jgpanraft JA& h
November 20, 1972
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?
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
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
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
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
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.