Title: Florida Water Law: A Synopsis
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 Material Information
Title: Florida Water Law: A Synopsis
Physical Description: Book
Language: English
Publisher: Florida House of Representatives , June, 1983
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Florida Water Law: A Synopsis (JDV Box 43)
General Note: Box 18, Folder 2 ( Water Management - 1977-1983 ), Item 14
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004172
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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RECEIVED AUG 4 1983

August 2, 1983



TO WATER TASK FORCE MEMBERS


For your information


Bill Sadowski, Chairman







GM/STR-018


FLORIDA WATER LAW: A SYNOPSIS


June, 1983

SELECT COMMITTEE ON GROWTH MANAGEMENT

FLORIDA HOUSE OF REPRESENTATIVES
Tallahassee, Florida











FLORIDA WATER LAW: A SYNOPSIS


INTRODUCTION

Florida water law has progressed from a complicated common
law system of water use rights to a rather simple permitting
system of water use rights. This memorandum is a short overview
of the evolving law of water use in Florida. It is taken mostly
from treatises written by experts associated with the Water Law
Program at the Center for Governmental Responsibility, Holland
Law Center, the University of Florida.



HISTORICAL PERSPECTIVE

Historically, Florida followed the riparian system of
water rights, as did most of the eastern states. Under the
riparian system, landowners whose property abutted a waterbody or
watercourse could use only those amounts of water that did not
interfere with the reasonable uses of other riparian owners.
Water was not subject to ownership. Rather, the use of water was
a usufructuary right, i.e., riparian owners had the right to use
the water. Ground water was largely ignored as a resource.

Industrial expansion after World War II caused increased
demands for water. The reasonable use doctrine became unworkable
for three reasons. First, it was unreasonable to restrict water
use to riparian owners. Secondly, industrial riparian water
users were frustrated by the uncertainty caused by other riparian
owners who were entitled to commence using water but had not
exercised this right. Thirdly, the doctrine and conflicts over
water rights under it had to be interpreted and adjudicated in
the courts.

In 1958, the University of Michigan Law School developed
the Model Water Use Act. This Act contemplated the creation of a
state water resources agency and the issuance of water
consumption permits for some definite period of time, fifty years
being the suggested maximum. This model encouraged other states
to reconsider their water use laws.

In Florida, the emphasis in the first half of the century
in water management was the draining of large areas of surface
water. Many drainage districts were created for this purpose.
The Southern Florida Flood Control District was one of these
districts; however, its goals included water conservation as well
as flood control and drainage. Another major district, the
Southwest Florida Water Management District, was created in 1961.











It concerned itself with water conservation and the regulation of
ground water.

In 1957, the Florida Legislature enacted the Florida Water
Resources Act [1957 Fla. Laws ch. 57-380]. This act established
a statewide administrative agency which was authorized to issue
permits for the capture and use of excess surface and ground
waters and to establish rules for the conservation of water where
overwithdrawals were causing salt water intrusion and other
harmful effects.



THE WATER RESOURCES ACT OF 1972

In 1972, a group of water law experts at the University of
Florida, Holland Law Center developed A Model Water Code. The
Model Water Code was the basis for the Florida Water Resources
Act. The act declared that the waters in the state are "among
its basic resources." [FLA. STAT. s 373.016(1)] Further, the
Legislature stated that its policies are:

(a) To provide for the
management of water and related land
resources;
(b) To promote the
conservation, development, and proper
utilization of surface and ground
water;
(c) To develop and regulate
dams, impoundments, reservoirs, and
other works and to provide water
storage for beneficial purposes;
(d) To prevent damage from
floods, soil erosion, and excessive
drainage;
(e) To preserve natural
resources, fish, and wildlife;
(f) To promote recreational
development, protect public lands, and
assist in maintaining the navigability
of rivers and harbors; and
(g) Otherwise to promote the
health, safety and general welfare of
the people of this state. [FLA. STAT.
s 373.016(2) (a)-(g)]

The act divided the state into five water management
districts, each governed by a nine-member board appointed by the
Governor subject to Senate confirmation. This division of the
state into districts which approximated surface water basins
allowed each district to regulate water in a way that was











appropriate for the region. The Department of Environmental
Regulation (previously the Department of Natural Resources when
the law was first enacted) has general supervisory authority over
the water management districts. [FLA. STAT. s 373.026(7)] The
DER, however, is to delegate as many responsibilities as possible
to the districts. [FLA. STAT. s 373.016(3)] The act also
authorizes consumptive use permitting and the permitting of
wells, dams, and surface waters.



CONSUMPTIVE USE PERMITTING

Originally, the Water Resources Act of 1972 authorized
water management districts to engage in consumptive use
permitting, but did not require it. In 1982, the Legislature
required all districts to institute consumptive use permitting
programs [1982 Fla. Laws ch. 82-101]. Currently, all the water
management districts have promulgated rules for consumptive use
permitting. In order to obtain a consumptive use permit, an
applicant must establish that the proposed use of 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 [FLA. STAT. s 373.223(1)(a)-(c)]. A
"reasonable beneficial" use is defined as "the use of water in
such quantity as is necessary for economic and efficient
utilization for a purpose and in a manner which is both
reasonable and consistent with the public interest" [FLA. STAT. s
373.019(4)]. The state water policy states that in determining
whether a water use is a reasonable beneficial use the following
factors should be considered:

(a) The quantity of water
requested for the use;
(b) The demonstrated need for
the use;
(c) The suitability of the use
to the source of water;
(d) The purpose and value of
the use;
(e) The extent and the amount
of harm caused;
(f) The practicality of
mitigating any harm by adjusting the
quantity or method of use;
(g) Whether the impact of the
withdrawal extends to land not owned
or legally controlled by the user;
(h) The method and efficiency
of use;











(i) Water conservation
measures taken or available to be
taken;
(j) The practicality of reuse,
or the use of water of more suitable
quality;
(k) The present and projected
demand for the source of water;
(1) The long term yield
available from the source of water;
(m) The extent of water
quality degradation caused;
(n) Whether the proposed use
would cause or contribute to flood
damage;
(o) Whether the proposed use
would significantly induce salt water
intrusion; and
(p) The amount of water which
can be withdrawn without causing harm
to the resource.
(q) Other relevant factors.
[FLA. ADMIN. CODE s 17-40.04]

Under the present regulatory scheme, however, these guidelines
are not mandatory considerations.

The consumptive use permitting system established by the
Water Resources Act has been upheld against a constitutional
challenge based on the theory that the consumptive use permitting
resulted in taking of private property rights. [Village of
Tequesta v. Jupiter Inlet Corporation, 371 So.2d 663 (Fla. 1979)]
In this case, a property owner claimed that the denial of a
consumptive use permit resulted in a taking of his property
without compensation. The Florida Supreme Court held that the
common law had recognized no ownership right in water, only a
right to use water. Even under the common law, the use of water
was limited by the requirement that the use be "reasonable" and
"beneficial." The court held that regulating the use of water is
no more objectionable than zoning regulations which limit the use
of land to certain purposes. [371 So.2d at 670] The court made
it clear that substitution of a legislatively established
permitting program to determine citizens' rights to use water was
perfectly acceptable.

It should be noted that the statute adopts a policy that
gives priority to current water users, those who already hold
consumptive use permits, to the detriment of applicants, those
who desire to obtain consumptive use permits. That is, if an
applicant's use would interfere with an existing legal use, the
application would be denied. The rationale for this policy is
that persons who hold permits should have some degree of











certainty that water will continue to be available once they have
made expenditures developing the use, i.e. building water
distribution systems or factories, or establishing farms or
mining operations. The statutes, however, state that permits for
consumptive use may not be granted for more than 20 years. The
one exception to this allows governmental bodies or public
service companies to be granted permits for up to 50 years, where
such a time period is necessary for the retirement of bonds.
[FLA. STAT. s 373.236(1) and (2)]

Whether a particular application for a consumptive use
permit meets the criteria provided by the statutes is, of course,
a subjective question. In fact, the criteria, that the use be a
reasonable beneficial one, that it be consistent with the public
interest and that it not interfere with presently existing legal
uses, might not withstand a constitutional challenge. This is
particularly true in view of the Florida courts' stand that
authority may be granted to administrative bodies only when the
authority is granted with sufficient standards to assure that the
administrative body is not exercising legislative powers. [See
Askew v. Cross Key Waterways, 377 So.2d 913 (Fla. 1979)]

The reasonable beneficial use standard may be fleshed out
by its statutory definition and the common law from which it
originated. [See Maloney et al, Florida's "Reasonable
Beneficial" Water Use Standard, 31 U.FLA.L.REV. 253 (1979)] The
requirement that the use be "consistent with the public interest"
is, however, hopelessly vague.

The Department of Environmental Regulation is authorized
by the Water Resources Act to designate certain desirable uses
which are to be given preference in granting consumptive use
permits and certain undesirable uses which might have adverse
effects on water resources and which should not be given permits.
[FLA. STAT. s 373.036(9)] This has not been done.

Whether the water management district boards interpret and
apply the criteria for receiving a consumptive use permit in a
way that is acceptable to the Legislature is a subject for
evaluative research that is beyond the scope of this paper. An
alternative for the Legislature might be to assume that the
standards are too vague and develop new ones. One thing is
certain, when the water management district boards consider
consumptive use permit applications, they perform the difficult
task of balancing conflicting goals: the need to provide water
for "reasonable beneficial uses" and the need to save water to
protect the environment or provide water to a future user in
another basin. This balancing is done without clear policy
guides from the Legislature.











THE FLORIDA WATER PLAN


The Water Resources Act directs DER to develop a state
water use plan which, along with the state water quality
standards and classifications, is to constitute the Florida water
plan. [FLA. STAT. ss 373.036(1), 373.039] The state water use
plan is supposed to contain studies of existing water resources,
means and methods of conserving and augmenting them, existing and
future needs and uses of water for various purposes, and other
water related subjects. The water use plan is also supposed to
be a part of the state comprehensive plan.

The state water use plan, and therefore the Florida water
plan, for various reasons, has never been developed as was
contemplated by the statutes. Two of the main reasons for
failure of state water use planning are: first, compliance with
the state comprehensive plan, of which the water use plan is
part, is not mandatory; and second, as will be discussed later,
the Department of Environmental Regulation has little power to
require the policies set out in the plan be carried out by the
water management districts.

The Department of Environmental Regulation has developed a
state water policy which is found in Chapter 17-40 of the Florida
Administrative Code. The policy deals with many important issues
relating to water. The policy also sets up a procedure for the
review of the rules of the Department and the water management
districts and directs the water management districts to develop
water management plans consistent with the policy.

The authority of the Department of Environmental
Regulation to require the water management districts to revise
their rules and plans to conform to the policy is in doubt, as is
discussed later in this memorandum.



WATER AS A PUBLIC RESOURCE: A CONSTITUTIONAL AMENDMENT?

In 1972, when the Legislature enacted the Water Resources
Act, it did not adopt a declaration found in the Model Water Code
which stated "that waters of the state are the property of the
state and are held in public trust for the benefit of its
citizens." [F. Maloney, R. Ausness, S. Morris, A Model Water
Code 81 (1972)] The act stated instead that "the waters of the
state are among its basic resources." [FLA. STAT. s 373.016.]

The Water Task Force, established by Speaker of the House
Lee Moffitt to study water issues, has recommended that a
statement be adopted as a joint resolution to be submitted to the
voters as a proposed amendment to the Florida Constitution:











The waters of the state are a public
resource that shall be managed as a
public trust for the use and benefit
of all citizens and the maintenance of
natural ecosystems.

In light of the Tequesta case, supra, which upheld the
right of the state to regulate consumptive use and stated that
such regulation was as reasonable as regulation of land use, one
might wonder what the utility of passing such a constitutional
amendment would be.

Generally, provisions of state constitutions have legal
force because they limit the Legislature, the Governor, or the
courts in the exercise of their powers. It is not clear what
limitations would be placed on government as a result of the
proposed constitutional amendment. The provision appears to
provide that waters of the state would be subject to the public
trust doctrine. The public trust doctrine emanates from the
common law and provides that the public has the right to use the
navigable waters of the state. The expansion of the public trust
doctrine to non-navigable waters may unreasonably usurp some
private owners' rights to use ground water and thus result in an
illegal taking of property without compensation. On the other
hand, a court might determine that since the state may regulate
water by consumptive use permitting, it may not be any more
offensive to regulate it in accordance with the public trust
doctrine. The question remains, however, on why such an
amendment is necessary.



INTERBASIN OR INTERDISTRICT TRANSFERS OF WATER

Unfortunately, some of the fastest growing cities and
counties in Florida are those which have no source of water
within their boundaries. These local governments occasionally
buy well fields inside the boundaries of other local governments
to supply their citizens with water. The jurisdictions from
which the water is being taken are becoming concerned about
having enough water for their future residents and the prevention
of environmental degradation.

The statutes authorize interjurisdictional transfers when
"consistent with the public interest":

the governing board or 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 governing board or department
determines that such transport and use
is consistent with the public
interest. [FLA. STAT. s 373.223(2)]

Further, local governments may not adopt or enforce
prohibitions of interjurisdictional transfers of water. It is
the water management districts that have the real control of
these transfers. A water management district must issue a
consumptive use permit before such a transfer can take place.
The water management districts may also prohibit the transfer by
finding that the transfer is not "consistent with the public
interest" or that the use of the water would reduce the ground
water to such an extent that the withdrawals would "be
significantly harmful to the water resources of the area." [FLA.
STAT. s 373.042(2)]

Again, the major problem is that the statutory standards
provided water management districts in determining when
interbasin or jurisdictional transfers should take place seem
very vague in relationship to the importance of the decision.

As one observer has noted:

A statewide policy for defining
minimum criteria for compliance with
the FWRA would subdue claims that the
districts are engaging in legislation,
that their decision making is
arbitrary and capricious, and that the
delegation of powers to them is
unconstitutionally overbroad. A clear
definition of the terms
reasonable/beneficial and public
interest would aid the districts in
their implementation of district water
plans.

[D. Kemp, Interbasin Transfers of Water in Florida, 56 FLA.B.J.
9, 16 (1982); see also, R. Rea, Drought in Florida: Nature's
Response to Comprehensive Planning, 57 FLA.B.J. 266, 267 (1983)]

The DER has developed some guidelines for interdistrict
transfers as part of the water policy. These guidelines apply to
interdistrict transfers only, and not to local government
transfers. These guidelines might, however, provide a starting
point for an attempt to develop standards. [FLA. ADMIN. CODE s
17-40.05]











WATER SUPPLY AUTHORITIES


The Water Resources Act authorizes municipalities and
counties to create regional water supply authorities for the
purpose of assisting counties and municipalities to obtain
adequate and dependable water supplies. The authorities are
established when a group of local governments enter into an
interlocal agreement which must be approved by the Governor and
Cabinet. The authorities have the following powers and duties:
(1) they may levy ad valorem taxes no greater than one-half mill
if approved by the voters; (2) they may acquire water rights,
store and transport water, and sell and deliver water for county
or municipal uses; (3) they may exercise the power of eminent
domain to condemn land for water rights and for other purposes;
and (4) they may issue revenue bonds. [FLA. STAT. s 373.1962]
The water supply authorities, because of these powers, can
facilitate interlocal transfers of water.

Currently, the West Coast Regional Water Supply Authority
is the only authority engaged in interlocal transfers of water.
It makes these transfers easier for local governments by
providing expertise and financing for water supply projects.
Also, the majority of the members of the boards of the
authorities may be representatives of local governments who want
to withdraw water from another local government. Both member and
nonmember local governments from which water is taken may not be
able to oppose the majority.

There are presently three water supply authorities, the
West Coast Regional Water Supply Authority, composed of Pasco,
Hillsborough, and Pinellas counties; and the Withlacoochee
Regional Water Supply Authority, composed of Levy, Marion,
Citrus, Sumter, and Hernando counties; and Manasota Water Supply
Authority composed of Charlotte, Manatee, Sarasota, Hardee, and
DeSoto counties. Two other water supply authorities, one
composed of Brevard County only and another composed of Seminole,
Lake, Orange, Osceola, Brevard, Polk, and Highlands counties, are
currently being proposed.

Although it is occasionally said that regional water
supply authorities are formed for "defensive" purposes, nothing
in the statutes prevents a local government from transporting
water from the territory within a water supply authority. Water
supply authorities can serve as "protective mechanisms" in the
sense that they provide a political coalition to lobby the
Legislature.











STATE PERSPECTIVE IN WATER MANAGEMENT DECISIONS


The Water Resources Act originally established that DER
was to:

exercise general supervisory authority
over all water management districts.
The department shall review, and may
rescind and modify, any policy, rule,
regulation, or order of a water
management district, except those
policies, rules, or regulations which
involve only the internal management
of the district, to insure compliance
with the provisions and purposes of
this chapter. [FLA. STAT. s
373.026(7)]

Unfortunately, the waters were later muddied when the Legislature
added this provision:

The Governor and Cabinet, sitting as
the Land and Water Adjudicatory
Commission, shall have the exclusive
power by vote of four of the members,
to review and may rescind or modify,
any rule or order of a water
management district, to insure
compliance with the purposes of this
chapter. [FLA. STAT. s 373.114
(emphasis added)]

Thus it is not clear from the statutes whether DER may review the
rules or orders of the water management districts.

While the statutes may not be clear, observers of the
relationship between DER and the water management districts are
consistent in their opinion that DER has very little control over
the districts. Richard Hamann, the Director of the Water Law
Program at the Center for Governmental Responsibility, the
University of Florida, has written that the districts are
"largely autonomous." The effect of this situation may be
unfortunate, since DER might be instrumental in setting state
water policies. As more and more regulatory responsibilities are
delegated to the water management districts, there needs to be
some continuing state involvement or clear supervisory authority
over water management decisions.











CONCLUSIONS


Two areas relating to consumptive use regulation of water
are problematic. First, are the standards for granting
consumptive use permits and allowing the interbasin transfers of
water adequate? Second, what role should DER, as the state
agency charged with protection of water resources, play in the
regulation of consumptive uses or interbasin transfers? These
questions should be answered before competition for water
resources becomes more heated and no satisfactory policies can be
developed.










BIBLIOGRAPHY


R. Hamann, Common Law Water Rights and the Florida Water
Resources Act of 1972, ENVIRONMENTAL REGULATION AND
LITIGATION IN FLORIDA (The Florida Bar 1981, Supp. 1982).

D. Kemp, Interbasin Transfers of Water in Florida, 56 FLA.B.J. 9
(1982).

F. Maloney, L. Capehart, R. Hoofman, Florida's "Reasonable
Beneficial" Water Use Standard: Have East and West Met?,
31 U.FLA.L.REV. 253 (1979).

F. Maloney, R. Hamann, INTEGRATING LAND AND WATER MANAGEMENT
(University of Florida 1981).

F. Maloney, S. Plager, R. Ausness, B. Canter, FLORIDA WATER LAW
1980, (University of Florida 1980).

R. Rea, Drought in Florida: Nature's Response to Comprehensive
57 FLA.B.J. 266 (1983).

S. Walker, Florida Water Resources Act of 1972, ENVIRONMENTAL
REGULATION AND LITIGATION IN FLORIDA (The Florida Bar
1981, Supp. 1982).




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