Title: Opinion File 77-161 (8 pgs)
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Title: Opinion File 77-161 (8 pgs)
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Language: English
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 77-161 (8 pgs)
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 73
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00003521
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
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Full Text




November 22, 1977 be R

p MEMO

TO: LMB
FR: TEC
RE: Attorney General Opinion No. 077-95

Pursuant to your request I have reviewed Attorney General
Opinion No. 077-95 and Jay Ahern's memorandum of November 14,
1977, on the same subject. In the main, I find Jay's memo
to be accurate although I think he does not properly
distinguish between DER and the Environmental Regulation
Commission.
For instance, the Attorney General Opinion indicates that
neither the Department of Environmental Regulation nor the
Environmental Regulation Commission have the authority to
review, rescind, or modify District rules or orders arising
under Chapter 373, Florida Statutes. Yet, in paragraph 1 of
his memorandum Jay only mentions DER.

Additionally, the Attorney General Opinion indicates that
the Environmental Regulation Commission has the exclusive
standard setting authority, rather than the Secretary of the
Department of Environmental Regulation, except in situations
where stricter or more stringent standards are proposed, in
which event the Environmental Regulation Commission and the
Governor andCabinet have concurrent jurisdiction on such
stricter standards, with final authority being vested in the
Governor and Cabinet. In paragraph 4 of Jay's memo he indicates
that the Environmental Regulation Commission rather than DER
is responsible for water quality rules. This is inaccurate to
the extent that water quality rules are proposed for consideration
which may be more stringent than the related federal regulations.
In this situation the Environmental Regulation Commission and
the Governor andCabinet have concurrent jurisdiction with final
authority being vested in the Governor and Cabinet.
I would summarize the key points of the Attorney General
Opinion as follows:
(1) The provisions of Section 373.026(7), Florida
Statutes, does not authorize the pat.. --t C --B -MMentl
neg1lat-+n,- the. Secretary of the Department of Environmental
Regulation, or the Environmental Regulation Commission to review
and rescind or modify any rule or order of the Water Management
District. This section has been superseded by Section 373.114
which vests the exclusive authority to review policies, rules,
regulations, and orders of Water Management Districts in the
Governor and Cabinet sitting as the Land and Water Adjudicatory

PwA 2.- et Z!5.








Memo to LMB
Page 2
November 22, 1977



Commission to insure compliance with the provisions and
purposes of Chapter 373.

(2) Water Management Districts do not have rule
making authority with respect to water quality. However, the
District should not, by permit, authorize unlawful degradation
of water quality.

(3) Section 373.114, Florida Statutes, does not
have eaec-.tn any other powers 4MBD r ~the Secretary of
DER ~ -' r Water Management Districts under Chapter 373,
Florida Statutes.

(4) As between DER anthe Environmental Regulation
Commission, the Environme tal Regulation Commission has the
exclusive standard setting authority, except for standards
which are stricter or more stringent than the respective federal
standards. These latter standards must be finally adopted by
the Governor and Cabinet.


TECjr/j f





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k STATE OF FLORIDA
DEPARTMENT OF LEGAL AFFAIRS
OFFICE OF THE ATTORNEY GENERAL
THE CAPITOL
ROBERT L. SHEVIN TALLAHASSEE, FLORIDA 32304
Attorney General
So
September 13, 1977



077-95

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

f Re: DEPARTMENT OF ENVIRONMENTAL REGULATION--WATER RESOURCES--
Agency head vested with power to adopt rules for the
conservation, protection, management and control of
water resources of the state necessary to administer
the State Water Resources Law--Environmental Regulation
Commission of the Department vested with exclusive
authority to adopt rules for the Department relating
to air and water quality, noise, and solid waste manaqe-
ment other than rules relating to internal management
of the Department and certain procedural matters.
20.261, F.S.; Chs. 373, 403, F.S.; Ch. 75-22, Laws
of Florida

.Dear Mr. Landers:

This is in response to your request for an Attorney General's
opinion on substantially the following question:

AS BETWEEN THE SECRETARY OF THE DEPARTMENT OF
ENVIRONMENTAL REGULATION AND THE ENVIRONMENTAL
REGULATION COMMISSION, WHO IS VESTED WITH THE
AUTHORITY TO ADOPT REGULATIONS UNDER CHAPTER
373, FLORIDA STATUTES, RELATING TO THE CONSERVA-
TION, PROTECTION, MANAGEMENT AND CONTROL OF THE
WATERS OF THE STATE?











Honorable Joseph W. Landers, Jr. 077-95
Page 2


Section 11 of Chapter 75-22, Laws of Florida, transferred 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, to the Department of Environmental,
Regulation. See Section 20.261(7), Florida Statutes. Section 4(7) of
Chapter 75-22, supra, created an Environmental Regulation Commission
as part of the Department of Environmental Regulation. See Section
20.261(3), Florida Statutes. Section 8'of Chapter 75-22, supra,
transferred the Department of Pollution Control to the Department of
Environmental Regulation, except for those duties vested in the
Governor and the Cabinet under 5 of Chapter 75-22, and except for
certain duties and powers relating to open burning of certain lands
transferred to the Department of Agriculture and Consumer Services.
See Section 20.261(4), (12), Florida Statutes. See also Sections
403.031(1), 403.061(7), (11), (13), (14), 403.1822(2), 403.1823(1).

Section 6(1)(a) of Chapter 75-22, Laws.of Florida, provides that the
Environmental Regulation Commission shall exercise the exclusive
standard-setting authority of the Department, except as provided in
Section 6(1)(b) and Section 11 of Chapter 75-22. See Section 403.804(1)
F.S. Section 6() (b) of Chapter 75-22 deals with studies of proposed
standards (as well as standards existing on the effective date of
I Chapter 75-22), which set a stricter or more stringent standard than
one set by federal agencies pursuant to federal law or regulation.
Such standards as are provided for in Section 6(1)(b) of Chapter
75-22 are required to be submitted to the Commission, which shall
initially adopt the standards referred to in Section 6(1)(b), but
final action thereon shall be by the Governor and the Cabinet, who
may accept, reject or modify the same or remand the standards for
further proceedings. In effect, the Commission and the Governor and
Cabinet have concurrent authority with respect to adoption of those
standards delineated in Section 6() (b) of Chapter 75-22, with final
authority being vested in the Governor and Cabinet. See Section
403.804, F.S.

Section 11 of Chapter 75-22, in pertinent part, transferred all powers,
duties and functions of the Department of Natural Resources relating
to water management as set forth in Chapter 373, F.S., and Chapter
74-114, Laws of Florida, an Act relating to water management districts,
and regional water supply authorities, to the Department of Environmental
Regulation. However, such transfer shall not affect the existence of,
or membership on, any water management district board, and notwith-
standing the provisions of Section 373.076(7), F.S., the Governor
and Cabinet sitting as the Land and Water Adjudicatory Commission,
has the exclusive power, by vote of four of the members thereof, to
review and to rescind or modify any rule or order of a water manage-
ment district to insure compliance with the provisions and purposes
of Chapter 373,.F.S., except those rules which involve only the
internal management of the district.


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077-95
Honorable Joseph W. Landers, Jr.
Page 3


In essential part, the provisions of Section 11 of Chapter 75-22
operate to remove and supersede the power theretofore vested in
the Department of Natural Resources (before and upon the transfer
of its powers to the Department of Environmental Regulation by
Chapter 75-22, Section 11) to review and to rescind or modify any
rule or order of a water management district except for those in-
volving only the internal management of the district, to insure com-
pliance with the provisions and purposes of Chapter 373, F.S., and
to vest such power solely in the Governor and Cabinet as the Land
and Water Adjudicatory Commission. See Section 373.114, F.S. As to
such rules or orders of the several water management districts, neither
the Environmental Regulation Commission nor the head of the Department
of Environmental Regulation is vested with any authority to review
or to rescind or modify in order to insure compliance with the pro-
visions and purposes of Chapter 373, F.S. With respect to such
water management districts' rules or orders, Section 11 operates as
an exception from the standard-setting or rule-making authority vested
in the Environmental Regulation Commission by Section 6(1)(a) of
Chapter 75-22, leaving such rule-making power initially with the water
management districts, subject to the review power and final action of
the Governor and Cabinet, sitting as the Land and Water Adjudicatory
Commission. The Commission may, however, initiate such review as may
the head of the Department, among others, as prescribed by statute.
See Section 373.114, Florida Statutes.

Section 3(12) of Chapter 75-22, Laws of Florida, codified as Section
403.803(12), F.S., defines "standard" to mean any rule of the Department
of Environmental Regulation relating to air and water quality, noise,
and solid waste management, except for rules relating solely to the
internal management of the department, and the procedural matters
listed in the statute. The rules of the water management districts
(see Sections 373.044, 373.113, 373.171, F.S. (1975), and Section
373.171, F.S. [Supp.1976]) which are reviewable by the Land and Water
Adjudicatory Commission (Section 373.114, F.S.), and the regulations
of the Department of Environmental Regulation adopted to administer
the provisions of Chapter 373, _F.. (not Chapter 403, F.S.), primarily
are not concerned with "air and water quality, noise and solid waste
management T "- such matte-rs -eing primarily the concern of Chapter 403,
P.TS It is on-ly incidentally under Chapter F.S., that"wter
quality" is expressly addressed, e.g., see Sections 373.023(2), 373.026(3
373.036(2) (g), 373.039, 373.087, 373.206, and that in the main in con-
nection with the State Water Use Plan, see Section 373.036, and the
Water Quality Standards System of the department (see Section 373.039,
F.S.). Also, see Section 403.061(13), F.S. The standard or rule and
the standard-setting or rule-making authority mentioned in Section
6(1)(a) and (b) of Chapter 75-22, codified as Section 403.804, F.S.,
has reference to the standards or rules defined by Section 3(12) of
Chapter 75-22, codified as Section 403.803(12), F.S. For the pur-
poses of this opinion, such standards or rules relate to water quality
as distinguished from rules of the water management districts or the


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077-95
Honorable Joseph W. Landers, Jr.
Page 4


Department of Environmental Regulation relating to water quantity,
water use, storage, and consumption, and the conservation, protection,
management and control of the water resources of the state. See
Section 373.016(3), F.S. This bifurcation of functions is discussed
in Wershow, Water Management, the Future of Florida, Legal Implications,
Fla.Bar.J., Vol. LI, No. 3 (March 1977). It should be noted paren-
thetically that although water management districts created pursuant
to Section 373.069, F.S. (Supp.1976), do not have.rule-making authority
concerning'water quality, it is implicit in Chapter 373, F.S., that the
district should not, by permit, authorize unlawful degradation of
water quality. Attorney General Opinion 075-16. In general, the
Environmental Regulation Commission under Chapter 75-22, and the pro-
visions of Chapter 403, F.S., supplants and exercises the powers of
the former Pollution Control Board as the head of the former Department
of Pollution Control (transferred to the Department of Environmental
Regulation, see Section 8 of Chapter 75-22, and Section 20.261(4), F.S.),
in establishing and enacting water quality standards for the state
as a whole. (See Section 40.3.061(13), F.S.) The Commission shares
the designated part of such rule-making -authority with and is subject
to the final action and approval of the Governor and the Cabinet as
to such designated rule-making authority only. Section 403.804, F.S.
The Commission does, however, serve as the adjudicatory body for
final actions taken by the department, except for those appeals and
decisions authorized in Section 20.261(12) and Section 253.76, F.S.
(Section 5, Chapter 75-22.) See Section 403.804(1), F.S.

Chapter 75-22, Laws of Florida, does not affect the Secretary's
authority with regard to Chapter 373, Florida.Statutes. Section
6(1) (b) of Chapter 75-22 (Section 403.804(2), F.S.) is a limitation
on, or an exception to the Commission's power with respect to water
quality rule-making. Such exceptions must be strictly construed.
Farrey v. Bettendorf, 96 So.2d 889 (Fla.1957); State v. Nourse, 340
So.2d 996 (2 DCA Fla.1976). And, of course, the express mention
of the exception of certain powers would necessarily exclude any other
Exceptions. See Dobbs v. Sea Isle Hotel, 56 So.2d 341 (Fla.1952) and
Williams v. American Surety Co. of N. Y., 99 So.2d 877 (2 DCA Fla.1958).
However, such an exception does not grant or vest in the Secretary
any rule-making power regarding water quality rules or standards.

The pertinent part of Section 11, Chapter 75-22 (Section 373.114,
F.S.) operates as a limited or partial deprivation of the Secretary's
power otherwise possessed under Section 373.026(7), F.S., to review
and rescind or modify any rule or order of a water management district,
except the internal management of the district. This section places
such power in the Governor and Cabinet as the Land and Water
Adjudicatory Commission, but does not vest any power in that regard
in the Environmental Regulation Commission, nor does it take from









Honorable Joseph W. Landers, Jr. 077-95'
Page 5


the Secretary any other powers he may have over the districts or the
administration of Chapter 373, F.S.
SUMMARY

The Environmental Regulation Commission established
by Section 4(7) of Chapter 75-22, Laws of Florida, is
authorized to set standards and make rules relating to
water quality. The Governor and Cabinet as the Land and
Water Adjudicatory Commission possess the exclusive
authority, notwithstanding the provisions of Section
373.026(7), F.S., to review policies, rules, regula-
tions, and orders of the water management districts.
The Department of Environmental Regulation and the
water management districts created by Section 373.069,
F.S. (1976 Supp.),have authority relating to water
quantity, water use, storage and conservation, pro-
tection, management and control o.f water resources of
the state.

Sincerely,




iABT L. SHE N
Attorney General

RLS/MSF/blg
















|;














Sec. 11, Ch. 75-22 of Env. Reorg. Act



Section 11. All powers, duties and functions of the Department of
Natural Resources relating to water management as set forth in chapter
'78, Florida Statutes, and chapter 74-114, Laws of Florida, are transferred
by a type four transfer, as defined in s. 20.06(4), Florida Statutes,.to the
department, provided that nothing in this transfer shall affect the existence
of, or membership on, any water management district board; and provided
further that, notwithstanding the provisions of s. 373.026(7), Florida
Statutes, the governor and cabinet, sitting as the Land and Water Ad-
t$udieatory Commission, shall have the exclusive power by a vote of four
bo the members, to review, and may rescind or modify any rule or order
ajt a water management district, except those rules which involve only
i the internal management of the water management district, to insure
compliance with the provisions and purposes of chapter 378, 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. Such request for review
is not a precondition to. the effectiveness of such rule or order, or to
:the seeking of judicial review as provided by as. 373.133 and 120.68,
Florida Statutes. The powers, duties and functions of the Department of
Natural Resources exercised by the Bureau of Water Resources are
transferred by a type four transfer, as defined in s. 20.06(4), Florida
Statutes, to the department.;All powers, duties and functions of the De-
partment of Natural Resources relating to permits, licenses, and ekemp-
tions, pursuant to chapter 253, Florida Statutes, are transferred by a type
four transfer, as defined in s. 20.06(4), Florida Statutes, to the department.
All powers, duties and functions of the Department of Natural Resources
relating to water management districts, as set forth in chapter 298,
Florida Statutes, are transferred by a type four transfer, as defined in
s. 20.06(4), Florida Statutes, to the department; provided, however, that
the department shall not have the authority to borrow money, issue notes,
or incur indebtedness.


I


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