or injury to, a private right he holds
in order to have standing before a
cort.63 It is conceivable that under
the common law system, the entire
project of dredging, pipelines and
punping could be executed without
an\ interested person having a cause
of action under common law doc-
trines. In short, planning and policy
ar. needed, and the courts are not
equlipped nor constitutionally em-
po, ered to assume this burden.

The Florida Water Resources Act:
Part I

Implementation of a permit
\ etii under Part II of the FWRA
mtild replace the common law.6'
1'",. Siwannee Water \lanagemnent
I1 ict is ciirrently making plans to
jii,, consumptive use permits as is
already being done in SFWM)D,
S\\ FWiMD and St. John's WMD.65


To an extent, however, Part I of the
FWRA has already modified the
common law. For instance, the
districts are authorized to establish
rules and regulations to protect the
public interest and the affected
water users,"6 provided such rules are
consistent with the purposes of the
FWRA. They are empowered to
forbid the construction of new
diversion facilities."7 Further, the
districts may bring suits to enforce
their rules and orders, to enforce the
provisions of the FWRA, and "to
protect and preserve the water


resources of the state."" Presumably,
rules may be filed and enforced
under Part I of the FWRA, without
implementation of a Part II CUP
system or Part IV water works
regulation.
Moreover, the districts are
required to establish minimum flows
and levels for surface and ground
waters, taking into consideration
protection of nonconsumptive uses
and seasonal variations.69 The
minimum flow is defined as the level
"at which further withdrawals would
be significantly harmful to the water


CORPORATION INFORMATION
SERVICES, INC.




Corporate Services
Name Availability Filing Articles & Certificates
Retrieving Documents Corporate Searches
INSTACORP -
(Same day preparation and filing of
new Articles of Incorporation)
Uniform Commercial Code
UCC-11 searches, UCC-1 and UCC-3 filings, etc.

Motor Vehicle Records
Registration Duplicate Titles Title Transfer
Accident Reports Driving License Records

Courier Services
Airport
Buslines
Post Office Express Mail

Serve As Registered Agent
Foreign or Domestic Corporation
Others
C.I.S. will file or retrieve any document and/or
.information of public record in Florida
,' and Nationwide.

al-tn 2, /$f e a' / -OC7 -3942 -8S6'

P.(. Box 10329 Telephone 216 S. Duval St.. Ste. 208
Tall.hase 39.-302 014/222-9171 Tanllahassee 3301
'i i

bI~iW




* '*-9iWttifTIfiJ U ILA I. m H T E"" ^"" '- ''' ""' -- '' li niir


Jnterbasin transfers of water


resources or ecology of the area."70
Once established, the minimum flow
or level could be enforced by district
rules.
The vagueness of the statutory
definition, however, would allow a
needful party to challenge the
accuracy of the flow level
established by a district, if that party
would be precluded from
withdrawing water. The Suwannee
River example demonstrates this
statutory interpretation problem. To
determine how much water can
safely be withdrawn from a
watercourse, hydrologists have
relied upon the concept of excess
flow. It is the amount of water that
exceeds the minimum flow. The
United States Army Corps of
Engineers determined the Suwannee
River's excess flow by subtracting its
lowest average monthly flow from its
overall average flow.n7
Use of this method to calculate
excess flow for the Suwannee River
fails to recognize the ecology of the
delta area at the river's mouth. The
Suwannee River's low flat delta area
is the richest estuary in the
northeastern Gulf of Mexico.72 A
study sponsored by Suwannee WNMD
revealed that small reductions in the
amount of water flow two miles from
the river's mouth would result'in a
significant increase in the salinity of
the estuary area.73 While the wildlife
and fauna in the delta area can adjust
temporarily to more saline water
during periods of low flow and to use
saline water during flood periods,
prolonged periods of high salinity
would kill the plants and animals.74
The reduction in quantity of fish
spawning in the estuary could have
an adverse impact on the fishing in-
dustry in the northern Gulf of Mexico.
Therefore, the FWRA's dictate


that the best available information be
used to establish the minimum flow
of a water course is subject to a
factual determination, as is its term
"significantly harmful to the water
resources or ecology."75 If the
minimum flow as established by the
Suwannee WMD is based upon
scientific data that measured the
impact of a withdrawal on the
ecology of the river's estuary, a
hearing officer or court might find
the established level consistent with
the policy of the FWRA, since one of
its objectives is to "preserve natural
resources, fish and wildlife."7'
Additionally, the districts have
been delegated authority to draft
water use plans for their various
hydrologic areas. Originally all five
district plans were to be
incorporated as parts of the State
Water Use Plan provided for in the
FWRA.77 At present, the plans do not
have the force of law, but provide
policy guidelines for district
decisionmaking. Suwannee W\MD
could pursue a policy of retaining
water courses in their natural state
with their natural flows,78 since the
FWRA's declaration of policy
includes recognition of regional
variation in water resource problems
and expresses a legislative intent to
vest the power to manage, protect,
conserve and control waters in the
districts.79
Further, Part I contains a provision
allowing local government
ordinances, concerning water use, if
filed with the DER, to be valid.80
Municipalities are given broad
authority to govern their territories
under the Florida Constitution"' and
the Munlicipal Hlome Rule Powers
Act.82 Through other statutes, local
governments may manage local wa-
ters in a variety of ways, including


constructing sewers, drains and local
water supply systems, as well as
making and enforcing ordinances to
zone the floodplains and regulate
water related activities.83 In addition,
the legislative policy places some
water management discretion in
local governments.84 However, local
governments are precluded from
enforcing ordinances that would
forbid a party holding a CUP issued
by the district from transporting
water beyond the watershed."8 In the
absence of a CUP system, a needful
appropriator may be able to acquire
water directly from a municipality
located in the donor district, without
seeking permission from the district.
Finally, the districts have statutory
authority to acquire land for
purposes of providing, conserving
and protecting water.86 They may
also sell or lease land.87 And they may
assist local governments in supplying
the needs of the people, including
authorization to build transmission
facilities, upon request of the local
government."8 The powers granted


Districts have not yet
attempted selling water,
but some believe the
practice will be
implemented within the
next 20 years


to districts under these provisions of
the FWRA have been interpreted to
permit districts to engage in
wholesaling water."9 Districts have
not yet attempted selling water, but
some authorities believe the practice
will be implemented within the next
20 years.90 Problems will then arise
concerning, among other things,
conflicts of interest among districts
and interpretations of how the
FWRA has affected the concept of
ownership of water."9
Part II: Permit system
The FWRA's CL'P system creates
water use administration guidelines
from a synthesis of the common law
riparian doctrine of reasonable use
and the prior appropriation system's *
beneficial use.92 Once a system is im-
plemented by a district, pursuant to


public
the I
ance
FWR
cant I
is rea
terfer
and i!
terest
define
of wa
sary f
izatio
whict
ent v
edition
rules I
with t
this p
stand:
establ
Bee
depen
vidual
and g
amont
flictinl
nature'
achieve
wide i
quality,
mining
require,
establi
drafted!
upon
FWRA
tral sti
minist,
The E
pose
draft a
ing to
In
policy.
specific
reason
tators
should
ing w
consid
use.99
The
nine f:
ment
others:
will ha
not o\
od an
'wheth<
being
be re-ii
ty can
mands
safe v:i
wheth(
water ,


" L' r


S._..... ..~... 2








1,


e

e
n
11

d
d
g
ie






)r

9


of





















in,
e
but







it
t.he


























t of
rto


in.





aI '


it
ice
it t



icts
ihe
of


public hearings and authorization by
the DER.93 the conditions for issu-
ance of a permit, as established in the
FWRA, must be satisfied. The appli-
cant must show that its proposed use
is reasonably beneficial, will not in-
terfere with presently existing uses,
and is consistent with the public in-
terest.94 Reasonably beneficial is
defined by the legislature as "the use
of water in such quantity as is neces-
sary for economic and efficient util-
ization for a purpose and in a manner
which is both reasonable and consist-
ent with the public interest."95 Ad-
ditionally, the districts must adopt
rules consistent with the FWRA and
with their own water plans. Through
this process, specific guidelines and
standards for granting CUPs are
established.
Because the districts function in-
dependently according to their indi-
vidual water use plans, the standards
and guidelines for issuing permits
among the districts will contain con-
flicting interpretations of the legis-
lature's general criteria. In order to
achieve a balance between state-
wide uniformity and district individ-
uality, minimum criteria for deter-
mining when a use meets the
requirements of the FWRA should be
established on a state level. The
drafters of the Model Water Code,96
upon which Parts I and II of the
FWRA are based, envisioned a cen-
tral state agency which would ad-
minister the Act on a statewide basis.
The DER was created for this pur-
pose and has been attempting to
draft a state water use plan,97 accord-
ing to the dictates of the FWRA.
In its recently adopted water
policy,9 the DER has provided
specific factors to be considered as to
reasonable/beneficial use. Commen-
tators have suggested the term
should have its common law mean-
ing with the additional factor of
considering the public good of the
use.99
The DER's water policy lists the
nine factors stated in the Restate-
ment 2d of Torts,'00 plus several
others: (1) whether the withdrawal
will have an adverse impact on lands
not owned by the user, (2) the meth-
od and efficiency of the use, (3)
whether conservation measures are
being taken. (4) whether water can
he re-used or water of a poorer quali-
t\ can be used. (5) the future de-
TMiandus of colmleting users, (6) the
\afe yield of the water body, and (7)
| whether the use would degrade the
water quality. 101


In addition, specific emphasis is
put upon harm to the society, ecolo-
gy and environment.102 The effect
the DER's water policy will have on
the actions of the districts is not yet
known. The water policy rule calls
for review of the district water plans
and, if necessary, alteration so that
they comply with other provisions
of the DER's water policy.103
Further, the term public interest
should be addressed. When the
districts are considering public in-
terest while determining whether to
grant a CUP or not, they may have
to weigh the benefit against the detri-
ment to public interests; they must
also consider that the public may be
split in their interests. In the Suwan-
nee River example, the public interest
served by Suwannee WMD may be
in conflict with the public interest
served by SWFWMI). At common
law, public interest was not a con-
sideration. In order to bring suit to
protect the environment, a party
would have to show special dama-
ges,104 otherwise he lacked standing
to sue. Florida has removed this re-
striction by statute. Under the En-
vironmental Protection Act,105 both
public entities and private citizens
may bring actions to force a party to


REAL ESTATE

.|;ATTORNEYt:1
General Mills Restaurant Group. Inc., one of the premier
restaurant companies in the United States, is currently seeking
a Real Estate Attorney with at least 2-3 years real estate
experience and membership in the Florida Bar. The position
involves work in commercial real estate for three General Mills
restaurant companies, which includes purchase agreements,
leases and acquisitions. The position requires interface with
marketing strategists, contractors, and restaurant company
S executives. Strong commercial real estate background is
required.
We offer an excellent salary and complete benefits package.
For consideration, please send your resume to: Personnel
Administration Manager, General Mills Restaurant Group, Inc.,
P.O. Box 1431, Orlando, Florida 32802.

General Mills,
J,., Inc.
An Equal Opportunity
Affirmative Action
Employer


comply with environmental regula-
tions. The plaintiff only need show a
direct interest in the suit's result.106
A permit system functioning in
conjunction with a district water use
plan creates a potential for regional
environmental zoning.' 0 For in-
stance, under Part II the district's
CUPs must specify the use to be
made of the water, the source from
which it is drawn, and the manner of
withdrawal.108 The three categories
may be ranked to develop a system
of priorities. In addition, under Part
I, certain water uses from a particular
water source may be forbidden, de-
pending on the nature of the activity
or the quantity of water to be con-
sumed.109
At present, the districts use their
own discretion in interpreting and
implementing the FWRA. The legal-
ity of some of their interpretations
has come into question. For example,
in City of St. Petersburg v. South-
west Florida Water Management
District,"1 the city claimed that
SWFWMD acted in contravention of
the FWRA's policy of making the
maximum reasonable/beneficial use
of the water by its use of the water
crop theory'" to determine a quanti-
fiable amount of water allowed to be


f r


V

















I

/ t -- -*~ ^ -t
\

Interbasin transfers of wai


withdrawn from well fields for the
city's use. The court declined to
pass on SWFWMD's rule, finding
that SWFWMD did not actually ap-
ply the water crop theory. St. Peters-
burg had shown no injury and had re-
ceived a sufficient volume of water
to satisfy its reasonable/beneficial
needs.
Subsequently, Pinellas County and
the West Coast Regional Water Sup-
ply Authority took administrative
appeals"2 to have SWFWMD's rule
dictating use of the water crop
theory"3 invalidated. The hearing
officer concluded
that the challenged water crop rule is invalid
in that it exceeds SWF\\M)'s statutory autho-
rity: it impemrnissibly conflicts with Chapter
373, Florida Statutes: it creates property rights
to water contrary to Chapter 373 and the deci-
sion of Village of T'Iequeslta i. Jupiter Inlet
Corp.. 371 So.2d 663 (Fla. 1979); and it is hy-
drologically unsound and accordingly arbi-
trary and capricious in nature.114
A statewide policy defining mini-
mum criteria for compliance with the
FWRA would subdue claims that the
districts are engaging in legislation,
that their decisionmaking is arbitrary
and capricious, and that the delega-
tion of powers to them is unconstitu-
tionally overbroad."s A clearer
definition of the terms reasonable/
beneficial and public interest would
aid the districts in their implemen-
tation of district water plans.
Legislative intent has placed
maximum decisionmaking authority
in the districts. The districts function
as independent agencies." D)ue to
their independence, problems may
arise when a third party or other
district desires to obtain water from
a donor district. Each district would
use its own w\\atr plans and rules to
accompllish the transfer. The state
level agency whose task would be to
oversee the inter-district relations,


presently lacks sufficient resources
and political authority over the
districts. Although the DER has
supervisory powers over the dis-
tricts,"7 it has no authority to rescind
their rules for non-compliance with
DER's rules. The Governor and
Cabinet, as the Land and Water
Adjudicatory Commission, have the
exclusive power to review, modify
and rescind rules, regulations and
orders of the districts."8
The DER's water policy provides
guidelines for inter-district trans-
fers of water when both districts
have implemented permit pro-
grams."9 Both districts must approve
the transfer, and the public interest
must be satisfied. The districts would
have to consider: (1) whether con-
servation and re-use programs have
been implemented in the donee's
needful area, (2) the costs, benefits
and environmental impacts on both
districts, (3) whether the use and
method are environmentally and
economically acceptable, (4) the
donor district's present and projec-
ted water needs and whether they
can still be met if the transport occurs,
(5) interconnection of water supply
sources, and (6) whether the trans-
port is consistent with the public
interest. 12
There is no mention of arbitration
if the districts are in dispute. The
decision would be made by the Land
and Water Adjudicatory Commis-
sion; the extent to which the Water
Policy guidelines would be relied
upon is unknown. The Governor and
Cabinet have not yet had to consider
the water needs of a large municipal
area against ideals of preserving the
ecology as well as tihe right of a dis-
trict to save its resources for future
development. There is at present a
need for a stronger procedural
mechanism to ensure that the water


,NMI


policy will guide the districts in their in
interactions. n
The DER could become involved
in the inter-district transfer through a
applicability of other statutes it in
administers. For instance, if the cc
water quality'2' may decline by with- d(
drawal, the DER must conduct at
biological surveys, economic studies
and hydrographic surveys to deter-
mine the proposed withdrawal's h<
effect on the environment.122 In the p(
Suwannee River example, it is vi
apparent that the ground water ru
table will drop at the diversion la
point and that the water will become al
more saline at the mouth of the di
river.'23 Salinity is not, however, a tri
water quality parameter regulated P1
by DER in its pollution control ad- ov
ministration, which focuses on other un
pollutants.'24 Salt water intrusion is A(
handled by the districts. fo;
The construction of a diversion
system would involve dredge and fill A
activities,'25 for which the DER
grants permits. F.S. Chapter 253 re- i
stricts dredge and fill activities in or
adjacent to state waters, requiring
ecological studies of the impact upon
natural resources.l26 The DER's pol-
lution control powers set forth in Part
I of the Environmental Control Act,
F.S. Chapter 403,127 also give author-
ity to the DER to study the ecological
impact and to withhold a dredge and
fill permit if it is determined that
excessive environmental harm will
result.'28
Finally, the Federal Government
has jurisdiction to require federal
permits for activities which affect
navigable waters or interstate com-
merce. The Army Corps of En-
gineers prepares environmental im-
pact statements prior to the issuance
of a federal permit.'29 In order to
avoid overlapping studies which re-
sult in excess paper work with no
additional environmental protec-
tions, the A-95 review process has
been initiated for state agencies
granting permits.l'3 A proposed
inter-district transfer of water could
be halted by inability to mitigate en-
vironmental damage; it is unlikely
that a diversion could be forced to
occur by allowing FWRA considera- 3
tions to override the requirements of
these other statutes.
The D)E's water policy provision ~
could be interpreted to apply only ,
wluei both districts have CUP sys- .
teins,1" and its provision thit both i
involved districts approve any inter-
district water transport'12 may be







ineffective in the absence of imple-
mented CUP systems. Presently Su-
wannee WMD has not implemented
a CUP system. It is possible that a
municipal or regional water supply
could accomplish a diversion by
dealing with the local government
at the diversion site.
In the event such action is attempt-
ed, both districts would appear to
have the right to intervene if the pro-
posed diversion can be shown to
violate any of either of the district's
rules or water plans.'33 If common
law doctrines, however, are strictly
applied to determine the legality of a
diversion, it is possible that the dis-
tricts would not have standing as
parties, if they are not riparian land
owners. The districts could bring suit
under the Environmental Protection
Act,'34 as was previously mentioned
for private citizens.

Appeal process
The decision of the board is re-
viewable by the Land and Water


Adjudicatory Commission.135 The
review process may be initiated by
the Governor and Cabinet, by the
secretary of the DER, by the Envir-
onmental Regulation Commission
(the adjudicatory body of the DER),
or by any interested person who is
aggrieved by the district's action. Ju-
dicial review of a district's rule or
order may be sought in a district
court of appeal, pursuant to the
Florida Administrative Procedure
Act, after administrative remedies
have been exhausted. The same re-
view is available as concerns a deci-
sion by the Land and Water Adjudi-
catory Commission.'13
Even in the absence of Suwannee
WMD not having implemented a
CUP system, the complexity of
Florida's permit system would re-
quire close cooperation among
regional, state and federal agencies,
to accomplish an inter-district diver-
sion of water.
The DER has progressed toward
an authoritative relationship with the


districts by adopting its water policy.
Recognition of the DER's authority
and attempts to coordinate the
FRWA on a statewide level could be
facilitated by procedural changes in
the appeal process. The drafters of
the Model Water Code, upon which
the FWRA is based,'1 envisioned a
state water resources board which
would have adjudicatory powers
intermediate to the Land and Water
Adjudicatory Commission, and
whose function would be to review,
modify or rescind actions of the
districts. This intermediate board
could determine if the districts are
complying with both the FWRA and
with the DER's water policy. In this
manner the state water policy would
be authoritative over district rules
and decisions, hence the DER would
become the state level coordinator
for competing or conflicting district
interactions.
In the alternative, the legislature
should provide more specific guide-
lines for state level administration of


- -- -Water Management Districts
X Diversion Site on Suwannee River


.1














ii


.3


South
Florida


THE FLORIDA BAR JOURNAL/JANUARY 1982 17


'1

;t


.1
it

I-
It

It
ill












Iv-
it
"o

1 10





Ijss
41d







So
'c-
I ,>s


+~*~'~y~,ttx;'ijG~9~:~s~'"~~LY~Eurr~ Y-4LP-`~I~CY;II--I --~*~*Yi--NPI;---~L--yCYI~C -~-CU-YIL^ Y-- W------ YII-- -_ P-----~lppll~--




"'
i'
:s
-r




a a.~ ii swkS.MJJJJJJU *~ *L.JSlil i.D'UfhjASZ.tl. p~fl...4J.Jfl....., '-'med t a,~ pA.St, tkh~iC.Jfl tn At .~ ti~flfAJ AT iflZJ....


Interbasin transfers
of water



water management to regulate dis-
trict interactions. A state water use
plan,138 which would have performed
the task, has yet to be adopted and
implemented.

Conclusion
Inter-district transfers of water in
Florida will occur in the near future.
Presently there is a need to establish
authoritative guidelines concerning
who will make the decision and upon
what uniform criteria. Common law
doctrines do not adequately deal
with this problem because they do
not contemplate management of
water by public agencies, as
established in Florida statutory law.
Courts are only able to deal with
situations after they have occurred,
when an injury to a private right has
been alleged.
Florida's legislative policies, ex-
pressed in a myriad of statutes, con-
flict with one another. Numerous
state, regional and local agencies
administering the legislation pursue
distinct paths to deal with the same
situation, unable to adequately coor-
dinate their activities to confront the
situation in a uniform manner. The
FWRA has provided a foundation
upon which waters in the state may
be satisfactorily managed. But the
administering agencies have not de-
veloped into the two-tiered structure
contemplated by the drafters of the
FWRA.
Diversion of the Suwannee River
was chosen as an example, not be-
cause it is the most likely water
source to be tapped for inter-district
transfers, but because the subject il-
lustrates some problems with the
FWRA's general provisions.
SWFWMD and Suwannee WMD
have developed contrasting priorities
concerning territorial water manage-
ment. The authority for WMDs to
establish their own systems of water
use priorities is granted by the
FWRA. State level coordination con-
templated by the FWRA has not yet
been achieved.
There is a need for the establish-
ment of an authoritative priority sys-
tem to deal with inter-district inter-
actions.'39 The policy of protecting
enviiontnentally sensitive areas has
been legislatively acknowledged,
but when that policy will prevail over


competing demands, especially
municipal need for water, has not
been addressed.
Inter-district transfers of water are
inevitable; the population of South
Florida continues to increase rapidly,
while the water resources in North
Florida continue to be abundant. Cri-
teria for management of waters on
the state level is necessary to prevent
breakdown of the developing system
and consequent water battles. The
price paid for the battles may be
the destruction of important environ-
mental areas, when such damage
would not have been necessary, o

'See U.S. Army Corps of Engineers, FOUR
RIVER BASINS PROJECT, FLORIDA: WATER RE-
SOURCES MANAGEMENT STUDY (1979).The study
examined river basins that drain into the Gulf
of Mexico north of Tampa Bay, calculating
excess flow which could be diverted from a
river or a spring that feeds the river.
Considerations of yield potential, proximity to
the demand area, and conveyance costs deter-
mined which diversion sites would be pre-
ferred. The Corps also did environmental
impact analyses on the areas examined. The
Suwannee River was chosen by the Corps as
the best source, though substantial environ-
mental damage would result not only to the
Suwannee, but also to the regions along the
western portion of Florida between the sites.
When SWFWMD considered the Corps'
study, however, the Suwannee River was not
chosen as a favorable water source, because it
was too far from Tampa Bay (120 miles).
2Riparian literally refers to the banks of a
river. BLACK'S LAW DICTIONARY 1490 (rev. 4th
ed. 1968). The riparian system developed
during the Industrial Revolution when mills
and factories were being built along the river
banks of England, harnessing the energy in the
flowing water for manufacturing. Until this
time water had been plentiful, so there had
been no need to consider who had superior
rights to use water.
3MALONEY, PLACER, AUSNESS & CANTER,
FLORIDA VATER LAW 1980 (Water Resources
Research Center, U. of Fla., Public. =50) 20-21
(1981). The doctrine stems from the English
case of Acton v. Blundell, 12 Mees. and W. 324,
152 Eng. Rep. 1223 (Exch. 1843). By this time
riparian rights to surface water were well
established. "[E]ach proprietor of the land has
a right to the advantage of the stream flowing
in its natural course over his land, to use the
same as he pleases, for any purposes of his own
not inconsistent with a similar right in the pro-
prietors of the land above or below; so that,
neither can any proprietor above diminish the
quantity or injure the quality of the water
which would otherwise naturally descend, nor
can any proprietor below throw back the
water without the license or the grant of the
proprietor above...
The rule became known as the natural flow
doctrine. The rule for ground water was
wholly different. 'lhe owner of the land owned
all the earth below the surface. ".. [T]he
person who owns the surface may dig therein,
and apply all that is there found to his own
purposes at his free will and pleasure; and that
if, in the exercise of such right, he intercepts or
drains off the water collected from under-


ground springs in his neighbour's well, this
inconvenience to his neighbour falls within the
description of damnum absque injuria, which
cannot become the ground of an action."
Until human and industrial development
made it impossible, the law was that each
riparian owner was entitled to have the river
flow by his land in undiminished quantity and
quality. He also had an obligation to return
water he withdrew in the same amount and
quality. This rule did not apply to under-
ground water reached by digging wells. Such
water was deemed to belong to the owner of
the overlying land. Unfortunately, nature
refused to conform to English common law; it
became apparent that when large amounts of
ground water were appropriated, nearby
rivers were affected. The narrow law of ripar-
ian rights had to expand to encompass use and
manipulation of all waters. The common law
as adopted in the eastern United States was
more flexible, requiring that all uses be rea-
sonable in relation to the surrounding uses.
The concept of riparian rights continued, but
expanded to include lakes and ocean shores.
Under this system an owner could use water in
a manner that was reasonable when consid-
ered with the needs and uses of other riparians.
All legal rights to a reasonable use of water are
equal or correlative.
'R. Hamann, Common Law Water Rights
and the Florida Water Resources Act of 1972,
in ENVIRONMENTAL REGULATION AND
LITIGATION IN FLORIDA 9.8 (C. Schulman ed.
1981) (a publication of The Florida Bar con-
tinuing legal education department).
s371 So.2d 663 (Fla. 1979). Although the
reasonable use rule was held to apply to
ground water as well as surface water in Koch
v. Wick, 87 So.2d 47 (Fla. 1956) (see text
accompanying notes 42-45, infra), there has
been different treatment of the two water
sources. As concerns ground water, a use that
benefits the overlying land and is reasonable,
may be permitted even if it does injure other
nearby water users. Generally as concerns
surface water, a use that interferes with other
existing uses of a water source would be unrea-
sonable and not permitted. See, R. Hamann,
supra note 4, at 9.27. However, the Florida
Supreme Court in Village of Tequesta v.
Jupiter Inlet Corp., recognized that ground
and surface waters are "interrelated parts of
the hydrologic cycle." This may indicate the
breakdown of the dual sets of rules applied to
water depending on its source.
6371 So.2d at 667. [Quoting Finley v. Teeter
Stone, Inc., 251 Md. 428, 435, 248 A. 2d 106,
111-12 (Md. App. 1968)].
7See F. Maloney, L. Capehart and R.
Iloffman, Florida's "Reasonable-Beneficial"
Water Use Standard: Have East and West
Met? 31 U. FLA. L. REV. 253 (1979). Confusion
has been caused by courts using the same
terms for differing purposes. Beneficial as
used by riparian jurisdictions refers tobenefit-
ting the overlying or riparian land; it means the
use of the water should enhance the land and
not be transported beyond the water basin.
Beneficial use as applied by the prior appro-
priation system and now the FWRA, refers to
serving the public interest, to benefitting
society.
h FLORIDA WATERA LAW 1980, supra note 3, at
12.
*Florida's recognition that all rights to use
water are equal should be distinguished from
California's doctrine of correlative rights. The
latter has been used to support a policy of
allotting water according to the amount of


'7


It th

tiipii

--I 14l


Il( rv
I.-'




ripan


-,pirI,

% ate


rlpasri,


rmchti


I s.

Z! S

R'ipari,



P-h-rsir


'Ihat


*'. r= *. *^ -.fa- 1-^ V-1..







hundred sixty-five thousand (385,000) gallons
per year per acre.) (7) Another subsection of
Rule 16J-2.11 provides that the governing
board of SWFWMD may grant an exception
to the water crop rule. Subsection (5) of Rule
16J-2.11 provides that (5) The Board for good
cause shown may grant exceptions to the pro-
visions of paragraphs (2), (3), (4), and (10) of
this rule when after consideration of all data
presented, including economic information, it
finds that it is consistent with the public
interest.
'" See Pinellas County v. SWFWMD, supra
note 112, at 17.
"'J. Wershow, Legal Implications of Water
Management in Florida's Future, 54 FLA. B. J.
526, 529 (1980).
"F FLORIDA WATER LAW 1980, supra note 3, at
210. "The independence of these districts from
one another permits diverse approaches to
management of water resources."
"'FLA. STAT. 373.103 (1979).
""FLA. STAT. 373.114 (1979). See'FLORIDA
\\'ATER LAW 1980, supra note 3, at 218. "In fact,
DER has limited power to implement
anything that is inconsistent with the policies
of the water management districts. Although
Chapter 373 gives DER 'general supervisory


authority' over the water management
districts, this power is largely illusory since the
Governor and Cabinet are exclusively
empowered to 'review and rescind or
modify, any rule or order of a water manage-
ment district ...."
"1FLA. ADMIN. CODE ch 17-40.05 (May 5,
1981).
'"ld. See also FLA. STAT. 373.223(2) (1979).
This section provides for transfers of water
within districts. It would have to be satisfied
for inter-district diversions also. "The govern-
ing board of the department may authorize the
holder of a use permit to transport and use
ground or surface water beyond overlying
land, across county boundaries, or outside the
watershed from which it is taken if the govern-
ing board or department determines that such
transport and use is consistent with the public
interest, and no local government shall adopt
or enforce any law, ordinance, rule, regulation,
or order to the contrary."
11 FLA. STAT. 403.001-.4153 (1979).
'"FLA. STAT. 253.001-.785 (1979). See also
FLORIDA WATER LAW 1980, supra note 3, at 108.
"3C. Leadon, supra note 51, at 135. "Very
small reductions in the average water level of
the lower Suwannee River near the town of


d missed my appointment. Who.cares. I don't have a doctor. I feel fine. I missed the bus.
ours. I forgot. I had to get a haircut. The kids wanted ice cream first. The traffic was terrible
d. I'm not sick, ever. I don't have the money right now. If cancer's in the stars, it's in
day. I went to the wrong doctor's. Maybe next week I'll make it. It's against my religion. I'm
too busy right now. The office would fall apart without me. My father never went to the doc
to think about it. Nothing's it e anyway. My doctor's fingers are too cold. I'm t
care. I thought only rich peo t Ad..i and fix dinner. I never hear
lyway. There was a great sale i' t h r had a funny rattle. No one
of cancer. I lost a button that By the time they find it, it
haven't been sick a day in my e.Cancer of the whp' .tors are boring. In my business
I couldn't carc ss t 7 t t L'for br b metthat
forgot to C h on. My clotl
n.e to talkab. why. If I .hat
don't want t g' lold me not
the goldfish needed feeding.. IM ni u :'f-d i I'd ge the way. I
es. I don't have a doctor. I fe' |ij .r got out so I chased it an
The kids wanted ice cream first i T,;eather was great so I played g(
money right now. If cancer's in s i ent to the doctor's on the
next week I'll make it. It's a r re on. '~cared. I need to lose a few pounds first.
part without me. My father ne er V t .ln e .'s .nd he lived until he was 90. I don'
me anyway. My doctor's fingers are t I ,.to worry about cancer. I'm too ok
have to stay home and fix dinner. ev her c boss wouldn't give me the day
couldn't miss. The car had a fun family ever had cancer. I'm not
:;ss a football game on. By the time the find it, it will probably be too late. I was doing laun

er of the what? Doctors are ur I can get. If I die tomor
;ways exercising. I forgot b i. tor's office is too far away. 1
I had to find it. It was hun : ry. I feel great. It upsets
se apart if I went out. I don ow w haen't cer by now I'll never get it. I j
':er had cancer anyway. My husband told me not to wo!.,. was going to go but I remember
S out, and I was afraid I'd get sick on the way. I overslept and missed my appointment. W
iused the bus The canary got out so I chased it around for hours. I forgot. I had to get a h
::i. was terr.ble. The weather was great so I played golf instead. I'm not sick, ever. I don'
., it's ir :-.e sars. I went to the doctor's on the wrong day. I went to the wrong doctor
:. :ign. i'::. scared. I need to lose a few pounds firs:. I'm too busy right now. The office
to the ccor's and he lived until he was 90. I don't like to think about it. Nothing's
L- .r y:. 'ing to worry about cancer. I'm too old to care. I thought orlv rich oe

| American Cancer Society


Suwannee, about two miles upriver from the
Gulf of Mexico, would allow large increases in
the extent of salinity intrusion into the coastal
aquifer of the subbasin. A reduction of three
inches in the average level of the lower
Suwannee River near the town of Suwannee
would allow salt water to rise approximately
10 feet closer to the ground surface beneath
the town of Suwannee .."
'" FLA. ADMIN. CODE h. 17-3.05; 3.071-3.121.
1SFLA. ADMIN. CODE ch. 17-4.28.
'"FLA. STAT. 253.123, 253.124, 253.1241
(1979).
"'FLA. STAT. 403.011-4153 (1979).
1"FLA. ADMIN. CODE ch. 17-4. the specific
authority for these rules is Chapter 403 of the
FLA. STAT. (1979).
2 See FLORIDA WATER LAW 1980, supra note
3, at 108-09. It is a joint permit system. The
application goes to DER which forwards a
copy to the Corps. Both must approve the
permit.
1o0 See F. Maloney and R. Hamann, Integrat-
ing Land and Water Management, 108-109,
Water Resources Research Center,
Publication No. 54 (College of Law, Center
for Governmental Responsibility, University
of Florida); F. ANDERSON, NEPA IN THE
COURTS, A LEGAL ANALYSIS OF THE NATIONAL
ENVIRONMENTAL POLICY ACT, text accompany-
ing note 39 (Environmental Law Institute
1973).
31 See FLA. ADMIN. CODE ch. 17-40.05 (May 5,
1981). "Water Transport. The following shall
apply to the transfers of water where such
transfers are regulated pursuant to Part II of
Chapter 373, Florida Statutes. ..."
'13d. at 17-40.05(1).
'3 See FL. STAT. 373.129 (1979).
13 FLA. STAT. 403.412 (1979).
35FLA: STAi. 373.114 (1979).
136FLA. STAT. 120.68 (1979).
'13See S. Walker, Florida Water Resources
Act of 1972, in ENVIRONMENTAL REGULATION
AND LITIGATION IN FLORIDA 10.4 (C. Schulman
ed. 1981) (A publication of The Florida Bar
continuing legal education department).
'"See FLA. STAT. 373.036 (1979) (providing
for creation of a comprehensive State Water
Use Plan). See notes 19 and 20 supra.
i"196. See F. Maloney and II. llamann,
Common Law Water Rights and the Florida
Water Resources Act of 1972, in
ENVIRONMENTAL REGULATION AND LITIGATION
IN FLORIDA, 323 (1980), at 340, and MODEL
WATER CODE, supra note 92, at 92-93. Both the
House Natural Resources Committee and the
MODEL WATER CODE proposed creation of a
State Water Resources Board. The legislature's
proposed board would consist of the chairmen
of the five WM1D's, the chairmen of the eleven
regional planning councils, and the secretary
of I)ER. That proposed by the MODEL WATER
CODE would consist of five appointees of the
Governor; one attorney, one hydrologist, one
farmer, and two laymen. The WMD)'s are
opposed to the legislature's proposal because
they could be out-voted by the regional plan-
ning council members. The advantages of the
MODEL W\ATER CODE proposal are the small size
and the fact that the members would be dis-
interested in promoting special interests of the
individual districts and regions. See also
FLOHIDA \WATrI. LAW 19SO, supra note 3, at 117-
18. The Environmental Regulatory
(Conniiission sets I)ER's water quality
standards and acts asi the appeals board for
final actions taken by D)ER. The State Water
I ,eources Boad could do the sauie for water
quantity regulation b1\ I)I'1.


THE FLORIDA BAR JOURNAL/JANUARY 1982 21


State
iiol,
also
\vate
tal t
that
rtced
,i to
, the

3, at


.);inA


.itint

See
239-
'tep
The
Was
1. ich

arva,

'1 tlie
the



irl 'h
tltural


'11(11
!I of
lte

'-pt


1i ret'









Interbasin transfers
of water





injure the public's rights to use of waters held
in public trust. See, F. MALONEY, R. AUSNESS
AND S. MORRIS, A MODEL WATER CODE, at 81
(1972). The intent of the proposed legislation
that became the FWRA was to apply the
public trust doctrine to all the waters of the
state.
371 So.2d at 669, 670. See also, Koch v.
Wick, 87 So.2d 47 (Fla. 1956).
"6See e.g., Kinnebunk, Kinnebunkport and
Wells Water District v. Maine Turnpike
Authority, 147 Me. 149, 84 A.2d 433 (1951).
The water district lacked standing to sue
because as a nonriparian it had no right to use
the water.
4 Village of Tequesta v. Jupiter Inlet Corp.,
371 So.2d 663, 671 (Fla. 1979). "The Water
Resources Act of 1972 recognizes a right to use
water under the common law as separate from
the right to use water under a permit granted
pursuant to the act." F. Maloney & R. Hamann,
Common Law Water Rights and the Florida
Water Resources Act of 1972, Environmental
Regulation and Litigation in Florida, 380
(1980); FLORIDA WATER LAW 1980, supra note
3, at 9 and 222; and R. Hamann, supra, note 4,
at 9.26. Currently the South Florida WMD and
SWFWMD are more developed, already
having implemented consumptive use per-
mitting. South Florida WMD was created in
1961 and also had multi-purpose authority.
Both were created in the wakes of devastating
hurricanes which had damaged the areas; the
need for better flood control measures was the
impetus. They are financially independent,
since they did not receive the taxing restric-
tions the newer three WMDs are subjected to.
See F. Maloney & R. Ilamann, supra at 332 and
339; and R. Hamann, supra note 3, at 9.10. In
fact, underfunding accounts for many of the
problems the newer districts have encountered
in administering the FWRA. See Governor's
Resource Management Task Force, supra note
19.
63Conversation with Kirk Webster, Director,
Suwannee River Water Management District
(May, 1981).
"FLA. STAT. 373.171 (1979).
6FLA. STAT. 373.171(1)(a) (1979).
6"FLA. STAT. 373.129(3) (1979).
69FLA. STAT. 373.042 (1979). "The
minimum flow and minimum water level shall
be calculated by the department and the
governing board using the best information
available. When appropriate, minimum flows
and levels may be calculated to reflect
seasonal variations. The department and the
governing board shall also consider, and at
their discretion may provide for, the protec-
tion of nonconsumptive uses in the establish-
ment of minimum flows and levels."
70FLA. STAT. 373.042(1) (1979). "The
minimum flow for a given watercourse shall
be the limit at which further withdrawals
would be significantly harmful to the water
resources or ecology of the area."
7' Trouble on the Scuwannee, in ENFO, a
publication of the Florida Conservation
Foundation (edited by the Environmental
Information Center).
7C. Leadon, supra note 51.
Shid.


7'Id. at 141; and ENFO, supra note 71, at 4.
5 See note 70, supra.
76FA. STAT. 373.016(2)(e) (1979). "It is
further declared to be the policy of the
Legislature: (e) To preserve natural re-
sources, fish and wildlife ..."
GOVERNOR'S RESOURCE MANAGEMENT TASK
FORCE, COMMITTEE SEVEN, INTEGRATING
PLANNING AND POLICY FOR WATER RESOURCES,
APPENDIX C, FINAL STAFF DRAFT (Oct. 10,
1979). "In 1974, the Governor and Cabinet,
acting as head of the [Department of Natural
Resources (DNR)], delegated certain parts of
Chapter373 to the water management districts
(WMD's), including sections dealing with the
responsibility for the development of the
[State Water Use Plan] and the Florida Water
Plan (FWP). However, specifically withheld
from delegation was Section 373.026, which
gave the DNR general supervisory authority
over all WMD's along with the responsibility
to exercise any powers authorized to the
WMD's by the Act."
"Iin fact Suwannee WMD's stated policy
promotes maintaining its waters in their
natural state. For instance, nonstructural tech-
niques to control flooding are preferred, as is
maintenance of natural habitats and of the
balance of the hydrologic system. See
Suwannee River Water Management Goals
and Objectives (adopted by the Governing
Board on August 16, 1979).
T"FLA. STAT. 373.016(3) (1979).
OFLA. STAT. 373.023 (1979).
"'FLA. CONST. Art. VIII, 2(b) (1968).
'2FLA. STAT. 166.011-.043 (1979).
"FLA. STAT. 125.001-.59 (1979) and FLA.
STAT. 170.01-.21 (1979).
- "See e.g., FLA. STAT. 373.191-.1962
(1979). The approach envisioned by the
legislature is one of cooperation among
municipalities, counties, regional water supply
authorities, water management districts, and
DER.
"FLA. STAT. 373.223(2) (1979).
"FLA. STAT. 373.139 and .1961(7) (1979).
"FLA. STAT. 373.089, and .093, (1979).
"'FLA. STAT. 373.1961 (1979).
"Conversations with Lee Worshom,
attorney for the governing board of St. Johns
WMD, Sept. 16, 1981.
"Conversations with James S. Wershow,
attorney for Suwannee River WMD, Sept. 14,
1981.
9 Conversations with Lee Worshom, supra
note 89.
92F. MALONEY, R. AUSNESS AND S. MORHIs,
MODEL \ATER CODE, at 79 (1972). Three
advantages of a permit system over the
common law are: first, the agency makes the
decision before the dispute erupts into litiga-
tion; second, the agency makes its decision
with consideration given to all water uses and
users, and can consider the public interest; and
third, the members of the decision-making
body are experts on water, so can make deci-
sions with long-range plans in mind.
9"FLA. STAT. 373.216 (1979).
"4FLA. STAT. 373.223(1) (1979).
95FLA. STAT. 373.016 (1979).
"FLA. STAT. 373.012-617 (1979): F.
MALONEY, I. AUSNESS AND S. .lon, Aus. MODEI.
WATER CODA (1972). Parts I and II of the
FWRA are from this code. The commentaries
therein may be used to interpret tie provisions
of the FW\VHA. For a brief history of de velop-
ment of water law in the eastern states,
providing knowledge of the conditions that
led to the creation of model acts and the
FW\ A, see, R. Ilamann, snpro note 4, at 9.6-


9.9; and S. Walker, Florida Water Resources
Act of 1972, in ENVIRONMENTAL REGULATION
AND LITIGATION IN FLORIDA 10.4 (C. Schulman
ed. 1981) (a publication of The Florida Bar
continuing legal education department).
"FLA. STAT. 373.036 (1979). See note 77,
supra.
S1 FLA. ADMIN. CODE ch. 17-40 (May 5,1981).
"gREASONABLE-BENEFICIAL USE, supra, note
7, at 264.
10*See text accompanying note 55, supra.
101 FLA. ADMIN. CODE ch. 17-40.04(2) (May 5,
1981).
1'"See FLA. ADMIN. CODE ch. 17-40.04(3)
(May 5, 1981).
03FLA. ADMIN. CODE ch. 17-40.10(2)-(4)
(May 5, 1981).
'"4Special damages is a requirement for
bringing a nuisance action. This may be used
as an alternative to using the Environmental
Protection Act, infra note 106. The advantage
of using the common law nuisance action is
that a plaintiff need not exhaust its
administrative remedies prior to using the
judicial system. See Town of Surfside v. City
Line Land Co., 340 So.2d 1287 (Fla. 3d D.C.A.
1977); Wetzel v. A. Duda & Sons, 306 So.2d 533
(Fla. 4th D.C.A. 1975).
'0FLA. STAT. 403.413 (1979).
'W1Florida Wildlife Federation v. State
Department of Environmental Regulation,
390 So.2d 64 (Fla. 1980). The case also
affirmed that a corporation was a private
citizen for purposes of the Environmental
Protection Act. In that case, the fact that
members of the Federation used the affected
water body for recreation was sufficient to
constitute a direct interest in the result of the
case.
10o FLORIDA W'ATER LAW 1980, supra note 3, at
234.
I"FLA. STAT. 373.229 (1979).
'09 FLA. STAT. 373.036(8) (1979). See FLORIDA
WATER LAW 1980, supra note 3, at 234.
11355 So.2d 796 (Fla. 2nd D.C.A. 1976).
'" Id. at 797. "The water crop is the amount
of rainfall less the amount lost by evaporation
and plant use evapotranspirationn)." See
FLORIDA \ATER LAW 1980, supra note3, at 239-
40. This commentator believes it is a step
backward to the correlative rights system. The
practice developed in California and was
intended to apply to agricultural areas. Each
landowner would be allotted a proportional
amount of the total water crop of an area,
based on the amount of land he owned.
Obviously the theory is worthless when the
user is a municipality, not a farmer. I lowe\ er,
when the municipality is transportingits water 4
from an agricultural area, as was true in the
case at hand, the water crop theory may
protect the existing uses, i.e., the agricultural
uses.
"'Pinellas County v. Southwest Florida
Water Management District, Case no. 79-
2325R, and West Coast Regional Water Supply
Authority v. Southwest Florida Water
Management District, Case no. 79-239311R
(Dept. of Adinin. April 9, 1980) (Diane I).
Tremor, Hearing Officer with the Div. of
Admin. Hearings).
"' FLA. AnMIN. CoDE ch. 16J-2.11(3). Condi-
tiion for a Consumptive U'se Permit: Issuance -
of a permit will be denied if the amount of
water consumptively Ilsed will exceed the
water crop of laimd. owned, leased or other-
wise controlled by the applicant. (Fxcept
w here determined otherw"i.se. the water crop l
[precipitation less evaporation] throughout
the District will be assumed to be three


nn Tlt
I .''al MAI








land one owns. This interpretation of correla-
tive rights leads to watercropping, the practice
of harvesting water in a given region based
upon the amount of yearly rainfall. Although
the doctrine may adequately serve agricultural
areas. it has an adverse impact on users who
need water, but do not need land. Florida
courts have applied the correlative rights
doctrine in light of surrounding circumstances.
R. Ilamann, supra note 4, at 9.27. See also,
Taylor v. Tampa Coal Co., 46 So.2d 392, 394
(Fla. 1950); Tampa Water Works Co. v. Cline,
37 Fla. 586, 20 So. 780, 74 (Fla. 1896); and text
accompanying notes 42-45, infra.
SF.LORIDA W\ATER LAW 1980, supra note 3,
at 12.
11 Id., at 22. See Pernell v. Henderson, 220
N.C. 79, 16 S.E. 2d 449 (N.C. 1941), Town of
Purcellville v. Potts, 179 Va. 514, 19S.E. 2d700
(Va. 1924), and Webster v. Harris, Ill Tenn.
66S, 69 S.W. 782 (Tenn. 1902).
Koch v. Wick, 87 So.2d 47 (Fla. 1956) and
Tampa Waterworks Co. v. Cline, 37 Fla. 586,
20 So. 780 (Fla. 1896).
Consideration of riparian rights developed
during the Industrial Revolution when mills
and factories were built along the riverbanks,
harnessing the energy in the flowing water for
manufacturing. See also, notes 2 and 3, supra.
R. Ilamann, supra note 4, at 9.4.
FLORIDA W\ATER LAW 1980, supra note 3, at
17. The source of title rule of riparian land
restricts use to the smallest riparian parcel
purchased. Parcels of land purchased subse-
quently, if not riparian, receive no right to use.
If the original parcel is split and sold, the non-
riparian section will lose its right to use of
water. Under the unity of title rule, any con-
tiauous parcels of land, no matter when
purchased, that are owned by a riparian re-
ceive the right to use of water. Thus, the
am:ouint of land watered by a source may
increase.
'"hI ., at 19.
d: (i.
I 1d.
''Johnson & Knippa, Transbasin Dicersion
to Water, 43 TEx. L. REV. 1035, 1040 (1965).
'Id., at 1036. "According to traditional
riparian doctrine, stream water may be used
only upon riparian land, and riparian land is
defined as embracing only land within the
w watershed. This is consistent with the principle
that a riparian owner's rights to use stream
w.iter are not limited to his existing uses, but
include future uses as well. In other words, the
riparian right is not lost by nonuse and the
riparian may colntnence new water uses at any
t:ne and in any amount, as long as he does not
unreasonably interfere with uses by other
riparians. The watershed limitation is thus
merely a means of protecting the riparian
rights of others, hy tending to make return
tlow\ available if needed in the future."
"1 Note, Limitation on Diversions from the
Soatershed: Riparian Roadblock to Beneficial
('se, S.C. L. REV. 43 (1971). See also note 3,
,upra.
Sce note 3, supra.
'lJohnson & Knippa, supra note 19, at 1037.
'W\Vaite, lieneficial ("sc of Water in a
Rmpwirian Jurisdiction. 1969 Wis. L. R.v. 864,
'77. "So long ,as water diversions do not
i.-ti re w ith pr'.frrted water uses, alnd the
(,l'rsins tlheiselkts i\ve priority to such
7-. ierrld water uIs,, they would seem proper
.":\iwtr uses (IineId rleasoniable tlluidrr thei
,. it riparian rnuits." A contrary view is
i ;.It sed in 11. 1 laioann, su pra note I, at 9.28.
Slit writer concludes that the rule preventing


transport of surface or ground water beyond
the riparian or overlying lands constitutes
unreasonable use per se. However, although
injunctive relief was declared available in
Koch v. Wick, 87 So.2d 47 (Fla. 1956), the
removal and transport of the water from the
overlying land was not declared unreasonable
per se. Only if a party owning overlying (or
riparian) land, or otherwise making a reason-
able use of the water, suffers damage, will the
court consider whether the transporting use is
Reasonable tinder the circumstances. In
addition, public interest and public policy are
increasingly being considered when
determining whether a use is reasonable. See
Village of Tequesta v. Jupiter Inlet Corp., 371
So.2d 663,670 (1979). "The reasonableness of a
given use depends upon many variables such
as: the reasonable demands of other users; the
quantity of water available for use; the consid-
eration of public policy." Further, in that case,
the Village of Tequesta had withdrawn and
transported water beyond the overlying land.
371 So.2d at 665. No mention is made of such
use being unreasonable per se at common law.
It is more likely that there is no doctrine of
unreasonable use per se in Florida, all uses
being reasonable until actual injury to
another's right to use is shown, then the less
valued use may be found unreasonable under
the circumstances. If public policy and public
interest are factors of reasonableness, it is
possible that a municipality's transport of
water beyond the overlying or riparian land
may be found to be reasonable under the
circumstances.
FL.oRIDA WATER LAw 1980, supra note 3, at
22.
26Ziegler, Acquisition and Protection of
Water Supplies by Municipalities, 57 NMhcl. L.
REV. 349, 357 (1954).
2; FLORIDA WATER LAW 1980, supra note 3, at
22.
2""Reasonable-Beneficial" U.se, supra, note
7.
2"Note, supra note 21, at 57-58.
301d.
3 Kennebunk, Kennebunkport and Wells
Water District v. Maine Turnpike Authority,
147 Me. 149, 84 A. 2d 433 (1951).
32 FLORIDA \ATER LAW 1980, supra note 3, at
21.
33 Id. at 2.3; Johnson & Knippa. supra note 19,
at 1038; Buescher, Appropriation Water Law
Elements in Riparian Doctrine States, 10
BUFFALO L. REv. 448, 452 (1961).
FLORIDA \ATER LAW 1980, ssupra note 3, at
21 and 24.
"Ziegler, supra note 26, at 351 and 359.
tCanton v. Shock, 66 Ohio St. 19, 63 N.E.
600 (1902).
3- St. Anthony Falls Water Power Co. v. St.
Paul Water Conunissioners, 56 Minn. 485, 58
N.W. 33 (1894).
3aZiegler, supra note 26, at 358.
R. 1 lamann, supra note 4. at 9.28.
'371 So. 2d at 666. See text accompanying
note 6, supra, and note 24, supra.
"Sec Koch v. Wick, 87 So.2d 47 (1956).
120 So. 780 (Fla. 1896).
"87 So.2d 47 (Fla. 1956).
"20 So. at 786.
'387 So.2d at 48. "It seems that in judging the
,merits of this controversy, the appellees are
not in a favorable position simply because the
water drawn is to be furnished the public."
'hId. at 48. The appellee Pirnellas (Comuty
(\\ ick) had leased 3.63 acres. had sunk w ells.
and had begui punlming ws ater to C(learwatei
and othlier municipalities ini the counts. The


court adopted the rule of percolating ground
water, that the right to use is "bounded by
reasonableness and beneficial use of the land."
The court found that removing the water from
the land was not a beneficial use of the land.
The reasonableness issue was not decided.
The appellees contended that "'the reasonable
use rule' does not per se prohibit extraction of
percolating water for distribution and sale off
the premises," relying on a New Jersey case.
The court distinguished the New Jersey
opinion and reinstated appellant's complaint
to try the issue of whether extracting"so much
water" is reasonable. The appellant could get
an injunction before his land had been
irreparably injured.
47Village of Tequestav. Jupiter Inlet Corp.,
371 So.2d 663, 670 (Fla. 1979) (the rule as to
percolating ground water); Taylor v. Tampa
Coal Co., 46 So.2d 392 (Fla. 1950) (the rule as
to nonnavigable surface waters); and Tampa
Waterworks Co. v. Cline, 37 Fla. 586, 20 So.
780, 786 (Fla. 1896).
'"Correlative rights as the term is used by
the Florida courts means simply equal rights to
use water below one's land. See note 9, supra.
'946 So.2d 392 (Fla. 1950). The water body
was a nonnavigable lake. The doctrine of
correlative rights is bounded by
reasonableness requirements in all water
bodies. This is not quite the same as the
doctrine of correlative rights as applied in the
West. There it means that the amount of land
one owns determines the amount of water he is
entitled to use.
50od. at 393 [quoting the circuit court].
S'C. Leadon, ENVIRONMENTAL EFFECTS OF
RIVER FLOWS AND LEVELS IN THE SUWANNEE
RIVER SUBBASIN BELOW \ILCOX AND THE
SUWANNEE RIVER ESTUARY (Suwannee River
Water Management District).
5"See text accompanying notes 105-107,
infra.
53The Florida Supreme Court's adopted
rule of reasonable use indicates that a
preference will be given to a use that benefits
the land overlying the water body.
"4371 So.2d at 670.
$ RESTATEMENT (SECOND) OF ToRTs Section
850A (1977). See "Reasonable-Beneficial" Use,
supra note 7.
FLA. CONST. Art. II, 7. "Natural resources
and scenic beauty. It shall be the policy of the
State to conserve and protect its natural
resources and scenic beauty. Adequate provi-
sion shall be made by law for the abatement of
air and water pollution and of excessive and
unnecessary noise.
"46 So.2d 392 (Fla. 1950).
5 FLORIDA WATER LAW 1980, supra note 3, at
205. "The State's three major sources of
income, tourism, agriculture, and phosphate
mining, are heavily dependent on abundant
supplies of water."
59On the other hand, the state's policy is to
promote industry and corporate development
in Florida by providing economic incentives in
the form of taxing policies.
60Consideration of public interest is rela-
tively recent among riparian jurisdictions,
traditionally not being a factor considered in
determining reasonable use. See generally,
"Reasonable-Beneficial' Use, supra note 7.
siCrahanm v. Estuary Properties, Inc., No.
58,485 (April 16, 1981). The case recently
adopted the public trust doctrine of Just v.
Marionette County, 56 Wis.2d 7, 201 N.W. 2d
761 (1972). that denial of a landowner's right to
alter the natural state of his land is not a taking
for public purposes if the alteration would


THE FLORIDA BAR JOURNAL/JANUARY 1982 19


~i~;~Z~g~f~=rf~`~i~ifj~*r;g~iCilidifiri~ Y.~~il-~YILLU~1.ILyrrsi~-i




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