Title: Opinion File 77-137 thru 77-138
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Permanent Link: http://ufdc.ufl.edu/WL00003509/00001
 Material Information
Title: Opinion File 77-137 thru 77-138
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 77-137 thru 77-138
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 61
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003509
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

^ ^ 77-/137




INTER-OFFICE MEMO


TO: MGG
FROM: VLH

RE: Jurisdiction of SWFWMD


Chapter 373 as amended, provides that the Water Management Dis-
trict may, in order to obtain the most beneficial use of water
resources of the State and to protect the public health's safety
and welfare in the interest of water users affected, establish
rules and regulations or orders affecting the use of water, as
conditions warrant, and forbidding the construction of new di-
version facilities or wells, the initiation of new water uses, or
modification of any existing uses, diversion facilities, or storage
facilities without permit within the affected area. Provided how-
ever, that no rule, regulation or order shall require any modi-
fication of an existing use or disposition of water in the District
unless it is shown that the use or disposition proposed to be modi-
fied is detrimental to other water users or to the water resources
of the State. F. S. 373.171(1976).

The Statute provides that the Water Management District shall
Shave regulatory powers over any construction involving underground
formations such as projects involving artificial recharge or in-
tentional introduction of water into any underground formation;
consumptive use of water except for domestic consumption of water
by individual users; construction repair, abandonment and use of
any water wells within the district; and management and storage
of surface waters.

Perhaps the broadest areas in the Statute concern those sections
concerned with the permitting of consumptive uses of water and the
regulation of management and storage of surface waters. The Statute
contains no definition for consumptive use, however, it would seem
reasonable for such a term to be construed as including the pollution
of water. Assuming this construction to be valid it would be
logical to assume that District has the power to require any person,
other than a domestic user, to obtain a permit for any building or
construction which would result in pollution of any waters within
the State. This is a power very similar to that now possessed by
the Corps of Engineers.

The Section involving the regulation of management and storage of
surface waters provides that the Governing Board or the Department
of Environmental Regulation may require such permits and impose
such reasonable conditions as are necessary to assure that the


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77-13I




RE: Jurisdiction of SWFWMD (CONTINUED)


construction or alteration of any dam, impoundment, reservoir,
appurtenant work, or works, will not be harmful to the water
resources of the district (F. S. 373.413). Additionally the
Statute provides that the governing board or Department of
Environmental Regulation may require such permits and impose
such reasonable conditions as are necessary to assure that the
operation and maintenance of any dam, impoundment, reservoir, or
appurtenant work, or works will not be inconsistent with the
over-all objectives of the district and will not be harmful to
the water resources of the district. This section of the Statute
however, provides that no rule or regulation or order adopted by
the governing board shall be construed to affect the right of any
person engaged in the occupation of agriculture, floriculture,
or horticulture to alter the topography of any tract of land for
purposes consistent with the practice of such occupation. However,
such alteration may not be for the sole or predominant purpose of
impending or obstructing surface waters. Additionally no rule or
regulation adopted by the governing board shall be construed to be
applicable to construction, operation or maintenance of any closed
system except that to- a regulation of consumptive uses shall be
applicable to such closed system.

The scope of this section of the Statute is revealed by examining
the definitions contained in sections 373.019 and 373.403 of the
Statutes. 373.019 F. S. defines "water" or "waters in the State"
as any and all water on or beneath the surface of the ground or
in the atmosphere including natural or artificial water courses,
lakes, ponds, or diffused surface water and water perculating,
standing or flowing beneath the surface of the ground, as well as
all coastal waters within the jurisdiction of the State. "Surface
water" is defined as water upon the surface of the earth, whether
contained in bounds created naturally or artificially or diffused.
Water from natural springs shall be classified as surface water
when it exits from the spring onto the earth's surface. Section
373.403 F. S. defines "works" as all artificial structures not
included in sub-Sections 1 and 2, (which define dams and appurtenant
works), including but not limited to ditches, canals, conduits,
channels, culverts, pipes and other construction that connects to,
draws water from, drains water into, or is placed in or across,
the waters of the State, but not including wells that are defined
in part 3. The Statute defines "dam" as any artificial or natural
barrier with appurtenant works raised to obstruct or impound, or
which does obstruct or impound the surface waters of the State.

Examination of these definitions indicates the District might have
the right to regulate the construction and maintenance of any ditch,
depression or fill project structure which might affect or alter
the drainage patterns in any given area.




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