Title: Opinion File 73-95 thru 73-109
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Permanent Link: http://ufdc.ufl.edu/WL00003356/00001
 Material Information
Title: Opinion File 73-95 thru 73-109
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Bobby Blain's Cillections - Opinion File 73-95 thru 73-109
General Note: Box 14, Folder 3 ( Opinions 1972 - 1973 - 1972 - 1973 ), Item 41
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003356
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
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Full Text

73-95


S0 KEY WORDS: \J4L
i-) / VA
l.',.li-ii.iry 2, 1 9'


TO: MGG

FR: LMB

RE: SWFWMD(R) Little Manatee River.
Florida Power & Light Company Permit


On January 18, 1972 the Department of Natural Resources authorized
Florida Power & Light to capture, store and use water in excess of
40 cubic feet per second from the Little Manatee River at a point
near Wimauma. This was purportedly done pursuant to 373.141.

Several legal questions are presented. They are:

1. Does DNR have primary jurisdiction to
grant such authority?

2. Was the law properly applied in determining
the amount of water which may be captured
and used?

3. What changes will come about in the law when
the Shreve Act, Chapter 72-299, becomes
effective on July 1, 1973?

Discussion of Question 1

None of the pertinent parts of Chapter 373 have been judicially
construed since originally enacted. The 1957 act is clear in giving
the State Board of Conservation (now DNR) the power to aimthorize
such diversion of water; it further gave such board the power to'
delegate this responsibility to governing boards of legally
constituted water management districts.







AuthorItation for capture, storage,
of water.-
(1) The division is empowered to authorize
the capture, J and use of water of any
watercourse i n ve f nvOrn. mni
mum fl: ntqh ; t f to authorize
-e capture, storage and use of water of any
lake only in excess of the average minimum
level; to authorize the capture, storage and
use of ground water only in excess of the mean
low level at the point of capture, except in
those instances where hydrologic studies indi-
cate that lowering the ground water level be-
low the mean low level at the point of capture
will not be detrimental to the water resources
of the state or cause irreparable damage to
other users, and to authorize the diversion of
such waters beyond riparian or overlying land;
provided that such capture, storage, use or di-
version of water from a surface or ground wa-
ter source will not interfere with the reason-
able uses existing at the time of the beginning
of the capture, storage, use or diversion.
(2) The division may authorize the govern-
ing body of any legally constituted district con-
cerned with the management of water to per-
of the activities which the division is empow-
ered to perform by subsection (1) of this section.
History.-18. ch. 57-380; 13. ch. 63-336; 12. ch. 65-409: ;125.
35, ch. 69-106.


In 1963 the legislature amended the Water Resources law, setting
forth several ways in which water regulatory districts may be
created.

(373.1TZWater regulatory districts.-
TTs e division may create or dissolve any-
where within the state, jr anv w nn -
ment district may create or (solv within t1e
area subject to its jurisdiction,.water regula-
tory districts as necessary to serve the purposes
of this law. No district shall be dissolved ex-
cept by the creating agency of such district.
No district shall be created or dissolved ex-
cept pursuant to notice and hearing. A hearing
may be called by the division or the water man-
agement district:
(a) Upon petition from the board of county
commissioners of any county or the boards of
county commissioners of any combination *'
counties in this state as may be wholl-
ly within any area proposed to be r
a district; or
(b) Upon petition s;-
cent of the freeho'
posed to be est.P'
to the most"
ers as '
the


'ic


17L
!* apOre





7 3-97

At that time the legislature granted to any such water regulatory
districts the power to establish rules, regulations, or orders
affecting the use of water as conditions warrant, and forbidding
the construction of new diversion facilities or wells, the
initiation of new water uses, or the modification of any existing
uses, diversion facilities, or storage facilities within the
affected area. Each such regulatory district was further granted.
the power to apportion, limit or rotate uses of water or prevent
those uses which the board finds have ceased to be reasonable
or beneficial. Section 373.171.


373.171 ules and regulations.-
n order to obtain the most beneficial
use of the water resources of the state and to
protect the public health, safety, and welfare
and the interests of the water users affected,
localards by action not inconsistent with the
oter provisions of this law and without im-
pairing property rights may:
(a) Establish rules, regulations, or orders,
affecting the use of water as conditions war-
rant, and forbidding the construction of new
diversion facilities or wells, the initiation of
new water uses, or the modification of any
existing uses, diversion facilities, or storage
facilities within the affected area;
(b) Regulate the use of water within the
affected ,.. ',_* oippuri.,,g', Illliting or ro-
-atng uses of water, or by preventing those


uses which the local board finds have ceased
to be reasonable or beneficial.
(c) Make other rules, regulations, and or-
ders necessary for the preservation of the in-
terests of the public and of affected water
users.
(2) In promulgating rules and regulations
and issuing orders under this law the local
board shall act with a view to full protection
of the existing rights to water in this state in-
sofar as is consistent with the purpose of this
law.
(3) No rule, regulation or order shall re-
quire any modification of existing use or dis-
position of water in the district unless it is
shown that the use or disposition proposed to
be modified is detrimental to other water users
or to the water resources of the state.
(4) No rule or regulation, other than a rule
or regulation relating solely to the internal
management of any such board, and no order
shall be adopted, promulgated, issued, amend-
ed, or repealed except after a public hearing
pursuant to notice as provided in 373.151.
No rule or regulation shall be adopted, issued,
amended or repealed unless a need for such
action is shown by a preponderance of the evi-
dence presented at the public hearing.
(5) All rules and regulations adopted by
the local board shall be filed with the depart-
ment of state as provided in part I, chapter
120. An information copy will be filed with the
division of interior resources.
Nsterr.--tll. ch 61-340: I. th. 93-33) ; llO. 2l 35. ch 69-106.


.It is my opinion that a strong argument can be munde ti.hiL .it- vw
the legislative intent to vc..;t priimry rcspons-l .ili t.y wit i i i!,
water regulatory district, if such a district had been created.

At the same time, the 1963 legislature provided that DNR should
have general supervisory authority over all regulatory districts
and may review any rule, regulation, order or budget and modify
or rescind such order to insure compliance with the provisions
and purposes of Chapter 373. 1 j73./7'







'4


In addition, Section 378.01(3) provides that one of the purposes
of a water management district is to determine, establish, and
control level of waters to be maintained in rivers and to regulate
the discharge into or withdrawal from rivers owned or maintained
by the district or which are a work of the district. We have
previously taken the position that the Little Manatee River is
a work of the district even though the portion which is the
subject of this permit might be located outside the geographical
taxing limits of the district.


78.01 Creation of flood control district.-
-any contiguous body of land in this state may
be created into a district for the following
purposes:
(1) To cooperate with the United States in
the manner provided by congress for flood con-
trol, reclamation, conservation and allied pur-
poses in protecting the inhabitants, the land
and other property within the district from the
effects of a surplus or a deficiency of water
when the same may be beneficial to the public
health, welfare, safety and utility.
(2) To plan, construct, operate and main-
tain works of the district as hereinafter de-

.13 To determine, establish, and control
lcTFof waters to be maintained in all canals,
lakes, rivers, channels, reservoirs, streams, or
other bodies of water owned or maintained by
the district; to maintain such waters at the
levels so determined and established by means
of dams. locks, ilood gates, dikes, and other
structures: and to re:iulate the rl crh.,o inft
or withldraw:n '',s canals. iakes rivers
nr 'eP rsr v '* :. :-tlream.c' or othc -ler~ ;.
of water owned or maintained by the district
or which are a work of thr. district, including
review oi small watershed projects (Public
Law 83-566).
(4) To have general control and supervi-
sion over canals, lakes, rivers, ditches, chan-
nels, reservoirs, streams or other bodies of wa-
ter which are owned, maintained, or which are
a work of the district, insofar as the quality
of water may affect the public health, welfare,
safety. an!d "!'ity of raid bodies of water. To
prevent the deposit, directly or indirectly, in
any of the canals, lakes, rivers, ditches, chan-
nels, reservoirs. streams or other bodies of
water which are owned, maintained, or which
are a work of the district, by any person, firm,
company, corporation or issociatiton, in this
state, or the nai.ragilln agent of any person,
firm, company, cor.iration or association in this
state or any duly elected, appoiintdc, or law-
fully created otiicers of any county, city, town,
mniiicipaility, 0or in lnicip:l 'ove,\'rini nt., or ilny
lp irsnio or pt.rs's in th(lir emjitld r under' their
lo tirol,. Ini :',>i'n p ,r dir,+ ini. of ainy rilb-
}'i 'll. f:I} ;.i lt, .r ,,i.-il .r ,1" i;.-!'l .-i ;ii,., :*;t)):,laill>-'


or substances, liable to affect the health of
persons, fish or livestock, providing nothing
herein shall be construed to affect in any man-
ner the responsibility, powers, duties and func-
tions vested in the division of health of the
department of health and rehabilitative serv-
ices under any other provision of law.
(5) In effectuating this chapter, the stand-
ards of the division of health shall be used
by the district in determination of quality of
water and substance or substances to be pre-
vented from entering the waters of the district.
The said authority to control and supervise
the quality of water and to prevent deposits
in the waters mentioned shall be concurrent
with the division of health; provided, how-
ever, that said authority to control and super-
vise the quality of water and to prevent
deposits in the waters mentioned shall not be
exercised unless and until the division of
health after study and determination of a
specific request of the district has certified to
the district that the quality of any water under
the jurisdiction of the district is injurious to
the health of persons, fish or livestock.
(6) In order to make the greatest beneficial
use of the waters of the district, it is hereby de-
clared that there shall be the fullest coopera-
tion and exchange of information between the
district and the division of health in the
making of any surveys, investigations and in-
quiries to be made for the purpose of deter-
mining whether or in what manner the use of
the waters may affect the public health or wel-
fare.
Hlitoy.-ll ch. 25209. 194;: 1l. ch. 29190. 1955: Ii. ch.
1-147: 1. ch. 61-497; L1, ch. 63-224; l ilt 5. ch. 69-106; 11.
ch. 70-143.
cf.-Ch. 25210. 1941, creating central and southern Florida
food control.


373.174 Suvervisory power over regulatory
districts.-The division of interior resources shall
have general supervisory authority over all water
regulatory districts created under this chapter.
The division may review any rule, regulation.
order, or budget adopted by a local board and
modify or rescind such rule, regulation, order,
or budget to insure compliance with the provi-
sions and purposes of this chapter.
_ History.--11. ch. 6fi.3-3..: ?- .- rh 64.3 -l. 11- IM h -I,-.-


I











,73 3'-99



Section 378.06 provides that any water management district shall
submit its policies, rules and regulations to the Division of
Interior Resources of DNR for review and approval.


378.06 Authority of the division of interior p-
resources.-
(1) The division of interior resources is
hereby authorized to act for and on behalf of ..e
the state in all matters arising out of this chap-
ter and pay any expense incurred in its opera-
tion hereunder out of the account herein created.
(2) Any district created under the provi- _
sions of this chapter or by special act shall
submit its policies, rules and regulations T T e' s
.ullsi o1 or review ani aproval. I c
istor".-16. ch. 25209, 194 l. ch 61-231; 1l25. 35. ch. 3.
t6-10o. /


Discussion of Question 2

It is my opinion that the law was not properly applied by DNR in
authorizing Florida Power & Light Company to divert water in excess
of 40 cubic feet per second.

The statute grants power to authorize such diversion only in excess
of average minimum flow at the point of capture. Section 373.141.
The term "average minimum flow" was originally defined in the 1957
act but was substantially amended to its present form in 1965.
This definition requires determination and establishment of an
average minimum flow for each month, January through December.
The average minimum flow as used in this law must be the average
of the five lowest monthly mean discharges for each month, January
through December, occurring during the past 20 years of actual
flow. Section 373.081(7).






7 8- qq


37 Definitions.-When appearing in
aw or in any rule or regulation adopted
pursuant thereto, the following words shall
mean:
(1) Division-The division of interior re-
sources.
(2) Local board-The governing board of
any water regulatory district created under the>
authority of this chapter.
(3) Water management district-Any flood
control or water management district operating
under the authority of chapter 378.
(1) Water regulatory district-Any water
c.;ntroi -d.- created under the authority of thi,
chapter.
(5) Beneficial use-A use of water, include!
ing the method of diversion, storage, transpor-
tation, and application, that is reasonable alnl
consistent with property rights and with the

public interest in the proper utilization of wa-
ter resources, including, but not limited to,
domestic, agricultural, industrial, power, mu-
nicipal, navigational, fish and wildlife, and rec-
reational use.
((C) _i-,VTar .r winter resourco--Sov-p .
w after excluding ake or s or po umpletely su1 r-
rounded by land the title to which is vested in
a single owner or in two or more cotenants.
joint tenants or tenants by the entireties:
) 1 \4 i ow--\When required
for the purposes of this lVw, the division shall
determine and establish the average minimum
flow for each month, January through Decem-
ber, for a given watercourse at a given point
thereon, The average minimum flow as used
in this law shall be the average of the five
lowest monthly mean discharge for each nonth,
January through Dlecember. occurring during
the lpast twenty years of natural liow. The de-
terl nation l:.h ll be based on a\x iai!'le l1ow
dal:t or in the ablsentiic of such data, it :hall be
estah lishel d ,y rea;solnable calculations by the
(l\ i"loll 1" its autloritn'd :tgent.


--() Average minmuim ni vev-i-- liv re-
quired for the purposes of this law, the division
shall determine and establish the average min-
imum level for a given lake. The average mini-
mum level as used in this law shall be the
average of the minimum thirty days lake water
level occurring during each of the five years of
lowest levels in the period of the preceding
twenty consecutive years. The determination
shall be based upon available lake level data,
supplemented when available by reasonable
calculations made by the division or its author-
ized agent.
(9) Mean low level-When required for the
purposes of this law, the division shall deter-
mine and establish the mean low level for
ground water at a given point. The mean low
level as used in this law shall be the level,
as determined by the division, below which the
lowering of the ground water level will cause
irreparable damage to adjacent landowners or
contamination of the water source. The deter-
mination shall be based on available ground
water level data, supplemented, when such datn:
are incomplete, by reasonable calculatiors
made by the division or its authorized agent.
Provided, however, that said calculations as
made by the division of interior resources or its
agents shall not be conclusive or carry any pre-
sumption but said determination shall become
conclusive unless contested in writing within
sixty days after notification.
Hislory.--2. ch. 57.30; 2. c, h. 63-3. 1, r ch 1 l :l.. '.
ch ..l-(i. 1I>. ch. 71 :77.



\l Tt73.(l 1 I mt'fini7,n2.-i'] ., v ..
[ Vi, ch. 72-2511 ell'c tivr tutl : 1


The statute only allows authorization for diversion of water in
excess of average minimum flows for each of the respective month.;.
A review of the attached graph will show an average minimum flow
for May of less than 8 cubic feet per second while the average
minimum flow for August is over 110 cubic feet per second.







- 4 Y -I -.- -- .--C --


- 4 -----+- ---- I


I _-




____ ____ I ____
___________________ ____________________ I ____________________


I.- -.-- -- ~-_ -~ -


I ______________


I. ____ _____ ____ -





I. -


MAY JUNE JULY
MONTHS


AUG. SEPT. OCT. NOV. DEC.


NOTE:
The Average Minimum Flow is the
Average of the Five Lowest Monthly
Meon Discharges for Ecch Month
Occuring During the 20 Years
Prior to October I, 1971.

L '.',;r,atce River 3.5 Miles
jll ^ Iiorn JSOS. Oc9Fq


FLORIDA POWER a LIGHT CO.
WATER SUPPLY DEVELOPMENT STUDi



AVERAl GE MINIMUM FLO;.


m iir II C. TE


120 --- ---


100--


90-


-t-- ----------- ----- ---- 4-- i 4 -


JAN. Et.t. MAK. APR.





73-101

Authority to withdraw all water in cxccss of 10 cubic f.et -,cr
second is not within the statutory limits for the months of
August, September and October since the average minimum flow
tor those three months is above the minimums prescribed by DNI~.

t my request, Jim Mann has calculated the average flow for each
f the respective months. I have added this information to the
accompanying graph which previously only showed the average
minimum flow. You will note that the average flow is considerably
n excess of the average minimum flows. This would indicate that
here is probably ample water for use by Florida Power & Light
o long as pumping is limited so it will not go below the average
minimum flow for any particular month. It also would seem
appropriate that Florida Power be further limited to an extent
ore consistent with its demonstrated needs rather than to allocate
o it all waters in excess of average monthly minimum flows.

Discussion of Question 3

section 373.081 and 373.141 have been repealed by Section 1, Part VI,
chapter 72-299 effective July 1, 1973. Under the new law, Section
73.226 (set out in the 1972 Supplement to Florida Statutes) pro-
ides that all existing uses of water may be continued only with
permit but it directs the governing board or the Department to
ssue an initial permit for the continuation of all uses in
existence before the effective date of implementation of the act
f the existing use is a reasonable-beneficial use as defined and
s allowable under the common law of the state.

This will weaken the position of the regulatory district after
uly 1, 1973 as it relates to any existing uses as of that date.


*373.219 Permits required.-
(1) After the effective date of the imnle-

nttionof these regulations in an area, no
person ll make any withdrawal, divers
OUii IL. or consti ve U.t- o V r
w fomt _t1tmnpLy a permit Irom tile governing
board or the department. However, no permit
shall be required for domestic consumption of
water by individual users.
42) In the event that any person shall file a
complaint with the governing board or the de-
partment that any other person is making a
diversion, withdrawal, impoundment, or con-
sumptive use of water not expressly exempted
under the provisions of this chapter and without
a permit to do so, the governing board or the
department shall cause an investigation to be
made, and if the facts stated in the complaint
are verified the governing board or the depart-
ment shall order the discontinuance of the use.
History.-1-2. part II. ch. 72-2'..
*Note.-:.lfir ive July 1. 1973.


,3.226 Existing uses.-
Al i of water, unless other-
se exempted rom regulation by the provisions
oftis chapter, may be tpntinl after adoption
rmit vses only wlth a permit issued
s Drovlctlea erem.
- ,l' e governing board or the department
shall issue an initial permit for the continuation
of all uses in existence before the effective date
of implementation of this part if the existing
use is a reasonable-beneficial use as defined in
s373.019(5) and is allowable under the common
law of this state.
13) Application for permit under the pro-

visions of subsection (2) must be made within a
period of two years from the effective date of
implementation of this part. Failure to apply
within this period shall create a conclusive pre-
sumption of abandonment of the use, and the
user if he desires to revive the use must apply
for a permit under the provisions of 373.229.
Hitory.--4. part II. ti. 72-20.
*NMse.-EfttwivO July I. 1I"'






S 98 -102



Summary and Recommendations

The Water Management District has sufficient authority under
Chapter 378 to require a permit prior to Florida Power & Light
bing allowed to divert water from the Little Manatee River.
(P&L may still lack the authority to take water from the
Little Manatee River unless it is, or can become, a riparian
owner.)

Tie Water Management District has preempted the field relating
tthe power to authorize diversion of water from a water course!
p rsuant to Chapter 373. This power is subject to the general
s pervisory authority of the Division of Interior Resources of
Dim.




A y action taken by the Water Management District should also
b taken by the Regulatory District.









Fer 1973


: MGG

R: SWFWMD(R) Little Manatee River
Determing amount of water which may be captured


On January 18, 1972 the Department of Natural Resources authorized
Florida Power & Light Company to capture, store and use water
in excess of 40 cubic feet per second from the Little Manatee
R.ver at a point near Wimauma. This is done pursuant to 373.141.

This presents several legal questions:

1. Did DNR have jurisdiction to grant such authority,
or has primary responsibility for this been
shifted to the water regulatory district created
under Chapter 373, and over which DNR has general
supervisory authority?

2. Was the law properly applied in determining the
amount of water authorized for capture?

Discussion of Question 1:

The first part of S373.141 provides that DNR is empowered to
authorize the capture, storage and use of water of any water
course within certain limits. The second part of this Section
provides that DNR may delegate this responsibility. I don't
believe that DNR has taken any positive action delegating such
authority. However, 373.142 prescribes the manner in which a
water management district may create a water regulatory district
"as necessary to serve the purposes of this law." "This law"
s the water resources law as set out in 373.071 through 373.241.

Section 373.171 grants to the governing board of any water regulatory
district the power to establish rules, regulations, or orders

he construction of new diversion facilities or wells, the initiation
f new water uses, or the modification of any existing uses,
version facilities, or storage facilities within the affected
rea. The regulatory district is further granted the power to
portiono, limit or rotate uses of water or prevent those uses which
the board finds that cease to be reasonable or beneficial.






r 4 83-104


Section 373.173 provides for judicial review by the District Court
of Appeals.

Section 373.174 provides that DNR shall have general supervisory
authority over all regulatory districts and may review any rule,
regulation, order, or budget adopted by the board and modify
or rescind such rule, regulation, order or budget to insure
compliance with the provisions and purposes of the Chapter.

Entwined with this question is also the question as to whether or
not the affected portion of the river is a work of the district
but we have previously determined that it is.

The pertinent sections of the law first appeared in Section 8 of
Chapter 57-380 enacted in 1957. At that time the authority was
vested in the State Board of Conservation, enabling it to authorize
capture, storage and use of water of any water course only in
excess of average minimum flow at the point of capture. The
definition section prescribed the manner in which the average
minimum flow would be determined.

The second part of Section 8 provided that the board could authorize
the governing body of any legally constituted water management
district to perform any of the activities which the State Board
of Conservation was empowered to. The preceding section provided
that the water resources department of the State Board of Conser-
vation had the general power and duty to cooperate with water
management districts for the purpose of utilizing and conserving
the waters of the state.

In 1963 the legislature amended the water resources law, setting
forth a broad declaration of policy and prescribing a manner in
which water regulatory districts may be created.

Conclusions as to Question 1:

None of these sections have been judicially construed since enactment.
It is my opinion that strong argument could be made that it was
the legislative intent in 1957 to give the State Board of Conser-
vation the power to authorize the capture, storage and use of
water at any water course; that it further gave such board the
power to delegate this responsibility to the governing board of
any legally constituted water management district; that it also
authorized such board to create water development and conservation
districts as necessary to serve the purposes of the act.


-2-






S' 78-105



Ii 1963 the legislature granted to water management districts
the power to create water regulatory districts "as necessary
to serve the purposes of this law." It was the further intent
ot the legislature to grant to such regulatory districts the
pdwer to regulate the use of water by apportioning, limiting
ot rotating uses of water, or by preventing those uses which
the local board finds have ceased to be useful or beneficial.
As an added precaution the legislature added 373.174 which
gave the Board of Conservation the general supervisory authority
over all water regulatory districts and prescribed the manner
id which such board could modify or rescind any rule, regulation,
order or budget adopted by a local board.

This clearly fixes primary responsibility upon the respective
water regulatory board, if any exists, otherwise such authority
is vested within the Department of Natural Resources (formerly
Siate Board of Conservation.)

Discussion of Question 2:

The 1957 act granted the power to authorize the capture, storage
and use of water of any water course only in excess of average
minimum flow at the point of capture. 8(1)(a), Chapter 57-380.
The "average minimum flow" is defined in Section 2 of the act.

In 1963 these provisions were amended to give the board the power
to authorize capture, storage and use of water below the average
minimum elevation at the point of capture where hydrologic studies
indicate this would not be detrimental to other users, the water
resources, etc. 3, Chapter 63-336. The definition of average
minimum flow remained unchanged.

I 1965 the authority was changed back to the way it read in the
1657 law.

The 1965 law changed the definition of "average minimum flow" to
read as follows:

When required for the purposes of this law,
the division shall determine and establish
the average minimum flow for each month,
January through December, for a given water
course at a given point thereon. The average
minimum flow as used in this law shall be the
average of the five lowest monthly mean dis-
charge for each month, January through December,
occurring during the past 20 years of natural
flow. The determination shall be based on


-3-






S7 3-106



Available flow data or in the absence of
such data, it shall be established by
reasonable calculations by the Division of
Water Resources and Conservation of the
State Board or its authorized agent.

This definition remains substantially unchanged.

In applying this definition the average discharges for each day
ot the month are added together and divided by the number of days
td determine the monthly mean discharge for the particular month.
This has been done for the past 20 years.

The five lowest monthly mean discharges for January have been
added together and divided by five to determine the lowest monthly
mean discharge for January. This has been done for each month
Sot of the year. I believe that the hydrologists have had some
h ng up on the term "natural flow" and are concerned that they
hAve not been able to make adjustments back to "natural flow"
by taking into consideration any topographical changes which have
t4ken place upstream of gauging stations.

A careful reading of the definition section leaves little doubt
f that the legislature intended that the Division only be empowered
t4 authorize the capture, storage and use of water in excess of
average minimum flows for each of the respective months rather
than on an annual basis. We do not have a copy of the actual permit
o* authority to Florida Power & Light but the minutes of July 18,
1i72 set out that the staff requested and was granted power to
a thorize Florida Power & Light to capture, store and use water
ii excess of 40 cubic feet per second from the Little Manatee River.
A review of the graph and supporting studies made shows that this
i* granting authority to take water below the average minimum flow
during the months of August, September and October.

Conclusions as to Question 2:

T7e Department of Natural Resources, by virtue of 373.141 is
oi ly empowered to authorize the capture, storage and use of water
Sd~ring each month only in excess of average minimum flow for that
month at the point of capture.

Summary and Recommendations

At my request, Jim Mann has calculated the average flow for each
(s oE the respective months. This information is shown on the


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Ii i






a companying graph which indicates the average monthly flow
aS well as the average minimum flow. You will note that the
average flow is considerably in excess of the average minimum
flows. This would indicate that there is probably ample water
for use by Florida Power & Light so long as pumping is limited
so it would not go below the average minimum flow for any parti-
cular month. It also would seem appropriate that they be further
limited so that the excess waters could also be authorized for
other purposes.

S action 373.171(1)(b) authorizes the regulatory district to
alportion, limit or rotate uses of water and prevent those
uses which the local board finds have ceased to be reasonable
o beneficial. However, any rule, regulation or order entered
ngw, or in the future under existing law -ould only be done
after the need for such action is shown by a preponderance of
te evidence presented at a public hearing.

(The Shreve Act, Chapter 72-299, if it becomes effective in
Jlly, will make it mandatory for the governing board to issue
ah initial permit for the continuation of all uses in existence
b fore the effective date of implementation of that portion of
te act. This will weaken the position of the regulatory
district.)




LMB:cs


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January 10, 1973

i/

Mr! Wade Hopping
244 Tallahassee Bank Building
Ta lahassee, Florida 32302


Dar Wade:


CPS A4;(


,pyj


Ba ed upon Chap r 378, Florida Statutes, and Chapter 357-1
of the Florida administrative Code, we are of the opinion that
Fl rida Power Corporation must have a permit from the Southwest
Florida water Management District on the Little Manatee River,
ev n though the place where it plans to withdraw water is out-
sipe of the boundary of the Southwest Florida Water Management
District. I am writing you this letter because of a letter from
Mr. R. J. Gardner to Mr. Feaster, dated December 14, 1972, a
copy of which was sent to you.
Yours very truly,


Myron G. Gibbons


Mgg/bl


ca: Mr. Donald Feaster


S73-108








,, \ I' \









P. 0. Box 457
Brookyville, Florida 33512


I -- -*k' O4



I LORIDA )'O[LI H Li(MlI c(Ot1)'ti,,Y

December 14, 1972


\I
i!


ilj`Ld
~~L,;c
J~d; ZljitLL
J~giL~7 ~


Dear Mr. Feaster:


Thank
You r
during,
Conse'
consi,
very
We ho


The f
requi
to us
will
This
opini
Distr
for o
excha
posit
Mr.
with
to co
on de
Staff

Pleas
to fi
repre

Very



R.Vice
Vice


I


you for your letter of December 8, 1972, which arrived December 11,
quested to have a reply no later than January 3, 1973, a period
Which our staff members had previously scheduled vacations.
uently, it is going to be very difficult to give it appropriate
aeration which a proper reply would deserve. We would appreciate
nuch the opportunity to defer replying until at least January 16.
De this will not inconvenience you unduly.

ct that your attorneys have advised you that a permit will be
red from Southwest Florida Water Management District is surprising
in view of the fact that you previously told us that no permit
De required. It would appear that the change in your viewpoint on
subject would indicate that there is at least a difference of
an within your own organization concerning the extent of the
ict's jurisdiction. In view of this, I think it would be advisable
ar representative attorneys to confer on the subject in order to
nge their respective points of view and bases for their respective
ions. By copy of this letter, I am requesting our attorney,
ade Hopping, Jr. of Tallahassee, to attempt to set up such a meeting
your Mr. Gibbons. It may be of value for Mr. Gibbons also to attempt
ntact Mr. Hopping directly. We think that this conference could go
spite the vacation delay in getting the analyses of our technical


e be assured that we will continue our previous commitment to attempt
nd an equitable solution for the public interest which both of us
sent.

truly yours,



Gardner
President


RJG: td


C. DuBose Ausley, Jr. ( Ausley, McMullen, McGehee & Carothers)
Wade L. Hopping (Mahoney, Hadlow, Chambers & Adams Tallahassee)
Harold E. Janes (Florida Public Service Commission)
R. E. Vaughn (Southwest Florida Water Management District)
Dr. Robert 0. Vernon (Florida Department of Natural Resources)


Ht IPNG C; UI LD i ) OR ID A


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