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Demystifying the intersection of surface water permitting and common law drainage rights: the Twain actually do meet.

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In subtropical Florida, the recent hurricanes (1) were rude reminders of the need for well-maintained drainage systems (2) to remove excess surface storm water from land. (3) Because of potential property damage from surface waters, prior to issuance of the "environmental resource permit," formerly known as the "management and storage of surface waters permit" (ERP), F.S. Ch. 373 water management districts (4) usually require surface water management systems to have positive outfall to remove excess stormwater collected by drainage systems. (5) Also, to assure the continued availability of downstream drainage capacity, the districts and local governments (hereinafter, collectively known as the governing body(ies)) have recently begun to enforce more strictly and aggressively the requirement that ERP applicants furnish reasonable assurance (6) of their legal right to drain their properties into and through offsite downstream drainage systems and for the downstream systems to be maintained by entities with adequate funding. (7)

In addition, some local governments have conditioned approvals on applicants obtaining easements for legal positive outfall to drain into and through lengthy canals or ditches spanning the lands of other owners until reaching a publicly owned or controlled water body. (8) Further, local standards may be imposed for these intermediate downstream conveyance systems, which include specifications for side slope angles, maintenance of sod for erosion control, and a requirement for berms adjacent to these systems to allow for transportation and placement of equipment for maintenance. (9) While these requirements may be reasonable if the applicants have actual control of the downstream conveyance systems, or possess eminent domain powers to obtain the necessary rights-of-way for the drains, roads, and maintenance berms, fragmented ownership of downstream properties makes obtaining written agreements impracticable or economically infeasible--in other words, unreasonable. It follows that upstream private landowners are frequently unable to even contemplate attempting to persuade a multiplicity of downstream landowners to voluntarily grant express easements for drainage, even if this only requires formalizing drainage patterns that have existed for decades. (10)

Because the necessity for routine and effective maintenance of drains is beyond question, ensuring good maintenance is obviously in the public interest. (11) However, the district's emphasis on maintaining downstream drainage capacity raises important issues that the districts are without the power to resolve and which may result in significant challenges for those conducting pre-acquisition due diligence, such as a developer.

Resolving drainage rights and maintenance issues frequently requires the application of common law property rights. Sometimes the establishment of these rights may only be through circuit court litigation, primarily because the districts are without jurisdiction to resolve real property disputes through their permitting processes. (12) Again, these issues must be carefully evaluated by a prospective developer during pre-acquisition due diligence because ineffective or inadequate drainage, or lack of legal positive outfall, can be fatal to some projects. (13)

The clear legislative intent in Florida is for local governments to take the lead in resolving drainage problems. One indication of this legislative intent is that as part of their comprehensive plans required by F.S. Ch. 163, (14) local governments are required to set levels of service for drainage facilities within their jurisdiction. Therefore, as an alternative to litigation (15) to establish maintenance rights and responsibilities, local governments are in the best position to establish special drainage benefit or taxing districts to oversee the proper construction and maintenance of drainage facilities and to ensure that the owners of the benefited properties equitably share the cost of the drainage works without having to burden ad valorem taxpayers.

However, as will be explained, drainage rights clarified by the Florida Supreme Court have not been acknowledged by governing bodies or incorporated into their permitting processes even though this case law is more than 20 years old. Express, implied, or prescriptive easements are not the only means by which a property may achieve legal positive outfall. Legal positive outfall is a right arising out of land ownership that was considerably strengthened by this Florida case law. According to these cases, downstream properties must accommodate reasonable flows from upstream properties in perpetuity. This right is in contrast to an easement or establishment of a mutual drain, which enables upstream landowners to physically perform maintenance on drains located on downstream properties. These developments in Florida law should be recognized by the regulatory agencies and be integrated into their permitting procedures, or at least permitting procedures should not conflict with or impair landowners' common law drainage rights.

The Common Law of Surface Water Drainage Rights and Early Statutory Law

Withdrawing surface or ground water to make land productive for agriculture has always been essential to the economic development of Florida. (16) While always subject to cycles of drought and rainfall surplus, excess water in Florida has often been considered the "common enemy," (17) and, therefore, it is understandable that drainage has sometimes been characterized as more important than transportation. (18) Although Florida has recently seen extreme drought conditions, the state's rapid urbanization has made it more vulnerable to periods of frequent tropical storms and associated flooding; therefore, the availability of adequate drainage is now more important than ever before.

Historically, drainage of many agricultural properties in Florida was accomplished by water control districts (formerly known as drainage districts), established and operated pursuant to F.S. Ch. 298. Some of these districts are still in existence, although many have been dissolved. (19) In every instance when the Florida Legislature enacted special acts to dissolve F.S. Ch. 298 districts, their drainage works were transferred to local governments with the expressed legislative intent that the drainage services previously provided by the districts shall continue in perpetuity. (20) No special acts dissolving F.S. Ch. 298 districts could be found which also terminated existing drainage patterns or rights. Also, by general law, the Florida Legislature has required local governments to provide services formerly provided by the dissolved districts. (21)

While many drainage systems were developed by F.S. Ch. 298 districts, which have both the authority and funding to acquire rights-of-way for drains and to maintain them, (22) many other drainage systems were constructed out of necessity on a less formal or ad hoc basis simply because they were mutually beneficial. (23) The common law doctrine of "mutual drain" requires that when landowners, pursuant to a mutual understanding that can be oral, join together to construct a drain, each is thereafter estopped from closing the drain so as to deprive the other(s) of the drainage provided. (24) Furthermore, the upstream owner draining into a mutual drain cannot be denied permission to clean out or to maintain the drain running across the downstream owner's land. The right to continued access to maintain downstream works is enforceable by injunction. (25) Also, many drains were constructed by state or local governments to alleviate flooding problems, to control mosquitoes, or to drain public works. Typically, once these systems were in place, there was apparently no urgent need to formalize the drainage rights because the benefits of the systems were obvious and, as a practical matter, maintenance was conducted as needed. (26) Curiously, however, the right of an owner to construct a drain over the land of others requires either an agreement, an easement, or arises out of a statute because no such right existed at common law. (27) Because early drainage systems were primarily for roads and to serve large agricultural tracts, many drains and canals in Florida were originally constructed and maintained with the permission of and full cooperation from the landowners; accordingly, there was not the perceived need for or the benefit of formal recorded instruments establishing drainage rights as property interests. (28)

In Florida, the law has always been that a landowner is obligated to accept surface water from higher elevation lands that it received historically before the upstream land was first developed. In turn, that landowner has the right to discharge all of the naturally occurring surface water originating from his or her land and the water that was discharged onto his land from upper lands onto lower or downstream properties. (29) Although sometimes referred to as an "easement" or "servitude," (30) this right is an element of so-called "natural rights," which an owner of land has with respect to the use of other land and is an incident to ownership of the land itself. It is a property right which inures to the benefit of the estate independent of any contractual or prescriptive right. (31) This property right should be considered in the context of an easement, but one that is not established by grant, implication, or prescription. (32) This doctrine was eloquently explained in Thompson on Real Property:

An owner of lower land is obligated to receive upon it the surface water which falls on adjoining higher land and which naturally flows onto the lower land. Of course the lower owner can collect the water in a ditch when it reaches his land and carry it off in a proper outlet so it will not damage ... (his property), but he cannot intercept the water and throw it back on the land of the higher owner. The higher owner cannot ... change its natural manner of flow by collecting it in a ditch and discharging it upon the servient land at a different place or in a different manner from its original discharge. (33)

As you might expect, drainage intensity and patterns frequently change after property is developed. Under natural conditions, unless surface water flowed into a stream or other natural water body, discharge was probably in the form of sheet-flow onto the lower land. However, agricultural, urban, or suburban development inevitably alters natural drainage patterns and conditions, especially with regard to the manner in which stormwater is discharged from a property. Following development, typically the discharge is from an engineered drainage system that discharges from a single drainage structure or structures. Because of alterations made to Florida land, there are few, if any, naturally occurring discharges.

In 1989, the Florida Supreme Court adopted in Westland Skating Ctr., Inc. v. Gus Machado Buick, Inc., 542 So. 2d 959, 962 (Fla. 1989), the "reasonable use" rule as the law of Florida in cases involving interference with surface waters when any party improves his or her land, thereby causing surface waters to potentially damage a neighbor's property. Under the reasonable use rule, utilizing tort principles, a court must determine whether the damage caused by the upstream discharger to the downstream property will be permitted; and it is also up to the court to decide whether the protective improvements made by the lower landowner to offset the upper landowner's discharge are reasonable, given the damage they caused to the upstream property. The conduct of each will be at issue and may be compared in order to arrive at a fair determination. As you might expect, the results are not always predictable, and application of this rule results in considerable uncertainty, not to mention expense and delay. By implication, the natural rights drainage servitude still exists following development of a property, subject to application of the reasonable use rule. Therefore, the general rule today is that subject to judicial approval, the upper owner may improve and enhance the natural drainage of his or her land by constructing artificial drainage works as long as the owner acts reasonably and does not divert the flow, and the lower owner must accommodate such flow as the upper owner is allowed to cast upon the lower property. (34) However, given modern development constraints, it seems incomprehensible to expect or require a landowner to litigate drainage rights before constructing a surface water management system. It follows that one may reasonably question the continued utility of the reasonable use rule now that surface water management systems are approved by local governments via local approvals and the districts by issuance of ERPs.

As stated above, in the absence of an agreement or easement, under the common law, an upstream landowner was not authorized to construct or maintain a drain on the downstream land of another. Generally speaking, to physically occupy downstream land, the upper owner must have a property interest in the lower land or the drain must be part of a mutual drain. Although in dicta the Florida Supreme Court suggested that the upstream landowner may have an easement across the lower owner's property to accommodate the reasonable flows, no Florida court has held that the reasonable use rule authorizes the upper owner to physically access the downstream owner's property to construct, alter, or maintain drainage works to accept the approved flows. Although it is conceivable that a court may ultimately determine that an upstream owner does have this right, what seems more likely is that the downstream owner has the discretion to determine how and where on his or her property to accommodate the flows, and all other downstream owners receiving flows originating from upstream have similar discretion. (35) Indeed, the conclusion is inescapable that, based upon Machado, even in the absence of an easement, every upstream property is entitled to legal positive outfall onto downstream property, whether based upon natural rights or upon the upstream property being used for a reasonable use.

The fact that there are few Florida appellate court decisions addressing allegedly improperly closed drains may suggest the vital importance of drainage to Florida commerce and land use and the apparent prevalence of mutual cooperation to accomplish drainage. This also may suggest the efficacy of the many legal theories which require drains to be kept open once established. (36) That being said, the mere existence of a drain still does not necessarily give an upstream owner the right to go onto downstream property to perform maintenance or to enlarge the capacity of the drain. The regulatory initiative to ensure that a permittee will be able to maintain a downstream drain, regardless of who owns the drain, is the very essence of the maintenance issue. However, notwithstanding the reality that many or even most of these ditches and drains are being regularly maintained as necessary, a district would probably not issue a permit for these systems, because ownership is fragmented or they are not currently being maintained by entities qualified to operate a system pursuant to the districts' rules. (37)

Easements

Because governing bodies prefer legal positive outfall to consist of recorded easements to drain through the lands of others, and an easement is necessary before the upstream landowner may physically access the downstream land to conduct drain maintenance, a brief summary of the law of easements is included. However, this analysis is not intended to be comprehensive.

An easement is a nonpossessory interest in the land of another that entitles the holder of the easement, referred to as the dominant estate, to do on the property of another, referred to as the servient estate, what is reasonably necessary for the full enjoyment of the easement. However, the dominant estate may not unreasonably burden the servient estate in a manner that is inconsistent with the general property right of the servient estate. (38) Therefore, the holder of the drainage easement, as the owner of the dominant estate, may physically go onto the downstream servient estate to maintain the easement, as necessary, to preserve the capacity of the drain or ditch to accommodate the water originating from the dominant estate. (39) In Florida, easements may be created by express grant, by implication, or by prescription. (40)

Water Management Districts

As stated above, developing land in Florida usually necessitates converting it from agricultural to urban or suburban use. In South Florida particularly, it is preferable, and sometimes a requirement, that a drainage system directly or ultimately drain into a natural body of water or into a drain that is publicly controlled or maintained. However, obtaining approval for a project's drainage to reach the larger publicly controlled drains or natural water bodies may be problematic because sometimes the drainage must pass through properties not controlled by an applicant. In that case, frequently there will not be a single entity with the property rights, control, or resources available to maintain the intermediate drainage system(s). Therefore, difficulties may arise when governing bodies require formal drainage easements authorizing drainage to traverse private property owned by others. Furthermore, even more problematic are requirements that well-funded maintenance programs be in place for the intermediate drainage system to accommodate drainage from upstream properties on its way to the publicly owned or controlled primary drainage systems or tidewater.

Typically, even in the absence of an express easement, an upstream owner may have an actual right to discharge into and maintain downstream receiving drains, by virtue of the doctrine of mutual drain or by prescriptive easement, but usually the right has not been established by litigation. (41) Also, owners of properties downstream from reasonable uses are obligated, without impairing the flows, to accommodate drainage in perpetuity originating from upstream reasonable uses. However, given the current regulatory atmosphere, these rights probably have not been satisfactorily documented, and because formal maintenance programs have not been established as required by permitting procedures, the permit requirements have not been met.

The F.S. Ch. 373 ERP program is layered onto the common law of drainage rights, but apparently has not superseded or preempted it. While there is clear legislative intent for the F.S. Ch. 373 consumptive water use permit process to supersede common law water use rights, there is no similar legislative intent for the ERP program to preempt common law drainage rights. (42) That being said, the districts are authorized, but not mandated, to require such permits and impose reasonable conditions necessary to assure that the operation, maintenance, construction, or alteration of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of Part IV of F.S. Ch. 373, and applicable rules promulgated thereto, and not be harmful to the water resources of the district. (43)

The authors of the Model Water Code, from which F.S. Ch. 373 was derived, intended that all existing drainage works would be subject to the ERP process. (44) However, the districts have not implemented the ERP programs to bring existing drains into the permitting process. In other words, despite the fact that most, if not all, of the drains are the maintenance responsibility in perpetuity of landowners, unless the drains are the subject of an ERP, the districts do not have the enforcement authority to require any necessary maintenance.

The ERP programs are now being fully implemented by four, and soon all five, of the districts, which carefully take historic drainage into account. (45) With respect to water quantities, the purpose of the ERP program is primarily to ensure that downstream properties are not flooded by activities conducted on upstream property and vice versa, and that existing flooding problems are not exacerbated by new development. (46) Historic drainage patterns are mimicked, and the historic rate of discharge of surface water allowed from a permitted property onto or through another property is maintained. Typically, the discharge rate closely resembles historic drainage for one or more design storms. The result is that ERPs generally require the post-development flows to approximate the discharge from the property in its predevelopment condition for the specified design storm(s) with regard to the quantity, timing of flows, and the direction of drainage. Usually the 25-year return frequency storm is used as this criterion. (47) Therefore, because the districts generally will not issue an ERP that authorizes the discharge of water onto downstream properties in excess of historic flows, or in a direction other than historic, the risk of a district-permitted project creating a new flooding problem is minimal. Accordingly, because of the emphasis by the districts' ERP processes on maintaining the predevelopment hydrologic conditions, it appears very doubtful that a drainage system constructed pursuant to an ERP would fail to meet or exceed the criteria necessary to comply with the reasonable use rule adopted in Machado.

Although the districts do not have the authority to resolve property rights disputes through their regulatory processes, (48) they in fact frequently, perhaps inadvertently, mediate drainage conflicts. (49) Moreover, the districts avoid future drainage problems by confirming and memorializing historic drainage patterns, new patterns resulting from development, and sometimes those that may be characterized by enhanced or augmented drainage works that exceed predevelopment discharge. (50) Often, when compared to historic conditions, especially in South Florida, drainage of excess surface water has been improved for large areas, although much care is paid to avoiding authorizing the lowering of ground water tables. This is because, unless the permits were issued in error, the operation phases of ERPs are permanent once construction of the drainage works is complete, (51) and, therefore, owners of permitted properties obtain a reasonably final determination of the discharge allowable from their properties. (52) This provides owners with a level of certainty and confidence when constructing drainage systems that would not have been possible under a case-by-case judicial application of the reasonable use rule. (53) It should be noted that because both focus on evaluating potential adverse impacts to property caused by drainage systems, there is considerable substantive overlap of the judicially applied reasonable use rule and the administrative ERP processes, as to the purpose and impact of new drainage patterns. Most of the factors the districts take into account in deciding whether to issue ERPs are also analyzed when deciding whether a use is reasonable. (54)

As set forth above, many drains traversing property owned by numerous private owners in Florida are not being systematically maintained by entities that possess the required property rights and reliable funding sources to qualify for ERPs. However, what may potentially have a significant impact on the success or failure of a project is that each downstream owner that fails to timely challenge an upstream project in circuit court as not being a reasonable use, or is unable to prevail following a timely challenge, will be legally obligated to accommodate the drainage originating from the upstream project in perpetuity. Therefore, every owner of a new unchallenged or unsuccessfully challenged drainage system that has been in place for four or more years has the right to drain over or through downstream properties. (55) Moreover, because the reasonable use rule legally precludes the downstream landowner from creating an obstacle to drainage from a reasonable use, it is not a stretch to conclude that underlying downstream landowners are obligated in perpetuity to operate and maintain the downstream drainage works or system that the downstream landowners choose to utilize to accommodate the flows originating from the upstream reasonable uses. While it may reasonably be questioned whether the best public policy is to burden downstream landowners with an obligation to maintain drainage systems to accommodate upstream flows, this is the result accorded by law. This is the case, notwithstanding that the upstream owners do not have the form of agreement establishing their drainage rights that governing bodies often demand.

Therefore, in the absence of a comprehensive public or private drainage maintenance program, the common law reasonable use rule fills the gap by providing legal positive outfall and assigning maintenance responsibility for the drainage to downstream landowners. Obviously, it is preferable for an upland landowner to possess an express, implied, or prescriptive easement to discharge stormwater into and through the necessary drains, because an easement gives an upland owner the right to physically occupy downstream easement property to conduct maintenance to preserve the drains' hydraulic capacity. However, in the absence of an easement, or an established mutual drain, the rights arising out of the Florida Supreme Court Machado case must then be taken into account. Given that a court will likely determine that issuance of an ERP for a development will probably be for a "reasonable use," unless the new use is timely and successfully challenged in circuit court within the four-year statute of limitations period, the upstream landowner of the reasonable use will have the right to compel downstream landowners to accommodate discharge from the upstream reasonable use property and to maintain that downstream drainage capacity in perpetuity.

This scenario creates an intriguing regulatory dilemma. While the Florida Supreme Court in Machado reinforced the natural drainage rights or reasonable use drainage rights of an upstream landowner, for reasons outside of the scope of this article, this ruling is overlooked by the permitting authorities when deciding whether to issue an ERP. This is apparent because governing bodies insist that reasonable assurance for legal positive outfall requires a tangible property right to accommodate flows from the upstream property. If Machado was considered, this requirement would not be insisted upon without due process or compensation because the analysis under Machado, coupled with the statute of limitations, makes it incumbent upon the downstream landowner(s) to challenge the upstream proposed use as not being a reasonable use.

In conclusion, it appears that governing bodies are becoming stricter in demonstrating reasonable assurance of "legal positive outfall." To achieve compliance, it is, therefore, necessary to obtain a form of agreement that authorizes drainage into and through off-site properties. Moreover, entities must be established that have the legal and fiscal capability to maintain off-site drainage works until the flows reach governmentally owned/maintained works or tidewater. It seems, however, that the common law provides legal positive drainage rights and corresponding maintenance obligations even in the absence of an express, implied, or prescriptive easement. Downstream landowners are legally responsible to accommodate the flows from upstream reasonable uses without impairment, in perpetuity. The districts potentially, and local governments absolutely, have the legal authority to use their police powers to require downstream owners to maintain drainage works. Therefore, it is probable that the reasonable assurance that downstream drains or works will be properly maintained in perpetuity is present for all drainage systems. However, since local governments are already charged with the responsibility for drainage, and, therefore, should have the resources to implement cost effective and equitable systems for drainage maintenance that utilize either stormwater utilities, special districts, or both, they should fulfill their statutory obligation to regulate and address drainage from approved projects within their jurisdictions.

In accordance with the foregoing, the authors offer the following conclusions and recommendations:

* As a matter of established Florida Supreme Court case law, regardless of the existence of express, implied, or prescriptive easements, all upstream properties are legally entitled to drain offsite onto or through the property of others, whether it is pursuant to an exercise of "natural rights" or flows from a "reasonable use" conducted on the upstream property.

* The corollary of this is that all downstream properties are obligated to accommodate appropriate drainage originating from offsite.

* Accommodating appropriate offsite drainage requires the maintenance in perpetuity of whatever drain or drainage system that the downstream owner has chosen to serve that function.

* Every owner of a property containing a drain that actively receives discharge from an offsite property is obligated to maintain that drain in a functional state, unless for some reason the flows originating from offsite are not lawful or unless another party is solely responsible for the maintenance.

* A governing body requirement for an express easement, written recordable agreement, or other express property right before approving offsite drainage through the property of others conflicts with the right to drain arising out of natural rights or from a reasonable use.

* Based upon the foregoing analysis, construction of a drainage system serving a use approved by an ERP, or any drainage system, commences the four-year statute of limitations for a downstream landowner to challenge the permitted use as not being a "reasonable use" under the Machado case.

* Governing bodies should, through the exercise of their police powers, make every attempt to utilize their regulatory authority to require maintenance of all drains that are conveying or traversing water originating from offsite.

* Local governments have the power to conduct the necessary maintenance of drains themselves and to charge the landowners, under penalty of a property lien, if the governments are not paid by the landowners for the maintenance.

* If local government maintenance requirements for drains owned by multiple property owners include slope and sodding specifications and the existence of maintenance berms, the only way these requirements can be met is if the local government acquires and incorporates the drains into special drainage taxing or benefit districts or stormwater utilities. Any of these entities may use eminent domain to obtain the necessary property for the rights-of-way and will be able to ensure uniformity of the drains and that the costs will be shared equitably by those benefited by the systems.

(1) From August 2004 to September 2005, four hurricanes crossed Florida's path. See NOAA, 2004 Hurricane Season, http://www.nhc.noaa.gov/2004atlan.shtml; NOAA, 2005 Hurricane Season, http:// www.nhc.noaa.gov/2005atlan.shtml.

(2) For background on what maintenance entails for artificial drainage conveyance systems, see Corp. of the President of the Church of Jesus Christ of Latter-Day Saints v. St. Johns River Water Mgmt. Dist., 489 So. 2d 59 (Fla. 5th D.C.A. 1986), rev. den., 496 So. 2d 142 (1986).

(3) See Libby, McNeil & Libby v. Roberts, 110 So. 2d 82, 83 (Fla. 2d D.C.A. 1959) (explaining what is meant by surface waters, also known as "diffused surface waters").

(4) Part IV of FLA. STAT. Ch. 373 authorizes the districts to issue permits for surface water management systems; see also FLA. STAT. ANN. [section] 373.413, .416 (2008).

(5) Drain, ditch, and canal are artificial water conveyance systems and will be used synonymously in this article; see definition of "works" in FLA. STAT. [section] 373.403(5) (2007). Positive outfall will only be unnecessary in exceptional circumstances, as with very porous soils or closed systems. The district requirement to be able to drain systems down by discharging water offsite to have capacity to store storm water from a consecutive rainfall event is referred to in local governmental regulations as "legal positive outfall" or "positive legal outfall"; see, e.g., SWFWMD Basis of Review for ERP Applications, Ch.6, [section] 6.2 at 1; SFWMD District Basis of Review for Environmental Resource Applications, [section] 6.9; Palm Beach County Unified Land Development Code, art. 1, [section] 25 ("legal positive outfall" defined).

(6) Reasonable assurance--a test to determine the likelihood of meeting the necessary statutory and rule requirements/ conditions prior to permit issuance. See Fla. Admin. Code. R. 62-4.070(2),(3); Metro. Dade County v. Coscan Florida, Inc., 609 So. 2d 634 (Fla. 3d D.C.A. 1992).

(7) Before one district will issue an ERP under Part IV of Fla. Stat. Ch. 373, it requires that applicants provide reasonable assurance in the form of an easement, recordable agreement or other assurance that storm water flows that traverse private property owned by others will be available and maintainable in perpetuity. See, e.g., SFWMD's implementation of Rule 40E-4.101(2), F.A.C. in Application No. 060713-22; Permit No. 43-02011-P.

(8) Palm Beach County Unified Land Development Code, art. 11, [section] (4)B. The result is that certain properties may be undevelopable unless authorization for flow is obtained from all downstream owners.

(9) Stormwater Management Criteria for Brevard County, Florida, adopted by [section] 62-3751, Brevard County Code of Ordinances.

(10) Personal communications with numerous developers of major projects and project engineers.

(11) See fn 2 and accompanying text.

(12) Administrative agencies are creatures of statute and can only exercise those powers conferred by statute. Ocampo v. Dept. of Health, 806 So. 2d 633, 634 (Fla. 1st D.C.A. 2002).

(13) As a rule of thumb, the percentage of land required for surface water management is 10 to 25 percent. However, this percentage may be greater if no positive outfall is available.

(14) Fla. Stat. Ann. [section] 163.3177(6)(c) (2008).

(15) Obviously, if acquiring rights-of-way for drainage requires the use of eminent domain, litigation may be necessary.

(16) See generally, Nelson M. Blake, Land Into Water, Water into Land, a History of Water Mgmt. in Florida (1980); C. Barnett, Mirage: Florida and the Vanishing Water of the E. U.S. (2007).

(17) See Westland Skating Ctr., Inc. v. Gus Machado Buick, Inc., 542 So. 2d 959, 961 (Fla. 1989) (This refers to the common enemy rule. In some states landowners have an unlimited privilege to deal with the surface water on their land without regard to the harm which may be caused to others.). Florida is not a common enemy state and never was. However, rather than getting rid of water, Florida is trying to keep more of it now. See Troubled Waters, UF LAW (Spring 2008).

(18) Palm Beach County v. South Fla. Conservancy Dist., 170 So. 630 (Fla. 1936) (plan of drainage was held paramount to county's right to construct a county road).

(19) Many large areas in Florida were not included within drainage districts. See Note, Waters: Surface Water Drainage, 2 U. Fla. L. Rev. at 392 (1949).

(20) See Fla. Laws Ch. 76-331, (abolishing the drainage districts).

(21) See also Fla. Laws Ch. 89-169, [section] 62 (transferring duties of numerous dissolved special districts to counties); Fla. Stat. [section] 165.061(4)(b) (1975-1987).

(22) Water Control Dist. of S. Brevard v. Davidson, 638 So. 2d 521 (Fla. 5th D.C.A. 1994).

(23) Manning v. Hall, 110 So. 2d 424 (Fla. 2d D.C.A. 1959).

(24) Id. at 426; 28 C. J. S. Drains [section] 7 p. 250.

(25) Id. at 427; 28 C.J.S. Drains [section] 78 p. 377; 56 Am. Jur., Waters, [section] 81, p. 568. The legal doctrine of "mutual drain" also arguably appears relevant and applicable to the rights of owners whose property is drained by works of dissolved Fla. Stat. Ch. 298, drainage districts.

(26) See Holley v. I.S. Morris, 206 So. 2d 669 (Fla. 1st D.C.A. 1968); see also New Homes of Pensacola, Inc. v. Mayne, 169 So. 2d 345 (Fla. 1st D.C.A. 1964).

(27) At an early date, Florida deemed that the taking of easements for drainage was a proper public purpose. FLA. CONST. ART. 10, [section] 6(b) (carried over from 1885 Constitution); Fla. Stat. Ch. 157.

(28) Dade County v. South Dade Farms, 182 So. 858 (Fla. 1938).

(29) Machado, 542 So. 2d at 963 (also referred to as the civil law rule).

(30) Gus Machado Buick, Inc. v. Westland Skating Ctr., Inc., 523 So.

2d 596, 597-598 (Fla. 3d D.C.A. 1987), aff'd, 542 So. 2d 959 (1989).

(31) Thompson on Real Prop. [section] 316 at 19-20 (1980).

(32) Id. at 20.

(33) Id.

(34) Machado, 542 So. 2d at 962-963, paraphrasing F. Maloney, S. Plager, R. Ausness, B. Canter, Florida's Water Law (1980) at 592.

(35) For an interesting 1949 law review article recommending that Florida adopt the reasonable use rule, see Note, Waters: Surface Water Drainage, 2 U. Fla. L. Rev. at 396 (1949).

(36) See Hunt Land Holding Co., et al. v. Schramm, 121 So. 2d 697, 700 (Fla. 2d D.C.A. 1960).

(37) See, e.g., SFWMD Basis of Review for Environ. Resource Permit Applications Within the SFWMD [section] 9.0 at BOR-90 (July 2007); SWFWMD Part B Basis of Review (May 2008); ERP Applications with the SWFWMD [section] 2.6.1; Applicant's Handbook Mgmt. and Storage of Surface Waters SJRWMD [section] 7.1 (November 5, 2008).

(38) Florida Power Corp. v. McNeely, 125 So. 2d 311 (Fla. 2d D.C.A. 1960), cert. denied, 138 So. 2d 341 (1961).

(39) Easton v. Appler, 548 So. 2d 691, 694 (Fla. 3d D.C.A. 1989).

(40) Amer. Quick Sign, Inc. v. Reinhardt, 899 So. 2d 461, 465 (Fla. 5th D.C.A. 2005); Winthrop v. Wadsworth, 42 So. 2d 541 (Fla. 1949); Canell v Arcola Housing Corp., 65 So. 2d 849 (Fla.1953).

(41) Farley v. Hiers, 668 So. 2d 248 (Fla. 1st D.C.A. 1996). The districts may require a circuit court judgment before recognizing prescriptive rights.

(42) Fla. Stat. [section][section] 373.216- .219, .226 (2007); Vill. of Tequesta v. Jupiter Inlet Corp., 371 So. 2d 663 (1979), cert. den., 444 U.S. 965.

(43) Fla. Stat. ann. [section][section] 373.413- .414, .416 (2008).

(44) F. Maloney, R. Ausness, and J.S. Morris, A Model Water Code with Commentary [section] 4.14 at 237. "Surface water management systems" were referred to in the Model Water Code as "surface water works."

(45) SFWMD v. Canoe Creek Prop. Owners Ass'n, Inc., et al., Case No. 90-1734, Division of Administrative Hearings Recommended Order 18-30 (July 31, 1991).

(46) See, e.g., F.A.C. SJRWMD Rule 42C42.023(i).

(47) SFWMD uses for its design storm the 25-year, 72-hour storm and SJRWMD uses the mean annual storm and the 25-year, 24-hour storm.

(48) See fn 12 and accompanying text.

(49) See, e.g., Royal Palm Square Ass'n v. Sevco Land Corp., 623 So. 2d 533 (Fla. 2d D.C.A. 1993).

(50) See fn 13.

(51) See Fla. Stat. [section] 373.429 (2007), which specifies conditions and procedures pursuant to which permits can be unilaterally revoked or modified by the districts.

(52) Of course, such a use is subject to a reasonable use challenge under Machado.

(53) Machado, 542 So. 2d 959.

(54) See Save the St. Johns River v. SJRWMD, 623 So. 2d 1193 (Fla. 1st D.C.A. 1993) (Because a dike existed prior to the district's implementation of its permitting authority over the property, a review of its design specifications was exempt from the district's permitting review. Both this case and Machado strongly suggest that the districts should accept existing drainage patterns as reasonable assurance of the right to drain, particularly when the drainage patterns pre-date a district's permitting authority in an area).

(55) Fla. Stat. [section] 95.11(3)(c) (2007).

E. Lee Worsham is a shareholder with Ruden McClosky Smith Schuster & Russell, P.A., in West Palm Beach. He graduated from the University of Florida School of Law and practices in the areas of environmental, land use, and real property. He is former general counsel for the St. Johns River Water Management District and was an attorney for the Florida Department of Community Affairs before returning to private practice.

Leslie Cohen is an associate with Ruden McClosky Smith Schuster & Russell, P.A., in West Palm Beach. She graduated from Nova Southeastern University Shepard Broad Law Center and practices in the area of real property.
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Title Annotation:Florida
Author:Worsham, E. Lee; Cohen, Leslie
Publication:Florida Bar Journal
Date:Nov 1, 2009
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