Title: Opinion File 75-1 thru 75-2
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Permanent Link: http://ufdc.ufl.edu/WL00003414/00001
 Material Information
Title: Opinion File 75-1 thru 75-2
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 75-1 thru 75-2
General Note: Box 14, Folder 4 ( Opinion File 1974 - 1975 - 1974-1975 ), Item 42
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003414
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
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7 5 1
SoSTATE or FLORIDA
S-DEPAHTMEIXT OF LEGAL f/
OFPPIC op THE ORe0 YGEYEBAL
CAPITOL
ROBERT L. SHEVIN CITALAASsEELORDA 3a3^^ 7M S4)JA!A4
-ATTomT EYGCmL

January 29, 1975 KEY WORDS: pa



Mr. G. E. Dail, Jr., Executive Director
Central and Southern Florida Flood Control District
Post Office Box V
West Palm Beach, Florida 33402

-Re: WATER MANAGEMENT DISTRICTS -- Water Resources -
authority to consider and protect against
-- degradation of water quality through permitting
-processes. SS 373.013 373.6161, F. S.

Dear Mr. Dail:

-This is in response to your request for an opinion on substantially
the following question:

WHAT AUTHORITY AND RESPONSIBILITY DOES THE
CENTRAL AND SOUTHERN FLORIDA FLOOD CONTROL
DISTRICT HAVE IN THE AREA OF WATER QUALITY
IN ITS OPERATION UNDER CHAPTER 373, FLORIDA
STATUTES?

The Central and Southern Florida Flood Control District, created
pursuant to Section 373.069, Florida Statutes, is authorized to
act as agent for the Florida Department of Natural Resources in
carrying out the provisions of the Florida Water Resources Act of
1972, Sections 373.013 through 373.6161, Florida Statutes.

As a general rule, your agency is required by law to prevent harm
to water resources within the District. While no specific reference
is made to the District's authority to control water quality in
Chapter 373, Florida Statutes, it is implicit in the Act that the
District should not, by permit, authorize unlawful degradation of
water quality. Rule-making authority concerning water quality
formerly held by water management districts was removed in 1967
by the Florida Legislature. Section 403.261, Florida Statutes,
Chapter 67-436, Laws of Florida.




-TMAR 3 M91^









Mr. G. E. Dail, Jr. 075-16
Page 2


t .- cozrroj of water by the districts and the Department of Natural
A rtcs, thile very broad and exclusive concerning the effect upon
m 'quantityand.land use, is specifically not exclusive with
Sto waterguality. Sections 373.023(2) 373.039, Florida


lfceverL-it purposes tfor which the Water Resources Act was created
.-iclude the policy to preserve natural resources, fish and wildlife
-`Section 373.016(2)(e), Florida Statutes), to promote recreational
-developments, protect public lands, and assist in maintaining the
navigability of rivers and harbors (Section 373.016(2)(f), Florida
Statutes), and to otherwise promote the health, safety, and general
welfare of the people of the State. Section 373.016(2)(g), Florida
Statutes.

One specific power which is delegated to the District as well as
the Department is the power to seek legal redress should the effect
of any dam, impoundment, reservoir, appurtenant work, or other work,
violate pollution laws of the State, thereby becoming a public
nuisance by law. Section 373.433, Florida Statutes. Also see
Section 373.603 as to the authority of the District to enforce any
provision of the Florida Water Resources Act of 1972 in its entirety.

The District, of course, is required by statute to grant permits
only when, for consumptive use of water, it would not be harmful j
to the water resources of the area. Section 373.219(1), Florida
Statutes. Similar provision is required for the permitting of areas
for the management and storage of surface waters. Section 373.416(1),
Florida Statutes.

Since it is axiomatic that lowering water quality would be harmful
to the water resources of the District, it is clear that the
District's permitting procedures must take into consideration water
quality. This is especially true when considering the general
policy of creation of the water management district under the
Florida Water Resources Act of 1972, and the fact that the statute
is to be liberally construed for effectuating those purposes.
Section 373.6161, Florida Statutes. However, the question then
becomes, in what way can the flood control district best protect
water quality? What standards does it use? The primary responsi-
bility under Chapter 373, Florida Statutes, for the districts is,
of course, management of water quantity. In order to determine
how to best protect water resources from water quality degradation
-under the statutes above mentioned, the District might wish to take
one of the two alternatives followed by other agencies faced with
the same dilemma.





7 p-


Mr. G. ~. Dail, Jr. .. O'5-16
(N .Page 3

he. District, plgt follow the example of the Public Service
Commission, which, in evaluating an application for const0ctio 6t
or expansion of, a, sewage treatment plant, pursuant to its rules,
refuses to review the application until provided with a permit
or a certification from the Florida Department of Pollution Cdn"tol.
Section 25-10.42, Florida Administrative Code. Alternatively, the
District night, wish to request the Florida Department of Pollutton
Control to delegate its water quality permitting authority. Th
Florida Department of Pollution Control has authority to delegate
this authority pursuant.to Section 403.061(27),. Floida Statutea
and to enter into agreements with agencies such as yours, purs nt;-
to Section 403.061(24), Florida Statutes.

-Moreover, your agency must work within the confines of the Stat
Water Use Plan, prepared by the Department of Natural Resources :
pursuant to Section 373.036, Florida Statutes., which authorizes
-the .Department to prohibit water uses inconsistent with the plan
See Sections 373.036(7), (8), and (9), Florida Statutes. The Water
Use Plan is to be prepared in coordination with the Water Quality
Standards system, and the Water Quality Standards are to be c-
bbined with the Water Use Plan to constitute the Florida Water PLn.
Section 373.039, Florida Statutes.

Based upon the broad responsibility of your agency to protect
"water resources," pursuant to Chapter 373, Florida Statutes,
particularly under the Water Plan, it would, of course, binappro-
priate for your agency to authorize by permit something which would
result in. the lowering of water quality. For example, the District
could possibly be acting contrary to the provisions of Chapter 403,
F.S., by authorizing or causing waters to be contaminated contrary
to provisions of other statutes. In addition to the provisions of
Chapter 403, Florida Statutes, and rules and regulations of the
Florida Departmeni of Pollution Control, the District should be
aware of Section 372.85, Florida Statutes, which makes ~it un-
..lawful for any person or corporation to cause the drainage of
deleterious substances into any of the fresh running waters of '
this State in quantities sufficient to injure, stupefy, or kill
fish.

To assure that the District does not permit activity which unlaw-
fully lowers water quality, I therefore recommend that your
District, as soon as possible, either require some type of water
quality permit or certification be submitted to you'along with
any permit application, pursuant to Chapter 373, Florida Statutes,


L____(I~~_ __ __








Mr. G. E. Dail, Jr. 075-16
.Page 4


so that the Florida Department of Pollution Control's permission
is granted either prior to consideration of your permit or con-
current with that consideration, or that you specifically obtain
authority to act as agent for the Florida Department of Pollution
-Control in matters in which a proposed activity would affect both
water quantity and quality.

SUMMARY

Pursuant to Chapter 373, Florida Statutes, the Central
.and Southern Florida Flood Control District has general
authority to protect, through the permitting procedures,
the "water resources" within its jurisdiction. However,
.since the primary authority for the control of water
pollution rests with the Florida Department of Pollution
Control, pursuant to Chapter 403, Florida Statutes, the
best way for the District to carry out its duties would
be to require water quality permits or certifications
from the Department of Pollution Control prior to con-
sidering any permit application under Chapter 373, Florida
Statutes, or, alternatively, enter into an agreement with,
or be appointed as agent of, the Florida Department of
Pollution Control to carry out water quality permitting
pursuant to the provisions of Chapter 403, Florida Statutes,
and the rules and regulations of the Florida Department of
Pollution Control. All actions of the District should
comply with the Florida Water Plan, which includes Water
Quality Standards.


Attorney General


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