IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT
IN AND FOR HERNANDO COUNTY, FLORIDA
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, )
Gary W. Kuhl, as Executive Director of the )
Southwest Florida Water Management District, )
and the Governing Board of the Southwest )
Florida Water Management District, ) .
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
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)).
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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)
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.
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(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
(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
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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,
STEHEN A. WALKER, GENERAL COUNSEL
SOUTHWEST FLORIDA WATER
2379 Broad Street
Brooksville, Florida 33512-9712