Title: Enforcement of "Works of the District"
Full Citation
Permanent Link: http://ufdc.ufl.edu/UF00052638/00001
 Material Information
Title: Enforcement of "Works of the District"
Alternate Title: Letter from SWFWMD to L. M. Blain regarding Enforcement of "Works of the District" and requesting assurance that the District is on sound, legal footing, particularly as it relates to permits. Dec. 22, 1978, with attached Memorandum regarding Expression o
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
General Note: Box 5, Folder 11 ( SF MEAN ANNUAL FLOOD ), Item 2
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: UF00052638
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

E s southwest Florida E
: #Water Mianagemnent Distri 2 61978
PHONE (904) 796-7211
G. DERRILL McATEER, Chairman, Brooksville N. BROOKS JOHNS, Lakeland HELEN THOMPSON, St Petersburg
THOMAS VAN DER VEER, Secretary, Yankeetown NICK PENDER, Tampa
S. C. BEXLEY, Treasurer, Land O'Lakes GEORGE RUPPEL, Clearwater Donald R. Feaster, Executive Director

December 22, 1978

L. M. Blain, Esquire
Blain & Cone, P.A.
Post Office Box 399
Tampa, Florida 33601

RE: Enforcement of "Works of the District"

Dear Buddy:

At the meeting of the Northwest Hillsborough Basin Board yesterday, the
Board directed the staff to enforce its permitting jurisdiction regarding
"Works of the District" to the maximum legal limit. The Board further
directed that we contact Board Counsel for an assurance that our current
direction is on sound, legal footing.

Currently there are three proposed sub-divisions in the Northwest
Hillsborough Basin Cypress Bend and Ramblewood in the Brooker Creek
Watershed and Sarval in the Anclote Watershed. None of the three have
applied for a permit, however, we have had discussions with representatives
for all three developments advising them that permits will be required
for any work within the mean annual flood plain of the "Work".

Enclosed are maps of the three proposed developments and I would appreciate
receiving your opinion and advice regarding our current direction towards
enforcing permits.

Sincerely yours,

Executive Director


cc: Northwest Hillsborough Basin Board
D. S. McAteer
J. B. Butler
B. R. Laseter
J. E. Curren

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July 5, 1977




1E: Expression of Concern regarding Proposxx "Declared" Works
of the District

I had loped for the opportunity to first discuss with you the matter contained
in this recno, but we haven't been able to get together long enough. I have
tried to find justification for the direction that the District has taken and
have had general discussions with several niibers of the staff who have been
with the District since before 1972. I have discussed this natter fully with
Jay T. Ahxrn, and I must say that he does not agree with iry interpretation.
Ie;over, I am sure that he will understand that I have a responsibility, after
considering all arguments, to state my opinion, especially on the natter that
is the very foundation of the District's statutory authority.

I am very concerned about the proposed rule changes regarding works s of the
District." The intent is to "declare" all the listed surface waters "Wrks
of the District."

"Work of the District" is defined in Rule 16J-1.002(2) as "any lake or other
iqiamxl ment, or stream or other watercourse, control structure, or other facility,
cmed and maintained by the District or adopted by the Governing Board as a "'Wrk
of the District."

lie controlling words are omed and maintained, and adopted. We have no trouble
with defining the term awned and maintainxxl, so we only need to define the term
"adopted." I believe we are bound by a definition, derived front fRule 16J-1.01(1).
Thet Rule substitutes the phrase "lha accepted responsibility for" for the wrd
adopted. I further am of the opinion that since owned and maintained is con-
junctive, we must interpret the phrase "or adopted" to include the conjunctive
correlative of "and maintained."

The District has no authority to merely "declare" a lake or stream a work of the
District, it must "adopt" with the intention to accept responsibility for each
lake or stream selected. I seriously question the intention of the District in
this regard.

Works of the District relate to old Chapter 378, Flood Control Pcrs and were not
in old 373 regulatory. ie old 378 jurisdiction was carried forward in 1972 to
373, but without change in purpose. This purpose relates to construction, operation
and maintenance of works and full control over the works. We presently have such
full control over existing "',orks" un3er our Iule C(hapter 16J-l. I am concerned
that we may seriously affect this control by att-npting to extend our control to
other "works" which we do not intend to operate or maintain.

J. B. Butler
July 5, 1977

Page Two

Lxak at tle question just regarding lake levels. The CGoverin Board could adopt
a lake as a work and accept responsibility for water levels. Under 373.130(4) it
wouldd then determine, establish, and control the levels to be maintained and
maintain such levels by structures. However, if the Governing Board does not intend
to "accept responsibility for" these lakes to that extent, then it should not
"adopt" such lake as a work.

Ihe Governing I3xd may (s all) under Section 373.042(2) establish Minirmumn water
Levels of all surface waters in the District. The Governing Eoard has i:ilernnted
this Section of 373 by adoption of Rule 16J-0.15. These 373 levels are for 373
Parts II, III and IV purposes as well as other general purposes.

The .042(2) Levels are the levels at which further withdrawals would be
significantly harmful to the water resources. these are the levels we should
be most concerned with. V don't assume responsibility for maintaining them,
but regardless of the reason for the decline, we may require CUP cutbacks and
other regulatory responses.

The .042(2) appro*t may be takeione lake or several lakes at a tine by rule
adoption of minixrnm levels. It is these levels that relate to CUP stipulations
regarding setting of lake levels and each CUP penriittee would be bound by such
ninWrun level.

If further regulatory jurisdiction over these lakes is desired, then 373 Part IV
is the proper authorization for rules. I feel that by revision of our 16J-4 rule
w could regulate most "works" activities in connection with all surface waters
in the District. t1- have severely limited our 373 authority inthe-se regards by
the limitations in our rules ir.lcrlenting the law.

I feel that the answers to our regulatory prdle-s lie in consideration of rules
under Part IV of 373 (16J-4 of our rules) and not under 16J-1 of our rules.

I would recommend that another look be taken at the basic prerdises upon whidc we
derive our authority, I grant that we Jnust preserve our prior authority in line
with 373.149, but we must recognize that extension of that preserved authority
could place the District in jeopardy and night result in such powers being
specifically revoked or modified.


cc: Jay T. Ahern, Esquire
L. M. Blain, Esquire
David Garerg
Jim Mann

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