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The New Scope of Florida’s Water Quality Assurance Act

Environmental & Land Use Law

Florida has long prioritized the preservation of its coastal waters and lands, ground water, and surface waters. In 1970, the Florida Legislature enacted the Pollution Discharge Prevention and Control Act (PDPCA),[1] and in 1983 it enacted the Water Quality Assurance Act (WQAA).[2] These two pieces of legislation are designed to support and complement the federal Clean Water Act (CWA).[3] Among other things, Florida’s statutory scheme prohibits the discharge of any pollutant or hazardous substance into coastal waters, coastal lands, surface water, and ground water in violation of any department standard and provides a private cause of action for damages resulting from unauthorized discharges.

The scope of the WQAA’s private cause of action provision has been a hot topic over the past few years because of the Florida Supreme Court’s opinion in Lieupo v. Simon’s Trucking, Inc., 286 So. 3d 143 (Fla. 2019), and the federal case, Irizarry v. Orlando Utilities Commission, 393 F. Supp. 3d 1110 (M.D. Fla. 2019).[4] This article discusses the relevant issues in these two cases and their impact on the WQAA, as well as recent attempts by the Florida Legislature to amend the WQAA.

Overview of the Water Quality Assurance Act, F.S. §§376.30-376.317

F.S. §376.313(3) is the private cause of action provision of the WQAA and it states as follows:

Except as provided in [provision regarding drycleaning facilities], nothing contained in [the WQAA] prohibits any person from bringing a cause of action in a court of competent jurisdiction for all damages resulting from a discharge or other condition of pollution covered by [the WQAA] and which was not authorized pursuant to chapter 403. Nothing in this chapter shall prohibit or diminish a party’s right to contribution from other parties jointly or severally liable for a prohibited discharge of pollutants or hazardous substances or other pollution conditions. Except as otherwise provided in subsection (4) or subsection (5), in any such suit, it is not necessary for such person to plead or prove negligence in any form or manner. Such person need only plead and prove the fact of the prohibited discharge or other pollutive condition and that it has occurred. The only defenses to such cause of action shall be those specified in s. 376.308.

The WQAA defines the term “pollutant” to “include any [commodity made from oil or gas], pesticides, ammonia, chlorine, and derivatives thereof, excluding liquefied petroleum gas.”[5] The term “pollution” is defined as “the presence on the land or in the waters of the state of pollutants in quantities that are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property or which may unreasonably interfere with the enjoyment of life or property, including outdoor recreation.”[6]

In Coffie v. Florida Crystals Corporation, 460 F. Supp. 3d 1297 (S.D. Fla. 2020), property owners filed a complaint against a sugarcane farming company alleging that the smoke and ash, i.e., “black snow,” produced from the company’s preharvest burning activities contained hazardous compounds that traveled through the air and were deposited onto plaintiffs’ properties, causing damage.[7] Plaintiffs alleged that the pollutants, pesticides, fungicides, and contaminants contained in the black snow were a prohibited discharge under §376.313(3).[8] Defendant asserted that plaintiffs failed to allege a discharge of any “pollutant” at levels that were potentially harmful or injurious to human health or welfare because the only listed chemical in the smoke explicitly covered by the definition of “pollutant” was ammonia.[9] The court agreed with the plaintiffs that the definition of “pollutant” was broader than the listed chemicals because the statute used the word “include” before the explicitly listed chemicals, thus, plaintiffs adequately alleged the emission of pollutants.[10]

The WQAA defines the term “discharge” as “includes, but is not limited to, any spilling, leaking, seeping, pouring, misapplying, emitting, emptying, releasing, or dumping of any pollutant or hazardous substance which occurs and which affects lands and the surface and ground waters of the state not regulated by ss. 376.011-376.21.”[11] The definition of “discharge” was a key argument in defendants’ motions to dismiss in Irizarry, as discussed later in this article.

The WQAA also creates a right to contribution from parties who are jointly and severally liable, it provides the standard for pleading and proof (strict liability), and provides a limited list of defenses that are 1) an act of war, 2) an act of government, 3) an act of God, and 4) an act or omission of a third party.[12] Other key features of the WQAA are that remedies are cumulative and not exclusive, a plaintiff can seek “all damages” caused by an unlawful discharge or condition of pollution, and there is a provision for attorneys’ fees whereby the court may award “costs of litigation (including reasonable attorneys’ and expert witness fees) to any party, whenever the court determines such an award is in the public interest.”[13]

In Courtney Enterprises, Inc. v. Publix Super Markets, Inc., 788 So. 2d 1045 (Fla. 2d DCA 2001), a property owner brought an action against shopping center operator Publix for damages based on negligence, nuisance, trespass, and strict liability under §376.313(3), for the reduction in the value of its premises due to dry cleaning chemical pollution by one of Publix’s tenants. Publix argued that it had obtained a certificate from the state declaring that it was eligible for the dry cleaning clean-up program under F.S. §376.3078, and its eligibility for this program immunized it from legal action.[14] The trial court agreed with Publix, but on appeal, the district court held that the WQAA did not make Publix immune from a common law action for diminution of value of property.[15] In other words, Publix enjoyed immunity from a cause of action brought pursuant to the WQAA because it was eligible for the dry cleaning clean-up program, but Publix was not immune from common law causes of action. Thus, the WQAA was not the property owner’s exclusive remedy.

In Cotromano v. United Technologies Corporation, 2018 WL 2047468, at *1 (S.D. Fla. May 2, 2018), a group of homeowners brought a class action lawsuit against defendants, who operated rocket and aerospace testing and manufacturing facilities north of plaintiffs’ residential community, alleging that defendants released toxic contaminants into the air, water, and soil at the facilities and in the surrounding communities and that some of the contaminants migrated onto the plaintiffs’ residential community via groundwater or soil transport. Plaintiffs claimed that their properties were either contaminated, at risk of future contamination, or in the proximity of contaminated property because of defendants’ environmental abuses, and that plaintiffs suffered a loss of use and enjoyment of their property and diminution in their property values.[16]

Putative class representatives, all of whom had a child declared to be a member of a pediatric brain tumor cluster designated by the Florida Department of Health, averred that “the general public and relevant real estate market harbor a perception that there is an elevated risk to human health posed by residing near industrial operations known to have released harmful contaminants into the groundwater (shared aquifer) and soil.”[17] Plaintiffs’ expert report contained a methodology for calculating class-wide “environmental stigma damages” for the 18,000 properties located within the 60-square-mile class area.[18] Although the court found that the expert testimony on class-wide diminution values was inadmissible under Daubert and declined to certify the proposed class for lack of predominance, the court continued to recognize the concept of environmental stigma damages as part of “all damages” in a WQAA action.[19]

In other WQAA actions, plaintiffs have sought a variety of compensatory and special damages such as economic damages,[20] remediation costs,[21] and even personal injury damages,[22] as discussed next in this article. The WQAA does not, however, provide for equitable relief such as an injunction.[23] These features illustrate the plaintiff-friendly nature of the private cause of action provision of the WQAA and why it is a powerful tool in a practitioner’s toolbox.

Expanding the Scope of Damages under Lieupo

Traditionally, damages for personal injuries were not allowed under the WQAA. However, on December 19, 2019, the Florida Supreme Court decided the most significant environmental law case in recent years with its opinion in Lieupo. The case was submitted to the court by the First District Court of Appeal, which certified the following question of great public importance: “Does the private cause of action provision contained in section 376.313(3), Florida Statutes, permit recovery for personal injury?” Prior to Lieupo, the answer was “no” based on the court’s opinion in Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216 (Fla. 2010), but the court revisited Curd and receded from its precedent.

The relevant issue in Curd was whether §376.313(3) allowed commercial fishermen to recover damages for their loss of income due to a spill of pollution from a fertilizer storage facility that resulted in the loss of fish, bait fish, crabs, and other marine life, even though the fishermen did not own any of the property damaged (waters or marine life).[24] Section 376.313(3) provides that “nothing [in the WQAA] prohibits any person from bringing a cause of action…for all damages resulting from a discharge or other condition of pollution covered by [the WQAA] and which was not authorized pursuant to chapter 403.” The court held that the language used in §376.313(3) was clear and unambiguous and allowed any person to recover for damages suffered as a result of pollution, which included the commercial fisherman.[25] As part of its holding, the court applied the definition of “damages” from the sister act PDPCA since the WQAA does not define the term “damages.”[26] In doing so, the court explained that the PDPCA’s definition of “damages” specifically excluded personal injuries.[27] Thus, for 10 years Florida courts applied Curd to preclude damages for personal injuries for claims asserted under the WQAA. Enter Lieupo.

In Lieupo, a complaint was filed against Simon’s Trucking, Inc., alleging strict liability under §376.313(3) for injuries suffered after one of its tractor trailers was involved in an accident while transporting batteries.[28] Mr. Lieupo responded to the scene of the accident to tow away the tractor trailer and came into contact with spilled battery acid, which burned him.[29] Simon’s Trucking argued that Lieupo could not recover damages under §376.313(3) because that statute did not permit recovery for personal injuries, but the trial court rejected the argument and the case proceeded to trial. The jury found that the battery acid caused Lieupo’s injuries and awarded him a total of $5,211,500 in damages.[30] Simon’s Trucking appealed and the First District Court of Appeal reversed the trial court’s judgment, explaining that pursuant to binding precedent set forth in Curd, the trial court should have applied the PDPCA’s definition of “damages,” which precluded Lieupo’s cause of action for personal injuries.[31] The district court also certified a question of great public importance: “Does the private cause of action contained in section 376.313(3), Florida Statutes, permit recovery for personal injury?”[32]

The Florida Supreme Court accepted jurisdiction and, after acknowledging that the district court was bound to follow Curd at the time of its opinion, receded from its precedent in Curd.[33] The court explained that F.S. §376.031, plainly specified that the definition of “damages” applies to the PDPCA — therefore, it does not also apply to the WQAA, under which Lieupo filed his complaint. Thus, Lieupo’s claim for personal injuries was not precluded.[34]

Since the Florida Supreme Court’s decision in Lieupo, subsequent court opinions have cited the case for the proposition that when a statute does not define a word, it must be construed in its plain and ordinary sense.[35] No other court has relied on Lieupo to award damages for personal injury, yet. After Lieupo, the U.S. District Court further defined the scope of the WQAA in Irizarry.

Expanding the Scope of What Constitutes a “Discharge” under Irizarry

On March 27, 2019, a group of Orlando residents living in neighborhoods immediately north of the Curtis H. Stanton Energy Center, a power plant owned and operated by Orlando Utility Commission (OUC), filed an amended class action complaint in Orange County Circuit Court against OUC alleging two causes of action: 1) strict liability under §376.313(3); and 2) inverse condemnation under Fla. Const. art. X, §6(a).[36] Plaintiffs also asserted individual counts of strict liability under §376.313(3) against residential developers Lennar Corporation, U.S. Home Corporation, Avalon Park Group Management, Inc., and Beat Kahli (an individual) (hereafter referred to as “developer defendants”).[37] Plaintiffs alleged that their properties had been contaminated by organic compounds, radionuclides, and metals blown from OUC’s two coal-fired energy generation units, which constituted a discharge under §376.313(3), and that the developer defendants caused “conditions of pollution” under §376.313(3), by developing, building, and marketing homes in the area despite the alleged existence of contaminants from OUC in the soil and concrete.[38] Plaintiffs did not directly demand damages for personal injuries (Curd was still controlling precedent when the complaint was filed and served), but plaintiffs claimed that the contaminants were associated with a variety of illness and diseases, including certain cancers.[39] Plaintiffs sought compensatory damages; permanent injunctive relief; testing, assessment, excavation, and removal of all radioactive wastes; as well as expert fees, attorneys’ fees, costs, and interest.[40]

The case was removed to the U.S. District Court for the Middle District of Florida on the basis that the amended complaint explicitly incorporated the Price-Anderson Act, 42 U.S.C. §2210, by basing the alleged claims on allegations regarding radioactive materials. Plaintiffs also asserted a federal question under 28 U.S.C. §1331.[41]

Co-defendants Lennar Corporation and U.S. Homes Corporation moved to dismiss the amended complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).[42] Co-defendants Avalon Park Group Management and Mr. Kahli moved for dismissal under Rule 12(b)(6).[43] Among other arguments asserted, the developer defendants argued that plaintiffs failed to allege any act or omission that constituted a discharge in violation of the WQAA because the developer defendants’ alleged conduct of developing, building, managing, and marketing homes falls outside the scope of the prohibited conduct in §376.313(3).[44] Stated differently, the developer defendants argued that the type of business activities they had undertaken were not the type of conduct prohibited by the WQAA for the purpose of preserving surface and ground waters — the defendants’ conduct was unrelated to the discharge of pollution. The issue was one of first impression because no court had yet decided whether such activities constituted a “discharge” under the WQAA.

The court opined that the WQAA defined discharge “broadly to include any spilling, leaking, seeping, pouring, misapplying, emitting, emptying, releasing, or dumping of any pollutant or hazardous substance which occurs and which affects lands and the surface and ground waters of the state.”[45] The amended complaint claimed that the developer defendants’ activities of excavating and grading land released, dispersed, and disseminated pollutants, which constituted a discharge, and also claimed that the developer defendants misapplied contaminants by constructing homes using concrete made from contaminated coal ash.[46] The court held that disseminating, spreading, grading, excavating, and causing further spread of contamination, as plaintiffs alleged, is actionable under §376.313(3) despite defendants’ status as second order actors.[47] Thus, the court rejected the developer defendants’ basis for dismissal.

Effect of Lieupo and Irizarry on the WQAA and the Potential Legislative Solution

The current state of the law is that any person can bring an action under the WQAA for damages, including personal injuries, suffered because of a discharge of pollution or condition of pollution, even development and construction-related activities involving contaminated soils.

The effects of Lieupo could be far-reaching across a variety of businesses and industries. Now, businesses and individuals who face potential liability for damages such as stigma damages, property damage, and loss of income under §376.313(3), could also face claims for personal injury damages. Although this result does not appear to be the intent of the statute’s drafters, OUC candidly stated in its appellate brief to the 11th Circuit on a separate issue that “virtually nothing in the WQAA is clear.”[48] Equitable relief such as an injunction, however, is still unavailable because that is common law relief, and an action under §376.313(3) is not a common law cause of action.[49]

Irizarry is particularly significant to the residential and commercial development industry and the construction industry. Land developers, home builders, and even management companies could face liability for developing and marketing properties that are located near a facility that may be discharging pollutants as defined by the WQAA — even if that facility is highly regulated and maintains proper regulatory compliance, such as OUC.

During the 2021 legislative session, the Senate Committee on Environment and Natural Resources and Sen. Dennis Baxley, R-Lady Lake, sponsored S.B. 1350, which proposed several changes to Florida’s Brownfields Program, including amending the WQAA to limit damages to real and personal property directly resulting from prohibited discharges. However, the proposed legislation did not make it past the Senate Judiciary Committee. Additionally, the Agriculture and Natural Resources Subcommittee, State Affairs Committee, Ways and Means Committee, and Rep. Charlie Stone, R-Ocala, sponsored H.B. 1001 as a companion bill to S.B. 1350, but it died on the calendar. We will likely see proposed legislation in the following legislative sessions to address the availability of damages for personal injuries because, as the Florida Supreme Court advised, “[i]f the text of the statute is overly broad as suggested by Simon’s Trucking, that is an issue for the [l]egislature to address.”[50]

[1] Fla. Stat. §§376.011-376.21.

[2] Fla. Stat. §§376.30-376.317.

[3] 33 U.S.C. §§1251-1388 (Federal Water Pollution Control Act, commonly referred to as the Clean Water Act).

[4] The author served as co-counsel for defendants Avalon Park Group Management and Beat Kahli prior to joining Pennington, P.A.

[5] Fla. Stat. §376.301(36) (2020).

[6] Fla. Stat. §376.301(37) (2020).

[7] Coffie v. Fla. Crystals Corp., 460 F. Supp. 3d 1297, 1302-03 (S.D. Fla. 2020).

[8] Id. at 1311.

[9] Id. at 1312.

[10] Id.

[11] Fla. Stat. §376.301(13) (2020).

[12] Fla. Stat. §376.308 (2008).

[13] Fla. Stat. §376.313 (2013).

[14] Courtney Enter., Inc. v. Publix Super Markets, Inc., 788 So. 2d 1045, 1047 (Fla. 2d DCA 2001).

[15] Id. at 1048.

[16] Cotromano v. United Techs. Corp., 2018 WL 2047468, at *1 (S.D. Fla. May 2, 2018).

[17] Id. at *11.

[18] Id. at *13.

[19] See also Williams v. Mosaic Fertilizer, LLC, 2017 WL 5307920 (M.D. Fla. 2017), aff’d, 889 F.3d 1239 (11th Cir. 2018); Adinolfe v. United Techs. Corp., 768 F.3d 1161 (11th Cir. 2014); Pinares v. United Techs. Corp., 2012 WL 12854871 (S.D. Fla. 2012); St. Joe Co. v. Leslie, 912 So. 2d 21 (Fla. 1st DCA 2005).

[20] Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216 (Fla. 2010).

[21] City of Jacksonville v. Shoppes of Lakeside, Inc., 2018 WL 10502434 (M.D. Fla. 2018).

[22] Simon’s Trucking, Inc. v. Lieupo, 244 So. 3d 370, 371 (Fla. 1st DCA 2018), review granted, No. SC18-657, 2018 WL 5809833 (Fla. Nov. 6, 2018), and decision quashed, 286 So. 3d 143 (Fla. 2019).

[23] Irizarry v. Orlando Utilities Comm’n, 393 F. Supp. 3d 1110, 1119 (M.D. Fla. 2019) (holding that “[p]laintiffs cannot pursue equitable relief based on their [§]376.313, Fla. Stat. claims”). See also Italiano v. Jones Chems., Inc., 1997 WL 118426, at *3 (M.D. Fla. 1997) (granting motion to dismiss because “injunctive relief is an available remedy where a claimant seeks to enforce a common law right involving pollution”).

[24] Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216, 1219-20 (Fla. 2010).

[25] Id. at 1221.

[26] Id.

[27] Id.

[28] Lieupo, 286 So. 3d at 144.

[29] Id.

[30] Id.

[31] Id.

[32] Id.

[33] Id. at 144-45.

[34] Id. at 147.

[35] See, e.g., Page v. Deutsche Bank Tr. Co. Americas, 308 So. 3d 953, 958 (Fla. 2020) (when the conflict presents an issue of statutory construction, our review is de novo); Dozier v. Duval Cnty. Sch. Bd., 312 So. 3d 187, 193 (Fla. 1st DCA 2021) (when the statute at issue is clear and unambiguous, a resort to the rules of statutory construction is improper); Spielberg v. Progressive Select Ins. Co., 315 So. 3d 1, 2 (Fla. 4th DCA 2021) (the court does not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction); Butler v. State, 297 So. 3d 691, 693 (Fla. 1st DCA 2020), review denied, SC20-992, 2020 WL 6391276 (Fla. Nov. 2, 2020) (the court will consider the plain and ordinary understanding of words).

[36] Pl.’s Am. Class Action Compl. and Demand for Jury Trial, Irizarry v. Orlando Utilities Comm’n, No. 6:19-cv-268, 2019 WL 4101381 (M.D. Fla. Mar. 27, 2019).

[37] Id.

[38] Id.

[39] Id.

[40] Id.

[41] Def. OUC’s Notice of Removal, Irizarry v. Orlando Utilities Comm’n, No. 6:19-cv-268, ECF. No. 1 (M.D. Fla. Feb. 8, 2019).

[42] Defs. Lennar Corporation, Lennar Homes, LLC and U.S. Home Corporation’s Dispositive Mot. to Dismiss and Incorporated Mem. of Law, Irizarry v. Orlando Utilities Comm’n, No. 6:19-cv-268, 2019 WL 4101377 (M.D. Fla. Apr. 10, 2019).

[43] Defs. Avalon Park Group and Beat Kahli’s Dispositive Mot. to Dismiss Am. Class Action Compl. and Incorporated Mem. of Law, Irizarry v. Orlando Utilities Comm’n, No. 6:19-cv-268, 2019 WL 4101376 (M.D. Fla. Apr. 10, 2019).

[44] Id.

[45] Irizarry, 393 F. Supp. 3d at 1116-17.

[46] Id. at 1117.

[47] Id.

[48] Brief for Defendant-Appellant OUC at 10, Irizarry v. Orlando Utilities Comm’n, No. 20-12743, 2020 WL 5887773 at *3 (11th Cir. Oct. 1, 2020). See also Kaplan v. Peterson, 674 So. 2d 201, 206 (Fla. 5th DCA 1996) (Griffin, J., concurring in part) (“The statute is so badly drafted that if it does intend to create a cause of action, it opens up a real can of worms in terms of who can sue, where, and for what.”).

[49] Irizarry, 393 F. Supp. 3d at 1119.

[50] Lieupo, 286 So. 3d at 146.


Lauren D. BrooksLauren D. Brooks is an attorney at Pennington, P.A., in Tallahassee, where she concentrates on land use and environmental litigation and transactions, including due diligence and toxic torts. She received her B.S. from Clemson University and her J.D. from the University of Florida College of Law. She serves as secretary of the Environmental and Land Use Law Section, as well as chair of the section’s CLE Committee.

This column is submitted on behalf of the Environmental and Land Use Law Section, Susan Roeder Martin, chair and editor.

Environmental & Land Use Law