Title: Opinion File 77-112 thru 77-119
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00003502/00001
 Material Information
Title: Opinion File 77-112 thru 77-119
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 77-112 thru 77-119
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.
 Record Information
Bibliographic ID: WL00003502
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

*1- IIa


May 25, 1977


MEMO TO: LMB and TEC


FROM:
RE:


KMG
Supplement to Memo of April 1, 1977, titled, "The
Secretary of DER Authority of Water Management
Districts."


373.114 Florida Statutes provides, "the governor and cabinet,
sitting as the Land and Water Adjudicatory Commission, shall have
the exclusive power by a vote of four of the members, to review,
and may rescind or modify, any rule or order of a water management
district, except those rules which involve only the internal manage-
ment of the water management district, to insure compliance with
the provisions and purposes of this chapter." The effective date
of this statute is July 1, 1975. The above language is almost
verbatim to Sec. 373.026(7), which went into effect October 1, 1974.
That Section( ives the Department of Enviromental Regulation general
supervisory authority over all water management districts. However,
373.114 provides that the Land and Water Adjudicatory Commission
has the exclusive power to review, rescind or modify rules and orders
of water management\districts. Therefore, it seems that 373.114
Florida Statutes has, in effect, repealed 373.026(7).
\. /rf

\2? ,^^l i


KMG: sb


n" ", A,
,K d \ -^
(2' t. I 1gl AA


~L.


Ki 3
~~---'V


~; /Pe I/~B~'/pk~'~C


r 1 17~ 1)It~

~-i~oli; 1"


J I' 1 -
I' IP1L<










MEMORANDUM April 1, 1977

TO: LMB, TEC, DBM
FROM- KMG
RE: The Secretary of DER- Authority over Water Management
Districts
20.261(1) provides that the Secretary of Environmental Regulation
/ p~ the head of the department and is appointed by the Governor,
subject to confirmation by the Senate. Since the Secretary is
the head of the Department of Environmental Regulation, I assume
that he is vested with the powers of that department. Under
373.026(7) the department is authorized to exercise general/-
supervisory authority over all 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 which involve only internal management of the district.
Therefore, the-peweieof the Secretary of Environmental Regulation
has significant authority over water management districts.



mjs


#^ f5 -

^<^





(N ?<^f^
4^ ^ Y^~P













MEMORANDUM April 1, 1977

TO: (LMB, TEC, DBM
FROM: KMG

RE: Environmental Regulation Commission and Its Authority
over SWFWMD


Florida Statutes 20.261 describes the composition of the environ-
mental regulation commission. It is composed of seven citizens
of the State, appointed by the Governor, subject to confirmation
by the Senate. It shall include one but not more than two members
from each water management district. The remainder are selected
from the State at large. Membership shall be representative of
interest groups such as agriculture, real estate, environmentalists,
the construction industry, and lay persons.

Florida Statutes 403.804 provides that the environmental regulation
commission shall exercise the exclusive standard-setting authority
of the Department of Environmental Regulation, with some exceptions.
One such exception is located in F.S. 403.804(2) which deals with
studies that the commission shall direct the Department of Environ-
mental Regulation to take as to whether the State needs standards
as strict, or more stringent, than existing Federal standards. With
respect to such studies, the Governor and the cabinet will have
final say after standards are initially adopted by the commission.

Another exception is under F.S. 373.026(7). That section gives the
Department of Environmental Regulation the power to exercise
general supervisory authority over all water management districts.
The Department may also review, rescind or modify any policy, rule,
regulation, or other order of a water management district, except
those which deal only with internal management-of the district.

Another significant exception to the exclusive standard-setting
authority of the Environmental Regulation Commission are Sections
20.261(7)-(10). (7) states that all powers, duties and functions
of the Department of Natural Resouces relating to water management
Cas set forth in Chapter 373, in Chapter 74-114, Laws of Florida,
are transferred to the Department of Environmental Regulation.
(8) provides that powers, duties, and functions of the Department
of Natural Resources exercised by the Bureau of Water Resources


---












are transferred to the Department of Environmental Regulation.
(9) provides that all the powers, duties and functions of the
Department of Natural Resources relating to permits, licenses,
and exemptions pursuant to Chapter 253, Florida Statutes, are
transferred to the Department of Environmental Regulation.
(10) provides that all the powers, duties and functions of the
Department of Natural Resources relating to water management
districts,as set forth in Chapter 298, are transferred to the
Department of Environmental Regulation. Therefore, since the
commission isexcluded from exclusive standard-setting authority
as to the powers, duties and functions of the Department of
Environmental Regulation relating to water management districts,
it seems that the commission has no power over water management
districts.

Finally, 404.804(3) provides that the commission shall have final
State approval on applications for and disbursements of Federal
Grants. How this section affects water management districts is
unclear to me.


mjs





rn- it


f1


ROUTING SLIP

Date: 7
From To Name Disposition
Blain Action:
Cofer Prepare Response
__ Cone Review & Comment
Dyches Prepare Brief Memo
A. Gibbons Set Up Meeting
K. Gibbons Investigate & Report
M. Gibbons Let's Discuss
R. Gibbons Open File & Handle
Goldstein Advise
Hunt For My Signature
Lazzara For Your Signature
McEwen File
Mickler
Mierzwinski Date Due:
Miller Information:
Platt Review & Return
Rydberg Review & File
Smith Review & Destroy
Stein Initial & Forward
Taub Sign & Mail
Tucker
__ Wha tley
,Wi lli ams


Mr. Butler
SBookkeeping

My Secretary


Remarks and/or Special Instructions:

i744j, 4 J4A- Df4
-Irp Q A c^t ^^ 1EL2-


f4


L-~-ZCC













J. Willian
Execuli


S_ RECEIVED MAR 2 91977

SNorthwest Florida .

) Water Management District

'"- SUITE C.l ,':*-;, "T.F. '... .... ,I
McCartney 32', JOHN KNO)X ROAD
ve Director I ALLAI IASSEE. F. ORIDA 3;?303 (904) 487-177(1

In Rrply Please R(,.cr T.,

March 28, 1977 GEN-9-1-8






Mr. Joseph W. Landers, Jr.
Secretary
Department of Environmental Regulation
2562 Executive Center Circle, East
Montgomery Building
Tallahassee, FL 32301

Dear Jay:

I received your letter of March 4, 1977, relative
to the Resolution adopted by our Governing Board on
January 25, 1977, concerning the exemption to the driven
wall casing specifications contained in Chapter 17-21,
Florida Administrative Code.

I am enclosing a copy of the advice I received from
the attorney to the Governing Board relative to the questions
of whether the Secretary or the Environmental Regulation Com-
mission has authority to issue the exemption. I hope this
will assist your legal staff in its deliberations.

We would like to expedite action on the petition
to change the rules. Please let me know if we may help
in any way.

Sincerely,



J. William McCartney
Executive Director

JWM/jsb

cc: Governing Board
David Barrett
L. M. Blainx/
John Wheeler
Horxecutive Directors, Water Management Districts
Ch.or C Lare i Lo Atkins Denscn L Skelton. Jr.
Chairman Vi...., Chairmrtan Sec /Treas.
Frr:nk C'31dt.'l T n'm C;,Ik.' -v iuowdd Odor Alr Wtn oy William IH Willhms
Roi:r M.emnbr r-,c r- Mi Roard Mnmber ardl Mnmbr tcard Momber


------------------ i







RECEIVED MAR 29 197
],.lTTr, lBOYDI) AND IIOLD) .
I.AWY I US

DAVID A. 11A.IITT
Josp a n B ,y' i-. "-hO POST 0IP'"ICP BOX 1501
J. DAVID I.OLD1I L.. TALI.,AIIASBHI1, ORIDA 32'J2O
TI.LEPHONE (O04) -.222-000
214-0350
MEMORAN DUM


TO:. J. William McCartney, Executive Director

FROM: David A. Danrrott, Legal Counsel 7 -,/'6 -

DATE: March 24, 1977

RE: Proposed Change to Section 16G-3.21, Florida
Administrative Code



I have reviewed the appropriate statutory provisions in
response to your question concerning whether the Secretary of the
Department of Environmental Regulation has the aurhtority to
provide exemptions under Section 373.326, Florida Statutes
S(1975), or whether these exemptions must be granted by the
r Environmental Regulation Commission.

Chapter 75-22, Laws of Florida, Florida Environmental
Reorganization Act of-1975, Section 6 "Duties of the Department
of Environmental Regulation, (1) Duties of the Commission"-
states: "(a) The Commission shall exercise the exclusive
standard-setting authority of the Department, except as pro-
vided in S. 6(1)(b) and S.(11) of this act." Section (11)
states, in part:

"All powers, duties and functions of
the Department of Natural Resources
relating to water management as set
forth in Chapter 373, Florida Statutes .
are transferred by a type four transfer,
as defined in S. 20.06(4), Florida
Statutes, to the Department .

The preceding portions of the Environmental Reorganiza-
tion Act, pertinent to your question, appear in Section 403.804,
Florida Statutes (1975), Environmental Regulation Commission;
powers and duties -

"(1) The Commission shall exercise
the exclusive standard setting authority
r of the Department, except as provided
in subsection (2) and ss. 20.261(7)-(10),
373.026(7) and 373.073(4) .. "


____~ _____
__.__ ~____ i








J. William McCartney
March 23, 1977
Page Two


Section 373.026(7), Florida Statutes (1975), provides
that the Department of Environmental Regulation is authorized
to exercise "general supervisory authority" over all water
management districts.

Section 20.261 provides that the head of the Department
is the Secretary of Environmental Regulation (previously
Section 20.26 stated: "(1) The head of the Department
of Pollution Control is the pollution control board"). As
head of the Department, the Secretary is vested with the
authority to execute any of the powers, duties, and
functions vested in the Department.

From the foregoing it is clear that the Secretary
is the head of the Department (not the Environmental
Commission), that the powers, duties, and functions of the
Water Resources Act are excluded from the duties of the
commission and are vested in the Department of Environmental
Regulation and that the Secretary is statutorily authorized
to execute these powers, duties and functions.

The specific statutory power with which we are
concerned is Section 373.326, Florida Statutes (1975).
It states:

"(1) When the Department finds that
compliance with all requirements of
this part would result in undue hard-
ship, an exemption from any one or
more such requirements may be granted
by the Department to the extent necessary
to ameliorate such undue hardship and to
the extent such exemption can be granted
without impairing the intent and purpose
of this part .

Since the Secretary is head of the Department (Section 20.261)
and is vested with the powers of the Department (Section 20.05
(1)(b)), he may authorize the exemption provided for under
this section. On the other hand, I can find no authority
for the Environmental Regulation Commission to exercise any
authority over the water management districts or their rules
except that the Commission may initiate a review of rules
or orders of the water management districts to be conducted
by the Governor and Cabinet sitting as the Water Adjudicatory
Commission (Section 373.114).

If you have any questions or comments regarding the
contents of this memorandum, please feel free to contact
me.

DAB/bkm




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs