Title: Draft of SWFWMD(R) response
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00051349/00001
 Material Information
Title: Draft of SWFWMD(R) response
Alternate Title: Draft of SWFWMD(R) response to the brief of the Florida Phosphate Council.
Physical Description: 5p.
Language: English
Publication Date: Nov. 11, 1968
Spatial Coverage: North America -- United States of America -- Florida
General Note: Box 3, Folder 2 ( SWFWMD (R) HISTORY - LAWS, RULES FIRST ORDERS - B3F2 ), Item 38
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: UF00051349
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



DATE: 11-11 68

RE: SWFWMD Water Regulatory District

You requested that Brad and I do research about this

matter. I have discussed this with Brad and am preparing this

rough draft so that we may have a point of discussion about the


In reply to the legal questions raised in the brief of the

Florida Phosphate Council submitted by Chesterfield Smith and

John Lawson I have concluded as follows:

As to point A:

The act creating SWFWMD, provides that: "0ther than as here-

in provided, SWFWMD shall operate under and be governed by the pro-

visions of Chap.378, Fla. Stat.,as amended from time to time."Sec.1,

Chap.61-691,Laws of Fla.

This provision -waQ prefaced by the statement that the SWFWMD

WAS CRfAtad for the purposes defined in Chapter 378, Fla. Stat.,and

to facilitate the creation and initial operation of a District under

said Chapter. "

At the time of the enactment of legislation creating the Dis-

trict the definition section of Chap.373 ($373.081) did not include

a definition of "Water Management District." This was added in the

amendments passed in Jkh 1963. Chap.63-336,Laws of Fla.

I don't believe there is any question but that the SWFWMD is

operating under the authority of Chapt.378 within the meaning of

Chap. 373.081(4),Fla.Stat.

As to point B:

Resolution #258 was passed by SWFWMD Board calling for public

hearing after extensive investigation by the Staff as well as studies

made by other agencies in connection with certain aspects within por-

tions of the District. The Resolution recites: "District investiga-

tion has determined a necessity exists for the conduct of a public


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Re: SWFWMD Water Regulatory District

This conforms with provisions contained in 373.142(1)(c). There

had also bden requests for the holding of such a hearing. heseC

request had been made by the Bd. of County Commissioners of Hills-

borough County. Resolution No.258 called for a public hearing em-

bracing the entire District rather than just being limited to Hills-

borough County or certain other geographical areas.

I conclude that the hearing was properly instituted under

373.142(1) insofar as the hearing related to creation of a co-

extensive District.

As to point C:

There is testimony in the record of the hearing of August 30,

1968 that the bounds of the District conform to a hydrologically

controllable area based on ground water and recharge area and the

Board found this as fact, established by a preponderance of the

evidence offered at the hearing. -gsM of Resolu'tion No.268 follows

the exact wording contained in 373.142(3),Fla.Stat.

As to point D:

I do not believe this point is applicable since the Board

members of SWFWMD are not appointed pursuant to 378.13(3),Fla.Stat.,

but rather are appointed by the Governor, without confirmation of the

Senate. This is prescribed by 3 of Chap.61-691,Laws of Fla.

Subsections 5(2),(3) and (4) of the Chapter establishing SWFWMD

provide that members of the Basin Boards be nominated by the Board

of the County Commissioners and appointed by the Governor. This pro=
vision may be an unconstitutional restraint on the Governor's prerog-

ative but if so, S11, Chap.61-691, contains a severability clause.

Sec.378.13 was passed as Sec.13 of Chap.25209,1949 Laws of Fla.

Sec. 47 of this law contains a severability clause.

As to point E:

Secs.20 and 21 of Art.III of the Florida Constitution prescribe

the constitutional limitations on the power of the legislature to en-

act local or special legislation. However, no definitions of such

laws are given in the Constitution. Laws based upon proper classi-

fications may be general laws, even though they are applicable in only

a part of the State, or to a part of the property in the State.

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Re: SWFWMD Water Regulatory District

State v 3XbXXXaMMaYp Stoutamire (Fla.,1938)179 So.730,733-34. In

the Stoutamire case the Florida Supreme Court also states:

"Laws based upon classifications or
laws relating to subjects that exist
in only a portion of the State or that
relate to the only subject or subjects
of the kind in the State, or that relate
to a State Agency, function, or State
property, may not be special or local
law of which notice must have been pre-
viously duly published under Sections
20 and 21, Article III, unless it may
be otherwise provided in the Constitution."
at 734.

As you know, the law establishing and governing SWFWMD, in-

cluding the Amendments, are not set forth in the Florida Statutes

but this is because of a decision made by the Statutory Revision De-

partment- aJ "44 .,CeeZ Z- U4A/4 ( .44 ^^ "

Chapter 379,Fla.Stat., creates the Everglades Fire Control Dis-

trict embracing some eleven counties and does appear in the Florida

Statutes. Chapter5348 and 349 create several Expressway Authorities.

Chapter 955 provides for the Florida School for Boys at Marianna and

at Okeechobee and the following Chapter provides for the girls at Ocala

and Forest Hills.

Chapter 266 creates the St.Augustine Historical Restoration &

Preservation Commission and the Pensacola Historical Restoration &

Preservation Commission.

Chapter 554 creates Interama.

State drainage laws have long been upheld by the Supreme Court

of Florida. Berry v Hardee,83Fla.531,91 So.685;Bannerman v Catts,80

Fla.170,85 So.336.

In Lainhart v Catts (1917)73Fla.735, the Supreme Court refused

to hold that the provisions of Chapter 6456 of the Acts of 1913, Laws

of Fla.,as amended by Chap.6957,Acts of 1915, were unconstitutional

on any of the several grounds allegedincluding the ground that such

acts were inhibited by Sec.20, Art.III of the Constitution.

In Bannerman v Catts (1920)80 Fla.1970,85 So.336, the act cre-

ating the Everglades Drainage District was again attacked. Appellant

there claimed said Chap.6456, as amended by 6957, is "in conflict

with Sections a 20 and 21" of Article III of the Constitution, alleging

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Re: SWFWMD Water Regulatory District

these acts to be special or local and, therefore, void. The Court

states it does not think this position is tenable and held:

"It is too well settled to admit of
argument that the drainage and reclama-
tion of swamp and overflow lands are a
proper exercise of legislative authority."

ILainhart v Catts and numerous other cases, pg.188.

These drainage acts were again challenged in 1922 in Berry

v Hardee and the Court, citing Lainhart, Bannerman and numerous other

cases concludes its affirming opinion by stating:

"Practically all of the questions involving
principles of law here presented have been
previously decided. ."

It is my conclusion that the SWFWMD has been established for a

proper State Governmental function within the meaning of the Constitu-

tion and was properly established by the enactment of a general State

law even though it only encompasses parts of fifteen counties. How-

ever, I recommend that the District seek to have the Statutory Sevis-

ion Department actually insert these laws in the next issue of Florida

Statutes. It seems only fit and proper that these laws be included in

the statutes since they encompass such a large portion of our State

and the works of the Distrect are becoming so extensive.

As to 373.101, Fla.Stat:

I do not believe this section constitutes a "Grandfather Clause"

in the common sense of the term. This section was a portion of Chap.

57-380,Laws of Fla.,which act created a Department of Water Resources

within the State Board of Conservation. The Act itself was called the

Water Resources Law and presently appears in Fla.Stat.Secs.373.071- ^5 /

At the time of its original passage in 1957 I am told there was

extensive lobbying activity and one of the more active lobbyists was

successful in having Sec. 4(which now appears as X2XXS373.101,Fla.

Stat.X include the terms "the present property rights" and "now de-

veloped and operated" / f J'
I have discussed this with Dean Frank Maloney, who lays claim

to some expertise of the subject, and he thinks this was an attempt to

"Grandfather" in all uses and rights existing at the time the legisla-

tion was passed. The bill did not contain an| effective date clause

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Re: SWFWMD Water Regulatory District

so would take effect 60 days from the final adjournment of the

session. The regular session adjourned on June 8, 1957, was ap-

proved by the Governor on June 18, 1957 and became effective Aug-

ust 7, 1957.

I believe the terms contained in this section have no real

operative effect insofar as the then existing property rights of

persons owning land and exercising then existing water rights

appertaining thereto since this merely seems to acknowledge the

fact that there are common law property rights relating to water.

I believe these still exist as ,5 A.dc by the common law.

I do not believe the new Water Regulatory District can rely

on water uses as of August 7, 1957 for a cutoff date in imposing rules

and regulations for such uses. This would be in the nature of an

ex post facto law, which is prohibited by 17 Declaration of Rights,

Fla. Constitution.

In 1963 the Legislature enacted Chap.63-336,Laws of Florida,
153 7 tl 0 7-
Sec. 1 of which now appears in the Statutes as if-31tV .72,Declaration

of Policy. Subparagraph (6) of this section provides that this declara-

tion of policy shall not be construed to amend or modify the provisions

of 373.101. This is the same Act which vided for the establishment

of Water Regulatory Districts under which the new District was created.

Sec.373.171 (included in the same legislative Act of 1963) pro-

vides that the useof water may be regulated by apportioning, limiting

or rotating uses of water, or by preventing those uses which the local

board finds have ceased to be reasonable or beneficial. However, this

can only be done where it does not impair property rights. Here again,

we are confronted with the question of what is a property right insofar

as it relates to the use of water as determined by common law.

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