F R: LMB
l 'RE: SWqFWMD (R) Little Manatee River
I Florida Power & Light Company Permit
On January 18, 1972 the Department of Natural Resources authorie
Florida Power & Light to capture, store and use water in excesso
40 cubic feet per second from the Little Manatee River at a poF
; ~near Wimauma. This was purportedly done pursuant to 373,141.
!Several legal questions are presented. They are:
1* Does DNR have primary jurisdiction to
grant such authority?
24, Was the law properly applied in determining
j the amount of water which may be captured
j and used?
3. What changes will come about in the law when
the Shreve Act, Chapter 72-299, becomes
effective on July 1, 1973?
Discussion of Question 1
I ^^ None of the pertinent parts of Chapter 373 ave been judicially
I \V ^ construed since originally enac e. Te iP957 act is clear in ivn
\v^\A^ the State Board of Conservation (now DNR) the power to aurfchoriz
I \J ^such diversion of water; it further gave such board the power t
I delegate this responsibility to governing boards, of legally
} ~In 1963 the legislature amended the Water Resources law, setting
| forth several ways in which water requatory0 districts may be
; ^33.1 2^Waer regulatory districts.-
^^TT'^c diision may create or dissolve any-
where within the statate- gr anv vp,-tPr manavr^_
ment district mav cret om- iss-olve within t ie
ara ubet to its jurisdiction.. water reg^ula-
tory districts as necessary to serve the purposes
\ of this law. No district shall be dissolv-ed ex-
; cept by the creating agency of such district.
~No district shall be created or dissolved ex- ,
; ~cept pursuant to notice and hearing. A hearingI
; many be called by the division or the water man-
(a) Upon petition from the board of county
commissioners of any county or the boards of
county commissioners of any combination "
< counties in this state as may be wholly,
i ly within any area proposed to be r
a district; or
(b) Upon petition s11-
cent of the freehold
posed to be est<-)^
to the most
ers as ^
At that time the legislature granted to any such water regulator
districts the power to establish rules, regulations, or ~order(.
affecting the use of water as conditions warrant, and forbidden
i the construction of new diversion facilities or wells, the
initiation of new water uses, or the modification of any existin
, uses, diversion facilities, or storage facilities within the
< ~affected area. Each such regulatory district was further grante
i ~the power to apportion, limit or rotate uses of water or prevent
iL ths use whic the bo L ar find have "1se to 1be_ .. ,- %,- 4,%- Av reaso-nale%1i
tile cloiisljtivc intent to_ VLlLJLl^
a ,wter regulatory district, if such a district hiad been cre(ld.
| A;'At the same time, the 1963 legislature provided that DNR Ihoui
'4 r (v have general supervisory authority over all regulatory distict
\ JP ^and may review any rule, regulation, order or budget and modif
- J^s,3 for rescind such order to insure compliance with the provision
'^y^ and purposes of chapter 373. ^ .//
\ ~~~~373.174 SUoervisory power over regulatory ^ ^ .c ^'^
districts.-The division of interior resources shall ^ ^ o \ 1 ^
; ~~~~~~have general supervisory authority over all water ^^ ^ o0\ .^
i ~~~~~regulatory districts created under this chapter. ^ \ ^ ^ ^ ^
; ~~~The division may review any rule, regulation, Svxv^ w xd ,-^
~~~~order, or budget adopted by a local board and 14^^\ ea^olx ^ ^^
modify or rescind such rule, regulation. order, ^ p \ ^ ^
or budget to insure compliance with the provi- *,vC^ ^^^
'" ~~~~sions and purposes of this chapter.I iSS "^ ^
Y^; In addition, Section 37 .01 (3) provides that one of the purpoe
; \ \) ^ of a water management district is to determn etbihad
So^ n/ j otol 4%N7=11 of waters to be m.a int..a-ined in rivers and to reglt
Q) the discharge into or withdrawal from rivers owned or maintain
i ~by the district or which are a work of the district. We have
; ~previously taken the position that the Little Manatee River i
; a work of the district even though the portion which is the
subject of this permit might be located outside the geographic
j taxing limits of the district'.
- 378.01 Crea ion of flood control district.-
,;. -Any contiguous body of land in this state may
':~ ~ ~ ~ b create into a district for the following rsbtnelal oafc h elho
Section 37806 provides that any water management district
submit its policies, rules and regulations to the Division
Interior Resources of DNR for review and approval
378.06 Authority of the division of interior
(1) The division of interior resources is
hereby authorized to act for and on behalf of
the state in all matters arising out of this chap-
ter and pay any expense incurred in its opera-
tion hereunder out of the account herein created.
(2) Any district created under the provi-
sions of this chapter or by special act shall
submit its policies, rules and regulationsTo "7n
W is M1tor .review and approval.
Hlstory.-6. ch. 25209i, 1949; 11. ch. 61-231; 1125. 35. ch. e
Discussion of Question 2
It is my opinion that the law was not properly applied b
authorizing Florida Power & Light Company to dinecs
of 40 cubic feet per second.
The statute grants power to authorize such diversion only in
of average minimum flow at the point of capture Section 37
The term "average minimum flow" was originally defined in th
act but was substantially amended to its present form in 196
This definition requires determination and establishment of
average minimum flow for each month. January through Decemb
The average minimum flow as used in this law must be the aver
of the five lowest monthly mean discharges for each month, Jaur
through December, occurring during the past 20 years of actual
flow. Section 373,081(7).
The statute only allows authorization for diversion of water in
excess of aver'aa minjjimum3fl-owsfrecho h ese nm
A review of the attached graph will show an average minimum flow
for May of less than 8 cubic feet per second while the average
minimum flow for August is over 110 cubic feet per second.
130 .. -
12 0 ... . .
Io- --- -- -- -4
100 .......... ..... .---- --
I, 9 -- -- ...... .. .
-- 80.... ...
2L 0 ---.-...-----....... .. ---------
_z oo -- ----i--- -- -
JAN. FEB. MAR. APR. MAY JUNE JULY AUG. SEPT. OCT. NOV. DEC.
: ~~~NOTE:* -------------
The Averace Minimum Flow is the FLORIDA POWYER 8 LIGHT CO.
; ~Averoge of the Five Lowest Monthly \WATER SUPPLY DEVELOPMENT STUD
Meon Dischr50- es or Ech Month
Occunno During the 20 Years
~~~Prior to October t, t971.cnSt AVE/Rn AGE'* ~MINIMUl tFLOf "**
(,, '' :Datoe River 3 5 Miles
i UP;.':U ;, "om fromn U S G S Gcg ng -, ._____________
> 40 -.... .
\ ,\ '.* -* -- 7
I ~~Auitlority to withdraw aill wciLc'} in- excess of -10 cvulbic I eci 'T
| .~second iG not wJJiLLD thio rt tu tuory limnits for the months of
\ ^..i.^^^a~flliince the avorago miniiimumn flov.
.- ~for those throes months is above the mninjimumif prcrncrilbod by DNK .
2 0 .. ... ... .. .
At my request Jim Mann has calculated the average flow for each
lof the respective months. I have added this information to the
accompanying graph which previously only showed the average
minimum flow. You will note that the average flow is considerably
in excess of the average minimum flows. This would indicate that
there is probably ample water for use by Florida Power & Light
so long as pumping is limited so it will not go below the average
minimum flow for any particular month. It also would seem
appropriate that Florida Power be further limited to an extent
more consistent with its demonstrated needs rather than to allocate
to it all waters in excess of average monthly minimum flows.
Discussion of Question 3
Section 373.081 and 373.141 have been repealed by Section 1, Part V
Chapter 72-299 effective July 1, 1973. Under the new law, Section
373.226 (set out inthe 1972 Supplement to Florida Statutes) pro-
vdes that all existing uses of water may be continued only with
a permit but it directs the governing board or the Department to
issue an initial permit for the continuation of all uses in
existence before the effective date of implementation of the act
if the existing use is a reasonable-beneficial use as defined and
is allowable under the common law of the state.
This will weaken the position of the regulatory district after
July 1, 1973 as it relates to any existing uses as of that date.
37219A Permits rquired.- I3.226 Existing uses.-
( All v- .tin, s n o, of water, unless other-
Iwise exempted from regulation by the provisions
of this chapter ,ay m ae p nin d aftor adootion
tny wt a perm t issued
p e r s o na s.ha lll a ~ e e l m a k a n ..... .... .. -ip~ f ^ ii B f f ~
Summary and Recommendations
The Water Management District has sufficient authority under
^ Chapter 378 to require a permit prior to Florida Power & Light
I being allowed to divert water from the Little Manatee River.
i (FP&L may still lack the authority to take water from the
, Little Manatee River unless it is, or can become, a riparian.
The Water Management District has preempted the field relating
i ~to the power to authorize diversion of water from a water course
pursuant to Chapter 373. This power is subject to the general
j supervisory authority of the Division of Interior Resources of
Any action taken by the Water Management District should also
be taken by the Regulatory District.