Title: Osceola County, A Political Subdivision of the State of Florida , vs. St. Johns River Water Management District, Appeal From the District Court of Appeal, Fifth District-Appendix to Petitioner's Brief on the Merits
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Title: Osceola County, A Political Subdivision of the State of Florida , vs. St. Johns River Water Management District, Appeal From the District Court of Appeal, Fifth District-Appendix to Petitioner's Brief on the Merits
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Abstract: Jake Varn Collection - Osceola County, A Political Subdivision of the State of Florida , vs. St. Johns River Water Management District, Appeal From the District Court of Appeal, Fifth District-Appendix to Petitioner's Brief on the Merits (JDV Box 91)
General Note: Box 23, Folder 1 ( Miscellaneous Water Papers, Studies, Reports, Newsletters, Booklets, Annual Reports, etc. - 1973 -1992 ), Item 39
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IN THE SUPREME COURT OF FLORIDA


OSCEOLA COUNTY, a political
subdivision of the State of
Florida,


Petitioner,


)


vs.

ST. JOHNS RIVER WATER
MANAGEMENT DISTRICT,

Respondent.


Case No. 68,791


Appeal From The District Court Of Appeal, Fifth District







APPENDIX TO PETITIONER'S BRIEF ON THE MERITS


Neal D. Bowen, Esquire
Osceola County Attorney
Co-Counsel for Petitioner
17 South Vernon Avenue
Kissimmee, Florida 32741
(305) 847-1200


William L. Earl, Esquire
PEEPLES, EARL & BLANK, P.A.
Counsel for Petitioner
One Biscayne Tower, Suite 3636
Two South Biscayne Boulevard
Miami, Florida 33131
Telephone: (305) 358-3000


PEOPLES, EARL & BLANK
ATTORNEYS AT LAW


I







IN THE SUPREME COURT OF FLORIDA


OSCEOLA COUNTY, a political
subdivision of the State of
Florida,

Petitioner,


vs.


Case No. 68,791


ST. JOHNS RIVER WATER
MANAGEMENT DISTRICT,

Respondent.


APPENDIX TO PETITIONER'S BRIEF ON THE MERITS


TABLE OF CONTENTS


Document


Opinion of the Florida Fifth District Court
of Appeal in Osceola County v. St. Johns
River Water Management District,
486 So.2d 616 (Fla. 5th DCA 1986) . .

Osceola County's Petition for Writ of
Prohibition dated May 6, 1986 . .

Brevard County's Consumptive Use Permit
Application No. 2-097-0009AN, Filed with the
St. Johns River Water Management District,
for an Allocation of Water Resources Located
within the South Florida Water Management
District. . . . . .

Affidavit of Robert Moresi, as to Location of
the Holopaw Well Field Being Beyond the
Boundaries of the St. Johns River Water
Management District . . . .

Affidavit of Dr. Patrick J. Gleason, Director
of Water Use Division, South Florida Water
Management District, as to the Inadequacy of
Brevard County's Permit Application to the
South Florida Water Management District .

Statutory Legal Descriptions of Water
Management Districts, Section 373.069(2),
Florida Statutes. . . . .


. .. .APP1


. . .APP11






. . APP19




. . .APP25





. . .APP27



. . .APP29


PEEPLES, EARL & BLANK
ATTORNEYS AT LAW








Page

Osceola County's Consolidated Reply to Responses
to Order to Show Cause, dated June 29, 1985 . .APP36

Response to Order to Show Cause by St. Johns River
Water Management District, dated May 24, 1985 . .APP61

Florida Department of Environmental Regulation's
Amicus Curiae Response to Order to Show Cause,
dated May 24, 1986. . . . . .APP78

Florida Administrative Code Rule 17-40. . . .APP83

Certificate of Service










































PEOPLES, EArL & BLANx
ATTORNEYS AT LAW








IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT JANUARY TERM 1986


OSCEOLA COUNTY, a political subdivision NOT FINAL UNTIL THE TIrE E-PIRES
of the State of Florida, O7 FILE REHEARING MOTJOI. AD,
X BLED, DISPOSED E6, _
Petitioner,

v. Case No. 85-678

ST. JOHNS RIVER WATER MANAGEMENT
DISTRICT,
Respondent.


Opinion filed March 6, 1986

Petition for Writ of Prohibition,
A Case of Original Jurisdiction.

William L. Earl and Elizabeth M. Weaver,
of Peoples, Earl & Blank, P.A., Miami,
for Petitioner.

Vance W. Kidder, Palatka, for Respondent.

Clifton A. McClelland, Jr., of Potter,
McClelland, Griffith, Jones & Marks, P.A.,
Melbourne, Amicus Curiae, for South Brevard
Water Authority.

Deborah A. Getzoff, Assistant General Counsel,
Tallahassee, Amicus Curiae, for State of
Florida, Department of Environmental Regulation.

ORFINGER, J.

The issue presented in this petition for writ of prohibition is whether

transfer of water from one water management district to another is authorized

by law. Put another way, does the Department of Environmental Regulation of

the State of Florida (D.E.R.) have the statutory authority to adopt an ad-in-

istrative rule prescribing the procedure to be followed and the guidelines to

be observed by the respective water management districts in considering inter-

district water transfers? We answer the question in the affirmative and deny

the writ.

The South Brevard Water Authority applied to the St. Johns River Water

Management District for a consumptive use permit which would authorize the
use, in Brevard County, of water to be drawn from the Holopaw region of

Osceola County.2 Brevard County is completely within the St. Johns River


1 See 373.219, Fla.Stat. (1985).
As will be demonstrated, infra, it is also necessary for the applicant to
seek and secure the approval of the South Florida Water Managenent District,
from where the water will be drawn.
APP1






Water Management District, as is a portion of Osceola County. However, the

Holopaw region of Osceola County lies within the South Florida Water

Management District (South Florida). Osceola County petitions this court for

a writ of prohibition to prevent the St. Johns River Water Management District

(St. Johns) from considering this consumptive use permit, claiming that an

individual water management district lacks jurisdiction under the Florida

Water Resources Act to consider a consumptive use permit application relating

to water which will be diverted from outside its boundaries.
Petitioner asserts that the issue before the court is whether St. Johns

may exercise jurisdiction on resources outside its territorial boundaries, but

to state the question thusly virtually requires the conclusion that it may
not. The real issue here is whether the Florida Water Resources Act gives

D.E.R. the power to authorize such transfers.

Respondent challenges Osceola County's standing to seek this writ. We

can dispose of that issue quickly by noting that counties in this state have

various statutory duties and responsibilities with respect to planning for

water management and conservation, sufficient to give them an interest in any

activity of the state or of the agencies of the state as may appear to affect

those duties and responsibilities. See, e.g. 163.3161(3), 163.3177(6)(d),

373.196(1), (2) and (3), Fla.Stat. (1985). Osceola County has standing. See

Gieger v. Sun First National Bank of Orlando, 427 So.2d 815 (Fla. 5th DCA

1983).

Respondent also asserts that Osceola County must first exhaust its admin-

istrative remedies before seeking relief in the courts. Here, prohibition is

sought on the assertion that St. Johns lacks jurisdiction to even hear the

request for a permit. A persuasive challenge to agency jurisdiction has been

held to be a widely recognized exception to the exhaustion doctrine. State,

Deot. of Environmental Reoulation v. Falls Chase Special Taxing District, 424

So.2d 787 (Fla. 1st DCA 1983). It is necessary, therefore to examine Oscecla

County's challenge to determine whether it is persuasive on that issue.

The Water Resources Act was enacted in 1972 to provide the state with a

comprehensive policy for the management of Florida water. See 373.C16,

APP2







Fla.Stat. (1985). The authority over water management activities was ini-

tially vested in the Department of Natural Resources (D.N.R.) but in 1975 the

Florida Environmental Reorganization Act created the Department of

Environmental Regulation (D.E.R.) as the centralized agency to implement the

state's various environmental programs, including the management of the

state's water resources. This centralization was partially effected by trans-

ferring D.N.R.'s authority over water management to D.E.R. Chapter 75-22,

11, Laws of Fla. The D.E.R. was also authorized to adopt an integrated,

coordinated plan for the use and development of Florida waters to be known as

the State Water Use Plan. See 373.036(1), Fla.Stat. (1985). Although the

amended Water Resources Act gave D.E.R. broad authority over programs

affecting the state's water resources, the legislature encouraged delegation

of appropriate powers to the regional water management districts. See

373,016(3), Fla.Stat. (1985).

The Water Resources Act originally established six water management

districts. In 1977, the districts were reorganized into five districts.

Chapter 77-104, 113, Laws of Fla. Section 373.219, Florida Statutes,

authorizes D.E.R. or the districts' governing boards to require permits for

consumptive use of water. Section 373.223(2), Florida Statutes (1985), pro-

vides for transfers of water in thfs manner:

The governing board or the department may authorize the
holder of a use permit to transport and use ground or
surface water beyond overlying land, across county
boundaries, or outside the watershed from which it is
taken if the governing board or the department determines
that such transport and use is consistent with the public
interest, and no local government shall adopt or enforce
any law, ordinance, rule, regulation, or order to the
contrary.


That the legislative intent was to adopt a state-wide policy of water
management is clearly demonstrated by section 373.016(3), which states:
The Legislature recognizes that the water resource prob-
lems of the state vary from region to region, both in
magnitude and complexity. It is therefore the intent of
the Legislature to vest in the Department of Environmental
Regulation or its successor agency the power and responsi-
bility to accomplish the conservation, protection,
management, and control of the waters of the state anc
with sufficient flexibility and discretion to accomplish
these ends through delegation of aopropriate powers to tne
various water management districts. The department may
exercise any power herein authorized to be exercised by a
water management district; however, to the greatest extent
practicable, such power should be delegated to the gov-
ernino board of a water management district. [EmDhasis
added].
-3- APP3
APP3







D.E.R. has adopted Rule 17-40.05, Florida Administrative Code, which

covers water transport, and specifically addresses inter-district transfers in

this manner:
(1) The transport or use of water across District bound-
aries shall require approval of each involved District.

(2) In deciding whether the transport and use of water
across District boundaries is consistent with the public
interest pursuant to Section 373.223, Florida Statutes,
the Districts should consider the extent to which:

(a) Comprehensive water conservation and reuse programs
are implemented and enforced in the area of need.

(b) The major costs, benefits, and enrivornmental impact
have been adequately determined including the impact on
both the supplying and receiving areas;

(c) The transport is an environmentally-and economically
acceptable method to supply water for the given purpose;

(d) The present and projected water needs of the sup-
plying area are reasonably determined and can be satisfied
even if the transport takes place;

(e) The transport plan incorporates a regional approach
to water supply and distribution including, where
appropriate, plans for eventual interconnection of water
supply sources; and

(f) The transport is otherwise consistent with the public
interest based upon evidence presented.

Petitioner claims that this administrative rule is an unauthorized usur-

pation of power because D.E.R. was not granted specific authority to approve

inter-district diversions of water, nor do the water management districts have

independent statutory authorization to approve inter-district movements of

water. Petitioner reasons that since the legislature in providing for move-

ment of water across county lines, beyond overlying lands and outside of the

watershed from which it is taken, was silent as to inter-district transport,

the legislature must have intended that each district would be limited to

managing the water resources within its own boundaries and that water could

not be moved from one district to another, under any circumstances. We reject

this premise.

In relation to D.E.R., the five water management districts are both

subordinate and independent. D.E.R. has chosen to retain supervisory author-

ity over many of the regional functions delegated to the districts in order to

assure uniformity and maximum effectiveness among the districts. See e.o.,

373.103, Fla.Stat. (1985); Fla. Admin. Code Rule 17-40.10(2)-(4). On the

other hand, many powers and duties granted to the water management districts

A4-
APP4







by law aDDear to be independent of D.E.R. See e.a., 373.0693, 373.0697,

373.083-099, 373.106, 373.119, 373.139, 373.171, Fla.Stat. (1985).

See also Deseret Ranches of Florida, Inc. v. St. Johns River Water Management
District, 406 So.2d 1132, 1139 (Fla. 5th DCA 1981), affirmed in part, reversed

in oart, 421 So.2d 1067 (Fla. 1982). It is conceded that the water management

districts do not have independent authority to plan for the inter-district

diversion of water. The primary question, then, is whether the water manage-

ment districts have been properly delegated that authority by D.E.R.
Recognizing that the waters In the state are among Florida's basic

resources, the Florida legislature, through Chapter 373, Florida Statutes,

'The Florida Water Resources Act," provided a comprehensive statewide plan for

the conservation, protection, management and control of state waters. Deseret

Ranches, 421 So.2d at 1068. The legislature enacted the Water Resources Act

to develop a regulatory framework of managing water resources at both a state

and regional level. See 373.016(3), Fla.Stat. (1985). The individual water

management districts do not just promote local or regional interests and

policies, but also further the state functions and policies relating to water

resource conservation, control, planning and development. Nothing in the

Water Resources Act indicates a legislative intent that water management

districts operate solely as independent provinces, without regard for state-

wide concerns. This parochial view is clearly negated by the statute which

implements a statewide water management plan. A two-tiered system of state

and regional management was perceived by the legislature as the most effective

way to conserve and manage the state's total water resources.
Nothing in the Water Resources Act prohibits D.E.R. from allowing inter-

district diversions of water. The statutory authority to allow such inter-

district diversions of water is necessarily implied in the grant to D.E.R. of

statewide power to regulate the management of water resources and by the

specific legislative authority to permit the transport and use of water

"beyond overlying land, across county boundaries or outside the watershed fror

which it is taken."4 373.223(2), Fla.Stat. (1985). Political boundaries


4
The record shows without dispute that in some cases, the boundary lines of
the water management districts divide counties, so that one part of a county
is within one district and the other part of the county is within an adjacent
district. For example, parts of Orange and Osceola counties lie within St.
(Continued).


APP5







are artificial divisions that may and sometimes should be transcended when

planning for the most beneficial use of our state's water resources. The

borders of water management districts are also artificial divisions, and the

area on either side of the boundaries of neighboring districts are in the same

geographical region.5 It would be incongruous for the legislature to vest

D.E.R. with central authority over the management of the state's water

resources while intending for D.E.R. to be restricted in its planning by the

regional boundary lines comprising the territories of the districts. We hold

that the legislature has impliedly granted to D.E.R. the authority to allow

inter-district diversions of water, and such authority is properly delegated

to the water management districts.

The Water Resources Act does not give D.E.R. or the water management dis-

tricts unbridled authority to make statewide water policy decisions. Tne

governor and cabinet, sitting as the Land and Water Adjudicatory Cofrission,

have authority to review any order or rule of a water management district,

other than a rule relating to an internal procedure of a district, to ensure

consistency with the provisions and purposes of the Florida Water Resources

Act. See 373.114, Fla.Stat. (1985); Griffin v. St. Johns River Water

Management District, 409 So.2d 208 (Fla. 5th DCA 1982). Judicial review of a

final administrative action regarding water resources is also recognized. See

Griffin, supra.

Our holding reflects the legislative intent, expressed in section

373.6161, Florida Statutes (1985), that the Water Resources Act shall be

construed liberally for effectuating the purposes described in the Act. The



(Continued)

Johns, and the remainder of said counties lie within South Florida. If we
adopt the view of petitioner that inter-district transfers are prohibitec,
then transfers within the same county would be prohibited if the county was
divided by a district line and water was to be moved across the line, and we
find nothing in the statute to sustain that position. On the contrary, in tne
State Comprehensive Plan, section 2(8)(b)3, Chapter 85-57, Laws of Florida,
for the purpose of implementing the goal of assuring the availability of an
adequate water supply for all competing uses, the legislature adopted as a
policy the encouragement of the development of local and regional wate- suo-
plies within water management districts "instead of transporting surface wate-
across district boundaries." This policy gives additional' impetus to
respondent's position that the legislature did not intend to prohibit inter-
district diversions of water.

St. Johns' response also indicates that the actual bounds of the watershed
of the St. Johns River extend westward beyond the legislative boundary of the
district, and physically extend into the HoloDaw region of Osceola County, t"e
area near where the wellfield of concern here would be located, if properly
approved.
-6- APP 6







Act clearly mandates consideration of the total water needs in Florida. Cf.

Pinellas County v. Lake Padoett Pines, 333 So.2d 472,479 (Fla. 2d DCA 1976).

The petition for writ of prohibition is


DENIED.





















































UPCHURCH, F., J., concurs.
SHARP, W., J., dissents with opinion.


APP7









85-678


SHARP, W., J., dissenting.

Simply stated, the issue in this case is whether or not one water

management district has jurisdiction to act on a consumptive use permit

outside of its statutory boundaries, under the provisions of the Florida

Water Resources Act of 1972. The location of the intended use of the

water is in the St. Johns Water Management District, but the location of

the water to be withdrawn is in the South Florida Water Management

District, and further the county from which water is to be withdrawn

(Osceola) is different than the county of proposed use (Brevard). I

find no express or implied power under that statute for such an inter-

district transfer and therefore I would grant the writ of prohibition.

Initially, respondent challenges the standing of Osceola County to

file this proceeding. Osceola *County has a sufficient interest in the

use of the water resources within its boundaries to give it standing to

file this petition.1 Although the Florida Water Resources Act of 1972

gives to the districts and the DER exclusive authority for granting or

denying consumptive use permits, section 373.219, Florida Statutes

(1983), the counties are required by statute to make plans for and carry

out local efforts to conserve and manage the water resources within

their boundaries. 1 163.3161(3), Fla. Stat. (1983); 163.3177(6)(d),

Fla. Stat. (1983); S 373.196(1), (2) & (3), Fla. Stat. (1983); Ch.

85-55, 5 6 Laws of Fla. Further, section 125.01(1), Florida Statutes

(1983) also empowers counties to provide and regulate their own water

supply and conservation programs, and to perform other acts not

inconsistent with the common interest of the people in the county.

125.01(1)(k) & (w), Fla. Stat. (1983).

Although Osceola County may not directly participate in the

permitting process, the legislature clearly intends for counties to play

a role in water management. This intended participation, plus the

County's concern for the best interest of its citizens regarding

conservation of Osceola County's water supply give it sufficient


1 See Gieger v. Sun First National Bank of Orlandc, 427 So.2d 815
(Fla. -5h DCA 1983); Argonaut Ins. Co. v. Commercial Standard Ins. Co.,
380 So.2d 1066 (Fla. 2d DCA), review denied, 389 So.2d 1108 (Fla. 198C).


APP8








standing in this case to question an unauthorized taking of water beyond

the district lines.

Respondents also argue that Osceola County must exhaust its

administrative remedies or relief. However, a persuasive challenge to

an agency's jurisdiction is a widely recognized exception to the

necessity to exhaust administrative remedies. See 2 Cooper, State

Administrative Law, 577 (1965); Department of Environmental Regula-

tion v. Falls Chase Special Taxing District, 424 So.2d 787 (Fla. 1st DCA

1982), review denied, 436 So.2d 98 (Fla. 1983).

Respondents rely upon Rule 17-40.05, Florida Administrative Code as

the basis for the procedure being challenged in this case. The Rule

provides:

The following shall apply to the transfers of
water where such transfers are regulated pursuant to
Part II of Chapter 373, Florida Statutes:

(1) The transport or use of water across
District boundaries shall require approval of each
involved District.

(2) In deciding whether the transport and use
of water across District boundaries is consistent
with the public interest pursuant to section
373.223, Florida Statutes, the Districts should
consider the extent to which:

(a) Comprehensive water conservation and reuse
programs are implemented and enforced in the area of
need.

(b) The major costs, benefits and environ-
mental impact have been adequately determined
including the impact on both the supplying and
receiving areas;

(c) The transport is an environmentally and
economically acceptable method to supply water for
the given purpose;

(d) The present and projected water needs of
the supplying area are reasonably determined and can
be satisfied even if the transport takes place;

(e) The transport plan incorporates a regional
approach to water supply and distribution including,
where appropriate, plans for eventual intercon-
nection of water supply sources; and

(f) The transport is otherwise consistent with
the public interest based upon evidence presented.

However, there is no provision in Chapter 373, Part II, pertaining

to consumptive use permits which allows any district to take any acticr

regarding the water resources outside its statutory boundaries defined

in section 373.069, Florida Statutes (1983). An agency has only such


APP9








power as is expressly given or by necessity implied by legislative

enactment; it may not increase its own jurisdiction. Department of

Environmental Regulation v. Fall Chase Special Taxing District, 424

So.2d 787 (Fla. 1st DCA 1982), review denied, 436 So.2d 98 (Fla. 1983).

Under the Act each district is required to plan for, conserve, manage,

and protect the water resources in its own district only. 1 373.118(2),

Fla. Stat. (1983); i 373.216, Fla. Stat. (1983). Although the formula-

tion of a state use plan is contemplated by section 373.036(1), Florida

Statutes (1983), the Act does not provide criteria for a supervisory

agency to use in making water resource plans on a statewide basis, and

no statewide plan has been as yet formulated by any state agency.

Maloney, Frank E., Florida Water Law, 213-218 (1980). Therefore, no

provision of the Act permits the DER or any district or any other

super-agency, to resolve the competing needs and interests of different

districts within this state.

The Act contemplates transfers across County lines and watershed

areas within the same district. Section 373.223(2), Florida Statutes

(1983) provides:

(2) The governing board or the department may
authorize the holder of a use permit to transport
and use ground or surface water beyond overlying
land, across county boundaries, or outside the
watershed from which it is taken if the governing
board or department determines that such transport
and use is consistent with the public interest, and
no local government shall adopt or enforce any law,
ordinance, rule, regulation, or order to the
contrary.

Significantly, transfers outside district lines are not included.

Criteria to resolve competing uses and needs for permits within a

district are clearly set out by the Act, and are given to each district

to resolve. 1 373.219(1), Fla. Stat. (1983). However, there are no

such criteria for inter-district transfers. Kemp, Deborah J., Inter-

basin Transfers of Water in Florida, 56 Fla. B. J. 9, 12 (1982). In my

view, it is no oversight or accident that inter-district transfers are

not expressly provided for in the Act. See Askew v. Cross Key Water-

ways, 372 So.2d 913 (Fla. 1978).









3 APP10







IN THE DISTRICT COURT OF APPEAL
FIFTH DISTRICT OF FLORIDA


OSCEOLA COUNTY, a political
subdivision of the State of
Florida, )
)
Petitioner,
)Case No. S- -7
s. )
) Florida Bar No. 141840
ST. JOHNS RIVER WATER
MANAGEMENT DISTRICT,

Respondent.




PETITION FOR WRIT OF PROHIBITION C-


Petitioner, Osceola County, a political subdivision of the

State of Florida, files this Petition for Writ of fiohibitin, -

and avers:


I.

Jurisdiction

1. Osceola County respectfully invokes the jurisdiction of

this Court to issue writs of prohibition under Article V, Section

4(b)(3) of the Florida Constitution, and Rules 9.030(b)(3) and

9.100(a), Florida Rules of Appellate Procedure, to prohibit an

administrative agency, the St. Johns River Water Management

District ("St. Johns District"), from exceeding its statutory

jurisdiction. The jurisdictional issue presented in this peti-

tion is a matter of first impression with statewide significance.


II.

Need for Immediate Relief

2. Absent immediate, emergency relief from this Court, the

St. Johns River Water Management District will, on Tuesday, May

7, 1985, exercise purported jurisdiction over water resources

outside the limits of its statutorily defined, jurisdictional

boundaries. Osceola County has no adequate remedy at law to pre-

vent the unlawful exercise of jurisdiction b the St. J s

District on May 7, 1985.


-1-
CLERa DISTR!:' U0 AYPI.
FplM DISTRICT
PEOPLES, EABL & BLANE
-'A-11E-S -,V. APP11






III.

Facts Upon Which Petitioner Relies

3. Respondent, St. Johns River Water Management District,

is an agency of the State of Florida with headquarters in

Palatka, Florida. Its address is P. O. Box 1429, Palatka,

Florida 32078. The St. Johns District is statutorily responsible

for allocating water resources within its legislatively

established boundaries under the Florida Water Resources Act,

Chapter 373, Florida Statutes.

4. Petitioner, Osceola County, is a political subdivision

of the State of Florida responsible for protecting the health,

safety, morals, and general welfare of its citizens and resi-

dents. The Bolopaw area of Osceola County is the proposed site

for a well field to serve portions of Brevard County. The pro-

posed Holopaw well field is located outside the geographical

jurisdiction of the St. Johns River Water Management District.

(See Appendix A, Affidavit of Robert Moresi.)

5. On March 4, 1985, Brevard County applied to the St.

Johns District for a consumptive use permit to allow the

withdrawal of water from a large-scale well field of unspecified

location in the Holopaw region of eastern Osceola County, and for

the transport of that water for use in south Brevard County.

(See Appendix B, Brevard County's Consumptive Use Permit

Application No. 2-097-0009AN.) The Bolopaw area is located out-

side the legislatively established boundaries of the St. Johns

District, and is within the boundaries of the South Florida Water

Management District.

6. The Legislature created the water management districts

to regulate Florida's water resources on a hydrologically sound

basis, taking into consideration the hydrologic characteristics

of the districts and the interrelationship of all water resources

in the hydrologic cycle. See Maloney, Capehart & Hoofman,

Florida's "Reasonable Beneficial" Water Use Standard, 31 U. Fla.

L. Rev. 253 (1979). The Legislature also established a per-




-2- APP12


PEOPLES, EAR-L & BLAxE
Ai-C-eEE A' -.A







mitting program for allocating surface and ground water. Fla.

Stat. SS 373.203-.249. Each individual water management

district was granted the authority to allocate water within its

district. The Florida Department of Environmental Regulation

("DER") was given supervisory powers over the state's water

resources, but has delegated responsibility for consumptive use

permits to each of the five water management districts.

7. On July 1, 1973, the Legislature divided the State of

Florida into five distinct water management districts: the

Northwest Florida Water Management District, the Suwannee River

Water Management District, the St. Johns River Water Management

District, the Southwest Florida Water Management District, and

the South Florida Water Management District. The territorial

boundaries of the districts were specifically described by metes

and bounds in Section 373.069(2), Florida Statutes. (See

Appendix C, Statutory Legal Descriptions of Water Management

Districts.) Since 1973, to petitioner's knowledge, there has

never been an inter-district transfer or an instance of one water

management district attempting to allocate water resources

located in another water management district.

8. Over Osceola County's objections, the St. Johns District

scheduled Brevard County's application to allocate water outside

District boundaries for hearing at the May 7, 1985, meeting of

the District's Governing Board. (See Appendix D, Agenda of St.

Johns River Water Management District, May 7, 1985, Governing

Board meeting.) Absent an Order to Show Cause from this Court,

at said meeting, the Governing Board will exercise jurisdiction

over the allocation of water outside its boundaries by con-

sidering and taking action on Brevard County's application.

9. Osceola County has no other adequate remedy at law.

Unless immediate relief is granted by this Court, Osceola County

will be forced to pursue unnecessary, expensive, and time-

consuming proceedings held by an agency acting outside its statu-

tory jurisdiction. The St. Johns District will suffer no injury




-3- APP13


PEEPLES, EARL & BLANE
AC-Nh E AT LAA







from the issuance of an Order to Show Cause pending determination

of its lawful jurisdiction.


IV.

Nature of Relief Sought

10. Osceola County respectfully requests that this Court

issue an Order to Show Cause or rule nisi in prohibition to the

St. Johns River Water Management District requiring it to show

cause by a certain date set by the Court why a writ of prohibi-

tion should not issue, and that pursuant to Rule 9.100(f),

Florida Rules of Appellate Procedure, such order would stay

further proceedings or consideration of the allocation matter by

the respondent District.

11. Osceola County further respectfully requests that this

Court thereafter grant a writ of prohibition to prohibit the St.

Johns District from purporting to exercise jurisdiction outside

its statutory boundaries absent express authority from the

Florida Legislature.


V.

Argument

12. Prohibition is proper and applicable when an administra-

tive board or agency exceeds its statutory jurisdiction. Gordon

v. Savage, 383 So.2d 646, 647 (Fla. 5th DCA 1980). In the

instant case, the St. Johns District seeks to exercise jurisdic-

tion over water allocation in areas that are unquestionably out-

side the boundaries prescribed for the St. Johns District by the

Legislature in Section 373.069(2)(c), Florida Statutes. This is

clearly in excess of the St. Johns District's statutory jurisdic-

tion. The issuance of a writ is, therefore, proper. See, e.g.,

State ex rel. Florida R.R. & Public Utilities Comm. v. Taylor,

104 So.2d 745, 747 (Fla. 1st DCA 1958); see generally Boyer &

Barton, Writ of Prohibition in Florida Since 1951, 29 U. Fla.

L. Rev. 241 (1977).

13. An administrative agency is merely a creature of sta-




-4- APP14


PEOPLES, EAB.L & BLAx~
A-'ORES A- _.Aw







tute. It possesses only those powers expressly conferred upon it

by statute or necessarily implied therefrom. See, e.g., State ex

rel. Greenberg v. Florida State Board of Dentistry, 297 So.2d

628, 635 (Fla. 1st DCA 1974), cert. dismissed, 300 So.2d 900

(1974). Any doubts about the lawful existence of a particular

power sought to be exercised must be resolved against the exer-

cise thereof, and further exercise of the power must be arrested.

See, e.g., Cape Coral v. GAC Utilities, Inc., 281 So.2d 493, 496

(Fla. 1973).

14. An agency cannot expand its authority beyond that pro-

vided in its statutory grant. Florida Department of Law

Enforcement v. Hinson, 429 So.2d 723, 724 (Fla. 1st DCA 1983).

Agencies have no power to expand their own jurisdiction. State

v. Falls Chase Special Taxing District, 424 So.2d 787, 793 (Fla.

1st DCA 1982); Gulf American Corp. v. Florida Land Sales Board,

206 So.2d 457, 462 (Fla. 2d DCA 1968).

15. The Legislature clearly did not grant the St. Johns

District statewide jurisdiction. Rather, it specifically and

definitely prescribed the District's territorial limits in sec-

tion 373.069(2)(e), Florida Statutes. The boundaries of the

District were set by statute and no extra-territorial powers were

granted to any of the water management districts by the

Legislature. Thus, this is not a case in which statutes have

created over-lapping jurisdictions, as was recently presented to

this Court in Housing Authority of City of Sanford v.

Billingslea, Case No. 84-1115 (Slip Op., January 3, 1985, Fla.

5th DCA), modified on rehearing March 14, 1985. The St. Johns

District lacks jurisdiction, therefore, over water resources

located outside its borders unless power to allocate such resour-

ces has been expressly granted by the Legislature.

16. Although the Legislature expressly authorized inter-

county transfers, transfers beyond overlying land, and transfers

between water basins, see Fla. Stat. S 373.223(2), there is no

legislative authorization whatsoever for inter-district transfers




-5-


PEEPLES, EARL & BLAL.K
^--OPNESE A- -&A


APP15








or allocations of water. The question presented to this Court is

one of first impression: to petitioner's knowledge, no water

management district in the State of Florida has ever authorized

an inter-district transfer of water or has ever allocated water

resources outside its statutory boundaries.

17. Thus, there is no legislative authority for one district

purporting to exercise power outside of its boundaries.

Notwithstanding the absence of statutory authority, the St. Johns

District (and DER in its supervisory role) promulgated rules

attempting to create -- by administrative fiat -- precisely that

which the Legislature has not authorized: the St. Johns District

and DER each have purported to establish administrative rules

allowing -- without any legislative authority -- extra-

territorial jurisdiction by the districts. See Fla. Admin. Code

Rules 17-40.03(11), 17-40.05, and 40C-2.312. Such agency rules,

however, cannot create jurisdiction where the Legislature has not

granted it.

18. Where an agency rule exceeds the agency's statutory

grant of authority, the agency may not rely on that rule to sup-

port its actions. See Florida Department of Law Enforcement v.

Binson, 429 So.2d at 724: "An agency may not enlarge its

authority beyond that provided in the statutory grant." Id.

Administrative agencies are not permitted to make and enforce

regulations that are beyond the powers definitely conferred on

them by the Legislature. See State ex rel. Bathaway v. Smith, 35

So.2d 650, 652 (Fla. 1948).

19. To petitioner's knowledge, the case before this Court is

the first time any water management district has sought to uti-

lize these administrative rules to exercise extra-territorial

jurisdiction or allow inter-district transfers. Absent an Order

to Show Cause from this Court, Osceola County will be required to

expend considerable time and expense in attending and challenging

proceedings for which there is absolutely no statutory jurisdic-

tional basis. When an agency clearly acts without or in excess



APP16
-6-


PEOPLES. EARL & BLANE
A-'O- %E'S A- ..*








of its jurisdiction, it is not necessary for a party to pursue

futile and meaningless administrative remedies before challenging

the agency's laCRkof jurisdiction. Falls Chase, 424 So.2d at

794. Thus, prohibition should issue to prevent the St. Johns

District from exceeding its statutory jurisdiction.

WHEREFORE, Petitioner, Osceola County, respectfully requests

this Court to issue an Order to Show Cause or a rule nisi in pro-

hibition to Respondent, St. Johns River Water Management

District, requiring it to show cause why a writ of prohibition

should not issue, and thereafter grant to Petitioner a writ of

prohibition to prohibit Respondent from purporting to exercise

jurisdiction over the allocation of water resources outside its

jurisdictional boundaries.


Respectfully submitted,

PEEPLES, BARL & BLANK, P.A.
Attorneys for Osceola County
One Biscayne Tower, Suite 3636
2 South Biscayne Boulevard
Miami, Florida 33131
305/358-3000



By:
William L. Earl





























APP17


PEEPLES, EARL & BLANs
ATTOWE^ A' A.,








VERIFICATION OF COUNSEL


STATE OF FLORIDA
)
COUNTY OF DADE )


I, ELIZABETH M. WEAVER, having read the allegations of the

foregoing Petition for Writ of Prohibition, do attest that to my

information, belief, and knowledge, the allegations in said peti-

tion not otherwise a matter of record or apparent on the face of

pertinent annexed documents are true and correct.





Elizabeth M. Weaver




SWORN TO AND SUBSCRIBED before me this day of May, 1985.



Notary Public
My commission expires:
KitAT PUBLIC STAlt Of rLO:I
mI Com0ISSIO0 ExP. 0:, 26,l15E
BONtD[ TNRil. StA 1K. UNC.

CERTIFICATE OF SERVICE


I HEREBY CERTIFY that a true copy of the foregoing Petition

for Writ of Prohibition and Appendix thereto have been provided

by United States mail to the following this 6th day of May, 1985:

Vance Kidder, Esquire, St. Johns River Water Management District,

Post Office Box 1429, Palatka, Florida 3078.


By: L2 .i e.t
ElIzabeth M. Weaver













-8- APP18


PEEPLES, EARL & BLANK
A'tr C= E A- _AA
















S V


I ,-- :i
_ k i
F _______


OAR COUNTY COMMISSIONERS
BOARD OF COUNTY COMMISSIONERS


*'':- ".--.-" --' -S'--C --- -__ -2_75_ .....e ... ..... --
E',.'fC'.R'.:?:.TAL SERVICES DIVISI5., 2575 No*.* Cour~tney Parkway, Merr ba!nm. Florido 32~53

'fa


March 4, 1985


Dke Woodson
St. John's River waterr Management District
Pos- COffice Box 1429
Palatka, Florida 32078-1429

Dear !:t. Woodson:

E-clcsed please find a-n application for a consu-ltive use pe-rit for
a wellfield in eastern Osceole County to supply the South Brevard
Co'unt area. TFr additional infor-ration concerning this permit
a.;lication, please refer to the suple-.ental info=aticrn a-.6
Fesy-rse to the fe -_-sst for Additional Irdforration fr Aplicaticn
!N;. 015O13-5 to the Ssuth Flcrida Water tManageen: District.

Th.-< you for your attention to this request.

Sincerely,



Chuck Striffler
L-viror-rental Services
Coorditator

Xke

cc: B.c-d of Conty Ccrr.issioners
Pe:er Hayes, .4tinistrtive Direcctr
Sc=-th Erevard t:Ler Authority G-v'er-.n- B-*s'
Re--& ".:Ss Eelli, Di-ector, South Ere'-ard Kater A-thrit:v
Clif .%Clell.-.-d, Assistant Cc-,-t :-.-.y :-:-=y


CkAP..LE FG E B S ,' p ." *"*' ; '. 5 ": .-.-.. :Y 5 *" M... i Tr D0 -'LT'.31 N FK~A K :CF.IFFT17 JR K-C fE.'--
.t .. C.rt .2 se, C ..--.*.- v.t,. Ce.-.- C"o..- *rr.t>
PC..T*,r J '**'r: I
FE7ER J. -YIES, -c- <*.a*:* e : -";*


APP19












CONSUMPT VE USE F RMIT APPLICAT '


S* ^^ x r ;::-v-. -. ,______



F .PR E ~. :%e_ r
S* -, r -- a o "if ro.1 P.M. R. .9 trIr.n *,es. n I itr baN tniL sh t.( .r ,.-L.. er1..
;-'(**:l uia-t cete .s...l. *n ..--e.


A -* .-.CN IS F rs Arw USE .. mS-NG Usi D ozinc-ici sr -F i C C!xr p I.G P c -i *

I LArS r--


pNE

cni


1i I.I rl: -- I I I I I I I I I I I i I I I ~ ~~


I I I I I I I I I I I I I I I I I I I I I


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TEIXPHONE No.


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A ztrEz I F:01 B IOlXI I 11 !9161 I I I II I I I II I I I
cT 171T I US V l 2 LI Ll I I .I pt vt.,i ,
Lr ZIP CDE 3I21 i- Ic
TEUycEPME NO. I0 Z1 -E1


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SE-T* C TYwWSNWIP. RANGE



-jC_-C_________________ _Al___*A _U____IAt CkU-,Z __ IN_____ m-;;---E






.:gt- ALLVS. PEAR UA (A V a MrI ) ts!.:G IO *E s- T r': E s .

Pu~tIr **K:E thesur iCh IF AmCTi:CM --5 Btiif-t C:. :E :PEsE.: :r Z ( fSJ i- --.
In .l pr i ;s-t .IE ___* cy -:-*. CsD I .*:S' ,.rru;.L__ *. t a:* i:e**:*:c __-s'.







L 1 ;-:.Stfl u: IP. rt-'.tftl Cr,, Z73 _elr!t .:r'... .*S-.2 *r. srr, : j.un : i. "1 C : -":
S _.r-. IL ter SrtCP mr"tI *.lls:1 c.llt'r I ;-., t S~c f:t ;. t :* .;.* -':Zr :FE.X r
-M .m t-I o t "..:E" :t, i C n m6 *e1 t fcl ;s9. *.::'1mt Il. ::.. -:a tme *:f : it mri 'i *-i, I

-"I..- It's
Lf.:--.."" E5 N E IP.aew** IP"*") s ;C r/. '' E
.: ts-?. f *I t1 *+: ". c l I~. .- -r er l e.f* ,f l : S. cI,, l f;V:' l'l 9. ** N. C :c w
:a CC*:'S CI I Crt..:>:e :;**I if N ::* S :S ; ct P..s a 4.;.:- I*t; :. t.'::CI'tS :;:s *e *r : ***
t~.:etS i *f .*

:H--.s -.. 'T^<^ ^^I y ^


t it." :I;*v.-.' t


APP20


-' I I I


ALLEt F


C-T
S="I


3]


.11* 1 .%.: s- c* *:.t!














L--- : e- Casiz; 7::a. Cas g Aver--e 71s .- e--
...? DEl-e: =ee th eth 'ith.re.a al ..T.



in in ft ft t
I__ Ii ftJ ft ___ E _

n3 4t -1 it 42

*lc-- .eg wells =-s: be e;qi;;ed vith a vork =g valve, per Chapter 373.206, -:f S:u:

,? .-'A A ,- t
Perge C ge=t d N eI o Use
rlume r capacity vithdraEal prcge- y area vater soa-.ze



___= SP_ c acre acres

| acre

PRDOS' SO;?'RC(S) OT .AT-; I:C?..-.T2ICN


StU.?AC -'AT_ _____ _
curee ?P.I ,.veag Cc= iLr.t- ;=;c;e td a=e U Use
er.uCer cpa ciy ihdral property area aer source

E;=j gp aces acres

Ep3 p;= acres acres

1 g acres acres



I f ET=liciuic= is fcr an initial ?eer=it, sta:e the date upcr. n-.ich *-.e use c:= -.cd
cz is pl-r.-.ed to cs=en.ce

If ::cificati:-. :: r r.e-'sl, s:re: acc*-.: C: aiidiCic.l -ate; aliedic:c

:zceps c er year =illiC7. Eallct.s :e: ir

rfE:ire i :. e :il reasC-.() icz rec..-es fc a i:i:.l r an .i'cr s:::es









.a p-st c- Fazenz : C-!:s as-s--*


APP21








C : a.:r iate sectc.s c-lv. r--e -r r: e A
.:.:.. s--:.s i s. re r:f- ced -elc- is -.c- s ficie::.







I II
Cr? ria:ic Acres A-=t of wa:et Source or /v- --
metod Irr gae pplied per vedl =.-=be:s p-er
aE?2ication cr



_Acre In.

Acre I=.


.________________ Acre .


I 1 Acre Ii.


CGeterlly desc-.be a-y surface ru-off of irrigation w-tr.r i=cludi our.ts,
receiving Body a=d ccCnditicas vwhe= -of occErs


I




rDscri'e in detail ny -wter use fcr freeze prc :e:tic=







zIf ay part of :he property is in a drai-ae district, give the district's =:ae




Attach ary avail2ar e water quality Cata







Syse= eficer-.:: (3ased -t sys= -E ______e)

'escric =t-c.:c c: ci-tiT..-iT. Sv:. eys: fefi -c:.: :7.:S ;"--r: tif :__n::___ _
0the- _________---- __ -------

"--: i .';er c:-e-.-':z:icn =ease-s --.?i-e.-.: Cr ':-.-.t; f'.r -.=:-:--.:i:.-. i.-. ::-.c,:




t~-:'itL) =tLS~~S S-ne eC


APP22













Arsa -.s --thl ste ____________ acres Area se-ed _____ :

.s se-.-ze area ce:-- =cd by -.. S :ice C--==ssic= i
L-Ccal C-=ver=--e=: :ra e =c-..ise Un-reg2ed Se-vce .Area
(?r;-vice C-p del -ea::=g service arez)


17n nnn


Average daily use for last ser-.-- year

MF.D masi--= daily use for last ser-ice year L .-- ..
( l E ..


?-ojected pc pula.ica I. in ______ (year)

Prjected average d--ily use 21.75 .C i 1992" (year)



Average historic daily per capital use n17 G?CD

yaxcu= historic daily per capital use on G?CD

Projected average caily per capi:a use rn C O

?rcjec:ed =rai== daily per capital use Ien G?CD

Average daily per ca-pita use 170 GCD Yi=- daily p e capi:a; use* "_ ___

.xpli'- =ei:thd o p:rjecting pc;ulitic: ~d esti-atin-g per capzit usage





:-iS.=6 pla= cz;acit- _______________ ?1.e t:r_


Trea=e(.: t-hod



is:csal =et-hos a=d pere=: ofe each

1) ______*__________ __ _______

2)

3) __


Tres==re: :.-e ri.z=ar; Sec.c- -: .ertar" ; C o:-er

k..:ra.e .ily d.ispsc l ?s e.i < e
hthec tof retse








rs : -e t::a.C !. Also :ttac-. -- ".til..-.; *'E C-- .:::. ='--
.-.is:e a..:ac c r erss = TO s:stEas :..e ::'cien:-: r:s:
-.-.t.s.:e_-_-.-.: _cf t:-'s ':e o s:s:=:..-_.:::c::-.__________
nsL-- ---


APP23


15.77 f't. (19 2 I


r-sse:: pc;-ul:ic=







-s i a.C r If ;: y is in ,cr: trnas, sre sc ::-,,
ust cre sr-ett fcr each se:-icr,.


SCALE-4 inc.* E=:.-s I Wi.e

I !"c u* 1! CE tc. I* C W tl. -: xsz ct :C, a-r &


c. -. *~~ 5 ;,r 're i e*, ~.


i.1 Le.-r-t-.-s .n e" --i S- r.v. af Ir:aw* S. s ec Carc.

- s- -c: C C. C.r.zirs. ;:Sc. .*. F.Scr


T."5:.a.. Cetwa Cr" Ac:e.
A S.e,:a LAts Is C-tS.-'t v, >sc Cc-,***.. 60 Acr'.
ScS c:! C:-Ta ->. s 8Ec cr -
"wersv.. Area 1s Sc.eve vsm :t: ,s*ra.-s:3.^: *c-es.


a :



I .. .


I:. .


: : : :







APP24


C'-. L'rc 7.s5: I-c-
-r- #:c 15:t =-?1:. -* C'.*. r. : *


HI :Lt I I .KHI I



- I- -









IN THE DISTRICT COURT OF APPEAL
FIFTH DISTRICT OF FLORIDA
OSCEOLA COUNTY, a political )
subdivision of the State of
Florida, )

Petitioner,
) Case No.
vs. )

ST. JOHNS RIVER WATER
MANAGEMENT DISTRICT,

Respondent. )



AFFIDAVIT
Before me, the undersigned authority, personally appeared

ROBERT MORESI, who having been by me first duly sworn, on oath

says:

1. That I am a Professional Geologist employed with the

consulting engineering firm of Camp, Dresser & McKee, Inc.

2. I am familiar with the operation of the water management

districts in the State of Florida. I was employed by the St.

Johns River Water Management District from 1976 to 1981, and held

the position of Director of the Division of Resource Management

for the St. Johns River Water Management District from 1979 to

1981.

3. I have reviewed permit application number 2-097-0009AN

filed by Brevard County with the St. Johns River Water Management

District, for a proposed well field to be constructed in the

Holopaw region of Osceola County, Florida.

4. The boundaries of the St. Johns River Water Management

District are expressly set forth in Section 373.069(2)(c),

Florida Statutes.

5. Brevard County's consumptive use permit application seeks

approval from the St. Johns River Water Management District for

the use of water located outside and beyond the boundaries of the

St. Johns River Water Management District.

6. Brevard County's permit application seeks authorization

from the St. Johns River Water Management District for the




-1-

PEEPLES, EABL & BLAX-E
A--car-sA- *' APP25











allocation of water resources located in the Bolopaw region in

Osceola County. The Bolopaw area is outside the boundaries of

the St. Johns River Water Management District, but within the

boundaries and jurisdiction of the South Florida Water Management

District, which are expressly set forth in Section 373.069(2)(e),

Florida Statutes.

7. Brevard County's permit application and the supplemental

information incorporated therein address only the issue of the

available supply of water in Brevard County, located within the

St. Johns River Water Management District. They fail to address

the impact of the proposed withdrawal on Osceola County or on the

Floridan Aquifer, the water resource from which the withdrawal

has been requested.

8. I have reviewed the report of the staff of the St. Johns

River Water Management District on permit application number

2-097-0009AN. By its own terms, it is limited solely to an

analysis of the impact of the proposed inter-district transfer of

water on Brevard County, and fails to address the impact of the

proposed withdrawal on the water resources in Osceola County or

on the water users of Osceola County, as required by the

reasonable-beneficial use test for consumptive use permits set

forth in Chapter 373, Florida Statutes.

FURTHER AFFIANT SATETH NADGBT.





ROBERT MORESI


State of Florida
:ss:
County of .Dec t )

SWORN TO and SUBSCRIBED before me this `_ day of May, 1985.


--^^ Lfclfc^ A or~---
Notary Public
My commission expires:

UTiTI PUBLIC rItA[ 0 rLm::N
My CtDB:s:D Ex. OG' 2L.IS7
OL::r; ti., 6SEEla. I1. uk.



-2-

PEEPLES, EABL & BLA-N


APP26








IN THE DISTRICT COURT OF APPEAL
FIFTH DISTRICT OF FLORIDA

OSCbOLA CORUTY, a political )
subdivision of the State of )
Florida, )
)
Petitioner,
) Case Wo. 85-678
vs.
)
ST. JOBS RIVER WATER )
IMAAGEZENT DISTRICT, )
)
Respondent.




AFFIDAVIT OF DR. PATRICK J. GLEASON,
DIRECTOR OF WATER USE DIVISION,
BOUTE FLORIDA WATER MANAGEMENT DISTRICT


Before me, the undersigned authority, personally appeared

DR. PATRICK J. GLEASON, who having been by me first duly sworn,

on oath says:

1. That I am the Director the the Water Use Division of the

Resource Control Department of the South Florida Water Management

District.

2. I am personally familiar with the South Brevard Water

Authority and the Brevard County Board of County Commissioners'

attempts to develop a well field in the vicinity of Bolopaw, in

Osceola County, Florida, in the South Florida Water Management

District.

3. On August 18, 1983, the Brevard County Board of County

Commissioners filed permit application number 08183-8 with the

South Florida Water Management District for a consumptive use

permit for a well field near Bolopav in Osceola County. The

exact location of the proposed well field was not identified.

4. On September 16, 1983, the South Florida Water Management

District requested additional information from the applicant

about the proposed well field project on two major topics: the

need for a water transfer and the impact of the proposed

withdrawal.




-1-


PEEPLES, EArL & BLA.x
s APP27







5. On November 2, 1984, the applicant, Brevard County Board

of County Commissioners provided this District with part of the

additional information which had been requested on September 16,

1984. Information relating to the need for a water allocation

from the South Florida Water Management District was provided,

but the applicant failed to provide any information regarding the

impact of the proposed withdrawal in Osceola County.

6. On December 7, 1984, South Florida Water Management

District again requested that the applicant answer questions

regarding the impacts of the proposed withdrawal of water from

Bolopaw, whether the proposed use was reasonable-beneficial, and

whether the proposed use would interfere with any presently

existing legal use of water.

7. To date, South Florida Water Management District has not

received any information from the applicant in response to its

December 7, 1984 request for additional information.
7
8. On March 4, 1985, the Brevard County Board of County

Commissioners filed a second consumptive use application with the

St. Johns River Water Management District, seeking approval to

develop a well field in the vicinity of Nolopaw, in Osceola

County, Florida.

FURTHER AFFIANT SATETB WAOGBT.



R. PATRICK J. GLEASON

State of r lori .
-Axf -- *s.
County of 6e )

SWORN TO and SUBSCRIBED before me this 7th day of June, 1985.




Notary Public

My commission expires:

ktmry Pskc, S:ef c r:&
My CnBIBuiMI te i" l ** "*





-2-

PzEPLES, Ea L & BLA%-

APP28



















7.5.~wTr 193 rarkI~fT-rVS


373.069 Creation of water management dis-
tricts.-
(1) At 11:59 p.m. on December 31. 1976. the state
shal! be divided into the following water management
district
(al Northwest Florida Water Management Dis-
trict.
(b) Suwannee River Water Management District
(c) St. Johns Rivet Water Management District
(d) Southwest Florida Water Management Dis-
trict.
(e) South Florida Water Management District
(21 Notwithstandng the provisions of an> other
special or general act to the contrLa-, the boundaries
of the respective distnets named in subsection irl
shall include the areas within the following bound-
ries:
(a) Northwest Florida Water Management Dio-
trict -Berin at the point where the section line be-
tween Sections 26 and 27. Township 4 South. Range
3 East intersects the Gulf of Mexico; thence north
along the section line to the northwest corner of Sec-
tion 2, Township 1 South. Range 3 East; thence east
along the Tallahasee Base Line to the southeast cor-
ner of Section 36, Townshp 1 North, Range 4 East.
thence north along the range lin to the northwest
corner of Section 6. Township 1 North. Range 5 East.
thence east along the ownshp line to the southeast
corner of Section 36. Township 2 North. Range S
East, thence north along the range line to the north
east corner of Section 24. Townslup 2 North. Range
6 East. thence west along the section line to the
southwest corner of the east ', of Section 13, To-n-
ship 2 North, Range 5 East thence north to the
northwest corne of the east of Section 13. Town-
ship 2 North. Range 5 East. thence east along the sec-
tion line to the southeast corner of Section 12. Town-
ship 2 North, Range 5 East. thence north along the
range line to the northeast corner of Section 24.
Township 3 North. Range 5 East: thence west along
the Watson Line to the southwest corner of Lot
Number 1668 thence north along the line between Lot
Numbers 168 and 169. 154 and 155 to the Georgia
line, thence westward along the Georria-Florida line
to the intersection of the south boundary, of the State
of Alabama, thence west along the Alabama Florida
line to the intersection of the northwest corner Ala-
hams-Florida Boundary. thence south along the Ala
bama-Florids line to the Gulf of Mexico: thence east
along the Gulf of Mexico. including the waten of sad
Gulf within the jurisdiction of the State of Florida tu
the Point of Beginning
(b) Suwannee River Water Management Dis-
trict -Begin in the Gulf of Mexico on the section
line between Sections 29 and 32. Township 15 South
Range 15 East. thence east along the section lines ut
455


APP29


F.S 1983


w*rtR Brcfi'Brre




















IL, *rJ a wn wwCnsnr'cr in io&-


the southwest comer of Section 27. Township 15
South. Range 1 East. thence north along the section
line to the northwest corner of Section 3. Township
15 South. Range 1- East. thence eas along the sec-
tion line to the sterly rniht of wae line of State
Road No 337; thence northern] alone said easterly
right of way line of State Road No 33. to the south-
erly ight of way line of State Road No 24. thence
northeaster] along said southerly right of way line of
State Road No 24 to the Le J-Alachus county line;
thence south along the Levy-Alachus county line,
alo being the range line between Range 17 and 16
East to the southeast comer of Section 36. Township
11 South. Range 17 East. thence auterly along the
Levy-Alachb u county line, also being the township
line between Townships II and 12 South, to the
outheast comer of Section 36, Township 11 South,
Range 18 East. thence north along the range line to
the.nortwest corner of Section 19, Township 9
South, Range 19 East; thence at along the section
line to the southeast corner of Section 13. Township
9 South. Range 19 East. thence north along the range
line to the northwest corner of Section 6, Townhip 9
South. Range 20 East. thence eastward along the
township line to the southeast comer of Section 36.
Township 8 South, Range 20 East: thence north
along the township line to the northwest corner of
Section 18, Township 8 South, Range 21 East; thence
mat along the section line to the northeast corer of
Section 15. Township 8 South. Range 21 East. thence
south along the section line to the southwest corner
of Section 23. Township 8 South. Range 21 East;
thence mat along the action line to the northeast
comer of Section 26. Township 8 South. Range 21
East, thence south along the section line to the south-
west comer of the north f of Section 25, Township
8 South Range 21 East. thence eat along a line to
the northeast comer of the south half of Section 25,
Township 8 South. Range 21 East; thence south
along the range line to the southwest comer of Sec-
tion 30. Township 8 South. Range 22 East. thence
mut along the section line to the northeast comer of
Section 32, Township 8 South. Range 22 East. thence
south along the action line to the southwest corner
of Section 16. Township 9 South. Range 22 East;
thence eastward along the section line to the south-
ast corner of the west i of Section 16. Township 9
South. Range 23 East; thence northward to the
northeast corer of the west 4 of Section 18. Town.
ship 9 South. Range 23 East; thence west to the
southwest corer of Section 7. Township 9 South.
Range 23 Est, thence northward along the Brad-
ford-Clay Count~ line to the northeast comer of Sec-
tion 36. Township 8 South. Range 22 East: thence
west along the section line to the southwes corner of
the east ; of Section 25. Township 8 South. Range
22 East: thence north to the northeast comer of the
west of Section 24. Township 8 South. Range 22
East. thence west along the section line to the south-
wst comer of Section 13. Township 8 South. Range
22 East. thence north along the section line t the
northwest corer of Section 25. Township 7 South,
Range 22 East; thence ust along the sectionn line to
the southeast corner of Section 24. Townsbip 7
South. Range 22 East. thence north along the Brad-
ford-Clay Count line to the itection of the south


boundary of Baker Countr, thence wst along the Ba-
her-Bradford County line to the intersection of the
at boundary\ of Union County thence west alonF
the Union-Baker County ine to the southwest come:
of Section 1I. Township 4 South. Range 2C' Las:
thence north along the range line to the northeast
corner of Section 1. Township 3 South. Range 19
East; thence west along the township line to the n-
teraection of the eat boundary of Columbia County.
thence north along the Baker-Columbia Count line
to the intersection of the north boundary line of the
State of Florida; thence wesward along the Geor-
gia-Florida line to the northwest corner of Lot Num-
her 155; thence mouth along the line between Lot
Number 164 and 155, 168 and 169 to the 'Waton
Line; thence eat along the Wateon Line to the nornh
mst corner of Section 24, Township 3 North. Range
6 East, thence south along the range line between
Ranges 5 and 6 East to the southeast corner of Sec-
tion 12, Township 2 North, Range 5 East. thence
wt along the section line to the northwest corner of
the east of Section 13. Township 2 North. Range 5
East, thence south to the southwest corner of the east
% of Section 13. Township 2 North. Range 5 East.
thence eat along the section line to the northeast
corner of Section 24, Township 2 North, Range 5
East. thence south along the range line between
Ranges 5 and 6 East to the southest corner of Sec.
tion 36. Township 2 North, Range 5 East: thence
west along the township line between Townships i
and 2 North to the northwest corner of Section 6.
Township 1 North. Range 5 East thence south along
the rane line between Ranges 4 and 5 East to the
southeast corner of Section 36. Township 1 North.
Range 4 East, thence west along the Tallahassee Base
Line to the northwest corer of Section 2. Township
1 South. Range 3 East: thence outh along the section
line to the Gulf of Mexico. thence along the shore of
the Gulf of Mexico, includmi the waters of said gul
within the jurisdiction of the State of Florida, to the
point of the beginning
(c) St Johns Rwier Water Maonement District
-Begin at the intersecton of the south boundary of
Indian River County with the Atlantic Ocean thence
st along the Indian Rver-St Lucie County line w
the intersection of the west boundary of St Lucie
County thence south along the OkeechobeeSt- Lucie
County line to the southeat corner of Section 1.
Township 34 South. Range 36 East, thence west
along the action line to the northwest corner of Sec-
tion 10, Township 34 South. Range 36 East thence
south along the section line to the southeast corner of
Section 9, Township 34 South, Range 36 East. thence
west along the section line to the northwest corner of
Section 16. Township 34 South. Range 36 Eas.
thence south along the range line between Ranges 3
and 36 East to the outheast comer of Secton 1-
Township 34 South. Range 35 East; thence west
along the secton line to the northwest corer of Sec
tion 13, Townhip 34 South. Range 35 East. thence
south along the action line to the southeast corner of
Section 35. Township 34 South, Range 35 East
thence west along the township line between Town
ships 34 and 35 south to the southwest corner of Sec
tion 35. Township 34 South, Range 34 Es: thence
aorth along the section line to the Okeecho


APP30


rL 9*9


I


Ba*rro wecft*r'cr


W" 1rB





















we IOAQ wawpm3 vrerarnwurs rm. ,,


bee-Osceola County line. thence wet along the Okee-
chobee-Owceola Count\ ine to the southwest corner
of Section 34. Township 32 South. Range 33 East;
thence nonr along the section line to the northwest
comer of Section 3, Township 31 South. Range 33
East. thence ast along the township line between
Townships 30 and 31 South to the southeast corner
of Secton 36. Township 30 South. Range 33 East;
thence north alon the range lin between Ranges 33
and 34 East to the northeast corer of Section 1.
Township 30 South. Range 33 East, thence west
along the township line between Townships 29 and
30 south to the southwest corner of Section 31,
Township 29 South, Range 33 East. thence north
along the range e between Ranges 32 and 33 East
to the northwest corner of Section 6. Township 28
South. Range 33 East. thence east along the township
line between Townships 27 and 26 south to the
southeast corner of Section 36. Township 27 South,
Range 32 East. thence north alone the range line be-
tween Ranges 32 and 33 East to the northeast corner
of Section 1. Township 26 South. Range 32 East;
thence west along the township line between Town-
ships 25 and 26 South to the southwest corer of Sec-
tion 33. Township 25 South. Range 32 East; thence
north along the section line to the Orange-Osceola
County line. thence westerly along the Or-
ange-Osceola County line to the Southwest corner of
Section 31, Township 24 South, Range 32 East:
thence north along the range line to the intersection
with the northerly righi-of-way line of State Road
526. also knownr the Bee Line Expresway. thence
westerly along the northerly right-of-was line of
State Road 52 to the intersection with the northerly
right-of-ws line of State Road 528A: thence westerly
along the northern nrght-of-way line of State Road
528A to the westerly right-of-way line of U.S High
wsa 441, thence northern) along the right-of-way line
to the section line between sections 22 and 27 of
Township 22 South Range 29 East; thence west
along the section lines to the Northeast comer of Sec-
tion 25, Township 22 South. Range 28 East. thence
South along the range line between Ranges 28 and 29
East to the Southeast corer of Secton 36. Township
22 South. Range 28 East, thence west along the town-
ship ne between Townships 22 and 23 South to the
Northeast corner of Section 2, Township 23 South.
Range 27 East; thence south to the Southeast corner
of Section 1. Township 23 South. Range 27 East,
thence west along the section line to the Southwest
corner of Section 7, Township 23 South, Range 27
Eas' also being the Lake-Orange County lne. thence
South along the range lie between Ranges 26 and 27
Eat to the southwest corner of Section 18, Township
26 South Range 27 East. thence east along the sec-
tiorn. ne to the northeast corner of Section 19. town
ship 2( South. Range 27 East: thence south along the
secuon ine to the southwest comer of Section 32.
Township 26 South. Range 27 East thence est along
the township line between Townships 26 and 27
South to the northeast corer of Secuton 5. Township
7 South Range 27 East. thence south along the sec-
ton lines to the southerly right-of.way line of State
Road 600. thence westerly along the southerly
ewh-f.-as klne of said Stte Road No 0(: t the
we: boundarS of Section 2. Township 27 South.


Range 26 East; thence north along the section lines to
the northeast corner of Section 16. Township 25
South. Range 26 East. thence west along the sector
line to the southwest corner of Section 9. Township
25 South, Range 26 East. thence north along the sec-
tion lines to the Lake-Polk County line. thence west
along the county line to the southwest corner of Sec-
tion 32. Township 24 South. Range 26 East. thence
into lake County, north along the section lines t the
northeast corer of-Section 30. Township 24 South.
Range 26 East; thence west along the action lines to
the northeast corner of Section 28, Township 24
South, Range 25 East; thence north along the secton
line to the northeast comer of Section 16, Townsh:p
24 South, Range 25 East. thence west along the sec-
tion le to the northwest comer of Section 16 Town-
ship 24 South. Range 25 East. thence north along the
section line to the northeast corner of Section 6.
Township 24 South. Range 25 East, thence esi
along the section lines to the range line between
Range 24 and 25, thence north along the range hne
to the northern corer of Section 1. Township 23
South, Range 24 East. also bemg on the township hne
between Townships 22 and 23 South, thence west
along the township line to the northwest corner of
Section 6. Township 23 South, Range 24 East. also
bemg on the Sumter-Lake County mne, thence north
long the Sumter-Lake County line, also being the
range line between Ranges 23 and 24 East, to the
onrtheast corner of Section 1, Township 18 South.
Range 23 East. and the Marion County line; thence
wet along the Sumter-Marion Count' line. also be-
iu the township hu between Townhips 17 and 18
South, to the westerly right-of-wy line of Interstate
Hi hway 75; thence northerly along the westerly
rht-of-way line of Interstate highway 75 to the Al-
chua-Marion Countm line. said lne also being the
township line between Townships 12 and 12 South.
thence west along the Alacbus-Marion County line to
the northwest corner of Section 3, Township 12
South. Range 19 East. and the Levy Count% line.
thence westerly along the Le.-Alachub Count' line.
also being the township line between Townships 11
and 12 South, to the southeast corner of Section 36.
Township 11 South. Range 18 East, thence north
along the range line between Ranges 16 and 19 Eas:
to the northwest corner of Section 19. Township 9
South. Range 19 East. thence east along the section
line to the southeast corer of Section 13. Township
9 South. Ranue 19 East. thence north along the range
line between Ranges 19 and 20 East to the northwest
corner of Section 6, Township 9 South. Range 20
East: tence easterly along the township lne between
Townships 6 and 9 South to the southeast corner of
Section 36. Township 8 South. Range 20 East thence
north along the range line between Ranges 20 and :
East to the northwest corner of Section 16. Township
8 South, Range 21 East thence east along the section
line to the northeast corner of Section 15. Township
8 South. Range 21 East thence south along the sec
tion line to the southwest corer of Section 23. Town
ship 8 South. Range 2) East thence east alon the
section line to the northeast corner of Section 26
Township 8 South Range 21 East. thence south
lo the section line to the southwest corner of the
B of Section 25, Township 8 South, Range 22


APP31


C t1eaB


wtrra rcnr'erse


rk ai


















V&,tro bWWfsi'nI'WC We Caco


East; thence east to the northeast corner of the south
'- of Sectior 25. Township 8 South. Range 21 East:
thence south along the range line between Ranges 21
and 22 Eas t t the southwest corner of Section 30.
Township 6 South Range 22 East thence eas along
the section line to the northeast corner of Section 32,
Township 8 South. Range 22 East. thence south
along the section line to the southwest corner of Sec-
tion 16. Township 9 South. Range 22 East. thence
eastward along the section line to the southeast cor-
ner of the west 4 of Section 15. Township 9 South,
Range 23 East. thence northward to the northeast
corner of the west 4 of Section 18. Township 9
South, Range 23 East: thence west to the southwest
corner of Section 7, Township 9 South. Range 23
East; thence northward along the Bradford-Clay
County line to the northeast corner of Section 36
Township 8 South. Range 22 East. thence west along
the secton lne to the southwest corner of the eat I
of Section 25. Township 8 South, Range 22 East,
thence north to the northeast corner of the west In of
Section 24, Township 6 South. Range 22 East: thence
west along the section line to the southwest corner of
Section 13. Township 8 South. Range 22 East, thence
north along the section line to the northwest corner
of Section 25. Township 7 South. Range 22 East,
thence east along the section line to the Brad-
ford-Cais County line, thence north along the Brad-
ford-Clay Count. line to the interaction of the south
boundary of Baker County; thence west along the Ba-
her-Bradford County line to the intersecton of the
east bounda- of Union County; thence west along
the Baker-Union County line to the southwest corer
of Section 18. Township 4 South. Range 20 East;
thence north alone the range line between Ranges 19
and 20 East to the northeast corner of Section 1,
Township 3 South. Range 19 East: thence west lon
the township line between Townships 2 and 3 South
to the Baker-Columbia County line, thence north
along the Baker-Columbii County line to the north
boundary line of the State of Florida, thence easterly
along the Florida-Georgia lne to the Atlantic Ocean:
thence southerly along the Atlantic Ocean, including
the waters of said ocean within the jurisdiction of the
State of Florida to the point of beginning
(dl Southuest Florida Water Maogement Dis-
trct -Begin at the intersection of the north bounda-
ry of Lee County with the Gulf of Mexico, thence
eatward along the Le-Charlotte County line to the
Southeast corner of Section 33. Township 42 South.
Range 24 East. thence North into Charlotte Count.
along the section lines to the Northeast comer of Sec-
tion 4, Township 42 South. Range 24 East: thence
East along the township ne between Townships 41
and 42 South to the Southeast comer of Section 36.
Township 41 South. Range 25 East. thence north
along the section line to the northwest corner of Sec-
tion 6. Township 42 South. Range 26 East. thence
east along the section line to the southeast corner of
Section 36. Township 40 South. Range 26 East:
thence North along the range line between Ranges 26
and 27 to the Northeast corer of Section 1. Town-
ship 40 South. Range 26 East, and the Char-
lottk-Desoto County line. thence east along the Char-
lotte-Desoto County line to the southeast corner of
Section 36. Township 39 South. Range 27 East;


thence north along the DeSoto-Highlands County
line to the intersection of the South boundary of
Hardee County; thence north along the
Hardee-Highlands Count% line to the southwest cor-
ner of Township 35 South. Range 28 East thence
ast along the north boundary of Township 3f South
to the northeast corner of Section 1. Township 36
South, Range 28 East. thence south along the range
line to the southeast corner of Section 12 Township
37 South. Range 26 East; thence east aJong the sec
tion line to the northeast comer of Section 15. Town-
ship 37 South, Range 29 East. thence south along the
section line to the southeast corner of Section 34.
Township 37 South. Range 29 East thence east aong
the township line to the northeast comer of Section
1, Township 36 South, Range 29 East: thence south
along the range line to the southeast corner of Sec.
tion 1, Township 39 South. Range 29 East thence
ast along the section line to the northwest corner of
Section 11. Township 39 South, Range 30 East.
thence north along the section line to the southwest
comer of Section 35, Township 38 South. Range 30
East; thence east along the township line to the
southeast corner of the west ', of Section 35. Town-
ship 38 South. Range 30 East: thence north along the
4 section n line of Sections 35. 26 and 23. Township
88 South, Range 30 East to the northeast corner of
the west section of Section 23. Township 38 South.
Range 30 East, thence wet along the section line to
the northwest comer of Section 23, Township 38
South. Range 30 East; thence north along the section
line to the northwest comer of Section 2, Township
17 South, Range 30 East: thence west along the town
ship line to the southwest corner of Section 34.
Township 36 South. Range 30 East. thence north
along the section line to the northwest corner of Sec-
tion 3. Township 36 South. Range 30 East, thence
west along the township line to the southwest corner
of Section 31. Township 35 South. Range 30 East
thence north along the range line between Ranges 2'
and 30 East, through Townships 35, 34. and 33
South. to the northeast corner of Township 33 South
Range 29 East. bemg on the Highlands-Polk Count'
line: thence west along the Highlands-Polk Count:
line to the southeast comer of Township 32 South.
Range 28 East; thence north along the range ine be
teen Ranges 28 and 29 East, in Townships 32 and
31 South, to the northeast corer of Section 12 i
Township 31 South. Range 28 East thence east along
the section line to the northeast comer of Section 7.
Township 31 South. Range 29 East, thence north
along the section line to the northwest corner of Sec
tion 17. Township 30 South. Range 29 East thence
eat along the section line to the northeast core' of
the west ': of Section 17. Township 30 South. Ra e
29 East. thence north along the -section line to the
northeast corer of the west of Secton 5. Towr
ship 30 South. Range 29 East; thence wes along the
section line to the southwest corer of Sector. 3.
Township 29 South. Range 29 East. thence north
along the section line to the northeast corner of S-
tion 19 in Township 29 South. Rane 29 Eas thence
west along the north boundaries of Secton 19. Tor
ship 29 South. Range 29 East. and Secuons 24 23 2
21, and 20. Township 29 South. Range 28 East: t
northwest comer of said Section 20. thence north


458


APP32


rFL fi'


TATWW W-antt PfrC


nr Casn




















WATER RESOURCES


along the section line to the intersection of aid sec
tion ne with the west shore line of Lake Pierce in
Toiwnh)p 29 South Raune 28 East thence folUoing
the west shore of Lake Pierce to its mntersection again
with the west section line of Section 5. Township 29
South, Range 26 East. thence north along the secuon
line to the northwest corner of Section 5. Township
29 South. Range 2F East. thence east alone the town
ship line to the southwest corner of Section 33.
Township 28 South. Range 28 East. thence north
alon the section line to the northwest corer of the
southwest '. of the southwest k, of Section 28.
Township 28 South. Range 26 East. thence east along
the ~ -section line to the intersection of said
i -sectior line with Lke Pierce, thence follow the
shore line northeasterly to its intersection with the
%-section line of Section 26, Township 29 South.
Range 26 East thence north on the t-section line to
the northwest corner of the southeast ', of Section
28. Township 28 South. Range 28 East. thence east to
the northeast corner of the southeast '.. of Section
28. Township 26 South, Range 26 East. thence south
along the section line to the northwest corner of Sec-
tion 3. Township 29 South. Range 28 East, thence
east along the section line to the northeast corer of
Section 3. Township 29 South, Range 28 East: thence
north along the section line to the nonhwest corner
of Section 23. Township 28 South. Range 28 East.
thence wet along the section line to the southwest
corner of Section 16. Township 28 South. Range 26
East. thence north along the section line to the norh-
west corner of Section 16. Township 28 South. Range
28 East. thence west along the section line to the
southwest corner of Section 8. Township 28 South,
Range 28 East. thence north along the section line to
the northwest corner of Section 5, Township 28
South. Range 28 East: thence west aJong the town-
ship line to the intersection of said township hne
with Lake Marion, thence following the south shore
hne of Lake Marion to its intersection again with said
township lne. thence west along the township line to
the southeast corner of Section 36, Township 37
South. Range 2' East: thence north alonJ the range
line between Ranges 27 and 28 East to the intersec-
tion of said range lne with Lake Marion: thence fol-
king the west shore of Lake Marion to its intersec-
tion again with the range li between Ranges 27 and
28 East thence north along aid rane line, in Town-
Ishps 2' and 26 South to the northeast corer of
Township 26 South Range 27 East, beinm on the
Pol, -Osceols County line. thence west along the
Polk-OCceola County line t tthe northwest corner of
Tonship 26 South. Range 27 East; thence south
*long the range line between Ranges 26 and 27 East
tthe southwest corner of Section 18 in Township 26
South Range 27 Eas. thence ast along the section
he uto the southeast corner of said Section 1 8 thence
south along the section lines to the southwest corner
Ssnction 32 in Township 26 South, Range 27 East.
thce et along the section line to the southeast
e 'me of said Section 32. thence south along the sec-
L* line to the southerlI right-of-way line of State
a*r*, .sa Route 17 and 92t in Township 27
Suuth Range 27 East. thence westerly along the
uth rl, rWh.-of.wav line of said State Road No
* 0 the te, boundary of Secton 27. Township 27


South. Range 26 East. thence north along the sector,
line to the northeast corner of Section 16. Towrns~:p
25 South. Range 26 East. thence west alonr the sec-
tion line to the southwest corner of Section 9. Town
ship 25 South. Range 26 East, thence north along the
section line to the Lake-Polk County line, thence
wst along the county line to the southwest corne of
Section 32, Township 24 South, Range 26 Eas:.
thence into Lake County. north along the sector
lines to the northeast corner of Section 30. Township
24 South. Range 26 East, thence west along the sec
tion lines to the northeast corner of Section 2e.
Township 24 South. Range 25 East. thence north
along the section lines to the northeast corer of Sec
tion 16. Township 24 South. Range 25 East: thence
west along the section line to the northwest corner of
Section 16, Township 24 South, Range 25 East.
thence north along the section line to the northeast
corner of Section 8. Township 24 South. Range 2s
East. thence wet along the section lines to the range
line between Ranges 24 and 25; thence north along
the range line to the northeast corner of Section 1.
Township 23 South. Range 24 East. also being on the
township line between Townships 22 and 23 South.
thence west along the township line to the northwest
corner of Section 6. Township 23 South, Range 24
East also being on the Sumter-Lake County line.
thence north along the Sumter-Lake County line.
also being the range line between Ranges 23 and 24
to the northeast corer of Section 1, Township 18
South. Range 23 East and the Marion Counts line.
thence west. along the Sumter-Marion County ne
also bein the township line between Townships 17
and 18 South. to the westerly right-of-way line of In-
arstate Highway 75; thence northerly along the west
rly right-of-way line of Interstate Highwsa 75 to the
Alachus-Marion Countv line. said line also being the
township lne between Townshps 11 and 12 South.
thence west along the Alchu-Marion Counts line to
the northwest corner of Section 3. Township 12
South. Range 19 East and the Lev. County line.
thence westerly along the Levy-Alachu County line.
also being the township line between Township' 11
and 12 South, to the southeast corner of Section 36.
Township 11 South. Range 17 East. thence north
along the Levy-Alachus County line, also being the
ange line between Ranges 17 and 18 East. to the
southerly right-of-way line of State Road No. 24.
thence southwesterly along said southern\
right-of-way line to the easterly right-of-wy line of
State Road No 337; thence southerly. along said
eaterly rght-of-way line of State Road No 337. to
the south line of Section 35, Township 14 South.
Range I7 East: thence west along the etior line to
the northwest corner of Section 3. Township 15
South. Range IT East. thence south along the sector
lines to the southwest corner of Section 27, Townsh:r
15 South Range 17 East. thence west to the Gulf of
Mexico. thence south along the Gulf of Mexicc in-
eluding the waters of said gulf within the jurisdiction
of the State of Florida. to the point of beginning
(eW South Florida Watet Manofemrn District
-Ber.n at the intersection of the north bounder\ of
Le Count\ with the Gulf of Mexico: thence eastern
along the Lee-Charlotte County line to the southwest
corner of Secton 34, Township 42 South, Range 24


APP33


F.-. 1983


Ch. 27





















Ck~ 72 WT5Rnri;nr ~we an


Eat. thence norberlv along the section line to the
northwest corner of Section 3. Township 42 South.
Range 24 East thence ewerl) along the Township
line between Townsh.ps 4] and 42 South to the
southwest corner of Section 31. Township 4] South.
Range 26 East. thence norther) along the Range line
between Ranges 25 and 26 Est to the onrthwe: cor-
ner of Section 6, Townhip 4] South. Range 26 East
thence easterly along the Tornship line between
Township. 40 and 41 South to the southwt corner
of Section 31. Township 40 South, Rane 27 East
thence northerly along the Range line between
Ranges 26 and 27 East to the Charlotte-DeSoto
County line, thence easterly along the Char-
lotteDesoto County line to the wt line of High-
lands County; thence northerly along the High-
lands-Desoto County line and along the Hihb-
lands-Hrdee Couty line to the northwest corner of
STownship 36 South. 2 e 2 East; thence uat along
the north boundary of Township 86 South to the
ortheast corner of Section 1. Townhip 36 South.
Range 26 East; thence south along the range line to
the southeast corner of Section 12. Township 37
South. Range 2 East; thence eat along the section
line to the northeast corner of Section 15. Township
87 South. Range 29 East; thence south long the ec-
tion line to the southeast corner of Section 34. Town.
ship 37 South. Ranue 29 East. thence est along the
township line to the northeast corner of Section 1,
Township 36 South, Range 29 East: thence south
along the range lne to the outheast corner of Sec-
tion 1, Townhiup 39 South. Range 29 East: thence
east along the section line to the northwest corner of
Section 11, Township 39 South, Range 30 East:
thence north along the section line to the southwest
comer of Section 35. Township 6S South. Rane 30
East, thence ast along the township line to the
southeut corner of the west b of Section 35. Town.
ahip 38 South. Range 30 East: thence north alon the
-section line of Sections 35. 26. and 23. Townhip
S South. Rane 30 East to the northeast corner of
the west section of Section 23. Township 38 South.
Rae 30 East: thence west along the section lie to
the northwest corner of Section 23. Township 38
South. Rane 30 East: thence north along the section
line to the northwest corner of Section 2. Township
37 South. Rane 30 East: thence wet along the town-
ship line to the southwest corner of Section 34.
Township 36 South. Rane 30 East: thence north
along the section line to the northwet corner of Sec-
tion 3. Township 36 South. Ranue 30 Eat. thence
west along the township ine to the southwest corner
of Section 31. Townshp 35 South Range 30 East:
thence north along the ran line between Ranges 29
and 30 East, through Townships 35. 34. and 33
South, to the northwest corner of Township 33
South. Range 30 Et. being on the Highlands-Polk
County line; thence we st on the Highland-Polk
County line to the southwest corner of Township 32
South. Range 29 East: thence north along the range
line between Ranges 28 and 29 East, in Township 32
and 31 South, to the northwe corner of Section 7 in
Township 31 South. Range 29 East thence east along
the section line to the northeast corner of Section ,.
Township 31 South Range 29 East thence north
along the section hne to the northwet scorer of Sec-


tion 17. Township 30 South. Rane 29 East, thence
east along the section line to the northea: corner of
the west i of Section 17, Township 30 South. Range
9 East: thence north along the H -ctior lne to the
northeast corner of the west of Section 5. Town.
ship 30 South. Range 29 East. thence west along the
motion line to the southwest comer of Section 32.
Township 29 South. Range 29 East. thence north
along the section line to the northeast corner of Sec.
tion 19 in Townhip 29 South. Rane 29 Est, thence
wst along the mouth boundaries of Section 18. Town.
ahip 29 South. Range 29 East and Secions 13. 14. 15.
16. and 17 in Township 29 South. Range 28 Eas: to
the southwest corner of said Section 17; thence north
long the section line to the intersection of said sec-
tion line with the west shore line of Lake Pierce a
Township 29 South. Rane 28 East; thence follo-mng
the wet shore of Lake Pierce to it intersection aga
with the west section line of Section 5. Township 29
South, Range 26 Eat; thence north along the section
line to the northwest corner of Section 5. Township
29 South. Range 28 East: thence est along the town-
ship line to the southwest corner of Section 33.
Township 28 South. Range 28 East thence north
along the section line to the nortwet corner of the
southwest ,. of the southwest b of Section 2,6
Township 28 South. Range 28 Est; thence mrt along
the 4%-section line to the intersection of said
S-section line with Lake Pierce; thence follow the
shore line northeasterly to its intersection with the
4-4-ction line of Section 28. Townhip 28 South.
Range 28 Eut, thence north on the -section lne to
the northwest corner of the southeast of Section
28. Township 28 South. Range 28 East. thence eas:
along the -ection line o tthe northeast corner of
the southeast ; of Section 28. Township 26 South.
Range 28 East; thence south along the section line to
the northwest corner of Section 3. Township 29
South, Rane 28 East. thence ean alon the section
line to the northeast corner of Section 3. Township 29
South. Rane 28 East, thence north alon the section
line to the northwt corner of Section 23. Townstip
28 South. Rae 28 East thence wst along the sec
tiao lie to the southwest corner of Section 16. Town-
ship 28 South, Rane 26 East; thence north JonF the
section line to the northwest corner of Section 16
Township 28 South. Range 28 East. thence wes:
along the section lie to the southwest comer of Se-
tion 8. Township 28 South. Rane 28 East, then-c
north along the section Jne to the northwest corner
of Section 5. Township 28 South. Rage 28 Ea:
thence west along the township line to the interme:
ion of said township line with Lke Marion. thence
following the south shore line of Lake Marion to iu
intersection again with said township line: thence
wet along the township line to the moutheust come
of Section 36. Townhip 27 South. Range 27 Ea-
thence north along the rane line between Rane :
and 28 Eas to the intersecton of aid range line %"
Lake Marion; thence following the wet shore of LA
Marion to ts intenection again with the range l
between Ranges 27 and 28 Est thence north aolo
aid range lie, in Townships 27 and 26 South, 0o t
northwest comer of Townhip 26 South. Rane 2
East being on the Polk-Oseol Count klne. tea
wet along the Polk-Osceola County line t the


APP34


.h 272


WATTW IR W ni'fre.


9G lanq




















30B aof Eeb! UlC Ch. 373


southwest corner of Township 25 South. Range 27
East thence northerly along the range line between
Ranges 26 and 27 East to the northwest corne of
Sectior. 16. Township 23 South. Range 27 East:
thence easterl along the section lines to the south-
west corner of Section 12. Township 23 South. Range
27 East. thence northerly along the section lines to
the northwest corner of Section 1. Township 23
South. Range 27 East; thence easterly alone the
Township line between Townships 22 and 23 South
to the southwest corner of Section 31, Township 22
South, Range 29 East. thence ortherly along the
Range line between Ranges 26 and 29 East to the
morthwesi corner of Section 30. Township 22 South,
Range 29 Eas:: thence easterly along the section lies
tothe westerly riht-of-way line of 1.S Highway 441;
thence southerly along the westerly right-of-way line
to the intersection with the northerly right-of-wy
jine of State Road 528A, thence asterly along the
northerlv right-of-was line to the intersection with
the northerly right-of-ws> line of State Road 626,
also known as the Bee Line Expressway. thence east-
erly along the northerly right-of-way line of State
Road 526 to the intersection with the range line be-
tween Township 23 South, Range 31 East and Town-
ship 23 South. Range 32 East. thence southerly along
the Rnge line between Ranges 31 and 32 East to the
Orange-Osceola County line, thence easterly along
aid county line between Townships 24 and 25 South
to the northeast corner of Section 5, Township 25
South. Range 32 East. thence southerly along the sec-
tion lines to the southeast corner of Section 32,
Township 25 South. Range 32 East. thence easterly
along the Township line between Townships 25 and
S6 South to the northeast corner of Section 1, Town-
shif 26 South, Range 32 East thence southerly along
the Range line between Ranges 32 and 33 East to the
southeast corner of Section 36. Township 27 South.
Range 32 East. thence westerly along the township
hne between Townships 27 and 26 South. to the
northeas corner of Section I, Township 28 South,
Range 32 East, thence southerly along the Range line
between Ranges 32 and 33 East to the southeast cor-
me of Section 36. Township 29 South. Range 32 East;
thence easterly along the Township line between
Townships 29 and 30 South to the northeast corner
of Section 1. Township 30 South. Range 33 East;
thence southerly along the Range line between
Ranges 33 and 34 East to the southeast corner of Sec-
tor. 36 Township 30 South, Range 33 East, thence
wterly along the Township line between Townships
30 and 31 South to the northeast corner of Section 4.
Township 31 South. Range 33 East: thence southerly
loung the section lines to the Osceola-Okeechobee
Counm line. thence easterly along said county line to
the northeast corner of Section 3, Township 33
South Range 34 East. thence southerly along the sec-
ton lines to the southeast corner of Section 34.
Toanship 34 South. Range 34 East. thence easterly
kmit the Township line between Townships 34 and
3: South to the southwest corner of Section 36.
To-nh:; 34 South. Range 35 East. thence northerly
ahrt the section lies to the northwest corner of Sec-
tir. 1 ToDbsip 34 South. Range 35 East, thence
mt,, along the action line to the Range line be-
t"wr Range 36 and 36 East thence northerly along


aid Range line to the northwest corner of Section 16.
Township 34 South. Range 36 East. thence eastern
along the section lies to the southwest corner of Sec
lion 10. Township 34 south. Range 36 East. thence
northerly along the section line to the northw'es cor-
ner of sid Section 10, thence early along the sec.
ion lines to the OkeechobeeSt. Lucie Count line.
thence northerly along said county line to the south
line of Indian River County. thence easter) along the
St. Lucie-ldiau River County line to the Atlantic
Ocan.. thence southerly along the Atlantic Ocea, to
the Gulf of Mexico; thence northern\ along the Gulf
of Mexico. including the waters of said Oce:. and of
sid Gulf and the island therein within the }urisdc-
tion of the State of Florida, to the point of beFnnrin
SR n 1. d R 2 i ii 7 1.0 I- a : t -4
UWIW 113. s r.1 >. 1. 7646


APP35


WATTCr BrVSA-lURfTr


Ch. 3S3


Si ea0









IN TEE DISTRICT COURT OF APPEAL
FIFTB DISTRICT OF FLORIDA

OSCEOLA COUNTY, a political )
subdivision of the State of
Florida, )
)
Petitioner, )
) Case Wo. 85-678
Vs. )
)
ST. JOHNS RIVER WATER )
MANAGEMENT DISTRICT, )
)
Respondent. )





OSCEOLA COUNTY'S CONSOLIDATED REPLY
TO RESPONSES TO ORDER TO SBOW CAUSE



Petitioner, Osceola County, files this consolidated reply to

the Response to Order to Show Cause of Respondent, St. Johns

River Water Management District ('St. Johns District'), and to

the briefs filed by amici curiae Florida Department of

Environmental Regulation ("DER") and South Brevard Water

Authority ("South Brevard").

Osceola County requests this Court to issue a writ of prohi-

bition preventing Respondent St. Johns District from exceeding

its lawful statutory jurisdiction.



Respectfully submitted,

William L. Earl, Esq.
Elizabeth M. Weaver, Esq.
PEEPLES, EARL & BLANK, P.A.
Attorneys for Osceola County
One Biscayne Tower, Suite 3636
2 South Biscayne Boulevard
Miami, Florida 33131
305/3 -3000


By:. illa L. Earl
illiam L.Earl


PEEPLES, EARL & BLAN-
A--ONE-r A AP3


APP36











TABLE OF CONTENTS
TOPIC PAGE

ARGUMENT

I. The St. Johns District Lacks Jurisdiction
over the Allocation of Water Outside Its
Geographical Boundaries . . 4

A. Chapter 373 Does Not Expressly Authorize
the St. Johns District to Allocate
Water Resources Outside Its Boundaries 4

B. Jurisdiction Beyond District Boundaries
Cannot Be "Necessarily Implied" from
Florida Law . . . 5

1. Section 373.223(2) does not imply
that a district may exercise
powers outside its boundaries. 5

2. Respondent may not exercise DER's
statewide supervisory powers. .

3. Section 373.103(6) does not imply
that a district has extrater-
ritorial powers. . ... .. 9

4. The Legislature's emphasis on
independent, regional water
management districts implies that
the districts lack extraterri-
torial powers. . . ... 10

5. The new State Comprehensive Plan
does not confer multi-district
regulatory authority on the
St. Johns District. . ... 11
6. Neither the St. Johns District
nor DER's administrative rules
confer jurisdiction over
extraterritorial water
resources. . . .. 11

7. Examples of inter-county
transfers and water users
straddling district boundaries
do not provide jurisdiction 11

II. If This Court Finds Implied Legislative
Authorization For Extraterritorial
Jurisdiction, It Would Raise Policy
Questions and Practical Problems That
Would Frustrate The Goals of the Act and
Would Render Portions of Chapter 373
Unconstitutional . . ... 13

A. The Legislature Did Not Prescribe
Necessary Standards and Guidelines
for a Constitutional Delegation of
Legislative Power. . . ... 13

B. Implied Extraterritorial Jurisdiction
Would Subject the State's System of
Water Allocation to Undue and Unfair
Political Influences. . ... 16




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PEOPLES, EARL & BLAN K
A-70%E- ', A- AAP


APP37











C. Creating the Power to Allocate
Resources Beyond District
Boundaries without Legislative
Standards Would Lead to
Forum or District, Shopping. . 17

D. Creating Extraterritorial
Jurisdiction Would Allow One
District to Declare a Water
Shortage and Impose Restrictions
on the Resources of Another District. 18

III. Osceola County Has the Standing, Right,
and Obligation to Maintain this Action 19

A. Osceola County and Its Citizens
Have a Substantial Interest in the
Planning for and Conservation of
Water Resources. . . .. 20

B. Osceola County Has No Adequate
Remedy at Law to Prevent St. Johns's
Unlawful Excercise of Jurisdiction. .. 22

CONCLUSION . . . . ... . 24

CERTIFICATE OF SERVICE . . . ... 25











































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PEEPLES. EAu. & BLAN.n APP38
ATTONE-' S A' ..










ARGUMENT

I.

The St. Johns District Lacks Jurisdiction over the
Allocation of Water Outside Its Geographical Boundaries


The central issue before the Court is whether Respondent St.

Johns District has power to allocate water resources located in

Osceola County beyond St. Johns's statutory jurisdictional boun-

daries. The source of this purported authority, St. Johns

admits, cannot be found in any single provision of Chapter 373,

Florida's Water Resources Act, but must instead be woven together

from an overall reading of the entire Act. In addition, Amicus

DER claims that since the Legislature did not expressly prohibit

water management districts from exercising jurisdiction over

resources outside their boundaries, they necessarily possess that

power and, presumably, all other powers not specifically denied

them. See Brief of DER at 2, 4.

Such a view of the authority conferred by Chapter 373,

however, misreads the law of agency powers; fails to take into

account the historical development of the relevant statutes; and

contradicts accepted rules of statutory construction.

Administrative agencies do not have all power not prohibited to

them by the Legislature -- they have only that power expressly

conferred or necessarily implied by statute. As demonstrated

below, no single provision of Chapter 373, nor any combination of

its subsections, either expressly or impliedly authorizes extra-

territorial jurisdiction by water management districts.



A. Chapter 373 Does Not Expressly Authorize the
St. Johns District to Allocate Water Resources
Outside Its Boundaries.


St. Johns admits that Chapter 373 "does not prescribe how to

proceed with applications such as that at hand" (Response of St.

Johns at 6), and DER discusses "the omission of specific mention

of interdistrict transfers" in Chapter 373. Brief of DER at 3.

It is clear that Chapter 373 makes no mention whatsoever of a



-4-

PEEPLES, EhaL & BLACK APP39
*--0='EI A- LA-











water management district's power to control resources located

outside its boundaries. Since extraterritorial power was not

expressly conferred, Respondent must demonstrate that its

asserted powers are necessarily implied from its enabling sta-

tute, Chapter 373.


B. Jurisdiction Beyond District Boundaries Cannot Be
*Necessarily Implied" from Florida Law.

The extraterritorial power in question in this proceeding can-

not be necessarily implied from the provisions of Chapter 373.

Analysis of the relevant sections of the Act reveals a contrary

intent by the Legislature: that water management districts were

meant to exercise their considerable taxing and regulatory powers

strictly within the geographical boundaries of their districts.1


1. Section 373.223(2) does not imply that a
district may exercise powers outside its
boundaries.

The St. Johns District and DER attach their jurisdictional

argument to Section 373.223(2), Florida Statutes, which provides:

The governing board or the department may
authorize the bolder of a use permit to
transport and use ground or surface water
beyond overlying land, across county boun-
daries, or outside the watershed from which it
is taken if the governing board or department
determines that such transport and use is con-
sistent with the public interest .

S 373.223(2), Fla. Stat. (1983) (emphasis supplied). The

St. Johns District has identified this section as the sole source

of authority for its rule purporting to authorize the allocation








1/ The taxing provisions of Chapter 373 specifically restrict
a water management district's taxing powers to property located
within the district. S 373.503(3), Fla. Stat. (1983); see
St. Johns River Water Management District v. Desert Ranches of
Florida, Inc., 421 So.2d 1067 (Fla. 1982). Moreover, as
creatures of statute with statutory boundaries prescribed by the
Legislature, water management districts are similar to municipa-
lities, which can exercise their powers only over the territory
assigned by the Legislature. See North Bay Village v. Isle of
Dreams Broadcasting Corp., 46 So.2d 496 (Fla. 1950).
-5-
APP40
PZPILzs. EAIL & BLA APp
A,'rofttL A- L"AV








of water beyond district boundaries.2 DER also relies heavily on

this section, claiming that it "plainly authorizes" DER to allow

water resources to be allocated or transferred from one district

to another. See Brief of DER at 2.

On its face, the cited subsection makes no reference to

transport beyond or across district boundaries. The statute

simply enumerates three types of authorized transport: transport

of ground water beyond the land lying above it, known as

*overlying land'; transport across county boundaries; and

transport outside a watershed. Before enactment of the statute,

each of these transfers was proscribed at common law, which for-

bade the transport of water beyond a riparian's boundaries. See

Maloney, "Florida Water Law,' Legal and Administrative Systems

for Water Allocation and Management, 35-36 (Cox ed. 1978).

As a statute in derogation of the common law, Section

373.223(2) must be strictly construed. Carlile v. Game & Fresh

Water Fish Commission, 354 So.2d 362, 364 (Fla. 1978). A broad,

much less a strict, construction of this Section does not support

the St. Johns District's claim of power to allocate beyond

district boundaries; rather, it limits its effectiveness to the

narrow authorization of transport across watersheds, county

lines, and overlying land. Osceola County does not dispute this

clear statutory authority.

The history of Section 373.223(2) provides insight into its

legislative intent. Long before passage of the present Section

373.223(2), a predecessor section was passed in 1957 as Section

373.141(1), Florida Statutes, which abrogated the common law and

provided the power to authorize the diversion of excess waters

*beyond riparian or overlying land." See Maloney, Florida's New

Water Resources Law, 10 Fla. L. Rev. 119, 132 (1957). The




2/ See Fla. Admin. Code Rule 40C-2.312. 5 120.54(7), Fla.
Stat. (1983), requires that each rule adopted by an agency iden-
tify the specific section or subsection of Florida Statutes being
implemented, interpreted, or made specific. In this case, St.
Johns has named Section 373.223 as the statute being implemented
in its Rule 40C-2.312. Section 373.223 provides no support for
St. Johns's rule permitting interdistrict transport of water.

-6-


PEEPLEs, EA XL & BLA.-x
ATTOWE.. &r- LA..


APP41









drafters of the Model Water Code, which was the basis of the

Florida Water Resources Act, expanded the language of Section

373.141 and included it in the Code. When the Legislature

enacted the Florida Water Resources Act in 1972, it expanded the

power to include transport beyond overlying land and across

watersheds. In 1972, however, Section 373.223(2) did not yet

mention crossing county boundaries, which was added by a sub-

sequent amendment, and made no mention of the crossing of

district boundaries.3

Subsequent legislative amendments went even further to

foreclose a broad construction of this statute. In 1976, several

years after the creation of the water management districts and

with full cognizance of their role and regulatory function, the

Legislature amended the list of allowable transfers to include

'across county boundaries." 5 373.223(2), Fla. Stat. (1976).

Again, however, the Legislature did not authorize the crossing of

district boundaries, which it had earlier prescribed in Section

373.069(2), Florida Statutes.

The doctrine of expression unius est exclusio alterius

requires that where a statute enumerates the things upon which it

is to operate, it is to be construed as excluding from its opera-

tion all those not expressly mentioned. Thayer v. State, 335 So.

2d 815, 817 (Fla. 1976). Thus, in the statute upon which

Respondent St. Johns relies, the Legislature chose to allow the

transport of water across certain types of boundaries; sub-

sequently amended the Act to specifically enumerate county bor-

ders as boundaries that could be crossed; but failed to allow for

the crossing of water management district boundaries.





3/ See 5 373.223(2), Fla. Stat. (1972); F. Maloney, R.
Ausness & J. Morris, A Model Water Code 5 2.02, Commentary at 168
(1972). Commentary to the Model Water Code explains that Section
373.223(2) was "primarily intended to assist municipalities which
are seldom considered riparians at common law." Id. at 181; see
also Koch v. Wicke, 87 So.2d 47 (Fla. 1956). Section 373.223(2)
was simply an effort to remove municipalities' inability to draw
from water sources to which they were not riparian. There is
nothing in its language to suggest it supports the vastly broader
interpretation offered by the St. Johns District or amici.
-7-

PEzPLE.z, EAL & B.LA- APP42
fhTO"NC't A- LA









Thus, legislative history and traditional rules of statutory

construction demonstrate that Section 373.223(2), Florida

Statutes, does not provide water management districts with

implied power to allocate water resources outside their boun-

daries. Any doubt about the lawful existence of a particular

power must be resolved against the exercise thereof, and further

exercise of the power must be arrested. City of Cape Coral v.

GAC Utilities, Inc., of Florida, 281 So.2d 493, 496 (Fla. 1973).

Section 373.223(2), therefore, provides no support for

Respondent's claim of statewide or unbounded jurisdiction.


2. Respondent may not exercise DER's
statewide supervisory powers.


Respondent St. Johns District has cited virtually every sec-

tion in Chapter 373 as support for its claim of mlplied extra-

territorial jurisdiction. It cites the general authority of

Amicus DER to manage and control waters of the State and to dele-

gate all such authority as it possesses to the individual

districts. See Response of St. Johns at 3-4. It argues that

since DER has statewide supervisory responsibilities over water

use, and has delegated permitting authority to the five

districts, that each of the five districts possesses DER's powers

and could perform the same regulatory functions as DER, thereby

disregarding district boundaries. The confused logic of this

argument is apparent from an examination of the statute itself.

Respondent District apparently views the relationship between

DER and itself backwards when it argues that it may exercise

DER's statewide powers. Chapter 373 clearly established a con-

sumptive use permitting program and established the five water

management districts by metes and bounds legal descriptions. The

Legislature required DER to delegate its consumptive use per-

mitting authority to the water management districts.

5 373.216, Fla. Stat. (1983); see also Fla. Admin. Code Rule

17-101.040(10)(a)(l)-(5). Chapter 373 allows DER to exercise any




-8-

PzEPLES, EAn'a & BLANx APP43
ATTOmWNES ALA








power 'authorized to be exercised by a water management

district,' S 373.016(3), Fla. Stat. (1983), but nowhere does it

allow DER to do anything more than that which the districts them-

selves may do with regard to consumptive use permitting.

The contrary view, argued by the St. Johns District -- that

the districts may exercise all powers given to DER -- is simply

not supportable under the language of the statute. The result of

such a construction would be that any of the state's five water

management districts would have the power to transport water from

the Panhandle or downtown Miami, irrespective of district boun-

daries. This absurd result was never intended by the Legislature

when it set up five geographical water management districts and

gave each permitting authority within its boundaries.



3. Section 373.103(6) does not imply that a
district has extraterritorial powers.

Because the other provisions on which St. Johns has relied

for its asserted extraterritorial jurisdiction fail to provide

the necessary authority, it attempts to bootstrap its argument

into credibility through reliance on Section 373.103(6) of the

Act. See Response of St. Johns at 9; Brief of DER at 3. That

provision authorizes the districts to exercise such 'additional

power and authority compatible with this chapter as may be

necessary to perform such duties and acts as are not spe-

cifically defined in or covered by statute." 5 373.103(6), Fla.

Stat. (1983) (emphasis supplied).

It is clear that the Legislature could not by this section

confer additional authority on the St. Johns District other than

that implied by the substantive provisions of the Act. It con-

tains no standards, policies, or directives to be implemented by

the water management districts. Accordingly, it cannot be the

source of asserted, implied jurisdiction unless this Court finds

that the Act itself independently grants such extraterritorial

powers and provides meaningful guidelines for their exercise.




-9-


PzEPLzs, EAnRL & BLA~
LTfOlhLC^ *' fc.A


APP44









Since, as discussed above, no such authorization exists, Section

373.103(6) cannot furnish a justification for the extraterri-

torial jurisdiction the St. Johns District is attempting to exer-

cise.


4. The Legislature's emphasis on independent,
regional water management districts implies
that the districts lack extraterritorial powers.

The dominant legislative theme in Chapter 373 is that water

management districts were created to implement a regional

approach to water management. As St. Johns itself has pointed

out, the Legislature recognized in Section 373.016(3) that "water

resource problems of the state vary from region to region," and

that the water management districts, by the very fact that each

is regional, focus their attention on the resource problems

within their respective boundaries. See Response of St. Johns

at 6. Dean Maloney, principal author of Florida's Water

Resources Act, also wrote of the importance of the district unit:

The Water Management Districts were
established so that their boundaries conform
closely to hydrologic lines. Although a water
management district may have more than one
river basin within its geographic area, the
lands affected by or affecting any given river
basin should be within the jurisdiction of a
single water management district. The inde-
pendence of these districts from one another
permits diverse approaches to management of
water resources. Water management problems
vary from one district to another and solu-
tions acceptable to a district's residents
may also vary from district to district.

F. Maloney, S. Plager, R. Ausness a B. Canter, Florida Water

Law 1980 210 (1980) (emphasis supplied). See also 5 373.0395,

Fla. Stat. (1983).

Thus, Chapter 373's legislative prescription of regional

solutions to water management issues by independent water manage-

ment districts is directly contrary to the scheme of extraterri-

torial regulation proposed by Respondent.








-10-

PEEZPLs. EARL & BLA.N- APP45
A**%E" ** .A..









5. The new State Comprehensive Plan does not
confer multi-district regulatory authority
on the St. Johns District.

As supplemental authority, Respondent furnished this Court

with a copy of the newly enacted State Comprehensive Plan, passed

by the 1985 Legislature as Bouse Bill 1338, and directed the

Court's attention to subsection 8(b)3, which sets forth as a

goal "the development of local and regional water supplies within

water management districts instead of transporting surface water

across district boundaries."

Respondent, however, did not inform this Court that this same

comprehensive planning act provides no authority not otherwise

granted to St. Johns District under the substantive provisions of

Chapter 373. The Act provides:

The State Comprehensive Plan is intended to be
a direction-setting document. The plan
does not create regulatory authority or
authorize the adoption of agency rules, cri-
teria, or standards not otherwise authorized
by law.

B.B. 1338, S 1 (2) (1985) (emphasis supplied). Thus, the State

Comprehensive Plan provides no new or additional regulatory

authority and may not be relied on as the legislative authoriza-

tion for extraterritorial allocations. Such authority might only

be found -- or, in this case, found lacking -- in Chapter 373,

the Florida Water Resources Act.


6. Neither the St. Johns District nor DER's
administrative rules confer jurisdiction
over extraterritorial water resources.

Despite the absence of statutory authority for one water

management district purporting to exercise power outside its

boundaries, the St. Johns District and DER have both promulgated

rules attempting to authorize such allocations of water. See

Fla. Admin. Code Rules 17-40.03(11), 17-40.05, and 40C-2.312.

Although Respondent discusses these rules at length in its

response memorandum, they are irrelevant to the issue before this

Court, since rules and regulations can only implement jurisdic-



-11-


PzzPLzs, EARL & BLANE
A-TO'%-fS LA,^


APP46









tion that the Legislature has granted; they cannot enlarge,

modify, or contravene statutory provisions. State Department of

Business Regulation v. Salvation Ltd., 452 So.2d 65, 66 (Fla. Ist

DCA 1984).

Where a rule exceeds the agency's statutory grant of

authority, the agency may not rely on that rule to support its

actions. See Florida Dept. of Law Enforcement v. Binson, 429

So.2d 723, 724 (Fla. 1st DCA 1983). Administrative agencies have

no jurisdiction to proceed beyond that granted by statute and

have no inherent rulemaking authority. Orange County v. Debra,

Inc., 451 So.2d 868, 870 (Fla. 1st DCA 1983).

The fact that administrative rules exist on the subject of

interdistrict transfers lends no support to St. Johns's claim of

jurisdiction. The District must not be allowed to use such rules

to bootstrap past the essential missing Ingredient: a legisla-

tive grant of authority to act beyond its legislatively deter-

mined boundaries. Unless such grant is found, the rules are

invalid regulations in excess of statutory jurisdiction.



7. Examples of inter-county transfers and
water users straddling district boundaries
do not provide jurisdiction.

In yet another attempt to persuade this Court that water

management districts have power to allocate water resources

beyond their territorial boundaries, the St. Johns District

supplied an affidavit of a district employee referring broadly to

inter-county transfers (which are not at issue herein) and water

users straddling district boundaries. See Response of St. Johns

at Appendix A. Of course, none of those cited examples can pro-

vide the legislative authority that is essential for extraterri-

torial jurisdiction.

Moreover, the listed examples are critically dissimilar fror

the circumstances at issue, in that they involve either the

crossing of county boundaries within a single district, an action

which Petitioner Osceola County agrees is expressly authorized



-12-


PEEPLS., EA.L & BLAx P
TODl*NE'S AT l*A


APP47








under Section 373.223(2), Florida Statutes, or they involve city

or county utilities which "straddle" district boundaries. The

instant case is much different. Par from 'straddling" a district

boundary, South Brevard seeks permission from the St. Johns

District for an allocation of water resources outside the St.

Johns located miles away in Osceola County and under the juris-

diction of the South Florida Water Management District. Thus,

district straddling has no bearing on whether the District has

legislative authority to allocate water beyond its district boun-

daries.

In the absence of express or implied legislative authority

for St. Johns's asserted extraterritorial powers, this Court

should issue a writ of prohibition to prevent the exercise of

unlawful jurisdiction.



II.

If This Court Finds Implied Legislature Authorization For
Extraterritorial Jurisdiction, It Would Raise Policy
Questions and Practical Problems That Would Frustrate
The Goals of the Act and Would Render Portions of
Chapter 373 Unconstitutional

If this Court should find some tacit or generalized statutory

authorization for extraterritorial jurisdiction, portions of the

statute would be unconstitutional for failure to include adequate

legislative standards and guidelines. Moreover, such implicit

extraterritorial power would raise policy questions and practical

problems for the districts that would frustrate the very purposes

of the Act.


A. The Legislature Did Not Prescribe Necessary Standards
and Guidelines for a Constitutional Delegation of
Legislative Power.

Under Article II, Section 3 of the Florida Constitution,

legislative delegations of power to administrative agencies must

contain adequate standards and guidelines for the agency to carry

out the intent and mandate of the Legislature. Askew v. Cross

Key Waterways, 372 So.2d 913, 918-19 (Fla. 1978).


-13-

PEZPLEzs Ea L & BLA.E APP48
_T-DRNC& A L*A









The establishment of agency boundaries is a particularly

legislative function, especially in the case of water management

districts, for which the Legislature has prescribed metes and

bounds descriptions of the five district boundaries covering

almost six pages of Florida Statutes. See 5 373.069(2)

Fla. Stat. (1983) In fact, the Legislature has on two occasions

specifically changed the territorial jurisdiction of the water

management districts. Ch. 76-243, S 1, Laws of Fla.; Ch. 78-65,

51, Laws of Fla. If water management districts actually

possessed the extraterritorial powers urged by Respondent, it

would not be necessary for the Legislature to periodically revise

their boundaries. The power to determine agency territorial

jurisdiction is not an executive power, and it is not judicial.

The Legislature in its wisdom has clearly decided that the boun-

daries it has set must be respected until such time as the

Legislature itself changes them. Assuming for argument's sake

the existence of a legislative delegation of power to allocate

water resources beyond district boundaries, portions of Chapter

373 would be rendered unconstitutional for failure to include

legislative standards for such extraterritorial jurisdiction.

In Cross Key Waterways, the Supreme Court invalidated Section

380.05(2), Florida Statutes, for failure to provide adequate

standards and guidelines in authorizing the Administration

Commission to determine which geographic areas of the state

needed protection as "areas of critical state concern." 372

So.2d at 919. Although the statute expressly authorized the

Commission to make designations, and attempted to prescribe stan-

dards for the designation process, the Court held the standards

inadequate because the statute made it impossible for the court

to determine whether the priorities created by the agency cor-

ported with the intent of the Legislature. Id. at 919, 925.

Where a statute contains insufficient guidelines to carry out the

intent of the Legislature, "the agency becomes the lawgiver

rather than the administrator of the law,'" d. at 919, in viola-

tion of the Separation of Powers doctrine.


-14-

PEzPLES, EAlR & BLANK APP49
ATTO3RE% & 'S -*








The instant case provides a more compelling example of

invalid delegation than Cross Key Waterways. In Cross Key

Waterways, the Commission at least had been delegated express

power to make designations. were, however, the Legislature did

not even expressly delegate to the districts the power to allo-

cate water resources outside their jurisdiction. Further, unlike

the situation in Cross Key Waterways, there is not even an

attempt in the statute sub judice to provide standards, guideli-

nes, or criteria to inform the agency, or a reviewing court, of

the legislative intent governing purported extraterritorial

allocations.

Thus, assuming arguendo the existence of multi-district allo-

cation, the Legislature has not declared or suggested which

district should control the permitting process when two districts

are involved. The confusion from this lack of guidance is

illustrated in this case, because Respondent St. Johns asserts

that both districts would share responsibility for permitting,

whereas South Brevard argues that the district of use would have

exclusive jurisdiction.4 Furthermore, assuming the Legislature

wanted both districts to be involved, it has provided no stan-

dards as to such a bifurcated permitting process. What happens

if three districts need to be involved? The Legislature has pro-

vided no priorities or balancing criteria for circumstances in

which water resources are to be allocated from one district for

use in a different district.

In addition, there is absolutely no geographical limitation

on this purported power to allocate resources outside district

boundaries -- apparently, any of the five districts could reach

across the state to designate a water resource for use in the

home district. The Supreme Court identified a similar unbridled


4/ See Response of St. Johns's at 5; Brief of South Brevard
at 7. Indeed, South Brevard seems to contradict itself as to the
repository of jurisdiction: in several places it argues the
district of the proposed use should have jurisdiction (see, e.g.,
Brief of South Brevard at 7, 9); it also states, however, that
*jurisdiction attaches at the point that a person intercepts
water in the hydrologic cycle" (Brief of South Brevard at 6-7),
suggesting jurisdiction in the district having the well, i.e.,
the resource.
-15-


APP50


PEzPLzS, EA L & BLAN-
ATTOXNE'LS A- bW








delegation in Cross ley Waterways:

Up to the acreage limit, the Commission is
empowered to supersede as it chooses the local
governments regulating development in historic
Pensacola or St. Augustine, or at the shores
of the Atlantic and Gulf of Mexico to a depth
of a thousand feet, or in all acreage on the
Suwannee and St. Johns and their tributaries
or, indeed, in all the Florida Keys. If Cedar
Key, bTor City, Palm Beach and the path of the
King's Road are found to be historic resources
of satisfactory importance, they too may be
designated. 1372 So.2d at 919, quoting with
approval 351 So.2d at 1069.1

The same is true here: one district, in fact any district, could

identify a water resource anywhere in the state and permit

transport to any other location in the state, from Pensacola to

Key West. As in Cross Key Waterways, neither the agency nor a

reviewing court has sufficient information to determine

legislative intent or priorities to implement the purported

powers.

Thus, there are no adequate standards or guidelines

concerning extraterritorial allocations in Chapter 373, Florida

Statutes. In construing statutes, courts should avoid

constructions that would render those statutes unconstitutional.

Pinellas County v. Laumer, 94 So.2d 837, 840 (Fla. 1957).

Because Chapter 373 does not contain standards or guidelines

evincing the legislative intent, this Court should not interpret

the statute to include an unconstitutional delegation of

legislative power.


B. Implied ZEtraterritorial Jurisdiction Would
Subject the State's System of Water Allocation
to Undue and Untair Political Influences.

This Court should also consider the public policy and the

practical implications that would arise if it were to find that

water management districts had tacit power to ignore or admin-

istratively alter the districts' legislatively set boundaries.

For example, the Florida Water Resources Act is concerned with

the impact of a proposed withdrawal on the water resource, as

well as whether the withdrawal will be a reasonable beneficial



-16-


PEOPLES. EArl. & BLAN-x


APP51









use. See S 373.016, Fla. Stat. (1983); Pinellas County v. Lake
Padgett Pines, 333 So.2d 472, 478-79 (Fla. 2d DCA 1976); Response

of St. Johns at 5. In the absence of legislative guidance,

however, a single district could attempt to exercise exclusive

jurisdiction to issue a permit for proposed consumption within

its boundaries based on proposed withdrawals from areas in a
different district, without any participation by the second

district or the people living therein. In such a situation, the

permitting jurisdiction could be subject to unchecked political

pressure by powerful interests in a large metropolitan area

seeking to take water from some smaller or rural area in another

district, in which case the permitting district could be

pressured to ignore the impact on the water resource in the

unrepresented district and to consider only the need for the use.

Such situations would obviously be contrary to the resource

protection goals of the Water Resources Act and demonstrate the

essential need for legislative standards and guidelines.


C. Creating the Power to Allocate Resources Beyond
District Boundaries without Legislative Standards
Would Lead To Forum, or District, Shopping.

South Brevard argues that the proper jurisdiction to issue

consumptive use permits such as the one at issue is the water

management district "where the water is used or consumed." Brief

of South Brevard at 7 (emphasis supplied). The Legislature,

however, did not specify that the jurisdiction of use, rather

than the jurisdiction of the resource, should control the

permitting process where two water management districts are

involved. This lack of guidance would lead not only to disputes

and confusion among the districts, but might also result in

administrative forum-shopping: that is precisely what occurred

in the instant case.

South Brevard originally applied to the South Florida Water

Management District for the same permit for an allocation of

water from Osceola County. When the South Florida District





-17-
PEEPLZS, EAML & BLAN APP52
A-OQNE'- A, -a








*requested additional information about the application, South

Brevard only supplied information relating to water use, and did

not provide information regarding the impact of the withdrawal on

the water resource. See Affidavit of Dr. Patrick J. Gleason,

Director of Water Use Division, South Florida Water Management

District, attached hereto as Appendix A. After the South Florida

District again requested information relating to the impacts of

the proposed withdrawal in that district, South Brevard filed a

second application with its "home" district, the St. Johns

District, once again providing information only as to the need

for the use in Brevard County. See Affidavit of Dr. Gleason,

Appendix A, paragraphs 6-8. See also Affidavit of Moresi,

Appendix A to Osceola County's Petition for Writ of Prohibition.

While the first South Florida application remains stalled as

"incomplete' for failure to furnish answers to questions about

impacts in the South Florida District, St. Johns scheduled the

permit for decision on the basis of the identical information.

As is clear from this case, a construction of the statute

that could allow one district to stretch its permitting authority

into another district, but which contains no legislative

standards or requirements for assuring evaluation of the impact

on the water resource, would allow district-shopping by

applicants searching for a friendly district or seeking a quick

approval that would vest rights or have res judicata effect,

frustrating the second district's reconsideration of the same

permit application from its own regional perspective. Such a

construction would be contrary to the legislative intent of the

Water Resources Act, which requires the evaluation of both the

resource and the use, in regard to each permit application. See

Maloney, Capehart, & Boofman, Florida's "Reasonable Beneficia:l

Water Use Standard, 31 U. Fla. L. Rev. 253, 277 (1979).


D. Creating Extraterritorial Jurisdiction Would Allow
One District to Declare a Water Shortage and Impose
Restrictions on the Resources of Another District.

A construction of Chapter 373 that would allow water

management districts by implication to exert authority beyond

-18-


APP53


PzzPLErs EAZL & BLAj.-
A"rDOE-5 A- ^.










district boundaries, would likewise authorize one district to

avoid imposing water-use restrictions at home in order to impose

restrictions upon another district to protect the

extraterritorial resource. The provisions for water shortages

and restrictions are contained in Section 373.246, Florida

Statutes. Although this section provides standards for declaring

water shortages and imposing water shortage plans within

districts, nothing in the section expressly prohibits the

districts from crossing district boundaries to impose use

restrictions during shortages.

Thus, accepting Respondent's position that it may allocate

water resources beyond its district boundaries would have

ramifications affecting a wide range of water resource issues.

Chapter 373 simply establishes no law granting power to the

districts to allocate resources beyond their legislatively

prescribed boundaries. If this Court finds implied legislative

authorization, it would raise policy questions and practical

problems that would frustrate the goals of Chapter 373 and would

render portions of the statute unconstitutional. The Separation

of Powers mandate precludes the executive branch, and the

judiciary, from performing legislative functions. This Court

should issue the writ to prevent St. Johns District's further

exercise of unlawful jurisdiction.


III.

Osceola County las the Standing, Right, and
Obligation to Maintain this Action


Respondent St. Johns District and South Brevard contend that

Osceola County has no standing to bring this action, the latter

erroneously claiming that this action involves an attempt by

Osceola County to prevent Brevard County from taking its water.

Brief of South Brevard at 8. Respondent St. Johns additionally

contends that this Court lacks jurisdiction because Osceola

County did not pursue an administrative proceeding challenngi



-19-

PEEzzLs. EARL & BLANx APP54
."0-s t &alw









St. Johns's unlawful exercise of jurisdiction under the

Administrative Procedure Act, Chapter 120, Florida Statutes.

This prohibition proceeding, however, clearly does not

involve an attempt by Osceola County to prevent Brevard County

from transporting water across county boundaries; such inter-

county transport of water is expressly authorized by Section

373.223(2), Florida Statutes. Rather, this action raises

questions of subject matter jurisdiction and policy questions

involving proper planning for and conservation of water

resources. The Legislature has expressly conferred upon counties

the statutory obligation to plan for and conserve water

resources, thereby creating a substantial interest in the outcome

of this litigation. Moreover, this proceeding in prohibition was

the only adequate remedy available to Osceola County to prevent

St. Johns's further exercise of unlawful jurisdiction.


A. Osceola County and Its Citizens Bave a Substantial
Interest in the Planning for and Conservation of
Water Resources.

Standing will be found when a party has "a sufficient

interest at stake in the controversy' that will be affected by

the outcome. Gieger v. Sun First National Bank of Orlando, 427

So.2d 815, 817 (Fla. 5th DCA 1983); see Florida Bome Builders

Ass'n v. Department of Labor and BEployment Security, 412 So.2d

351 (Fla. 1982). See also Bunt v. Washington State Apple

Advertising Commission, 432 U.S. 333, 343 (1977). The Florida

Legislature has imposed express statutory duties on counties

concerning the conservation and supply of water resources.

Pursuant to the Local Government Comprehensive Planning Act of

1975, Sections 163.3161 et seg., Florida Statutes, local

governments are required, among other things, to plan for the

most appropriate use of water, to facilitate the adequate and

efficient provision of water, and to conserve, develop, utilize,

and protect natural resources. S 163.3161(3), Pla. Stat. (1983).

Thus, local governments must adopt comprehensive plans to guide

future development and growth, which must contain, inter alia:



-20-


PZEPs. s. EARL & BLANE
AT-,O C' s A- -*


APP55









A conservation element for the conser-
vation, development, utilization, and protec-
tion of natural resources in the area,
including, as the situation may be, air,
water, estuarine marshes, soils, beaches,
bsores, flood plains, rivers, lakes, harbors,
forests, fisheries and wildlife, minerals, and
other natural and environmental resources.

5 163.3177(6)(d), Fla. Stat. (1983). Further, the Legislature
recently amended this provision, effective October 1, 1985, to

require local governments to "assess their current, as well as

projected, water needs and sources for a 10 year period.'

Ch. 85-55, S6, Laws of Fla. Section 163.3177(6)(c), Florida

Statutes also requires an element to provide for future potable

water requirements for the area. These provisions for water

resource planning and conservation are consistent with the stated

intent and the Florida Water Resources Act, which provides that

*future growth and development planning reflect the limitations

of the available ground water or other available water supplies.*

S 373.039, Fla. Stat. (1983).

Furthermore, as a political subdivision of the State, Osceola

County is responsible for protecting and preserving the health,

safety, morals, and general welfare of its citizens. Pursuant to

Section 125.01(1), Florida Statutes, the Legislature expressly

conferred upon counties the power to 'provide and regulate .

water supply and conservation programs'; to prosecute "legal

causes in behalf of the county or state"; and to 'perform any

other acts not inconsistent with law which are in the common

interest of the people of the county.' Id. at 5S (b), (k), and

(w). See generally Speer v. Olson, 367 So.2d 207, 210-11 (Fla.

1979); Board of County Commissioners of Marion County v.

McKeever, 436 So.2d 299, 301 (Fla. 5th DCA 1983).

Although Osceola County may not regulate the allocation of

water pursuant to Chapter 373, Florida Statutes, the legislative

intent of the Water Resources Act was for "counties to have an

important role* in such regulatory measures. Pinellas County v.

Lake Padgett Pines, 333 So.2d 472, 478 (Fla. 2d DCA 1976).

Moreover, although no one can own underground waters, there is a



-21-

PEZEPz.. EAML & BLAJLX APP56
AtTO>E' f~ lr*








specific "right of user" establishing the right to the usufruct

of the ground water, Village of Tequesta v. Jupiter Inlet

Corporation, 371 So. 2d 663, 667-68 (Fla. 1979), which is a

legally protectable interest. Maloney, A Nodel Water Code 168

(Commentary). Osceola County has a fundamental interest in water

resources, since its citizens are actual, direct users of ground
water for agricultural, domestic, industrial, and other purposes,

and the County must plan for the use of water resources to guide

future growth. S 163.3161(3), Fla. Stat. (1983).

Therefore, it cannot fairly be said that Osceola does not

have a sufficient interest at stake in this controversy.

Accordingly, Osceola County has standing to bring this action.5


B. Osceola County las Wo Adequate Remedy at Law
to Prevent St. Johns's Unlawful Exercise of
Jurisdiction.

Respondent St. Johns District contends that this Court has no

jurisdiction because Osceola County did not pursue administrative

remedies under Chapter 120, Florida Statutes, and suggests that

the County should have first asked the agency itself whether the

agency thought it had jurisdiction to do what it proposed to do.

Response of St. Johns at 11-12.6 St. Johns's argument, however,

disregards the fundamental purpose of this proceeding, which is

to prevent the agency's further exercise of unlawful





5/ St. Johns cites dicta from three prohibition cases in sup-
port of its argument that Osceola County must affirmatively
demonstrate that damage and impending present injury will follow
from St. Johns's proposed actions before a writ of prohibition
will issue. See Response of St. Johns at page 12. The fundamen-
tal attribute of prohibition, however, is jurisdiction, not
injury, and where jurisdiction is lacking or exceeded, prohibi-
tion will lie. Wehle & Belcher, Prohibition in Florida, 4 U.
Fla. L. Rev. 546, 547-48 (1951) (quoting Blackstone); Boyer 6
Barton, Writ of Prohibition in Florida Since 1951, 29 U. Fla. L.
Rev. 241, 241-42 (1977). Injury is a necessary incident in pro-
hibition, because any threatened action by a lower tribunal
exceeding its jurisdiction will constitute impending injury to
the affected party almost by definition.

6/ Of course, based on St. Johns's other argument that
Osceola County is merely an interested bystander with no standing
to sue or to appeal, it would undoubtedly have moved to dismiss
any such administrative proceedings by Osceola County for alleged
lack of standing.

-22-
PzEPL.s, EARL & BLAX APP57
ATTONEm'5 ..*.










jurisdiction. Prohibition should be granted whenever the lower

tribunal is acting without jurisdiction and no other remedy is

adequate to protect the affected party. Blanton v. State ex rel.

Biscayne Beach Theatre, 143 So. 226, 227 (Fla. 1932). When an

agency is unlawfully attempting to exercise power beyond its

legislatively prescribed boundaries, it can hardly be considered

an adequate remedy to compel the party to initiate costly

administrative proceedings before the agency itself, asking the

agency to find that it is proposing to act without jurisdiction.

Respondent St. Johns, however, attempts to rely on State v.

Falls Chase Special Taxing District, 424 So.2d 787 (Fla. 1st DCA

1982), rev. denied, 436 So.2d 98 (Fla. 1983), and its

interpretation of the three factors used to determine when

exhaustion is required:

1. Involvement of specialized administrative under-
standing in the question;

2. Degree of apparent clarity or doubt regarding
administrative jurisdiction;

3. Extent of injury from pursuit of administrative
remedy.

In the present case, the three factors require issuance of a

writ of prohibition by this Court. First, because this action

involves a judicial interpretation of statutorily prescribed

territorial limits, no administrative expertise or factual

analysis is needed. Second, an examination of St. Johns's

enabling legislation reveals absolutely no basis for the

attempted assertion of jurisdiction over resources located

outside the District's boundaries: the agency's claim of

jurisdiction is clearly without merit. Finally, injury to the

County and its citizens from St. John's unlawful exercise of

jurisdiction would result from the pursuit of needless,

expensive, and time consuming administrative processes. See,

e.g., Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park,
Inc., 361 So.2d 695, 699 (Fla. 1978).

Consequently, there is no adequate legal remedy available to

Osceola County to prevent the St. Johns District from acting

without lawful jurisdiction.


-23-
PEEPLES. EARt & BLAIKE APP58
-1cNEfS A' -A-









COCLOS I OWq


This case presents an issue of statewide importance.

Contrary to the cleai of South Brevard, this does not involve a

water war between two counties. This action involves an attempt

by one water management district to exceed its jurisdiction over

water resources and ignore legislatively prescribed

jurisdictional boundaries. The district's attempt to exercise

extraterritorial power without legislative authority or standards

is contrary to the goals of Florida's Water Resources Act and

will result in unsound public policy. If water management

districts need extraterritorial power to allocate water

resources, it is for the Legislature, not the agencies or the

courts, to establish that power. That power being absent, this

Court should issue a writ of prohibition to prevent the St. Johns

District's further exercise of unlawful jurisdiction.



Respectfully submitted,


William L. Earl, Esq.
Elizabeth M. Weaver, Esq.
PEEPLES, KARL & BLANK, P.A.
Attorneys for Osceola County
One Biscayne Tower, Suite 3636
2 South Biscayne Boulevard
Miami, Florida 33131
305/358-3000



illiiam L. Earl




















-24-
PEZEPLIE EAfl & BL.r.r- APP59
-TD SELS A- A-








CERTIFICATE OF SERVICE


I BREBT CERTIFY that a true copy of the foregoing has been

provided by United States mail to Vance W. Kidder, Esq., St.

Johns River Water Management District, Post Office Box 1429,

Palatka, Florida 32078-1429; Clifton A. McClelland, Jr., Esq.,

Potter, McClelland, Griffith a Jones, P.A., Post Office Box

360977, Melbourne, Florida 32936-0977; and Deborah A. Getzoff,

Esq., State of Florida Department of Environmental Regulation,

Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee,

Florida 32301, this 29th day of June, 1985.






illiam L. Earl








































-25-

PEEPpES, FA&J. & BLAr. APP60
,t^O*^t*'^ *** t.*







STATE OF FLORIDA
IN TEE DISTRICT COURT OF APPEAL
FIFTH DISTRICT



OSCEOLA COUNTY, a political
subdivision of the State of
Florida,

Petitioner,
v. CASE NO. 85-678

ST. JOBNS RIVER WATER
MANAGEMENT DISTRICT,

Respondent.




RESPONSE TO ORDrER T SgOK CASE



The Respondent, ST. JCENS RIVER WATER MANAGEMENT DISTRICT,

responds to the Order to Show Cause entered by this Court on ray 6,

1985, and says that a Writ of Prohibition should not be issued

because:

1. inter-district transfers are permissible under Chapter

373, Florida Statutes, and the Respondent is empowered, and

properly so, to evaluate an application for a consumptive use whose

source for withdrawal lies outside the boundary of the

Respondent;

2. the Petitioner, if it has standing to invoke aciinistra-

tive remedies provided by Chapter 120, Florida Statute, has had

adequate remedy at law which it has failed to timely invoke;

3. the Petition fails to state a claim upon which a Writ of

Prohibition car be based, and the Petitioner lacks standing: to in.-

stitute this proceeding.



BREVD.C COUNTY AND ITS P _ROPCSED COiNSCON PTrVE rSI


The Petitioner argues an interpretation of Chapter 373,

Florida Stittes, that, when applied, would cause the water

resources of the state to be reSglated contrary to the lecislstive





1
APP61







intent and purpose for Chapter 373, Florida Statutes. The resolu-

tion of this matter does not lie in case law quoting axioms for

determining legislative intent and agency authority, but in study

of the provisions of Chapter 373, Florida Statutes, which state

legislative intent and grant specific and implied authority and the

need for practical ways to achieve the aims of the Legislature when

it enacted Chapter 373, Florida Statutes.

The rudiments of Petitioner's argument are that nowhere does
Chapter 373, Florida Statutes, specifically authorize the transfer

of water across boundaries established in Section 373.069, ridL

Statutes, and nowhere in Chapter 373, Florida Statutes, is a water

management district specifically authorized to regulate a user who

will use water within the bounds of a District when the water is

acquired from a well or well field located outside the bounds of a

District. The Petitioner's position opposes a practical means of

implementing a statute that applies throughout the state but which

is implemented by political subdivisions whose individual bound-

aries are not coterminous with the boundary of the state.

The consumptive use regulatory program established by Chapter

373, Florida Statutes, is a regulatory program for the state, not

for watersheds. Section 373.016(1), Florida Statutes, states that

"[t]he waters in the state are among its basic resources." Section

373.023(1), orida utes, states that "[a]ll waters in the

state are subject to regulation under the provisions of [Chapter

373] unless specifically exempted by general or special law."

Section 373.019(8), Florida Statutes, defines "water" or "waters in

the state" to mean "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

percolating, standing, or flowing beneath the surface cf the

ground, as well as all coastal waters within the jurisdiction of

the state." Thus, it is readily apparent that Chapter 373, fcrid

Stfatts, applies throughout the state because "waters in the

state" are coterminous with the boundary of the state and cover or

are in or above every square inch of this state. The State of

Florida Department of Environmental Regulation (DER., a state


2
APP62







agency, is empowered to implement Chapter 373, Florida Statutee;

Sections 20.261 and 373.016(3), Florida Statutes, and its juris-
diction is statewide in that Chapter 373 applies statewide.

The Brevard County Board of County Commissioners, on behalf of

the South Brevard Water Authority, has applied to the Respondent

for a consumptive use permit and has also applied to the South

Florida Water Management District for a consumptive use permit.

The applicant is a political subdivision of the state that shares a

common boundary with Osceola County. The applicant proposes to

withdraw ground water via a well or wellfield that would be located

in Osceola County and transport that water across the corr.mcn county

boundary for use in Brevard County. The Respondent has recommended

the application before it for denial.

Part II of Chapter 373, Florida Statutes, is titled

"Permitting of Consumptive Uses of Water." Section 373.219,

Florida Statutes, authorizes the DER to require permits for the

consumptive use of water. Section 373.223, Florida Statutes, em-

powers the DER to "authorize the holder of a use permit to

transport and use ground or surface water beyond overlying land,

across county boundaries, or outside the watershed from which it is

taken' if the transport and use is consistent with the public

interest. If DER chose to implement Part II and Brevard County

applied to DER, and then if the DER determined that Brevard Cou-ty

qualified for a use permit, the DER could also authorize the

transport across the Brevard County/Osceola County boundary beyond

the overlying land, for use in Brevard County if, as is required by

Section 373.223(2), Florida Statutes, it was established that the

transport and use is consistent with the public interest. Th-s,

the DER has specific authority to grant the application provided

the application met the requisite criteria.

It has been established that the DER could implement Part I:
of Chapter 373, Florida Stautes, throughout the length and breadth

of the state. However, the DER, in keeping with Section

373.016(3), Florida Statutes, has, pursuant to Section 373.103('',
Florida Statutes, delegated the authority to implement Part 1; of

Chapter 373, Florida Statutes, "Permitting of Consumptive Uses of


3
APP63







Water," to the water management districts. Florida Adini-stra-tve

Cadf Rule 17-101.040. Section 373.069, Florida Statutes, divides

the area within the state into five water management districts and

establishes the boundaries of each of them. Thus, Chapter 373,

F~orida Statutes, is implemented statewide by five water management

districts who collectively cover the entire territory of the state

but individually do not. It is a strained interpretation of

Chapter 373, Florida Statutes, to say that what could occur were

the DER to implement the consumptive use regulatory program, could

not occur when DER has delegated implementation to the water

management districts.

A statute should be given its plain and ordinary meaning in

light of the whole of the statute, Englewood Water District v.

Tote, 334 So.2d 626 (Fla. 2nd DCA 1976); and where a statute con-

fers authority, constraints on that authority should not be

invented. Englewood Water District at 628; Devin v. City of

Hollywood, 351 So.2d 1022 (Fla. 4th DCA 1976). Berein the

Petitioner asks this Court to read into the statute a constraint on

a specific authority that is not expressed, namely, the DER can

authorize transfers between counties so long as the transfers do

not cross the boundary of a water management district, and this

Court should not do that. Devin at 1025.

The proposition argued by the Petitioner, besides being

counter to express authority conferred, is an expression of

parochialism that is clearly counter to the statute. The regula-

tion of consumptive uses is preempted frcm local governments, and

Part II of Chapter 373, Florida Statutes, is the exclusive

authority. Section 373.217, Florida Etajtes. The Respondent su=-

gests that preemption is a realization that from time to tine one

political subdivision will have to go outside its bounds to cbtasn

the water it needs and indeed this has already occurred. See

Appendix A.
The Petitioner, in paragraph 6 of the petition, states that

the water management districts have been granted the authority to
allocate water within their respective bounds. This statement is

not how the Respondent views the delegation of authority.


4
APP64








Respondent suggests that what has been delegated to the water
management districts under Chapter 373, Florida Statutes, is the

authority to grant or deny consumptive use permits, and a consu.p-

tive use is more than mere diversion, withdrawal, or i=pound-ent of

water. Sections 373.219(2) and 373.223, Florida Statutes. When a

consumptive use, as here, spans a boundary between water management

districts, the responsibility for consumptive use permitting is
shared by the respective water management districts.

The Legislature has distinguished "consumptive use" from

'diversion, withdrawal, and impoundment," Section 373.219(2),
Florida Statutes, and when the Legislature distinguishes terms as

it has, it is done knowingly and for a purpose. Florida State
Racing Commission v. Bouruardez, 42 So.2d 87 (Fla. 1949). The

reason for distinguishing the terms may lie, it is suggested, in

the fact that not all diversions, withdrawals, or impoundments

could or will qualify for a consumptive use permit pursuant to

Section 373.223, Florida Statutes. The Legislature appears to have

recognized that, when an act is done without benefit of a permit

when a permit was required, it is likely that the perpetrator of

the illegal act will apply after the fact for a permit; and not all

after-the-fact applications will be granted because they do not

meet the criteria to be issued a consumptive use permit. Thus, the

Legislature has merely noted that only certain illegal acts may

actually be consumptive uses.

The reason not all diversions, withdrawals, or impoundments of

water would not qualify for a consumptive use permit is that the

permitting criteria in Section 373.223, Florida Statutes, do net

merely concern themselves with whether there is enough water at the

source to satisfy the demand. They also take into account inter-
ference with other users of the supply and the need to withdraw as

much water as requested. Sections 373.019(4) and 373.223, Fcrl -
Statutes. Indeed a myriad of concerns exist. See Appendix B for

an exhaustive list of them. Thus, the analysis whereby it is

determined whether a consumptive use permit is to be granted or

denied investigates the entire use front source through use and cn
to disposal of the water that was initially withdrawn.


APP65
APP65







Chapter 373, Florida Statutes, does not prescribe how to

proceed with applications such as that at hand. Fortunately, the

DER has exercised foresight and prescribed, by rule, how to

proceed. The DER is empowered to delegate its powers to the water

management districts, and prescribing how to proceed with applica-

tions for a consumptive use permit that propose a use that

straddles a boundary is a necessary extension of a specific power.

State ex rel. Burr v. Jackscknille Terminal Co., 71 Fla. 295, 71

So. 474 (Fla. 1916). The DER, in Florida Adninistrative Code Rule

17-40.05(1), required that "[t]he transport or use of water across

District boundaries shall require approval of each involved

District." The Respondent, in Florida Atrinistrative Code R.le

40C-2.312, enacted a complementary rule which reads:

"The transport of water across District boundaries,
where regulated under Part II of Chapter 373, Florida
Statutes, shall require the approval of each affected
District. The transport must be consistent with the
public interest. The applicant must obtain a con-
sumptive use permit from this District, if otherwise
required by District rules, if any part of either the
withdrawal, diversion, or the use lies within the
District. The District may make approval of the con-
sumptive use permit and volume of water transported
contingent upon approval of the related permit in the
adjoining District."

Contrary to what the Petitioner argues, the rules of the DER and

the Respondent do not confer extra-territorial jurisdiction on the

water management districts; they merely prescribe a procedure for

harmonious exercise of a delegated regulatory program that is not

limited by water management district boundaries but by the bou-.d-

aries of the State of Florida.

There is a valid reason for requiring approval of each

District that is entirely and utterly in accord with the legisla-

tive intent and the purposes for the statute. Section 373.C01:3),

Slrida S uteis, reflects the recognition of the Legislature that

the resources and the resource problems vary from region to re=ic.

within the state; and the water management districts, by the very

fact that each is regional, focus their attention on the resources

and resource problems within their respective boundaries. The

acute understanding that each District can obtain over the


APP66








resources and resource problems makes for more effective conserva-

tion, protection, management, and control of waters of the state

and, as is stated in Section 373.016, Florida Statutes, that is the

very purpose of Chapter 373, Florida Statutes.

The water management districts exercise a myriad of programs

for diverse purposes whereby they can acquire an acute understand-

ing of the resources and resource problems within their bounds.

They make surveys and investigations of the water supply and

resources of the districts, Section 373.083(3), Florida Statutes;

plan, construct, operate, and maintain works, Section 373.103(3),

Florida Statutes; prepare in cooperation with DER that part of the

state water use plan applicable to the District, Section

373.103(7), Florida Statutes; participate in cooperative efforts

between municipalities, counties, water management districts, and

DER in order to meet the water needs of rapidly urbanizing areas,

Section 373.196(1), Florida Statutes; as well as implement permit-

ting programs. The Respondent has done, is doing, and will

continue to do all of the foregoing.

The preceding listing of programs, while by no means exhaus-

tive of the programs the Respondent engages in, illustrates the

bases for the Respondent acquiring an acute understanding of the

resources and resource problems within its bounds. Likewise, it

illustrates the bases for South Florida Water Management District

acquiring an acute understanding of the resources and resource

problems within its bounds. Therefore, the respective rules of the

DER and the Respondent, to the extent they bring together the

respective expertise of the two districts, could not better i=rle-

ment the legislative intent and purpose of Chapter 373, Fl2ria

Statutes.

The boundaries of the water management districts do not ex-

actly follow surface watershed boundaries. See Appendix C. In

that area of Osceola and Brevard counties, which is of concern

herein, portions of the South Florida Water Management District are

actually in the physical watershed of the St. Johns River. See

Appendix C of the Respondent. Likewise the ground water basin

which the proposed wellfield would draw from extends into southern

7
APP67







Brevard County and all of Indian River County, and water fror that

ground water basin is used throughout those areas. See Appendix D.

In short, the surface and ground hydrology of the area of concern

necessitate involvement of both water management districts because

the potential impacts and the concerns of consumptive use per=it-

ting extend across the boundary between the water management

districts.

The District has justified its jurisdiction by reference to

various statutory provisions. However, the practical consequences

of the position Osceola County espouses conclusively demonstrate

that Chapter 373, Florida Statutes, must be interpreted to allow

inter-district transfers of water. There are numerous counties and

cities--Orange County and Orlando being most prominent exanples--

that straddle a boundary between Districts. See Appendix A. It is

totally impractical and unthinkable to expect Orange County and

Orlando to segregate their water systems into ones that do not

cross the boundary between Districts. The position embraced by

Osceola County would force them to, and that position is totally

impractical.

Osceola County may say that, in making the inter-district

transfer, Orlando and Orange County did not go outside their own

bounds. However, the City of Orlando does, and doing so is not

without other precedent. See Appendix A. For example, the City of

Cocoa and Billsborough and Pinellas counties do. Sections 127.01

and 166.401, Florida Statutes, authorize counties and cities to cc

outside their bounds.

In conclusion, Part II of Chapter 373, Florid tatute, has

been implemented throughout the state and pursuant to Section

373.223(2), Florida statutes, the transport and use of water across

county boundaries beyond watershed boundaries and beyond cverlying

land is specifically made possible. The Respondent has been

delegated the authority and responsibility for implementing Part II

of Chapter 373, florida Statutes, and pursuant to Foride

Ac-inistrative Code Rules 17-40.05(1) and 40C-2.312, the Respcndent

jointly administers Part II of Chapter 373, Florida 'Stat li when-

ever a request to transport and use water across county boundarries


8 APP68





also entails the transport and use of water across a boundary be-

tween water management districts.

Sharing the responsibility to implement the delegation of
authority is a natural outgrowth of the specific authority that the

Respondent has. The Respondent, as an agency and an entity solely

empowered by statute or constitution, has those powers expressly

granted it as well as those which by fair implication and intend-

ment are incident to and included in the authority expressly

conferred. State ex rel. Burr at 482. Indeed implied authority is

specifically granted to the Respondent because Section 373.103(6),
Florida Statutes, states:

"Exercise such additional power and authority com-
patible with this chapter and other statutes and
federal laws affecting the district as may be neces-
sary to perform such duties and acts and to decide
such matters and dispose of the same as are not
specifically defined in or covered by statute."
Moreover, to fulfill the manifest purpose of Chapter 373, the

statutory powers contained therein are to be liberally construed,

and procedures therein shall be followed and applied as shall best

meet the requirements of the statute. Sections 373.616 and

373.6161, Florida Statutes. Where a rule of construction is con-

tained in a statute, that rule should be applied. State ex rel.
Tria v. Burr, 79 Fla. 290, 84 So.61 (Fla. 1920). Thus, a proper

interpretation of Chapter 373, Florida Statutes, finds that the

Respondent has jurisdiction; and an interpretation of a statute

given to it by the implementing agencies should not be overturned

unless clearly erroneous. Greer v. Bood, 120 So.2d 223 (Fla. 2nd

DCA 1960). Chapter 373, Florida Statutes authorizes transfers

across county boundaries but does not prescribe a procedure when

such a transfer also and incidentally crosses water management dis-

trict boundaries. The rules of the DER and the Respondent

prescribe a procedure, and the authority to prescribe a procedure

is incidental, even necessary, to imcplerenting authority specifi-

cally conferred.








APP6
APP69







EXISTENCE A&Sr ATrLEUACY OF 0SER RPEM__"Y


The general rule is that prohibition, being an extraordinary

writ, cannot be resorted to when ordinary and usual remedies

provided by law are adequate, complete, and available. State ex
r&l. Swearingen v. Railroad Comgissioners of Florida, 84 So. 444

(Fla. 1920). The Petition for Writ of Prohibition contains the

academic and conclusory allegations, but however fails to make a

factual showing that Chapter 120, Florida Statutes remedies are

inadequate, State Commissioon n Ethics v. Sullivan, 430 Sc.2d 928

(Fla. 1st DCA 1983).

Contrary to Petitioner's assertion, the court in State y.
Falls Chase Special Taxing District, 424 So.2d 787 (Fla. 1st DCA

1982), pet. for rev. denied, 436 So.2d 98 (1983) did not establish

a mechanical rule of law that when one alleges lack of jurisdiction

then exhaustion of administrative remedies is not required. The

court utilized the following three part test to determine the ques-

tion of agency jurisdiction prior to exhaustion: (1) the extent of

injury from pursuit of administrative remedy; (2) degree of ap-

parent clarity or doubt about administrative jurisdiction; and (3)

involvement of specialized administrative understanding of the

question. In that case the court weighed these factors in-

dividually and collectively and determined that: (1) Falls Chase,

a permit applicant and property owner wherein the proposed project

is located, would be injured by the time and expense, as well as

the financial loss from inability to use its property, while the

process continues. In the instant case, Osceola County is =ni the

permit applicant. Osoeola County does nt own the property cn

which the well field is to be located. Moreover, Osceola Cor.nty

has neither perfected a prior right to the water nor can it own the

water. Village cf Tequesta v. Jupiter Tnlet Corp., 371 Sc.2d 663

(Fla. 1979). Expediency is no exception to the exhaustion

doctrine, consequently, this factor is resolved in favcr cf

Respondent District; (2) The Falls Chase court found DER's clair cf

jurisdiction patently meritless. Therefore, there was no dc-bt as
to administrative jurisdiction. However, if a jurisdiction clai-


10
APP7.0







has apparent merit, then exhaustion is necessary. IAlls Cha C at

pp. 796-797. In the instant case, the District has clearly set

forth above that the consideration of Brevard County's consumptive

use permit application is not clearly in excess of delegated

authority and that the District has colorable or "seemingly valid"

jurisdiction over the application. See, Palls Chase at 796 n. 23.

Therefore, exhaustion is required; and (3) The court found the

jurisdictional question to be solely one of law and not of primary

jurisdiction requiring specialized knowledge of DER. In the in-

stant case, the issue facially may appear to be only one of law;

however, the disputed jurisdictional question involves the regional

water resource knowledge of the co-permitting water management dis-

tricts in implementing the procedural aspects of the inter-district

transfer of water since consideration of the public interest is

intrinsically involved. Bence, this factor is also weighed in

Respondent's favor.

Accordingly, the decision of falls Chase does not automati-

cally require judicial intervention merely because a petitioner

presents a persuasive challenge to agency jurisdiction. Such chal-

lenge is rebuttable based upon the factual yardstick set forth by

the court. Assuming that Osceola County has standing to invoke

Chapter 120, Florida Statutes, remedies, analyzing these three fac-

tors in light of the instant case reveals that the balance requires

resolution of the issue through the use of adequate and abundant
remedies set forth in Chapter 120, Florida Statutes, with linear

review pursuant to Section 120.68, Florida Statutes, if necessary.

Osceola County has not sought any avenue of relief under the

Administrative Procedures Act (APA), despite knowing for sever-a

months that Brevard County has had an application filed with the

Respondent (See Appendix A), but merely presses such reredies to

be futile and meaningless. Besides the evidentiary proceedings

under Section 120.57, Florida Statutes, the declaratory statement

process of Section 120.565, Florida Statutes, provides an expedie.n

and adequate remedy for Petitioner regarding the issue as it re-

lates to the inter-district transport of water from Osceola Co-.-y

to Brevard County. Section 120.565, Florida Statutes, provides a


11

APP71








broad declaratory remedy, whatever the issue of statutory

application. See, Falls Chase (Smith dissenting) pp. 803-807. The

declaratory procedure is simplicity in itself, Osceola County must

merely ask for it. The statement is regarded as final agency ac-

tion, thus subject to appeal under Section 120.68, Florida

Statutes. Such procedure not only provides the County with an ade-

quate remedy, but more importantly, it preserves the admi.istrative

review process and allows the Respondent to interpret its enabling

legislation.


NO CLAIM. NO STANDING


It is aximatic that Petitioner Osceola County must properly
state a justiciable claim in its Petition and that Petitioner must

have standing to bring the claim. Florida R.App.P. 9.100 states

that a petition shall contain:

1. the basis for invoking the jurisdiction of the court; and,

2. the facts upon which the Petitioner relies.

The legal yardstick for a prohibition claim is derived fror the

principles governing the issuance of a writ of prohibition.

Foremost is that prohibition will lie only in emergency cases to

forestall an impending present injury where the petitioner has no

other appropriate and adequate legal remedy. Further, a writ will

issue only when dAhaLg is likely to follow the lower tribunal's

acting without legal authority or in excess of jurisdiction.
Curtis v. Albritton, 132 So. 677 (Fla. 1931); English v. Ml raz,

348 So.2d 293 (Fla. 1977); Lawrence v..Orance Co.ty, 404 So.2d 421

(Fla. 5th DCA 1981). Consequently, derivative frc. these prir.-

ciples and thus necessary to a proper claim for a writ of

prohibition are the elements of "impending present injury" and

"damr.age." These elements are allied to the broad language in Art.

I, Section 21, Florida Constitution (1968) that "the courts shall

be open to every person for redress of any injury..." provided such

person states a claim and has standing to bring the action.

There is no statutory precept for determining standing under
Section 81.011, Florida_ t t. Therefore, it must be derived


12
APP72








from the general principles of standing and from the preceding
principles governing the issuance of a writ of prohibition. Where

a party does not rely on any specific statute or rule authorizing

standing, then the question of standing depends upon whether the

party has alleged such a personal stake in the outcome of the con-

troversy as to ensure that the adjudicated dispute is capable of

judicial resolution. Therefore, in general terms, standing is no
more than having, or representing one who has, a sufficient and

legitimate stake in an otherwise justiciable controversy to obtain

judicial resolution of the controversy. Geiger v. Sun First
National Bank of Orlando, 427 So.2d 815 (Fla. 5th DCA 1983);

Argcnaut Insurance Co. v. Commercial Standard Ins-rance Co., 38C

So.2d 1066 (Fla. 2d DCA), rev. denied, 389 So.2d 1108 (Fla. 1980);
Rumar Corp. v. Nopal Lines. Ltd., 462 So.2d 1178 (Fla. 3rd DCA

1985).

The Florida courts have found the Federal "case" and

"controversy" standing principle under Article III, Section 2, D.

S. Constitution, equally applicable to Florida courts. Kgm;,

ura-L Gaeiaer, IZars. The minimum requisite for standing under

Article III is that a party show that it has suffered some "actual

or threatened injury" and that the injury is traceable to the chal-

lenged action and likely to be redressed in the event of a

favorable decision. Valley Forge Christian Ccllece v. PAericar.

United for Separation of Church and State. Inc., 454 D.S. 464, 102

S.Ct. 752, 74 L.Ed.2d 700 (1982); Data Processin Service v. Ca,

397 U.S.150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). Likewise, repre-

sentational standing, namely an entity representing its

constituents, is also subject to the injury-in-fact test; and

either the entity itself must have suffered injury or that those

whom it represents did so. Warth v. Seldin, 422 U.S. 490, 95 S.C:.

2197,-45 L.Ed.2d 343 (1975); Bunt v. Washincton State A--le

Advtrtisina Co=e., 432 U.S. 433, 97 S.Ct. 2434, 53 L.Ed.2d 383
(1977). The Florida courts have consistently relied on the federal
case and controversy standard in myriad kinds of legal actions.

See, GDC v. Kirk, 251 So.2d 84 (Fla. 2d DCA 1971); GeiSgI, &I_:
~lnar, A z -; Rickman v. Whitetur-t, 74 So. 205 (Fla. 1917). An


13 APP73







area most prevalent of application of the federal injury-in-fact

test is in administrative law under Chapter 120, Florida Stat-te ,

where it is applied to both individual standing, Florida Dept. of
Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA),

prt. denied, 359 So.2d 1215 (Fla. 1978), and to representational

standing, Florida Rce Builders Ass'n. v. Det. of Labor and

Employment Security, 412 So.2d 351 (Fla. 1982); See also D. E.

Steel Corp. v. Save Sand Key. Inc., 303 So.2d 9 (Fla. 1974)

(special injury test in nuisance suits). The cumulative legal

principle of these decisions is that, to have a sufficient stake in

a justiciable controversy, one must show that he has suffered some

actual or threatened injury with a nexus to the challenged action.

Thus, the general principles of standing are consistent with the

principle governing a writ of prohibition that a writ only issue tc

prevent an impending injury.

Applying these principles to the case at bar, Petitioner
Osceola County has not shown any impending present or threatened

damage to itself or its constituents as a result of the District's

proposed denial action on the consumptive use permit application.

Paramount is the fact that Osceola County is not a party to the

permitting proceeding between the District and Brevard County, but

only a stranger with no asserted right or interest in the pending

proceeding. Osceola County does not own the property on which the

wellfield is to be located and moreover, Petitioner Osceola Cou-.ty

has neither perfected a prior right to the water nor canit own the

water. Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d 663

(Fla. 1979). Likewise, Osceola County is preempted from any

regulation over the use of the water. Section 373.217, 1r.zad

Statutes. The Petitioner's sole basis for injury or damage is the

legal maxim that it has no adequate remedy at law, and to

pursue administrative relief would be time consuming and expensive.

See Petition for Writ, paragraphs 9 and 19. The Florida Supreme

Court specifically stated in McCrary, A=sS at 297 that absencee cf

an adequate remedy by an appeal or writ of error is not, in and of

itself, sufficient to authorize the writ." Therefore, Petitioner
has failed to satisfy the requisites for the issuance of a writ.

14
APP74








The McCrar case is instructive because the Court overturned
State ex rel. Gore Newnspaers Co. v. Tyson, 313 So.2d 777 (Fla. 4th

DCA 1975) which had held that a newspaper company had standing to
contest a trial court's order in a civil proceeding even though the

newspaper was not a party to the action. The Supreme Court in

McCrary approved the First District Court of Appeal's decision, 328

So.2d 257 (Fla. 1st DCA 1976) and implicitly the dissent in Tysc,

which found not only that the trial court had jurisdiction to

preclude the press, but also that the press was not a party in the

proceeding, therefore, no standing. See, y2son, uMpra (Walden

dissenting). The case at bar is unlike most instances where a writ

of prohibition is sought. Normally, the seeker is a party in the

proceeding wherein the lower tribunal or court is exceeding its

jurisdiction, thus the party is inherently injured or prejudiced by

the possible ultra vires act. Here, Osoeola County is only an in-

terested bystander, not a party to the permitting proceeding

between Brevard County, the applicant, and the District, the

regulatory agency. The fact that the water is to be withdrawn fror.

Osceola County is not, in and of itself, a sufficient interest tc

grant standing. The District will receive many other consumptive

use permit applications fram users who wish to withdraw water fro.

Osceola County, but this does not systematically invest Osceola

County with standing without the showing of an injury. As an anal-

ogy to the subject case of seeking appellate relief, would Osceola

County have standing to seek appellate review of the District's

final action on the permit application? Indeed not, the County is

not a party nor has it shown a legitimate injury frar any action tc

be taken by the District. King v. Brovw, 55 So.2d 187 (Fla. 1952);

Orange Couty. Florida v. Gae and Fresh Water Fish ComTis,_ :, 397

So.2d 411 (Fla. 5th DCA 1981).

In the few prohibition cases specifically addressing stand-

ing,the petitioners, who were found to have standing, had a
legitimate interest or stake in the controversy. In State ez_.-.e
Gerstein v. Shaker, 243 So.2d 464 (Fla. 3rd DCA 1971), a state at-

torney had standing to challenge a court's empaneling a grand jury
because the state attorney was named in and affected by the order.


15
APP75








In State ex rel. Davis v. Love, 126 So. 374 (Fla. 1930), the

Attorney General of Florida had standing to seek, in the name of

the state, a writ of prohibition to prevent a circuit court frcr.

exceeding its jurisdiction to the detriment of the state's

sovereign immunity from suit which the Attorney General had a duty,

as the principal law officer of the State, to prevent harm to the

State's interest. In State ex rel. Roundtree v. Johnscn, 247 So.2d

54 (Fla. 1971), a citizen and attorney who resided and practiced

law within the judicial circuit had standing, as an officer of the

court, to prevent the unlawful exercise of judicial authority by

the unauthorized appointment of an additional circuit judge. These

decisions hold that the petitioner himself must have a legitimate

interest or injury from the outcome of the controversy. There is

no public right basis for standing to seek a writ of prohibition.

A writ of prohibition is clearly distinct from a mandamus action

wherein a purely public right or duty without injury may be

sought,since a citizen has sufficient interest in having the laws

executed and enforced. See, 35 Fla. Jur. 2d, HanAA=sad

Prohibition, Sections 1, 2; State ex rel. Ayres v. Gray, 69 So.2d

187 (Fla. 1953). A writ of prohibition is akin to injunctive

remedy to prevent or restrain judicial proceedings harmful to

petitioner, 35 Fla. Jur. 2d, Mandamus and Prohibition, Section 137;

a writ for mandamus, of course, is to enforce a clear legal righ:,

not to establish it. Consequently, prohibition should not be

issued if there is no injury to redress; the courts are not con-

stituted as ombudsmen of the general welfare.

Accordingly, Petitioner Osoeola County has failed to preser.t a

prima face case for issuance of a writ of prohibition and lacks

requisite standing to seek redress from this Court.


Respectfully submitted,



VANCE W. KIDDER
Attorney for Respondent
St. Johns River Warer
Management District
Post Office Box 1429
Palatka, Florida 32078-1429
(904) 328-S321


APP76











I HEREBY CERTIFY that a true and correct copy of the foregoing

RESPONSE TO ORDER TO SBOW CAUSE has been forwarded by United States

Mail to WILLIAM L. EARL, ESQUIRE, Attorney for Petitioner, Peeples,

Earl & Blank, P.A., One Biscayne Tower, Suite 3636, 2 South

Biscayne Boulevard, Miami, Florida 33131 this 7-T day of

May, 1985.





VANCE W. KIDDER

















































17 AP
APP77


r"RTTT CrA'TE OF 9ERVITCE









IN THE DISTRICT COURT OF APPEAL
FIFTH DISTRICT OF FLORIDA

OSCELOA COUNTY, a political
subdivision of the State of
Florida, )

Petitioner,

v. ) DOCKET NO. 85-678

ST. JOHNS RIVER WATER )
MANAGEMENT DISTRICT,

Respondent.



DER'S RESPONSE TO ORDER TO SHOW CAUSE


The Florida Department of Environmental Regulation (DER)

filed a Motion to Intervene in the above captioned matter on

Tuesday, May 28, requesting alternatively that DER be granted

status as amicus curiae in this matter. To date, DER is not aware

whether its motion has been granted, and therefore files this

Response to Order to Show Cause as a Party Respondent, and requests

that this Response be treated as an amicus brief in the

alternative, should the request for intervention be denied.

The DER's interest in this case pertains to the issue of

whether interdistrict transfers of water resources are permissible

under Chapter 373, Florida Statutes. This is the only issue to be

addressed by the Department in this pleading.

The Petitioner has alleged in its request for Writ of

Prohibition that interdistrict transfers of water are not

authorized pursuant to Chapter 373, and that the water management

district lacks authority to allow such transfer. This

interpretation of Chapter 373 is contrary to the legislative intent

and the complete scheme for water management set forth by the

legislature in Chapter 373.

Section 373.016, Florida Statutes, emphatically states that it

is the policy of the legislature to vest in the DER power and

responsibility to conserve, protect, manage and control waters of

the state "with sufficient flexibility and discretion to accomplish

these ends through delegation of appropriate powers to the various


1


APP78








water management districts.". The term "waters in the state" or

"waters" is defined in Section 373.019(8) to mean any and all water

"on or beneath the surface of the ground". DER's jurisdiction is

not therefore limited by any boundaries of water management

districts. DER is further authorized in Section 373.026(7) to

exercise general supervisory authority over water management

districts and to exercise any power a water management district

could exercise. To this end, Section 373.043 provides that DER may

adopt regulations to implement Chapter 373.

Pursuant to Part II of Chapter 373, permits are required for

consumptive uses or withdrawals of water. Section 373.219 provides

that either the governing board of the water management district or

DER may require such permits for consumptive use. Consumptive use

permitting has been delegated to water management districts by DER.

Section 373.223 specifically authorizes the transport and use of

both ground and surface water "beyond overlying land, across county

boundaries, or outside the watershed from which it is taken if the

governing board or Department determines that such transport and

use is consistent with the public interest.". This language

plainly authorizes the Department to allow interdistrict transfers

of water resources. No district boundary limitations are imposed

by the legislature in this section; in fact, some counties and

water bodies in the state are bisected by district boundaries, and

these political boundaries do not segregate the water resources

flowing above or beneath the surface. The Petitioner's argument

that interdistrict transfers are unauthorized not only ignores

reality, but is contrary to the intent of the legislature that DER

manage all the waters in the state. Furthermore, there is no

limitation in Chapter 373 on the authority which DER may confer on

the water management districts by delegation.

The Petitioner takes the approach that, since no specific

language in Chapter 373 speaks to the authorization of

interdistrict transfers, such transfers are not allowed. This is

clearly contrary to the stated legislative intent which appears

throughout Chapter 373 granting the Department broad powers with


2


APP79







regard to water use and management. Section 373.103(6) states that

DER may authorize the governing board of the water management

districts as follows:

"Exercise additional power and authority
compatible with this chapter as may be
necessary to perform such duties and acts and
to decide such matters and dispose of the same
as are not specifically defined in or covered
by statute."

Contrary to the Petitioner's position, the omission of specific

mention of interdistrict transfers clearly does not indicate a lack

of authority. The above quoted language expresses the intent of

the legislature that the Department and water management districts

exercise broad powers with regard to water resources in the state

as are determined to be in the public interest, regardless of lack

of specific mention in Chapter 373. This is supported by Sections

373.616 and 373.6161 which require liberal construction of Chapter

373.

Pursuant to the authority granted in Chapter 373, DER has

promulgated Chapter 17-40, Florida Administrative Code, entitled

Water Policy. Section 17-40.01(4) states that the purpose of

Chapter 17-40 is to clarify water policy as expressed in Chapter

373, Florida Statutes. Subsection (6) of that section provides

that Chapter 17-40 shall be a part of the State Water Use Plan and

the Florida Water Plan. The State Water Use Plan is provided for

in Section 373.036, Florida Statutes, which requires DER to

formulate the State Water Use Plan for the preservation, control,

enhancement, and reasonable-beneficial use of the state's water

resources.

Rule 17-40.05 entitled Water Transport specifies the

procedures for interdistrict transfers of water pursuant to the

consumptive use permitting of Part II of Chapter 373. The rule

provides that the transport or use of water across district

boundaries shall require approval of each involved district, and

sets forth the standards to be used in evaluating the wisdom of

such transfer. The rule cites Sections 373.026, 373.043, and

403.805, Florida Statutes, as specific authority for the



3


APP80







promulgation of the rule, and cites Section 373.036 and Part II,

Chapter 373 as the laws implemented. The rule has been in effect

since 1981.

It is abundantly clear from Chapter 373 that the legislature

has intended for broad powers and authority to be conferred upon

DER and the water management districts by delegation to provide for

the management, conservation, and use of the state's precious water

resources. The language used in Chapter 373 is purposely broad,

granting the Department and the districts the authority to act

wisely in the public interest with regard to the state's waters.

Nowhere in the entire scheme of Chapter 373 is there any

prohibition of interdistrict transfers of water resources; to the

contrary, the legislature has encouraged DER and the districts to

use and allocate such resources as best benefits the public

interest, without restriction with regard to district boundaries.

The legislature has further chosen to expand the authority of the

Department and the districts in Section 373.103 by allowing the

exercise of the district powers compatible with Chapter 373 which

are not specifically defined or mentioned in the statutes. The

Petitioner's argument as to the power of the Department and the

districts to authorize such interdistrict transfers pursuant to

Chapter 373 must fail as contrary to the expressly stated intent of

the legislature.

Respectfully submitted,




DEBORAH A. GETZ
Assistant General C unsel

STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL REGULATION

Twin Towers Office Building
2600 Blair Stone Road
Tallahassee, Florida 32301
904/488-9730









4


APP81







CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original has been furnished by

U.S. Mail to Frank J. Habershaw, Clerk, State of Florida Fifth

District Court of Appeal, 300 South Beach Street, Daytona Beach,

Florida 32014; and a copy to William L. Earl, Peeples, Earl &

Blank, P.A., One Biscayne Tower, Suite 3636, 2 South Biscayne

Boulevard, Miami, Florida 33131; Vance W. Kiddler, Director,

Office of Legal Services, St. Johns River Water Management

District, Post Office Box 1429, Palatka, Florida 32078-1429; and

Thomas J. Schwartz, Esquire, South Florida Water Management

District, Post Office Box V 3301 Gun Club Road, West Palm Beach,

Florida 33402 on this / day of May, 1985, in Tallahassee,

Florida.


STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL REGULATION




iredRAH A. G
Assistant Ger;al counsel

Twin Towers Office Building
2600 Blair Stone Road
Tallahassee, Florida 32301
904/488-9730


APP82






DER 17-40


17-40.01
17-40.02
17-40.03
17-40.04
17-40.05
17-40.06
17-40.07
17-40.08
17-40.09
17-40.10


WATER POLICY


3/86


TABLE OF CONTENTS








Declaration and Intent.
Definitions.
General Water Policy.
Water Use.
Water Transport.
Water Quality.
Surface Water Management.
Minimum Flows and Levels.
District Water Management Plans.
Review and Application.




































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APP83




WATER POLICY
DER 17-40.01 3/86









17-40.01 Declaration and Intent.

(1) The waters of the state are among its basic resources. Such
waters should be managed to conserve and protect natural resources and
scenic beauty and to realize the full beneficial use of the resource.
Recognizing the importance of water to the state, the Legislature
passed the Water Resources Act, Chapter 373, Florida Statutes.

(2) Chapter 373, Florida Statutes, provides that the State Water Use
Plan and the Florida Water Plan will be developed progressively as
studies are completed and as Department or District rules and programs
are developed.

(3) As a part of the State Water Use Plan, the Department may pro-
vide such information, directions, or objectives for the guidance of the
Districts as it deems necessary.

(4) To this end, this Chapter is intended to clarify water policy as
expressed in Chapter 373, Florida Statutes, and to otherwise provide
guidance to the Department and Districts in the development of pro-
grams, rules, and plans.

(5) This Chapter does not repeal, amend or otherwise alter any rule
now existing or later adopted by the Department or District. However,
procedures are included in this Chapter which provide for the review
and modification of Department and District rules to assure consistency
with the provisions of this Chapter.

(6) This Chapter shall be a part of the State Water Use Plan and the
Florida Water Plan.

(7) It is the intent of the Department, in cooperation with the Water
Management Districts, to seek adequate sources of funding to supplement
District ad valorem taxes to implement the provisions of this Chapter.

Specific Authority: 373.026(7), 373.043, 403.805, F.S.
Law Implemented: 373.036, F.S.
History: New 5-5-81.


17-40.02 Definitions. When appearing in this Chapter, the following words
shall mean:




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2


APP84





WATER POLICY
DER 17-40.02(1) 3/86



(1) "Department" means the Department of Environmental Regulation.

(2) "District" means a Water Management District created pursuant to
Chapter 373, Florida Statutes.

Specific Authority: 373.026(7), 373.043, 403.805, F.S.
Law Implemented: 373.036, F.S.
History: New 5-5-81.


17-40.03 General Water Policy. The following statement of general water
policy shall provide a basis for Department review of water management
programs, rules, and plans. Water management programs, rules and plans,
where economically and environmentally feasible, not contrary to the public
interest, and consistent with Florida law, shall seek to:

(1) Assure availability of an adequate and affordable supply of water
for all reasonable-beneficial uses. Uses of water authorized by a
permit shall [be] limited to reasonable-beneficial uses.

(2) Reserve from use that water necessary to support essential
non-withdrawal demands, including navigation, recreation, and the
protection of fish and wildlife.

(3) Promote water conservation as an integral part of water manage-
ment programs, rules, and plans and the use and reuse of water of the
lowest acceptable quality for the purpose intended.

(4) Utilize, preserve, restore, and enhance natural water management
systems and discourage the channelization or other alteration of natural
rivers, streams and lakes.

(5) Protect the water storage and water quality enhancement functions
of wetlands, floodplains, and aquifer recharge areas through acquisition,
enforcement of laws, and the application of land and water management
practices which provide for compatible uses.

(6) Mitigate adverse impacts resulting from prior alteration of natural
hydrologic patterns and fluctuations in surface and ground water levels.

(7) Establish minimum flows and levels to protect water resources and
the environmental values associated with marine, estuarine, freshwater,
and wetlands ecology.

(8) Encourage nonstructural solutions to water resource problems and
give adequate consideration to non-structural alternatives whenever
structural works are proposed.

(9) Encourage the management of floodplains and other flood hazard
areas to prevent or reduce flood damage, consistent with establishment
and maintenance of desirable hydrologic characteristics of such areas.

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APP85




WATER POLICY
DER 17-40.03(10) 3/86


(10) Manage the construction and operation of facilities which dam,
divert, or otherwise alter the flow of surface waters to prevent in-
creased flooding, soil erosion or excessive drainage.

(11) Encourage the development of local and regional water supplies
within districts rather than transport water across District boundaries.

(12) Control point and non-point sources of water pollution to the
greatest degree feasible as provided in Chapters 17-3, and 17-6, F.A.C.

(13) Develop interstate agreements and undertake cooperative programs
with Alabama and Georgia to provide for coordinated management of
surface and ground waters.

Specific Authority: 373.026, 373.043, 403.805, F.S.
Law Implemented: Chapter 373, F.S.
History: New 5-5-81.


17-40.04 Water Use. The following shall apply to those areas where the
use of water is regulated pursuant to Part II of Chapter 373, Florida
Statutes:

(1) No permit shall be granted to authorize the use of water unless the
applicant establishes that the proposed use is a reasonable-beneficial
use, will not interfere with presently existing legal uses of water and is
consistent with the public interest.

(2) In determining whether a water use is a reasonable-beneficial use,
consideration should be given to any evidence presented concerning the
following factors:

(a) The quantity of water requested for the use;

(b) The demonstrated need for the use;

(c) The suitability of the use to the source of water;

(d) The purpose and value of the use;

(e) The extent and amount of harm caused;

(f) The practicality of mitigating any harm by adjusting the
quantity or method of use;

(g) Whether the impact of the withdrawal extends to land not
owned or legally controlled by the user;






Copyright 1986 REGfiles, inc., Tallahassee, Florida
4
APP86




WATER POLICY
DER 17-40.04(2)(h) 3/86



(h) The method and efficiency of use;

(i) Water conservation measures taken or available to be taken;

(j) The practicality of reuse, or the use of waters of more suitable
quality;

(k) The present and projected demand for the source of water;

(1) The long term yield available from the source of water;

(m) The extent of water quality degradation caused;

(n) Whether the proposed use would cause or contribute to flood
damage; and

(o) Whether the proposed use would significantly induce salt water
intrusion.

(p) The amount of water which can be withdrawn without causing
harm to the resource.

(q) Other relevant factors.

(3) Water shall be reserved from permit use in such locations and
quantities, and for such seasons of the year, as in the judgment of the
Department or District may be required for the protection of fish and
wildlife or the public health or safety.

(4) Conservation of water shall be a requirement unless not
economically or environmentally feasible.

(5) In implementing consumptive use permitting programs, the
department and the districts shall recognize the rights of property
owners, as limited by law, to make consumptive uses of water from
their land, and the rights of other users, as limited by law, to make
consumptive uses of water, for reasonable beneficial uses in a manner
consistent with the public interest that will not interfere with any
presently existing legal use of water.

(6) Permits authorizing consumptive uses of water which cause
unanticipated significant adverse impacts on off-site land uses existing
at the time of permit application, or on legal uses of water existing at
the time of permit application, should be considered for modification, to
curtail or abate the adverse impacts, unless the impacts can be
mitigated by the permitted.

Specific Authority: 373.026, 373.043, 403.805, F.S.
Law Implemented: 373.036, Part II, 373, F.S.
History: New 5-5-81, Amended 2-4-82.


Copyright 1986 REGfiles, inc., Tallahassee, Florida
5
APP87




WATER POLICY
DER 17-40.05 3/86




17-40.05 Water Transport. The following shall apply to the transfers of
water where such transfers are regulated pursuant to Part II of Chapter
373, Florida Statutes:

(1) The transport or use of water across District boundaries shall
require approval of each involved District.

(2) In deciding whether the transport and use of water across District
boundaries is consistent with the public interest pursuant to Section
373.223, Florida Statutes, the Districts should consider the extent to
which:

(a) Comprehensive water conservation and reuse programs are
implemented and enforced in the area of need.

(b) The major costs, benefits, and environmental impacts have been
adequately determined including the impact on both the supplying and
receiving areas;

(c) The transport is an environmentally and economically acceptable
method to supply water for the given purpose;

(d) The present and projected water needs of the supplying area are
reasonably determined and can be satisfied even if the transport
takes place;

(e) The transport plan incorporates a regional approach to water
supply and distribution including, where appropriate, plans for
eventual interconnection of water supply sources; and

(f) The transport is otherwise consistent with the public interest
based upon evidence presented.

Specific Authority: 373.026, 373.043, 403.805, F.S.
Law Implemented: 373.036, Part II, 373, F.S.
History: New 5-5-81.


17-40.06 Water Quality.

(1) Water quality standards shall be enforced pursuant to Chapter 403,
Florida Statutes, to protect waters of the State from point and
non-point sources of pollution.

(2) State water quality standards adopted by Department rule shall be
a part of the Florida Water Plan.

Specific Authority: 403.061, 373.026, 373.043, 403.805, F.S.
Law Implemented: 373.036, 373.039, 403.021, F.S.
History: New 5-5-81.

Copyright 1986 REGfiles, inc., Tallahassee, Florida
6
APP 88




WATER POLICY
DER 17-40.07 3/86


17-40.07 Surface Water Management. The following shall apply to the
regulation of surface waters pursuant to Part IV, Chapter 373, Florida
Statutes.

(1) The construction and operation of facilities which manage or store
surface waters, or other facilities which drain, divert, impound,
discharge into, or otherwise impact waters in the State, and the
improvements served by such facilities, shall not be harmful to water
resources or inconsistent with the objectives of the Department or
District.

(2) In determining the harm to water resources and consistency with
the objectives of the Department or District, consideration should be
given to:

(a) The impact of the facilities on:

1. recreation,

2. navigation,

3. water quality,

4. fish and wildlife,

5. wetlands, floodplains, and other environmentally sensitive
lands,

6. saltwater or pollution intrusion, including any barrier line
established pursuant to Section 373.033, Florida Statutes,

7. reasonable-beneficial uses of water,

8. minimum flows and levels established pursuant to Section
373.042, Florida Statutes, and

9. other factors relating to the public health, safety, and
welfare;

(b) Whether the facilities meet applicable design or performance
standards.

(c) Whether adequate provisions exist for the continued satisfactory
operation and maintenance of the facilities;









Copyright 1986 REGfiles, inc., Tallahassee, Florida
7
APP89




WATER POLICY
DER 17-40.07(2)(d) 3/86


(d) The ability of the facilities and related improvements to avoid
increased damage to offsite property or the public caused by:

1. floodplain development, encroachment or other alteration,

2. retardance, acceleration or diversion of flowing water,

3. reduction of natural water storage areas,

4. facility failure, or

5. other actions adversely impacting offsite water flows or
levels.

Specific Authority: 373.026, 373.043, 403.805, F.S.
Law Implemented: 373.036, Part IV, 373, F.S.
History: New 5-5-81.


17-40.08 Minimum Flows and Levels.

(1) In establishing minimum flows and levels pursuant to Section
373.042, consideration shall be given to the protection of water
resources, natural seasonal fluctuations in water flows or levels, and
environmental values associated with coastal, estuarine, aquatic, and
wetlands ecology, including:

(a) Recreation in and on the water;

(b) Fish and wildlife habitats and the passage of fish;

(c) Estuarine resources;

(d) Transfer of detrital material;

(e) Maintenance of freshwater storage and supply;

(f) Aesthetic and scenic attributes;

(g) Filtration and absorption of nutrients and other pollutants;

(h) Sediment loads;

(i) Water quality; and

(j) Navigation.

(2) Established minimum flows and levels shall be a consideration where
relevant to:

(a) The construction and operation of water resource projects.


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8
APP90




WATER POLICY
DER 17-40.08(2)(b) 3/86


(b) The issuance of permits pursuant to Part II, Part IV, and
Section 373.086, Florida Statutes.

(c) The declaration of a water shortage pursuant to Section 373.175
or Section 373.246, Florida Statutes.

Specific Authority: 373.026, 373.043, 403.805, F.S.
Law Implemented: 373.036, 373.042, 373.086, 373.175, 373.246, F.S.
History: New 5-5-81.

17-40.09 District Water Management Plans.

(1) A water management plan shall be prepared by each District which
is consistent with the provisions of this Chapter and Section 373.036,
Florida Statutes. The plan shall identify specific geographical areas
where water resource problems have reached critical levels.

(2) A course of remedial action shall be specified for each critical
problem.

(3) Measures may include, but are not limited to, water resource
projects; water resources restoration projects pursuant to Section
403.0615, Florida Statutes; purchase of lands; enforcement of
Department or District rules; and actions taken by local government
pursuant to a Local Government Comprehensive Plan, local ordinance, or
zoning regulation.

(4) District Plans shall also provide for identifying areas where
collection of data, water resource investigations, water resource
projects, or the implementation of regulatory programs are necessary to
prevent water resource problems from reaching critical levels.

Specific Authority: 373.026, 373.043, 403.805, F.S.
Law Implemented: 373.036, 373.033, 373.042, 373.106, 373.114, F.S.
History: New 5-5-81.


17-40.10 Review and Application.

(1) This Chapter shall be reviewed periodically, but in no case less
frequently than once every four years. Revisions, if any, shall be
adopted by rule.

(2) Within 12 months after adoption or revision of this Chapter, the
Department, in coordination with the Districts, shall review existing
rules for consistency with the provisions contained herein.

(3) District rules adopted after this Chapter takes effect shall be
reviewed by the Department for consistency with this Chapter.



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APP91




WATER POLICY
DER 17-40.10(4) 3/86



(4) At the request of the Department, each District shall initiate
rulemaking pursuant to Chapter 120, Florida Statutes, to consider
changes the Department determines to be necessary to assure
consistency with this Chapter. The Department shall be made a party
to the proceeding.

(5) District water policies may be adopted which are consistent with
this Chapter, but which take into account differing regional water
resource characteristics and needs.

(6) A District shall initiate rulemaking to consider implementation of
programs pursuant to Sections 373.033, 373.042, 373.106, Part III, or
Part IV of Chapter 373, Florida Statutes, where the Department or
District determines that present or projected conditions of water
shortages, saltwater intrusion, flooding, drainage, or other water
resource problems, prevent or threaten to prevent the achievement of
reasonable-beneficial uses, the protection of fish and wildlife, or the
attainment of other water policy directives.

(7) The Department and Districts shall assist other governmental
entities in the development of plans, ordinances, or other programs to
promote consistency with this Chapter and District water management
plans.

(8) Duplication of water quality and quantity permitting functions
should be eliminated where appropriate through delegation of Department
responsibilities to Districts.

(9) The Department and Districts should assist educational institutions
in the development of educational curricula and research programs which
meet Florida's present and future water management needs.

Specific Authority: 373.026, 373.043, 403.805, F.S.
Law Implemented: 373.036, 373.033, 373.042, 373.106, 373.114, F.S.
History: New 5-5-81.

















Copyright 1986 REGfiles, inc., Tallahassee, Florida
10 APP92








CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this c3r0 day of September, 1986, a

true copy of the foregoing has been provided by United States

mail to the following:


Vance W. Kidder, Esq.
St. Johns River Water
Management District
Post Office Box 1429
Palatka, Florida 32078-1429

Neal D. Bowen, Esq.
Osceola County Attorney
17 South Vernon Avenue
Kissimmee, Florida 32741


By m L
William L. Earl


PEEPLES, EARL & BLANK
ATTORNEYS AT LAW




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