Restrictive Covenants Can Impede Development Plans and Cost Landowners

RESTRICTIVE COVENANTS CAN IMPEDE DEVELOPMENT PLANS AND COST LANDOWNERS

By Jennifer B. Springfield

In addition to property inspections and verifying applicable land use designations and zoning regulations, anyone who is contemplating the purchase of land for development purposes should conduct a thorough review of the title records prior to purchase and early in the due diligence process to look for the existence of restrictive covenants (sometimes referred to as negative easements) and other easements, such as conservation easements. If such are found, consultation with an attorney concerning the impact of these on the potential purchaser’s development plans for the property should be sought. Often, owners of large tracts of land (grantors) will record a set of covenants on the entire or a significant portion of their lands prior to subdivision and sale. Such deed restrictions are usually intended to benefit all future owners of the smaller parcels bought and sold (grantees). The protections afforded by such easements becomes a property right which is enforceable by any neighboring purchaser for whose benefit it was intended.
While it may seem odd that one property owner can enforce restrictions on another person’s real property, the Second District Court of Appeal in Hagan v. Sabal Palms, Inc., 186 So. 2d (Fla. 2nd DCA 1966) explains the reasoning behind this by quoting from a 1933 Florida Supreme Court opinion in Osius v. Barton, 147 So. 862, 865:
The general theory behind the right to enforce restrictive covenants is that the covenants must have been made with or for the benefit of the one seeking to enforce them. The violation of a restrictive covenant creating a negative easement may be restrained at the suit of one for whose benefit the restriction was established, irrespective of whether there is privity of estate or of contract between the parties, or whether an action at law is maintainable. The action of a court of equity in such cases is not limited by rules of legal liability and does not depend upon legal privity of estate, or require that the parties invoking the aid of the court should come in under the covenant, if they are otherwise interested. The rule is well established that where a covenant in a deed provides against certain uses of the property conveyed which may be noxious or offensive to the neighborhood, inhabitants, those suffering from a breach of such covenant, though not parties to the deed, may be afforded relief in equity upon a showing that the covenant was for their benefit as owners of neighboring properties. At 865.

The courts have also held that while a grantor can reserve the right to amend deed restrictions, amendments must be reasonable. Reasonable amendments are defined as amendments which do not destroy the general scheme or plan of development. A general scheme exists where a tract of land is divided into lots to be sold subject to uniform restrictions imposed thereon. An unreasonable change is one that creates an inconsistent scheme, alters the relationship of lot owners to one another, modifies the relative benefits as between the grantor and grantees, or changes the right of lot owners to individual control over their own property.
Therefore, while it may be possible to alter restrictive covenants to facilitate a plan of development, it can be a time consuming and costly process to achieve. All of the property owners benefitting from the restrictions should be asked to approve any amendments to such covenants, and/or the purchaser/developer should be asked to hold harmless, defend and indemnify the lot owners who support an amendment which benefits a developer. No matter which approach is taken, all benefitted lot owners should be afforded due process – notice and the opportunity to be heard.

Quasi Judicial & Quasi-legislative Land Use Decisions

Quasi-Legislative & Quasi-Judicial Local Land Use Decisions
By Jennifer B. Springfield and Alexander Boswell-Ebersole

​The duties of local governing bodies, county and municipal commissions and plan boards, often include making land use decisions. These decisions frequently involve public hearings. When a land use application makes its way to a county or municipal governing body, also referred to as a “local government”, the body generally conducts one of two basic types of hearings. Depending on the nature of what the local government is being asked to decide, hearings either proceed as “quasi-legislative” or “quasi-judicial,” and local governing bodies either make “quasi-legislative” or “quasi-judicial” decisions. The word “quasi” as used in this context means “resembling” or “like,” and therefore quasi-judicial hearings/decisions are “like judicial proceedings,” while quasi-legislative hearings/decisions are “like legislative proceedings.”
​Other significant differences also exist between quasi-judicial and quasi-legislative hearings and decisions. The level of due process required, the burden of proof and standard of review, and the degree of immunity enjoyed by the local government and its representatives are some of the aspects that will differ depending on whether a hearing proceeds as quasi-legislative or quasi-judicial. Whether its large-scale development like Plum Creek’s plans for eastern Alachua County, Butler Plaza’s expansive expansion, the mixed-use, transit-oriented Springhill community west of Gainesville, or something more modest, like the construction of a new brewery downtown or an alteration to a private residence, plenty of opportunities exist to encounter the differences between quasi-legislative and quasi-judicial hearings and decisions.
​Quasi-legislative hearings/decisions are essentially those hearings/decisions where a local governing body formulates policy for future application to a broad area of public business. Whereas quasi-judicial hearings/decisions are those where the governing body applies previously established policy or regulations to a specific proposed activity. Examples of quasi-legislative land use decisions are the adoption and amendment of comprehensive plans and land development regulations. Plum Creek’s proposed development provides a local example of a land use action implicating a quasi-legislative decision because it seeks County Commission approval of a sector plan, which requires the comprehensive plan to be amended. On the other hand, decisions concerning zoning variances, special use permits, and code violations are all examples of quasi-judicial decisions.
​Quasi-legislative hearings proceed with less formality. While quasi-judicial hearings need not adhere to strict rules of evidence and procedure, certain standards of fairness must be met to assure that due process is provided. These standards include the right to present evidence, cross-examine witnesses, and demand that witnesses be sworn. Parties to quasi-legislative hearings do not typically enjoy such rights, at least not as a matter of due process requirements.
One of the most discussed distinctions between quasi-judicial and quasi-legislative proceedings involves ex parte communications or discussions with a member of the governing body, e.g., a commissioner, outside the presence of other parties. Nothing restricts ex parte communications when it comes to quasi-legislative hearings. Parties with an interest in such matters are generally free to speak to or otherwise contact the local representatives who will be making the quasi-legislative decisions. Conversely, significant restrictions apply to ex parte communications during quasi-judicial proceedings. Any ex parte communication made outside of a quasi-judicial hearing raises a presumption that the ex parte communication prejudices the final decision, unless the communication is disclosed at the hearing. If ex parte communication occurs and is not disclosed, the presumption of prejudice may only be rebutted if the local government can establish, pursuant to an analysis of several criteria articulated by case law, that the communication lacks any prejudicial effect. Since applicants seeking land use approvals, local government representatives, the general public, and other parties are usually accustomed to communicating freely, this restriction on ex parte communication often causes substantial confusion, misunderstanding and friction.
​In addition, different levels of immunity for local government representatives and different burdens of proof and standards of review also apply in quasi-legislative versus quasi-judicial hearings/decisions. When making a quasi-legislative decision, local government representatives personally enjoy absolute immunity from suit due to the fact that they are making policy decisions, but in making quasi-judicial decisions, i.e. applying established policy, local representatives merely enjoy qualified personal immunity. The degree of immunity afforded to representatives arose where a local commission denied a landowner’s application for a land use approval, leading the landowner to file suit against the commissioners individually under federal civil rights law claiming that the denial constituted a deprivation of private property without due process of law. The court found that the representatives did not have absolute immunity because the decision amounted to an application of a zoning ordinance and therefore, the qualified immunity that the representatives did enjoy required that they plead and establish an affirmative defense in order to avoid personal liability under a proper civil rights claim.
Finally, local governing bodies as a whole enjoy considerable discretion when making quasi-legislative decisions. As such, quasi-legislative decisions must merely satisfy the “fairly debatable” standard, i.e. the decision must not be arbitrary, discriminatory, or unreasonable. In contrast, quasi-judicial decisions are subject to review by certiorari in circuit court and the decision is reviewed under the “competent substantial evidence” standard. Due to this heightened standard, the governing body and the parties presenting evidence face greater responsibility to ensure that the record of the hearing comprehensively and accurately reflects the matters presented.

Striving for More Consistent Water-Related Permitting: “CUPcon” and Statewide ERP

The Florida Department of Environmental Protection (DEP) has been heading two efforts to increase the efficiency and statewide consistency of water-related permitting in Florida. These efforts focus on the Consumptive or Water Use Permitting (CUP/WUP) program and the Environmental Resource Permitting (ERP) program. An effort called the Consumptive Use Permitting Consistency Initiative—commonly referred to as “CUPcon”—addresses the CUP/WUP program, whereas a 2012 state law initiated the efforts to make the ERP program more consistent.
Along with the five water management districts (WMDs), which are responsible for implementing the CUP/WUP program, DEP has been working on CUPcon since 2011. The CUP/WUP program, one of the regulatory programs created by Florida’s Water Resources Act, is designed to provide for comprehensive water resource management, and it directs WMDs to regulate the use of ground and surface water by requiring permits for the withdrawal and consumptive use of larger quantities of water—quantities exceeding specified threshold amounts. However, over the years (the Act was passed in 1972), the individual WMDs have developed various and different rules regulating the CUP/WUP program, despite the fact that the WMDs all operate under the same statutory authority for the program. These complaints come, most notably, from permit applicants, especially those applicants seeking permits for the border areas of the WMDs or permits for more than one WMD jurisdiction.
To address the inconsistencies, Governor Rick Scott directed DEP (soon after he became governor) to carry out its legal obligation to supervise the WMDs so as to achieve greater statewide consistency among the WMDs’ regulatory activities; hence, the emergence of CUPcon. To date, DEP and the WMDs have worked toward a more streamlined scheme and greater consistency by holding a variety of stakeholder meetings, organizing work groups to develop solutions for the issues raised by stakeholders, and promulgating several amendments to the rules implementing the CUP/WUP program. As the CUP/WUP program has been developing for decades, it will continue to require reassessment and updating; however, for CUPcon purposes, these recent amendments essentially complete the initiative. So, stay tuned.
Unlike CUPcon, which was established at the behest of the Governor, the effort to establish a more consistent ERP program was mandated by legislation passed by the legislature in 2012. However, like CUPcon, the legislature sought to address the same kind of concern—i.e. inconsistency. With the help of the WMDs, DEP has already complied with the legislative mandate to adopt a statewide ERP rule by amending Chapter 62-330 of the Florida Administrative Code. The legislative mandate required, among other things, that the statewide DEP rule, which is also considered a rule of the WMDs, consist of various standardized ERP provisions to govern all ERP permits in the state, such as standardized forms and fees for permit applications and conditions for issuance of permits. Currently, the statewide rule authorizes three types of permits—general permits, conceptual permits, and individual permits, and DEP continues to make specific amendments and updates to Chapter 62-330 through the required rulemaking procedures.

Links….
Statutory Authority for CUP/WUP program
Statutory Authority for ERP program
DEP’s statewide ERP rule (62-330)

Plum creek and the Alachua county comp plan

Plum Creek Timber Company (“Plum Creek”), the largest private landowner in Alachua County and the entire nation, proposes to develop a substantial portion of the 65,000 acres of land it owns in Alachua County east of Newnans Lake. To achieve its proposed plan, Plum Creek seeks the Alachua County Board of County Commissioners’ (“County Commission”) approval of amendments the county’s “comprehensive plan” (also known as the “comp plan”). The Plum Creek plan has generated significant debate and controversy in the local community. Through a “community planning process paid for by Plum Creek called Envision Alachua, Plum Creek points to benefits such as economic development combined with land conservation and environmental sustainability. Others in the community, such as the Stand by Our Plan group, don’t quite see it the same way. Despite the overarching controversy, two basic questions are often asked: 1) where does the County Commission get its authority to dictate how Plum Creek uses its land, and 2) what is a comp plan?

Like all other local governments in the United States, the County Commission has significant authority to regulate land use within its jurisdiction. Based on interpretations of the 10th Amendment of the United States Constitution, this authority is deemed a “police power” reserved to the individual states, as opposed to the federal government. The individual states, in turn, delegate this power to local governments either by enabling statues or through the state constitution. “Police powers” are broad inherent powers, allowing local governments to regulate to protect what is often described as the “health, safety, and general welfare” of its citizens. However, while broad, various restrictions also apply to this power. For example, the government may not take private property without providing proper compensation to the property owner.

Originating from these “police powers,” comprehensive plans establish a coherent vision for the extent, distribution, and timing of future development and growth, and thus serve as a guide to future land use decisions. In Florida, state law requires all local governments to adopt comp plans for their jurisdictions. Alachua County’s current comp plan became effective in 2011 and can be viewed here. In addition to adopting comp plans, local governments are also responsible for amending comp plans and implementing the plans through appropriate land development regulations, keeping in mind these regulations must be consistent with the comp plan. Click here to view the statutory provision in Florida law laying out the mandatory and optional elements of a local government comp plan.

Since Plum Creek’s plans contemplate an area of more than 15,000 acres, it seeks amendment to the comp plan through a “sector plan.” A sector plan is essentially an optional land use planning tool that local governments can use to facilitate long term planning for larger geographical areas. Sector plans consist of two planning phases—a conceptual long-term master plan and more specific detailed specific area plans. Plum Creek has submitted a long-term master plan to the Alachua County Growth Management Department, and these types of plans must be adopted through amendment to the comp plan. Click here to navigate to an Alachua County Growth Management Department’s webpage about Plum Creek’s plan. The second phase—detailed specific area plans—comes later, and these specific plans require no comp plan amendment. Click here for the statutory provision in Florida law providing for sector plans. Although the County Commission makes the decision to adopt a sector plan, a variety of other entities have been, may be, or will be involved in the process, such as the regional planning council (the North Central Florida Regional Planning Council in this case), the Alachua County Planning Commission, and the Florida Department of Economic Opportunity.

fracking in florida

Fracking in Florida?

The rapidly growing practice of hydraulic fracturing, also known as “fracking,” has incited significant debate. Some argue that this technology, which involves extracting hard-to-get natural gas and oil deposits by injecting water, sand, and chemicals into wells in order to fracture rock and recover these energy sources, provides substantial revenue and jobs, and helps make the country more energy independent. Others claim it causes a variety of environmental and human health problems ranging from air pollution and groundwater contamination to the overuse of water. Until now, hydraulic fracturing has not been widespread in Florida. Much of the hydraulic fracturing debate has been concentrated in states like Pennsylvania, New York, Colorado, and Texas. However, as oil and gas companies begin to show greater interest in the potential of this technology, it appears fracking in Florida is becoming more and more of a reality.
The Florida Department of Environmental Protection (FDEP) recently approved a permit application for an exploratory well in Collier County. The permit issued to the Dan A. Hughes Company, a Texas oil and gas company, authorizes the drilling of a well in the Big Cypress Swamp watershed, less than a mile from the Florida Panther National Wildlife Refuge and underneath the main public supply wellfield for the City of Naples. Although the Hughes Co. claims that it has no plans to utilize fracking technology, some say nothing prohibits the company from changing its mind and fear that permitting wells in this location may set a precedent for exploration and drilling that will lead to fracking on and beneath sensitive environmental habitats throughout Florida.
Accordingly, two persons — a small South Florida wildlife organization and an adjoining landowner — have filed administrative challenges to FDEP’s proposed permit. Among other bases for the challenges, the petitioners claim that the Texas oil and gas company’s proposal fails to comply with industry standards and would violates Florida law, which prohibits oil and gas drilling activities within a mile of lands with such a designation. The Florida panther is one of the most endangered species in the United States as there are only about 160 Florida panthers remaining. In addition, the Big Cypress Swamp Advisory Committee, established within FDEP to make nonbinding recommendations, recently voted to recommend denial of the permit. Although challenges to the permit currently prohibit the Hughes Co. from constructing the well, an Administrative Law Judge (ALJ) has the final say and is expected to make a decision this spring. Regardless of the ALJ’s decision, FDEP’s intent to approve the permit, combined with other actions by oil and gas companies, signifies an increasing interest in such drilling in Florida and means that the debate over fracking in Florida is likely just beginning.

ANOTHER UPDATE ON FLORIDA POWER & LIGHT CO.’S NATURAL GAS PIPELINE

ANOTHER UPDATE ON FLORIDA POWER & LIGHT CO.’S NATURAL GAS PIPELINE

Sabal Trail Transmission, LLC, the company contracted by Florida Power & Light Co. to build the biggest part of a major interstate natural gas pipeline extending through most of the peninsula of Florida, continues to work towards completing the planning phase for the pipeline. Sabal Trail has been reviewing study corridors and engaging with stakeholders as part of its efforts to establish a preferred route for the pipeline, and the company plans to submit a formal application to the Federal Energy Regulatory Commission (FERC) by the end of this year. Approval by FERC is the last major regulatory step required for the pipeline, which is expected to be up and running by May of 2017. Although FERC’s approval may be subject to route changes, many North Central Florida landowners and residents continue to voice concern over the current route and the effect it may have on their land and their communities. FERC has held several public meetings to receive public input related to the pipeline and its route.
As an example of an instance of landowner concern, click here for a Gainesville Sun video of landowners voicing their concern at the particular site where Sabal Trail plans for the pipeline to cross under the Santa Fe River. You can also view Sabal Trail’s maps of areas in Florida affected by the pipeline here. Finally, click this link for a news story pointing out a somewhat unique, but significant, reason for opposing the pipeline’s route.

Jennifer Springfield, Esq. testifying on behalf of the Alachua County Commission at a public hearing regarding the Minimum Flows and Levels Rule for the Lower Santa Fe and Ichetucknee Rivers

Florida Dept. Environmental Regulation hearing on MFL's

Basic Florida water law III

BASIC WATER LAW

Part III: Florida’s Water Law Innovations

​Like the other eastern states, Florida traditionally followed the Riparian Doctrine. Early attempts to address water management in Florida were mainly focused on surface water drainage, since Florida was wet and water was often seen as a nuisance. However, a variety of problems began to emerge due to both the success of the surface water drainage projects and other factors like drought. After several of years of activity at the state level to try to address developing water-related problems, the Legislature enacted the Florida Water Resource Act in 1972. It was largely based on a model water code (published in 1972 as A Model Water Code) developed by scholars at the University of Florida College of Law. The Act substantially replaced Florida’s common law system of water regulation and the basic structure and policy of the Act remain intact today.
The Water Resource Act created a progressive water law system in a variety of ways. One of the most significant innovations is the Act’s creation of five water management districts with jurisdictions that correspond to the boundaries of the state’s five main watershed basins, rather than to traditional political. This has allowed the water management districts to largely dodge problems that arise in regulating a resource that crosses traditional political boundaries and address water issues that affect the basins in their entirety. The innovations of the Act don’t stop there, though.
Departing from the traditionally distinct treatment of surface water and ground water, the Act comprehensively regulates both surface and ground water by defining water broadly to include both types (and even includes water in the atmosphere). The Act also incorporates environmental protection, water resource planning, and the integration of water quality and quantity into the water management districts’ responsibilities.
For example, the Act’s consumptive use permitting (CUP) program requirements, which are implemented by the water management districts, illustrate the incorporation of these facets of water management, as well as some of the progressiveness of the Act. When a water use comes within a certain threshold amount or type of water use, a CUP must be first be obtained. In order to obtain a permit, the applicant must demonstrate compliance with three basic criteria. The proposed use must (1) be a reasonable-beneficial use of water, (2) not interfere with any existing legal use of water, and (3) be consistent with the public interest. The first criterion combines the Riparian Doctrine’s “reasonable use” requirement with the Prior Appropriation Doctrine’s “beneficial use” requirement. The second criterion pays homage to the “first in time, first in right” principle of the Prior Appropriation Doctrine.
The Florida Department of Environmental Protection’s Office of Water Policy and all five water of the state’s water management districts are currently in the process of revising their CUP rules to achieve as much uniformity as possible across district boundaries in how water uses are regulated in Florida. For more information regarding this effort, visit http://www.dep.state.fl.us/water/waterpolicy/cupcon.htm

Jennifer Burdick Springfield and Alexander Boswell-Ebersole

Florida water Law

FLORIDA WATER LAW

By Attorneys Jennifer Burdick Springfield and Alexander Boswell-Ebersole
Springfield Law, P.A.
October 2013

Eastern versus Western Water Law
Two traditional water law systems, which originally only addressed surface water, correspond geographically with the western and eastern United States, roughly divided along the 100th meridian (which runs north-south through states like Texas, Nebraska, and the Dakotas). In the wetter east, the Riparian doctrine derived from English common law and in the west, the Prior Appropriation doctrine developed from the practices of miners and other settlers.
Under the Riparian Doctrine, also known as riparianism, one’s water rights are dependent on land ownership. All owners of land abutting a defined watercourse—riparian land—have an equal right to use the water. Originally, this common law right was qualified by the “natural flow rule,” whereby riparian landowners had a right to an unimpaired and uninterrupted flow of water adjacent their land. Thus, this rule required “upstream” landowners to use water such that the use did not impair or interrupt the natural flow of the watercourse “downstream.” However, in recognition of the limitations this rule placed on growing industrial and other uses, a new rule of “reasonable use” replaced the natural flow rule.
“Reasonable use,” a term not quantified except through adjudication in a particular case, is a relative term, and what is “reasonable” varies widely from state to state. Nevertheless, riparianism requires landowners who share a watercourse to use water in a way that correlates to other landowners’ needs, including sharing the benefits in times of water abundance and the burdens during scarcity. Another way to view riparianism is essentially as a tort scheme that protects landowners from harm caused by other landowners. As a ususfructory right and not a property right, the right to use water under the Riparian doctrine requires that a landowner avoid unreasonable water detention or diversion.
Moreover, when established, a water right of a riparian landowner exists for an indefinite time period and non-use does not cause a landowner to lose their riparian water right. However, despite this general rule, courts have devised theories to enable them to find that a landowner has involuntarily relinquished a riparian water right; for example, “prescription,” which is where another makes open use of the water for an “appropriate” period of time (similarly to the real property doctrine of adverse possession). At the same time, the doctrine of riparianism has historically prohibited the voluntary transfer of a riparian water right for use by a non-riparian landowner, but this, too, has evolved to allow non-riparian uses that are “reasonable.” The Riparian doctrine boils down to two main premises – riparian landownership and “reasonable use.” The existence of a “reasonable use” depends on the reasonableness of the type, amount, and place of a particular use, which is often dependent on the economic, political, and/or geographic characteristics of the state, and can also change over time.
​Considerably different from riparianism, the Prior Appropriation Doctrine developed out of traditional practices of settlers (especially miners) in the arid and vast West, where it was often necessary to transport water great distances. The Prior Appropriation doctrine requires no riparian landownership, but rather is based on the concept of “first in time, first in right.” Just as it sounds, this concept gives priority to whoever is first, and thereby gives persons who have established their priority, first crack at an allotment of water during times of water shortage, i.e. before later appropriators.
More specifically, the elements of the Prior Appropriation doctrine establish priority for the first person who (1) intends to appropriate an un-appropriated natural watercourse, i.e. a body of water not yet claimed, (2) actually diverts water from the source by physically removing it, and (3) puts the water to beneficial use without waste. The rationale for the diversion requirement is that where labor and capital is invested to accomplish such use, the diverter deserves to have a superior right to that water. It also assured that the amount of a person’s water right could be measured. In more modern times, this requirement is declining in importance and popularity because it does not allow for a broad enough range of uses and many western states now recognize a water right to “in-stream flow” for certain activities, such as recreation. Beneficial use is the counterpart to riparianism’s “reasonable use” limitation and was previously available only for traditional industry uses, such as agriculture and mining, but now often includes other uses such as wildlife protection and recreation.

Eastern versus Western Water Law

Two traditional water law systems, which originally only addressed surface water, correspond geographically with the western and eastern United States, roughly divided along the 100th meridian (which runs north-south through states like Texas, Nebraska, and the Dakotas). In the wetter east, the Riparian doctrine derived from English common law and in the west, the Prior Appropriation doctrine developed from the practices of miners and other settlers.
Under the Riparian Doctrine, also known as riparianism, one’s water rights are dependent on land ownership. All owners of land abutting a defined watercourse—riparian land—have an equal right to use the water. Originally, this common law right was qualified by the “natural flow rule,” whereby riparian landowners had a right to an unimpaired and uninterrupted flow of water adjacent their land. Thus, this rule required “upstream” landowners to use water such that the use did not impair or interrupt the natural flow of the watercourse “downstream.” However, in recognition of the limitations this rule placed on growing industrial and other uses, a new rule of “reasonable use” replaced the natural flow rule.
“Reasonable use,” a term not quantified except through adjudication in a particular case, is a relative term, and what is “reasonable” varies widely from state to state. Nevertheless, riparianism requires landowners who share a watercourse to use water in a way that correlates to other landowners’ needs, including sharing the benefits in times of water abundance and the burdens during scarcity. Another way to view riparianism is essentially as a tort scheme that protects landowners from harm caused by other landowners. As a ususfructory right and not a property right, the right to use water under the Riparian doctrine requires that a landowner avoid unreasonable water detention or diversion.
Moreover, when established, a water right of a riparian landowner exists for an indefinite time period and non-use does not cause a landowner to lose their riparian water right. However, despite this general rule, courts have devised theories to enable them to find that a landowner has involuntarily relinquished a riparian water right; for example, “prescription,” which is where another makes open use of the water for an “appropriate” period of time (similarly to the real property doctrine of adverse possession). At the same time, the doctrine of riparianism has historically prohibited the voluntary transfer of a riparian water right for use by a non-riparian landowner, but this, too, has evolved to allow non-riparian uses that are “reasonable.” The Riparian doctrine boils down to two main premises – riparian landownership and “reasonable use.” The existence of a “reasonable use” depends on the reasonableness of the type, amount, and place of a particular use, which is often dependent on the economic, political, and/or geographic characteristics of the state, and can also change over time.
​Considerably different from riparianism, the Prior Appropriation Doctrine developed out of traditional practices of settlers (especially miners) in the arid and vast West, where it was often necessary to transport water great distances. The Prior Appropriation doctrine requires no riparian landownership, but rather is based on the concept of “first in time, first in right.” Just as it sounds, this concept gives priority to whoever is first, and thereby gives persons who have established their priority, first crack at an allotment of water during times of water shortage, i.e. before later appropriators.
More specifically, the elements of the Prior Appropriation doctrine establish priority for the first person who (1) intends to appropriate an un-appropriated natural watercourse, i.e. a body of water not yet claimed, (2) actually diverts water from the source by physically removing it, and (3) puts the water to beneficial use without waste. The rationale for the diversion requirement is that where labor and capital is invested to accomplish such use, the diverter deserves to have a superior right to that water. It also assured that the amount of a person’s water right could be measured. In more modern times, this requirement is declining in importance and popularity because it does not allow for a broad enough range of uses and many western states now recognize a water right to “in-stream flow” for certain activities, such as recreation. Beneficial use is the counterpart to riparianism’s “reasonable use” limitation and was previously available only for traditional industry uses, such as agriculture and mining, but now often includes other uses such as wildlife protection and recreation.

Florida’s Water Law Innovations

​Like the other eastern states, Florida traditionally followed the Riparian Doctrine. Early attempts to address water management in Florida were mainly focused on surface water drainage, since Florida was wet and water was often seen as a nuisance. However, a variety of problems began to emerge due to both the success of the surface water drainage projects and other factors like drought. After several of years of activity at the state level to try to address developing water-related problems, the Legislature enacted the Florida Water Resource Act in 1972. It was largely based on a model water code (published in 1972 as A Model Water Code) developed by scholars at the University of Florida College of Law. The Act substantially replaced Florida’s common law system of water regulation and the basic structure and policy of the Act remain intact today.
The Water Resource Act created a progressive water law system in a variety of ways. One of the most significant innovations is the Act’s creation of five water management districts with jurisdictions that correspond to the boundaries of the state’s five main watershed basins, rather than to traditional political. This has allowed the water management districts to largely dodge problems that arise in regulating a resource that crosses traditional political boundaries and address water issues that affect the basins in their entirety. The innovations of the Act don’t stop there, though.
Departing from the traditionally distinct treatment of surface water and ground water, the Act comprehensively regulates both surface and ground water by defining water broadly to include both types (and even includes water in the atmosphere). The Act also incorporates environmental protection, water resource planning, and the integration of water quality and quantity into the water management districts’ responsibilities.
For example, the Act’s consumptive use permitting (CUP) program requirements, which are implemented by the water management districts, illustrate the incorporation of these facets of water management, as well as some of the progressiveness of the Act. When a water use comes within a certain threshold amount or type of water use, a CUP must be first be obtained. In order to obtain a permit, the applicant must demonstrate compliance with three basic criteria. The proposed use must (1) be a reasonable-beneficial use of water, (2) not interfere with any existing legal use of water, and (3) be consistent with the public interest. The first criterion combines the Riparian Doctrine’s “reasonable use” requirement with the Prior Appropriation Doctrine’s “beneficial use” requirement. The second criterion pays homage to the “first in time, first in right” principle of the Prior Appropriation Doctrine.
The Florida Department of Environmental Protection’s Office of Water Policy and all five water of the state’s water management districts are currently in the process of revising their CUP rules to achieve as much uniformity as possible across district boundaries in how water uses are regulated in Florida. For more information regarding this effort, visit http://www.dep.state.fl.us/water/waterpolicy/cupcon.htm

Florida Springs, Plum Creek, and Minimum Flows

The St. John’s River Water Management District is gearing up to reconsider “acceptable” minimum flow levels of important waterbodies in North central Florida. This process begins in early 2014. Check out their website for dates, times and location. This “minimum flow” concept and it’s RE-establishment is crucial to the evaluation of the Plum Creek plan. I say “RE-establishment” because the District has minimum flow levels set right now. It is my understanding these levels simply cannot be enforced so they plan to just lower the level.

The Gainesville Sun recently has published and continues to write about the springs in North Central Florida. This is a very worthy environmental and indeed economic issue to the region. But, the minimum flow issue is yet to be decided. Focusing on it now instead of after the decisions are made can lead to a more thorough examination of the water levels affecting us all. Write the Sun; ask what they know; are they planning to cover it? Encourage their publisher to get out in front of the issue instead of writing the post-mortum.