Water Resource Compliance and Enforcement.

AuthorMartin, Susan Roeder
PositionFlorida

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 Generally

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 well (6) 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. [section]373.209 is subject to either penalties under

F.S. [section]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. [section]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 [section]373.246, and pursue compliance in accordance with those orders. City and county...

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