Navigating Dangerous Waters: Surface and Groundwater Liability for Agribusinesses
Private property rights are a fundamental part of America’s legal landscape. However, the use and maintenance of that property can create conflict between a landowner and his neighbors. This is a particularly big issue for agribusinesses, which are more likely to have chemical, nutrient or waste runoff that may negatively impact those around them. This post covers general water rights of the respective parties and how a landowner might be liable for failing to monitor ground or surface water issues.
What are Water Rights?
The first step is figuring out what sorts of rights you and your neighbors have and what those terms mean. This article generally covers ground and surface water issues. Ground water in this context refers to naturally occurring water underground in Florida, like that pumped for well water, which has been contaminated or damaged in some way. Surface water is related more to rainfall or overflow generally from one property to another.
Surface Water Rights
Liability for these water issues usually arise in very different scenarios. Generally speaking, surface water drainage and runoff problems end up in a courtroom when neighboring properties are at different elevations and some structure is created that causes water to overflow. See generally, Westland Skating Center, Inc. v. Gus Machado Buick, Inc., 542 So.2d 959, 963 (Fla. 1989). For farmers and agribusinesses, surface water issues are also likely to occur because of improper management of waste or chemicals that get mixed into stormwater runoff.
Thankfully for the agriculture industry, Florida follows what’s called the ‘reasonable use’ theory, meaning you’re not strictly liable for a runoff issue. States follow different theories of liability, but Florida’s is considered the middle-ground. It’s a case-by-case standard, meaning that there’s no bright-line rule as to what would incur liability. It also may not matter that your neighbor knew of your activities or was aware that the property sat below an agribusiness.
Groundwater Rights
Groundwater liability is often seen in agriculture with respect to chemical, heavy metal or other foreign material pollution being deposited into a neighbor’s groundwater. Another common scenario in agriculture is where a neighbor is being deprived of groundwater because the agribusiness either mistakenly believes it has right to the water or is negligently operating in a way that removes it, like with irrigation. Riparian rights, which has to do with ownership and use of streams or lakes, often fall into this latter category as well, where an agribusiness misuses a waterway abutting multiple properties.
Groundwater liability is a bit more stringent in Florida. Our unique geography, which allows us to pull drinking water from underwater aquifers, means that an agribusiness can be held liable to the state if it’s not using EPA or FDACS approved chemicals or is using those chemicals in an unauthorized way. Where other states may not be able to use groundwater as drinking water, Florida can, and that means a higher scrutiny for certain discharge activities. While agribusinesses are generally exempt from needing a discharge permit, if you’re concerned that your operation may emit unusually high amounts of contaminants into the ground, it’s best practice to check with the Florida Department of Agriculture and Consumer Services.
Damages for Liability
An agribusiness can be liable not only to its neighboring landowner, but also to whoever has a right to use the property when the damage occurs. Liability may include having to pay out money for loss of equipment, livestock or crops, for a diminution in value of the real property or its rental value, or being prohibited from doing certain activities. There may also be additional ‘punitive’ damages, if a jury finds the conduct so reckless that punishment at some unknown dollar amount is necessary.
There may also be county or local ordinances that provide even stricter standards for drainage and surface water issues, like what type of structures can be erected or how the water may be used, particularly in areas where rainfall is more frequent or water policy a more central concern (like water management districts). To avoid or limit liability, it’s important to understand whether your farming or agribusiness activities may require drainage or other environmental permitting. See generally, stormwater drainage requirements for residential properties in Volusia County here.
Questions about Surface or Groundwater Rights? Let’s chat. Contact us at contact@groveslaw.ag to schedule a consultation.
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Kara Groves
After earning her law degree from University of Florida Levin College of Law and working as a tort defense litigator, Kara is settling down and bought some acreage out in Mount Dora. She has returned to her sustainable, regulatory background to help farmers and locally-focused businesses innovate and capitalize on direct-to-consumer movements across the state. In her off time, Kara is an avid gardener and cook. You’ll often find her in downtown Mount Dora adding to her plant collection or taking client meetings in the local brewery and marketplace.
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