Title: Memorandum In Support of Defendants' Motion To Strike
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00051921/00001
 Material Information
Title: Memorandum In Support of Defendants' Motion To Strike
Alternate Title: Memorandum In Support of Defendants' Motion To Strike, To Dismiss For Lack of Jurisdiction Over The Person And To Strike The Petition As Concerns The Northwest Hillsborough Basin Board
Physical Description: 5p.
Language: English
Spatial Coverage: North America -- United States of America -- Florida
General Note: Box 4, Folder 1 ( SF BASIN BOARD CONCEPT ), Item 5
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: UF00051921
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


The County Commission of Hardee County, )
The County Commission of DeSoto County, )
The County Commission of Hernando County, )
The Northwest Hillsborough Basin Board, )
Florida Citrus Mutual, William R. McMullen, ) Case No. 84-573-CA-01
Gail Parsons, Stanton L. Reese, Patricia R. ) Division: A
Pieper, John E. Sargeant, Charles O. )
Kuharske, Allen K. Stone, Jean Perchalski, )
Charles E. Booth, Charles H. Martin, James )
Lloyd Ryals, Berryman T. Longino and )
Derrill McAteer, )
Plaintiffs )

Gary W. Kuhl, as Executive Director of the )
Southwest Florida Water Management District, )
and the Governing Board of the Southwest )
Florida Water Management District, ) .

Defendants. )


The Northwest Hillsborough Basin Board of the Southwest Florida Water

Management District does not have the capacity to sue.

S.--. fe determ ine whether basin boards of w ater m anagem ent districts have the

capa ityto bring suit in their own right it is necessary to examine the scheme

established by Chapter 373, Florida Statutes, for the management of the waters of the

'. state. By statute and delegation from the Department of Environmental Regulation the

governing boards of water management districts have been given the responsibility of

conserving, protecting, managing and controlling the waters of the state. To accomplish

these tasks the district governing boards have been given, by statute, express,

comprehensive and detailed authority.

For example, the governing boards are authorized by Section 373.083, Florida

Statutes (1983) to contract with other entities, to sue and be sued and issue orders to

f implement and enforce Chapter 373. Section 373.139 (1983) authorizes the governing

boards to acquire interest in real property. Section 373.093 (1983) empowers the

governing boards of the district to lease land or interest therein. The district boards may

invest funds (Section 373.556 (1983)) and issue bonds (Section 373.563 (1983)).

Additionally, the district governing boards have been given board authority and power

generally to fulfill their purpose (Sections 373.103(6), (1983)).

Ptn;,' 1 o-~f r_______

One of those expressed powers is the authority to sue and be sued. That authority

is set out in Subsection 373.083(1), (1983), which states:

373.083 General powers and duties of the governing board In addition to

other powers and duties allowed it by law, the governing board is authorized


(1) Contract with public agencies, private corporations or other persons;

sue and be sued; and appoint and remove agents and employees, including

specialists and consultants, (emphasis added)

(2) ...

(3) ...

SThere is no statu ory authority granting the basin boards pow er to ue.

Section 373.0693 (1983) creates certain basins and authorizes the governing boards

to divide its respective district into other subdistricts or basins. It is only reasonable to

conclude that these basins and basin boards were designed to facilitate the work and

responsibilities of the governing board. It is doubtful that the drafters of the Water

Resources Act of 1972, as subsequently amended, intended that these subunits of the

district should be allowed to impede or thwart the duties and powers of the governing

board. Such would be the case if each basin could institute suits to enforce its own water

policies and interpretations of the law against the governing boards, citizens, and other

basins. The waters of the state form an integrated and complex system. It is essential

to the accomplishment of the conservation, protection, management and control of the

state's waters that any policies, rules, regulations, etc. issued and legal actions taken

eminate from one source. This is necessary to avoid fragmenting the District-wide

approach to water management embodied in Chapter 373.

The only statutory provisions which can be construed as granting the basin boards

any powers are Sections 373.0695 and 373.0697, (1983). Subsection 373.0695(1) states:
373.0695 Duties of basin boards; authorized expenditures.-

(1) The various boards shall be responsible for discharging the following

described functions in their respective basins:

(a) The preparation of engineering plans for development of the water

resources of the basin and the conduct of public hearings on such plans.

(b) The development and preparation of overall basin plan of secondary water

control facilities for the guidance of subdrainage districts and private land

owners in the development of their respective systems of water control

which will be connected to the primary works of the basin to complement

the engineering plan of primary wnrs for the basin.

Page 2 of 5

(c) The preparation of the annual budget for the basin and the submission of

such budget to the governing board of the district for inclusion in the

district budget.

(d) The consideration and prior approval of final construction plans of the

districts for works to be constructed in the basin.

(e) The administration of the affairs of the basin.

(f) Planning for and, upon request by a county, municipality, or regional

water supply authority, providing water supply and transmission facilities

for the purpose of assisting such counties, municipalities and regional

water supply authorities within or serving the basin.

Subsection 373.0697 states:

373.0697 Basin taxes.--The respective basins may, pursuant to s. 9(b), Art. Vn

of the State Constitution, by resolution request the governing board of the

district to levy ad valorem taxes within such Pbasin. Upon receipt of such

request, a basin tax levy shall be made by the governing board of the district

to finance basin functions enumerated in s. 373.0695, notwithstanding the

provisions of any other general or special law to the contrary, and subject to

the provisions of s. 373.503(3).

SA principal of statutory interpretation is that w here a statute im poses a duty, it
J also confers by implication, the powers and reasonable means necessary for the

Perform ance of the duties. D eltona C corporation v. Florida Public Service C om m mission,
S20 So.2d 905 (Fla. 1969).

% The power to sue the Executive Director or Governing Board of the Southwest

SFlorida Water Management District' is not a power or means necessary to carry out the

asin board functions which are essentially planning and administrative activities.

In the case of the authority to request the governing boards of water management

districts and the duty of the governing boards to levy the tax if so requested the power to

sue is not a necessary or reasonable means to accomplish these actions. Basin boards do

not need the capacity to sue to request the governing board to levy a tax. The capacity

to sue to compel the levy of the tax once requested is not a necessary or reasonable

means where those adversely affected by a refusal do have the capacity to sue the

Governing Board. For example, a person adversely affected by the failure to levy the

taxes, is one who is flooded because of the lack of funds to maintain a water control


D o.-^lrr C rsf? ...______-- ___

The extent of implied powers is limited by a maxim of statutory construction which

is that the mention of one thing implies the exclusion of another. Dobbs v. Sea Island

Hotel, 56 So2d 341 (Fla. 1952).
There are three sections in Chapter 373, concerning basin boards. These Sections

are 373.0693, 373.0695 and 373.0697. Sections 373.0695 and 373.0697 were discussed

above. Section 373.0693 (1983) concerns creation of basin boards and the membership


Section 373.129 (1983) does authorize the commencement and maintenance of

actions and proceedings in court but this section cannot be construed as giving the basin

boards express legal capacity. That section authorizes the Department of Environmental

Regulation, the governing boards of any water management district, and any local board

to commence and maintain proper and necessary actions in proceedings in court:

(1) To enforce rules, regulations and orders adopted or issued pursuant to this


(2) To enjoin or abate violations of the provisions of this law or rules,

regulations and orders adopted pursuant thereto.

(3) To protect and preserve the water resources of the state.

(4) To defend all actions and proceedings. .

Basin boards are not local boards as set forth in this statute. The term 'local

boards" when added to the "Water Resources Law" in 1963 was specifically defined to

mean the governing board of any water regulatory district created under Chapter 63-336,

Laws of Florida. See Sections 373.221, 373.081, 373.071 (1965). When the Water

SResources Act of 1972 was enacted, (and codified in Chapter 373) it preserved any such

t water regulatory districts. See Sections 373.249 and 373.339 (1983). The Southwest

Florida Water Regulatory District was created pursuant to chapter 63-336. That District/

is still in existence and continues to regulate water wells in its district. However, the

entire definition section, including the definition of "local boards", was repealed. See s.

1 Part IV ch. 72-299, Laws of Florida. At the same time it was replaced by a new
/ definition section which was silent on "local boards". Basins as created by the Water

Resources Act were never included in the definition of local board. The local boards

S granted authority to maintain suits under Seeti-. 373.129 are only governing boards of
water regulatory districts. The inclusion, then, in Chapter 373 as it now exists, of very

limited and defined powers and duties of the basins implies the exclusion of all others.

Because of statutory mandates and DER delegations the water conservation,

protection, management and control system under Chapter 373 relies almost exclusively

on the water management districts for implementation. The governing boards have been

\ / pE^ 4 of 5

given express and broad statutory powers to fulfill the purposes of the districts. In

absence of such specific grants of authority, particularly the power to sue, basin boards

may not sue or be sued.

Respectful sub mted,

2379 Broad Street
Brooksville, Florida 33512-9712
(904) 796-7211

:. '

University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs