Addressing environmental permit issues prior to closing.

• Author: Martin, Susan Roeder
• Position: Florida

There are five regional water management districts (WMDs) in Florida that, together with the Department of Environmental Protection (DEP), oversee the water resources of the state of Florida. Jurisdiction over water resources is granted to the WMDs and DEP in F.S. Ch. 373, and WMD jurisdiction is divided on a watershed perspective. (1) Pursuant to the authority in Part IV of F.S. Ch. 373, the five WMDs issued rules in Title 40 of the Florida Administrative Code pertaining to environmental resource permits (ERP) for activities in, on, or over wetlands or other surface waters and the management and storage of surface waters. Fla. Admin. Code R. 40E4.011. (2) Prior to October 1995, the permits issued pursuant to Title 40 of the Florida Administrative Code were referred to as surface water management (SWM) or management and storage of surface water (MSSW) permits. The term surface water is very broad and means water upon the surface of the earth whether contained in bounds created naturally or artificially or diffused. F.S. [section] 373.019(16) (2005). Therefore, most properties in Florida either have an existing ERP, SWM, or MSSW permit or require an ERP. (3)

A SWM system may consist of lakes, swales, culverts, canals, pipes, ditches, other works, or even streets. The SWM system includes areas of dredging or filling. (4) Some SWM systems require affirmative acts of operation such as the running of pump stations or the opening and closing of gates that control the discharge of water. But in the majority of cases, the operation of the SWM system does not require an affirmative act. For example, after a rainfall, water may flow by gravity into a lake system or onto swales. Even though no affirmative act is required for operation of the SWM system, a permit is still generally required from a WMD or DEP pursuant to their authority in F.S. Ch. 373. The jurisdiction of the WMDs and DEP is therefore very broad.

Pursuant to F.S. Subsection 373.416(2), permits for operation and maintenance are permanent and are not affected by the sale or conveyance of the system provided the owner in whose name the permit was granted notifies the WMD or DEP of a change of ownership within 30 days of the transfer. It is important therefore that prior to closing on a purchase of property, an investigation be made to determine if the property has an ERP, SWM, or MSSW permit. Attention to environmental permit transfer issues prior to closing will facilitate site development and prevent many future problems. Unaddressed permit transfer issues typically become complicated after a closing. The problems are even greater if the parcel is conveyed to more than one purchaser, or the entire parcel is not conveyed. Prior to closing, parties are generally willing to work together to resolve permitting issues. The same incentive does not necessarily exist after the closing has occurred.

Determining if Property Has a Permit

In the South Florida Water Management District (SFWMD), a notice of permit is filed in the public records of the county in which the property is located providing notification of the existence of ERP and SWM permits for property in excess of 100 acres, having one or more acres of wetland impacts or more than nine boat slips. Fla. Admin. Code R. 40E-4.101(2). The SFWMD is in the process of rulemaking to extend the public notification to additional permits. This notice does not operate as an encumbrance on the property, but instead provides notification that the SFWMD should be contacted to determine the conditions of the permit. This notification provision has existed only since August 2003. Consequently, the SFWMD should be contacted to determine if the property received a permit prior to 2003 or for smaller projects. The other WMDs do not have similar public notice requirements. Consequently, they must be contacted to determine the status or existence of permits.

Permit Transfer Requirements

While WMD permit transfer rules are important, they are not burdensome. The permittee must notify the WMD in writing within 30 days of the transfer of any interest or control of permitted property. The notification itself does not operate to transfer the permit. Fla. Admin. Code R. 40B-4.1130, 40C-1.612, 40C-4.351, 40D-4.351, and 40E1.6105. While notification is not required until after the property transfer occurs, the more prudent course is to...