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Show FLORIDA 221 3.4 Loss of Bights The common law doctrines of adverse use, prescription and estop- pel might now be largely unimportant as methods of losing riparian rights in Florida, although the earlier cases applying such doctrines are discussed in other publications.101 The new permit system requires that all preexisting riparian water uses unless exempt (i.e., individual domestic use) be converted into water use permits, and that a fail- ure to apply for such a permit within two years following imple- mentation of the act will constitute a "conclusive presumption of abandonment of the year."102 The relevant question, then, is how water use permits may be forfeited or lost. The act provides, in essence, that permits may be revoked in five situations: (1) When the permittee makes a material false statement in his application;103 (2) when the permittee will- fully violates any of the conditions of the permit;104 (3) when the permittee violates any provision of the Act;105 (4) when the per- mittee fails to use the water under his permit for 2 consecutive years or more, unless such nonuse was "due to extreme hardship caused by factors beyond his control;"106 and (5) when the permittee consents to revocation of his permit.107 There is a rather curious provision relating to revocation in the section relating to permit application fees: The failure of any person to pay the fees established hereunder shall constitute grounds for revocation of his permit.108 The puzzling feature of the above provision is that it implies that permits may be issued prior to payment of the application fee for the permit, and that the permit thereafter shall be cancelled if the application fee is not paid. In actual practice, it is likely that per- mits will not be acted upon or approved unless the application fee is paid when the application is filed; and it is unlikely that any permits will be issued and later revoked for nonpayment of the ap- plication fee. A more serious question relates to the constitutionality of the per- mit statute, at least insofar as it may operate to divest lawful riparian rights in actual use when the new statute takes effect. When minimum stream flows and lake levels are to be preserved, as is the case with the Florida statute, there is little doubt that legislation can cut off riparian rights not in use. But when the legislation re- quires that riparian rights in actual use be converted into permits for fixed terms (not exceeding twenty years), and provides no assurance of renewal when the term expires, a constitutional ques- tion does arise as to whether the riparian right is diminished or im- paired without procedures of due process and payment of just com- pensation. An aggravation of the constitutional problem results from the provision that the riparian water user is entitled to an initial permit 101 Id. at 218 et seq., 327; see also 174-75. "«Sec. 373.226(3) (1972 supp.). «®Sec. 373.243(1) (1972 supp.). ^Sec. 373.243(2) (1972 supp.). ^Sec. 373.243(3 (1972 supp.). 108 Sec. 373.243(4 (1972 supp.). io^Sec. 373.243(5 (1972 supp.). ^Sec. 373.109(2 (1972 supp.). |
