Florida/Georgia Personal Injury & Workers Compensation

...he act. This is done by a provision concerning the termination of the common-law right and a transitional procedure. The holder of such a common-law water-use right was given two years to convert the common-law water right into a permit water right. § 373.226(3) Fla. Stat. (1973). In order to qualify for the initial permit under section 373.226(2) Florida Statutes (1973), the right must have been exercised prior to the implementation of the Florida Water Resources Act by a water management district with geographical jurisdiction in that area....

...) because it "enlarges, modifies, or contravenes the law implemented." Pinellas argues that the District has violated this principle by promulgating a fourteen-part test to replace the three-prong test of section 373.223(1) and the two-prong test of section 373.226(2), Florida Statutes (1995)....

...We affirm the ALJ's finding that rule 40D-2.301(1) is a proper implementation of the three-prong test, and we discuss this issue only to address Pinellas' claim that the two-prong test is to be applied in perpetuity to WUP applicants whose water use predated the Florida Water Resources Act of 1972. *912 Section 373.226 has been in continuous existence from the date of the 1972 Act, as has the three-prong test of section 373.223(1). As noted, prior to the Act, water rights were governed under the common law reasonable use rule. The Act replaced the common law with a statutory permitting system. Section 373.226(1) notes that all existing water uses, unless exempted, may be continued only with a permit. Section 373.226(2) states that the "governing board [of a water management district] or [DEP] shall issue an initial permit for the continuation of all uses in existence before the effective date of implementation of this part if the existing use is a reasonable-beneficial use ... and is allowable under the common law of this state." Section 373.226(3) states that an application for a permit under subsection (2) must be made within two years from the date of the implementation of the regulations described in the Act [16] or the use would be deemed abandoned....

...Section 373.239(3) states that "[a]ll permit renewal applications shall be treated under this part in the same manner as the initial permit application." Pinellas argues that when read in pari materia with part II of chapter 373, section 373.239(3) contemplates that the two-prong test of section 373.226(2) continues to apply to applicants seeking to renew permits for water uses in existence prior to the District's implementation of the water use permitting system described in part II of the chapter. The ALJ found that "[t]here appears to be no continuing rule in the statutory scheme for the two-prong test of section 373.226(2) two years after the effective date of the implementation of a consumptive use permitting program by the District. Reference in section 373.226 to whether a use was `allowable under the common law of the state' tends to confirm that this two-prong test was a one-time transitional procedure for converting common law uses to permitted uses." The ALJ went on to find that "if the...

...tem." We agree with the ALJ's determination that the legislature did not intend to allow vested common law water rights to exist ad infinitum alongside a statutory-permitting system, and we also agree with his interpretation of the two-prong test of section 373.226(2) "as simply a transitional tool for implementation of the Florida Water Resources Act." We note that the use of the term "in the same manner" as used in the provision in section 373.239(3) has an understood meaning in Florida law as being in the same procedural manner....

...s both reasonable and consistent with the public interest. Section 373.019(5), Florida Statutes. Application for permits for existing uses would be granted if the request was for a reasonable beneficial use and was in accordance with the common law. Section 373.226(2), Florida Statutes....