Title: Opinion File 78-85 thru 78-88
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00003542/00001
 Material Information
Title: Opinion File 78-85 thru 78-88
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Buddy Blain's Collections - Opinion File 78-85 thru 78-88
General Note: Box 14, Folder 5 ( Opinions 1976 - 1977 - 1976 - 1977 ), Item 94
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00003542
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text





October 9, 1978

rerzino 0 ze Jl

Dr. J. T. Griffiths
Director, Special Projects
Florida Citrus Mutual
P. 0. Box 89
Lakeland, Florida 33802

Re: Southwest Florida Water Management District/Your,
letter of October 3, 1978

Dear Jim:

I am attaching copies of 373.026 and 373.114, Florida
Statutes, and have underlined pertinent portions in response
to your letter.

Prior to July 1, 1975, DNR had general supervisory authority
over all water management districts. It was authorized to
exercise any power that a water management district could
exercise and had the authority to review, and could rescind or
modify, any policy, rule, regulation or order of a water manage-
ment district, except those policies, rules, or regulations
which involve only the internal management of the district, to in-
sure compliance with the provisions and purposes of Chapter 373.

DNR was, and still is, headed by the Governor and Cabinet, as
head of the department. 20.25,F.S. When DER was created,
pursuant to Chapter 75-22, Laws of Florida, the Legislature
prescribed that this new department be headed by a Secretary,
to be appointed by the Governor, subject to confirmation by the
Senate, and serving at the pleasure of the Governor.

The Legislature further provided that all powers, duties and
functions of the Department of Natural Resources, relating to
water management should be transferred to DER but:

1. The Legislature provided that nothing in the transfer
should affect the existence of, or membership on, any
water management district board; and

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S78 86

Dr. J. T. Griffiths
October 9, 1978
Page Two

2. It provided further that notwithstanding the
provisions of 373.026(7),F.S., the Governor and
Cabinet, sitting as the Land and Water Adjudicatory
Commission, shall have the exclusive power by a vote
of four of the members, to review, and may rescind
or modify any rule or order of a water management
district, except those rules which involve only the
internal management of a water management district.
The above quoted language is set forth in Section 11, of
Chapter 75-22, Laws of Florida, and subsequently has been set
forth in Section 373.114, Florida Statutes. This clearly
supercedes the provisions of 373.026(7),F.S., insofar as it
relates to review and modification of water management district
rules and orders.' There is nothing "fuzzy" about this line of
authority, although you are correct in saying that "it does
trouble the staff at DER."

The Statutes are clear. The Secretary, as head of DER, in addition
to his other powers and duties, is authorized to exercise general
supervisory authority over all water management districts.
373.026(7),F.S. If he does not approve of any rule or order of
the water management district, he may request review by the Governor
and Cabinet at any time.

We have functioned under this law for over three years and I am
not aware of a single instance in which the Secretary has attempted
to initiate such review. There have been instances on numerous
occasions when members of his staff have attempted to prescribe
policy or dictate action. I also know of at least one instance in
which the Secretary has indicated his general disapproval of
proposed rules by a water management district. However, I am not
aware of any instance of disagreement which the Secretary felt
warranted taking the matter to the Governor and Cabinet as authorized
by 373.114. This is a pretty good track record, especially in
view of the various differences and interests throughout the state.

The more "fuzzy" line of authority is the interrelationship between
the Environmental Regulation Commission (ERC) and the Secretary
of DER.

Section 403.804,F.S., provides that ERC shall exercise the exclusive
standard-setting authority of DER, whatever this is. However, ERC
= has no independent staff.


S78 87

Dr. J. T. Griffiths
October 9, 1978
Page Three

ERC also acts as an adjudicatory body for final actions taken
by DER. ERC is further authorized to direct DER to have studies
of economic and environmental impact which set forth benefits
and costs of any proposed standards that would be stricter or
more stringent than Federal law or regulation.

I do not pretend to be an expert on Chapter 403. In my opinion,
Jay Landers has done an outstanding job under very difficult
odds as Secretary. I hear that he does not intend to continue to
serve much longer and I am very apprehensive about the selection
of his successor. I have not always agreed with Jay but he has
done a good job under very difficult circumstances.

I hope you will keep me informed as you charge forward. If you
need any additional information, please let me know.

S S i rely,

/. M. BLA N

cc: Mr. Derrill McAteer
Mr, E. D. Vergara

bcc: Mr. John R. Maloy
Mr. William J. McCartney
Mr. Donald 0. Mo gan

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O fl'-l FRoM FgZoua44 Sr -tV s 78 s

v 373.026 General powers and duties of the de- lh) The department. subject to confirmation by
partment.-The 'Department of Environmental th i gul;tio1. or its successor agency. shall be respn- negotiation and consummation of any agreement or
ile fior tih administration of' this chapter at the compact with another state or other states concern-
state level. I However, the department may enter into ing waters of the state.
interagency agr-eements with any other state agency (9;al To hold annually a conference on water re-
conducting programs related to or materially aflbct- sources developmental programs. Each agency, com-
ing the water resources of the state. All such intera- mission, district, municipality, or political subdivi-
gency agreements shall be subject to the provisions sion of the state responsible for a specific water re-
of s. 373.046. In addition to its other powers and sources development program requiring federal as-
duties, the deirtment is authorized: distance shall present at such conference its pro-
S1 To conduct, independently or in cooperation grams and projects and the needs thereof. Notice of
with other agencies, topographic surveys, research, the time and place ofthe annual conference on water
and investigations into all aspects of water use and resources developmental programs shall be extend-
water quality. ed by mail at least 30 days prior to the date of such
12) To collect, compile, and analyze. fbr its use conference to any person who has filed a written
and guidance in administering the water resource request fbr notification with the department. Ade-
laws fl'this state, scientific and factual data from the quate opportunity shall be aflbrded for participation
United States Geological Survey or any state agency. at the conference by interested members of the gen-
State agencies are(directed to cooperate with the eral public.
department or its agentsin making available to it for (b) Upon termination of the water conference.
this purpose such scientific and factual data as they the depart ment shall select those proijcts for press"
may have. station in the Florida program of public works which
43i To cooperate with other state agencies, water best represent the public welfare and interest ofthe
management districts. and regional, county, or other people of the state as required for the proper deel-
local governmental organizations or agencies creat- opment, use, conservation, and protection of the we
ed for the purpose of utilizing and conserving the ters ofthe state and land resources affected thereby.
waters in this state; to assist such organizations and Thereafter, the department shall present to the aP
agencies in coordinating the use of their facilities; propriate committees and agencies of the Federal
and participate in ;ari exchange of ideas, knowledge, Goverrnent a program of public works for Florida,
and data with such organizations and agencies. For requesting authorization for funds for each project.
this purpose the department maly maintain an advi- ii.iory i.. i .part .ch 72.2. (4.th 74 t1
story staff of experts. '1,. trl.,,, tl..llwo ..>tmtu f .,,I ri, t,.,r, 'SnhviSnfhWn
| H** e(,r, ,4 th, th*r nn of Na,,ral Rt**,,,r .. '" .ew Not. I orl r El
(4) To prepare aiiid provide flr dissrenination to .., I.
the public o'current and useful inf.llration relating *Not S..,,* I11,1 75 22. :37.1114, w. hoI ve.to ,,rlusive aiul Irty
Srqlh .*, ri| irultion .inlf ,rlr f # 4 t*-r nlanam 11ndi*tt di
to the ilter resour(ces (if the st;tre mgm A, s.. ;,.,,, .. I (.i,,I,,l .. ,it ,,, 1.. I(,, .i a w..W.r AdiCj BIc 1 4.
p 15) 'To identify by continuing st udy those areas of *.****.**.
S the state wlie.e .s;ilater ilitlrusion is a threat to
freshwater resources and report its findings to the
water management dis.t rict., l,:,rds o' county coin-
missioners, and public concerned
(GI 'Tl cor ldutct. eitlier inidelp-i|-Idlntly or in c ni)-
eration with any person or governmental agency, a
program of' study. reseairrch. and experinwntattion
and evaluation in the field of weather modification.
171 'o 'exerciisie ceniraol suitiwirvisorv anthorit. I
over ill waler iiaialt ile'nt rict. e epar 373.114 Land an
ment may exerciseny power hern author 373.14 and and Water Adjudicatory CoWm
be exercised by a water management district' he mission; review of district policies, rules, sad
department shall review. and mayv rescind or modilfy, orders.--The Governor and cabinet, sitting as the
any policy, rule, regulation,or order of a water man- -~ Land and Water Adjudicatory Commission,
agement district, except those policies, rulls. or r- have the ecluive power b a vote of f
ulations which involve only the internal ma.age- ber to review, and may rescind or mdf
ment of the district, to insure compliance with the r or a war manageenistrict, exce
provisions and purposes of this chapter. Such review those rules which involve only the internal manage-
may bh initiated at any time either by the depart- ment of the water management district, to iouure
ment or by an interested person aggrieved by such compliance with the provisions and purposes of this
policy, rule, regulation, or order by filing a request chapter. Such review may be initiated tt any time by
for such review with the department and serving a the governor r and cabinet, by the secretary, by the
copy on the water management district. Such re- Environmental Regulation Commission; or'by an in-
quest for review is not a precondition to the eflctive- terested party aggrieved by such rule or order, by
ness of' such policy, rule. regulation, or order, or to filing a request for such review with the Land and
the seeking ,f judicial review as otherwise provided. Water Adjudicatory Commission and serving a copy
(80a) To provide such coorcldin,.tin, co.tix-r.;iti(.on, on the water management district. Such request for
or appr ova;l ee.saty to thr efli.tuation ofany plan review is not a precondition to the effectiveness of
or project of the Fe.derail Government in connection such rule or order, or to the seeking of judicial re-
with or concerning the waters in the state. Unless view a. provided by s. 373.13 and 120.68.
otherwise provided by state or it'deral law. the de- i
partmenit shall. suliject to coifiit mat iin by the Ie'gis-
lature, have the power to approve or disapprove such
federal plans or projects on behalf of the state.

...-i.a* --

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