Title: Opinion File 78-32 thru 78-40
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
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Permanent Link: http://ufdc.ufl.edu/WL00003531/00001
 Material Information
Title: Opinion File 78-32 thru 78-40
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Buddy Blain's Collections - Opinion File 78-32 thru 78-40
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 83
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003531
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


^EST Southwest Florida

". Water M1anage!
196 5060 U.S. HIGHWAY 41, SOUTH KEY WORnDS:
PHONE (90 "DS: -er
'SN4GEMn. 9 DERRILL McATEER, Chairman, Brooksville N. BROOKS urg
ROBERT MARTINEZ, Vice Chairman, Tampa RONALD B. _
THOMAS VAN DER VEER, Secretary, Yankeetown NICK PEND
S. C. BEXLEY, Treasurer, Land O'Lakes GEORGE RU sector
September 27, 1978



L.M. Blain, Esquire
Post Office Box 399
Tampa, FL 33601

Re: Development of Regional Impact Statements

Dear Buddy:

As you are probably aware, for quite some time now the District staff
has been reviewing and commenting to regional planning councils on
Development of Regional Impact (DRI) statements.

I am uncertain how this first began, but the opinion of those staff
members most closely involved is that our review and comments are
Done as a courtesy to the planning councils which have historically
had inadequate hydrologic expertise to allow complete evaluation of
DRIs.

I am concerned about the possible conflicts concerning comments on
DRIs forwarded to planning councils by the District staff and action
taken by the District Governing Board on a permit application which
involves the same area as the At your earliest conveniPncp
please provide me with an Tni~r regarding the dearpp to which the
Regulatory Division staff Ild be concerned with making recommenda-
tions on such permit applications that are consistent with the
recommendations on DRIs forwarded to the planning councils.

Further, how might the Governing Board be influenced or bound by the
staff's action on a DRI review?

If you have any questions regarding the procedure of DRI reviews
please contact Linda Cannon in the Planning Section. Please contact
me if clarification of my concerns is needed.

Very truly yours,



BARBARA A. BOATWRIGHT
f(I Director
Regulatory Division

BAB:ag

cc: J.B. Butler
E.D. Vergara
L. Cannon


j






At -,2j8-33
1 t LAW OFFICES -
BLAIN & CONE, P. A.
P.O. BOX 30
(1 L.M.BLAIN TAMPA, FLORIDA 33801
THOMAS E.CONE,JR. 202 MADISON STREET
RUSSELL M. BLAIN October 2 1978 13) 223-3






Barbara A. Boatwright, Director #10010
Regulatory Division
Southwest Florida Water
Management District
5060 U.S. Highway 41 South
Brooksville, Florida 33512

RE: District Participation
DRI Review Process

Dear Ms. Boatwright:

In reply to your request for an opinion concerning certain
aspects of SWFWMD involvement in the DRI review process under
Chapter 380, F.S., I propose to address the following questions:

1 i. Is the SWFWMD required to participate in the
DRI review process?

2. May the District participate in the process?

3. To what extent should the District participate?

4. To what extent should Regulatory recommendations
on CUP's and Planning comments on DRI's be
consistent?

5. Is the Governing Board bound by staff comments
to a regional planning agency?


First, Is the SWFWMD required to participate in the DRI review
process? In my opinion,the District is not required by law to
participate in the DRI review process under Ch. 380, F.S. As you
know, the various regional planning agencies are required to
review applications for development approval, under Ch. 380.06, F.S.,
when a proposed development is expected, as a result of its
character, magnitude, or location, to have a substantial effect
upon the health, safety, or welfare of citizens of more than one
county. Upon conclusion of its review, the regional planning
council prepares a report and recommendations, for consideration





A r /^8-34


Barbara A. Boatwright
Page Two
October 2, 1978




by the applicable local governmental authority. F.S. 380.06(8).
The statutory parties in this process are the appropriate local
governmental authority, the developer, the appropriate regional
planning agency, and the state land planning agency. The water
management district, within which the development will occur, is
not included in the process by statute; nor have the water
management districts been made parties to the proceeding by rule
or regulation. It follows that SWFWMD need not participate.

Second, May the SWFWMD participate in the DRI review process?
In my opinion the SWWMD mayparticipate in the DRI review process
on matters affecting the water resources within the District's
territorial boundaries.

As part of the review process, the regional planning agencies
are required to consider whether, and to what extent, the
development will have a favorable or unfavorable impact on the
environment and natural resources of the region. (F.S. 380.06(8)(a)).
SThe various water management districts have ample authority
under Ch. 373, F.S., to take appropriate action to promote the
conservation, protection, and management of the water resources
within their respective territorial areas. This includes cooperation
with other governmental agencies in surveys, investigations, and
similar activities relating to the water supply and resources of
each district. F.S. 373.083(3).

Third, To what extent should the District participate? This is
essentially a policy matter for the Governing Board of the District.

It seems to me that the various water management districts are
singularly well situated to provide a "regional perspective" of
the anticipated effects of particular developments upon the water
resources of each district. In appropriate cases, the formulation
by district staff of a report for use by a regional planning agency,
addressing the "regional water resource impacts" of a particular
development seems to be a suitable level of participation. Site
specific analysis of anticipated "local effects" is probably too
great a level of participation. Further, the preparation of a
report in every DRI review within the District is probably
unwarranted.

In any event, the extent of staff participation should be fixed
and governed by policy decision of the Governing Board.




4 -1--


78-35


Barbara A. Boatwright
Page Three
October 2, 1978




Fourth, To what extent should Regulatory recommendations on
CUP's and Planning comments on DRI's be consistent? Consistency
should be a primary goal of staff participation in these matters.
All staff action should be consistent with policy decisions of
the Governing Board, as expressed in the District Water Management
Plan and as implemented in the various regulatory programs of
the District. Inconsistent actions tend to reduce District
credibility and expose the District to charges of bias or
favoritism. They should be avoided. Neither Planning nor
Regulatory should feel free to ignore the actions of the Governing
Board, or of each other. To the greatest extent possible the
District should speak with a single voice.

It seems to me that in the formulation of a report to a
regional planning agency, the District staff should be aware of
Governing Board regulatory activities on or near the subject
property. Similarly, District staff should be familiar with such
reports when addressing applications for regulatory permits on
or near the property involved in the report.

Fifth, Is the Governing Board bound by staff comments to a
regional planning agency? As a general rule the Governing Board
is prohibited from delegating to the staff those discretionary
powers which the legislature has vested in it. Staff actions
setting "policy" for the District are typically beyond the authority
of the staff and, generally, may be set aside or overruled by
the Board. Of course, this would be regarded by members of the
public as inconsistent action and should be avoided.

Further, the possibility exists that if a developer were to
change his position in reliance upon certain staff comments or
recommendations, the District Governing Board could become
legally or equitably stopped from later changing its own position
on the development. This is especially likely if the staff has
the apparent authority to speak for the Governing Board.

Accordingly,I recommend that a specific disclaimer be included
in any District report prepared during the DRI review porcess.
The following language would appear to be sufficient for this
purpose:

PLEASE TAKE NOTICE THAT:
This report represents the opinion of the author,
based on the information available to him/her at
the time it was prepared. The author reserves





*\ 'i r 78-36

Barbara A. Boatwright
Page Four
r October 2, 1978




the right to change his/her opinion in the
event of changes in relevant facts or
circumstances.

This report does not represent the position
or opinion of the Southwest Florida Water
Management District or of its Governing
Board. The Governing Board has reserved
the exclusive right to act on all matters
within its jurisdiction without regard to
this report or any recommendations which may
appear therein.

I hope that this letter is responsive to your inquiry. If
clarification of my views is needed, please contact me at your
convenience.

it est regards,


L. M. Bl in

LMB/TECjr/jf /

cc: Mr. J. B. Butler
Mr. E. D. Vergara
Ms. L. Cannon


__ -L -






100 V ~-_ ?8 37
LAW OFFICES
BLAIN & CONE, P. A.
P. O. BOX 390
Ses TAMPA, FLORIDA 33601
L .CONEJR. 202 MA. -ON STREET
[pa J'LL M. BLAIN |n13) 13-3BaB
EL N October 2, 1978






Barbara A. Boatwright, Director 10010
Regulatory Division 0
Southwest Florida Water
Management District Regulato'
5060 U.S. Highway 41 South
Brooksville, Florida 33512 ksville

RE: District Participation
DR Re iew Process

Dear M:Stwrg

In reply to your request for an opinion concerning certain
aspects of SWFWMD involvement in the DRI review process under
Chapter 380, F.S., I propose to address the following questions:

1. Is the SWFWMD required to participate in the
DRI review process?

2. May the District participate in the process?

3. To what extent should the District participate?

4. To what extent should Regulatory recommendations
on CUP's and Planning comments on DRI's be
consistent?

5. Is the Governing Board bound by staff comments
to a regional planning agency?


First, Is the SWFWMD required to Darticipate in the DRI review
process? In my opinion,the District is not required by law to
participate in the DRI review process under Ch. 380, F.S. As you
know, the various regional planning agencies are required to
review applications for development approval, under Ch. 380.06, F.S.,
when a proposed development is expected, as a result of its
character, magnitude, or location, to have a substantial effect
upon the health, safety, or welfare of citizens of more than one
county. Upon conclusion of its review, the regional planning
council prepares a report and recommendations, for consideration






178-38


Barbara A. boatwright
Page Two
October 2, 1978




by the applicable local governmental authority. F.S. 380.06(8).
The statutory parties in this process are the appropriate local
governmental authority, the developer, the appropriate regional
planning agency, and the state land planning agency. The water
management district, within which the development will occur, is
not included in the process by statute; nor have the water
management districts been made parties to the proceeding by rule
or regulation. It follows that SWFWMD need not participate.

Second, May the SWFWMD participate in the DRI review process?
In my opinion the SWFWMD ay participate in the DRI review process
on matters affecting the water resources within the District's
territorial boundaries.

As part of the review process, the regional planning agencies
are required to consider whether, and to what extent, the
development will have a favorable or unfavorable impact on the
environment and natural resources of the region. (F.S. 380.06(8)(a)).

The various water management districts have ample authority
under Ch. 373, F.S., to take appropriate action to promote the
conservation, protection, and management of the water resources
within their respective territorial areas. This includes cooperation
with other governmental agencies in surveys, investigations, and
similar activities relating to the water supply and resources of
each district. F.S. 373.083(3).

Third, To what extent should the District participate? This is
essentially a policy matter for the Governing Board of the District.

It seems to me that the various water management districts are
singularly well situated to provide a "regional perspective" of
the anticipated effects of particular developments upon the water
resources of each district. In appropriate cases, the formulation
by district staff of a report for use by a regional planning agency,
addressing the "regional water resource impacts" of a particular
development seems to be a suitable level of participation. Site
specific analysis of anticipated "local effects" is probably too
great a level of participation. Further, the preparation of a
report in every DRI review within the District is probably
unwarranted.

In any event, the extent of staff participation should be fixed
and governed by policy decision of the Governing Board.


I






7- 8-39

Barbara A. Boatwright
Page Three
October 2, 1978




Fourth, To what extent should Regulatory recommendations on
CUP's and Planning comments on DRI's be consistent? Consistency
should be_a_primary goal of sta participation in these matters.
'-s staff action should be consistent with policy decisions of
the Governing Board, as expressed in the District Water Management
Plan and as implemented in the various regulatory programs of
the District. Inconsistent actions tend to reduce District
credibility and expose the District to charges of bias or
favoritism. They should be avoided. Neither Planning nor
Regulatory should feel free to ignore the actions of the Governing
Board, or of each other. To the greatest extent possible the
District should speak with a single voice.

It seems to me that in the formulation of a report to a
regional planning agency, the District staff should be aware of
Governing Board regulatory activities on or near the subject
property. Similarly, District staff should be familiar with such
reports when addressing applications for regulatory permits on
or near the property involved in the report.

Fifth, Is the Governing Board bound by staff comments to a
regional planning agency? As a general rule the Governing Board
is prohibited from delegating to the staff those discretionary
powers which the legislature has vested in it. Staff actions
setting "policy" for the District are typically beyond the authority
of the staff and, generally, may be set aside or overruled by
the Board. Of course, this would be regarded by members of the
public as inconsistent action and should be avoided.

Further, the possibility exists that if a developer were to
change his position in reliance upon certain staff comments or
recommendations, the District Governing Board could become
legally or equitably stopped from later changing its own position
on the development. This is especially likely if the staff has
the apparent authority to speak for the Governing Board.
Accordingly, I recommend that a specific disclaimer be included
in any District report prepared during the DRI review porcess.
The following language would appear to be sufficient for this
purpose:
PLEASE TAKE NOTICE THAT:
This report represents the opinion of the author,
based on the information available to him/her at
the time it was prepared. The author reserves






78-40


Barbara A. Boatwright
Page Four
October 2, 1978




the right to change his/her opinion in the
event of changes in relevant facts or
circumstances.

This report does not represent the position
or opinion of the Southwest Florida Water
Management District or of its Governing
Board. The Governing Board has reserved
the exclusive right to act on all matters
within its jurisdiction without regard to
this report or any recommendations which may
appear therein.

I hope that this letter is responsive to your inquiry. If
clarification of my views is needed, please contact me at your
convenience.

lit est regards,


L. M. Blin
LMB/TECjr/jf /

cc: Mr. J. B. Butler
Mr. E. D. Vergara
Ms. L. Cannon




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