DER's Proposed Stormwater Legislation
(Draft No. 8-1988)
Summary and Analysis
The proposed Act Relating to Stormwater involves the structure of
stormwater management in Florida. It does not address, directly,
stormwater permitting programs or standards. The focus is on the
agencies involved in stormwater management and their relative
authority and responsibilities.
This is a "planning" act. It encourages decentralization of
stormwater management program administration, from the state
level to the regional level to the local level. It also
encourages a regional or local, comprehensive focus for
stormwater management programs, instead of statewide, piecemeal.
It envisions a new concept of stormwater management: no longer to
be an issue that is addressed only on a permitting basis, or on a
crisis basis, but to be part of each community's over-all long-
term responsibilities as a utility service.
The "themes" of the proposed legislation are decentralization,
consistency in agency actions, comprehensive planning, clarity of
lines of authority, and stormwater "systems".
The proposed act would, for the first time, expressly define
"stormwater" and related terms in the Florida Statutes, and
would, for the first time, expressly mandate stormwater
Today's stormwater programs, as shared between DER and the
water management districts, go back to 1982 when DER
promulgated its stormwater rules, Chapter 17-25, Florida
Admin. Code. DER's authority to adopt the stormwater rules
came from its general authority in Chapter 403 to adopt
necessary rules on water pollution. Chapter 403 did not, at
that time, contain the words "stormwater" and still does
not. All "official" definitions and concepts of stormwater
come from Chapter 17-25, not from its enabling statute.
This would change under the proposed act, which would amend
403.031 to define "stormwater" and related terms
(management, program, system, utility); Section 1. Also,
the proposed act would expressly authorize DER to adopt
stormwater rules, by amending 403.061; Section 2.
The act would also clarify the relationship between DER and
the water management districts, which have been operating
under a loosely defined delegation scheme. The delegation
program was authorized in 1975, before DER had even
promulgated its stormwater rules. In 1975, the legislature
authorized the secretary of DER to delegate to water
management districts its planning, regulation, and
permitting of non-point sources of pollution, when he or she
deemed each district to be financially and technically
capable. Chapter 75-22, 1975 Laws of Florida, codified as
In 1982, DER adopted its stormwater permitting rule, and
then began delegation of its stormwater permitting and
regulation programs. Only Northwest Florida Water
Management District, to date, has not received stormwater
delegation under 403.812.
In 1983, 403.812 was amended to delete the reference to
"delegation of planning, regulation, and permitting of non-
point sources of pollution"; the law now mandated delegation
of administration of DER's stormwater rule, which was a
permitting rule, for financially and technically capable
districts. Thus, by 1983, delegation of permitting was
strongly encouraged but delegation of planning was no longer
The proposed act would amend 403.812 again, eliminating all
reference to stormwater, and reverting to a looser
authorization for delegation of water quality regulation.
This is counterbalanced by a new section, expressly for
delegation of stormwater programs. A "Program" is defined
in Section 1 as an "institutional description which sets out
the strategy for urban and agricultural stormwater
management". It is unclear whether delegation of stormwater
"programs", as defined, includes permitting and regulation
and planning. (See discussion at Issue 2.)
Under the proposed act, DER must adopt rules on delegation
procedures. Each district may apply to DER for delegation.
Existing stormwater delegations, under the old 403.812, must
be amended within one year to conform to the new law. The
proposed act would retain the requirement that delegation be
conditioned on financial and technical capability.
Further delegation is envisioned by the proposed act. It
would create 403.0895 which would authorize local
governments to apply to water management districts for
delegation of stormwater management programs (again, this is
not just permitting, it is "strategy"). Delegation is
conditioned on financial and technical capability. Local
government delegation must be consistent with DER or
district stormwater rules, including permitting. Section 6.
This authorization may conflict with recently enacted
provisions of Chapter 88-242, Section 3, 1988 Laws of
Florida. That law amended 373.103 to add a sub-section 8,
authorizing delegation by districts, to local governments,
of rules relating to stormwater permitting. That law
authorizes delegation if the governing board determines that
the delegation is "necessary or desirable"; there is no
express requirement of financial or technical capability.
There are other conditions for delegation: the local
government program must have requirements that are
compatible with or stricter than DER or district rules; and
it must have the organization, staff, and financial and
other resources necessary for effective and efficient
enforcement. Chapter 88-242 also set forth a procedure for
It's unclear whether the proposed act would conflict with
Chapter 88-242 because it's unclear whether the proposed
act's local government delegation scheme includes
permitting. It refers to "programs" which are defined as
"strategy". Does this include or exclude permitting? One
of the weaknesses of the proposed act is that it does not
refer to permitting and it is unclear where existing
permitting schemes fit in. It completely deleted the
existing statutory reference to DER's stormwater rule.
Obviously the intent of the drafters was to work on the
comprehensive planning aspect of stormwater management and
to improve the bureaucratic structure but by not
mentioning existing permitting programs they have created
ambiguity. The issue needs to be resolved: does the local
government delegation, authorized by Section 6, include
permitting; and, if so, does this impermissibly conflict
with 373.103 as amended by Chapter 88-242?
Decentralization is also furthered by Section 9 of the
proposed act, transferring from DER, and to the water
management districts, all responsibilities relative to
Chapter 298 drainage districts. The act, however, excepts
from the transfer of authority, the responsibility of
voting, on behalf of any state owned land, for the board of
supervisors of any 298 drainage district. That duty is, in
Section 10, transferred from DER to the Board of Trustees of
the Internal Improvement Trust Fund. This makes sense as
the Board, under 253.03, is responsible for all state owned
3. Comprehensive Planning and Consistency.
The act would mandate three "mutually compatible" stormwater
management programs (again, a program is an institutional
description of a strategy). DER's program will identify
statewide goals. Each district's program will establish
district-wide goals consistent with the DER goals and with
the SWIM Act. Local governments shall also develop plans
consistent with district plans, the local government
comprehensive plan, and the SWIM Act. Section 3.
The districts must also develop a plan for incorporating
D.O.T. stormwater systems into local stormwater management
programs or into works of the district programs. Section 3.
DER also must conduct an on-going review of the effects the
stormwater systems have on flood protection and water
quality. Section 3.
Planning is also emphasized in portions of Chapter 373 that
would be amended by the proposed act; Section 13.
DER is required to conduct and coordinate statewide research
on management of stormwater runoff.
Sections 14-21 involve the SWIM Act and funding for it and
for stormwater programs.
4. Stormwater Systems.
The act encourages local government responsibility for long-
term stormwater management systems, instead of piecemeal
private management and operation. Within Chapter 403, it
would provide additional special funding mechanisms for
local governments to plan, construct, operate or maintain
stormwater systems. Such special funding was first
authorized in Chapter 86-186, Section 16, 1986 Laws of
Florida, creating 403.0893. The current law allows local
governments to adopt a stormwater utility fee or create a
stormwater facility benefit area with assessments on a per
The proposed act would expand the funding options, adding
"planning" to the types of activities for which special
funding is authorized. It also expressly allows local
governments to create stormwater utilities, defined at
Section 1 as "the providing of stormwater management systems
as a typical utility which is regularly billed to households
and businesses similar to water and wastewater services".
It also says that fees may be in the amount necessary to
plan, construct, operate and maintain systems.
It expands a bit on the stormwater facility benefit area
concept, authorizing interlocal agreements for that purpose.
This is a further example of the themes of decentralization,
consistency, and comprehensive programs.
The proposed act also would allow local governments to use
other county or municipal funds for stormwater management