Resolving drainage rights and maintenance issues frequently requires the application of common law property rights.
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.
The Common Law of Surface Water Drainage Rights and Early Statutory Law
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.
34) However, given modern development constraints, it seems incomprehensible to expect or require a landowner to litigate drainage rights before constructing a surface water management system.
373 consumptive water use permit process to supersede common law water use rights, there is no similar legislative intent for the ERP program to preempt common law drainage rights.
This is the case, notwithstanding that the upstream owners do not have the form of agreement establishing their drainage rights that governing bodies often demand.
While the Florida Supreme Court in Machado reinforced the natural drainage rights or reasonable use drainage rights of an upstream landowner, for reasons outside of the scope of this article, this ruling is overlooked by the permitting authorities when deciding whether to issue an ERP.
These documents include details of covenants, planning permissions, building regulation approvals, drainage rights
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