Title: Hearing to Determine Necessity for Establishment of a Water Regulatory District.
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 Material Information
Title: Hearing to Determine Necessity for Establishment of a Water Regulatory District.
Alternate Title: SWFWMD. IN RE: Public Hearing for Purpose of Determining Necessity for Establishment of a Water Regulatory District. Brief of Florida Phosphate Council, by Chesterfield H. Smith and John R. Lawson, Jr.
Physical Description: 7p.
Language: English
Publication Date: Oct. 22, 1968
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
General Note: Box 3, Folder 2 ( SWFWMD (R) HISTORY - LAWS, RULES FIRST ORDERS - B3F2 ), Item 64
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: UF00051375
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







SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
BROOKSVILLE, FLORIDA





IN RE: PUBLIC HEARING FOR PURPOSE OF
DETERMTNTNG NECESSITY FOR
ESTABLISHMENT OF A WATER
REGULATORY TT STRICT










BRIEF OF FLORIDA PHOSPHATE COUNCIL











Che.terfield H. Smith
John R. Lawson, Jr.
of
Holland & Knight
P. O. Box 1288
Tampa, Florida 33601
Attorneys for
Florida Phosphate Council












INTRODUCTION



Pursuant to the Notice given by the Executive Director

of the District on September 24, 1968, the Florida Phosphate

Council files its Brief discussing the testimony presented

at the hearing held by the Governing Board of the District

on August 30, 1968, concerning the question of the necessity

for establishment of a Water Regulatory District, as defined

by Section 373.081(5).

Preliminary to the discussion, certain matters should

be noted. First, this Brief is filed solely on behalf of

the Florida Phosphate Council, Inc., as a trade association

and not on behalf of the Council's member companies. Second,

in accordance with the ruling of the Board of Governors

(Transcript 371-372), this Brief will go into detail only

on the bearing of the testimony on the issue of the necessity

of the creation of a Water Regulatory District. The Brief

therefore will not dwell upon other considerations under-

lying the matter (primarily legal questions) which must be

resolved, such as:

A. Whether or not the Southwest Florida Water Manage-

ment District in Florida, created by Chapter 61-691, Laws

of Florida, Acts of 1961, is operating under the authority

of Chapter 378, Florida Statutes, within the meaning of

Section 373.081(4), Florida Statutes

B. Whether or not the hearing was properly instituted










under Section 373.142(1), Florida Statutes, insofar as the

hearing relates to creation of a Water Regulatory District

coextensive with the bounds of Southwest Florida Water Manage-

ment District

C. Whether or not a Water Regulatory District coex-

tensive with the bounds of Southwest Florida Water Manage-

ment District would conform as nearly as practicable to a

hydrologically controllable area as delineated by Section

373.142(3), Florida Statutes

D. Whether or not the provisions of Section 378.13(3),

Florida Statutes, requiring Senate approval of Appointees of

the Governor to Governing Boards of Districts contravenes the

provisions of Article III, Section 27, of the Florida Con-

stitution, and thus, whether or not Chapter 378, Florida

Statutes is constitutional .

E. Whether or not Chapter 61-691, Laws of Florida,

Acts of 1961, contravenes Section 20 of Article III of the

Florida Constitution, or was enacted in accordance with the

provisions of Section 21 of Article III of the Florida

Constitution

POINT

THE EVIDENCE INDICATES A NEED FOR THE LARGEST
POSSIBLE WATER REGULATORY DISTRICT TO COORDI-
NATE MAXIMUM (I) BENEFICIAL UTILIZATION, (2)
DEVELOPMENT, AND (3) CONSERVATION OF FLORIDA'S
WATER RESOURCES,

DISCUSSION

The Legislature stated in Section 373.072, Florida

Statutes, that the rapid growth of population, agriculture,

industry and the other economic activities of the State, requires

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action regarding .he water resources of the .4ate. Section

373.131(1) sets forth the triple objective of obtaining

maximum (1) beneficial utilization, (2) development and

(3) conservation of the water resources of Florida.

It is the position of the Florida Phosphate Council,

as pointed out by the testimony of Mr. Homer Hooks, Executive

Director of the Council, in this proceeding (Transcript

301-302), that there has been a fluctuation in approaches and

action regarding Florida's water resources. This fluctu-

ation has resulted in a dichotomy in regulation similar to

a pendulum swinging between flood control on the one hand

and restriction of use on the other hand. Flood control has

been concerned only with disposing of the water and there-

fore has frustrated "conservation" of the water, while re-

striction of use has been concerned only with limitation

of use of water and therefore has frustrated "beneficial

use" of the water.

The result of these swings of the pendulum is that the

third goal of "development" has been neglected or ignored.

The testimony of Mr. Hooks about the need for development

of the water resources because of the prospective growth of

all segments and areas of the state (Transcript 302-303,305)

is unrebutted in the record. This testimony on behalf of the

Phosphate Council also supports and corrobrates the findings

of the Legislature in Section 373.072, Florida Statutes, to

the effect that the growth of the State is the compelling

reason for creation of Water Regulatory Districts.


3









It is noteworthy in considering this historical neglect

of the development of water resources to remember that the

authorizing statute (Transcript 307), Section 373.101, Florida

Statutes, requires a respect for existing water rights which

makes mere regulation of use either impossible or burdensome.

With this point in mind, it becomes clear that while all three

approaches (conservation, beneficial use and development) are

desirable, the most salutory long range action would appear

to be the development of water resources.

The sound development of water resources could lead to

lessening or eliminating the need for restriction on use

(Transcript 303) and at the same time afford beneficial

diversion of water which could otherwise pose a flood threat

(Transcript 302).

This is not to say that reasonable control of use is

not now necessary or that water is not now in deduced supply

(Transcript 304). This also does not mean that no flood

control is now necessary (Transcript 302). It does mean that

the real need is for a simultaneous three pronged attack on

the water problem coordinated to achieve all the objectives

of Section 373.131(1) via, maximum (a) beneficial utilization

(b) development and (c) conservation, with long range emphasis

to be placed on development.

At the hearing the testimony of the Council was that it

was neither for nor against a District, but needed more facts

(Transcript 308). Since the hearing, the entire transcript and

all the pertinent documentary evidence (over 70 documentary

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exhibits were introduced) have been carefully sifted for

salient facts.

The underlying thought behind this sifting and evalu-

ating of the transcript and exhibits was the point made by

all of Mr. Hooks' testimony (Transcript 300-315) that there

is a problem. The question vwa therefore how to deal with

the problem.

The evidence reveals the following situation: Mr. Cason

of Hillsborough County (Transcript 21) (a) the Hilleborough

area has a problem and a statute with inherent limitations

to deal with the problem, (b) ground water doesn't recognize

county lines; Dr. Vernon, Director Division of Geology, Florida

Board of Conservation (Transcript 77) several counties are

involved including Polk County; M.L. Brashears, Consulting

Engineer, (Transcript 102) large land areas are involved; and

Pasco County Resolution (Transcript 298) lack of regulation

will pit county against county and area against area,


CONCLUSION


The Florida Phosphate Council submits that the testimony

shows that the best device to properly attack the water problem

of Florida is a Water Regulatory District which would be structured

on the order of the provisions of the "Water Resources Law",

Section 373.071-373.241, Florida Statutes and which would cover

as large an area as possible including Polk County. After its

creation, such a Water Regulatory District could then forthwith


5









mount with a soundly financed base and on a wide geographical

area the sorely needed three dimensioned attack on Florida's

water problems.

Respectfully submitted,




Chesterfield H. Smith






John R, Lawvon, Jr.

Holland & Knight
Attorneys for
Florida Phosphate Council



CERTIFICATE OF SERVICE


I hereby certify thaI hb cify ha have served a copy of the

foregoing Brief on Myron G. Gibbons, Esquire, 606 Madison

Avenue, Tampa, Florida, Attorney for Southwest Water anage-

amet Di et, by U.S. mail, prepaid on this a day of

SOn the year Nineteen Hundred Sixty-Eight.




John R. Lawson, Jr,










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