Title: Water, Oil and Quail
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00002202/00001
 Material Information
Title: Water, Oil and Quail
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Water, Oil and Quail, Talk by LMB, May 19, 1980
General Note: Box 10, Folder 8 ( SF Water, Oil and Quail - 1980 ), Item 1
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00002202
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


A talk delivered by L. M. Blain
on May 19, 1980 at a
Florida Citrus Symposium in Lakeland, Florida

It's difficult to explain why water which lies under
a man's land can't be treated just like other natural
resources such as oil and natural gas. If someone has oil on
his land, determining his ownership interest in that oil is
fairly straightforward. For one thing, the pool of oil under
his land has definite boundaries. It doesn't percolate.
There is only so much oil there, and no one is pouring any
additional oil into that pool. It doesn't rain oil. A
neighbor who owns land over the same pool of oil may decide he
wants to take some of that oil out of the ground, and doing so
would decrease the volume of oil under both property owners'
lands. Our statutes deal with this situation by allocating to
each of the two landowners a share in the oil taken from that
common pool based on the land area owned over that pool. Say.
for discussion purposes that the pool of oil lies under 30
acres owned by the man who wants to take some of the oil out
of the ground and under 10 acres owned by his neighbor.
Nobody has to decide what volume of oil is going to be drained
from the neighbor's land. The law simply says that he'll be
entitled to a proportionate share of proceeds of the oil taken,
based on his land ownership. The neighbor who owns 10 out of
a total of 40 acres from which oil is taken will get 25% of
what the oil brings. To ensure that this principle would be
followed, our laws provide for unitization (operating each oil
pool as a unit) so that each landowner's share of the proceeds
from the sale of that oil can be determined on the basis of
land ownership.


That system is relatively simple for oil.
Unfortunately, determining rights based on ownership of water
poses extra problems. For one, the pool of water over which
each landowner's property lies is so large that virtually all
the landowners in the state would be affected by an attempt to
unitize all that water. The huge Floridan Aquifer, which lies
under most of the state, supplies water to most of the ground-
water users in peninsular Florida. Only the extreme portions
of western Florida and the southeastern part of the state do
not draw their groundwater from the Floridan Aquifer.

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Withdrawals from one tract of land may potentially affect
property lying quite some distance away and we've always had
too much surface water and the usual problem is how to get rid
of it. No one wants to claim it so we ditch it away.

Let's take a look at the system that makes up the
Floridan Aquifer. When I use the word "aquifer," I'm talking
about one of the zones under the earth's surface that is
capable of receiving, storing, and transmitting water. An
aquifer is something like a giant sponge of limestone, sadd or
shale or a combination of these. The water-table or shallow
aquifer is the unconfined zone in the shallow sands. Beneath
the shallow aquifer is the Floridan Aquifer. This is classed
an artesian aquifer, meaning that the water is confined and
under pressure. It's the. pressure in the artesian aquifer
that causes water to flow out of a well without pumping or
causes the water level to rise in a pipe above the elevation
of the confining layer.

The biggest problem in determining water ownership
and water use rights is the huge size of both the shallow
aquifer and the Floridan Aquifer. The aquifers are very large.
What happens at one point, under one owner's land, has effects
that reach to surrounding landowners' property. If it rains
over an area of land in Polk County, Manatee County property
owners may feel the effects of that rain. The water which
doesn't evaporate or become absorbed by surface vegetation
will seep into the water-table aquifer, and some of it will
make its way into the underlying artesian aquifer. The water
that goes into the aquifer in effect will spread, perhaps as
far as several counties distant.

The effects are equally as far-reaching when a land-
owner draws ground water. The water level at that particular
point is going to be lowered, but so is the water level under
lands owned by someone else. Think what happens when you take
a bucket full of water out of the middle of the swimming pool.
Obviously there's not going to be a bucket-shaped hole in the
middle of the pool. Instead, the water level of the entire
pool will be lowered, although perhaps by an almost impercep-
tible amount. Every part of the pool contributes. Its like a
long string of dominoes. There's a rippling effect from one
property owner to another.

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The problem of one property owner taking water that
decreases the supply of water available to others, perhaps
over a large land area, is felt even more acutely when water
is diverted for uses beyond the land that lies over the point
of withdrawal. The typical example of this is the govern-
mental entity that buys land to use as a wellfield for pumping
water to outlying land areas. Naturally, such a user is going
to withdraw greater quantities of water than adjoining land-
owners supplying water only for uses on their own riparian
land. We hear about this situation in loudest terms when a
big water user takes water which lowers lake levels even
slightly or when the water table from which water is drawn by
other wells is lowered below the end of the drop pipe or below
the pump bowl. But the problem is much broader than just one
water user competing against another for a limited supply of
water. There's also a question of water for future uses which
no one is claiming at the time. Dealing with this problem
requires meeting dual objectives of protecting individual
property rights while at the same time protecting water itself
as a resource.

It has taken a long time for our laws and our
technology to advance enough to know the facts necessary to
legally deal with the situation. For years, groundwater was
not treated in any special way. Either everybody owned it, or
no one owned it, depending on how you looked at it and what
state you were in. An old English case set forth the rule
that anybody who owned land could take whatever water he
wanted to take from that land. American law in the twentieth
century recognized the inherent problems in this "owner-take-
all" philosophy, and applied a rule of reasonableness. Just
as a landowner could not take unrestrained quantities of water
from a lake or underground stream, so he couldn't take all
that he wanted from the water that percolated through the
ground under his property. But no exact criteria developed
for deciding just how much water is reasonable. A landowner
treads on thin ice if he takes so much water that his neighbor
is injured as a result, but the law has said he may be
justified if he's taking the water for some useful or benefi-
cial purpose relating to his own land.


California has attempted to deal with the problem of
allocation by use of a fixed method. It was recognized that
no problems would arise if there was sufficient water for
everyone to use as much as he wanted, even if one land owner
used more than his proportionate share. The problems arise

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when there is short supply in the short or long run.
California has always been short of water in a large portion
of that state. California developed what's called the
"correlative rights" doctrine. Under this theory, users are
afforded a proportionate share of the right to water based on
amounts of land owned. This method thus provides some means
of certainty to a land owner facing a possible water shortage.

Florida has almost always had too much water and
water law in this state has not evolved into adoption of the
correlative rights doctrine. As a result of enactment of the
Water Resources Act of 1972 Florida began to follow what's
referred to as the "reasonable-beneficial use" standard. This
concept is based loosely on the Model Water Code published in
1972 by the late Dean Maloney and other water scholars at the
University of Florida. The reasonable-beneficial concept adds
to the principle of reasonableness, the considerations of
economic and efficiency found in the western system as a guide
in applying the reasonableness standard. But some governmental
entity must apply the standard and make a determination of the
proper balance between competing land owners. The concept
relies on the principle that an overlying land owner has a
qualified right to use the water under his land for reasonable
and beneficial purposes on non-overlying lands. Withdrawals
for use in such non-overlying areas, however, must not inter-
fere with the reasonable uses of overlying owners on land from
which their water is withdrawn. If withdrawals for transpor-
tation to non-overlying areas results in damage or injury to
the supply of water available to another landowner for over-
lying land purposes, transportation of water to non-overlying
areas no longer remains a lawful purpose.


Before last year, however, there were no court
decisions as to how much water overlying landowners might
actually take and no real understanding of ownership in the
context of percolating water beneath the earth's surface. The
Florida Supreme Court took the first step toward meeting the
issue last year in what has come to be known as the Tequesta

The Tequesta case came about like this. The Jupiter
Inlet Corporation owned some property near the Village of
Tequesta and developed plans to build a condominium project on
its property. The property was located only about 1,200 feet
from one of Tequesta's wellfields. Tequesta refused to agree

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to supply water to the condominium. Jupiter then applied for
a permit to build its condominium which it would supply with
water from the shallow-water aquifer. Prior to this' time
Jupiter had withdrawn excessive amounts of water from the
shallow aquifer underneath Jupiter's proposed development. As
a result, the fresh water level was so low that it could not
withstand the pressure of the salt water from the nearby
intercoastal waterway. The endangered condition of the aquifer
led the county to refuse to grant the exception and issue
Jupiter's building permit.

Without an exception to condone use of water from
the shallow aquifer, Jupiter was left with no alternative but
to drill a well into the deeper Florida Aquifer. Drilling a
well 1,200 feet below the surface of the earth is more
expensive so Jupiter took legal action. It sued Tequesta for
inverse condemnation and sought an injunction to stop Tequesta
from pumping excessive amounts of water. Jupiter claimed that
the excessive pumping by Tequesta from beneath Jupiter's
property had effectively deprived Jupiter of the future bene-
ficial use of its property rights in the shallow aquifer. It
thus claimed the right to be compensated for its loss.

At the first stage of the proceedings, the trial
court ruled that Jupiter had not stated a cause of action and
entered judgment for Tequesta. Jupiter appealed. The
district court of appeal then reversed the trial court. The
district court found that the shallow aquifer beneath Jupiter's
land was a form of private property. As private property, it
could not be taken without the due process of law and payment
of full compensation.

Tequesta took the case to the Supreme Court. That
court quashed the district court decision and affirmed the
judgment that had been entered by the trial court in favor of
Tequesta. Justice Adkins' opinion in the case gives us the
first pronouncement.of water ownership rights that we have had
since enactment of the Water Resources Act of 1972.

The Supreme Court stated, without reservation, that
a property owner does not have ownership rights in the under-
lying groundwater as long as it's still in the ground. Water
wanders and migrates. When someone takes it, draws the water
out of the ground and takes possession of it, he owns it, but
not before.

- 5 -

. 1 I

The court then stated that water is unlike oil,
minerals, and other substances of value. Those things are
valuable property rights which cannot be divested without due
process and just compensation. Water is not, said the court.
Jupiter had a right to use the water beneath its land, but not
to own that water until it had the water in its possession.

Our state constitution protects property owners from
"a taking" of their property without due process and without
paying full compensation. Once it found that Jupiter's rights
in the water were not private property rights, the next step
in the court's logic was to look at what was taken. Not
property -- Jupiter didn't own the water. There was no
invasion of Jupiter's property. It still had the land over-
lying the water, and the water itself was not Jupiter's
property. In other words, there was no physical invasion of
anything by agents of the city that could be called Jupiter's
property. The court recognized that Jupiter had been damaged--
sure, it had to spend more money to get at water beneath its
property. But there had been no "taking" for which Jupiter
could receive compensation. The court stated it was impossible
to place a value upon the water that the city had withdrawn
from underneath Jupiter's land.

If you stop reading the decision at that point, it
might appear that the court condones unlimited withdrawals of
water. But that's not really what the court said. You have
to remember that Jupiter's claim was that it should be
compensated for its loss. If Jupiter had asserted its right
to take water in competition with Tequesta, the results might
have been different. The court clearly recognized the
principle that is now a part of the Florida Water Resources
Act that a property owner has rights to the reasonable use of
water. The court said that property rights relative to waters
which percolate through the land of one owner to and through
the land of another are correlative.

But the balancing of those correlative rights was
left by the court to the administrative system of water
management under the Water Resources Act. The court found
that Tequesta was the actual user and Jupiter was merely a
proposed user. Jupiter had no protection under the act for a
right it had not exercised. The court stated that there was
no need for a right to condemn and pay for an unexercised
right to use water because an owner can use the permit provi-
sions of the law. The court thus left Jupiter with the sole
remedy of applying for a permit under the Florida Water
Resources Act.

- 6 -

J... I l ,i 1. i.

The Tequesta decision leaves the balancing of
competing uses of water up to the Department of Environmental
Regulation, and to the five state water management districts.
Under the Wtater Resources Act, the reasonable-beneficial use
standard remains the controlling criterion for evaluating uses
of water. The problem we as users still face is uncertainty.
My uses of water change over time, as do my neighbor's. And
each time one of us applies for a consumptive use permit to
draw water of a certain amount, my neighbor's needs and mine
must be balanced. On top of that, our needs have to be
balanced with the public's interest in conserving and
protecting our water resources. With the amount of rainfall
so variable, it's less than reassuring not to know how much
water is going to be available from year to year and how much
consumptive use is going to be "reasonable" and "beneficial."

Perhaps it would be easier if we could know that
there's a certain definite amount of water available for use
of each of us. We could plan and provide for shortages on our
own. But water's not the type of resource that allows for.
that. Like it or not, it belongs to all of us, and at the
same time, it belongs to none of us.

In responding to alarm at deterioration of our
environment, government may have gone too far in regulating us
and our property. But as long as we depend on "free flowing
resources" that can't be penned or caged for later use, close
scrutiny may be necessary. There are other problems, as well.


Consider, for example, a new area of science -- and
of law -- known as "weather modification." Technological
advances have enabled us to seed clouds to produce rain and
snowfall. The potential benefits of such technology are
immense, but so are the dangers. Flooding, after cloud
seeding, has led to claims that the weather modification
caused the adverse results. Another problem that has
developed in the area of weather modification is a direct
result of the fact that overuse by people of a limited
resource diminishes the supply of that resource available to
others. You may have read about this concept of "rain theft."
Cloud seeders in the State of Washington induced clouds to
release rain before the clouds could reach the State of Idaho.
The result? Year before last Idaho almost sued Washington for
"rain theft."

- 7 -


Groundwater and water retained in clouds ready to be
released in one place or another suggests to us the difficult
question of how to allocate "mobile resources" that migrate
from one place to another.


I've often compared water to quail. If I own a
tract of land in this part of the state, there just may well
be quite of number of coveys of quail living on that land. I
own the land but do I own those quail? Not really not until
I have either shot or trapped the birds. True, I am the only
one who has the right to come onto my property and trap or
shoot those birds, unless I give someone else permission to do
so or charge him a fee to allow him to come onto my property
and hunt.

Then too, I, as the owner, and my guest, as the
licensee, can't shoot or trap those birds unless we have
hunting licenses. Even with a hunting license we have to hunt
in a particular manner. We can't shoot the quail with the
rifle, or on the ground, and we can't use a shot gun unless it
is plugged to limit the number of shells in the gun. We can't
hunt on certain days, and even when we can hunt, each of us is
limited to a certain number of birds we can kill on any
particular day. We are also limited as to the number of birds
we can possess at any one time.

The ownership of water is quite similar. If I own a
piece of property, I can prevent anyone from coming onto my
property and taking the water that lies under the land. But
both of us are still limited by government regulation in the
amount of water we can take per day and in the manner in which
we can do so. In the meantime, the water really doesn't
belong to me because I don't have possession of it. Before
taking it out of the ground, all I really have is a right to
use it and a right to prevent someone else from coming onto my
property and using it without my permission. If the water
flows underground from my property into the area underlying
someone else's property, all the potential use I could have
made from that water is gone, just as the quail that run or
fly away from my property to my neighbor's property are no
longer mine to hunt or to trap.

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The thing we all want in government regulation is a
system that that will allow us to do whatever we want to do
with our water while at the same time will protect us from our
neighbors so our neighbors won't do anything with the water
under their land that will hurt us.

Sometimes this is tough to do. That's why we need
good people serving on our Water Management Boards. People
just like each of you. Willing to serve for no pay except the
satisfaction, who will make the best decisions they can to
balance the interests among the various property owners and
the public.

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