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

• Author: Worsham, E. Lee
• Position: Florida

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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...