Title: Memo of Query and Conclusion
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00050841/00001
 Material Information
Title: Memo of Query and Conclusion
Alternate Title: Memo of Query and Conclusion: "Can SWFWMD(R) control or regulate well fields by either providing the construction of wells, limiting the number, size or depth, or restricting the pumping from such wells?
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
General Note: Box 2, Folder 1A ( SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT (Regulatory), Folder 1 ), Item 21
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: UF00050841
Volume ID: VID00001
Source Institution: 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



RE: Southwest Florida Water Management District (Regulatory)

Query: Can SWFWMD(R) control or regulate well fields by
either preventing the construction of wells, limiting
the number, size or depth, or restricting the pumping
from such wells?


Yes, if it is shown by preponderance of the evidence presented
at a public hearing that the use, either contemplated or present,
is detrimental to other water users or to the water resources
of the state.


Section 32_..171 authorizes SWFWMD(R) to establish orders affecting
the use of water as conditions warrant, and forbidding the con-
struction of new diversion facilities or wells, the initiation
of new water uses, or the modification of any existing uses,
diversion facilities, or storage facilities within the affected
area. This power is granted in order to obtain the most
beneficial use of the water resources of the state and to
protect the public health, safety and welfare and the interests
of the water users affected.

This section further authorizes the Regulatory Board to re-
gulate the use of water within the affected area by apportion-
ing, limiting or rotating uses of water, or by preventing those
uses which the local board finds have ceased to be reasonable
or beneficial. 5 373.171(1)(b).

Sub-section (3) provides that no order shall require any modi-
fication of existing use of water unless it is shown that the
use is detrimental to other water users or to the water resources
of the state.

No rule shall be adopted except after a public hearing pursuant
to notice as provided in Section 373.151 and the need for such
action must be shown by a preponderance of the evidence pre-
sented at the public hearing. 373.171(4).

If the Board desires to issue an order to a named person affect-
ing his use of water, rather than an order of general applic-

ability and future effect, the Regulatory Board need only
give notice to such affected persons at least 10 days prior to
the hearing. This notice can be given by personal service
or registered or certified mail and must state the time and
place of the hearing and proposed action concerning his use
of water. S 373.151(2)

Any party aggrieved by the order of the Regulatory Board
shall,:have the right to have such order reviewed by the

on t ggri
e a tauch dpci I4 the District
Court of Appeals.

A copy of the applicable Florida Statutes is attached.
The only annotations appearing in FSA relate to Law Review
articles and to Maloney's Book.

December 15, 1969


11. .. .. .
.. .. '., .

Ch. 373
-five per
ory pro- governor shall appoint a local board for the (b) Regulate the use of water- wthinit
according district consisting of five members who are res- affected areab5y apporion-t1g, limiting or ro-
freehold- idents and freeholders of the district. Mem- LlMg u'ses of water, or by preventing those
office of bers shall serve for terms of three years except uses which the local board finds have ceased
nties af- that the first board shall be appointed two for to be reasonable or beneficial.
three years, two for two years and one for one (c) Blake other rules, regulations, and or-
board or year. Members of such local board shall serve ders necessary for the preservation of the in-
zstigation without compensation but shall be entitled to terests of the public and of affected water
receive actual traveling expenses, per diem as users.
dissolved provided by 112.061, and other actual expens- (2) In promulgating rules and regulations
manage- es necessarily incurred in the performance of and issuing orders under this law the local
erefor to official duties, board shall act with a view to full protection
373.101 History.--5, ch. 63-336,. of the existing rights to water in this state in-
evidence sofar as is consistent with the purpose of this
on which 373.151 Hearing; notice; record.- law.
San opn- (1) Notice shall be published of any hear- (3) A rule, regulation or order shall re
i an opm- ing to beeld as provided in 373.142 and d n l iLs
t created 3.171 Posion Of water in t he isrirc ulesit Is
rtion ) sect once a week for two hown
hall con- oesppers published te ts 11. q or disposition opposed to
drologi- weesm a newspaper or newspapers published be moified is detrimental to other wate? usa
nvdrologi in and having a general circulation in every or to the w r ..... L
nd watera- county in the district or proposed district. In ( regulation, other than a rule
the event there is no newspaper published in or regulation relating solely to the internal
the appropriate county or counties, publica- management of any such board, and no order
tion shall be made in a paper having general shall be adopted, promulgated, issued, amend-
--e circulation in the county or counties affected, edr repealedexcept after a ubli
shall be The notice shaui state Lhe purpose, time and ursuant t notice a provide n 73.15.
the water ace of the hearing. No rule or regulation shall be adopted, issue,
territory (2) In the case of any proceeding under amended or repealed unless a need for such
within the 373.171, pursuant to which a local board is- action is shown by a renrnderanc of the ev.i
district; sues an order to a named person or persons, dtnpp nrpsented at the public earning. I
he board natural or artificial, affecting such person's use d5e".) rules and regulatioA. adopted By
after man- of water, rather than an order of general ap- the local board shall be filed with the secre-
> consider plicability and future effect, in lieu of the no- tary of state as provided in part 1, chapter
. section, # tice provided in subsection (1), of this section 120. An information copy will be filed with the
:a to the the local board a2l give Antice at least ten division of water resources.
days prior to such earmn to suc er on or
da-ro to i ,, .._ | History.-- n1l, ch. 57-380; 8, oh. 63-333.
persons by per,,,on vice or registered or
certh al, facing he time an place of 373.172 State water resources appeal board;
l; govern- such hearing and the proposed action concern- review of orders of local boards in adversary
Sghis use of water. proceedings.--
-"1 dis-" (3) All hearings pertaining to the creation (1) There is hereby created a state water
r ",. -.'ed or dissolution of a water regulatory district resources appeal board consisting of five mem-
S-. 1 x- shall be held by the board or the water man- bers, residents of Florida, none of whom shall 0
x = r,- agement district as the case may be, or by such be officers or employees of the state or any
i.:o o persons as the board or district may designate, county or municipality or any department, di-
S, -, rAll hearings required by this law pertaining to vision or agency thereof, at least one of whom
" ",,r rules, regulations and orders shall be held by is a qualified geologist with hydrological train-
-., the local board. ing or experience and one of whom is a quali- :
S' ....t (4) Accurate records of the proceedings fied engineer with hydrological training or ex-
:,'. .. J.' had and all evidence introduced at all hearings perience, and one of whom is a member of the
": : A '. shall be preserved. Florida bar. Members of the board shall be ap-
:* r.--7< History.-s-, ch. 57-38so0; Os. c. s63-338a. pointed by the governor for terms of three
ule Ayears, and he shall designate one of the mem-
373.171f les and regulations.- bers so appointed as chairman; provided mem-
Er Ir..:-. n' order to obtain the most beneficial bers of the first board shall be appointed for
;. :r.- use of the water resources of the state and to the following terms: one member, one year;
r. f Ir. | protect the public health, safety, and welfare two members, two years; and two members,
Str--.ct and the interests of the water users affected, three years.
of local boards by action not inconsistent with the (2 MIembers of the board shall serve with-
.. : : f other provisions of this law and without im- out compensation but shall be entitled to 'e-
S" .-: pairing property rights may: ceive their actual travel, subsistence and lodg-
(a) Establish rules, regulations, or orders ing expenses incurred while performing their
i,^^r '), 14? affecting lne use of water as conditions war- official duties, provided said expense shall not
L:U I rant, and forbidding the construction of new exceed the amount provided by 112.061, for
/,-, .. diversion facilities or wells, the initiation of state officers and employees. Such expenses
.. ..:.^ new water uses, or the modification of any shall be paid from funds appropriated for the
existing uses, diversion facilities, or storage board of conservation and allocated to the di-
facilities within the affected area; vision of administration of said board.

;ww -- w^-------- ----___________^,.^____________


(3) (a) Anv "art. aqcrcriea, 4; na..il amending any rule or regulation or in deter-
rder o entered in any proceed- mining the reasonableness thereof. The provi-
Ing ts ivee rigt to review of such order sions of chapter 59 shall be applicable to such r? -
by -e u ai ra cr-gIea r tv i section appeals insofar as the same may be applied. sr.
(b) Such review may be had by, and only The original record of the appeal board in the ve
by, filing a notice of appeal within sixty days cause may be transmitted to the court in ac- .
from and after the date of the entry of the cordance with the procedure set forth in 59.27 "
order appealed from. The notice of appeal shall (4). 3er,
be filed with the director of the state board, History.-o10, ch. 63-336. Co and copies sent to the local board and other 373.174 Board; supervisory power over reg-
parties to the original proceeding. Within thir- ulatory districts.-The board of conservation at
ty days after receipt of such notice, the local ulator dist e neral supervisory authority overvation th
board shall file with the appeal board a copy of all hae gengulatory diupervisory author tyed undover sa
the record of the proceedings had before it, all water regulatory distr icts creatoh d under cr ..
the record of the proceedings had before i this act. On recommendation of the director of
and all the evidence introduced in such pro- the board of conservation, the state board
pealedg. A copy of sttutethe record on appealshall be may review any rule, regulation, order, or bud- th
peal. A copy of the record on appeal shall be get adopted by a local board, and modify or .
provided all parties to the appeal upon pay- rescind such rule, regulation, order or budget
meant by them to the local board of the reason- to insure compliance with the provisions and 3"
able cost of such copy.rps f this a-
(c) The appeal board shall review the rec- purses ofts ach so6
ord on appeal for the purpose of determining. .
whether the order entered by the local board 373.181 Conduct of hearings, witnesses.- a.
conforms with the provisions and purposes of (1) For the purpose of any hearing author- a
this act and that the order is in accordance ized by this law the appropriate board is au- to r
with the weight of the evidence. Any party to thorized to administer oaths to witnesses and jo
the appeal, and the local board, may file written to require the production of books, papers or of ,
briefs with the appeal board, and when any other documents; may issue subpoenas to fe,!:
party to the proceeding so requests may pre- compel witnesses to testify and produce such niz
sent oral argument. books, papers or other documents (excluding prn.
(d) On the basis of its review the appeal financial records) in their possession as may inc
board may affirm the order, modify the order, be in the opinion of said board relevant to any as
rescind the order or remand the order to the hearing before it; said subpoenas to be served It i,
local board for further proceedings. When re- by the sheriff of the county where the witness wa:-
manding the order to the local board for fur- resides or may be found. Such witnesses shall pr.
their proceedings, the appeal board may re- be entitled to the same per diem and mileage as cor-
quest the appropriate division of the board of witnesses appearing in the circuit court which
conservation to furnish to the local board such shall be paid by the board holding the hearing. eat
additional information and data as it deems (2) If any person shall refuse to obey any der
necessary for the determination of the matter subpoena as issued or shall refuse to testify mi-
to be introduced in evidence and considered in or produce any books, papers or other docu- di-,
determining the matter, ments required by the subpoena, the board con- w'-.
mHstory.--9, ch. 63-336. ducting the hearing may present its petition to wil
373.173 Judicial review.- the circuit court of the county where any such an
(1) In the case of any action taken on the person is served with the subpoena, or where its r
basis of any proceeding conducted by the state r s ng fort h the facts, and s of.
board, the governing board of a water manage- deposit with said court when such subpoena is
bort ditrict goverinla board, oanage- issued in its behalf, the per diem and mileage to fern
ment district, or a local board, any person, nat- secure the attendance of such witness; where- co
ural or artficial aggrieved y suc acti upon the court shall issue its rule nisi to such en.o
^nhall hiaveP tlP g .i _nl.n iS elnyonhn person requiring him to obey the same and un-
tao sJc'e; ro- IPless the person shows sufficient cause for fail- the
ar option nfthe regulatorppea taskr ing to obey. the said subpoena, the court shall er
to the appeal board as provided in 373.172. his re fusal to comply, he shall be adjudged in pi
(2) Such review may be had by, and only contempt of court and shall be punished asi t.-
by, filing a notice of appeal within sixty days the court may direct for-
from and after the date of the entry of the or- Histo.-l c 57-380; 12, ch. 63-336. Se
der of the appeal board. The said notice of ap-, -3. sr
peal shall be filed with the director of the state 373.182 Water regulatory districts; costs of mi::
board and a copy of it filed with the clerk of organizing and administering.-- of
the district court to which returnable. (1) In the e'ent a water regulatory district iz:.
(3) The proceeding in court shall be con- is created within a water management district,
fined to an examination of the record of the the cost and expenses incurred in organizing co-
proceedings under this law, and no presump- and administering said regulatory district shall tie
tion shall be indulged as to the correctness of be borne by the water management district or iP9
the action of any state board, appeals board or its basins or subdistricts from moneys collected an
local board hereundcr in creating or dissolving by their existing taxing power. prco
a water district or in adopting, repealing or (2) In the event a water regulatory district

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