July 9, 1969.
Statement of James E. Bryan,
property owner of northwest Hillsborough
County, representing himself.
To the Board of Governors,
I object to the proposed rules and regulations being
adopted. I believe they are inconsistent with, and in vi
lation of, certain sections of Florida law, Chapter 373,
several respects. I believe these facts were knovm to the"
board, and to the employees of the board who drafted the -
posed rules and regulations. Therefore, they are not pr : .ed
in good faith.
In no way, do they tend to correct any condition described
in evidence presented to the board, on which the creation of
the district was based.
To substantiate this statement, I ask that minutes of the
meeting of the board of October 30, 1968, also May 7, 1969,
as well as the special memorandum of the meeting February 5, 1969
be made part of the record of this hearing.
Consider the proposed rules and regulations in the order
in which they are presented. First, section 1.01 -PURPO3E-
is so vague that it is meaningless. The special memorandum
of February 5, 1969 indicates this was intentional.
I suSggest that the preamble of any proposed rules and
regulations should be patterned after the preamble of any
legislative bill, and state precisely which section, or sub-
section of the lew it was designed to implement. This would
prevent going so far afield as to be beyond the scope of the
legislative authority of the board, as these proposed rules
and regulations do.
It must be remembered that the beard of governors of a
water management district is not authorize+ to administer
Florida law 373 as a whole, but only that portion of it known
as the ''^ater Resources La ; namely, sections 373.071 through
373.2z1. Their power is further spelled out in section 373.141.
:Section 1.02,-D3FINITION3- in the proposed rules and regu-
lations is in violation of Florida law 373.171, section (1)
which prohibits the adoption of any rules or regulations
inconsistent with other provisions of this law.
The definition of a well in the proposed rules end regu-
lations is inconsistent with the definition of a well as defined
in the statute, section 373.021 (1).
Sections 2, 5, A, end 5 of the proposed rules and regu-
lations deal with two subjects; namely, control of well drilling
and water contamination. Legislative authority to control this
phase of contamination is not vested in the Water Manage ent
District, but in the Division of Water Resources end Conservation
by Florida law 373.021 through 373.061.
There is no legislative authority for any one, or any board
or agency to require a permit to drill a well, except as noted
in 373.171 (a) which is limited to diversion facilities or wells.
These proposed rules end regulations go so far as to regulate
wells exempted by 373.091. I believe this is a known fact to
members of the Board, as well as the persons whose negres appear
as being present on the memorandum of the February 5th meeting,
as well as the minutes of the May 7, 1969 meeting.
It is inconceivable to me that this was not discussed in
full, and support solicited for pending legislation to be
provided by Senate Bill # 631 and its companion bill, House
Bill # 1035, by Representative Rande.ll, then pending before
the legislature. The preamble of this bill reads as follows:
"A bill to be entitled AN ACT relating to water wells;
providing that the board of conservation shall regulate
construction of wells; providing for delegation of admin-
istration to political subdivisions; providing for in-
spections by board; providing for licensing and examin-
ation of water well contractors; providing fees; pro-
viding penalties; providing an effective date."'
This bill failed to pass. The senate bill also failed. If this
subject was discussed at these meetings and not mentioned in
the minutes, or memorandum, I believe the omission speaks for
I would like to call attention to section 241 -PENALTIES-
of Florida law 373. It provides a penalty for violation of any
provision of this law. I do not find .that the members'.-bf the. Board
of Governors are exempt from these penalties.
I wish to comment on two subsections of the law which have
not been complied with; namely, 373.142 (2) and (3). Subsection
(2) requires that before a district is created (quote) 'The find-
ings of fact on which the action is based shall be set forth in
an opinion of the hearing officer.'(unquote) Please note that
in the minutes of October 30, 1968, at which meeting the resolu-
tion creating the district was adopted, there is no mention of
such findings of fact, as required by law, or any statement by
any board member that the preponderancee of evidence' warranted
the creation of the district to include the several counties
under the jurisdiction of the Southwest Florida Water Management
District. If such.statement of fact was prepared I hereby
request a copy of it, and further request that a copy be placed
in the record of this hearing.
Subsection (3) of 373.1^2 requires that "Any water regu-
latory district created under the authority of this section shall
conform as nearly as practicable to a hydrologically controllable
area based on ground water and recharge area with appropriate
consideration for surface water." This section of the law appears
not only to be violated, but completely ignored. I challenge
the board of governors to produce a survey, or geological report
that shows the 'hydrologically controllable area' of this regu-
latery district that includes th portion of Pinellas County
south of state road 580. I contend this violation is continuous
and makes the regulatory district unwieldy, and almost impossible
The legislators recognized this fact when they did not adopt
it as uniform throughout the state. They placed specific limita-
tions (373.101) in the act. They further emphasized this limita-
tion by subsection (2) of 373.141, as well as these two above-
mentioned subsections of 373.142. They further emphasized it in
373.171 (a) which grants power to make rules and regulations
applicable only to facilities within the affected area; also,
373.171 (c) "Make other rules, regulations, snd orders necessary
for the preservation of the interests of the public end of affected
In other words, there are no limits to the number of regulatory
districts that the board may create within their jurisdiction, as
long as the evidence justifies it, and the districts are necessary
to protect the interest of the public end the effected water users.
~~_ ___~ -/
By proceeding in an irro :-onsible manner, the Board of
Governors has deprived the p e>rty owners of northwest Hills-
borough County of the protect ; and benefit of Florida Law 373
as it should effect that are: by stopping the function of the
regulatory district which ha. ;cen established by the Hillsborough
This was pointed out by me in a statement I submitted
to you at your hearing August 30, 1968, that this would be the
effect. I now present a copy of that statement for the record
of this hearing.
Again I urge the board to comply with the provisions of
the law as set forth in subsections (2) and (3) of section
373.142 Florida Statutes.
I specifically request that the Board of Governors produce
a topoSraphical map showing the area of the state which the
Southwest Florida Water Management District covers, with the
hydrologically controllable area shown, that it may be seen
how closely the requirements of section 373.142 (3) are being
complied with. I also request such pertinent information as
when, and by whom, the map was made; and when, and by whom the
hydrologically controllable area was determined.
I further request that this information be made part of
the record of this hearing.
James E. Bryan
Route 1, Box 342,
Odessa., Florida. 33556
Reccommendations for Rules and Regulations
submitted by James E. Bryan
As a property owner and user of water for irrigate
purposes in an orange grove in northwest Hillsborough :ty,
I request that the Board of Governors act to protect t land
and water resources of this area, as well as the prop. rights
of its citizens.
I believe the Board of Governors has a special oblig-ation
to do this because when you included this area in the district
you prevented from functioning the water regulatory district
which had already been set up by the Hillsborough County com-
missioners. It had taken many years of effort and cost many
thousands of dollars to get this original district established,
and have the Florida Supreme Court uphold the legality of it.
almost a year has passed since the hearing of August 30, 1968,
which gave the death blow to these efforts. So far I fail to
find that you made any sincere effort to study the needs of this
area, or draft rules and regulations to carry out the stated
purpose of Florida Law 373. (See attached sheet.)
This declared purpose of the law is precisely what is
needed to correct the conditions that now exist in northwest
Hillsborough County. The land resources are threatened and
suffering. The water resources are threatened and suffering
by lowering the quality of the water which is available to such
an extent as may make it unfit for irrigation. Water is being
diverted to such an extent it interferes with other users of
water in the area.
Sufficient power is vested in this board to carry out the
declared purposes as stated in Florida Law 373.072.
I request that the board act under the power vested in them
by section 373.141 (1) to establish the ground water levels in
northwest Hillsborough County.
First, establish the lowest safe level that will protect
the water resources from irreparable damage.
Second, establish the lowest level to which ground water
may be pumped and diverted, without interfering with the reasonable
use by others for beneficial purposes, such as the use of lakes
for recreation, and the land for agricultural purposes. After
this is done, I request that rules and regulations be made that
will stop the diversion of water from the area when the prede-
termined level is reached. I suggest this can best be done by
a rule or regulation that would require the diverting well to
be equipped so that the turbine, or suction pipe, of the pump
will be incapable of picking up water at a lower level than that
fixed for that particular well, based on its elevation in relation
to ground elevation and to sea level.
Third, determine by chemical analysis s d make public the
quality of the water in the area at the present time, compared
with the quality of the water ten years ago. Be prepared to
analyse samples of water from various wells, at the request of
the owner, and advise him of its suitability for irrigation.
James E. Bryan
Route 1, Box 342,
Odessa, Florida 55556 -
Sections od Florida Law 373.
373.071 Water resources law.--S sections 373.142 Water regulatory districts.--
373.071 through 373.241 shall be known and (1) The board may create or dissolve any-
cited as the "water resources law." where within the state, or any water manage-
istery.-si, ch. 57-380. ment district may create or dissolve within the
area subject to its jurisdiction, water regula-
373.072 Declaration of po!icy.TIn view of tory districts as necessary to serve the purposes
the rapid growth of population, agriculture, of this law. No district shall be dissolved ex
industry, and other economic activities, the cept by the creating agency of such distri ct
water resources of the state must be pro- No district shall be created or dissolved ect
tected, conserved, and controlled to assure cept pursuant to notice and hearing. A hearing
their reasonable and beneficial use in the may be called by the board or the .ate han
interest of the people of the state. There- agement district: or e water man
fore, it is declared to be the policy of the (a) Upon petition from the board of county
i state that: commissioners of any county or the oards of
(1) Waters in the state are a natural re- county connmissioners of any combination o
source, counties in this state as may be wholly or par
(2) The ownership, control of develop- ly within any area proposed to be established as
ownership, control of develop- a district; or
ment and use of waters for all beneficial
purposes is within the jurisdiction of the (2) No district shall be created or dissolved *
state which in the exercise of its powers may by the board or the board of a water manage-
establish measures to effectuate the proper and ment district unless the necessity therefore to
comprehensive utilization and protection of accomplish the purposes set forth in 373.101
the uwaters.. is established by a preponderance of evidence
(3) The changing wants and constantly at the hearing. The findindgsof fact on which
constantly the action is basedsh-lTbe set fortfein--Sa-
increasing needs of the people of the state "^^_- ..ase....I -
may require the water resources of the state _o_-;-_ L ffi _ce
to be put to beneficial uses to the extent (3) Any water regulatory district created
of which they are most reasonably capable under the authority of this section shall con-
and therefore the .aaste and unreasonable form as nearly as practicable to a hydrologi-
use of water should be prevented and the call controllable area based on ground water
conservation of water should be accomplished. and recharge area with appropriate considera-
(4) The public welfare and interest of ion for surface water.
the people of the state require the proper History.-^, ch. 63-338.
development, wise use, conservation and pro-
tection of water resources together with the
protection of land resources affected thereby. 373.171 Rules and regulations.
.-- 373.171 Rules and regulations.-
(i5)-ncre-a-sinig versionn of surface and (1) In order to obtain the most beneficial
subsurface water in certain parts of the use of the water resources of the state and to
state is exceeding or threatening to ex- protect the public health, safety, and welfare
ceed the natural replenishment of such wa- and the interests of the water users affected,
ters and threatens to exhaust such waters local boards by action not inconsistent with the
or to render them unfit for use by intrusion other provisions of this law and without im-
of salt water, or from other causes. It is to the pairing property rights may:
interest of the citizens of the state to conserve (a) Establish rules, regulations, or orders,
such waters by allocating their use in a fair affecting the use of water as conditions war-
and equitable manner. rant, and forbidding the construction of new
diversion-'facilities' or Rwells;,the inititii n of
"ieW v,'.ter Uses, or the modification of any
existing uses, divei'sion-facilities, or~ storage
facilities within the affected area; .
(b) Regulate the use of water within the
affected area by apportioning, limiting or ro-
eating uses of water, or by preventing those
uses which the local board finds have ceased
373.141 Authorization for capture, storage, to be reasonable or beneficial,
and use of water.-- (c) Make other rules, regulations, and or-
(1) The board is empowered to authorize ders necessary for the preservation of the in-
the capture, storage and use of water of any terests of the public and of affected water
watercourse only in excess of average mini- users.
mum flow at the point of capture; to authorize (2) In promulgating rules and regulations
the capture, storage and use of water of any and issuing orders under this law the local
lake only in excess of the average minimum board shall act with a view to full protection
level; to authorize the capture, storage and of the existing rights to water in this state in-
use of ground water only in excess of the mean sofar as is consistent with the purpose of this
low level at the point of capture, except in law.
those instances where hydrologic studies indi- (3) No rule, regulation or order shall re-
cate that lowering the ground water level be- quire any modification of existing use or dis-
low the mean low level at the point of capture position of water in the district unless it is
will not be detrimental to the water resources shown that the use or disposition proposed to
of the state or cause irreparable damage to be modified is detrimental to other water users
other users, and to authorize the diversion of or to the water resources of the state.'
such waters beyond riparian or overlying land; -(4) ..No rule or regulation, other thafi-a rule
provided that such capture, storage, use or di- or regulation relating solely to the internal
version of water from a surface or ground wa- management of any such board, and no order
ter source will not interfere with the reason- shall be adopted, promulgated, issued, amend-
able uses existing at the time of the beginning ed, or repealed except after a public hearing
of the capture, storage, use or diversion, pursuant to notice as provided in 373.151.
(2) The board may authorize the govern- No rule or regulation shall be adopted, issued,
ing body of any legally constituted district con- amended or repealed unless a need for such
cerned with the management of water to per- action is shown by a preponderance of the evi-
form within the boundaries of said district any dence presented at the public hearing.
of the activities which the board is empowered (5) All rules and regulations adopted by
to perform by subsection (1) of this section, the local board shall be filed with the secre-
.Istory.-58, ch. 57-380; |3, ch. 63-336; (1) 2. ch. 65-409. tary of state as provided in part 1, chapter
120. An information copy will be filed with the
division of water resources.
"" ...... "' ', -pn- t?. ch. 63-336.