SPEAKER EVALUATION FORM
Water Law, Water Rights
and Water Policy: The
Florida Law of Water and
Wetlands and the Impact
on Florida's Growth
May 17, 1991
The Florida Bar Continuing Legal Education Committee
The Environmental and Land Use Law Section
Course No. 6809R
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'pe&Jesi SL146!IJ V
ieg 1ep46oil GLo
The course materials in this booklet were prepared
for use by the registrants attending our Continuing
Legal Education course during the lectures and later
in their offices.
The Florida Bar is indebted to the members of the
Steering Committee, the lecturers and authors for
their donations of time and talent, but does not have
an official view of their work products.
(Maximum 6.5 hours)
General........... 6.5 hours Ethics.......1.0 hour
(Maximum 6.5 hours)
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(Maximum 6.5 hours)
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Real Estate...................................6.5 hours
Policy does not permit double credit within any one
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MVIRONMIUNTL M3D LWD USE LW SECTION
Thomas G. Pelham, Tallahassee-Chairman
Alfred J. Malefatto, West Palm Beach-Chairman-elect
Dennis M. Stotts, Miami-Chairman, CLE Committee
FACULTY & STERIMG CCOMIITTE
William L. Earl, Miami-Program Chairman
Thomas T. Ankersen, Tallahassee
Ronald N. Armstrong, Clearwater
Edward P. -de la Parte, Jr., Tampa
Kenneth H. "Buddy" MacKay, Jr., Tallahassee
Mary:F. Smallwood, Tallahassee
Daniel H. Thompson, Tallahassee
Jacob D. Varn, Tallahassee
Stephen A. Walker, West Palm Beach
William C. Davell, Chairman
Michael A. Tartaglia, Director, Programs Division
8:30 a.m.- 8:50 a.m.
8:50 a.m.- 9:00 a.m.
9:00 a.m.- 9:40 a.m.
9:40 a.m.-10:10 a.m.
William L. Earl, Miami,
FLORIDA STATUTORY SCHEME OF
An overview of the substance
and interrelationship of
Florida's water quantity and
water quality statutes and
Jacob D. Varn, Tallahassee
COMMON LAW WATER RIGHTS AND
Description of remedies
available to protect or
defend public and private
Thomas T. Ankersen,
10:10 a.m.-10:20 a.m.
10:20 a.m.-10:50 a.m.
WATER AGENCIES: THEIR
JURISDICTION AND SOMETIMES
jurisdiction, and respective
roles of Florida Land and
Commission, Department of
Environmental Regulation and
the water management districts
Stephen A. Walker, General
Counsel, South Florida Water
Management District, West
10:50 a.m.-ll:30 a.m.
11:30 a.m.-11:40 a.m.
11:40 a.m.-12:00 noon
12:00 noon- 1:30 p.m.
1:30 p.m.- 2:00 p.m.
2:00 p.m.- 2:45 p.m.
Daniel H. Thompson, General
Counsel, Department of
PRACTICAL CONSIDERATIONS IN
WATER PERMITTING: WHO, WHAT,
WHEN, WHERE AND ETHICS IN THE
Edward P. de la Parte, Jr.,
Thomas T. Ankersen
Daniel H. Thompson
QUESTIONS AND ANSWERS
Jacob D. Varn
Thomas T. Ankersen
Stephen A. Walker
Daniel H. Thompson
THE ROLE OF WATIR LAWYERS IN
A TROUBLED, UNCERTAIN WORLD
A consultant's view of
lawyers and their role in the
Ronald N. Armstrong,
Lunch (on your own)
WHERE DO THE COURTS STAND ON
A review of recent-cases of
significance regarding water
rights, remedies and policy
William L. Earl
CRITICAL DECISIONS FOR THE
'90s IN WATER ALLOCATION, USE
AND PRIORITIES: STANDING IN
LINE AT THE PUMP
Water managers from South
Florida, St. John's and
Southwest Florida Water
2:45 p.m.- 3:00 p.m.
3:00 p.m.- 3:30 p.m.
3:30 p.m.- 4:15 p.m.
4:15 p.m.- 4:30 p.m.
Management Districts discuss
critical decisions facing
water users and regulators in
WATER'S ROLE IN FLORIDA'S
A look at upcoming issues and
future water policy
Lt. Governor Buddy MacKay
WATERS OF THE STATE:
OPPORTUNITIES AND CONSTRAINTS
IN WETLANDS AND OTHER WATERS
OF THE STATE
A discussion of mitigation,
stormwater and other pending
Mary F. Smallwood, Tallahassee
QUESTIONS AND ANSWERS
TABLE O1 CONTENTS
AN OVERVIEW OF FLORIDA'S WATER QUALITY
AND WATER QUANTITY STATUTES AND REGULATIONS
Jacob D. Varn, Tallahassee
I. Int reduction and Backgroun d.............
IT. State Water QOality andWater
Quantity Programs................... .....
III. Issues for the 199~0's...................
COMMON LAW WATER RIGHTS AND REMEDIES
Thomas T. Ankers n,: Tallahassee
I. Introduction. ............. .................
II. Indispensable Secondary Sources..........
III. Common Law Water Rihtts.................
IV. The Role of, the Comron Law in
Interpreting Statutes0. ..................
ORGANIZATION AND JURISDICTION OF
FLORIDA'S WATER MANAGEMENT DISTRICTS
Stephen A. Walker, west Pailmt Beach
I. Organization of the Water Management
II. Water Management District Jurisdiction..
III. Relationship Between the Commission,
the Department, and the Water
Management Districts from a District
VI. Review of District Expenditures.......... 4.23
VII. F.S. Chapter 120....... ................ 4.27
THE WHO, WHAT AND WHEN IN WATER USE
PERMITTING: THE APPLICANT'S PERSPECTIVE
Edward P. de la Parte, Jr., Tampa
When Permits Are Required............... 5.1
Permitting Procedures................... 5.2
The Administrative Hearing.............. 5.9
WHERE DO THE COURTS STAND ON WATER RIGHTS?
William L. Earl, Miami
Osmer D. Batcheller, Miami
Water Use Rights........................
Various Issues Relating to Permitting...
WATERS CF THE STATE: OPPORTUNITIES AND
CONSTRAINTS IN WETLANDS AND OTHER
WATERS OF THE STATE
Mary F. Smallwood, Taliahassee
I. Definition of Waters of the State.......
II. Permitting Criteria .....................
IV. Discharges to Wetlands ..................
OVERSIGHT AND REVIEW OF WATER
MANAGEMENT DISTRICT ACTIONS
Daniel H. Thompson, Tallahassee
I. General Scope of Authority of the
Department and the Districts............ 4.1
II. Delegation of Department Authority
to the Districts......................... 4.8
III. State Water Policy...................... 4.14
IV. FLAWAC (Florida Land and Water
Adjudicatory Commission) Review......... 4.16
V. SWIM Plan Review ........................ 4.21
ABOUT THE SPEAKERS
.JACOB D. VARN received his Bachelor of Science in
Civil Engineering and his Juris Doctorate from the
University of Florida. While a student at the
University of Florida he worked part-time with the
Southwest Florida Water Management District. He
worked in a variety of capacities with the District
between 1961 and 1969, including jobs as draftsman,
surveyor, engineer, groundwater hydrologist and
administrative assistant. While in law school, he
worked with Dean Frank Maloney in writing the Model
Water Code. The Model Water Code served as the basis
for the Florida Water Resources Act of 1972, which is
now Chapter 373 of the Florida Statutes. Upon
graduation from law school he joined the Southwest
Florida Water Management District on a full-time
basis and became the District's first general
counsel. He also served as an Assistant Executive
Director at the District. In 1973 he joined Carlton,
Fields law firm in Tampa and began an environmental
and land use law practice. His law practice at the
time centered on water law, developments of regional
impact, and the regulatory efforts of the water
management districts. He worked with Carlton, Fields
until February 1979 when Governor Bob Graham
appointed him Secretary of the Florida Department of
Environmental Regulation. While Secretary of DER he
was instrumental in calling attention to the need for
comprehensive legislation to protect groundwater and
fostering a close working relationship between the
water management districts and DER. He was a
principal drafter of the "Save Our Rivers" program.
He served as Secretary :f DER until February of 1981
when Governor Bob Graham appointed him as Secretary
of the Florida Department of Transportation. In his
stint as Secretary of DOT he was able to complete the
funding for Florida's interstate system and able to
put the 1-75 by-pass around Tampa back on schedule.
He also selected the new design for the Sunshine
Skyway Bridge. In late 1981 he returned to the
Carlton, Fields law firm in the Tallahassee Office.
His practice now includes water law; environmental
and land use law; administrative and governmental
law; and transportation law. He frequently lectures
on all of these subjects. He has served on the
Executive Council of the Environmental and Land Use
Law Section of The Florida Bar. He is also active
with the Natural Resources Committee of the Florida
Chamber of Commerce. He participated in the Florida
Leadership Program of the Florida Chamber of
Commerce. He served as the chairman of a special
blue-ribbon task force appointed by Speaker of the
House Lee Moffitt, President of Senate Curtis
Peterson and Governor Bob Graham that was successful
in promoting a new gas tax in the 1982 Special
Session of the Florida Legislature. Within the
Carlton, Fields law firm he currently serves in a
variety of management capacities, including Executive
Vice President; member of five person Executive
Committee, which is responsible for management and
operation of the firm; member of the Board of
Directors; and member of Compensation Committee.
THOMAS T. ANKERSEN is staff attorney for the Sierra
Club Legal Defense Fund, Inc., in Tallahassee. He
was formerly a senior associate with Peeples, Earl &
Blank, P.A., in Miami. Mr. Ankersen received his
J.D. from the University of Florida in 1986, and was
a member of the Law Review.
STEPHEN A. WALKER is the District Counsel for the
South Florida Water Management District and has been
working with the District in this position since
August of 1985. In this capacity Mr. Walker is
responsible for all legal matters concerning the
District as well as management and budget preparation
for the Legal Department. From September 1983 until
August 1985, Mr. Walker was General Counsel for the
Southwest Florida Water Management District. In that
capacity he managed the legal affairs for the
District and served as legal advisor to the Governing
Board. Before joining the Southwest Florida Water
Management District, Mr. Walker was an attorney with
the South Florida Water Management District, involved
in the development and implementation of the
District's regulatory program as well as enforcement
and rulemaking activities. From January, 1983, until
his departure in September of 1983, Mr. Walker was
the Deputy District Counsel for the District,
.assisting in the supervision and management of three
attorneys and four administrative personnel. Mr.
Walker attended Pennsylvania State University and
received his B.S. in Aerospace Engineering, with
honors, in 1969. He attended the University of
Florida College of Law and received his J.D., with
honors, in 1974.
DANIEL H. THOMPSON has been General Counsel to the
Florida Department of Environmental Regulation since
August, 1986. Previously he was Deputy General
Counsel in charge of Enforcement and Assistant
General Counsel for Groundwater and Drinking Water
Programs. During 1986 and 1987 he was also Adjunct
Professor of Law at Florida State University College
of Law. Prior to 1982 he was an attorney with Legal
Services of North Florida, Inc., and Florida Legal
Services, Inc. Mr. Thompson received his B.A. from
Yale University in 1970 and his J.D. with honors from
Florida State University in 1974. He is a member of
the Executive Council of the Environmental and Land
Use Law Section of The Florida Bar.
EDWARD P. DE LA PARTE, JR. Upon graduation from law
school in 1977 Mr. de la Parte joined the law firm of
de la Parte and Gilbert. He became a shareholder in
1979 and presently serves as the firm's President and
Chief Executive Officer. He has practiced almost
exclusively in the area of environmental and land use
law for both private and governmental clients in
state and federal courts and state and federal
administrative agencies. His area of expertise is
environmental and land use law with special emphasis
in the area of water law. Mr. de la Parte has
extensive experience in all areas of environmental
permitting and administrative proceedings. He has
advised clients on EPA PSD permits, EPA NPDES
permits, U.S. Army Corps of Engineers dredge and fill
permits, DER wastewater discharge permits, DER
industrial discharge permits, DER solid waste
permits, DER air pollution construction permits, DER
dredge and fill permits, consumptive use permits,
surface water management permits, works of the
district permits and local environmental permits. He
has handled rule challenges. He has represented
clients in over 50 formal hearings before the
Division of Administrative Hearings and in numerous
rulemaking proceedings. Mr. de la Parte has
particular experience in the area of water law and in
dealing with water management districts. He has
served as the West Coast Regional Water Supply
Authority's primary legal adviser on all of its
wellfields and water supply facilities. These
facilities are currently permitted by the Southwest
Florida Water Management District to withdraw water
at a combined annual average daily rate of 148
million gallons and a combined maximum daily rate of
241 million gallons, making the Authority one of the
largest water supply utilities in the State of
RONALD N. ARMSTRONG received a B.S. in Engineering
from the University of South Florida in 1972 and an
M.S. in Engineering from the University of South
Florida in 1973. He has been a registered
professional engineer in Florida since 1976. From
1973-78 he was water quality manager for the Tampa
Bay Regional Planning Council responsible for the
preparation of the Tampa Bay Region 208 plan and from
1978-87 was project director, manager and engineer
for Camp, Dresser & McKee on various projects. Since
1987 Mr. Armstrong has served as assistant regional
manager to Camp, Dresser & McKee's South Region. He
has served as an expert witness for several water
supply planning, design and construction projects
including Osceloa County/St. Johns River Water
Management District; South Brevard Water Authority
Hearings; Manatee County; Estech, Inc., Reservoir
Protection and Environmental Permitting
Administrative Hearing; and the Lee County
Comprehensive Plan Public Hearings. His engineering
experience encompasses the design and construction of
wastewater facilities, wellfields and transmission
mains, water treatment plants, administration of
II C -----------. -i-~.----
water quality management planning programs,
environmental reviews, hazardous waste
investigations, expert witness testimony and
stormwater management. He has formulated
environmental policy regarding preservation,
utilization and restoration of comprehensive land use
plans, and produced bondholder annual reports and
official statements. Mr. Armstrong is a member of
the American Society of Mining Engineers; the
American Society of Civil Engineers; the American
Water Resources Association; the National Society of
Professional Engineers; and the Florida Engineering
WILLIAM L. EARL is a partner in the Miami office of
Peeples, Earl & Blank, P.A. He was Executive Editor
of the University of Florida Law Review and received
his law degree cum laude from the University of
Florida College of Law in 1971. Mr. Earl served as
Executive Director of the Eastern Water Law Center,
Gainesville, Florida from 1971 to 1972, where he
assisted Dean Frank Maloney in drafting the Florida
Water Resources Act of 1972, Chapter 373, Florida
Statutes, and related provisions of the Model Water
Code. Mr. Earl has lectured and written numerous
articles on environmental law. He has litigated
cases involving water use, sovereignty lands
ownership, equitable and legal estoppel, vested
rights, and transferable development rights, and he
represented the Deltona Corporation in Odom V.
Deltona Corporation, the first case involving the
state in a sovereignty lands dispute under MRTA. In
addition to private sector clients, Mr. Earl serves
as special counsel on a broad range of water-resource
and land-use matters to several county governments
and the Florida Keys Aqueduct Authcrity.
KENNETH H. "BUDDY" MACKAY is a former United States
Congressman from the 6th Congressional District in
Florida. He graduated from the University of Florida
in 1954. After serving three years as a pilot in the
U.S. Air Force, MacKay entered the University of
Florida College of Law, from which he graduated with
honors in 1961. From 1968 until 1974, Mr. MacKay
served in the Florida House of Representatives, and
from 1974 to 1980, he served in the Florida Senate.
During that time he earned the respect of his
colleagues, constituents and the press, being
designated Most Valuable Legislator more times than
anyone in history. In addition to his Florida
legislative service, he practiced law, and was also
actively involved in the management of his family's
cattle and citrus business. Mr. MacKay began his
first term as a Member of Congress on January 3,
1983. He served on the House Committee on Science
and Technology, Foreign Affairs Committee, Committee
on the Budget and Select Committee on Aging. After
his years in congress, Mr. MacKay served as Chairman
of the Florida Democratic Party Campaign Committee
and was responsible for developing a state-wide
general election strategy for electing Democrats. He
also was appointed as a national spokesman for the
Washington based Democratic Leadership Council. Mr.
MacKay took a leave of absence from the Miami law
firm of Steel, Hector & Davis in order to run as Lt.
Governor with Former United States Senator Lawton
Chiles. On January 8, 1991, the "Democratic Dream
Team" took the oath of office to lead the state for
the next four years.
MARY F. SMALLWOOD graduated from the University of
Florida and received her law degree with high honors
from Florida State University College of Law where
she served on the editorial board of the law review.
She is co-author of the Warren S. Henderson Wetlands
Protection Act of 1984: A Primer, published in the
Journal of Land Use and Environmental Law. Ms.
Smallwood is a member of the Executive Council of the
Environmental and Land Use Law Section of The Florida
Bar (1985-present). She was previously General
Counsel and later Director of the Division of
Environmental Permitting for the Florida Department
of Environmental Regulation. Ms. Smallwood is
currently practicing in Tallahassee with the firm of
Ruden, Barnett, McClosky, Smith, Schuster & Russell,
P.A. in the areas of environmental, land use and
AN OVERVIEW OF FLORIDA'S
WATER QUALITY AND WATER
QUANTITY STATUTES AND REGULATIONS
JACOB D. VARN
CARLTON, FIELDS, WARD, EMMANUEL
SMITH & CUTLER, P.A.
POST OFFICE DRAWER 190
TALLAHASSEE, FLORIDA 32302
Doc #: 6228 Vers: Vl
AN OVERVIEW OF FLORIDA'S
WATER QUALITY AND WATER
QUANTITY STATUTES AND REGULATIONS
I. INTRODUCTION AND BACKGROUND
1. State Programs
a. Government Reorganization
Act of 1969 (Chapter 69-106,
Laws of Florida)
(1) Department of Natural
Board of Conservation.
over flood control and
under Chapter 378,
(2) Department of Air and
Water Pollution -
authority of Chapter
403 and received
authority from State
Board of Health.
(Renamed Department of
Pollution Control in
(3) Board of Trustees of
Improvement Trust Fund
Chapter 253, F.S.
2. Regional Programs
a. Central and Southern Florida
Flood Control District
b. Southwest Florida Water
c. Southwest Florida Water
B. 1972 through 1975
1. Florida Water Resources Act of
1972 (Chapter 72-299, Laws of
a. Created water management
districts throughout the
State of Florida.
b. Authorized a variety of new
(1) consumptive use
(2) surface water
2. Florida Environmental Land and
Water Management Act of 1972.
(Chapter 72-317, Laws of
(1) Created state land
(2) Authorized new
(a) development of
(b) areas of critical
3. Regional Water Supply Authority
Legislation (Chapter 74-114,
Laws of Florida Sections
373.196 -373.1962, F.S.)
a. Authorized creation of
regional water supply
b. County of origin provisions.
Sections 373.1961(5) and
4. Administrative Procedures Act
of 1974 (Chapter 74-310, Laws
5. Governmental Reorganization Act
of 1975 (Chapter 75-22, Laws
a. Created Department of
Became primarily a
regulatory agency and
received most of regulatory
and supervision authority
1. Florida Safe Drinking Water Act
(Chapter 77-337, Laws of
2. Florida Resource Recovery and
Management Act (Chapter 80-302,
Laws of Florida). Also see
Chapters 85-269 and 85-277,
Laws of Florida.
3. Water Quality Assurances Act of
1983 (Chapter 83-310, Laws of
Florida). This was a very
comprehensive piece of
legislative that provided DER
with very specific statutory
authority geared to protect
Florida's ground water
4. Warren S. Henderson Wetlands
Protection Act of 1984 (Chapter
84-79, Laws of Florida).
a. Expanded DER's regulatory
b. Provided additional
statutory criteria for
approving and denying
5. Growth Management Act of 1985
(Chapter 85-55, Laws of
6. Solid Waste Management Act of
1988 (Chapter 88-130, Laws of
II. STATE WATER QUALITY AND WATER
A. Florida Department of
1. Statutory Authority: Chapters
258, 373, 378, 381 and 403,
2. Rules Florida Administrative
a. Chapter 17-1 Forms
b. Chapter 17-3 Water Quality
c. Chapter 17-4 Permits
d. Chapter 17-9 Minimum
Requirements for Earthen
Dams, Phosphate Mining and
e. Chapter 17-11 Assessment of
f. Chapter 17-17 Electrical
Power Plant Siting
g. Chapter 17-23 Industrial
h. Chapter 17-25 Regulation of
i. Chapter 17-28 Underground
j. Chapter 17-29 Conceptual
k. Chapter 17-40 Water Policy
1. Chapter 17-43 SWIM Rule
m. Chapter 17-45 Maintenance
Dredging in Deepwater Ports
n. Chapter 17-60 Pollution
Prevention and Control
o. Chapter 17-61 Stationary
p. Chapter 17-63 Local Tank
q. Chapter 17-64 Stationary
r. Chapter 17-65 Pilot
Inspection Program for
Pollutant Storage Systems
s. Chapter 17-100
t. Chapter 17-101 Description
u. Chapter 17-102 Rules of
Administrative Procedure -
v. Chapter 17-103 Rules of
Administrative Procedure -
Final Agency Action
w. Chapter 17-104
for the Water Resources
Restoration and Preservation
x. Chapter 17-150 Hazardous
y. Chapter 17-300 Division of
Water Management -
Description of Organization
z. Chapter 17-301 Surface
Waters of the State
aa. Chapter 17-302 Surface
Water Quality Standards
ab. Chapter 17-312 Dredge and
ac. Chapter 17-500 Division of
Water Facilities -
Description of Organization
ad. Chapter 17-501 Construction
Grants Program Priority
System for Wastewater
ae. Chapter 17-503 Revolving
af. Chapter 17-504 EDB Remedial
ag. Chapter 17-524 New Potable
Well Permitting In
ah. Chapter 17-531 Governing
Water Well Contractors In
ai. Chapter 17-532 Rules and
Regulations Governing Water
Wells In Florida
aj. Chapter 17-550 Drinking
Water Standards, Monitoring
ak. Chapter 17-555 Permitting
and Construction of Public
al. Chapter 17-560 Requirements
for Public Water Systems
Out of Compliance
am. Chapter 17-600 Domestic
an. Chapter 17-601 Domestic
Wastewater Treatment Plant
ao. Chapter 17-602 Operator
ap. Chapter 17-603 Detergents
aq. Chapter 17-604 Collection
Systems and Transmission
ar. Chapter 17-610 Reuse of
Reclaimed Water and Land
as. Chapter 17-611 Wetlands
at. Chapter 17-640 Domestic
au. Chapter 17-650 Water
Quality Based Effluent
av. Chapter 17-660 Industrial
aw. Chapter 17-670 Feedlot and
Dairy Wastewater Treatment
and Management Requirements
ax. Chapter 17-671 Phosphate
Mining Waste Treatment
ay. Chapter 17-700 Division of
Waste Management -
Description of Organization
az. Chapter 17-701 Solid Waste
ba. Chapter 17-702 Solid Waste
Combuster Ash Management
bb. Chapter 17-703 Training of
Operators of Solid Waste
bc. Chapter 17-704
Certification of Resource
bd. Chapter 17-707 Degradable
be. Chapter 17-708 Full Cost
Accounting for Solid Waste
bf. Chapter 17-709 Criteria for
the Production and Use of
Compost made from Solid
bg. Chapter 17-710 Used Oil
bh. Chapter 17-711 Waste Tires
bi. Chapter 17-712 Biohazardous
and Biological Waste
bj. Chapter 17-730 Hazardous
bk. Chapter 17-733 Criteria for
the Siting of a
bl. Chapter 17-769 Florida
bm. Chapter 17-770 State
bn. Chapter 17-771 Petroleum
Contamination Site Priority
bo. Chapter 17-773
Reimbursement for Petroleum
Contamination Site Cleanup
B. Florida Department of Natural
1. Statutory Authority: Chapters
161, 211, 253, 377 and 378,
2. Rules Florida Administrative
a. Chapter 16-1 Delegation of
b. Chapter 16B-24 Rules and
Procedures for Application
for Coastal Construction
c. Chapter 16B-26 Setback Line
Descriptions (24 Counties)
d. Chapter 16B-33 Rules and
Procedures for Coastal
Construction and Excavation
(permits for construction
seaward of the coastal
construction control line
and 50 ft. setback)
e. Chapter 18-18 Biscayne Bay
f. Chapter 18-20 Florida's
g. Chapter 18-21 Sovereignty
Submerged Lands Management
h. Chapter 16C-25 Oil and
i. Chapter 16C-26 Oil and
j. Chapter 16C-27 Oil and
k. Chapter 16C-28 Oil and
Gas Production and
1. Chapter 16C-29 Oil and
Gas Injection Wells, Well
Workovers and Abandonments
m. Chapter 16C-30 Oil and Gas-
n. Chapter 16C-16 Mine
o. Chapter 16C-17 Master
Reclamation Plan for Land
Disturbed by the Severance
of Phosphate Prior to 1975
p. Chapter 16C-35
Certification to Administer
q. Chapter 16C-36 Limestone
r. Chapter 16C-37 Heavy
s. Chapter 16C-38 Fuller's
t. Chapter 16C-39 Other
C. Florida Department of Community
1. Statutory Authority: Chapters
163 and 380, Florida Statutes.
2. Rules Florida Administrative
a. Chapter 9-1 Organization
and General Information
b. Chapter 9-2 Agenda and
c. Chapter 9-3 Rulemaking
d. Chapter 9-4 Declaratory
e. Chapter 9-5 Decisions
f. Chapter 9-10 Comprehensive
Regional Policy Plans
g. Chapter 9B-27 Review of
Development Regulations and
Comprehensive Plans within
Areas of Critical State
h. Chapter 9B-29 Division of
Resource Planning and
Management Approval of
Comprehensive Plan and
Local Regulations for the
Big Cypress Area of
Critical State Concern Date
i. Chapter 9B-30 Approval of
Local Land Development
Regulations for the City of
Key West Area of Critical
j. Chapter 9G-14 Hazardous
k. Chapter 9J-1 Bureau of
State Planning -
Requirements for Areas of
Critical State Concern
1. Chapter 9J-2 Rules of
Procedure and Practice
Pertaining to Developments
of Regional Impact
m. Chapter 9J-3 Areawide
Developments of Regional
n. Chapter 9J-5 Minimum
Criteria for Review of
Comprehensive Plans and
Determination of Compliance
o. Chapter 9J-7 Approval of
Local Comprehensive Plan
for Big Cypress Area of
Critical State Concern
p. Chapter 9J-8 Regulations
for the Approval of Local
Comprehensive Plan Adopted
for the Green Swamp Area of
Critical State Concern
q. Chapter 9J-9 Approval of
Local Regulations and
Comprehensive Plan for the
Green Swamp Area of
Critical State Concern,
r. Chapter 9J-11 Procedure
Rule for Review of Local
Plans and Amendments
s. Chapter 9J-12 Schedule for
Submission of Revised Local
Plans and Procedures for
t. Chapter 9J-14 Monroe County
Florida Keys Comprehensive
Plan and Land Development
u. Chapter 9J-17 Approval of
Portions of the City of Key
Colony Beach Comprehensive
v. Chapter 9J-19 Florida Keys
Area of Critical State
Concern Coordinated Agency
w. Chapter 9J-22 Approval of
Local Land Development
Regulations for the City of
Key West Area of Critical
x. Chapter 9J-24 Procedures
and Criteria for the Review
of Local Government Land
y. Chapter 9J-27 Wekiva River
z. Chapter 9J-28 Rules of
Procedure and Practice
Pertaining to Florida
NOTE: Also see Administration Commission
Chapter 28-24, Developments
Presumed to Be of Regional Impact;
and Florida Land and Water
Adjudicatory Commission Chapter
42-2, Rules of Appeals Procedure.
D. Florida Game and Fresh Water Fish
1. Statutory Authority: Chapter
372, Florida Statutes. Also
see Article IV, Section 9,
2. Rules Florida Administrative
a. Chapter 39-1 General
b. Chapter 39-2 Organization,
Practice, Procedure and
c. Chapter 39-25 Rules
Relating to Reptiles
d. Chapter 39-26 Rules
Relating to Amphibians
e. Chapter 39-27 Rules
Relating to Endangered or
E. Water Management Districts
1. Statutory Authority Chapter
373, Florida Statutes.
2. Northwest Florida Water
a. Chapter 40A-1 General and
b. Chapter 40A-2 Consumptive
Uses of Water
c. Chapter 40A-3 Regulation of
d. Chapter 40A-4 Management
and Storage of Surface
__ _~_i^_ ~_~--------I~~
e. Chapter 40A-5 Regulation of
f. Chapter 40A-6 Works of the
g. Chapter 40A-44 Regulation
of Agricultural and
Forestry Surface Water
3. Suwannee River Water Management
a. Chapter 40B-1 General and
b. Chapter 40B-2 Water Use
c. Chapter 40B-3 Permitting of
d. Chapter 40B-4 Surfacewater
Management and Works of the
e. Chapter 40B-5 Permitting of
f. Chapter 40B-9 Water
4. St. Johns River Water
a. Chapter 40C-1 Organization
b. Chapter 40C-2 Permitting of
Consumptive Uses of Water
c. Chapter 40C-3 Water Wells
d. Chapter 40C-4 Management
and Storage of Surface
e. Chapter 40C-5 Artificial
f. Chapter 40C-6 Works of the
g. Chapter 40C-9 Water
h. Chapter 40C-20 General
Water User Permits
i. Chapter 40C-21 The Water
j. Chapter 40C-40 General
Surface Water Permits
k. Chapter 40C-41 Surface
Water Management Basin
1. Chapter 40C-42 Regulation
of Stormwater Discharge
m. Chapter 40C-43 General
Silvicultural Surface Water
Management Permits After
5. Southwest Florida Water
a. Chapter 40D-0 General
b. Chapter 40D-1 Procedural
c. Chapter 40D-2 Consumptive
Use of Water
d. Chapter 40D-3 Regulation of
e. Chapter 40D-4 Management
and Storage of Surface
f. Chapter 40D-5 Artificial
g. Chapter 40D-6 Works of the
h. Chapter 40D-8 Water Levels
and Rates of Flow
i. Chapter 40D-9 Land
j. Chapter 40D-20 General
Water Use Permits
k. Chapter 40D-40 General
Surface Water Management
1. Chapter 40D-45 Surface
Water Management for Mining
Materials Other Than
6. South Florida Water Management
a. Chapter 40E-1 General and
b. Chapter 40E-2 Consumptive
c. Chapter 40E-3 Water Wells
d. Chapter 40E-4 Surface Water
e. Chapter 40E-5 Artificial
f. Chapter 40E-6 Works or
Lands of the District
g. Chapter 40E-7 Miscellaneous
h. Chapter 40E-9 Real Property
Acquisition and Disposal
i. Chapter 40E-20 General
Water Use Permits
j. Chapter 40E-21 Water
k. Chapter 40E-22 Regional
Water Shortage Plans
1. Chapter 40E-30 General
Permits for Water Wells
m. Chapter 40E-40 General
Surface Water Management
n. Chapter 40E-41 Surface
Water Management Basin and
COMMON LAW WATER RIGHTS AND REMEDIES
o. Chapter 40E-61 Works of the
p. Chapter 40E-62 Works and
Lands of the District
III. ISSUES FOR THE 1990'S
A. Better definition of a "reasonable
B. Better definition of DER's
"general supervisory authority"
over the water management
C. Who is going to be in charge of
the regional water supply? Does
the State have a role in water
supply? If so, what is it?
D. How are we going to protect our
well fields and ground water
supply? Thomas T. Ankersen
E. Are we going to coordinate or
centralize our water and land use
decision-making processes? Who
has the final decision or who
makes the first decision? What
statutory process prevails -
Chapter 163, Chapter 373, Chapter
380 or Chapter 403? What are the
implications of "right-sizing" on
the foregoing mentioned processes?
COMMON LAW WATER RIGHTS AND REMEDIES
Thomas T. Ankersen
"The [common law] is dead. Long
live the [common law]."
The complex administrative framework of
modern water law has greatly diminished the
practitioner's recourse to the common law to
resolve disputes involving water use and
allocation. Nonetheless, lawyers who ignore
the continued vitality of the common law, both
as an independent source of relief, and as a
means to interpret statutes, do so at their
A handful of Florida Supreme Court cases
in the last decade have both clarified and
muddied the waters of the common law of water
rights. These cases, and their
interrelationship with the Florida Statutes
that govern water rights in Florida, are
II. INDISPENSABLE SECONDARY SOURCES
Any practitioner seriously contemplating
common law water rights issues should
carefully consider several key secondary
resources. In addition to providing valuable
insight into Florida water law, these
materials have gained added credibility
through their citation in the leading water
law opinions of the Florida courts. These
A. Maloney, Plager & Baldwin, Water Law
and Administration: The Florida
Experience, (Univ. Presses of
Florida, 1968)(quoted in Village of
Tequesta v. Jupiter Inlet Corp., 371
So. 2d 663, 665 (Fla.1979); Board of
Trustees of the Internal Improvement
Trust Fund v. Sand Key Associates.
Ltd., 512 So. 2d 934, 936 (Fla.
B. F. Maloney, S. Plager, R. Ausness,
B. Canter, Florida Water Law 1980
(1980)(quoted in Westlake Skating
Center. Inc. v. Gus Machado Buick.
Inc., 542 So.2d 959, 961 (Fla.
C. F. Maloney, R. Ausness, J. Morris, A
Model Water Code with Commentary,
(Univ. Presses of Fla. 1972).
II. COMMON LAW WATER RIGHTS
Water rights in Florida are derived from
wo distinct, yet related, sources, both
ooted in the law of property. One may
ossess rights in the corpus of the water, and
ne may possess rights which result from land
ownership adjacent to or beneath waters. In
lorida, these two species of rights are
created quite differently.
Rights in the Corpus of Water -
Ownership of Water In Tampa Waterworks
v. Cline, 20 So. 780, 782 (Fla. 1896),
the Florida Supreme Court articulated the
rule that "none can have any property in
the water itself, except in the
particular portion which he may choose to
abstract from the stream and take into
his possession and that during the time
of his possession."
L. The Usufructuary Nature of Water Rights -
This rule was reaffirmed in the landmark
case of Village of Tequesta v. Jupiter
Inlet Corp., 371 So. 663, 672 (Fla.
1979), where the Court held "[t]he
landowner does not have a
constitutionally-protected property right
in the water beneath his property." The
Court instead characterized the interest
as a right "to the usufruct of the water
and not to the water itself." Id. at
b. In Schick v. Florida Department of
Agriculture, 504 So.2d 1318, 1320 (Fla.
1st DCA 1987) the Court distinguished
Village of Teguesta in a manner
consistent with Tampa Waterworks, and
held that because a landowner had been
"deprived of the existing use of the
water in wells and pipes," inverse
condemnation would lie for contamination
of that water. Schick, 504 So.2d at
2. Rights to Drain or Divert Waters The
Florida Supreme Court recently settled
the question of the applicable common law
rule that governs surface water flooding
disputes between adjoining landowners.
Westland Skating Center. Inc. v. Gus
Machado Buick, 542 So.2d 959 (Fla. 1989)
involved a classic dispute between
adjoining landowners over property damage
resulting from their respective efforts
to alleviate surface flooding. The
skating center collected its runoff and
discharged it in the direction of the
automobile dealership, causing flood
damage to several cars. In response, the
car dealership erected a dam which
resulted in extensive flooding to the
a. The Common Enemy Rule The Court
surveyed the Florida cases and concluded
that Florida appellate courts had
employed two historic approaches, the
Civil law rule and the common enemy rule.
"The common enemy rule held that
landowners had an unlimited privilege to
deal with the surface water on their land
as they pleased without regard to the
harm which may be caused to others." Id.
The Civil Law Rule The civil law rule
recognized that higher elevation tracts
had an easement or servitude over lower
tracts for all surface water that
naturally flowed downhill. However,
anyone who increased or interfered with
the natural flow of surface waters so as
to cause invasion of another's interests
was subject to liability to the other."
Id. at 961.
:. Adoption of the Reasonable Use Rule The
Supreme Court upheld the Third District
Court of Appeal's ruling but modified the
Civil Law Rule. Recognizing that neither
rule satisfactorily resolved such
disputes, the Court adopted the
"reasonable use" rule which holds that
eachah possessor is legally privileged
to make reasonable use of his land even
though the flow of surface waters is
altered thereby and causes some harm to
others. He incurs liability only when
his harmful interference with the flow of
surface waters is unreasonable." Id.
3. Law of Nuisance May Apply The Court
also intimated that the rules governing
traditional common law nuisance claims
should be applied in resolving reasonable
use disputes. Id. (citing Restatement
(Second) of Torts S 833(1979).
1. Reasonable Use Rule Also Applicable to
Groundwater Importantly, the Court
stated in a footnote that "subject to
legislative regulation, the reasonable
use rule is applicable to subsurface
waters," and cited Village of Tequesta v.
Jupiter Inlet Corp., 371 So.2d 663 (Fla.
1979). Presumably, this caveat applies
with respect to surface waters as well.
5. The Effect of Compliance with a Statute -
Finally, the Court addressed the effect
which the Skating Rink's compliance with
a building code had on the
reasonableness of its conduct. The Court
found that while compliance with a local
statute might constitute evidence of
reasonableness, it does not establish
reasonableness as a matter of law. Id.
at 964. See also City of Miami v. City
of Coral Gables, 233 So.2d 7, 11 (Fla.
3rd DCA 1970)(Noncompliance with a
municipal ordinance constitutes evidence
of nuisance). But See State ex rel.
Shevin v. Tampa Electric Co., 291 So.2d
45, 48 (Fla. 2d DCA 1974)(compliance with
Chapter 403 "irrelevant" to whether
activity is a nuisance).
B. Rights Based Upon Ownership of Land
Adjacent to or Beneath Waters
1. Riparian Rights Riparian rights are
those rights to use of water in a natural
navigable waterbody that accrue to an
owner by virtue of his ownership of the
upland bordering on the water body. F.
Maloney, S. Plager & F. Baldwin, Water
Law and Administration The Florida
Experience, 31 (Univ. Presses of Fla.
a. Unlike the rights in flowing waters,
riparian rights are constitutionally
protected property rights. Board of
Trustees of the Internal Improvement
Trust Fund v. Sand Key Associates, 512
So.2d 934, 936 (Fla. 1987).
b. Riparian and littoral rights include 1)
the right to use the waters shared by the
public, 2) the right of access to the
water, including the right to have the
property's contact with water remain
intact, 3) the right to use the water for
navigational purposes, 4) the right to an
unobstructed view of the water, and 5)
the right to receive accretions and
reliction to the property. Sand Key
Associates, 512 So.2d 934, 936 (Fla.
In Sand Key Associates, The Florida
Supreme Court held that accretion that
resulted from the State's construction of
an artificial structure did not vest in
the state. Id. at 941. The Court
reasoned that to hold otherwise would
deprive the owner of constitutionally
protected riparian rights e.g. the
right to accretion. Id. at 936 -938.
Rights in Non-Navigable Waterbodies The
beds of non-navigable water bodies are
subject to private ownership and the
general public has no right use the
waters overlying the bed. North Dade
Water Co. v. Adken Land Co., 130 So.2d
894 (3rd DCA Fla. 1961); Pounds v.
Darling, 75 Fla. 125, 77 So. 666 (1918).
Non-navigable Waterbodies with Multiple
Ownership The owners of separate
portions of the bed a non-navigable water
body have co-equal rights to the
reasonable use of the entire waterbody.
Duval v. Thomas, 107 So. 2d 148 (Fla 2nd
DCA 1958), cert. dismissed with opinion,
114 So.2d 791 (Fla. 1959).
public Trust Rights Navigable lakes and
treams are held by the state in trust for the
ablic at large. Broward v. Mabry, 50 So.
26, 830 (Fla. 1909). This public character
eans that the bed and waters of a navigable
tream are in public ownership and are
impressed with an easement for public uses,
including navigation, fishing, bathing and
other similar uses. State v. Gerbing, 47 So.
53, 355 (Fla. 1908).
In Coastal Petroleum Co. v. American
Cyanamid Co., 492 So.2d 339, 342-43 (Fla.
1986), the Florida Supreme Court
reiterated its view that sovereignty
submerged lands "differ from other state
lands," and held that they could not be
conveyed from state ownership "without
clear intent and authority, and
conveyances where authorized and
intended, must retain public use of the
waters." (emphasis added).
b. The Constitutionalization of the Public
Trust Doctrine in Florida In 1968,
the Public Trust Doctrine gained
constitutional status. Article X,
Section 11 of the Florida Constitution
declares that sovereignty lands are "held
by the state in trust for all the
people" and that "[s]ale of such lands
may be authorized by law, but only when
in the public interest." This provision
has been characterized as a codification
of Florida's common law. See Art. X,
11, Fla. Const. in Fla. Stat. Ann.
Commentary (1970). Odum v. Deltona, 341
So.2d 977, 981 (Fla. 1977).
c. Use of the Public Trust Doctrine as a
vehicle to maintain streamflows or
prevent pollution has not been tested in
Florida. However, the right to fish is a
right that is probably protected by the
doctrine. State v. Black River Phosphate
Co., 32 Fla. 82, 92, 13 So. 640, 648
(Fla. 1893). It does not appear to
require a dramatic departure for a
Florida Court to hold that the integrity
of the water must be maintained to insure
that this right is not infringed upon.
See also Davis, Protecting Waste
Assimilation Streamflows by the Law of
Water Allocation, Nuisance, and Public
Trust, and by Environmental Statutes, 28
Natural Resources Journal 357 (1988).
IV. THE ROLE OF THE COMMON LAW IN
In addition to its importance as an
effective remedy in its own right, the common
aw serves as important instrument to glean
he meaning behind statutes that now
dministratively govern water rights in
lorida. A basic rule of statutory
construction in Florida holds that statutests
should be construed to harmonize with the
;ommon law, and statutes designed to alter the
:ommon law should do so in unequivocal terms.
,aw Offices of Harold Silver. P.A. v. Farmers
.ank & Trust Co. of Kentucky, 498 So. 2d 984
Fla. 1st DCA 1986). Key terms in both
!hapters 373 and 403, Florida Statutes, are
*est understood by reference to their common
The Reasonable-Beneficial Use Standard -
The "Reasonable-Beneficial Use" standard
governs the statutory allocation of water
among consumptive users in Florida.
373.223(1)(a). While statutorily defined
at Section 373.219(4), Florida Statutes,
this definition is best read in
conjunction with its common law origins.
The drafters of the Model Water Code
viewed adoption of this standard as an
effort to combine the best aspects of the
Eastern water law doctrine of Reasonable
Use and the Western water law doctrine of
prior appropriation. F. Maloney, R.
Ausness, J. Morris, A Model Water Code
with Commentary, 171 (Univ. Presses of
I. Beneficial Use The term beneficial use
appears in several places in Chapter 403,
Florida Statutes. e.g. S 403.021(1) &
(2), Fla. Stat. (1989). It forms the
basis for Florida's water body
classification system, 403.061(10),
Fla. Stat., (1989), and refers to the
uses which particular waters are best
suited for. Included among these uses are
potable water, shellfish harvesting,
recreational activities, agricultural
uses, and industrial water supply.
403.021(1) & (2), Fla. Stat. (1989).
Fla. Admin Code Rule 17-302.400.
1. At common law, the term beneficial use
developed under the Western prior
appropriation system. Water rights in
the West derived not from land ownership
but from the beneficial use to which
waters were put. Courts retained the
power to determine the relative
importance of particular uses among
competing appropriators. See Model Water
Code at 170 171.
2. In the absence of a statutory hierarchy
to make determinations regarding
competing uses for limited water
resources, Florida has adopted a public
interest test. 373.233, Fla. Stat.
(1989). The common law of beneficial
uses may prove useful in construing the
public interest in such cases. Florida
Water Law and Administration at 165. See
also Earl & Ankersen, Slicing the Water
Supply Pie: Competing Applications Under
Florida's Water Resources Act. 61 Fla.
Bar J. 87 (June 1987).
C. "Wholly-owned waters" Section
403.031(10), Fla. Stat. (1989) excludes
from the state's regulatory control
"waters owned entirely by one person
other than the state" that have no
possibility of discharge to other waters
or property. This raises the threshold
question of whether the statutory
reference is to the corpus of the water,
or to the streambed. In either case, the
ownership question can only be resolved
by reference to the common law. Compare
Village of Tequesta v. Jupiter Inlet
Corp., 371 So. 663, 672 (Fla. 1979)(no
ownership interest in flowing waters),
with Pounds v. Darling, 75 Fla. 125, 77
So. 666 (1918)(privately owned lake
bottom subject to exclusive use).
D. "Beyond Overlying Land" Section
373.223(2), Fla. Stat. (1989) grants the
Water Management District authority to
permit transportation of water "beyond
overlying land, across county boundaries,
or outside the watershed from which it is
taken." This provision abrogates the
common law rule which prohibited
transportation of waters beyond the
boundaries of riparian or overlying
owners of groundwater. See Kemp,
Interbasin Transfers of Water in Florida:
Common Law and Water Resources Act, 56
Fla. Bar J. 9 (Jan. 1982).
ORGANIZATION AND JURISDICTION OF
FLORIDA'S WATER MANAGEMENT DISTRICTS
Stephen A. Walker
West Palm Beach
ORGANIZATION AND JURISDICTION
FLORIDA'S WATER MANAGEMENT DISTRICTS
Stephen A. Walker
West Palm Beach
Florida's primary water resource protection agencies, the
Florida Land and Water Adjudicatory Commission (the
Commission), the Florida Department of Environmental Regulation
(the Department), and the five water management districts, have
comprehensive and often overlapping authority to address water
resource issues. This outline describes the organization, jurisdiction,
and role of the water management districts. The interrelationship
among the districts, the Department and the Commission is
discussed, highlighting some of the conflicts inherent in Florida's
water management decision making process.
I. Organization of the Water Management Districts
The organizational structure of a particular water
management district reflects the perceived needs of the geographical
area which it serves. General information about a particular district
can be found in Fla. Admin. Code Chapters 40A-1, 40B-1, 40C-1,
40D-1, and 40E-1. For a more up to date source of information
about current district organizational structure, governing board
members and key personnel see WATER MANAGEMENT
DISTRICTS REGfile system, VOL 9, Agency Directories. The
remainder of this section contains general information about district
organization and function.
A. Status as Special Districts While the water
management districts, pursuant to F.S. Chapter 373, are responsible
for effectuating broad state policies and purposes, technically they
are special taxing districts, not state agencies. See AGO 74-58.
This status permits revenue to be raised through ad valorem tax
levies. F.S. 373.503. It has been consistently held that such levies
are not impermissible state ad valorem taxes. Bair v. Central and
Southern Florida Flood Control District, 144 So.2d 818 (Fla. 1962);
St. Johns River Water Management District v. Deseret Ranches of
Florida, Inc., 421 So.2d 1067,1070 (Fla. 1982).
B. Boundaries and Headquarters F.S. 373.069 divides
e state into five water management districts. The boundaries
nerally follow surface water hydrologic divides, not political
undaries. Official headquarters are established by resolution.
S. 373.079(6). Currently the official headquarters of the districts
e as follows: Havana (Northwest Florida Water Management
district Live Oak (Suwannee River Water Management District),
Llatka (St. Johns River Water Management District), Brooksville
southwest Florida Water Management District), and West Palm
-ach (South Florida Water Management District).
C. Governing Boards Each district is governed by a
ilegial board, which for most purposes is the agency head. Board
-mbers are appointed by the Governor, confirmed by the Florida
nate, and serve four year terms. Each board is made up of nine
embers, except for the Southwest Florida Water Management
strict's which has eleven. Board members must be selected from
itutorily defined geographic areas. F.S. 373.073.
D. Basin Boards South and Southwest Florida Water
management Districts are further subdivided into basins. While
sins play an important role in the collection and distribution of ad
lorem taxes, they have traditionally not played an active role in
gulation. F.S. 373.0693-373.0698.
E. Executive Director Each governing board selects an
ecutive director, who functions as the chief executive officer for
- district. In most districts, the executive director has been
legated the responsibility and authority to hire the remaining staff.
F. General Counsel Each district has a general counsel.
ie general counsel may report directly to the board or to the
ecutive director. The larger districts also have an inside legal staff
rich reports to the general counsel. Depending upon the
eferences of the board, some districts also have separate board
unsel. F.S. 373.079(5).
II. Water Management District Jurisdiction
A. Water Resource Based Jurisdiction The water
management district's jurisdiction under F.S. Chapter 373 differs
fundamentally from the Department's jurisdiction under F.S.
Chapter 403. All "waters in the state" are subject to regulation
under the provisions on F.S. Chapter 373. F.S. 373.023(1).
1. "Waters in the State" The planning and
regulatory programs in F.S. Chapter 373 are based upon legal
theories evolved from the common law of water allocation and use.
Central to these theories is the concept that all water, in what ever
form or place manifested, is part of the same hydrologic cycle. Thus
of "waters in the state" is all encompassing:
Water or waters in the state means any and all water on or
beneath the surface of the ground or in the atmosphere,
including natural or artificial watercourses, lakes, ponds, or
diffused surface water and water percolating, standing, or
flowing beneath the surface of the ground, as well as all
coastal waters within the jurisdiction of the state. F.S.
2. "Waters of the State" The water resource
protection provisions of F.S. Chapter 403 have their roots in
common law concepts of sovereign ownership and navigability of
streams and watercourses. F.S. 403.031(12) defines "waters of the
state" beyond its common law roots, however, concepts such as
"landward extent of waters of the state" still serve to limit
department jurisdiction. Fla. Admin. Code Rule 17-301.200(4).
3. Conclusion There are no water resource based
limitations on jurisdiction imposed under F.S. Chapter 373.
B. Activity Based Jurisdiction While F.S. Chapter 373
does not limit jurisdiction on a resource basis, only certain activities
1. Consumptive Use of Water
a. Regulation of the consumptive use of
iter has been preempted to the exclusive jurisdiction of the state
id delegated to the water management districts. F.S. 373.217.
b. The statutory scheme of water allocation
is been upheld by the Florida Supreme Court. Village of Tequesta
Jupiter Inlet Corporation, 371 So.2d 663 (Fla. 1979), cert. den., 444
.S. 965. See F.S. 373.217(3), creating an exception for facilities
Ailing under the Florida Electrical Power Plan Siting Act.
c. F.S. Chapter 373 has been held to be the
imary regulatory program applicable to well field development, to
e exclusion of F.S. Chapter 380. Pinellas County v. Lake Padgett
nes, 333 So.2d 472 (Fla. 2nd DCA 1976).
d. All consumptive uses of water may be
bject to regulation under F.S. 373, Part II, except for individual
,mestic uses. F.S. 373.216, F.S. 373.219(1).
e. The governing board of each district has
scretion to tailor the program to best protect the water resources
the district. F.S. 373.219(1). District rules set forth any additional
emptions or exclusions that apply. See Fla. Admin. Code Chapters
IA-2, 40B-2, 40C-2, 40D-2, 40E-2.
2. Management and Storage of Surface Waters,
orm Water Management and Isolated Wetlands.
a. Regulation of the management and
)rage of surface waters has not been preempted to the state or the
iter management district. Thus the districts, the department and
cal governments have regulatory programs which substantially
b. Construction, alteration, operation and
maintenance of storm water management systems, dams,
ipoundments, reservoirs, appurtenant works and works may
quire a permit under F.S. Chapter 373, Part IV. F.S. 373.413,
c. Statutory exemptions exist for
agricultural closed systems and unspecified agricultural, silvicultural,
floricultural or horticultural activities, but are narrowly construed.
See Pal-Mar Water Management District v. Board of County
Commissioners of Martin County, 384 So.2d 232 (Fla. 4th DCA
1980); Corporation of the President of the Church of Jesus Christ of
Latter-Day Saints v. St. Johns River Water Management District, 489
So.2d 59 (Fla. 5th DCA 1986); Booker Creek Preservation, Inc. v.
Southwest Florida Water Management District, 534, So.2d 419 (Fla.
5th DCA 1988), rev. denied, 542 So.2d 1334 (Fla. 1989).
d. The governing board of each district has
discretion to tailor the program to best protect the water resources
of the district. F.S. 373.406(5), 373.413(1). District rules set forth
any additional exemptions or exclusions that apply. See Fla. Admin.
Code Chapters 40A-4, 40B-4, 40C-4, 40D-4, 40E-4.
e. Impacts on isolated wetlands are not
regulated separately, but only in conjunction with the activities
described in paragraph b. above.
III. Relationship between the Commission, the Department, and
the Water Management Districts from a District Perspective.
In the years since F.S. 373 was enacted, the Department and
the Commission have filled supervisory, appellate review, and policy
making rolls for the water management districts. Due to the
necessarily different perspectives that these agencies have, coupled
with the differing needs of the five water management districts,
policy guidance from the state has been sporadic at best and
conflicting at worst. The remainder of this outline cites the
statutory oversight authorities in effect today, and provides some
examples of current issues.
A. The Department's Statutory Oversight Authority
1. General Supervision The Department is
authorized to exercise general supervisory authority over the water
management districts. F.S. 373.026(7). The scope of this authority
has never been formally defined by rule or otherwise.
2. Policy Making and Review The Department
as the responsibility to adopt state water policy, consistent with the
tate Comprehensive Plan, which establishes goals, objectives, and
guidance for the districts in the implementation of F.S. 373. F.S.
73.026(10). Further, the Department has the ultimate
-sponsibility for developing the State Water Use Plan and the
'lorida Water Plan, which the districts are to implement. F.S.
73.036, 373.039. Further, the Department has exclusive jurisdiction
3 review district rules for consistency with state water policy. F.S.
3. Appellate Review The Department can
ritiate review of any district rule or order by filing a petition for
eview with the Commission. F.S. 373.114(1). Further, if a party
ther than the Department initiates such review, the rules of the
commission require the Department to prepare a recommendation
or the Commission's consideration. Fla. Admin. Code Rule 42-
'.013(7). The purpose of the review is to ensure consistency with
7S. Chapter 373.
B. The Commission's Statutory Oversight Authority
1. General Supervision The Commission has no
statutory authority to supervise the water management districts.
2. Policy Making and Review The Commission
ias no statutory authority to engage in rulemaking to implement the
provisionss of F.S. Chapter 373. The Commission can and does
establish policy under F.S. Chapter 373 on a case by case basis in its
appellate review role. See F.S. 373.114(1)(c).
3. Appellate Review The primary role of the
Commission vis a vis the water management districts is appellate
review. F.S. 373.114(1), 373.217(1). Under these provisions, upon
petition by the Department or a party to the proceeding below, the
Commission may review any district rule or order for consistency
with F.S. Chapter 373. Petitions for review must be filed within 60
days of final agency action, unless the issues raised are of regional
or statewide significance. F.S. 373.114(1)(b). The Commission is
empowered to order a district to initiate rulemaking, rescind or
modify an order, or remand to the district for further proceedings.
C. Complimentary and Conflicting Missions Current and
1. Discharge Water Quality Considerations in
Consumptive Use Permitting Zellwood Drainage & Water Control
District vs. St. Johns River Water Management District, 11 FALR 3324
(1989). This rule challenge highlights the potential overlap between
the Environmental Regulation Commissions standard setting
authority, the Department's authority to set discharge limitations,
and the district's authority to control the quality of water discharged
from lands subject to consumptive use permitting requirements.
The hearing officer found that the district had sufficient authority to
impose numerical limits on nutrients discharged from an agricultural
2. Waste Water as an Allocable Water Resource -
The districts are under a requirement to designate critical water
supply areas by rule by November 1, 1991. Fla. Admin. Code Rule
17-40.401(5). Once designated, waste water reuse will become
mandatory within the designated areas. District attempts to increase
the available supply of treated waste water are likely to complicate
permitting for waste water treatment facilities.
3. Water Allocation in Areas of Groundwater
Contamination F.S. 373.309(5) gives the department authority to
control consumptive uses in areas of known ground water
contamination. As clean water resources become more scarce, the
department's role in consumptive use permitting will inevitably
increase, leading to additional overlap in jurisdiction and permitting.
4. Induced Movement of Contaminants Current
water management district regulations control movement of
contaminants induced by groundwater withdrawals. Department
groundwater permits can further constrain the amount of ground
water available for allocation.
5. Aquifer Storage and Recovery Systems -
Department permit requirements make many of these systems
infeasible. The Department and the districts must develop a
strategyy to make this technology economically viable and
6. Storm Water Quality Control Federal NPDES
;torm water regulations, Department storm water regulations, and
district surface water management and SWIM requirements must be
harmonized. Particular attention should be paid to SWIM
procedural requirements. Balancing flood control, water supply,
environment and water quality needs will be harder to achieve as
water quality requirements become more stringent. Funding needed
for the massive storm water retrofit projects that will inevitably be
developed through SWIM and Local Comprehensive Plans will
overwhelm most local governments unless the Department and
districts develop creative regulatory, technical and financial
7. Wetland Definitions The Department and
districts will continue to struggle towards common ground on
8. Dredge and Fill Dredge and fill should be
delegated to the districts with sufficient flexibility to enable the
program to be incorporated into F.S. Chapter 373, Part IV permit
requirements. Current programs are incompatible.
OVERSIGHT AND REVIEW OF
WATER MANAGEMENT DISTRICT ACTIONS
Daniel H. Thompson
OVERSIGHT AND REVIEW OF
WATER MANAGEMENT DISTRICT ACTIONS
Daniel H. Thompson
This outline reviews basic authorities of
the Florida Department of Environmental
Regulation (Department) in relationship to
the various water management districts
(districts) regarding water quality and water
quantity. The outline then discusses the
scope of review available to the Department
of actions by districts under F.S. Chapters
403, 373 and 120. Private party remedies are
also briefly discussed.
I. General Scope of Authority of the
Department and the Districts
A. F.S. Chapter 403 was created by Chapter
67-436, Laws of Florida, which created the
Florida Air and Water Control Commission, a
predecessor agency to the Department, and
repealed all rulemaking jurisdiction over air
and water pollution matters by other agencies
within the state, specifically including
districts. As subsequently amended, Chapter
1. Establishes the Department as "the
state water quality protection agency," in
2. Directs the Department to exerciseie
general supervision over the administration
and enforcement of the laws, rules and
regulations pertaining to air and water
pollution," in F.S. 403.061(6);
3. Directs the Department to "adopt a
comprehensive program for the prevention,
abatement and control of pollution of the
waters of the State," in F.S. 403.061(10);
4. Empowers the Department and its
"agents" with "general control and
supervision over underground waters, lakes,
rivers, streams, canals, ditches and coastal
waters under the jurisdiction of the state
insofar as their pollution may affect the
public health or impair the interest of the
public or persons lawfully using them," in
B. F.S. Chapter 373 was created in Chapter
72-299, Laws of Florida, as "The Water
Resource Act of 1972."
1. The Act's purpose was to provide a
comprehensive focus under the aegis of the
Department for the state's water regulatory
efforts, which had previously been carried
out by a fragmented system of regional and
localized water management and water
regulatory districts and the State Board of
2. The Act consolidated into Chapter 373
three major resource management functions:
the permitting of consumptive uses of water,
the regulation of wells, and the regulation
of the management and storage of surface
3. The Act subjected '[a]ll waters of
the state to regulation under the
provisions of this chapter unless
specifically exempted by general or special
law." F.S. 373.023(1).
4. The Act divided the State into five
water management districts, at F.S. 373.069.
5. Governing boards were established for
all districts at F.S. 373.073 and given the
authority at F.S. 373.083 to enter into
contracts, sue or be sued, appoint agents and
employees, issue orders, and make surveys and
investigations of water supply and resources
of the district.
C. The Water Resources Act placed the
Department in a supervisory role with regard
to the water management districts. The
following statutory language excerpts
1. F.S. 373.016(3), which states:
It is the intent of the
Legislature to create in the
Department the power and
responsibility to accomplish the
management, and control of the
waters of the state and with
sufficient flexibility and
discretion to accomplish these
ends through delegation of
appropriate power to the 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 governing board
of a water management district.
2. F.S. 373.026, which states:
The Department shall be
responsible for the
administration of this chapter at
the state level. However, it is
the policy of the state that, to
the.greatest extent possible, the
department may enter into
interagency or interlocal
agreements with any other state
agency, any water management
district, or any local government
conducting programs related to or
materially affecting the water
resources of the state. In
addition to its other powers and
duties, the department shall, to
the greatest extent possible:
(7) Exercise general
supervisory authority over all
water management districts. The
department may exercise any power
herein authorized to be exercised
by a water management district.
3. F.S. 373.103, which states:
In addition to the other powers
and duties allowed it by law, the
governing board of a water
management district may be
specifically authorized by the
(1) Administer and enforce all
provisions of this chapter,
including the permit systems
established in parts II
[consumptive uses], III [wells],
and IV [management and storage of
surface waters] of this Chapter,
consistent with state water
D. The traditional distinction between the
Department and the water management districts
was that the Department had the
responsibility for regulating water quality,
the districts water quantity.
1. This distinction was analyzed in an
Attorney General Opinion, AGO 75-16, which
recognized the Department's primary
responsibility over water quality, but also
held that districts cannot ignore water
a. The opinion stated that "it would be
inappropriate" for districts to "authorize by
permit something that would result in the
lowering of water quality," issues since they
are required to prevent harm to water
b. The opinion further stated, however,
that such consideration should be
accomplished by means of either certification
of compliance with water quality through
Department permits or delegation to the
districts of water quality regulation
authority from the Department.
E. The importance of water quality in
Chapter 373 permitting has steadily increased
over the years. There are a number of
reasons for this, including:
1. The Department has delegated to the
districts the authority to consider water
quality impacts in district review of Chapter
2. The Stormwater Management Act of
1989, Chapter 89-279, Laws of Florida, made
two changes that more directly bring water
quality issues into Chapter 373:
a. The Department was given authority in
F.S. 373.026(10) and 403.061(33) to establish
"a state water policy, which shall provide
goals, objectives, and guidance for the
development and review of programs, rules,
and plans relating to water resources."
"State water policy" is defined in F.S.
373.019(16) and 403.021 to include the
Department's authority under F.S. 403.061,
which includes the authority to develop and
enforce water quality standards.
b. Stormwater management systems became
regulated under management and storage of
surface water programs. As stated in F.S.
373.418(1), that regulation incorporates "all
existing requirements contained in or adopted
pursuant to chapters 373 and 403," which
would include water quality regulation.
3. F.S. 373.016(1)(g) states legislative
policy "to provide the public policy set
forth in F.S.403.021," and has been construed
in an order of the Florida Land and Water
Adjudicatory Commission (FLAWAC) to prohibit
a defendant in a Chapter 373 consent order
from being exempted from compliance with
state water quality standards. Hawley v. St.
Johns River Water Management District and
Zellwood Drainage and Water Control District,
12 FALR 3049 (FLAWAC 1990).
F. There is authority that suggests that the
districts have water quality authority under
Chapter 373 independent of the Department.
1. A Final Order to a St. Johns River
Water Management District rule challenge
suggests that districts have independent
authority to establish rules regulating water
pollution under Chapter 373, although the
order is not clear as to the role of the
Department's, supervisory authority in this
process. Zellwood Drainage and Water Control
District v. St. Johns River Water Management
District, 11 FALR 3324 (DOAH 1989).
2. In footnote 3 to Prugh v. St. Johns
River Water Management District and Five
Masters Corporation, 12 FALR 3049, 3051
(FLAWAC 1990), FLAWAC "notes" in dictum that
because of the 1989 stormwater legislation,
Department delegation is no longer necessary
for a district to issue a Chapter 373
stormwater permit that contains Chapter 403
water quality issues. Compare Perry et al v.
City of Jacksonville and Department of
Environmental Regulation Case Nos. 90-001 and
90-002 (FLAWAC Final Order, February 14,
1991), holding at p.7 that the districts have
"no jurisdiction" to administer and enforce
Part IV of Chapter 373, which includes the
same stormwater legislation, "absent specific
authorization by the Department."
3. The term "water resources of the
district," which appears in numerous places
in chapter 373, has been construed to
authorize districts to regulate water quality
as well as water quantity. See Caloosa
Property Owners Association v. South Florida
Water Management District, 5 FALR 1719-A
4. The districts have independent
authority, without the need for delegation,
over dredging and filling in isolated
wetlands. That authority, in F.S.
373.414(2), suggests, albeit in a negative
manner, that the districts can look at water
5. The SWIM legislation, at F.S. 373.451
through 373.4595, includes general references
to the improvement of the water quality of
the state and provides the districts with the
responsibility for classifying and
implementing programs to restore degraded
waters to a class III classification or
6. F.S. 403.927 authorizes the
districts, rather then the department, to
regulate the impacts of agricultural water
management systems on groundwater quality.
II. Delegation of Department Authority to
A. F.S. 373.016(3), 373.026 and 373.103,
quoted above, give the Department both the
authority and the direction to delegate water
management programs to the districts.
1. The Department has delegated
the vast majority of programs available under
Chapter 373 to the districts, and some
programs under Chapter 403, such as water
quality to all districts and dredge and fill
to the St. Johns River Water Management
2. Most delegations are listed in FAC
Rule 17-103.040. In addition to the rule
listings, details of delegations are usually
formalized in interagency agreements and
3. The Department is currently reviewing
its delegation procedures with the ultimate
aim of making them clearer to discern.
B. The authority to delegate or revoke
delegation has the potential of being a very
powerful tool with which the Department can
exercise supervision over the districts. The
Department has primarily undertaken
supervisory authority through negotiating
terms of delegation in interagency
agreements. It has not used revocation as a
supervisory tool, and revocation is not
without its limitations and ambiguities, as
indicated by the following:
1. There are no specific statutory
criteria, other than the legislative
direction to delegate, upon which to
determine whether delegation is appropriate,
nor are any criteria or procedures explicitly
set forth in the law for how delegation
should be revoked. The Department could use
rulemaking and cancellation clauses in
delegation agreements as a basis for
revocation. The Department could then urge
that revocation is within its discretionary
2. F.S. 373.046 states that interagency
agreements are subject to the provisions of
F.S. Chapter 120. An argument could thus be
made that the Department would have to use
the license revocation procedures in F.S.
120.60(7) to revoke delegation. Were that
the case, the Department would probably have
to prove that the district has failed to
fulfill either its statutory responsibilities
or those set out in the delegation.
3. The Department is currently
considering rulemaking on delegation, which
may establish procedures for delegation and
revocation. Since the Department has yet to
force a revocation, however, any existing or
potential procedures remain untested.
4. More problematic is that if the
Department were to revoke a major district
program, the Department would suddenly assume
major responsibilities without having in
place sufficient staff, funding or a
regulatory system (e.g., rules). The
revocation alternative, therefore, is a
drastic one, and may not well serve the
ability of either the Department or the
districts to carry out their statutory
5. An alternative to revocation might be
for the Department to try to act independent
of a district regarding a particular matter
before the district. Arguably this is
allowed by F.S. 373.026(7), which authorizes
the Department to exercise any power
authorized to be exercised by a water
management district. The law provides no
specifics on how this would be done, nor has
the Department attempted to do so without
concurrence from district. This approach
seems more likely to be appropriate where a
district has failed to act than when the
Department disagrees with the action. The
authority to review individual decisions,
however, may be limited by the FLAWAC review
procedures, as discussed in Part IV.
6. One potential way to eliminate these
uncertainties and thereby utilize delegation
for effective supervisory purposes would be
to have the interagency agreements,
delegation orders and rules reviewed or
rewritten where necessary to provide specific
oversight procedures and criteria both for
revocation of delegation and for overfiling.
This would be further aided by the
development of state water policy, as
discussed below in Part III.
7. The extent, if any, to which private
parties have the ability to challenge
delegations is yet to be tested. While
Chapter 120 may provide a legal vehicle,
standing is questionable.
C. A further complication involving
delegation is a position taken by some
districts that language in Chapter 373 gives
the districts independent authority to
implement some or all programs without the
need for delegation from the Department.
1. This argument is inspired by the
statutory use in Chapter 373 in many places
of "the governing board" by itself or "the
governing board and the Department." For
example, Section 373.413 authorizes "the
governing board or the department" to require
permits for management and storage of surface
waters. The argument is that the statutory
requirements for delegation are in essence
superseded by the more specific language in
individual substantive statutes. Osceola
County v. St. Johns River Water Management
District, 486 So.2d 616 (Fla. 5th DCA 1986),
appears to support this argument. The case
says in dicta that in relation to the
Department the districts "are both
subordinate and independent," and that "many
of the powers and duties granted to the water
management districts appears to be
independent" of the Department. Id. at
618-619. The Zellwood DOAH order and Pruqh
FLAWAC order would seem to further the
2. The counter to the argument is that
Osceola County did not address this issue
specifically, that the independent authority
relates to the existence of the districts and
not to their authority to operate substantive
programs, and that any other reading of the
law would in essence render the statutory
delegation scheme meaningless. In this
regard F.S.373.103 discusses the districts'
programmatic authorities under the title
"Powers which may be vested in the governing
board at the department's discretion." There
has been no closure on this issue.
D. The enactment of several amendments
subsequent to the passage of Chapter 373
appears to give the districts direct
authority over certain programs, presumably
without any delegation requirements because
none were stated in the implementing
statutes. These activities would not
necessarily be thereby exempted from
Department review, however, as will be
1. F.S. 373.414 appears to give a
district independent authority to regulate
"small isolated wetlands which are not within
jurisdiction of the department," provided the
Department has delegated the district "the
responsibility for the administration of its
stormwater rule." Booker Creek Preservation,
Inc., vs. Southwest Florida Water Management
District, 534 So.2d 419 (Fla. 5th DCA 1988),
holds that jurisdiction is exclusive with the
2. F.S. 373.451 through 373.4595, the
SWIM provisions, place the Department in the
role of reviewing SWIM plans rather than
delegating SWIM authority to the districts in
the first instance.
3. F.S. 403.927 authorizes the
districts, rather than the Department, to
regulate the impacts of agricultural water
management systems and their discharge on
E. There are some activities that the
districts can do of a nonprogrammatic nature
that clearly do not require delegation from
the Department. There activities relate
primarily to establishing and operating the
various districts, which are creatures of
statute rather than delegation. The
following are examples.
1. The districts are independently
created in F.S. 373.069.
2. The governing boards of the districts
are created in F.S. 373.073.
3. The governing boards have specific
original authority in F.S. 373.083 to
contract, hire and fire, sue, and issue
4. The governing boards have authority
to construct water management works. F.S.
5. The districts have independent taxing
authority, as discussed in Part V.
III. State Water Policy
A. The Department has the responsibility
under both F.S. 403.061(33) and 373.026(10)
Adopt by rule a state water
policy, which shall provide goals,
objectives and guidance for the
development and review of program
rules and plans relating to water
resources. This state water
policy shall be consistent with
the State Comprehensive Plan and
may include such department rules
as are specifically identified in
B. The Department has developed a state
water policy at FAC Chapter 17-40.
1. The policy includes provisions
assuring adequate water supply, encouraging
conservation and reuse, encouraging natural
water management systems, and protecting
2. Each district is required to prepare
its own water management plan for the next 20
years, and to update it every five years.
3. There are some specific regulatory
criteria that were added in August 1990:
a. In FAC Rule 17-40.120 the policy
incorporates by reference state water quality
standards, FAC Chapter 17-3; surface water
quality standards, FAC Chapter 17-302; and
the Surface Water Improvement and Management
(SWIM) Act, FAC Chapter 17-43.
b. The policy has specific criteria for
evaluating stormwater management programs,
including requirements for 80 percent
reduction in pollutant loading, or 95 percent
in Outstanding Florida Waters.
C. Planned revisions for the state water
plan this year include greater focus on the
program delegation process; and greater
specificity as to water policies regarding
natural systems, ground and surface water
quality, and water use.
D. While not a procedure to implement
supervisory review in itself, state water
policy creates a very powerful tool for
1. Under F.S. 373.114(1), discussed
further in Part IV, the Department can
initiate reviews of permits or orders for
"consistency with the provisions and purposes
of" Chapter 373.
2. Since the chapter includes state
water policy, it is an appropriate review
3. F.S. 373.114(2), also discussed in
Part IV, is more direct, saying that
Department review of district rules is
undertaken "to ensure consistency with the
state water policy as set forth in the rules
of the department."
IV. FLAWAC (Florida Land and Water
Adjudicatory Commission) Review
A. FLAWAC consists of the Governor and
Cabinet Officers, and is created in
F.S.380.07 from the Administration
B. FLAWAC review of rules and orders under
F.S. Chapter 373 is set forth in F.S.
373.114, which contains the clearest
explanation of how the Department exercises
its general supervisory authority over the
1. F.S. 373.114(1) gives FLAWAC
"exclusive authority to review any order or
rule of a water management district, other
than a rule of internal procedure, for
consistency with the provisions and purposes"
of Chapter 373.
a. The review can be initiated either by
the Department or by a party to the
proceeding within 20 days of the decision, or
by "any affected person" within 60 days if
the rule or order "has statewide or regional
b. The concept of "any affected person"
was broadly construed in Matter of Surface
Water Permit, 515 So.2d 1288 (Fla. 4th DCA
1987), to include the Florida Audubon
Society. The Society now cites the case,
also known as Challancin, to establish
standing. FLAWAC has consistently assented to
c. FLAWAC has been generous as to who
constitutes a party to a FLAWAC review
proceeding. See Re: Adoption of Surface
Water Improvement and Management (SWIM) Plan
for Lake Okeechobee, South Florida Water
Management District, 11 FALR 4286 (FLAWAC
1989), in which the Dairy Association was
considered to be a party to a FLAWAC appeal
by the Florida Audubon Society of the Lake
Okeechobee SWIM Plan because the Association
had participated in the development before
the Governing Board of the SWIM Plan and the
District recognized that the Plan would
directly affect the practices of the
d. FLAWAC has also tended to be generous
in its consideration of what types of actions
have statewide or regional significance.
See, e.g., Prugh, supra.
e. FLAWAC must hear the matter within 60
days, and can require the district to
initiate proceedings to amend or repeal a
rule; or rescind, modify or remand an order.
2. Under F.S. 373.114(2) the Department
also has "exclusive authority to review rules
of the water management districts, other than
rules relating to internal management, to
ensure consistency with that state water
policy as set forth in the rules of the
department." The department must initiate
such a review within 30 days after adoption.
The statute does not say, however, how the
a. The Department has taken the position
that the issuance of a letter by the
Department to the district is sufficient to
initiate review. The Department has used
such a letter to require a district to
initiate rulemaking to amend or repeal a
rule. Eventually the Department would have
to issue an order if the district did not
comply. There are no clear time frames for
b. An "affected person" can also ask,
within 30 days, for a consistency hearing
before the Department, whether or not the
Department has itself initiated such review.
c. An order of the Department to amend
or repeal a rule can be appealed by a party
or the district to FLAWAC.
d. Unlike F.S. 373.114(1), F.S.
373.114(2) does not say what FLAWAC can do
with the appeal, although it is reasonable to
assume that the remedies are the same.
C. Procedures for exercising FLAWAC review
are contained in FAC Chapter 42-2. The
chapter sets time frames for filing and
acting on reviews. A significant Department
responsibility is contained in FAC Rule
42-2.013(7), but not in the statute, to
submit a written recommendation the merits of
any request for review. As a result, the
Department plays an important role in the
review process even if it does not initiate
D. From the Department's perspective, the
obvious limitation on the Department's
supervisory authority under F.S. 373.114 is
that the Governor and Cabinet, rather than
the Department, have ultimate supervisory
E. The Department has historically been very
reluctant to exercise its petitioning
authority. Virtually all of its
participation, has been in the form of making
recommendations when others appeal.
1. As a result, there has been no body
of case law to determine what deference, if
any, FLAWAC or the reviewing appellate courts
should give to Departments orders, petitions
or recommendations. Arguably, because of its
supervisory role deference should be given.
2. Deference is further enhanced because
of the Department's responsibility for
setting water policy, as explained above in
a. An order by the Department
interpreting a rule based upon state water
policy should be given great deference, under
the general principal in administrative law
that an agency's interpretation of its own
rules should be given great deference. See,
e.g., P.W. Ventures. Inc.. v. Nichols, 533
So.2d 281 (Fla. 1988).
b. It is clear that compliance with
state water policy is the criteria for review
under F.S. 373.114(2), since that provision
makes specific reference to the policy.
c. There maybe more ambiguity with
regard to deference to the Department in a
F.S. 373.114(1) review, since that review is
"to ensure consistency with the provisions
and purposes of this chapter." Since the
chapter includes state water policy, it
should remain a criteria for review.
However, since Chapter 373 can reasonably be
read to include other water resource issues,
which issues may sometimes appear to be in
conflict, this review could consider other
factors as well.
d. With the recent changes and the
planned upcoming changes to state water
policy, the Department presumably is and will
be even more so in a better position to
exercise both its review and recommendations
responsibilities under F.S. 373.114.
e. As state water policy adds more
express regulatory criteria, such as the
recent incorporation by reference of state
water standards, review criteria for district
rules and orders should become more clear.
f. State water policy, therefore, when
considered in conjunction with FLAWAC review,
has the potential of going from what was
historically an insignificant aspect of the
Department's regulatory structure to becoming
a major tool to be used both by the
Department and third parties to review and
challenge district actions.
v. SWIM Plan Review
A. In 1987 the Legislature created the
Surface Water Improvement and Management
(SWIM) Act, at F.S. 373.451-373.4595. The
purpose of the Act is to require the
districts to develop and coordinate
implementation management plans and programs
for designated priority water bodies to
protect and improve surface waters within
B. Each year the Legislature may appropriate
funds for these purposes and place the funds
in the SWIM trust fund. The Department
administers the trust fund and audits each
district's SWIM programs.
1. The Department has a statewide
coordination role for research, rulemaking,
and approval of expenditures from the trust
2. Each district must cooperate with the
Department and other agencies in the
development both of the lists of water bodies
and the plans for them.
3. The Department has the responsibility
for developing criteria for the lists, which
it has done in FAC Chapter 17-43, and also
for approving the lists. F.S. 373.453.
4. The districts must also cooperate
with the Department and other agencies in the
development of plans. The agencies are all
given at least 60 days to provide comments on
plans prior to governing board approval.
F.S. 373.455. The Department's initial
review criteria are based upon whether the
plans are cost effective, have adequate
funding, and "will significantly improve or
protect water quality and associated natural
5. After consideration of all comments,
the district governing board approves a plan,
and then must resubmit it to the Department
within 15 days for a second review. F.S.
a. The Department then has "the
exclusive authority to review the plan to
ensure consistency with state water policy
and the State Comprehensive Plan," and must
submit that determination within 30 days to
the governing board.
b. If the Department determines the plan
to be inconsistent, the governing board must
either make changes or explain in the plan
the reasons why the changes have not been
c. The plan then constitutes final
agency action reviewable pursuant to the
FLAWAC procedures in F.S. 373.114.
d. In the Lake Okeechobee Swim Plan
Final Order, supra, FLAWAC held that the
scope of F.S. 373.114 review for a SWIM Plan
was as an order rather than a rule; and that
the time for review began in the particular
proceeding with the vote of the District's
Governing Board, since the document had not
been filed with the Clerk.
C. While the Department has review
responsibilities during SWIM Plan
development, the major tool for the
Department's enforcing its programmatic
supervision, as with other areas, is through
the FLAWAC appeal process.
1. Therefore, as with other FLAWAC
appeals, Department rulemaking here, not
only state water policy rules, but also SWIM
criteria rules plays a vital role in the
2. There are additional direct
supervisory authorities, however, in the
approval process for the lists of SWIM
priority water bodies and in disbursements of
SWIM funds. Disbursement of SWIM funds is
discussed further in the next part.
VI. Review of District Expenditures
A. The Department has specific
responsibility to review certain expenditures
of the districts.
1. In addition to "general supervisory
authority," the Legislature sometimes
provides ad hoc guidance on what can be
reviewed and the extent of the review,
although that guidance is incomplete.
2. Generally speaking, ad hoc review
exists where state money is transferred first
to the Department, usually with instructions
as to its use, before disbursement to the
Districts. At issue here is the extent of
the Department's oversight responsibility.
3. More problematic is the extent to
which any oversight responsibility exists
over funds the Districts obtain directly
through their ad valorem taxing authority.
Bt. To facilitate the achievement of SWIM Act
objectives, F.S. 373.459 creates within the
Department the SWIM Trust Fund.
1. The Department is given express
responsibility for administering the fund,
with specified criteria for doing so.
2. Further criteria are spelled out in
Florida Administrative Code Chapter 17-43,
which also details application contents and
procedures for submittal to the Department.
3. A contentious issue that has arisen
between the Department and the districts is
over the extent of the Department's oversight
authority--i.e., is the Department performing
an essentially ministerial function, or does
the Department have the responsibility to
oversee how the money is spent?
4. While the issue has not been
litigated, a strong argument could be made
that the Department has significant oversight
authority, not only because the legislature
gave the Department responsibility for
disbursing funds, but also because of the
general oversight powers vested in the
Department generally over the water
5. The Department has been exercising
oversight authority by requiring approval of
detailed project plans, scope of work, and so
forth, since the SWIM Plans themselves may
not contain these details.
C. An additional fund created within the
Department for district expenditures is the
Water Management Lands Trust Fund, which
provides land acquisition moneys for the
so-called "Save Our Rivers" program. F.S.
1. Each district is required to file a
five-year acquisition plan and report with
2. The statute sets out various criteria
for what lands can be purchased, and states
that "the Secretary [of the Department] may
withhold moneys for any purchase that is not
consistent with the 5-year plan or the intent
of this act or that is in excess of appraised
value." The decision can be appealed to
3. An analysis of the extent of
supervisory authority would be analogous to
that for SWIM.
D. There are other legislative
appropriations that are made to the
Department for district use. See, e.g., F.S.
373.498, establishing the Water Resources
Development Account in the General Revenue
Fund for the purpose of assisting district
efforts for the protection, creation,
conservation, or development of water
1. The extent of oversight raises a
discussion similar to the one previously
2. In addition, the issue raised is one
that goes beyond the Department-district
relationship, and pertains to legislative
appropriations in general: to what degree
does a state agency have oversight authority
over appropriations made by the Legislature
for specific programs where the money must
first pass through that state agency?
3. A reasonable reading of Chapter 373
would indicate that because of the general
oversight responsibilities of the Department
toward the districts, any such appropriations
would have to be considered as being within
the purview of that statutory responsibility.
E. There is an argument that Department
oversight over District expenditures is
constitutionally limited, at least when ad
valorem are involved.
1. Under Fla. Const. Art. VII, S.9, the
water management districts are authorized to
levy ad valorem taxes. The State does not
have this authority. Art. VII, S.(1)(a).
2. In Deseret Ranches of Florida, Inc.,
v. St. Johns Water Management District, 406
So.2d 1132, (Fla. 1st DCA 1981), reversed in
part on other grounds, 421 So.2d 1067 (Fla.
1982), the court held that the districts
could collect ad valorem taxes because they
were not state agencies. The court
recognized that the supervisory
responsibilities of the Department do not
make district functions exclusively state
ones, since the districts have local
functions as well, all of which interrelate
and must be overseen by the state "to assure
that they do not operate at cross purposes."
403 So.2d at 1140.
3. Curiously, an argument has been made
that the Department is limited in its
oversight--otherwise, districts would become,
in essence, agents of the State, and thereby
lose their ad valorem taxing authority.
Apparently this argument is buttressed by
footnote 11, Id. at 1140, which notes that
only the districts can levy the millage, and
"only the districts, and not the Department,
determine whether, or in what amount, such
levies will be made."
4. This argument seems to confuse the
ability of the districts to raise taxes with
the authority of the Department to exercise
oversight over how the money is spent.
Desert clearly recognizes the Department's
supervisory authority in Chapter 373.
5. What the footnote logically means is
that the Department can supervise but it
cannot use its authority to collect such
revenues for itself, nor can it tell the
District how much it must levy. Thus, if the
Department were to revoke delegation for a
program, it could not use the district levies
to operate the program. To argue that the
case excludes the Department from any fiscal
oversight at all seems to fly in the face of
the very language of the decision.
vII. F.S. Chapter 120
A. A final mechanism for supervision and
review may be found in F.S. Chapter 120. The
Department has never exercised any authority
under this statute to challenge district
decisions, but an argument could be made that
the Department would have standing to
challenge a district rule or order as a party
whose substantial interests would be affected
by the decision, on the basis of the
Department's supervisory authority.
B. Types of review could include:
1. Challenging a proposed district rule
as an "invalid exercise of delegated
legislative authority" pursuant to F.S.
2. Challenging an existing rule based
upon similar grounds pursuant to F.S. 120.56.
3. Directly appealing an adopted rule to
a district court of appeal within 30 days
pursuant to F.S. 120.57.
C. Possibly except for challenges to
existing rules, the law is unclear as to
whether further review would be available
for the Department outside of FLAWAC.
1. An argument could be made that the
chapter 120 process is limited by F.S.
373.114, which gives FLAWAC "exclusive
authority" to review rules or orders to
ensure consistency either with Chapter 373 or
state water policy, depending on the type of
2. The counter argument is that the
legal criteria for chapter 120 review i.e.,
the invalid exercise of delegated legislative
authority is different than the criteria
for FLAWAC review, and therefore FLAWAC
exclusivity does not apply.
3. Furthermore, F.S. 373.114(1)(d)
itself provides that "[a] request for review
[before FLAWAC] under this Section shall not
be a precondition to the seeking of judicial
review pursuant to S.120.68 or the seeking of
a administrative determination of rule
invalidity pursuant to S.120.56."
4. Since there has been no litigation in
this area, the matter remains an open
D. Private parties have been able to
challenge proceedings prior to FLAWAC review
under F.S. 120.57. In the event of FLAWAC
appeal, the FLAWAC order then becomes final
agency action subject to review under F.S.
120.68. Griffin v. St. Johns River Water
Management District, 409 So.2d 208 (Fla. 5th
THE WHO, WHAT AND WHEN IN WATER USE
PERMITTING; THE APPLICANT'S PERSPECTIVE
Edward P. de la Parte, Jr.
THE WHO, WHAT AND WHEN IN
WATER USE PERMITTING;
THE APPLICANT'S PERSPECTIVE
Edward P. de la Parte, Jr.
de la Parte and Gilbert, P.A.
705 East Kennedy Boulevard
Tampa, Florida 33602
Water use permitting in Florida is regulated
by Chapter 373, Florida Statutes. The
responsibility for implementing Chapter 373,
Florida Statutes has been delegated by statute to
regional Water Management Districts, which in
turn have each promulgated rules as set forth in
Chapter 40 of the Florida Administrative Code.
The rules of each Water Management District
implementing the statutory criteria and policy
may vary to reflect the conditions within the
geographical boundaries of the Water Management
District. Therefore, it is important to be
familiar with the rules of the Water Management
District within which area the proposed use of
water is or will be located.
I. WHEN PERMITS ARE REQUIRED.
Water use permits are required under Section
373.219, Florida Statutes for the withdrawal,
diversion, impoundment or consumptive use of
water unless expressly exempted by statute.
Water Management District rules may establish
specific thresholds for the use of fresh, saline
(but not seawater or treated wastewater
effluent), ground and surface water sources. See
the applicable Water Management District rules in
Chapter 40 of the Florida Administrative Code and
the Water Use Permit Manual for the applicable
Water Management District.
II. PERMITTING PROCEDURES.
A. Permit Criteria.
Section 373.223, Florida Statutes, provides
that an applicant for a water use permit must
demonstrate that the proposed use of water:
(a) is a reasonable-beneficial
use as defined in 373.019(4);
(b) will not interfere with any
presently existing legal use of
(c) is consistent with the public
1. Reasonable and beneficial use.
The most important element of this three
prong test is the applicant's ability to
demonstrate that the proposed water use is a
reasonable and beneficial use. This element can
be satisfied by the demonstration of need, and a
reasonable demand for the withdrawal of water.
Water withdrawals for agricultural,
industrial, commercial, recreational, mining,
dewatering, and public potable water supply are
recognized uses. The need, for each use is a
prerequisite and the most important fact to be
established in the permitting process. The Water
Use Permit Manual published by each Water
Management District identifies the factors
considered by the Water Management District to
determine need for each use.
b. Permitted quantities.
The applicant must identify the
quantity of demand requested. Quantities may be
specified in the following allocations:
(1) annual average daily in
GPD. This quantity is determined by calculating
the total quantity of water to be withdrawn over
(2) peak month average daily in
GPD. This quantity is based on a monthly pumpage
rate converted into average daily units and is
used to project peak month withdrawals.
(3) maximum daily in GPD. This
allocation is typically used for uses where daily
pumpage is recorded such as public water supply
or freeze protection.
2. Existing legal use.
Typically a water use permit may be
denied if the proposed water withdrawals,
together with other withdrawals, would create an
unmitigated adverse impact on an existing legal
use of water. Those legal uses existing at the
time of the application must generally be
evaluated for cumulative impact.
a. Legal uses predating regulation.
Section 373.226, Florida Statutes,
requires that all uses, including those in
existence prior to adoption of Chapter 373,
Florida Statutes, must have a permit. The
statute required that all such uses apply for an
initial permit within two years of implementation
of the regulations in the applicable Water
Management District or forfeit the use. Upon
application under this provision, the governing
board of the Water Management District was
directed to issue initial permits for the
continuation of pre-existing uses provided that
the use was a reasonable beneficial use as
defined by the statute and was allowable under
the common law of Florida.
This criterion for issuance of a
permit is important for the reason that renewals
of these permits is not dependent upon a showing
of no impact on other legal uses. See
373.239(3), Florida Statutes, which provides
that permit renewals shall be treated in the same
manner as the initial permit.
Under 373.239(3), Florida Statutes,
a renewal is processed in the same manner as the
initial permit. Practicably, legal uses in
existence at the time of the initial permit would
be evaluated for impact and new or subsequent
uses would not be included in the analysis of
impact. However, many Water Management Districts
take positions not squarely in accord with this
standard. For example, the Water Management
District may require that the renewal application
address adverse impacts on subsequently permitted
users if withdrawal quantities (but not
locations) are increased. The increased amount
of withdrawal would be subject to evaluation in
light of existing users at the time of filing.
c. Existing unpermitted uses.
Water Management Districts will
evaluate unpermitted uses and uses existing under
expired permits as new uses. Constructed
facilities will not receive the preferential
treatment in the permit process.
3. Consistency with the public interest.
Adverse impacts upon certain wetlands,
surface water bodies, the habitat of endangered
or threatened species and other water-dependent
environmental features are considered as part of
the permit process. Each Water Management
District imposes performance standards designed
to ensure avoiding unacceptable environmental
consequences. These performance standards seek
to achieve the Water Management District's
statutory objective to protect the water
resources of the district and to require a
reasonable degree of protection for environmental
features to achieve this goal. The determination
of adverse environmental impact will be dependent
upon the applicable Water Management District's
In applications for renewals and renewals
of legal uses predating Chapter 373, Florida
Statutes, the evaluation of environmental impacts
is not subject to the same limitation on
cumulative impact as for evaluation of impacts on
existing legal users. Environmental impacts
associated with the proposed withdrawal, in
combination with environmental impact resulting
from other withdrawals, may be an issue in the
Water Management District's determination on the
B. Preparation of the application.
i. Identification of impacts.
Prior to filing an application for a
water use permit, the applicant should determine
the existing legal users which may be impacted by
the proposed water use, identify adverse impacts
on such users, and identify environment impacts
resulting from the proposed use. Such preparation
generally involves the use of consultants to
calculate the projected impacts in a manner
acceptable to the Water Management District.
2. Preapplication conference.
Prior to submission of the completed
application, it is advisable to set up a meeting
with the Water Management District to agree upon
what issues are relevant in the permitting
process. For example, the identification of
legal users will be critical to sufficiency and
completeness of an application for renewal of a
legal water use which received an initial permit
within two years of the implementation of Chapter
373, Florida Statutes. Preapplication
conferences are generally encouraged by the Water
Management District to facilitate the permit
process if the project involves complex issues or
if assistance is required.
The Water Management Districts have
prepared an application form which tracks the
statutory and rule criteria for issuance of a
water use permit. Copies of the appropriate
application form, which have been approved by the
Water Management District's governing board, may
be obtained from the Water Management District.
The application should address all issues
determined to be relevant pursuant to the
Preapplication conference and incorporate the
methodology acceptable to the Water Management.
SIn preparation of the application, the applicant
should obtain and reference the Water Management
District's publications which provide guidance on
the preparation of the application. The Water
Management Districts have adopted such
publications, known as "The Basis of Review for
Water Use Permit Applications", in their rules by
C. Filing of the application.
The completed application must be filed with
the Water Management District on appropriate
forms and accompanied by the prescribed fee.
Failure to pay this fee will be grounds to deny
or revoke a permit.
1. Notice of filing application.
Within thirty days of receipt of an
application, the Water Management District must
publish notice of the application in a newspaper
of general circulation as defined in Chapter 50,
Florida Statutes. Additionally, the Water
Management District must provide a copy of
written notice to any person who, within the
preceding 6 months, filed a written request for
notification of pending applications within a
Interested persons may file a written
objection or comments pertaining to the pending
application within the time frame set forth in
the notice. However, the Water Management
District may consider comments or objections
received beyond the specified time frame so long
as Proposed Agency Action has not been issued.
The applicant should closely monitor the
Water Management District's publication of notice
of the application for the reason that mistakes
do occur and this is an area where many
challenges can successfully be raised.
2. Copies of Proposed Agency Action.
Persons who wish to receive a copy of the
Proposed Agency Action and staff report on the
application must file a written request with the
Water Management District within the time frame
set forth in the notice. The Water Management
District will only mail copies of the Proposed
Agency Action and staff report to those persons
who have timely filed a written request.
E. Water Management District Review.
1. Request for additional information.
Within thirty days of receipt of the
application, the Water Management District shall
notify the applicant concerning the completeness
of the application and if necessary, request
additional information to make the application
complete. The applicant must submit the
requested information within thirty days of the
Water Management District's request for
additional information or the application may be
deemed withdrawn and denied for lack of
completeness. Denial of the permit application
under these circumstances is without prejudice
and the applicant may resubmit the application
without paying an additional fee.
The Water Management District rules vary
concerning the scope of agency review upon
submission of the requested information and the
time frames for resubmission. Please refer to
the applicable Water Management District's rules.
2. Amendment of the Application.
The Water Management District may deem an
application amended if the material submitted in
response to a request for additional information
substantially changes the original request. In
such case the original proposal is deemed
withdrawn and the Water Management District
generally has 90 days to approve or deny the
3. Notice of completeness.
The Water Management District will the
applicant of the date on which the application is
deemed complete. Thereafter the Water Management
District has a reasonable time within which to
prepare a Notice of Proposed Agency Action and
staff report, which report will include
recommended permit conditions.
Upon receipt of the notice of
completeness and prior to issuance of the Notice
of Proposed Agency Action, the applicant should
schedule a conference with the Water Management
District staff to review the application and to
discuss the conditions, if any, under which the
permit will be granted.
F. Issuance of the Proposed Agency Action.
The Water Management District must furnish the
applicant and persons who file written requests
for the Notice of Proposed Agency Action with
copies of the Proposed Agency Action and staff
report. The Notice must include staff's
recommended action and shall specify a date, not
less than 14 days after the date of mailing, by
which petitions for administrative hearing on the
application must be received. This notice
provides a point of entry for substantially
affected parties to request an administrative
hearing under 120.57, Florida Statutes.
If no petition is received by the Agency Clerk
for the Water Management District within the
specified time frame, the application will be
presented to the Water Management District
governing board for action. The governing board
may hear informal argument both in support and
opposition to the permit application and may
approve, reject or modify the proposed agency
action as final agency action.
Substantially affected persons who did not
file a petition for administrative hearing on the
proposed agency action may file a petition for
administrative hearing on the final agency action
pursuant to 120.57, Florida Statutes. Failure
to timely file a petition on the proposed agency
action or final agency action is deemed to be a
waiver of the right to seek a 120.57, Florida
Statutes administrative hearing.
III. THE ADMINISTRATIVE HEARING.
The Water Management District will generally
transfer the Petition for Administrative Hearing
to the Department of Administrative Hearings
(DOAH). In such cases, the petition and
jurisdiction over the matter is transferred to
DOAH for hearing by an independent hearing
officer. Upon transfer to DOAH the assigned
hearing officer will render an Initial Order to
determine venue, potential hearing dates and
length of time necessary to try the issues.
B. Preparing the case for administrative
Preliminary preparation for administrative
hearing should begin before submission of the
permit application to the Water Management
District through the identification of other
legal uses and the preparation of the analytical
data in support of the application. This
informal level of preparation should continue
after submission of the application through
obtaining information concerning persons who have
filed written comments pertaining to the
application or have requested a copy of the
Notice of Proposed Agency Action on the
application with the Water Management District.
Once the administrative proceeding has been
initiated by a challenge to a permit, the
applicant should search the Water Management
District files for information relative to any
old and existing water use permits which may have
been issued to the challenger. In many
instances, impacts alleged to result from the
applicant's proposed use, in fact, arise from the
challenger's problems with its use.
Identification of the alleged harm as a problem
arising from the challenger's use can damage the
challenger's credibility and likelihood of
success in the administrative proceeding.
Issues raised in the administrative
proceeding must be limited to the statutory three
prong test. This is usually accomplished through
pre-trial motions to eliminate the extraneous
issues, such as the value of land which has been
or will be condemned or otherwise acquired by the
applicant to construct a well and water
transmission mains. Section 373.2235, Florida
Statutes, bars introduction of evidence or
testimony relating to the acquisition of land by
an applicant for well sites or right-of-way. The
issue of economic impact upon land based upon
issuance of a water use permit is deemed to be
irrelevant under this statute. The applicant
should note that acquisition of such well sites
will not create a presumption for issuance of the
water use permit. See Section 373.2235, Florida
Other relevant issues which are generally
litigated include groundwater flow computer
modeling and contamination transport. It is
important that the applicant become familiar with
the principles of computer modeling and
understand that the model is a predictor of what
can occur, not what has occurred. The model,
therefore, is a graphic way to present a
prediction. If modeling is a foreseeable issue
in the administrative challenge, the applicant
should retain qualified experts in the area of
groundwater flow modeling as soon as possible.
The applicant in an administrative
proceeding typically bears the burden of
demonstrating that it has provided reasonable
assurances that the applicable criteria for
issuance of the permit have or can be met. In
addition to the retention of experts to address
the issue of groundwater flow modeling, the
applicant must, especially if the proposed agency
action was for denial of the permit, provide
expert testimony to demonstrate satisfaction of
the three prong test. Experts in the areas of
geology, hydrology, biology and civil
engineering, among other disciplines, may be
required to sustain this burden. It is
important to assemble the team as soon as
possible in the proceeding.
Notwithstanding the transfer of the
petition for administrative hearing to DOAH, the
rules of the Water Management District, as
supplemented where necessary by the Model Rules
in Chapter 28-5, Florida Administrative Code,
will control both the substantive and procedural
aspects of the hearing. These rules generally
provide for the application of the Florida Rules
of Civil Procedure in the discovery phase.
Accordingly, the hearing officer will issue
subpoenas duces tecum for non-party depositions
and final hearing and can impose sanctions for
failure to comply with discovery.
The hearing officer will generally issue
a pre-hearing order requiring that the parties
enter into a prehearing stipulation to limit
issues, identify witnesses and exhibits, and
stipulate to those facts and law to which the
parties are in agreement. This prehearing order
also establishes a discovery cutoff date and date
by which the parties shall exchange witness lists
and exhibits to be used at the final hearing.
The applicant should be aware that the
rules also allow for intervention by a
substantially affected party up to 5 days before
the hearing. In such instances, if the petition
to intervene is granted by the hearing officer,
the final hearing may be continued and discovery
B. Post administrative hearing.
After the administrative hearing, the hearing
officer generally has thirty days after
availability of the hearing transcript to render
a recommended order making findings of fact and
conclusions of law. The parties are given an
opportunity to file recommended orders with the
hearing officer which recommend findings of fact
and conclusions of law based upon the testimony
adduced at the final hearing.
The hearing officer's recommended order,
together with jurisdiction over the matter, will
be forwarded to the governing board of the Water
Management District for final agency action. The
governing board will hold a hearing on the
application upon receipt of the recommended order
and may hear additional informal argument from
the parties at that time. The governing board
may accept, modify or reject the recommended
order and shall issue a final order on the
application. Persons who are substantially
affected by the final agency action may petition
for administrative hearing under 120.57, Florida
Statutes within 14 days after final agency
action. However, if any of those persons, was a
party in the prior administrative proceeding, the
doctrine of res judicata will bar the
relitigation of actual or justiciable issues in
the subsequent proceeding.
Alternatively, an applicant denied a permit
after administrative hearing and final agency
action by the governing board, may appeal that
final agency action to the appropriate District
Court of Appeal.
WHERE DO THE COURTS STAND ON
William L. Earl
Osmer D. Batcheller
WHERE DO THE COURTS STAND ON WATER RIGHTS
WILLIAM L. EARL
OSMER D. BATCHELLER
A. Purpose: These materials provide
perspective as to common law holdings
prior to the Water Resources Act and
selected significant judicial decisions
under the Act.
B. Relatively Few Case Decisions:
Florida was blessed with both prodigious
quantities of water and an enlightened
visionary in water law administration and
planning. Combined, these two factors
have resulted in relatively few court
decisions interpreting water rights since
the adoption of the Water Resources Act of
1. Dean Frank Maloney, who
foresaw and supplied an elegant legal
framework for Florida's water resource
decision making was the visionary. The
framework he created, based on the Model
Water Code, was Chapter 373, Florida
Statutes. In the nineteen years since its
adoption by the Florida Legislature, the
Water Resources Act and its well thought
out policies and principles have placed
Florida in the forefront of state water
2. Only recently with water
shortages brought on by overdevelopment
and relentless population increases and
the recurrence of cyclical drought, have
there been indications of increasing
tensions and litigation pressures on the
Water Resources Act framework. The hybrid
created by Maloney combining eastern and
western water law has served the state
II. WATER USE RIGHTS
A. Consumptive Use of Surface
Waters: The Water Resources Act of 1972
provided water management districts with
the power to regulate the withdrawal of
surface water through consumptive use
permits. SS 373.203-.249, Fla. Stat.
1. Prior to 1972, consumptive
use rights to lakes and streams were
governed first by the doctrine of riparian
rights, wherein riparian owners could use
water if the use was reasonable and did
not unreasonably interfere with the uses
of others, Tampa Waterworks v. Cline, 37
Fla. 586, 20 So. 780, 782-83 (Fla. 1896);
Maloney and Plager, Florida Streams:
Water Rights in a Water Wonderland, 10 U.
Fla. L. Rev. 294, 304-308 (1957), and then
by the Water Resources Act of 1957,
wherein the State Board of Conservation
and then-existing special districts were
given the power to permit the use of
excess waters by non-riparian landowners.
See Maloney, Florida's New Water Resources
Law, 10 U. Fla. L. Rev. 119, 141-45
(1957); F. Maloney, S. Plager and F.
Baldwin, Water Law and Administration -
The Florida Experience, S 62.3(B) (1968).
B. Consumptive Use of Groundwater:
Sections 373.219 and 373.223, Florida
Statutes, now govern consumptive use
rights to groundwater.
1. Prior to the enactment of
that legislation, consumptive use rules
relating to percolating groundwater were
basically identical to those governing
contained surface waters. See Tampa
Waterworks v. Cline, 37 Fla. 586, 20 So.
780, 784 (Fla. 1896); Labruzzo v. Atlantic
Dredging and Construction Co., 54 So. 2d
673, 676 (Fla. 1951); Cason v. Florida
Power Co., 74 Fla. 1, 76 So. 535, 536
(Fla. 1917). See also Maloney and Plager,
Florida's Groundwater: Legal Problems in
Managing a Precious Resource, 21 U. Miami
L. Rev. 751, 771-72 (1967).
2. Since enactment of the
Water Resources Act of 1972, the Florida
Supreme Court decided common law
consumptive use rights to groundwater and
the effect of Chapter 373. See Village of
Tequesta v. Jupiter Inlet Corp., 371
So. 2d 663 (Fla.), cert. denied, 444 U.S.
965 (1979). Chapter 373 won, but there
are still many unanswered questions.
C. Non-Consumptive Use Rights to
Natural Lakes and Streams: There is at
least one case of significance in the law
of non-consumptive rights to natural lakes
1. In Deltona Corp. v.
Adamczyk, 492 So. 2d 463 (Fla. 5th DCA
1986), one littoral owner was enjoined
from pumping water into a lake, which he
partially owned, because the pumping
caused flooding to another littoral
owner's property. Defendant, to protect
developed lands, was pumping water from
one lake into a second non-navigable
freshwater lake, of which plaintiff was
also a partial owner, causing flooding on
plaintiff's property. The court held that
even though the defendant could reasonably
use its ownership interest in the lake,
any use causing damage to another person's
ownership interest in the lake was
2. Under common law,
landowners adjacent to natural lakes and
streams are entitled to non-consumptive
riparian rights, such as navigation,
fishing, swimming, etc. See F. Maloney,
S. Plager and F. Baldwin, Water Law and
Administration The Florida Experience,
SS 41-46 (1967).
D. Artificial Water Bodies:
Florida law is unresolved as to whether
riparian or littoral rights are relevant
to artificial water bodies. See generally
Evans, Riparian Rights in Artificial Lakes
and Streams, 16 Mo. L. Rev. 93 (1951);
Corbridge, Surface Rights in Artificial
Water Courses, 24 Nat. Resources 887
(1984). However, some guidance may be
gleaned from case law regarding navigation
on nonnavigable and artificial lakes.
1. Common Law v. Civil Law
Rule: Two rules have predominantly been
applied by courts when determining the
rights of a partial owner of a
nonnavigable lake's bed to use of the
surface of the lake. Under the common law
rule, an owner could exclude others from
the surface water above his portion of the
non-navigable lake's bed, whereas under
the civil law rule, a partial owner of a
nonnavigable lake's bed was entitled to
reasonably use of the entire surface of
2. Florida's courts have
traditionally followed the civil law rule
when determining rights in non-navigable
lakes. See Duval v. Thomas, 107 So. 2d
148, 153-54 (Fla. 2d DCA 1958), cert.
discharged, 114 So. 2d 791, 794-95 (Fla.
1959); Florio v. State ex rel. Epperson,
119 So. 2d 305, 310 (Fla. 2d DCA 1960).
As for artificial non-navigable lakes, the
Florida Supreme Court, in Anderson v.
Bell, 433 So. 2d 1202, 1207 (Fla. 1983),
held that the civil law rule was not
applicable to artificial lakes and that an
owner of a bed of an artificial lake, or
land adjacent to one, may not use the
entire surface for fishing or boating.
3. Bell appears to have
brought to an end the controversy which
existed in Florida regarding this issue.
Cf. Silver Blue Lake Apartments. Inc. v.
Silver Blue Lakes Homeowners Ass'n, 225
So. 2d 557 (Fla. 3d DCA 1969), writ
discharged, 245 So. 2d 609 (Fla. 1971)
(suggestion that civil law rule is to be
applied in determining rights to
artificial lakes); Publix Supermarkets,
Inc. v. Pearson, 315 So. 2d 98 (Fla. 2d
DCA 1975), cert. denied, 330 So. 2d 20
(Fla. 1976) (civil law rule not applicable
to artificial lakes).
E. Diffused Surface Water: Diffuse
waters are those derived from rain, snow,
or natural springs while they remain
diffused over the surface of the ground.
See McCorkle v. Penn Mutual Fire Ins. Co.,
213 So. 2d 272, 273 (Fla. 3d DCA 1968);
Libby. McNeil & Libby v. Roberts, 110
So. 2d 82 (Fla. 2d DCA 1959).
1. Consumptive rights to such
waters are governed by a rule of capture.
See F. Maloney, S. Plager and F. Baldwin,
Water Law and Administration The Florida
Experience, S 57.1 (1968); Davis, The Law
of Diffused Surface Waters in Eastern
Riparian States, 6 Conn. L. Rev. 227, 235
(1973); Dolson, Diffused Surface Water and
Riparian Rights: Legal Doctrines in
Conflict, 1966 Wis. L. Rev. 58, 60-61.
2. Civil Law v. Reasonable Use
Rules: Under the civil law rule, the
natural flow of diffused surface water
could not be interfered with if this would
result in injury to another. See Maloney
and Plager, Diffused Surface Water:
Scourge or Bounty?, 89 Nat. Resources J.
72, 76-77 (1968). Under the reasonable
use rule, a property owner may use surface
water in manners which are reasonable
under the circumstances. Id. at 78-81.
Prior to 1989, Florida tended to apply a
variation of the civil law rule in cases
involving the use of diffused surface
water. See. e.g., Gwinn v. Andrews, 310
So. 2d 424, 425 (Fla. 1st DCA 1975); Hodge
v. Justus, 312 So. 2d 248, 249 (Fla. 1st
DCA 1975); Seminole County v. Mertz, 415
So. 2d 1286-89 (Fla. 5th DCA 1982), review
denied, 424 So. 2d 763 (Fla. 1982)
(modified civil law rule utilized in
3. In 1989, the Florida
Supreme Court, in Gus Machado Buick, Inc.
v. Westland Skating Center, Inc., 542
So. 2d 959 (Fla. 1989), held that the
reasonable use rule is applicable to
diffused surface waters when improved
property is involved.
a. Gus Machado arose out
of the dispute between plaintiff, a
skating rink operator, and defendant, a
neighboring automobile dealership. The
problem arose when defendant discovered
that in heavy rains, water was running off
of the roof of plaintiff's building onto
defendant's property and causing damage.
In response, defendant constructed a wall
to alleviate the runoff problem, which
wall ended up acting as a dam and flooding
out plaintiff's skating rink. Id. at 960.
b. At trial, a jury found
in favor of plaintiff, and defendant was
ordered to remove the wall. The Third
District Court of Appeals reversed the
trial court finding that it had
erroneously used the reasonable use rule
rather than the civil law rule. 523 So.
2d 596 (Fla. 3d DCA 1987).
c. On appeal, the Florida
Supreme Court, while upholding the
district court's reversal on other
grounds, noted the split of authority
among lower appellate courts and expressly
adopted the reasonable use rule. 542
So. 2d at 962.
III. VARIOUS ISSUES RELATING TO
A. As previously noted, the Water
Resources Act of 1972 grants broad
authority to the water management
districts to implement permit systems to
regulate the uses of Florida waters. See
Ausness, The Influence of Model Water Code
on Water Resources Management Policy in
Florida, 3 J. Land Use and Envtl. L. 1, 18
B. Limits of Permitting Authority?:
Florida's Water Resources Act of 1972
allows the five Water Management Districts
to permit consumptive uses of Florida's
surface and groundwater. In the last
decade, the courts of Florida have been
called upon to define the outer limits of
the water management districts' permitting
1. The trend seems to be to
expand the scope of the permitting
authority of water management districts in
order to carry out and implement the broad
mandates of Florida's Water Resources Act
a. In Middlebrooks v. St.
Johns River Water Management District, 529
So. 2d 1167, 1170 (Fla. 5th DCA 1988),
limited, Department of Professional Reg.
v. Morrero, 536 So. 2d 1094 (Fla. 1st DCA
1988), the court upheld the water
management district's right to impose
substantial conditions on groundwater
b. In Osceola County v.
St. Johns River Water Management District,
486 So. 2d 616 (Fla. 5th DCA 1986),
affirmed, 504 So. 2d 385 (Fla. 1987), the
court authorized interdistrict water
transfers among Florida's five water
c. In Village of Tequesta
v. Jupiter Inlet Corp., 371 So. 2d 663
(Fla.), cert. denied, 444 U.S. 965 (1979),
the court upheld a water management
district's requirement of consumptive use
permit to municipality even though the
applicant alleged withdrawals amounted to
an unconstitutional taking.
d. In City of St.
Petersburg v. Southwest Florida Water
Management District, 355 So. 2d 796 (Fla.
2d DCA 1978), cert. denied, 358 So. 2d
1364 (Fla. 1979), the court alluded to the
"water crop" theory in allocating
groundwater. See also F. Maloney,
S. Plager, R. Ausness and B. Canter,
Florida Water Law 1980, 238-240 (1980).
2. In regard to interdistrict
water transfers, it should be noted that
in 1987, Section 373.2295, Florida
Statutes, was added to the Florida Water
Resources Act which section specifically
allows for consumptive water use permits
for intra-district transfers and use of
groundwater. See also Kidder, Water
Transfer: An Invitation to a
Confrontation, 62 Fla. B.J. 41 (Nov.
C. Section 373.406(3), Agricultural
"Closed System" Exemption: This section
provides an exemption from permitting
requirements for the construction,
operation or maintenance of an
agricultural closed system, defined as
"any reservoir or works located entirely
within agricultural lands owned or
controlled by the user and which requires
water only for maintaining the water
level thereof." S 373.403(6), Fla. Stat.
1. The exemption provided by
Section 373.406(3) applies only to
reservoirs, works, etc., which are
entirely on agricultural lands which the
user owns or controls. See Pal-Mar Water
Management Dist. v. Board of County
Commissioners of Martin County, 384 So. 2d
232 (Fla. 4th DCA 1980) (construction of
dikes and canals by Drainage District not
a closed system because District did not
own or control all affected land); S
373.403(6), Fla. Stat.
a. With regard to
drainage systems, it seems clear that they
will not be considered closed systems if
they discharge onto property not owned by
the user. See Corporation of President of
Church of Jesus Christ of Later Day Saints
v. St. Johns River Water Management Dist.,
489 So. 2d 59 (Fla. 4th DCA 1986), review
denied, 496 So. 2d 142 (Fla. 1986) (repair
of dike system not within exemption when
water discharged onto other property).
Recent amendments in relation to
stormwater permits should also be
D. Permitting Issues:
1. In Brooker Creek
Preservation, Inc. v. Southwest Florida
Water Management District, 534 So. 2d 419
(Fla. 5th DCA 1988), review denied, 542
So. 2d 1334 (Fla. 1989), the court held
that the water management district could
incorporate certain exemptions contained
in Section 373.406, Florida Statutes, into
the permitting rules for isolated wetlands
set out in Section 373.414. The court
held that "with regard to the exemptions
in Section 373.406, since they are part of
Part IV of Chapter 373, it is logical to
assume they were intended to apply to
Section 373.414, even though not expressly
referenced in the Isolated Wetlands Law."
However, the court held that the Water
Management District did not have the
authority to incorporate exemptions
contained in Section 403.812, Florida
Statutes, into its permitting authority
under Section 373.414, Florida Statutes.
Id. at 423-424. Cf. Leonard v. Morgan,
548 So. 2d 803 (Fla. 1st DCA 1989) (action
for writ of prohibition relating to
classification in an exemption should have
been brought in district, not circuit,
2. In Harloff v. City of
Sarasota, 16 Fla. L. Week. 548 (Fla. 2d
DCA, Feb. 20, 1991), Mr. Harloff, who
farmed approximately 8,500 acres in
Manatee County, applied to the water
management district for a consumptive use
permit for irrigation water. Id. The
City of Sarasota challenged Mr. Harloff's
application on the basis that the
requested use would interfere with the
City's already permitted nearby wellfield.
The City owned the Verna wellfield,
situated close to Mr. Harloff's farmland,
which wellfield, over the years, had seen
its water levels decline dramatically, had
on occasion been unable to meet peak
demands, and was classified a caution
a. In reaching its
decision, the Second District set out an
ominous warning regarding the demands
currently being placed on Florida's water
We write this opinion, in part,
because we fear that the facts
of this case may become a common
theme in Florida as urban and
agricultural demands on
groundwater reach the capacity
of this resource. The facts of
this case may be helpful
to those in the Legislature who
are responsible for establishing
our state's water policy.
16 Fla. L. Week. at 548.
The court also questioned
whether "adjacent properties with large
water consumption should be compelled to
file competing applications." Id. at 549.
3. On policy grounds, the
Harloff decision is significant in at
least two respects. First, it addresses
and, in fact, warns Floridians of the
coming competitive battles between those
seeking use of increasingly scarce water
resources. Second, the decision
reinforces the importance of being a prior
legal use. Combined, these two factors
seem to point to sharply escalating
battles to be first at the pump and to
file preemptive permits to assure growth
and continued development of particular
parcels of land. The court recognized
that innovative changes in water
management will have to be made in the
near future if Florida's precious water
resources are to be fairly allocated.
Florida's relentless population
increases and development pressures, when
coupled with our cyclical drought cycle
and conflicting industrial, urban, and
agricultural water needs, make increasing
water "wars" inevitable. What was once an
ample water supply pie, with large pieces
for all seeking water use, has become not
only recognizably finite, but in some
cases, inadequate to provide all those
requesting it a piece of the water supply
These developments indicate there
will be increasing need for judicial
construction and interpretation of water
rights. Floridians can expect preemptive
permits being filed so as to gain priority
much akin to the western system of first
in time, first in right. The good news
for lawyers is that these increased water
conflicts may well result in a situation
akin to hospital certificates of need
where there are competitive battles. The
bad public policy news is that there may
be a continuation of ad hoc piecemeal
amendments to Chapter 373 which do not
provide for a consistent, rational water
allocation process as provided by the
drafters of Florida's Water Resources Act
As Floridians, we can only hope that
we will not fall into the western water
law trap with creation of state
commissions and aqueduct authorities
transporting waters hundreds of miles,
virtually making a desert of some areas
while supplying water to areas which
should not be populated.
WATERS OF THE STATE:
OPPORTUNITIES AND CONSTRAINTS IN WETLANDS AND
OTHER WATERS OF THE STATE
Mary F. Smallwood
WATERS OF THE STATE:
OPPORTUNITIES AND CONSTRAINTS IN
WETLANDS AND OTHER WATERS OF THE STATE
MARY F. SMALLWOOD
Ruden, Barnett, McClosky, Smith
Schuster, & Russell, P.A.
I. Definition of Waters of the State
The term "waters of the state" is used
exclusively in Chapter 403, Florida
Statutes, to denote the jurisdiction of the
Florida Department of Environmental
Regulation (DER) over surface waters,
wetlands and groundwaters. "Waters" is
defined in Section 403.031(12), Florida
Statutes, to include:
rivers, lakes, streams, springs,
impoundments, and all other waters
or bodies of water, including fresh,
brackish, saline, tidal, surface or
underground waters. Waters owned
entirely by one person other than
the state are included only in
regard to possible discharge on
other property or water.
Underground waters include, but are
not limited to all underground
waters passing through pores of rock
or soils flowing through in
channels, whether manmade or natural.
The definition of waters also
specifically includes the Everglades Big
Cypress Fakahatchee Strand area as defined
by a legal description set forth in the
Although the statutory definition of
waters does not refer to wetlands, Section
403.817, Florida Statutes, establishes a
method for determining the "landward extent
of waters" for purposes of delineating DER's
jurisdiction over wetlands. This section
authorizes DER to adopt by rule a
methodology for determining landward
extent. Section 403.817(2) provides that
landward extent "shall be defined by species
of plants or soils which are characteristic
of those areas subject to regular and
periodic inundation by the waters of the
This leads to the primary difference
between "waters of the state" as regulated
by DER and "waters in the state" subject to
regulation by the five water management
districts (WMD's) under Chapter 373, Florida
Although, in theory, wetlands under
Chapter 403, Florida Statutes, could include
isolated wetlands such as those having
wetland plant species due to inundation
solely from a high groundwater table, DER's
jurisdiction is limited to those wetlands
which are "connected to" a waterbody.
Accordingly, DER's jurisdiction is more
limited than the WMD's, the federal
government or most local governments with
wetlands regulation programs.
This seemingly arbitrary limitation
results from the fact that DER's original
jurisdiction over wetlands under Chapter 403
was for the sole purpose of protecting water
quality, while most other wetlands
protection programs were also concerned with
fish and wildlife and habitat protection and
protection of other wetland functions, such
as aquifer recharge and flood control. As a
result, DER's original rule defining the
landward extent of waters of the state
provided that the starting point for a
regulated wetland be a "listed" waterbody.
Subsequently, it has proven politically
infeasible to change this system, even
though DER's basis for regulation has been
broadened to include such factors as habitat
protection. See Section 403.918, Florida
The starting point, then, for
determining DER wetlands jurisdiction is to
locate a listed waterbody under Section
17-312.030, Florida Administrative Code:
(1) the Atlantic Ocean,
(2) the Gulf of Mexico,
(3) bays, bayous, sounds, estuaries,
lagoons and natural channels and tributaries
(4) rivers, streams and their natural
tributaries (except certain intermittent
(5) natural lakes except for those
entirely owned by one person that become dry
each year, or are less than 10 acres in size
and 2 feet in depth, and
(6) the Everglades (as defined by
Section 403.031(12), Florida Statutes).
Moreover, DER lists, by rule, those
vegetative species that can be used to
determine jurisdiction and the methodology
for making the determination, including the
percentage of various species of plants that
must be present to establish jurisdiction.
In general, DER is much more constrained
than other agencies in identifying wetlands
as its rules are extremely detailed and
explicit about how the determination will be
This difference in the extent of
jurisdiction leads to a number of problems
or concerns. First, the limited extent of
DER jurisdiction makes it virtually
impossible to obtain a delegation of federal
wetlands permitting from the U.S. Army Corps
of Engineers since, for delegation to occur,
jurisdiction would have to be basically
coextensive. The difference has also lead
to some interesting distinctions between DER
and the WMD's, particularly since the WMD's
have virtually exclusive jurisdiction over
agricultural activities in wetlands.
II. Permitting Criteria
The permitting criteria for projects
affecting waters of the state, including
wetlands, are the most obvious constraints
on permit applicants. The criteria differ
depending on the type of activity to be
undertaken, for example, a direct discharge
to a surface waterbody or groundwaters or
dredging or filling in wetlands. Regardless
of the type of activity, however, the most
significant constraint is generally the
applicable water quality standards.
A. Water Quality Standards
For purposes of surface waters, whether
waterbodies or wetlands, the same water
quality criteria apply except in a few
situations. There are, however, certain
exceptions to the requirement that an
activity comply with water quality
standards. For example, discharges to
surface waterbodies (including wetlands) are
generally entitled to a mixing zone to allow
the discharge to mix with and be diluted by
the receiving waterbody. The discharge of
stormwater or wastewater to wetlands may be
subject to different standards than
discharges to surface waterbodies due to the
ability of wetlands to treat or remove
impurities. See, Chapter 17-25 and Chapter
17-611, Florida Administrative Code.
B. Wetlands Permitting Criteria
Section 403.918, Florida Statutes,
contains the permitting criteria for
wetlands activities. Subsection (1)
requires that wetlands activities not result
in violation of water quality standards. It
also provides that DER may adopt different
water quality standards for wetlands than
for other surface waters. This provision
was intended to recognize that certain water
quality parameters may naturally differ from
a wetland to another surface water, for
example, dissolved oxygen levels. To date,
DER has not adopted general standards for
wetlands different than other water.
However, in certain circumstances, such as
discharges of wastewater to wetlands, the
standards may be different.
It should be noted that the statutory
requirement is that an activity not cause or
contribute to a violation of a water quality
standard. This language has been
interpreted to allow an activity in a
waterbody not presently meeting water
quality standards if the activity does not
make the situation worse. Such a
determination is frequently difficult,
particularly in a wetlands situation where
the permitted activity (i.e., filling)
theoretically causes degradation of water
quality where an associated activity (i.e.,
stormwater control and treatment) may result
in an improvement in water quality.
Moreover, the exact impact on water quality
of dredging or filling is difficult to
quantify in comparison to discharges of
water containing specified levels of
C. Wetlands Permitting Criteria
Section 403.918(2) contains the specific
dredge and fill permitting criteria (in
addition to water quality standards). There
are seven criteria listed:
(1) whether the project will
adversely affect the public health, safety,
or welfare or the property of others;
(2) whether the project will
adversely affect the conservation of fish
and wildlife, including endangered or
threatened species, or their habitats;
(3) whether the project will
adversely affect navigation or the flow of
water or cause harmful erosion or shoaling;
(4) whether the project will
adversely affect the fishing or recreational
values or marine productivity;
(5) whether the project will be
temporary or permanent;
(6) whether the project will
diversely affect or enhance archaeological
or historical resources; and
(7) the current condition and
relative value of factions being performed
by wetlands to be impacted.
While in general these criteria pose
constraints to proposed activities in
wetlands, they may also provide
opportunities in limited circumstances. For
example, where the wetlands in question are
of a poor quality and are not performing
natural wetlands functions, permitting may
be easier. This is particularly true where
impacted wetlands may have their functions
enhanced by the proposed activities (i.e.,
wastewater or stormwater discharges which
may rehydrate drained wetlands).
D. "No Net Loss"
DER has no statutory or rule provision
that is comparable to the no net loss policy
at the federal level. In fact, it is
recognized that activities in wetlands or
discharges to surface waters may result in
some degradation. An activity may not cause
or contribute to a violation of a water
quality standard but, except in Outstanding
Florida Waters (OFW's), there is no
prohibition against degrading the quality of
receiving waters. No activity in an OFW may
significantly degrade the waterbody. In
theory, then, mitigation should only be
required in unusual circumstances, where the
permitting criteria cannot otherwise be
met. In practice, mitigation has become the
rule rather than the exception.
In a recent appellate decision, the
permitting standard in OFW's was
specifically addressed. In 1800 Atlantic
Developers v. Department of Environmental
Regulation, 552 So.2d 946 (Fla. 1st DCA
1989), the court overturned a decision by
DER to deny a dredge and fill permit for
beach restoration. The applicant had
proposed mitigation, at DER's request, to
offset the impacts of the activity. In
overturning DER, the court held that the
applicant did not need to show a "net public
benefit" to the project. It further stated
Absolute prohibition of dredge
and filling activity, therefore,
should be the rare exception in
cases of extreme damage to the
environment that cannot be
avoided or mitigated under any
A. Mitigation, while undefined, is
specifically recognized by statute for
wetlands activities. Section 403.918(2)(b),
Florida Statutes, provides:
If the applicant is unable to
otherwise meet the criteria set
forth in [the permitting criteria],
the department, in deciding to grant
or deny a permit, shall consider
measures proposed by or acceptable
to the applicant to mitigate adverse
effects which may be caused by the
The statute provides that a "net
improvement" in water quality shall be
considered to be mitigation where the
waterbody does not presently meet water
quality standards. However, mitigation is
not defined with respect to dredging and
In general, however, there are three
accepted forms of mitigation: creation of
wetlands from uplands, enhancement or
restoration of existing degraded wetlands,
and preservation of good quality existing
DER has been issuing wetlands permits
requiring some form of mitigation since the
late 1970's. However, there was no formal
recognition of the concept by statute or
rule until the Warren S. Henderson Wetlands
Act was adopted in 1984. Chapter 403, Part
VIII, Florida Statutes (1984). The DER
policy regarding wetland mitigation was
ultimately codified with the adoption of
Section 17-312, Part III, Florida
B. Effectiveness of Mitigation
In March 1991, DER issued a report
entitled "Report on the Effectiveness of
Permitted Mitigation" to the Governor, the
President of the Senate and the Speaker of
the House of Representatives. The report
included a number of DER findings regarding
its implementation of Section 403.918(2)(b),
Florida Statutes, including:
(1) Approximately one half of
standard form permits issued since 1984 have
included some form of mitigation. The
percentage for short form permits ranges
from 5 to 90 percent, depending on the type
of project and the district office involved.
(2) Of the limited number of
mitigation projects studies by DER for the
report, only 17 percent are expected to be
successful (under DER's definition),
although 40 percent could be successful if
minor remedial measures were implemented.
(3) The success rate for tidal
wetlands is about twice the success rate for
(4) Of the more than 1200 permits
received by DER for purposes of this report,
permanent wetlands loss was expected to be
approximately 3300 acres.
(5) Permits issued by DER to
compensate for wetlands losses required
creation of 3345 acres, 7300 acres of
enhancement, and 7600 acres of preservation.
(6) Freshwater wetlands mitigation
projects have a substantially lower
compliance rate than tidal wetlands.
(7) Four factors were considered to
be critical for successful creation
mitigation: proper elevation, hydrologic
connections to waters of the state,
compliance with permit requirements
regarding wetland configuration and
topography, and regular maintenance of
mitigation wetlands to control exotic and
(8) Enhancement of natural wetlands
by removal of nuisance of exotic species is
not always successful because it doesn't
generally address the root problem (i.e.,
loss of natural hydroperiod).
(9) One of the major problems is lack
of compliance with permit conditions.
C. Mitigation Banking
There is no universally accepted
definition of mitigation banking and the few
formally established programs in the country
vary widely. Presently DER does not have a
written definition or recognize the concept
by rule, although it is not specifically
prohibited. In general, the concept is one
by which a permit applicant receives
"credit" for mitigation that has been
conducted and uses that credit to compensate
for adverse impacts of the permitted
project. The differences between various
systems can be significant, however. For
(1) Frequently, but not always, the
"bank" is created before the permitted
activity is undertaken.
(2) Generally, the bank is a fairly
sizeable area, as opposed to individual
mitigation projects which are often fairly
(3) A bank may be created for a
single permit project or may provide credit
for numerous smaller projects.
(4) The bank may be on-site
(co-located with the permitted project) but
is frequently off-site.
(5) In some banking systems, cash
contributions, as opposed to wetland
creation or enhancement, are allowed. This
is more common where the bank is maintained
by a governmental entity who then uses the
case to conduct wetland enhancement or
(6) Mitigation banks may be privately
or publicly maintained.
Although DER's rules do not formally
recognize mitigation banking, there are
provisions for what DER calls
"pre-construction mitigation," which is
defined as mitigation which is constructed
and determined to be successful prior to
commencement of the dredge and fill
project. Section 17-312.360, Florida
Administrative Code. Use of this provision
has been infrequent, but there have been a
few large projects where a wetlands "bank"
was constructed in advance. In one
particular project in central Florida a
phased project withdrew credits from its
bank periodically. As the mitigation was
determined by DER to be incrementally
successful, the required mitigation ratios
Other major mitigation banks have been
created primarily with relation to public
projects, such as major roadway
construction. Hillsborough County has
entered into a Memorandum of Understanding
with DER in this regard. The Florida
Department of Transportation has also begun
to use mitigation banks for some of its
projects. This concept seems particularly
suited to this type of project which may
involve long corridors with many small
wetland impacts. In addition, it is
generally difficult to provide all required
mitigation on site when dealing with a
A mitigation banking task force has been
created to review the status of this area
and is beginning to meet as this article
goes to press. It can be expected that the
task force will make some substantive
recommendations regarding implementation of
mitigation banking, but it is too early to
tell what direction they may take.
There are, however, some pressures right
now that may well make mitigation banking a
more viable option in the future. For
example, the DER report finding frequent
failure of DER approved mitigation projects
could lead to permit requirements for
pre-construction mitigation, or, at a
minimum, to much higher ratios for
mitigation that is constructed concurrent
with or subsequent to the permitted
activity. In addition, it is more commonly
believed now that it is more effective to
create a large wetland mitigation project
rather than many smaller, unconnected
wetlands. Mitigation banking, possibly even
involving multiple private parties, would
provide that type of opportunity.
However, there are certain obstacles
that must be overcome if mitigation is to
become widely available. First, there must
be an accepted technical mechanism for
valuing both mitigation wetlands and the
wetlands to be impacted by the dredge and
fill activities. In addition, an acceptance
by the regulatory agency of some off-site
mitigation will be necessary. While
off-site mitigation is not prohibited by
Chapter 17-312, Florida Administrative Code,
it is strongly discouraged except in
situations, such as road or utility
corridors, where on-site mitigation is
impossible. (Section 17-312.340(6), Florida
Administrative Code). It is not surprising,
then, that DER has begun to implement the
mitigation banking concept with state and
local road projects.
IV. Discharges to Wetlands
Because wetlands function as filters to
remove many pollutants and, thus, protect
water quality in adjacent surface waters,
the Florida Legislature specifically
authorized certain discharges to wetlands.
Section 403.918(3), Florida Statutes,
provides that wetlands which are connected
to other waters by artificial watercourses
or by an intermittent watercourse may be
incorporated into stormwater treatment
systems. Similarly, Section 403.918(4)
allows wetlands to be used to receive and
treat domestic wastewater. DER has adopted
regulations governing each type of discharge
with the intent of protecting the type,
nature and function of the receiving wetland.
A. Stormwater Discharges
Section 17-25.042, Florida
Administrative Code, contains the criteria
for discharges of stormwater to wetlands.
The rule contains performance standards,
which if met, create a presumption that
water quality standards will be met at the
point of discharge to surface waters.
Additional standards are imposed to assure
that the wetlands will not be adversely
affected to the point that their ability to
function as a treatment system is damaged.
B. Domestic Wastewater Discharges
Chapter 17-611, Florida Administrative
Code, contains the criteria for discharges
of domestic wastewater to wetlands. While
the statutory provisions do not limit the
type of wetlands which may be so utilized,
the rule does impose some restrictions. For
example, wetlands within OFW's or Class I or
II waters may not be used. Additionally,
most herbaceous wetlands are restricted from
use. The rule contains emissions and
performance standards and extensive pre- and
post-construction monitoring requirements.
As with discharges of stormwater, DER
considers this type of discharge to be
somewhat experimental in nature. Thus, the
requirements are fairly stringent. For
example, a full year of baseline monitoring
is required before a discharge can begin.
DER's permitting authority over waters
of the state is much more geographically
limited than any of the other federal, state
or local agencies regulating wetlands. Once
geographical jurisdiction is established,
DER's substantive permitting authority is
basically consistent with the other
agencies. While the permitting criteria
frequently serve as a constraint on
activities in wetlands, there are some
opportunities available for wetland
utilization, in particular, utilization for
discharge and treatment of stormwater and