D DALTC; Y#A:CEY
May 27, 1981
(This received from Riley Miles
RE: Proposed Policy Statement on Property Rights
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,
(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 \roundater from their lang 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.
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 usuifruct 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 Teguesta v. Jupiter Inlet Corporation, 371 So.2d
663, 670,(Fla. 1979).
q ---,S *
2 0 .
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),
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
(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
Sections 373.226 and 373.223, Fla. Stat., an owner is not
authorized to make a consumptive use of any water other than
for domestic consumption by individual users. Section 373.216
and 373.219, Fla. Stat.
For example, the owner of a parcel of land adjacent to the
Gulf of Mexico may not have the right to withdraw and use any of
the water beneath that land if, by withdrawing the water, the water
resources in the area are threatened with imminent damage from
salt water intrusion. That property owner has no absolute right
to any finite portion of water beneath his land. Under Ch. 373,
Fla. Stat., the overriding interest of the public can operate to
preclude any use of the underlying ground waters in appropriate
The balance between competing applications is struck at that
point which best serves the public interest. Section 373.233(1),
Fla. Stat. In the event competing applications are equally
qualified, perference is given to renewal applications over initial
applications. Section 373.233(2), Fla. Stat. This should become
a continuous balancing process because, as situations and climatic
conditions change, the location of the balance point between
competing uses will shift to preserve what is best for the public