Title: Blain, L. M. "Buddy" "Authority Over Water Management Districts Under Section 373.026 (7), Florida Statutes." 6p.
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Title: Blain, L. M. "Buddy" "Authority Over Water Management Districts Under Section 373.026 (7), Florida Statutes." 6p.
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Finally, it is significant that Section 11 of 75-22 gives

the Secretary of the Department of Environmental Regulation the

right to initiate a review of water management district rules and

orders by the Governor and Cabinet. If the Secretary had the

concurrent power to review such rules and orders, there would be

no reason to provide him with a vehicle to initiate such a review

by the Land and Water Adjudicatory Commission.












CL1WMD.DOC








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Although Section 373.026(7) speaks of policies, rules,

regulations, and orders, "policies" and "regulations" are

includable within the definition of rule under the Administrative

Procedure Act. Section 120.52(14) Florida Statutes.



Therefore, the only powers under Section 373.026(7) which

are retained by the Secretary of the Department of Environmental

Regulation are the power to exercise general supervisory

authority over all water management districts and the power to

exercise any power herein authorized to be exercised by water

management districts.



As to aclaim that the Secretary may have concurrent power

with the Land and Water Adjudicatory Commission to review,

rescind or modify the rules or orders of water management

districts, such interpretation is not plausable in view of the

fact that the term "exclusive power" is used in Section 11 of

Chapter 75-22, Laws of Florida. The term "exclusive power" makes

that part of Section 11 inconsistent with Section 373.026(7).

The law with respect to inconsistent statutes is that any

inconsistency between two laws should be resolved in favor of the

last expression of the legislative will. Cable-Vision, Inc. v.

Freeman, 324 So.2d 149 (Fla. App., 1975). Therefore, the Florida

Environmental Reorganization Act of 1975 would control any

inconsistent language in Section 373.026(7).








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and Water Adjudicatory Commission,
shall have the exclusive power by vote of
four of the members, to review, and may
rescind or modify any rule or order of a
water management district, except those rules
which involve only the internal management of
the water management district, to ensure
compliance with the provisions and purposes
of Chapter 373, Florida Statutes. Such
review may be initiated at any time by the
Governor and Cabinet, by the Secretary, by
the Environmental Regulation Commission, or
by an interested party aggrieved by such rule
or order, by filing a request for such review
with the Land and Water Adjudicatory
Commission and serving a copy on the water
management district." (Emphasis added).

Looking at the above language in light of Section 373.026,

the powers of the Department of Natural Resources over water

management districts under Section 373.026 are transferred to the

Department of Environmental Regulation. However, at the same

instant, the Governor and Cabinet, now sitting as the Land and

Water Adjudicatory Commission, retain power over the water

management districts and are specifically given the exclusive

power to review, rescind or modify any rules or orders of water

management districts notwithstanding the provisions of Section

373.026(7). In other words, it may be argued that the

Legislature intended that all of the powers that were vested in

the Department of Natural Resources under Section 373.026 over

water management districts should be transferred to the

Department of Environmental Regulation, except the power to

review, rescind or modify rules and orders of water management

districts, which power was to be vested exclusively in the

Governor and Cabinet.








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(7) to exercise general supervisory authority
over all water management districts....the
Department shall review, and may rescind,
modify, or approve, any policy, rule,
regulation, or order of a water management
district, except those policies, rules, or
regulations which involve only the internal
management of the district, to insure
compliance with the provisions and purposes
of this Chapter." Section 373.026(7), 1972
Supplement to Florida Statutes (1971).

In 1975, the Legislature passed the Florida Environmental

Reorganization Act of 1975. That Act, Chapter 75-22, provided in

Section 2 as part of the Declaration of Policy that,



"It is the intent of the Legislature to
promote the efficient, effective and
economical operation of certain environmental
agencies by centralizing authority over and
pinpointing responsibility for the management
of the environment, by authorizing the
delegation of substantial decision-making
authority to the district level, and by
consolidating comparable administrative,
planning, permitting, enforcement and
operational activities." (Emphasis added).

This act merged environmentally oriented parts of several state

agencies into a new state department to be called the Department

of Environmental Regulation. Section 11 of the Florida

Environmental Reorganization Act of 1975 provides,



"All powers, duties and functions of the
Department of Natural Resources relating to
water management as set forth in Chapter 373,
Florida Statutes, and Chapter 74-114, Laws of
Florida, are transferred by Type 4 transfer,
as defined in Section 20.06(4), Florida
Statutes to the Department....and provided
further that, notwithstanding the provisions
of Section 373.026(7), Florida Statutes,
the Governor and Cabinet, sitting as the Land








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The effective date of the above language was October 1,

1974. However, at that time, the above bracketed language was

"Division of Interior Resources of the Department of Natural

Resources." Therefore, originally, the above stated powers over

water management districts were exercised by the Governor and

Cabinet sitting as head of the Department of Natural Resorces.

Section 20.25(1), Florida Statutes (1973).



Up until 1972 the law required any water management district

to submit its policies, rules and regulations to the Division of

Interior Resources of the Department of Natural Resources "for

review and approval." Section 378.06, Florida Statutes (1971).



This provision was repealed by the Water Resorces Act of

1972 and replaced by provisions set forth in Section 373.026(7),

Florida Statutes which provided that the "Division of Interior

Resources of the Department of Natural Resources should be

responsible for the administration of the water resources law at

the state level.



It further provided that in "addition to its other powers

and duties, the Department (of Natural Resources) is authorized:














Authority Over Water Management Districts
Under Section 373.026(7), Florida Statutes


L. M. Buddy Blain



Section 20.261(1), Florida Statutes, provides that the head

of the Department of Environmental Regulation is the Secretary of

Environmental Regulation, who shall be appointed by the Governor

subject to confirmation by the Senate. Since the Secretary is

the head of the Department of Environmental Regulation, he is

vested with the powers of that department.



Section 373.026, Florida Statutes, provides,

"The (Department of Environmental Regulation) or
its successor agency, shall be responsible for the
administration of this Chapter at the State level.
However, the Department may enter into inter-
agency agreements with any other State Agency
conducting programs related to or materially
affecting the water resources of the State. All
such inter-agency agreements shall be subject to
the provisions of Section 373.046. In addition to
its other powers and duties, the Department is
authorized:

(7) To exercise general suppervisory authority
over all water management districts. The
Department may exercise any power herein
authorized to be exercised by water
management districts. The Department shall
review, and may rescind or modify, any
policy, rule, regulation, or order of a water
management district, except those policies,
rules, or regulations which involve only the
internal management of the district, to
ensure compliance with the provisions and the
purposes of this Chapter."





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