Title: Opiinion File 70-48 thru 70-53
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Permanent Link: http://ufdc.ufl.edu/WL00003304/00001
 Material Information
Title: Opiinion File 70-48 thru 70-53
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opiinion File 70-48 thru 70-53
General Note: Box 14, Folder 2 ( Opinion File 1961-1971 - 1961-1971 ), Item 92
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003304
Volume ID: VID00001
Source Institution: Levin College of Law, 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




WME-MO ," June 8, 1970

- From: JPS
To: MGG W refe b

Re: Power of SWFWMD to drain Lake Apopka for poru iuon
control purposes.

SWFWMD was created, as you already know, for the purpo e defined
in Chapter 378, Florida Statutes, as a public corporate on, for
carrying out and effectuating the provisions of Chapte 378. The
District operates under and is governed by the provisions of
Chapter 378.

Florida Statutes 378.01 Creation of flood control district

Any contiguous body of land in this state may be created into
a district for the following purposes:
(1)
(2)
(3)
(4) To have general control and su.-1:vision over canals,
lakes, rivers, ditches, channels, reservoirs, streans or other
bodies of water which are owned, maintained or whic:i are a
work of the district, insofar as the quality of the water may
affect the public health, welfare, safety and utility of said
bodies of water.

It looks at first glance, then, that SWF'iMD does indeed have the
power to combat water pollution. However, Section 10 of the Act
that creates SWFWMD states that "By reason of the creation of
the SWFWMD by this chapter (61-691), the provisions of chapter
378, Florida Statutes, with reference to the creation of such
a district are not applicable." Therefore, Chapter 37B.01,
which deals with the creation of a district, and which also
grants the power to control the quality of water, does not apply
to SWFWMVD, and it has no pollution control authority. Mr. Blain
has informed me that he drafted a bill to give the district the
power to control water quality, but the bill did not become law
during this past Legislative Session.

So it looks like we must hang our hat on something else. That
something else is Chapter 403, Florida Statites, which sets up
the Florida Air and Water Pollution Control Coimission. Chapter
103 states:
The commission shall have the power and the duty to control
and prohibit pollution of air and water in accordance with
the law and rules and regulations adopted and promulgated
/ f by it,'and for this purpose to:
'7 -' (3) Utilize the facilities and personnel of other state
agencies, including the State Board of Health, and delegate
to any such agency any duties and functions as the commission
( may deem necessary to carry out the purposes of this act.
(26) Perform any other act necessary to control and prohibit
air and water pollution, and to delegate any of its rcs-









ponsibilities, authority and powers, other than rule-m king powers,
to the director or any state agency now or hereinafter estab-
(4 lished.


Chapter 403.081 Performance by other state agencies
All state agencies, including the State Board of E
shall be available to the commission to perform, ,
direction, the duties required of the commission i
this act.

After talking it over with Mr. Blain, we reached the c(
tha-if the SWFW.MD obtained a directive idth-e Pollui
Control Commission,-that-is, if it were ordered by the
to perform this act (lower the water level) in furthers
carrying out its power of pollution control, then neiti
District nor any of its members would be liable for pei
an act outside the scope of their authority.

The problem now, of course, is to establish that the S'
"public corporation," is a state agency, so that it ma,
by the Pollution Control Commission to perform such an
there is very good evidence following that it can be c(
a state agency:

1. A 1962 Attorney General Opinion, 062-15, states th.
SWF WMD is a public agency within the Florida state
officers retirement system, so that its officers a
yees are within the purview of that retirement sys

2. The Water Resources Development Account was create,
general revenue fund of the state, to provide assi;
water management districts (378.03).

3. Florida Statutes, Chapter 120, the Administrative
Act, and in particular 120.021(1), states that "Ag
any state board, commission, department or officer
by law to make rules...." Notice that SWFWMD has
such rules, which are found in the Official Compil
Rules and Regulations of the State of Florida, and
filed with the Secretary of State.


health ,
.t its
under


inclusion
ion
Commission
since of
Ler the
,forming


IFWMD, a
r be directed
act, and
)nsidered


xt the
and count-y
id emplo-
;em.

I in the
stance to


Procedure
3ncy means
authorized
indeed made
nation,
have been


By analogy, Chanter 601.05 establishes the Florida Citrus
Commission as a "body corporate'' State ox rl,. Arthur Kudner,
Inc., et al. v. Lee, 7 So.Pd 110, states that the legislature
established the Citrus Commission as a state agency. Notice
that in that case the statute did not even go so far as to
designate the Commission a "public corporation" as is true
of SWF'1ID.


G. Again, by way of analogy, a very old case (1919, a
been overruled as to this noint) says that the Boo
missioners of the "verr" ales Drainare IDistrict is
quast-corporation and, as such, a governmental ap
state. 8 So. 346


nd has never)
rd of Com-
a public
ency of the








Even though the determination has here been made that SWFWMD is
a state agency and as such may be ordered by the Pollution Control
r Commission, the question of liability still lingers. Suffice it
to say that neither the District nor its members nor the Pollution
Control Commission or its members can be held liable for acts
performed within the scope of their authority. Liab lity exists
on the part of an individual member only when he exc eds the
authority granted him.
CONCLUSION

Although the SWFWMD has no power of its own to contr 1 pollution,
the Pollution Control Commission can order it to carry out the
purposes for which the Commission has been established. It is
then the legal duty of the SWFWMD to carry out the d rective of
the Commission. It is very important that the SW first
obtain a directive from the Commission.

No liability exists on the part of any individual member unless
and until he exceeds his authority.











SHonorable Nat Reed, Chairman
Department of Air and Water
Pollution Control
Tallahassee, Florida

Re: Lake Apopka Rehabilitation

Dear Mr. Reeds

Receipt is acknowledged of Mr. Patton's letter of

requesting that the Southwest Florida Water Management District take

the necessary steps to draw down the water levels of Lake Apopka to

approximately elevation 64 feet m.s.l. by operation of the Apopka-

Beauclaire control structure.

This letter is written on behalf, and pursuant to the direction

of, the Oklawaha River Basin Board and the Governing Board of the

Southwest Florida Water Management District.

First, we wish to acknowledge the feeling of both Boards that

they are very much interested in cooperating with you in this pro-

ject, as well as any other water quality control projects throughout

the District.

We have been advised by our attorney that the laws under which

the Southwest Florida Water Management District was created do not

specifically authorize the lowering of this lake or any other lake

in the District for the purpose of water quality control; therefore,

any action for the purpose of water quality con our part would be

beyond the legal authority of the District.


__











Our attorney has advised .us that, pursuant to Chapter 403,

Florida Statutes, tte Southwest Florida Water Manageme t District

is an agency of the State of Florida for carrying out the directives

of the Department of Air and Water Pollution Control, and that

the Department may utilize the facilities and personnel of the

Southwest Florida Water Management District and delegate to the

Southwest Florida Water Management District any duties and functions

as the Department may deem necessary to carry out the purposes of

said act. Chapter 403 further provides that all State agencies

shall be available to the Department to perform, at its direction,

the duties required of the Department under Chapter 403.

In order for us to lower Lake Apopka for water quality con-

trol, we must have an order from the Department, directing the

District to perform the act of lowering the water level and an

indemnity and save harmless agreement from the Department for any

damages that may be claimed by any third parties because of said

lowering.

In addition, we wish to request, on behalf of the Board of

Governors of the Southwest Florida Water Management District,

that the Department hold a public hearing in the local area prior

to issuing its directive to the District, even though this may

not be required as a matter of law. We feel that such a


-2-












public hearing would give an opportunity to all interested

parties to bring to your attention all of the problem s which

may arise as a result of the lowering of said lake.

Sincerely,



Dale Twachtmann, Executive Director



cc: Honorable Vince Patton,
Executive Director




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