The New Scope of Florida's Water Quality Assurance Act.

• Author: Brooks, Lauren D.

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. [section][section]376.30-376.317

F.S. [section]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 [section]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 [section]376.313(3), for the reduction in the value of its premises due to dry cleaning chemical...