Title: Rights to Consumptive Use of Groundwater
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00004684/00001
 Material Information
Title: Rights to Consumptive Use of Groundwater
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Rights to Consumptive Use of Groundwater
General Note: Box 28, Folder 1 ( Memo to Lieutenant Governor J. H. Williams - April 24, 1995 ), Item 1
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004684
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





Memorandum to leutenant Governor J. H. Williams
April 24, 1 5
Page 1

9 1-7
MEMORANDUM


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

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

DATE: AprY 24, 1995

RE: Rights to Consumptive Use of Ground Water


I. INTRODUCTION

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

The purpose of this memorandum is to describe the nature of
the property rights that a property owner has to the consumptive
use of water. We are considering any use of water that decreases
the quantity of water available for use by others as a consumptive
use. Additionally, we are limiting our efforts to describing the
nature of the rights with respect to ground water that is, water
which flows or is contained in the ground. We will not describe
the nature of the rights to surface water that is, water which
flows or is contained on the surface, such as, rivers, lakes,
streams, and ponds. Since surface waters currently account for
only 10% of the fresh water we use in Florida and the problems
associated with the allocation of surface water are so different
than ground water, we have elected not to include surface water in
our discussions, except to the extent that it has a bearing on
groundwater rights.










Memorandum to Lieutenant Governor J. H. Williams
-April 24, 1995 __-
Page 2


As indicated above, we have no unknown or mysterious sources
of water. Water has an identifiable source. When ground water
withdrawals are made, we can determine where the water is coming
from and we can measure to some extent the effects of the
withdrawals. Withdrawals of ground water from an artesian aquifer
will cause some changes in the potentiometric surface of the
aquifer; will cause changes to take place, subsequently, in the
water table of the shallow aquifer; and will ultimately be
reflected in a charge in the amount of water available as surface
runoff. These changes in turn cause changes in the ground water
supply itself, in the water related surface conditions, and through
some mechanism, in the character of the land surface. The
resultant effects may be lowered water levels in wells, declines in
the potentiometric surface, low(ired lake levels, reduced stream
flow, salt water intrusion, the formation of sinkholes, vegetation
changes or any combination of the foregoing. In determining what
constitutes a safe withdrawal from an area, all of these effects
must be considered. In this memorandum we are concerned with the
allocation of water among those parties who have a right to the
water. We are not concerned with determining how much water can be
safely withdrawn.

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

II. NATURE OF PROPERTY RIGHTS IN WATER

Water rights are classified, protected and administered under
two principle doctrines in the United States, the reasonable use
doctrine, also referred to as the riparian rights doctrine, and the
prior appropriation doctrine.1 Under both doctrines, water rights
are considered as "usufructuary", a right of use and not an
interest in the corpus of the water supply. It is the use of water
and not the water itself which is the subject of the property
right.

That right to the use of water under both the prior appro-
priation doctrine and the reasonable use doctrine is generally
considered to be an interest in real property.2 Most jurisdictions
treat this water right as an interest in real property for the
purposes of determining title in a quiet-title action,3 a mortgage-
recording requirement, satisfying the statutes of frauds, descent
and inheritance, and taxation.4 Likewise, a water right, like
other property interests, may be sold or otherwise transferred,
such as by leasing the right to another party or by descent through
the provisions of a will.5 Florida, like most eastern states,









Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 3


recognizes riparian rights as property.6

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

The rule of correlative rights is almost identical to the
reasonable use rule and has been followed in California. Under the
correlative rights rule the water users are afforded a
proportionate share of the water based on land ownership. Water
users under the reasonable use doctrine are treated similarly but
the method of allocation is not fixed. While Florida courts have
traditionally followed the reasonable use doctrine, the Florida
Supreme Court has also said that "the property rights relative to
the passage of waters that naturally percolate through the land of
one owner to and through the land of another are correlative.7
This az least suggests that the courts may apply the rule of
correlative rights.


III. GROUND WATER RIGHTS

(A) REASONABLE USE DOCTRINE

Ground water falls into two legal classifications,
either underground streams or percolating waters. Depending
upon the legal classification of the ground water, ground water
has traditionally been subject to two separate and distinct
bodies of legal rules. It should be noted, however, that these
legal classifications are artificial. Today hydrologists
generally agree that ground water is but one phase of the
hydrologic cycle and that ground water is in constant movement.
Most importantly, hydrologists know that all water is
interrelated and interdependent and should not be dealt with as
though it had separate and distinct classes. Nonetheless, we
continue to use different legal principles for each
classification.

The Florida Supreme Court has followed the traditional
classifications of ground waters, either as underground streams
or as percolating waters.8 Accordingly, the Florida Supreme
Court has recognized that an underground stream must have the
same characteristics as a surface stream, that is it must have a
permanent, distinct and well-defined channel.9 The Court went









Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 4


on to recognize that the rules of law which govern the use of
surface stream are applicable to underground streams and that
ground water is presumed to be percolating unless it is
affirmatively shown that the water is flowing in an underground
stream. 1

Percolating waters include all waters which pass through the
ground beneath the surface of the earth without a definite
channel and which are not shown to be supplied by a definite
flowing stream. These waters ooze, seep, filter and otherwise
circulate through the interstices of the subsurface strata
without definable channel, or in a course that is not
discoverable from surface indications without excavations for
that purpose." Coupling the presumption that all ground waters
are percolating with the understanding that hydrologists have of
our ground water system, we will base our discussions on the
notion that all ground waters are percolating waters.

The English Common Law with respect to rights in percolating
waters was not developed until 1843 in the case of Acton v.
Blundell.2 Under this doctrine, percolating waters constitute
par and parcel of the land in which they are found and belong
absolutely to the owner of such land who may without liability
withdraw any quantity of water for any purpose even though the
result,is to drain all water from beneath the adjoining lands.
At an early date, the American courts expressed dissatisfaction
with the absolute ownership rule and began applying what has come
to be known as the "reasonable use rule". Generally, the rule of
reasonable use is an expression of the maxim that each landowner
is restricted to a reasonable exercise of his own rights and a
reasonable use of his own property, in view of the similar rights
of others.1

In 1956, the Florida Supreme Court followed the reasonable
use rule in a case involving percolating ground water.14 In
this case, the Florida Supreme Court rejected the absolute
ownership rule and expressed its version of the reasonable use
rule as follows:

"The opinions expressed in these cases harmonize the
pronouncements in Labruzzo v. Atlantic Dredging Const.
Co., 54 So. 2d 673, 29 A.L.R. 1346, that the American
courts have receded from the old common law rule that
an owner had an unrestricted right to draw percolating
water from this land and to adopt the rule that the
right is bounded by reasonableness and beneficial use
of land.""1

Under the reasonable use rule, as applied to surface water,









Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 5


each riparian owner has the right to make use of the water
subject to the equal rights of the other riparian owners. Conse-
quently, no riparian owner can withdraw all of the surface water
since this would be unreasonable because it would interfere with
the equal rights of the other riparians. Under a "pure"
reasonable use rule as applied to percolating water, an overlying
landowner could withdraw a quantity of water that damages a
neighboring landowner so long as the water were being, used for a
beneficial purpose on the overlying land.16 A number of
eastern states have abandoned this "pure" reasonable use rule for
percolating water and have adopted a reasonable use rule as to
percolating waters that is similar to the reasonable use rule
governing riparian rights in surface waters."

To date, the Florida Supreme Court has followed the trend
set by other eastern jurisdictions in following the reasonable
use rule similar to that governing riparian rights."1

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

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

2. The rights to the water are property rights and the
rights of one landowner with respect to another are
correlative."2

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

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

Consider the case of two adjacent landowners who are with-
drawing ground water for use of their overlying property where
there is insufficient water to supply fully the requirements of
both. Under this set of circumstances, in a jurisdiction such as
Florida, one or both of the landowners would have to reduce their
withdrawals depending upon the amount of water available. Based
on the quantity of water available, a court would equitably
apportion or distribute that quantity of water to the landowners
after considering the purposes and uses to which these landowners
would be placing the water. The ultimate decision will depend on
the Particular facts of the individual case. It should be









Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 6


recognized, however, that as additional landowners want to
initiate new water uses that are reasonable uses, the landowners
will once again face the problem of equitably distributing the
water.

If in this example, it could be shown that one of the
landowners was wasting the water or making an unreasonable use of
the water, the other landowner could seek the appropriate
judicial relief to eliminate or prohibit the wasteful or un-
reasonable use.

In all of the cases above, it should also be remembered that
priority of use establishes no priority of right, i.e., one
cannot claim superior right merely because he used the water
first.

The problem becomes somewhat more complex when a landowner
begins transporting the water beyond his overlying land. In 1956
when the Florida Supreme Court23 adopted the reasonable use
rule, the court clearly stated that the right to withdraw water
"is bounded by reasonableness and beneficial use of the land".
In this case, the Supreme Court reinstated a complaint to allow
the affected landowner the opportunity to prove his allegations
that the large withdrawals of water were unreasonable and would
result in irreparable injury to his property. In this same case,
the Court recognized that a governmental body "is not in a
favorable position simply because the water drawn is to furnish
the public."24

If the Florida courts followed the strict common law rule,
the overlying landowner will be confined to using the water for
reasonable and beneficial uses on the overlying land, just as the
riparian owners are confined to use on the riparian land. In
1927 the Florida Supreme Court25 elected to modify its
application of the surface riparian rule by finding that any
person may divert the flood or excess waters to lands not
riparian and even beyond the watershed of the stream. The court
reasoned that these types of diversions should be allowable since
the water is of "no substantial benefit to the riparian or his
land". Assuming that the Florida courts would continue to apply
the same reasonable use rule to ground water as has been applied
to surface water, it is reasonable to suggest that the courts
will permit the diversion of excess ground waters to non-
overlying lands, as the Florida Supreme Court did in Koch v.
Wick.26 In this context excess ground waters means the amount
of water not needed for reasonable and beneficial purposes on the
overlying lands.

Recognizing that several changes in the law could be made









Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 7


that would enable the water resources of Florida to be "put to
the most beneficial use of which they are reasonably capable, and
so that waste and unreasonable use may be minimized", the Florida
Water Resources Study Commission in 1957 recommended to the
Governor and the Legislature certain legislation to accomplish
these objectives. Included in the legislative package was a
proposal, which was enacted, to authorize the diversion of all
water in excess of reasonable use beyond riparian or overlying
land.27 The adopted provision that authorizes these diversions
clearly implies that the uses on overlying land have a priority
and that the right to divert only applies as long as excess water
is available.

Outside of the limited insight provided by these two Florida
cases and the single statutory provision, it is helpful to look
to other jurisdictions to establish an opinion on modern
decisions concerning the transportation of water from the over-
lying lands.

Clearly, the trend of modern decisions has been towards the
adoption of the reasonable use doctrine. Many states have had to
resolve the conflict where there is competition for water between
a governmental unit, which wants to transport ground water beyond
the overlying lands, and the landowners adjacent to the
governmental wells or well field. As the public water systems
seek new sources of water to meet their ever-increasing water
needs, these conflicts are destined to occur and recur.28

These decisions agree that under the reasonable use doctrine
an overlying landowner, including a municipality, may not
withdraw water and transport it from the overlying land for sale
or use away from the land from whence it was withdrawn, if the
withdrawals impair the supply of an adjoining landowner to his
injury. The use has been characterized as unreasonable because
it is non-beneficial and is not for a "lawful purpose within the
general rule,concerning percolating waters".29 One court went
further and specifically recognized that the right to make a
reasonable use of the percolating waters underlying one's land is
a property right and is usufructuary in nature.30

The courts have acknowledged that the principal difficulty
in applying the rule of reasonable use is in determining what
constitutes a reasonable use. Many.factors, such as the persons
involved, the effects c,f the withdrawals, the relative positions
of the persons involved, the quantity of water available, the
nature of the USE!S, the dependability of the supply, the
climatic conditions, and the comparative value of their uses,
have been considered when determining what is a reasonable use.3









Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 8


Stated generally, the reasonable use doctrine provides that
"each landowner is restricted to a reasonable exercise of his own
rights and a reasonable use of his own property, in view of the
similar rights of others".32 A municipal corporation or a
county water system seeking water for its residents or customers
is subject to the same rules of law concerning rights in ground
water as is a private individual." The city or county is a
private owner of land and the furnishing of water to its
inhabitants is its private business. As one court commented,
"while it is imperative that the people of the city have water,
it is not imperative that they secure it at the expense of those
owning" lands adjacent to municipal well fields.34

Although California has adopted the correlative rights
doctrine, a review of the California cases is very helpful
because of the many similarities between the correlative rights
doctrine and the reasonable use doctrine. Because the
correlative rights doctrine is almost identical to the reasonable
use doctrine, it is not uncommon to see courts in jurisdictions
that have adopted the reasonable use doctrine to discuss
correlative rights as though it were the same as the rule of
reasonable use.35 The only difference in the two doctrines is
that when there is an insufficient supply of water available, the
correlative rights doctrine allocates the water among the
reasonable beneficial users in proportion to land ownership,
whereas, under the reasonable use doctrine, there is no fixed
method for allocating the water among the reasonable users.

The California Supreme Court in City of Pasadena V. City of
Alhambra,36 in an action to determine the ground water rights
within a basin and to enjoin an alleged annual overdraft in order
to prevent eventual depletion of the supply, said:

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









Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 9


... Proper overlying use, however, is
paramount, and the right of an appropriator
[earlier the California court noted that this
term refers to any taking of water for other
than riparian or overlying uses], being
limited to the amount of surplus, must yield
to that of the overlying owner in the event
of shortage, ... As between riparians, are
correlative, and are referred to as belonging
to all in common; each may use only his
reasonable share where water is insufficient
to meet the needs of all.""3

The position taken by the California Supreme Court under the
correlative rights doctrine is harmonious with the reasonable use
doctrine. The distinction between the correlative rights
doctrine and the reasonable use doctrine is that when the supply
is inadequate to meet the reasonable beneficial needs of the
overlying owners, the correlative rights doctrine requires a
sharing of withdrawals among landowners overlying a common basin
based upon his surface ownership.

There are areas in the State where we have a very good
understanding of our ground water system. These understandings
are possible primarily because or years of data collection, study
and experiences with the system.' If the State adopts the
correlative rights doctrine, in those areas where we have a good
understanding of the ground water system, the overlying owners
will be able to make fairly close estimates of the quantities of
water they will leave available when the water resources are
fully developed. This certainty is lacking under the reasonable
use doctrine. While the correlative rights doctrine is capable
of providing this certainty, it is possible only if we have an
understanding of the ground water system. There are many areas
of the "State where we have little knowledge of our water
resources. In these areas we must initiate data collection
programs and special investigations if we are to engage in
responsible regulatory management decisions. The absence of an
understanding of the ground water system cannot be cured by the
adoption of any legal principle or concept.

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

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









Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 10


2. 'The withdrawals for non-overlying uses must 'n ot
interfere with the reasonable uses of the overlying
owners on the land from which the water is
withdrawn."

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

4. When there is not sufficient water to meet the
reasonable uses of the overlying owners, those owners
who are transporting water off the overlying lands must
recognize the prior right of the overlying owners,
since such transportation is not a "lawful purpose".
It is "unlawful" since reasonableness is limited to
purposes incident to the beneficial enjoyment of the
land from which the water is withdrawn.41

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


(B) REASONABLE BENEFICIAL USE

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

The net result of adopting the "reasonable-beneficial use"
standard is to place the beneficial use limitation on the present
"reasonable use" doctrine. We have not replaced the reasonable
use rule, we have made an addition or limitation to the doctrine.
In spite of the inclusion of the word "beneficial", the statutory









Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 11


definition is basically a restatement of the present common law
test for reasonable use.

Practically, in the cases where the demands for water exceed
the available supply, the results obtained under the it
reasonable use doctrine" will be the same as those obtained under
the "reasonable-beneficial use standard".

The adoption of the "reasonable-beneficial use" standard has
not moved Florida into the position of adhering to the "prior
appropriation doctrine". Throughout the Commentary of the Model
Water Code the drafters carefully pointed out their refusal to
adopt such a system.46 Likewise, the 1957 Florida Water
Resources Study Commission in its "Report to the Governor and the
1957 Legislature" also rejected the "prior appropriation"
doctrine as a means for managing our water resources.


IV. PROBLEM AREAS

(1) The Taking Issue

Because the right to the use of water is a property right,
the regulation of water use must be done in a manner that will
not be construed as a taking of property without just compen-
sation. With various regulatory efforts being undertaken within
the State, it is imperative that we regulate the resource in a
manner that recognizes the property rights of the affected
landowners, but also is fair and equitable.

Throughout most of the State the water supply is adequate to
meet the present needs of all water users without damage to
property, persons or the resource. In these areas there is
little need for stringent regulation. However, as these areas
grow and the demands for water increases the time will come when
the supply will be inadequate. When this time comes, as it has
in a few areas of the State, regulatory programs will be devised
to allocate the water resources. It is important that these
programs be set up so as not to restrict unconstitutionally a
landowner's right to water.

To guide the implementation of these regulatory programs, we
feel that the State, through the Department of National
Resources, must adopt a formalized policy. It is our recom-
mendation that the State adopt the correlative rights doctrine in
the implementation of its various regulatory programs and in the
development of the State Water Use Plan. The correlative rights
doctrine has the advantages of (1) being almost identical to the
reasonable use doctrine, (2) utilizing a reasonable beneficial









Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 12


use standard that is comparable to the reasonablebeneficial use
standard of Chapter 373, Florida Statutes, and (3) having a
definite method of allocation, when the supply is inadequate to
meet the needs of all users. Because the correlative rights
doctrine is virtually identical to the reasonable use doctrine,
it is unlikely that it could be successfully challenged as a
taking of property without just compensation.

If the State adopts such a policy, each landowner will know
the minimum amount of water that he can reasonably expect to
always have available for reasonable-beneficial uses. Presently,
a landowner has no idea of the amount of water that he has
available for reasonable-beneficial purposes. As pointed out
earlier, under the correlative rights doctrine, the distribution
of water for reasonable-beneficial purposes is made in proportion
to the ownership of the overlying land. However, the allocation
is only necessary if the water needs exceed the available water
supply.

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

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

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

It is important to recognize that, if properly
Implemented, this doctrine will minimize the problem of the
taking issue, and make moot the question of compensatory
damages for this property right. This standard is one by
which water may be allocated most equitably and beneficially
among competing water users, private and public, while at
the same time providing for the maximum protection,
conservation and utilization of the resource.









Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 13


A significant benefit to be gained from the adoption of such
a policy is that Florida could expect a different type of well
field development in the future. Historically, the city and
county water systems have purchased small tracts of land for the
development of well fields. From these small tracts of land the
cities and counties have pumped enormous quantities of water.
This type of concentrated withdrawal has created problems for the
water systems and the adjacent property owners. For the adjacent
property owners the concentrated withdrawals have led to lowered
water levels in their wells, lowered lake levels and sinkholes.
For the well field owners, the problems have come with the
development of the property adjacent to the well field and the
increased demands for water. As water is needed on the adjacent
lands, the well fields have had to reduce their withdrawals.
Hopefully, if this policy is adopted, well field developers would
be encouraged to develop well fields that were spread out over
larger areas, thereby reducing the effects of the withdrawals
and, in all probability, Prolonging the life of the well field.

If the water rights are defined as recommended, we can
eliminate the necessity of purchasing the fee simple title for
well field development. All the city or county will have to
purchase is the water rights to the property. This will leave
the landowner with the ability to utilize the overlying land for
any number of purposes. There are a great many land uses that
are compatible with the development of a well field.
Additionally, this should serve to decrease the cost of land
acquisition or water supply purposes.

(2) State Water Policy

At the present time there are five water management
districts in the State. Two of these districts have implemented
regulatory programs for the consumptive use of water pursuant to
Part II, Chapter 373, Florida Statutes. These two districts
utilize different permitting procedures and forms and, although
both are in the early states of implementation, it appears that
different concepts of allocation are being utilized.
Consequently, depending on which district is involved, water
rights may be determined by the common law rule of reasonable use
or a regulatory scheme based on the reasonable beneficial use
standard. Assuming the same facts were presented to each of the
districts presently exercising a regulatory function, it is
possible and probable that each district will make a different
determination. Should this occur and an administrative appeal be
taken to the Governor and Cabinet, functioning as the head of the
Department of Natural Resources, it is unrealistic to expect
affirmation of both actions.









Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 14


This example points out the need and necessity for a well-
defined state water policy. We must have a uniform state water
policy. Once this policy is defined, each of the water
management districts can implement the policy in such a manner
that it is capable of handling those situations that are unique
to it because of a particular hydrologic or geologic factor.
Since each district is implementing the same statutory provisions
through a delegation of authority from the Department of Natural
Resources, it is difficult to imagine that the Legislature
intended to establish different systems and methods for
establishing water rights in Florida.

If the Department of Natural Resources establishes model
rules and regulations with which the water management districts
must substantially comply, but also provide for variances and
exceptions because of unique or unusual circumstances, the State
will have taken the first step Towards the implementation of a
uniform state water policy.

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

Efforts are now underway for the preparation of the State
Water Use Plan, pursuant to Section 373.036, Florida Statutes.
In the absence of a well-defined state water policy, it is
difficult to envision how the State Water Use Plan can be
developed. Additionally, parts of the State Water Use Plan are
being developed by some of the water management districts,
consequently, the possibility and probability of inconsistent
objectives and methodology is present.

As noted earlier, two of the water management districts have
implemented consumptive use permitting programs. From a planning
viewpoint, the development of the State Water Plan should be the
first step. It is implied in Chapter 373 that the implementation
of the consumptive use permitting programs should be consistent
with the State Water Use Plan. With these programs being
implemented without a State Water Use Plan, it can be expected
that some of the approved consumptive use permits will be in
conflict with the State Water Use Plan. To avoid this problem,
during these early stages our efforts should be directed towards
the development of the State Water Use Plan rather than
consumptive use permitting programs. Only in those instances
where we have a water shortage or a probable water shortage in
the near future is there an immediate need for consumptive use
permitting programs. In the absence of a clear state water
policy and a State Water Use Plan, can it be determined that a
use will be a reasonable-beneficial one? Probably not.









Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 15


Another potential problem in the implementation of a
consumptive use permitting program is the possibility of
developing into a prior appropriation system. As pointed out in
the two reports that have served as the foundation for the
statutes enacted by the Florida legislature, the prior
appropriation approach has been considered and specifically
rejected. Since the legislature has rejected the prior
appropriation doctrine, it is unlikely that a court would uphold
a regulatory program based on prior appropriation.

A prior appropriation system, if implemented, can generate
numerous problems. For example, if implemented, the day will
come when a district will have allocated all of the water on the
basis of "first in time, first in right"; at that point, all
future applicants will have to be denied because there is no
water available. Since the right to water exists even though it
isn't being exercised, it is doubtful that: this right can be
denied in the absence of compensation.

Provision was made in the Water Resources Act of 1972 for
instances where there was not a sufficient quantity of water to
meet all the demands for water. A careful reading of Chapter 373
and Section 373.246, Florida Statutes, clearly indicates that the
water shortage condition contemplated is an emergency type
situation, a rare event of the type that man has little control
over, such as a prolonged drought. It was not envisioned that
water shortages would be created by the implementation of
consumptive use permitting programs. It doesn't seem realistic
to implement a system that will lead to a shortage or disaster.
These problems can be avoided by the adoption and implementation
of the recommended policy statement.

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

On the state, regional and local levels of government,
invariably one body is engaged in land use regulation and another
in water use regulation. Local government makes land use
decisions daily, while at the same time, the water management
districts are regulating water use. On the state level, the
Division of State Planning is preparing a State Land Use Plan and
the Department of Natural Resources is. preparing a State Water
Use Plan. Land use cannot be separated from water use. What can
someone do with a piece of property without water? What you do
with a piece of property affects the water resources. What you
do with the water resources affects the land. Land use
activities must go hand in hand with water use. Regulatory and
planning activities for land use and water use on all levels
should be placed in one agency or unit. This is the best way to









Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 16


insure a fully coordinated planning and regulatory process. Too
often, rezoning a piece of property for residential or industrial
purposes carries an assumption, perhaps erroneous, that there
will be an adequate water supply.

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

(5) Regulating, Protecting and Conserving Our Resources

As government continues to provide additional services
to the citizens, in efforts to economize and be efficient care
must be taken with the duties and responsibilities vested in
governmental agencies. For flood control, conservation, drainage
and water supply purposes, rivers have been channelized and
straightened, lake levels have been stabilized, wetlands have
been permanently flooded and drained and canals have been
constructed to the Gulf and Atlantic Ocean. Recently, it has
been shown that some of these Projects were mistakes; if under
consideration today, many would never be constructed. The
adverse effects of many of these projects will be felt for years
to come and, if correctable, they will require vast expenditures
of public funds. Many of the agencies that have created the
problem and damaged the resource are now responsible for
protecting and regulating the resource.

As power is granted to agencies, consideration must always
be given to the other functions which the agencies exercise.
Where roles are compatible, one agency should handle the dual
roles. Where the Toles are incompatible, two agencies should
handle them. Those agencies charged with the responsibility of
protecting, regulating and conserving our resources, should not
also be charged with the responsibility of developing the same
resource it regulates. With two agencies, each seeking to
perform its own function, a healthy conflict should exist and in
the end the public interest should be best served. For example,
an agency which is vested with the authorit,7 of regulating our
water resources should not exercise a water supply function,
since these roles are incompatible. However, an agency
exercising flood control functions could also be vested with
water supply functions since flood control and water supply are
compatible.










Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 17



V. SUMMARY


The right to the use of water is a property right. While
there exists the need to protect this property right, a need also
@exists to protect our water resources. The resource cannot be
considered inexhaustible. Water demands will continue to
increase and this continued development will modify and
complicate the water system. If Florida is to achieve optimum
development and management of our water resources, it must define
what a water right is, establish a state water policy, develop a
State Water Use Plan and, finally, implement a regulatory program
in conformity with this definition, policy and plan.


I_










Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 18


FOOTNOTES



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

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

3. California Water Service Company v. Edward Sidebotham and
Sons, Inc., 37 Cal. Rptr. 1 (1964); Higday v.
Nickolaus, 469 S.W.2d 859 (1971).

4. R. Clark, Water and Water Rights 53, 345 (1967).

5. Id. at 455.

6. F. Maloney, S. Plager, and F. Baldwin, Water Law and
Administration the Florida Experience, 31 (1968).

7. Cason v. Florida Power Co., 76 So. 535, 536 (1917).

8. Tampa Waterworks v. Cline, 20 So. 780 (1896).

9. Id. at 782.

10. Id. at 784.

11. 93 C.J.S. Water 86.

12. Acton v. Blundell, 12 M & W 324 (1843).

13. Farnham, Water and Water Rights, Vol. III, 2718, 2719.

14. Koch v. Wick, 87 So. 2d 47 (1956).

15. Id. at 48.

16. F. Maloney, S. Plager and F. Baldwin, Water Law and
Administration the Florida Experience, 157

17. Id. at 156, 157, 158.

18. Cason v. Florida Power Co., 76 So. 535 (1917); Koch v. Wick,
87 So. 2d 47 (1956); Labruzzo v. Atlantic Dredging and
Construction Co., 54 So. 2d 673 (1951).

19. Labruzzo v. Atlantic Dredging and Construction Co., 54 So.









Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 19


2d 673, 675 (1951); Koch v. Wick, 87 So. 2d 47, 48 (1956).

20. Labruzzo v. Atlantic Dredging and Construction Co.,
54 So. 2d 673, 676 (1951); Cason v. Florida Power Co., 76
So. 535, 536 (1917).

21. Labruzzo v. Atlantic Dredging and Construction Co.,
54 So. 2d 673, 676 (1951).

22. City of Pasadena v. City of Alhambra, 207 P.2d 17, 45
(1949); W. Fischer, Natural Resources Lawyer, Management of
Interstate Ground Water, Vol. VII, No. 3, 521, 525 (1974)

23. Koch v. Wick, 87 So. 2d 47 (1956).

24. Id. at 48.

25. Tilden v. Smith, 113 So. 708 (1927).

26. Koch v. Wick, 87 So. 2d 47 (1956).

27. Section 373.141, Florida Statutes (1971).

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

29. Higday v. Nickolaus, 469 S.W.2d 859, 866 (1971).

30. Higday v. Nickolaus, 469 S.W.2d 859 (1971).

31. Id. at 866.

32. Canada v. City of Shawnee, 64 P.2d 694 (1936).

33. Id. at 695.

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

35. Labruzzo v. Atlantic Dredging and Construction Co.,
54 So. 2d 673 (1951); Cason v. Florida Power Co., 76 So. 535
(1917); Meeker v. City of East Orange, 74 A. 379 (1909).










Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 20


36. City of Pasadena v. City of Alhambra, 207 P.2d 17 (1949).

37. Id. at 28; See also, California Water Service Co. v.
E. Sidebotham and Sons, Inc., 37 Cal. Rptr. 1 (1964).

38. Koch v. Wick, 87 So. 2d 47, 48 (1956); Labruzzo v.
Atlantic Dredging and Construction Co., 54 So. 2d 673,
675 (1951).

39. Koch v. Wick, 87 So. 2d 47, 48 (1956); Higday v. Nickolaus,
469 S.W.2d 859, 866 (1971); Schenk v. City of Ann Arbor, 163
N.W. 109 (1917); Jarvis v. State Land Department,
479 P.2d 169, 171 (1969); Meeker v. City of East Orange,
74 A. 379, 380 (1909).

40. Koch v. Wick, 37 So. 2d 47, 48 (1956); Higday v. Nickolaus,
469 S.W.2d 859, 866 (1971); Rathrauff v. Singing Spring
Water company, 14 A.2d 87, 90 (1940); City of Pasadena v.
City of Alhambra, 207 P.2d 17, 28 (1949); Jarvis v. State
Land Department, 479 P.2d 169, 170 (1969); Meeker v. City of
East Orange, 74 A. 379, 382 (1909).

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

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

43. Section 373.219, Florida Statutes (1973).

44. Section 373.223, Florida Statutes (1973).

45. F. Maloney, R. Ausness & S. Morris A Model Water Code,
173 (1972).

46. Id. at 81 and 158-159.

1.

2.

3.


~










Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 21


5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.










Memorandum to Lieutenant Governor J. H. Williams
April 24, 1995
Page 22


30.

31.

32.

33.

34.

35.

36.

37.

38.

39.

40.

41.

42.

43.

44.

45.

46.


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