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Show 222 FLORIDA only if the use is (1) allowable under the common law of the State, and (2) a reasonable-beneficial use as defined in the statute.109 This provision would allow the department or the governing board of a management district to fine that the existing riparian use was lawful under common law principles, but to deny the permit on the ground that the use was not reasonable-beneficial under the statute. Thus, it would appear that the constitutionality of the statute might face judicial scrutiny when (1) a riparian user is denied an initial permit for a use lawful under common law principles but not within the statutory definition of reasonable-beneficial; or (2) when an initial permit for a limited term is issued to supplant a lawful riparian use, and then the application for renewal is denied. These constitutional questions will be difficult. 3.5 Storage Waters, Artificial Lakes, and Ponds Storage and impoundment rights and liabilities arising under riparian doctrines in Florida are discussed in other publications.110 Under the 1972 statute, a permit system is created for construction and for operation and maintenance of storage facilities. The con- struction permit provisions are quite detailed, and there is not space in this brief summary to outline all of the features of the statute. Of primary importance, however, are the exemptions from cover- age under the act. The first exemption is vague: Nothing herein, or in any rule, regulation, or order adopted pursuant thereto, shall be construed to affect the right any natural person to capture, discharge, and use water for purposes permitted by law.m The meaning of this provision is unclear because the only uses "permitted by law" after the 1972 act takes effect will be consump- tive use permits (and preexisting riparian uses for not more than 2 years following implementation of the statute) and exempted uses (domestic consumption by individual users). It would seem that the foregoing exemption is intended to preserve the validity of other water use permits and exempted uses, but it is questionable whether a water use permit would dispense with the requirement of a construction permit if the water use was dependent upon storage facilities. There are three other exemptions: (1) landowners may alter the topography of their land for purposes of agriculture, floriculture and horticulture;112 (2) "closed systems" are exempt, which include any reservoir or works located entirely within lands owned or controlled by the user and which require water only for the filling, replenishing, and maintaining the water level of the reservoir;113 and (3) all rights and restrictions under the section are confined to the adminis- tration of the statute, and no provision thereof shall be construed to "establish a basis for a cause of action for private litigants." 114 109 Sec. 373.226(2) (1972 supp.). See the discussion of the operative features of this permit system in section 2.1.e of this chapter, supra. 110 See Maloney et al.. note 1 supra, at 60-65, 129-35. 111 Sec. 373.406(1) (1972 supp.). »2Sec. 373.406(2) (1972 supp.). "s Sec. 373.406(3) (1972 supp.). 114 Sec. 373.406(4) (1972 supp.). |
