by Susan Roeder Martin
The Department of Environmental Protection (DEP) and the five water management districts (WMDs) provide oversight of Florida’s water resources. DEP has statewide jurisdiction, while each of the WMDs is a regional governmental agency that oversees the water resources in a specific geographic area of the state. Jurisdiction is based on hydrologic, rather than political, boundaries. Regulatory programs focus on water supply, flood protection, water quality, and natural systems management. Compliance and enforcement are two important elements of the regulatory programs.
Statutory and Rule Authority
Permitting, compliance, and enforcement authority is set forth in F.S. Ch. 373. Authority includes the regulation of the consumptive uses of water (Ch. 373, part II), well construction and water well contractors (Ch. 373, part III), and the management and storage of surface waters (Ch. 373, part IV). Enforcement authority set forth in Ch. 373 creates an incentive to comply with the regulatory permitting programs.
In October 2013, DEP, in coordination with the five WMDs (collectively the “agencies”), adopted rules in Ch. 62-330 of the Florida Administrative Code.1 These rules apply statewide and are utilized to implement the comprehensive Statewide Environmental Resource Permit (SWERP or ERP) program.2 Fla. Admin. Code Ch. 62-330 regulates activities in, on, or over wetlands or other surface waters and the management and storage of all surface waters. The term “surface water” is broad and means water upon the surface of the earth.3 Additionally, the five WMDs adopted rules in Fla. Admin. Code, Title 40, which set forth agency specific general and procedural requirements.4
Applicant’s Handbook Volume I (AH Vol. I) provides background information and rules on types of permits; permit thresholds; exemptions; review procedures; and conditions for issuance of an ERP. It includes environmental criteria used for activities located in wetlands and other surface waters; erosion and sediment control practices to prevent water quality violations; and operation and maintenance requirements.5 AH Vol. I is incorporated by reference into F.A.C. Ch. 62-330.
Technical criteria are also set forth in each WMD’s Applicant’s Handbook Volume II (AH Vol. II), which are also incorporated into F.A.C. Ch. 62-330. Each AH Vol. II provides criteria, design, and performance standards for water quality and quantity, stormwater management systems, dams, impoundments, reservoirs, works, and appurtenant works; special basins that may exist within the geographic area of each district; flood protection; and dams. Each AH Vol. II is adopted by reference into the rules of each of the applicable WMDs and also adopted by DEP.
Compliance is a critical step in protecting the water resources of the state. Post-permit compliance programs ensure that the construction and operation of a permitted project are consistent with permit conditions and agency rules. Without proper construction, maintenance, and operation, surface water management systems and required mitigation areas may not perform as required and, therefore, may not offset the project’s adverse impacts to the environment.
With regard to flood protection, environmental resource permits limit the flow of water from a development either to historic discharges or to other current criteria. The focus of permitting and compliance criteria in this area is to ensure that surface waters do not cause flooding, adversely impact adjacent lands, affect public safety, or adversely affect natural resources. To protect water quality, agency rules require surface water management (SWM) systems be designed to meet state water quality standards.
Natural system permitting and compliance standards focus on the protection of wetlands and other surface waters and the value of their functions to fish and wildlife. Compliance programs focus on permit conditions requiring the maintenance of natural functions of wetlands or the contribution of appropriate mitigation or compensation. Permits may include monitoring and reporting on mitigation success.
Enforcement and Compliance Pursuant to Parts II and III of F.S. Ch. 373
Consumptive use of water regulation is set forth in F.S. Ch. 373, Part II, which recognizes that there is one supply of water. No single entity may waste or deprive another entity of water. Compliance is, therefore, designed to protect legal users and to ensure that use is not harmful to the water resources of the area.
An owner, tenant, occupant, or person in control of an artesian well6 must not knowingly and intentionally allow the well to flow continuously without a device for checking or controlling the flow, permit water to flow unnecessarily, pump unnecessarily, or allow the well water to go to waste.7 Any person who violates F.S. §373.209 is subject to either penalties under F.S. §373.436, discussed below, or a civil penalty of $100 a day for each and every act of violation. The civil penalty may be recovered by the agency in a court of competent jurisdiction.8
If a consumptive use permittee violates permit conditions pursuant to F.S. §373.245, the permittee is also liable to abutting consumptive use permit holders for damages caused by the violation. The abutting permittee must apply for and be denied relief by the WMD before pursuing an action for damages under this section.
Compliance and enforcement during a water shortage focuses on both agricultural and urban areas. WMD governing boards may enter water shortage orders under §373.246, and pursue compliance in accordance with those orders. City and county officers may assist in the enforcement of water shortage orders.9
Licensing requirements for well construction contracts are set forth in F.S. Ch. 373, part III. A violation of this part is a second-degree misdemeanor.10
Compliance and Enforcement Pursuant to Part IV of F.S. Ch. 373
Part IV of F.S. Ch. 373 pertains to the management and storage of surface waters. Section 373.430 sets forth acts that are specifically prohibited under part IV. The section states that it is a violation of part IV for any person to:
“cause pollution…so as to harm or injure human health or welfare, animal, plant, or aquatic life or property;…fail to obtain any required permit…or to violate or fail to comply with any rule, regulation, order, or permit [pursuant to part IV]; knowingly make any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained under [part IV]…; or…knowingly render inaccurate any required monitoring device.”
Types of Actions
• Actions May Be Maintained for Injunctive Relief, Civil Penalties, Costs, and Attorneys’ Fees — There are basically four remedies for a violation of agency rules or permits pursuant to part II, III, or IV, F.S. Ch. 373: injunctive relief, civil penalties, damages, and costs. Damages to state resources include the reasonable costs and expenses of the state in tracing the source of the discharge, controlling and abating the source and the pollutants, and restoring waters and property, including animal, plant, and aquatic life to their former condition.11
Remedies are cumulative. Section 373.129 grants agencies the authority to commence and maintain an action in any court of competent jurisdiction to enforce rules, regulations, and orders adopted or issued pursuant to Ch. 373; enjoin or abate violations of Ch. 373 or rules, regulations, and orders adopted pursuant thereto;12 and protect and preserve the water resources of the state.
This section further provides the agencies may recover a civil penalty for each offense up to $10,000 per day per offense, with each day during which the violation occurs constituting a separate offense. Under F.S. §§373.129(6) and 373.136, WMDs are also authorized to collect investigative costs, court costs, and reasonable attorneys’ fees. Additional statutory provisions are set forth for the violation of part IV, pertaining to the management and storage of surface waters.13
• Misdemeanor and Felony Penalties — A person is guilty of a felony of the third degree who willfully causes pollution; fails to obtain required permits; violates any agency rule, regulation, order, or permit; makes a false statement or certification in any document filed with the WMD or DEP; or tampers with monitoring devices.14 Penalties are pursued through the state attorney’s office and can include a fine of not more than $50,000 or imprisonment for five years, or both, for each offense. Each day, or portion thereof, during which a violation occurs constitutes a separate offense.15
A person is guilty of a misdemeanor of the second degree if the violation is due to reckless indifference or gross careless disregard. The violation is punishable by a fine of not more than $5,000, 60 days in jail, or both, for each offense.16
Penalties imposed under this section must be of a sufficient amount to ensure compliance. F.S. §373.430(6) states: “It is the intent of the [l]egislature that the civil penalties imposed by the court be of such amount as to ensure immediate and continued compliance with this section.”
• Administrative Enforcement — F.S. §§373.119 and 403.121 provide for administrative enforcement. If a violation of F.S. Ch. 373, the rules, or of a permit has occurred, is occurring, or is about to occur, a written complaint may be served on the alleged violator. The complaint sets forth the alleged violation and may order corrective action. The order becomes final unless a hearing is requested within 14 days of service. When the agency finds an emergency exists that requires immediate action to protect public health, safety, or welfare; the health of animals, fish, or aquatic life; a public water supply; or recreational, commercial, industrial, agricultural, or other reasonable uses, immediate action may be taken.
The agency may institute an administrative proceeding in accordance with F.S. §403.121 to establish liability; require corrective actions; recover damages for injury to water, animals, plants, or aquatic life caused by a violation; and to impose penalties up to $10,000. Administrative orders may be enforced in any court of competent jurisdiction under F.S. Ch. 120. If an administrative proceeding is brought by the agency seeking the imposition of penalties, the prevailing party recovers all costs under F.S. §§57.041 and 57.071.17
An administrative proceeding is initiated when a written notice of violation (NOV) is served by certified mail, hand delivery, or service pursuant to F.S. Ch. 48.18 An order for corrective action, penalty, assessment, or damages may be included with the NOV. When an administrative penalty is sought through a NOV, any corrective action required must be pursued in the NOV, or it is waived. The order will not become effective until after service and an administrative hearing, if one is requested within 20 days. Final orders are subject to review by a district court of appeal. The respondent may file a written notice within 20 days of service choosing to opt out of the administrative process. The agency may then initiate a state court action.19
If an administrative hearing is requested, the agency will review the petition to determine if it meets the F.S. Ch. 120 requirements. The agency may also determine if the petition is timely, if standing has been adequately plead, and if the petition is limited to allegations within the jurisdiction of F.S. Ch. 373. If a sufficient petition is filed under F.S. §373.119, it will be referred to the Division of Administrative Hearings for the assignment of an administrative law judge (ALJ). If the administrative action does not involve penalties, the ALJ will issue a recommended order that will be sent back to the agency. The agency normally accepts the findings of fact made by the ALJ, unless there is not competent and substantial evidence to support them. The parties may file exceptions. The agency rules upon the exceptions and then files a final order either adopting, rejecting, or amending the order of the ALJ. The ALJ’s order is final with respect to the penalties. Orders can be appealed to the district court of appeal, pursuant to F.S. §120.68.
If a petition is not filed, and the respondent does not comply with the order for corrective action, the agency can seek judicial enforcement of the order. The court then has the authority to review the specific statutory defenses to the order and the appropriateness of the relief and can award attorneys’ fees and costs.
• Remedial Actions for Environmental Resource Projects — After an inspection under F.S. §373.423(3), the agency must determine what alterations or repairs are necessary to comply with the agency permit criteria. An order may then be issued requiring that such alterations and repairs be made within a certain time, pursuant to F.S. §373.436. A written petition may be filed by the respondent/violator within 14 days after the order is served.
The agency may cause the alterations or repairs to be made if the owner fails to make the alterations or repairs after the order becomes final. The cost of the repairs or alterations must then be a lien against the property. The agency must also be reimbursed for attorneys’ fees and reasonable interest.
The Enforcement Process When a Voluntary Resolution is Reached
The enforcement process may begin with a notice of investigation, a notice of violation, a notice of noncompliance, a warning letter, or a stop-work notification. A consent order or order for corrective action may accompany the notice of violation in more serious cases.
Thereafter, the agency may follow with a letter in aid of settlement, which spells out the terms under which the agency is agreeable to resolve the violation. This will normally involve the payment of costs and penalties and a resolution to the violation.
Settlements are memorialized in a consent agreement or consent order. A consent agreement is a final agency action when all parties and the agency have, by negotiation, arrived at a resolution of the alleged violation. The executed consent agreement has the same force and effect as a final order entered after a formal administrative hearing pursuant to F.S. §120.57.20
The respondent will be required to apply for a permit within a reasonably specified time period, if the violation is one that could be allowed if a permit had been applied for and received. The agreement may also provide time periods for compliance with requests for additional information. The respondent must restore the site to its pre-violation condition if a permit is not received within a specified time period.
The respondent will also be required to restore the site to pre-construction conditions if the violation is not an activity that can be permitted. The respondent will be required to provide mitigation to offset any adverse impacts. Normally, a detailed mitigation plan will be attached as an exhibit to the consent agreement.
The South Florida Water Management District (SFWMD) relies upon the U.S. Environmental Protection Agency penalty matrix to determine civil penalties. The civil penalty matrix is incorporated by reference in F.A.C.R. 40E-1.715. The matrix reflects the statutory authority under F.S. §373.129 to seek civil penalties of up to $10,000 per day, per violation, with each day constituting a separate violation. The matrix is composed of the following components: the actual or potential harm to the public and the environment due to the violation; the extent of deviation from statutory or regulatory requirements; and the economic benefit, which the violator may have gained through noncompliance.21
The St. Johns River Water Management District (SJRWMD) and DEP utilize a two-prong penalty matrix. The first prong considers the extent of deviation from permit or rule requirements. The second prong considers the potential for harm to the water resources. After a penalty amount is determined utilizing the matrix, adjustment factors are applied, including the economic benefit gained from noncompliance, the history of noncompliance, and whether there was a good- or bad-faith effort to comply and resolve the violation.
In 2007, DEP adopted a program directive setting forth settlement guidelines for civil and administrative penalties. “The guidelines are intended to provide a rational, fair, and consistent method for determining the appropriate amount of civil and administrative penalties the department should seek from responsible parties in setting enforcement actions.”22 The program directive contains penalty calculation matrices. In a rule challenge contending that DEP’s penalty guidelines constitute an unpromulgated rule, the final order concluded they do not constitute a statement of “general applicability” and, therefore, do not meet the definition of a rule.23
Who Will Be the Respondent in an ERP Enforcement Action?
Questions often arise about who should be the respondent in an enforcement action when permitted property was sold to a third party, but the permit has not been transferred. This issue is addressed in F.A.C. §62-330.340(5), which states:
“(5) A permittee from whom the permit is transferred shall:
“(a) Be jointly and severally liable with the new owner or permittee for compliance with the permit and for any corrective actions that may be required as a result of violations of the permit or [a]gency rule on the property prior to permit transfer; and
“(b) Remain liable for any corrective actions that are required as a result of any violations of the permit that occurred prior to the change in ownership or control of the property upon which the permitted project or activity is located.”
For operation and maintenance entities, this question is answered in the SWERP AH Vol. I, §1.2.1(d). This section states: “[T]he permittee shall remain liable until the permit is transferred to the operation and maintenance entity by the [a]gency.”
The new owner who has not accepted the permit is not, however, without exposure. The new owner is violating agency rules by operating the SWM system without a permit. Operation of a SWM system does not necessarily require an affirmative act by the new owner. Normal flow of rainwater into stormwater management ponds is considered operation of a SWM system. The agency may, therefore, take an enforcement action against the new owner for operating a SWM system without a permit, which may include penalties and costs under F.S. §373.129. Actions against the original permittee and the landowner who is operating a SWM system without a permit may be pursued simultaneously.
Delegation to Local Governments
DEP can delegate the ERP program, or portions thereof, to local governments. The same type of actions may be maintained by local governments that have been delegated authority pursuant to F.S. §373.103(8).
DEP and SFWMD delegated to Broward County Department of Environmental Resource Management (DERM) the regulation of specifically listed ERP activities in specific geographic areas within Broward County.24 The goal is to provide an efficient, effective, and streamlined ERP program. This allows for “one-stop permitting” for delegated activities because the applicant applies for and receives one permit from Broward County DERM, satisfying both Broward County and the SFWMD or DEP environmental resource permitting requirements. Enforcement of the delegated activities is also conducted by Broward County DERM. This delegation does not, however, prevent enforcement by the SFWMD or DEP.
In 2005, the SFWMD delegated the well construction program to counties within the SFWMD’s jurisdiction. The counties regulate the construction of wells, pursuant to individual agreements. The counties conduct monitoring and enforcement activities to ensure compliance with the provisions of well construction permits. However, the delegation agreements do not preclude the SFWMD from conducting enforcement activities.
In February 2012, DEP delegated certain permitting, compliance, and enforcement responsibilities to the Hillsboro County Environmental Protection Commission (Hillsboro). This delegation includes compliance and enforcement of any activity that is the responsibility of Hillsboro under the agreement. DEP may still initiate an action when requested by Hillsboro or when Hillsboro is not resolving the violation in a timely manner. DEP shall not initiate a separate enforcement action when Hillsboro has resolved a violation under its delegated authority through a final order or judgment.
Local governments with delegated ERP programs may deposit civil penalties in a local water pollution control program trust fund. Civil penalties deposited into the fund that are recovered for violations of state water quality standards may only be used to restore water quality in the area that was the subject of the action. Civil penalties recovered for violations of water quantity standards may only be used to purchase lands and make capital improvements associated with surface water management or other purposes related to the management and storage of surface water.
Any person who violates any rule, regulation, order, or permit of a local government pursuant to a delegated ERP program may also be subject to the fines and misdemeanor or felony penalties set forth in F.S. §373.430, and the administrative enforcement procedures set forth in F.S. §§403.121(1) and (2).
Compliance and Enforcement Coordination with the ACOE
On September 4, 2012, a new operating agreement was entered into among the Army Corps of Engineers (ACOE), DEP, and the five WMDs. The new operating agreement also applies to delegated local governments. This operating agreement’s purpose is to coordinate the permitting, compliance, and enforcement programs among the agencies concerning the regulation of activities that affect waters of the U.S. under the jurisdiction of the ACOE, as well as wetlands and other surface waters under the jurisdiction of DEP and the WMDs.25
The operating agreement provides the parties may coordinate their enforcement activities when it is appropriate to maximize the limited resources of the agencies and encourage compliance. However, regardless of coordination, each agency maintains its independent enforcement authority and discretion.
1 DEP and the WMDs are engaged in rulemaking, commonly known as SWERP II. The purpose of this rulemaking is primarily to clarify language, make technical corrections, and update and adopt additional forms.
2 F.A.C.R. 62-330.010.
3 Fla. Stat. §373.019(21).
4 Specifically, the rules are found as follows: Ch. 40A for Northwest Florida Water Management District; Ch. 40B for Suwannee River Water Management District; Ch. 40C for St. Johns Water Management District; Ch. 40D for Southwest Florida Water Management District; Ch. 40E for South Florida Water Management District.
5 1 Applicant’s Handbook §1.1.
6 An artesian well is an artificial hole in the ground from which water supplies may be obtained and which penetrates any water-bearing rock. The water therein is raised to the surface by natural flow or rises to an elevation above the top of the water-bearing bed. They include all holes drilled as a source of water that penetrates any water-bearing beds that are part of the artesian water system of Florida. Fla. Stat. §373.203(f)(2).
7 Fla. Stat. §373.209.
8 Fla. Stat. §373.209(3)(b).
9 Fla. Stat. §373.609.
10 See Water Well Contractor Disciplinary Guidelines and Procedures Manual (Oct. 1992); Florida Unified Citations Dictionary for Water Well Construction (Sept. 1992).
11 Fla. Stat. §403.141.
12 See also Fla. Stat. §373.136.
13 The additional statutory provisions are set forth in Fla. Stat. §§373.430; 403.121(1) and (2); 403.131; 403.141; and 403.161.
14 Fla. Stat. §373.430.
15 See also Fla. Stat. §§775.082(4)(b), 775.083(1)(g).
16 Fla. Stat. §373.430(4).
17 DEP is required to use these administrative procedures if the penalty does not exceed $10,000. However, this does not limit DEP’s ability to pursue injunctive relief. See Fla. Stat. §§403.121(2)(g), 403.131; Fla. Stat. §403.121(2)(f).
18 Fla. Stat. §403.121.
19 Fla. Stat. §403.121(2)(c); see also F.A.C.R. 40E-1.711.
20 See also F.A.C.R. 40E-1.711(2)(a).
21 F.A.C.R. 40E-1.715.
22 Dep’t of Envt’l Prot., Program Directive, DEP 923, Settlement Guidelines for Civil and Administrative Penalties (July 17, 2007).
23 See Envirochem Envtl. Servs. v. Dep’t of Envtl. Prot., Case No. 93-5553RU (Fla. DOAH Feb. 9, 1994).
24 The areas excluded from the delegation are as follows: special-taxing districts, independent drainage districts, water control districts, community development districts, certain tribe lands, the Everglades buffer strip, and water conservation areas. These areas encompass most of the currently undeveloped lands in western Broward County delegation agreement among the Florida Department of Environmental Protection, the South Florida Water Management District, and Broward County.
25 The new operating agreement supersedes the operating agreement entered into among these parties on November 30, 1998. See Operating Agreements Between U.S. Army Corps of Engineers and DEP, Dep’t of Envt’l Prot. (Sept. 4, 2012), available at http://www.dep.state.fl.us/legal/Operating_Agreement/operating_agreements.htm#fed.
Susan Roeder Martin is a senior practice expert attorney with the South Florida Water Management District. She is an expert in environmental resource permit issues and administrative law. Martin graduated from the University of Florida College of Law, with honors, and received her B.S. from Florida Atlantic University. She is a Supreme Court certified mediator, and board certified in state and federal government and administrative practice. She is also accredited by the Green Building Certification Institute as a leadership in energy and environmental design (LEED) professional.
This column is submitted on behalf of the Environmental and Land Use Law Section, Janet E. Bowman, chair, and Susan Martin, editor.