Civil regulatory enforcement in Florida's water management districts: consistency within shifting tides.

• Author: Fernandez, Daniel P.
• Position: Administrative Law

A wise king named Solomon once wrote, "History merely repeats itself. It has all been done before. Nothing under the sun is truly new." (1) In some ways, this is true of environmental regulatory enforcement. Environmental law practitioners and the regulated public have seen the ebb and flow of enforcement as the helm of state government changes hands. Laws are enacted, amended, and sometimes repealed. Yet, the basic structure of environmental regulation remains substantially unchanged. In a typical regulatory scenario, permits are required for various activities that impact the environment, including the water resources. And, environmental regulatory agencies have a wide array of tools at their disposal in order to enforce the related laws and rules. The Florida Legislature has given these entities considerable discretion in the choice of remedies that may be used in a given case. Thus, while the intensity and vigor of environmental regulation has varied depending on the philosophy of the governor, the procedure for administrative and civil environmental enforcement (2) has remained largely unchanged.

Since the inception of modern environmental protection in the 1970s, there have been multiple levels of government that may have an environmental regulatory role with regard to a given property, facility, or activity. Excluding federal agencies, in Florida, these regulators include the Department of Environmental Protection (DEP), water management districts, and local governments, especially those with approved delegated programs. Since there are excellent articles on the DEP and local government enforcement programs in the Florida Environmental and Land Use Law Treatise, (3) this discussion deals primarily with water management districts, although some of the concepts may be more broadly applicable.

With their authority based in F.S. Ch. 373, the districts have jurisdiction over such issues as water supply, flood protection, water quality, and protection of natural systems. (4) The districts' major sources of authority to protect the state's water resources are found in Parts II and IV of Ch. 373, dealing with consumptive use of water and environmental resource permitting, respectively. Unless certain limited exemptions apply, permits are required prior to undertaking the regulated activity. Consumptive use or water use (5) permits are required prior to withdrawals of water from surface or groundwater sources. (6) And, prior to creating or altering a surface water management system, or impacting wetlands, an environmental resource permit must be obtained. (7) For the most part, once land development reaches a certain size, it will likely require an environmental resource permit. Failure to obtain one of these permits, or to comply with the terms and conditions of a permit, will usually trigger enforcement efforts by the district if discovered.

Informal Warning Letters

District personnel frequently attempt to resolve violations through cooperative means. An initial point of contact with an alleged violator is typically a warning letter (or notice). These letters or notices describe the observed violation, explain why the described activity violates Florida law or district rules, and may include corrective actions to be taken in order to resolve the violation. The warning letter should be taken seriously. It is imprudent to ignore these communications, hoping that the agency will forget about the situation and go away. Quite the contrary is true. If there is no response to the warning letter, another letter is likely to follow or more formal administrative or civil measures may be used. The warning letter presents an opportunity to define the nature and scope of the alleged violation, possibly avoid penalties or fines, and reduce any mitigation or restoration effort that may be required. In some rare cases, the respondent may be able to demonstrate that the district has made a mistake, i.e., that there was not a violation, that an exemption applies, or that the water management district has served the wrong party. The recipient of a warning letter would be wise to promptly initiate an informal dialog with district enforcement staff.

Administrative and Civil Remedies

If the informal warning letter does not prove effective in resolving a violation, the district may elect to escalate using the administrative process, civil litigation, or criminal sanctions. (8) The method used will vary from case to case depending on the nature and extent of the violation. Some of the factors that a district may evaluate in choosing a remedy include the nature and magnitude of the violation, the environmental harm, whether the violation is intentional, the costs involved, and the likelihood of success with a particular course of action. The DEP and the districts use matrices to calculate civil penalties. In the South Florida Water Management District, the two principal components that are used to determine a penalty are: "(a) The actual or potential harm to the public and the environment that may occur as a result of the violation; and (b) [t]he extent of deviation from statutory or regulatory requirements...." (9) These two factors comprise the axis of the matrix. Then, each axis has three subcategories: major, moderate, and minor. The intersection of these factors on the matrix provides a guideline for determining the severity of the violation and the amount of the proposed penalty.

Once a penalty amount is determined from the matrix, other factors may be taken into consideration to increase or decrease the penalty. For example, the district may weigh a respondent's good faith attempts to comply or willingness to cooperate as a basis for reducing the penalty. However, a refusal to stop an ongoing violation, failure to cooperate, or economic benefit gained by violation of the law or rules may justify increasing the penalty from the amount calculated with the...