r"outhwost FPlrida -7-3r 46
Water Manageomeint Distriot
P. 0. BOX 457 BROOKSVILLE, FLORIDA 33512
DERRILL McATEER, Chairman, Brooksville
S. C. BEXLEY, JR. Vice Chairman, Land O'Lakep
JOHN A. ANDERSON, Treasurer, St. Petersburg
HERMAN BEVILLE, Bushnell
JOB E. HILL, Leesburg
PETER J. NEGRI, Ocala
THOMAS VAN der VEER, Yankeetown
ROBERT E. VAUGHN, Brandon
J. MASON WINES, Lakeland
Donald R. Feaster, Executive Director
September 19, 1973
KEY WOROd: 4 49
Mr. Myron G. Gibbons
Post Office Box 1363
Tampa, Florida 33601
We have been asked the following questions and would appreciate receiving
1. Can Basin Boards appeal rulings of the District Board as it affects
their Basin, the governments therein, or the people therein? If so,
to whom can this appeal be addressed?
2. May Basin funds be used to pay legal fees and other costs for such
appeals if such action is requested by and approved by the Basin
3. May Basin Board
ing District rul
Basin and local
funds be used to assist county governments in appeal-
ings as they affect water management matters of the
Very truly yours,
DONALD R. FEASTER, P.E.
cc: District Governing Board
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MEMO TO: LMB
FROM: T. E. Cone
RE: Southwest Florida Water Management District -,S 71
Basin Board Responsibilities v. District
DATE: October 2, 1973
1. MAY THE BASIN BOARDS APPEAL RULINGS OR ORDERS OF THE DISTRICT
BOARD WITH WHICH THEY DISAGREE?
There is no provision for such appeal per se in the Act which
created the SWFWMD, (ch. 61-691, Laws of Florida, 1961) nor in any
subsequent amendment thereto, including the 1972 Water Resources Act
(ch. 72-299, Laws of Florida) and ch. 73-190, Laws of Florida.
Moreover, the provisions of these laws dealing with the relationship
of the District Board and the various basin boards indicate that the
basin boards are not separate and independent entities but rather
are subordinate and dependent to the District Board. Section 5 of the
original act (ch. 61-691, Laws of Florida) assigned to the District Board
the responsibility for the creation and designation of the various ba-
sins. The District Board was also empowered to change the boundaries
of the basins "to correct inequities or to create new watershed basins...".
These provisions still govern the relation between the District and the
various basins today. (See Section 12(5) of ch. 73-190, Laws of
The District was created as a Public Corporation and charged with
the responsibility of carrying out the provisions of Chapter 378,
Florida Statutes (1 of ch. 61-691 Laws of Florida). The implication
of the remaining sections of ch. 61-691, Laws of Florida, is that the
basins and their boards were established to assist the District and
District Board in their assigned tasks. In only two instances are actions
of the District subject to the prior approval of the basin boards.
Section 6(4) of ch. 61-691, Laws of Florida, provides that final con-
struction plans for District works to be built within the basin must
have the prior approval of the basin board. (See Section 12(11)(d)
of ch. 73-190, Laws of Florida, for parallel provision). Section 8(2)
of ch. 61-691, Laws of Florida provided that the District could not levy
a watershed basin tax within the basin unless and until the annual
budget and the tax levy had been formally approved by the basin board.
(B) Provision has been made in the statutes for the judicial and ad-
ministrative review of orders, rulings, and rules adopted by the District
Section 373.026(7)(1972 Supplement to Florida Statutes) states
"The department (of natural resources) shall review, and
may rescind, modify, or approve, any policy, rule, regu-
( lation, or order of a water management district, except
those policies, rules, or regulations which involve only
the internal management of the district, to insure com-
pliance with the provisions and purposes of this chapter."
(This became effective July 1, 1973)
Presumably the basin board could request the department of natural
resources to review a particular order of the District Board, yet this
is the Department's responsibility anyway.
Also effective July 1, 1973, is Section 373.133, Florida Statutes
r (1972 Supplement), which provides for judicial review of:
(1) all final orders and regulations adopted by the governing
(2) action taken by the governing board on permit applications
under 373.126; and,
(3) declarations of water shortages or emergency under Part II
(of Chapter 373, Florida Statutes).
This review is to be afforded in accordance with Chapter 120 F.S.,
unless otherwise provided for. (See copy of 120.30 331, F.S. at-
tached). It should be pointed out that the terms "affected party",
"rule", "order", are words of art having specific and definite meanings
within the context of Part III of Chapter 120, Florida Statutes.
It is difficult to determine whether or not a basin board may use
Part III of Chapter 120, F.S. to contest a decision of the District
Board. As was pointed out in part (A) above, basin boards are sub-
ordinate and dependent to the District. Thus, it is arguable that
they may not be an "affected party" so as to fall within 120.30(1),
F.S., and be permitted to attack District Rules. (See Polar Ice Cream
Co v. Andrews (1962) at 146 So2d 609, where the court held that the
concept of an "affected party" does not extend to the agency which
( adopted the rule which is sought to be tested)
Whether the basin board may use 120.31(1), F.S. to attack an order
of the District Board is equally difficult to assess. To begin with,
this Section applies only to the review of orders which are final and
which are rendered by the District Board in exercise of its quasi-
judicial authority. It should not be regarded as appropriate for or-
ders which were rendered in the exercise of the Board's quasi-legis-
lative authority. (See Meiklejohn v. American District, Inc. (App. 1968),
210 So2d 259.
It would seem therefore, that if the basin board was not the object
of a quasi-judicial order, it would have no right to use 120.31(1) to
attack the District Board's action.
Section 373.173, F.S. (1971) is apparently the method by which an
"aggrieved" person may attack any action taken by a Water Regulatory
District today. Although this section has been repealed, as far as its
applicability to Water Regulatory Districts is concerned, Sections 373,
249 and 373.339, F.S. (1972 Supplement) appear to preserve it. It ap-
pears unlikely that a basin board could use this provision to attack
a Regulatory District Order inasmuch as it would have to demonstrate
a that it is an "aggrieved" person entitleR to such review.
2. MAY BASIN BOARD FUNDS BE USED TO PAY LEGAL FEES INCURRED BY
ITSELF OR BY OTHER PERSONS IN APPEALING DISTRICT RULINGS?
As to whether or not basin boards may actually appeal District
Rulings, there is no express provision in the statutes permitting the
expenditure of basin funds to do so.
Ch. 61-691, Laws of Florida, at 7(2)(e), provides that basin tax
monies shall be used for "administrative activities" of the basin board.
12(12)(e) of ch. 73-190, Laws of Florida, expanded the preceding re-
striction to permit the expenditure of basin board monies for "adminis-
trative and regulatory" activities of the basin board. Whether funds
may be used to finance an appeal assuming such an appeal is proper -
depends upon whether or not the conduct of an appeal is an adminis-
trative or regulatory activity of the basin board.
r~h.120ADMNISRATIE POCEUREACTCh. 120
plicated subject matter agencies must handle
and the exclusionary rules of evidence shall not
be used to prevent the receipt of evidence hav-
ing substantial probative effect. Otherwise ef-
fect shall be given to the rules of evidence
recognized by law in this state.
History.-12, ch. 61-280.
120.28 Separation of functions.-No hearing
examiner shall, in any proceeding where he pre-
sided as hearing examiner or a factually related
proceeding, participate or advise the agency in
entering its order except through his recom-
History.-2, ch. 61-280.
120.30 Declaratory judgment on validity of
120.31 Review of agency orders.
120.30 Declaratory judgment on validity of
(1) Any affected arty may obtain a judi-
cial declaration as toTe vam.T. meanmi or
appliation o any ru in a tion
S i circuit court
Co lntv yin wh ah nerson resides or in
hic $he egplThisg n'T n& the gen are
mantane is subsection snail not apply to
(2) In addition to any other ground which
may exist, any rule may be declared invalid, in
whole or in part, for a substantial failure to
comply with the provisions of this chapter, or
s the case of any emergency rule, upon the
found that the facts recited in the statement
do not constitute an emergency.
History.-13, ch. 61-280.
120.31 Review of agency orders.-
(1) As an alternative procedure for judicial
review, and except where appellate review is
now made directly by the supreme court, the
final orders of an agency entered an agency
exercise o any dial
si-udicia n sall h rviwale
>y certa bv tte district courts of a.nneal
manner prescribed b the
loriaa pellate rules. It judicial review is
o e on, the petition shall so
state. The venue of the proceedings for such
*review shall be the appellate district which
includes the county wherein hearings before the
hearing officer or agency, as the case may be,
are conducted, or if venue cannot be thus de-
termined, then the appellate district wherein
the agency's executive offices are located.
(2) In cases where certiorari is granted
pursuant to this section, the court may issue its
mandate, or order, with directions to the agency
to enter such order in the proceedings as is
appropriate on the record, or the court may
remand the cause for such further proceedings,
including the taking of testimony, as may to
the, court seem necessary or proper:
"(a) To accoid the parties due process of
120.321 Inapplicability of 120.041 (3), (5) to
120.331 Effective date.
(b) To establish a sufficient record, for re-
(c) To accord the parties their constitu-
tional, statutory or procedural rights; and
(d) To accomplish the purposes and ob-
jectives of the law pursuant to which the ad-
ministrative proceeding was initiated.
(3) When sunersedeas is not otherwise pro-
vided for. any such ruling ororder of an agen-
cy, ma in nr at ases p erse ed
upon an ancaion for supersedeas showing
good cause therefore, made to t;n agency, or the
court. IT the order has the effect oT suspendng
"F-revoking a license, supersedeas shall be
granted, as of right, upon such conditions as
shall be reasonable, and in any event the order
granting supersedeas shall specify the condi-
tions upon which supersedeas is granted.
(4) When appropriate, a party may attack
an adverse order V manamus, pronlbition or
costs shall be assessed as pro-
vided Mn other civil actions.
nmms..-iJ cU. -. Zau.
120.321 Inapplicability of 120.041(3), (5)
to chapter 601.-Nothing contained in section
120.041(3) and (5) shall affect or repeal the
provisions of chapter 601.
History.-14, ch. 61-280.
120.331 Effective date.-This act shall take
effect July 1, 1961. Each agency has until June
30, 1962, to rewrite its rules existing prior
thereto in the style and form prescribed by the
department of state, who shall adopt such origi-
nal rules no later than August 1, 1961; provided
further, that rules not complying with the
foregoing shall be ineffective after June 30,
1962. No hearing is required to be held on the
adoption of rules rewritten as required in this
section in which no change in substance was
made. Any hearing or other proceedings af-
fected by part II or part III of this act shall
continue unabated or unaffected by the pas-
sage of part II or part III of this act.
History.-16, ch. 61-280; $510, 35, ch. 69-106.
ADMINISTRATIVE PROCEDURE ACT
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southwestt FI rida 7 6
Water Managemenet Distr
E S P. O. BOX 457 BROOKSVILLE, FLORIDA 33512
DERRILL MATTER, Chairman. Brooksville HERMAN BEVILLE. Buhnell THOMAS VAN der VEER, Yankeetown
S. C. BEXLEY. JR. Vice Chairman, Lnd O'Lakes JOB E. HILL, Leesburg ROBERT E. VAUGHN, Brandon
JOHN A. ANDERSON. Treasurer, St. Petenbur PETER J. NEGRI. Ocal J. MASON WINES. Lkeland
Donald R. aster, Executive Director
September 20, 1973
Honorable Robert L. Shevin
Tallahassee, Florida 32304
Re: Rainbow River
Dear Attorney General Shevin:
This is a reply to Mr. Baya Harrison's letter of August 29, 1973 which posed
several questions with regard to Rainbow River.
It is correct that the swamp areas adjacent to Rainbow River are important in
terms of water quality, and these areas do act as filters and a deterrent to
erosion. On the enclosed aerial photographs, we have indicated by various
dashed lines the limits that we would expect that water would reach for a
flood with a period occurrence frequency of the mean annual flood, 10, 25,
50, and 100 year floods, and the flood of.April 5, 1960. We have also
indicated on the enclosed aerial photographs by cross-hatching another
area which we defined as poorly drained. In some cases these poorly drained
areas are outside of the delineated floods. Regardless of where the areas
may lie, it is important.that these areas be protected.
On September 14, 1973, we presented to our Withlacoochee River Basin Board
the staff recommendation for those areas which we believe should be preserved,
and the recommendation was approved as follows:
(1) No drainage, construction, filling or clearing, should take
place in the delineated poorly drained areas.
(2) Building construction and land filling should not take place
on land flooded by the 25 year flood.
(3) Land lying between the limits of the 25 year and 100 year
flood (when outside a poorly drained area) may be used for
building construction provided that floor levels are above
the 100 year flood.
The Withlacoochee Basin Board, unanimously approved the staff recommendation
with the understanding that it would be presented to the cabinet.
S Honorable Robert L. Shevin
September 20, 1973
The District Governing Board will not meet again until October 10th, and
therefore, this recommendation cannot be considered as an official recommendation
of.the Governing Board. However, I have shown the staff recommendation to
Governing Board Chairman, Derrill S. McAteer and he has specifically
requested that I advise you that he concurs with the action of the Withlacoochee
River Basin Board.
We're glad that we could have been of service to you, Attorney General Shevin,
and please let us know if there's any other information you desire.
Ver uly yours,
DONALD R. FEASTER, P.E.
cc: District Governing Board
Withlacoochee Basin Board
Mr. Myron G. Gibbons
L.JrrL. M. Blain