Title: Opinion File 77-107 thru 77-111
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 Material Information
Title: Opinion File 77-107 thru 77-111
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 77-107 thru 77-111
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 54
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003501
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
" / ... ./'


SL. M. Blain
e /n/ Jl- Gibbons, Tucker, McEwen,
/ Smith, Cofer & Taub


AUTHORITY OVER WATER MANAGEMENT
DISTRICTS UNDER SECTION 373.026(7), FLORIDA STATUTES


Section 20.261(1), Florida Statutes, provides that the head
of the Department of Environmental Regulation is the Secretary of
Environmental Regulation, who-shall be appointed by the Governor
subject to confirmation by the Senate. Since the Secretary is the
head of the Department of Environmental Regulation, he is vested
with the powers of that department.

Section 373.026, Florida Statutes, provides:

The [Department of Environmental Regulation] or its
successor agency, shall be responsible for the admin-
istration of this Chapter at the State level. However,
the Department may enter into inter-agency agreements
with any other State Agency conducting programs related
to or materially affecting the water resources of the
State. All such inter-agency agreements shall be
subject to the provisions of Section 373.046. In
addition to its other powers and duties, the Department
Sis authorized:

S(7) To exercise general supervisory authority over
all water management districts. The Department
may exercise any power herein authorized to be
exercised by Water Management Districts. The
Department shall review, and may rescind or
modify, any policy, rule, regulation, or order
of a Water Management District, except those
policies, rules, or regulations which involve
only the internal management of the district,
to ensure compliance with the provisions and
the purposes of this chapter.

The effective date of the above language was October 1, 1974.
However, at that time, the above bracketed language was "Division
of Interior Resources of the Department of Natural Resources."
Therefore, originally, the above stated powers over Water
Management Districts were exercised by the Governor and Cabinet
sitting as head of the Department of Natural Resources. Section
20.25(1), Florida Statutes (1973).

Up until 1972 the law required any Water Management District
to submit its policies, rules and regulations to the Division of
Interior Resources of the Department of Natural Resources "for
review and approval." Section 378.06, Florida Statutes (1971).

(f This provision was repealed by the Water Resources Act of
1972 and replaced by provisions set forth in Section 373.026(7),
Florida Statutes, which provided that the Division of Interior


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Resources of the Department of Natural Resources should be responsible
for the administration of the water resources law at the state level.

It further provided that in "addition to its other powers and
duties, the Department [of Natural Resources] is authorized:

(7) To exercise general supervisory authority over all
Water Management Districts . The Department
shall review, and may rescind modify, or approve,
any policy, rule, regulation, or order of a Water
Management District, except those policies, rules,
or regulations which involve only the internal
management of the District, to insure compliance
with the provisions and purposes of this chapter."
Section 373.026(7), 1972 Supp. to Florida Statutes,
1971.

In 1975, the Legislature passed the Florida Environmental
Reorganization Act of 1975. That Act, Chapter 75-22, provided
in Section 2 as part of the Declaration of Policy that:

It is the intent of the Legislature to promote
the efficient, effective and economical operation
-s of certain environmental agencies by centralizing
authority over and pinpointing responsibility for
f^ the management of the environment, by authorizing
the delegation of substantial decision-making
authority to the District level, and by consolidating
comparable administrative, planning, permitting,
enforcement and operational activities." (Emphasis added.)

This act merged environmentally oriented parts of several state
agencies into a new state department to be called the Department of
Environmental Regulation.

Section 11 of the Florida Environmental Reorganization Act of
1975 provides:

All powers, duties and functions of the Department of
Natural Resources relating to water management as set
forth in Chapter 373, Florida Statutes, and Chapter 74-114,
Laws of Florida, are transferred by Type 4 transfer as
defined in Section 20.06(4), Florida Statutes, to the
Department and provided further that, notwith-
standing the provisions of Section 373.026(7), Florida
Statutes, the Governor and Cabinet, sitting as the
Land and Water Adjudicatory Commission, shall have the
exclusive power by vote of four of the members, to
Review, and may rescind or modify any rule or oraer of


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,. 11 -1-l





Sa Water Management District, except those rules which
involve only the internal management of the Water
Management District, to ensure compliance with the
provisions and purposes of Chapter 373, Florida
Statutes. Such review may be initiated at any time
by the Governor and Cabinet, by the Secretary, by
the Environmental Regulation Commission, or by an
interested party aggrieved by such rule or order, by
filing a request for such review with the Land and
Water Adjudicatory Commission and serving a copy
on the Water Management District." (Emphasis added.)

Looking at the above language in light of Section 373.026,
the powers of the Department of Natural Resources over Water
Management Districts under Section 373.026 are transferred to
the Department of Environmental Regulation. However, at the
same instant, the Governor and Cabinet, now sitting as the
Land and Water Adjudicatory Commission, retain power over the Water
Management Districts and are specifically given the exclusive power
to review, rescind or modify any rules or orders of Water Manage-
ment Districts notwithstanding the provisions of Section 373.026(7).
In other words, it may be argued that the Legislature intended that
all of the powers that were vested in the Department of Natural
Resources under Section 373.026 over Water Management Districts
;f should be transferred to the Department of Environmental Regulation,
except the power to review, rescind or modify rules and orders
of Water Management Districts, which power was to be vested
exclusively in the Governor and Cabinet.

Although Section 373.026(7) speaks of policies, rules, regula-
tions, and orders, "policies" and "regulations" are includable
within the definition of rule under the Administrative Procedure
Act. Section 120.52(14), Florida Statutes.

Therefore, the only powers under Section 373.026(7) which are
retained by the Secretary of the Department of Environmental Regula-
tion are the power to exercise general supervisory authority over
all Water Management Districts and the power to exercise any
power herein authorized to be exercised by Water Management Districts.

As to a claim that the Secretary may have concurrent power
with the Land and Water Adjudicatory Commission to review, rescind
or modify the rules or orders of Water Management Districts, such
interpretation is not plausable in view of the fact that the term
"exclusive power" is used in Section 11 of Chapter 75-22, Laws of
Florida. The term "exclusive power" makes that part of Section 11
inconsistent with Section 373.026(7). The law with respect to
inconsistent statutes is that any inconsistency between two laws
should be resolved in favor of the last expression of the legislative
(' will. Cable-Vision, Inc. v. Freeman, 324 So. 2d 149 (Fla. App., 1975).












Therefore, the Florida Environmental Reorganization Act of 1975
( would control any inconsistent language in Section 373.026(7).
Finally, it is significant that Section 11 of 75-22 gives
the Secretary of the Department of Environmental Regulation the
right to initiate a review of Water Management District rules
and orders by the Governor and Cabinet. If the Secretary had
the concurrent power to review such rules and orders, there
would be no reason to provide him with a vehicle to initiate
such a review by the Land and Water Adjudicatory Commission.


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nH-11


GIBBONS, TUCKER, MCEWEN, SMITH, CoFER & TAUB
ATTORNEYS AND COUNSELLORS AT LAW


A. 0. OIBBONS, 18O2o1093
OUta~ OIBBONS, 18oo.1910
JAMS K. MorEW E, 1908.1916


606 MADISON STREET. P.O. BOX 1303
TAMPA. FLORIDA 33601
(818) 228.7841


October 27, 1977


L. M. BLIAIz
JOSPPH B. COOPE
THOMAS R. CONE, JR.
A. FLETCHER DTOCHR
ARTIHUR GIBBONS
KIRK M. GIBBONS
MYRON 0. OIBBONS
SAM M. GIBBONS
BRUC 8S. GOLDSTEIN
JOHN A. OUTTON, JR.
VICTORIA L. HUNT
PHIJ.P A. LAzZABA


DAVID B. xMEWEN
MALOOLM P. MICKLIE, III
OREGORYT MLEMZWINSKI
R. BRADFORD MILLER
WILLIAM R. PLATT
MARSHA 0. RHDBERG
ARMIN H. SMITH, JR.
RICHARD N. STBIN
THEODORE 0. TAUB
WM. EAIRL TU0EBR
JACQUELIRa B. WHATLRT
ROBERT V. WILLIA3MS


Mr. D. R. Feaster
Executive Director
Southwest Florida Water
Management District
5060 U.S. Highway 41 South
Brooksville, Florida 33512


RE: Authority Over Water Management Districts Under
Section 373.026(7), Florida Statutes


Dear Don:


Here is a copy of the memo I showed you the other day.
You will note that I am sending copies to Mr. McAteer
and Mr. Ahern. You may distribute copies as you see
fit.


Sincerely,





L. M. Blain


LMB/gw


Enclosure


cc: Mr. Derrill S. McAteer
Mr. Jay T. Ahern


IR RSPI.T MaU TO.




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