CHARLOTTE COUNTY v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

PREVIOUS SECTION

III. Rulemaking Authority and Statutory Framework

1211. In order to resolve the challenges to the proposed and existing rules in this case, it is necessary to consider the nature and scope of the District's rulemaking authority and the legislative goals embodied in the organic statute under which the District is operating.

A. Rulemaking Authority

1212. The Legislature has directed the water management districts to implement a consumptive use permitting program and has authorized rulemaking necessary to effectuate such a program. Section 373.216, F.S., requires the District to "implement a program for the issuance of permits authorizing the consumptive use of particular quantities of water covering those areas deemed appropriate by the governing board." Section 373.219, F.S., provides that the District "may require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure that such use is consistent with the overall objectives of the district...."

1213. "Consumptive use" is not defined in Chapter 373. "Water" or "waters in the state," is broadly defined in Section 373.019(8) as:

1214. Chapter 373, F.S. contains several broad grants of rulemaking authority to the districts. Section 373.044 provides in pertinent part:

1215. Section 373.113 provides:

1216. Section 373.171 provides in pertinent part:

1217. These statutes provide broad authority to the districts to adopt reasonable and appropriate criteria necessary to implement a permitting program and otherwise carry out the District's statutory goals.

1218. Section 373.616 provides:

1219. Section 373.6161 provides:

1220. The District cites Sections 373.616 and 373.6161, F.S., as authority that its rulemaking power must be "liberally construed." These provisions do not require that the District's powers be liberally construed. Rather, they require that Chapter 373 be liberally construed in order to carry out its purposes. The overriding purpose of Chapter 373 is to protect and properly manage water resources, maximizing beneficial use while protecting the environment and preserving the resources. See, Art. II, Section 7, Fla.Const. (1968).

1221. The courts have noted the significance of Sections 373.616 and 373.6161, F.S., in construing Chapter 373 in a manner which effectuates the overall purposes of the chapter. See, Osceola County, supra, 504 So.2d at 385 (Fla. 1987) (authority to adopt rules providing for inter-district consumptive use permitting could reasonably be implied from the comprehensive scheme of state-wide water management contemplated by Chapter 373 despite the absence of specific language authorizing such transfers; Chapter 373 should be liberally construed to effectuate its purposes); Booker Creek, supra, 534 So.2d at 424 (liberal interpretation is mandated in favor of statutory construction which protects isolated wetlands from mining activities); accord, Pinellas County v. Lake Padgett Pines, 333 So.2d 472, 479 (Fla. 2d DCA 1976).

B. History of Water Use Law

1222. In determining whether the District has enlarged upon its statutory authority, it is appropriate to examine the entire statutory framework as well as the specific provisions cited as statutory authority in the rules. Cataract Surgery Center, supra 581 So.2d at 1361; cf., Manasota 88, supra, 584 So.2d 133. A discussion of the background and history regarding water use regulation is necessary to fully and fairly understand the legislative intent underlying Chapter 373.

1223. Historically, the law in this country has treated water differently than other natural resources such as timber or minerals. These other resources generally can be legally converted to private ownership. For water, however, the law grants rights for use rather than absolute ownership. See, Maloney, Capehart & Hoofman, "Florida's Reasonable Beneficial Water Use Standard: Have East and West Met?" 31 U.Fla. L. Rev. 253 (Winter 1979).¹⁵⁸

1224. Two distinct approaches to granting water use rights developed in this country and are roughly split geographically by the Mississippi River. In the eastern states, a riparian system that paralleled English common law for surface watercourses was typically followed. Under the "natural flow" doctrine of riparian rights, a riparian owner was entitled to have a stream flow through his land undiminished in quantity or quality. In many areas, this doctrine evolved into a "reasonable use" standard where some diminution in quantity or quality of the water course was allowed so long as other riparian owners were not unreasonably harmed.

1225. Using this "reasonable use" standard, a lower riparian owner was entitled to protection when diversion by an upper riparian owner unreasonably interfered with his use of the water. Under this concept, each riparian owner could make beneficial use of the water for any purpose so long as that use did not unreasonably interfere with the beneficial uses of others. The determination of whether a use was reasonable was a question resolved on a case-by-case basis.

1226. The Florida Supreme Court first recognized the doctrine of riparian rights in Tampa Waterworks v. Cline, 20 So. 780 (Fla. 1896), which also applies a reasonable use standard. Subsequent Florida decisions adopted a similar riparian reasonable use analysis for consumption of water from surface water bodies and applied the analysis to the consumptive use of groundwater. See, Taylor v. Tampa Coal Co., 46 So.2d 392 (Fla. 1950); Lake Gibson Land Co. v. Lester, 102 So.2d 833 (Fla. 2d DCA 1958); cf., Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d 663 (Fla. 1979) cert. denied, 444 U.S. 965, 100 S.Ct. 453 (1979).

1227. In western states, water law developed differently. Many of the concepts evolved with the early gold miners who "appropriated" water for their needs. The western system of "prior appropriation" or "first in time, first in right" was recognized by the courts and riparian ownership was not considered a requisite of the right to use the water or to make withdrawals. A user was entitled to as much water as he could successfully divert, so long as he could beneficially employ it. Under this approach, water rights are perpetual in duration, although they may be lost or abandoned through nonuse. The concept of "beneficial use" was developed and refined over the years in an attempt to prevent waste and is a fundamental principle of western water law. Many states that followed the prior appropriation system have adopted comprehensive statutory and administrative modifications of this approach.

1228. Both the eastern and western law principles governing water allocation developed during times when there was limited understanding of groundwater systems and limited technological capability to access those systems to produce water and/or to develop accurate hydrogeologic data. Regulation of the use of groundwater involves many complex scientific issues which are not easily addressed under either eastern or western water law concepts.

1229. In Florida, there has never been an "ownership interest in the waters below the ground, as the right of the owner to groundwater underlying his land was to the use of the water and not to the water itself." Village of Tequesta, supra, 371 So.2d at 672; "The landowner does not have a constitutionally-protected property right in the water beneath the property...." Id.

1230. In 1955, recognizing that Florida's fragmented approach to handling water issues was inadequate and incapable of providing a long term framework for handling future problems, the Florida Legislature created the Florida Water Resources Study Commission. See, Fla. Water Resources Study Commission, "Florida's Water Resources, A Report to the Governor and the 1957 Legislature" (1956). This commission rejected a proposal that Florida adopt a prior appropriation system, Id. at pp. 14, 15, and made recommendations which led to the passage in 1957 of the first major piece of legislation in Florida related to water. See, Chapter 57-380, Laws of Florida (the "1957 Act").¹⁵⁹ The 1957 Act established a statewide administrative agency housed within the State Board of Conservation to oversee the development of Florida's water resources.

1231. Even after the adoption of the 1957 Act, Florida's water problems including saltwater intrusion, water shortages, destruction of wetlands, and deterioration of water quality, continued throughout the 1960's and early 1970's.

C. Florida Water Resources Act of 1972

1232. Recognizing the state's escalating water problems, in the early 1970's a group of water law experts at the University of Florida, including Dean Frank Maloney, was enlisted to draft a comprehensive water code for Florida. Dean Maloney had collaborated with other scholars since the late 1960's on a Model Water Code which was published in 1972. The efforts of these water law scholars culminated in the adoption of the Florida Water Resources Act of 1972, Ch. 72-299, Laws of Florida, (the "Water Resources Act") which was largely based on the Model Water Code. The Water Resources Act was codified, with the remnants of the 1957 Act, as Chapter 373, F.S.

1233. The Water Resources Act created the water management districts and required the development of a state water use plan.

1234. As discussed in detail below, the Florida Water Resources Act adopted a "reasonable-beneficial" use standard, which was developed in the Model Water Code as a fundamental premise of water use regulation. This standard attempts to combine the best features of both the eastern reasonable use rule and the western beneficial use standard for consumptive use of water. See, Commentary to Model Water Code, pp. 170-173, Maloney, Capehart & Hoofman, supra, 31 U.Fla. L.Rev. 253. The Act specifically includes a state policy to "preserve natural resources, fish and wildlife". Section 373.016(2)(e), F.S. With only a few relatively minor exceptions, Chapter 373 has remained virtually unchanged as part of Florida law since 1972.

1235. The Water Resource Act supplanted the common law with respect to water use withdrawals and implemented an administrative regulatory system which is set forth in Part II of Chapter 373, F.S.

1236. Part II provides the statutory framework for consumptive use permitting, now sometimes referred to as water use permitting. After the adoption of the Water Resources Act, water could no longer be withdrawn legally from any source except pursuant to the provisions of that chapter. See, Section 373.217, F.S.

1237. Individual uses for domestic consumption are exempt from the permitting requirements of Chapter 373. See, Section 373.219(1), F.S. In addition, water can be reserved from the permitting process to ensure the integrity of the resource and to protect fish and wildlife. See, Section 373.223(3), F.S.

1238. In Village of Tequesta, the Florida Supreme Court determined that after enactment of the Florida Water Resources Act in 1972, ad hoc judicial determinations regarding the allocation of water supplies were precluded. The Court stated:

Village of Tequesta, supra, 371 So.2d at 670.

1239. Without question, the authority granted to the districts under Part II of Chapter 373 is extremely broad. The Florida Supreme Court's decision in Tequesta implicitly determined that the statute was not violative of the "non-delegation" doctrine.¹⁶⁰

In Osceola County, the Florida Supreme Court recognized that:

Osceola County, supra, 504 So.2d at 396

1240. The Declaration of Policy in Section 373.016 recognizes that the dual purpose of the Water Resources Act is to provide for conservation of the available water resources while maximizing beneficial use. It provides "The waters of the state are among its most basic resources. Such waters should be managed to conserve and protect water resources and to realize the full beneficial use of these resources." See also, Sections 373.026(10) and 403.061(33), F.S.; Concerned Citizens of Putnam County v. St. Johns Water Management District, 622 So.2d 520, 521 (Fla. 5th DCA 1993). These sometimes conflicting goals make planning efforts unavoidably difficult and require striking an appropriate balance between maximizing the beneficial use of water for economic development and other purposes while preventing waste and preserving sufficient quantities for recreational use and ecological preservation.¹⁶¹

1241. Because the Florida Water Resources Act closely tracks the Model Water Code, the Model Water Code and its accompanying commentary can be utilized to ascertain the meaning and intent behind provisions within Chapter 373. See, Sheffield Briggs Steel Products, Inc. v. Ace Concrete Co., 63 So.2d 924, 926 (Fla. 1953).

1242. The following provisions of Section 373.036, F.S., closely track Section 1.07 of the Model Water Code:

1243. The commentary to Section 1.07(2) of the Model Water Code recognizes that diverse and sometimes conflicting interests must be balanced in achieving the maximum beneficial use of water and indicates that the consumptive use permit system is an important tool for achieving this goal.

1244. In discussing "Regulation of Consumptive Uses as a Planning Tool" the authors of the Model Water Code stated:

Commentary to Model Water Code, pp. 74-75.

D. Chapter 373 - General Overview

1245. The declaration of policy set forth in Section 373.016(1), F.S., recognizes that the waters of the state have not been conserved or fully controlled so as to realize their full beneficial use. This statute delineates the legislative goals as follows:

1246. Part I of Chapter 373 establishes the boundaries of the water management districts, authorizes the creation of basin boards¹⁶³ within a district, and directs the water management districts to assist local governments in the development and revision of local government comprehensive plan elements or public facilities reports as required by Section 189.415, F.S. See, Sections 373.069, 373.0693 and 373.0391, F.S.

1247. Chapter 373 mandates a cooperative effort between all governmental agencies in regulating the water resources of the state. See e.g., Sections 373.026(3); 373.046; 373.047; 373.036(3), (4), (6), and (10); and 373.0395.

1248. Section 373.0395, F.S., directs the water management districts to develop a groundwater basin resource availability inventory for their respective jurisdictional areas. The inventory includes:

1249. Section 373.0395, F.S., further directs that the groundwater inventory be made available to each affected municipality, county and regional planning agency.¹⁶⁴ This provision specifically sets forth the legislative intent that future growth and development planning reflect the limitations of the available groundwater or other available water supplies.

1250. Section 373.1961 sets forth several specific powers and duties of the water management districts in connection with water production. Subsections (1) and (2) direct the water management districts to assist counties, municipalities and water supply authorities in planning and meeting water supply needs "in such manner as will give priority to encouraging conservation and reducing adverse environmental effects of improper or excessive withdrawals of water from concentrated areas." The district can supply water directly to regional water supply authorities at such rates as may be established pursuant to subsection (6) of the statute. While the districts cannot engage in local distribution of water, they are authorized to "establish, design, construct, operate and maintain water production and transmission facilities for the purpose of supplying water to counties, municipalities, and regional water supply authorities." See, Sections 373.1961(3) and (4). In such instances, DEP is responsible for issuing the necessary permits. The districts are authorized to purchase lease or acquire by eminent domain such real property as is necessary for water production and transmission. Eminent domain powers can be exercised outside district boundaries under certain conditions. See, Section 373.1961(7), F.S. The districts have authority to raise money necessary to carry out their responsibilities through the issuance of revenue bonds. It is not clear to what extent these provisions have been utilized in any district.

1251. The Florida Water Resources Act resolved one of the major issues in water use regulation by authorizing the transport and use of ground or surface water beyond the overlying land and outside the watershed. Section 373.223(2) provides that the governing board or DEP can "authorize the holder of a use permit to transport and use ground or surface water beyond overlying land, across county boundaries, or outside the watershed from which it is taken if the governing board or department determines such transport and use is consistent with the public interest, and no local government shall adopt or enforce any law, ordinance, rule, regulation, or order to the contrary." The statute does not provide any guidance as to how the "public interest" is to be determined.

1252. Subsection (5) of Section 373.1961, F.S., imposes some restrictions on the ability to produce water for use outside the area of production. That subsection provides that the districts "shall not deprive, directly or indirectly, any county wherein water is withdrawn of the prior right to the reasonable and beneficial use of water which is required to supply adequately the reasonable and beneficial needs of the county or any of the inhabitants or property owners therein." See also, Section 373.1962(5), F.S. No timeframe is provided for determining the needs of the county from which water is to be withdrawn. (These provisions are discussed below in connection with the local use provision of the District's existing rules.)

1253. The pumping of groundwater in one district to meet demands in another district is authorized, but only upon a finding that such an interdistrict transfer of water is in the public interest as determined through an elaborate statutory scheme. See, Section 373.2295, F.S.; Kidder, "Water Transfer: An Invitation to Confrontation," Fla.Bar Journ. Nov. 1988 p. 41.

1254. In sum, the statute implicitly grants each district the authority to manage all groundwater within the district boundaries to meet the demands for water within the respective districts. This authority is constrained by Sections 373.1961(5) and 373.1962(5), but the statute does not otherwise prioritize or limit the use of groundwater to meet demands in a district based upon political or hydrogeologic boundaries. While there may be strong economic, political and practical reasons to manage groundwater supplies in a manner that maximizes or prioritizes the needs of the areas immediately adjacent to the withdrawal point of the water, Chapter 373 does not currently mandate such considerations except at the district-wide level.

1255. The water production powers and authority of the districts must be considered in the context of the powers and duties of regional water supply authorities. In 1974, the Florida Legislature amended Chapter 373 to provide for the establishment of regional water supply authorities in an attempt to further the cooperative efforts mandated by Chapter 373. See, Section 1, Ch. 74-114, Laws of Fla. The statute specifically recognized that:

Id. [Codified at Section 373.196, F.S.]

1256. Among the considerations taken into account in the establishment of a regional water supply authority are the maximization of economic development of the water resources within the territory of the proposed authority, the availability of a dependable and adequate water supply and the existing needs of water users within the area. The regional water supply authorities are authorized to levy taxes upon approval of the electors, acquire water and water rights, develop, store and transport water, collect, treat and recover wastewater and exercise the power of eminent domain. The regional water supply authorities also have the authority to issue revenue bonds. See, Section 373.1962(2).¹⁶⁵

1257. Chapter 373 includes two separate provisions that authorize a district to declare a water shortage in parts or all of a district when "insufficient ground or surface water is available to meet the needs of the users or when conditions are such as to require temporary reduction in total use within the area to protect water resources from serious harm." See, Section 373.175(1), and 373.246(2), F.S. As discussed in more detail in Section VIII. B., below, Section 373.175 provides that restrictions can be imposed on individual users and Section 373.246(2) authorizes water use restrictions for each affected water source by class of use.

1258. These water shortage provisions can be used to address temporary water shortage conditions. They provide methods for imposing cutbacks on permittees without the need to formally modify permitted quantities before the expiration of the permit term. In the event the restrictions imposed on water users pursuant to a water shortage declaration appear inadequate to sufficiently protect water resources or water users, the executive director of a district, with the concurrence of the governing board, may declare a water shortage emergency and impose immediate restrictions. See, Sections 373.246(7) and 373.175(4), F.S.

1259. Section 373.223(2), authorizes the governing board or DEP to adopt regulations reserving "from use by permit applicants, water in such locations and quantities, and for such seasons of the year, as in its judgment may be required for the protection of fish and wildlife or the public health and safety."

1260. Pursuant to Section 373.106(3), the districts may "do any act necessary to replenish the groundwater of the district." Such actions may include buying water; exchanging water; distributing water to persons in exchange for ceasing or reducing groundwater extractions; injecting water into the underground; storing, transporting, recapturing, reclaiming, purifying, treating, or otherwise managing and controlling water for the beneficial use of persons within the district; and building the necessary works to achieve groundwater replenishment.

E. State Water Policy and Water Use Plan

1261. Section 373.026(10), F.S., directs DEP to adopt by rule a "state water policy". The State Water Policy is defined as "the comprehensive statewide policy as adopted by DEP pursuant to ss. 373.026 and 403.061 setting forth goals, objectives, and guidance for the development and review of programs, rules, and plans relating to water resources." Section 373.019(16), F.S.

1262. The State Water Policy is currently found in Chapter 62-40, F.A.C.¹⁶⁶ Section 373.114(2), F.S., requires a water management district's rules to be consistent with the State Water Policy.

1263. Rule 62-40.110 sets forth the Declaration and Intent for Chapter 62-40. It provides in pertinent part as follows:

1264. Section 373.036(1), F.S. directs DEP to cooperate with the Executive Office of the Governor to "formulate, as a functional element of a comprehensive state plan, an integrated, coordinated plan for the use and development of the waters of the state...". This plan is to be known as the "state water use plan." The State Water Use Plan together with water quality standards and classifications adopted by DEP are supposed to constitute the Florida Water Plan. See, Section 373.039, F.S. While there have apparently been some efforts to develop a State Water Use Plan prior to December 1995, it does not appear that those efforts were particularly effective or well-coordinated. On December 8, 1995, the Florida Water Plan - 1995 was released by DEP with the expressed intent that it was intended to satisfy the requirements of Section 373.036 and Section 373.039.

F. Minimum Flows and Levels

1265. The Model Water Code contemplates the establishment of minimum flows for surface watercourses and minimum levels for lakes and groundwater aquifers. Minimum flows and levels are considered critical for protecting "public purposes." See, Commentary to Model Water Code, Sections 1.07(4) and (5), pp. 105-106.

1266. The concept of minimum flows and levels was included in the Florida Water Resources Act. Section 373.042, F.S., provides that "within each section, or the water management district as a whole", DEP or the governing board shall establish the following:

1267. In Concerned Citizens, 622 So.2d 520, the court recognized the importance of the establishment of minimum flows and levels.

Concerned Citizens, supra, 622 So.2d at 523

1268. The establishment of minimum flows and levels does not have to be based on precise historical averages. The statute seeks to prevent "significant" harm to the water resources. Preventing any and all measurable impact to the water resources is not the stated legislative goal and some impact is an unavoidable element of achieving beneficial use of the water resources for human activity. Thus, the establishment of MFLs is highly infused with policy considerations and requires a balancing of societal interest in order to decide what impacts are significant. See Commentary to Model Water Code, Section 1.07(5), p. 106.

G. Water Use Permitting

1269. Part II of Chapter 373, F.S. sets forth the specific provisions governing the issuance of permits for the consumptive use of water. Section 373.217, F.S. provides that Part II is the exclusive authority for requiring permits for the consumptive use of water. Subsection 3 of that statute provides

1270. Section 373.118, F.S., authorizes the districts to adopt rules establishing a general permit system for projects which either singularly or cumulatively have a minimal adverse impact on the water resources of a district. The rules must specify design performance criteria which, if met, would result in compliance with the conditions for issuance of permits.

1. Three-prong Test

1271. Section 373.223 delineates the criteria for issuing water use permits. Section 373.223(1), often referred to as the "three-prong test", provides as follows:

1272. This three-prong test incorporates the concept of "reasonable beneficial use" which is defined as "the use of water in such quantity as is necessary for economic and efficient utilization for a purpose and in a manner which is both reasonable and consistent with the public interest." Section 373.019(4), F.S. This definition of "reasonable-beneficial use" is adopted from the Model Water Code.

1273. Among the relevant factors that some commentators have noted as appropriate to consider when determining if a use meets the three-prong test are "the suitability of the use for the water body, its social value, and the extent of harm caused. The public interest criterion offers broad authority for implementing the statutory policy of protecting natural resources, fish, and wildlife." See, R. Hamann and T. Ankersen, "Water, Wetlands, and Wildlife: The Coming Crisis in Consumptive Use." Fla Bar Jour, March 1993, p.42.

1274. The three-prong test reflects the legislative intent that existing legal uses be afforded a reasonable degree of certainty for continuation of the uses for the duration of the permit in the absence of demonstrated circumstances affecting other water uses or the water resources of the state. This notion is fundamental to the Model Water Code's melding of eastern and western water law concepts. See, Commentary to Model Water Code, pp. 86 and 156-160. Under the reasonable use doctrine that developed under eastern water law, a use was determined to be "reasonable" in relation to the uses of other riparian owners. The use was, therefore, subject to modification when new riparian owners made demands upon the resource which were also deemed to be reasonable. One of the major perceived drawbacks of this system was the lack of certainty afforded existing uses. In addition, there is little or no consideration given to the public interest. There is also a great deal of difficulty and confusion in applying the concept of riparian ownership to groundwater.

1275. The prior appropriation doctrine of western water law afforded prior uses absolute certainty, as these uses could only be modified if abandoned or not considered beneficial, which basically encompassed the concept of avoiding waste. This approach has proved to be inflexible and there is very limited ability to accommodate new uses. There is also limited ability to protect the resources and environment. See, Commentary to Model Water Code, pp. 75-81.

1276. By establishing a permitting system with specific permit durations, the Model Water Code and the Florida Water Resources Act seek to incorporate the best aspects of both systems. The Model Water Code and Florida Water Resources Act clarify these issues by conclusively establishing that groundwater is a public resource to be utilized in the public interest through the permitting process. See, Commentary to Model Water Code, pp 156-160, 170-173. The permittee is afforded a degree of certainty as to the continuance of the permitted use for the life of the permit, while at permit renewal, uses are reevaluated to determine whether they are still "reasonable" in light of current conditions. This approach minimizes the possible unlimited continuance of uses that no longer represent the most efficient or beneficial use of the water resources, as can occur under the prior appropriation system. Id.

Commentary to Model Water Code, p. 79.

2. Application of the Three-Prong Test to Renewal of Converted Common Law Uses

1277. Prior to the adoption of the Water Resources Act, the common law in Florida essentially allowed a landowner to withdraw from his property all the groundwater he could reasonably use to the extent that it did not injure the adjacent owner's property. See, City of St. Petersburg v. Southwest Florida Water Management District, 355 So.2d 796, 798 (Fla. 2d DCA 1977) cert. denied, 368 So.2d 1364 (Fla. 1979), citing Koch v. Wick, 87 So.2d 47 (Fla. 1956).

1278. The expressed intention of the Model Water Code and Florida Water Resources Act was to replace the common law allocation system with the certainty of administratively issued permits.

1279. Section 373.217(4), F.S. provides that:

1280. Section 373.226, F.S., was intended to govern the conversion of water uses from the common law allocation system that existed prior to the enactment of the Water Resources Act in 1972 to the administrative allocation system established by the Act. Subsection (2) of Section 373.226, which is sometimes referred to as the "two-prong test", provides that a common law use was entitled to a permit provided that the use was a "reasonable-beneficial use and was allowable under the common law of the state." Subsection (3) of this statute provides:

1281. There appears to be no continuing role in the statutory scheme for the two-prong test of Section 373.226(3) 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.

1282. Nonetheless, Pinellas argues that the two-prong test continues to apply to uses that originated prior to the implementation of a permitting program. Pinellas contends that the three-prong test does not apply to such uses. In this regard, Pinellas notes that Section 373.239(3), F.S., governs permit renewals and provides that: "All permit renewal applications shall be treated under this part in the same manner as the initial permit application." Pinellas argues that, for uses that predated the permitting program, the "initial application " is the application made when the common law use was converted to a permitted use, and, therefore, such a use is perpetually subject to the two-prong test upon renewal.

1283. Pinellas' statutory interpretation depends upon the continued vitality of Section 373.226(2), even though subsection (3) states that it only applies to applications made within two years after the implementation of the permitting system. This interpretation creates avoidable conflict within Chapter 373 contrary to the well established rule of statutory construction that statutes within the same chapter should be construed in pari materia to afford each statute a reasonable field of operation and avoid conflict, whenever possible. See e.g., Wakulla County v. Davis, 395 So.2d 540, 542 (Fla. 1981).

1284. More importantly, if the Legislature had intended to create a favored position for the renewal of uses that predated the permitting program, that intent would have been more explicitly spelled out. The authors of the Model Water Code specifically contemplated and rejected such a preference. See, Commentary to Model Water Code, p. 183. There is no clear indication that the Florida Legislature intended to adopt a renewal process for common law uses that is directly contrary to the position of the authors of the Model Water Code.

1285. As noted above, in adopting the Florida Water Resources Act, the legislature clearly intended to supplant the common law allocation system. Consistent with this goal, the purposes of Chapter 373 are best served by making all applicants subject to the three-prong test on permit renewal, regardless of whether the use predated the origination of the permitting program. No statutory purpose is served by continuing the vestiges of the common law allocation system. Interpreting the two-prong test of Section 373.226(2) as simply a transitional tool for implementation of the Florida Water Resources Act is consistent with the Model Water Code. See, Commentary to Model Water Code, pp. 163 and 167, and Sections 2.03 and 2.07 with accompanying comments.

1286. In Village of Tequesta, the Florida Supreme Court recognized that Part II of Chapter 373 was intended to supplant all common law uses of water with a permitting system and that Section 373.226(2) was a transitional tool for implementing the Act. The Court noted:

Village of Tequesta, supra, at 671.

1287. While the application of the two-prong versus the three-prong test was a frequent issue during the course of these proceedings, it is not clear that there is a significant difference between the two. Both tests require that a use be a reasonable-beneficial one. The two-prong test does not include an explicit protection against interference with existing uses. However, even under the common law, uses could not interfere with another to the extent that they would be considered "unreasonable" by the courts. See e.g., Labruzzo v. Atlantic Dredging & Const. Co., Inc., 54 So.2d 673 (Fla. 1951) (plaintiff stated a cause of action where it was alleged that adjoining landowner interfered with the flow of a subterranean stream so as to cause damage to adjoining lands); Taylor v. Tampa Coal Co., 46 So.2d 392 (Fla. 1950) (citrus grove properly enjoined from pumping water from lake for irrigation purposes where the water in the lake was about 49 inches lower than normal and the lake had become so low that swimmers acquired silt or dirt while swimming, were compelled to bathe after swimming, and use of dock was materially affected). These cases indicate that consideration of interference with other existing water uses is part of the reasonable use doctrine under common law.

1288. The two-prong test also does not include a specific requirement that a use be in the public interest. However, the definition of a "reasonable-beneficial" use provides that the use must be consistent with the public interest. See, Section 373.019(4), F.S. While it is open to debate whether this requirement of a reasonable-beneficial use is coextensive with the public interest requirement of the three-prong test, any uncertainty as to the reach of the two-prong test should be resolved in accordance with the public interest. See, Rhoades v. Southwest Florida Regional Medical Center, 554 So.2d 1188, 1191 (Fla. 2d DCA 1989); Goldring, supra, at 534. ("The provisions of statutes enacted in the public interest should be given a liberal construction in favor of the public.")

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