-2-



This "right of use," held by property owners, was not

abolished by the adoption of the Florida Water Resources Act of

1972 (Ch. 373, Fla. Stat.) but rather was further limited and

qualified by the provisions of Part II of the Act.

Within those water management districts where consumptive

use permitting has been implemented, the owner with an existing

use of water from his land is entitled to secure an initial permit

authorizing the continuation of that use if the use is a reasonable-

beneficial use, as defined in Section 373.019, Fla. Stat., and is

allowable under the common law of the state. Section 373.226(2),

Fla. Stat.

Owners who seek to commence new uses after a consumptive use

permitting program has been implemented must meet different, limiting

requirements. These are set forth in Section 373.223, Fla. Stat.

and require that the applicant must establish that the proposed use

of water:

(a) is a reasonable-beneficial use;

(b) will not interfere with any presently existing

legal use of water; and

(c) is consistent with the public interest.

In the event the existing use or the new use requirements

are not satisfied, the property owner has no right to make con-

sumptive use of underlying groundwater or of surface water.

Owners of overlying property and riparian owners do not have an

absolute right to use any particular quantity of water adjacent to or

beneath their property. Unless the proposed use meets the require-

ments of the administrative system of water management stated in






r
May 27, 1981 /

RE: Propoded Policy Statement on Property Rights 3


Add paragraphs (5) and (6) to Rule 17-40.04 to read:

17-40.04 Water Use
The following shall apply to those areas where the use
of water is regulated pursuant to Part II of Chapter 373,
Fla. Stat.

(5) In implementing consumptive use permitting programs, the

department and districts shall recognize the rights of property

owners, as limited by law, to withdraw and make consumptive uses

of groundwater from their land for reasonable-beneficial uses.



(6) The department and districts shall continually seek to maintain

a balance between competing users to protect the interests of all

affected persons in a manner consistent with the public interest.




Comments:

A property owner in Florida does not own the water beneath

his land in the absolute sense, and never did. Instead, the prop-

erty right of the owner is to the usufruct of the water, not to the

water itself. Village of Tequesta v. Jupiter Inlet Corporation,

371'So.2d 663, (Fla. 1979). Even before the adoption of the Florida

Water Resources Act of 1972, the owner's right of use was not

absolute. Florida followed the reasonable use rule adopted by most

eastern states. Koch v. Wick, 87 So.2d 47, (Fla. 1956). The right

of use "was bounded by the perimeters of reasonable and beneficial

use." Village of Tequesta v. Jupiter Inlet Corporation, 371 So.2d

663, 670,(Fla. 1979).