October 5, 1979
RE: Jurisdictional Dispute/Lake Marion/Connecting Canals
I have reviewed Ed Curren's proposed letter to Attorney John C. Bottcher at
DER, The basic situation is this:
A. At a time when all pertinent property was outside of the boundary
of SWFWMD, a canal or drainage ditch was constructed to connect with Lake
B. When the boundary line between SWFWMD and SFWMD was changed in 1977,
Lake Marion and a portion of the drainage ditch or canal remained within SFWMD.
However, upland portions of the drainage ditch or canal became part of the area
comprising SWFWMD. Incidentally, this portion of the canal, extending away from
Lake Marion, and into the SWFWMD, terminates at a dead end which does not connect
with other lakes, creeks, rivers, and so forth.
C. Apparently the owner who did the digging did not obtain permits
from DER or from SFWMD.
D. When the owner's application for an after-the-fact permit was denied
by DER, and DER threatened penal or civil sanctions, the owner filed suit.
E. The owner seeks to obtain a Stay of the Enforcement of the DER
Administrative Order for Corrective Action, together with a Declaratory Judgment
declaring the Order for Corrctive Action unconstitutional and invalid.
F. DER has answered aGeneral Denial and Counterclaimed against the
owner seeking mandatory Injunctive relief requiring the owner to install a
permanent plug at the mouth of the canal (to prevent discharge into Lake Marion),
together with a Judgment imposing civil penalties and fines for the alleged
violation of Chapter 403, Florida Statutes.
G. The case has been set for trial in Polk County, Florida, December 13, 1979.
DER has inquired of both SWFWMD and SFWMD as to which District has jurisdiction over
the canal system. Ed's proposed reply indicates that SWFWMD does not have juris-
diction since that portion of the canal lying within SWFWMD does not connect to
a Work of the District or to a water of the state located within the District.
I agree with Ed to the extent he concludes that there is no present basis upon
which jurisdiction could be asserted. This is my conclusion merely because there
are no applications pending nor is any work proposed within SWFWMD which would
require a permit under existing SWFWMD regulations. This is not to suggest
that the District lacks jurisdiction under Chapter 373, to declare a portion of
the canal system a "Work of the District" and thereby achieve regulatory juris-
diction over this segment of the water body. I believe the District has the power
under chapter 373 to do this, should the Governing Board wish.
Incidentally, I have assumed for purposes of this memorandum that all of the
geographical matters stated in ED's proposed letter are accurate. In other words,
I have not independently verified the location of the District's boundary before
and after the boundary change.