Title: Opinion File 72-59 thru 72-63
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Permanent Link: http://ufdc.ufl.edu/WL00003336/00001
 Material Information
Title: Opinion File 72-59 thru 72-63
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 72-59 thru 72-63
General Note: Box 14, Folder 3 ( Opinions 1972 - 1973 - 1972 - 1973 ), Item 21
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003336
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

72-5l



jgpanraft JA& h


November 20, 1972


TO: MGG

RE: Does SWFWMD have authority to protect the riparian rights of
the people on the Little Manatee River right-of-way?


The Little Manatee River originates from headwaters located within

Hillsborough County, which is a part of SWFWMD, and flows generally

in a westerly direction, emptying into Tampa Bay just south of

Ruskin. At one point in the entire 35 to 50 mile length of this

river, it loops down into Manatee County which is not included

within SWFWMD. The river leaves Hillsborough County at the south-

west corner of Section 33, T 32 S, R 20 E, and renters Hillsborough

County approximately 1 1/4 miles west near the southeast corner of

Section 31 of the same township.


QUESTION: Does SWFWMD have any jurisdiction over activities relating

to withdrawal of water from the Little Manatee River

if such withdrawals are taken from that portion of the

river which actually lie within Manatee County and

outside the limits of SWFWMD?

ANSWER: Yes.

DISCUSSION: Section 378.16(1) provides that the Governing Board

is authorized to do certain acts relating to natural waterways

"within or without the district." Section 378.01(3) grants district

the right "...to regulate...withdrawal from...rivers...which are

a work of the district...."


Section 378.17(1) provides that the Governing Board shall have

authority to prescribe the manner in which local works provided

by other districts or by private persons shall connect with and

make use of the works of the district. Section 378.151 enables the

district to establish rules and regulations.












.. .. .. tt-5 SWFWMD has taken the necessary pro-

cedural steps for declaring that the Little Manatee River is a

work of the district. This would include the entire length of the

Little Manatee River and could not logically be construed to

include only that portion within the district and not include that

small loop of the river which flows outside the district boundary

and then fows back into the district for the remainder of the river

course, reentering the district at a point less than 1 1/4 miles

from where it exited the district.


I do not find expressed authority vested within SWFWMD for the

purpose of protecting per se the riparian rights of the people on

the Little Manatee River right-of-way. However, the district has

ample authority for regulating withdrawal from a work of the district,

even though such withdrawal might be made at a point at which the

work of the district was not located within the actual district

boundaries.


Sometime ago I prepared a memo on the right for consumptive use of

a spring flow. I reviewed this memo and the material contained

in it may be helpful so I am attaching a copy.


I have also looked at Maloney's book on Water Law And Administration

and refer you specifically to Chapter 6 entitled STATUTORY MODI-

FICATIONS OF EASTERN CONSUMPTIVE USE DOCTRINES.


In Florida the reasonable use rule governing the rights of riparian

owners and surface water courses looks to the relationship of

the use to the co-equal or correlative rights of the upper and lower

riparian proprietors. Under the riparian reasonable use rule each

riparian owner has the right to make a reasonable use of the water


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subject to the equal right of other riparian owners to make a

reasonable use. Ordinarily, for example, under riparian reasonable

use rule no one riparian owner could withdraw all of the water for

his own use, and thus deprive other riparians of uses they were

making. This would be unreasonable because it would interfere with

the equal rights of other riparians to use the water. Florida's

Water Law with respect to consumptive uses have generally developed

within the confines of the riparian system. The earliest cases,

usually involving water courses, put primary emphasis on the right

of the riparian owner to use the water for domestic and household

purposes, including the watering of farm animals; and these uses

were generally referred to as "natural" uses, as distinguished from

"artificial" uses, such as for irrigation and manufacturing. As

a general rule, the riparian owner was permitted to use such water

as was necessary for his natural uses regardless of the effect

on lower owners on the water course. On the other hand, he could

not use the water for artificial purposes if it would interfere

with the flow to the lower owners. The reasonableness of the use

was not in consideration. Maloney, Plager, Baldwin, Water Law

and Administration, 164.


Under the modern common law approach, presumably, domestic users

would have first priority, as they did under the strict riparian

system. Once that use was satisfied, the other users would have to

share the remaining supply in such fashion as was reasonable under

all the circumstances. Id. at 165.


The right to the use of surface water has been a relatively unimportant

issue in the past, and thus rarely litigated. Surface water has


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generally been treated as an undesirable quantity which drowned

crops, eroded and silted land, and caused floods. The major

emphasis has been on its disposal. As the competition for available

water has increased, more attention has been given to the potential

uses of difused surface waters, and it is expected that the questions

surrounding the competing rights to such waters will assume even

greater importance in the future. Id. at 167. It may be argued

that riparian water rights may have become vested and that the

alteration or termination of these vested rights to the enactment

of a water permit system violates due process. However, in the

instant case, this could hardly be controlling if the permit

system would prohibit a change from the current consumptive use

of the water.


Section 373.141 empowers the Division of Interior Resources of the

Department of Natural Resources to authorize a capture, storage and

use of water in any water course in excess of average minimum flow

at the point of capture. SWFWMD(R) has the same authority although

there may he some question as to jurisdiction outside the actual

district boundary. I believe it could be shown that the portion

of the Little Manatee River actually located outside the compounds

of the district is such an integral part of the river system that

it would be subject to the same rules and regulations as the

remainder of the river located within the district.


From a procedural standpoint I believe it might be appropriate

for the district to hold a supplementary hearing for the purpose

of declaring that portion of the Little Manatee River located

within Manatee County to be a part of the work of the district.

I would recommend that if this is done, the district give notice

by publication within Manatee County of its intent to take such


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action. It might even be desirable to determine the names and

addresses of all the riparian owners along the Little Manatee

River within Manatee County and give written notice to the them

of such a hearing.


At the hearing you could then have testimony presented showing

why this small portion of the river must, of necessity, be

included as a work of the district.




LMB:cs


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