Florida Legislature Passes Long-awaited Water Bill

In the face of opposition from some environmental groups and newspaper editorial writers, on January 13, the second day of the 2016 legislative session, the Florida Senate cleared SB 552, characterized by its supporters as a comprehensive water protection bill. The next day, the House followed suit. A veto of the bill by Gov. Scott would appear to be highly unlikely. Here is a link to the bill: http://www.flsenate.gov/Session/Bill/2016/0552/BillText/er/PDF.

The new law modifies a number of existing statutes and statutory provisions which relate, at least primarily, to water resource allocation and protection. This new language will no doubt be interpreted, argued over, and in some instances further formalized into administrative code rules, as water managers and regulators move forward with its implementation. All of the nuances which will be applied and the decisions which will be made as to the meaning and intent of this language will be revealed in this administration process. While the requirements in this 134-page bill  render any detailed analysis in the form of a blog difficult, there are some time requirements in the legislation. Here are some of the more notable hard dates, some of which allow for extension or avoidance under particular circumstances:

• By July 1, 2017, the South Florida, Southwest Florida, and St. Johns River water management districts may each designate one “pilot alternative water supply development program”. To expedite implementation, pilot projects are not subject to rulemaking or legal challenges under the Administrative Procedure Act. These pilot projects may only be developed on private land with the voluntary consent of the landowner. A water management district may provide up to 50% of funding assistance for such a pilot project.
• By July 1, 2017, each water management district (except the Northwest Florida Water Management District) shall (by using emergency rulemaking procedures) adopt minimum flows and minimum water levels for Outstanding Florida Springs if one is not currently in place.
• By July 1, 2018, the Florida Department of Environmental Protection (“DEP”), in coordination with the water management districts, shall delineate priority focus areas for Outstanding Florida Springs or any group of springs that contain one or more Outstanding Florida Springs. The bill sets forth several ways in which such priority focus areas will be afforded particular attention by regulators.
• By July 1, 2018, DEP shall initiate an assessment of any Outstanding Florida Spring or springs system for which an impairment determination has not been made under the numeric standards in effect for spring vents.
• By July 1, 2018, DEP must, either on its own or in conjunction with a water management district, modify pre-existing basin management action plans to comply with the modified requirements elsewhere in the bill for the protection of water quality in Outstanding Florida Springs.
• By January 1, 2017, DEP, in consultation with the water management districts and the Department of Agriculture and Consumer Services, shall initiate rulemaking to verify water quality monitoring requirements in lieu of implementation of best management practices or “other measures ” designated by statute.
• Annually, beginning January 1, 2017, the Office of Economic and Demographic Research shall conduct an assessment of Florida’s water resources and conservation lands, including expenditures and projections of future expenditures by governments and utilities associated with water supply and demand and water quality protection and restoration .
• By January 1, 2017, DEP shall evaluate the cost and feasibility of creating a comprehensive web-based map of watersheds and water bodies which contains information about their water quality and whether they are the current focus of regulatory recovery efforts.

About the Author:
John L. Wharton is a member of Dean Mead’s Litigation department and both the Agribusiness and Governmental Relations, Lobbying & Administrative Law Industry Teams. He represents both public and private clients in cases from application creation to administrative litigation before state and federal agencies. He also practices general litigation in state and federal courts. Mr. Wharton has over 25 years of experience in Tallahassee practicing before and often litigating against numerous state agencies in the areas of water resource planning; permitting and regulation; mitigation banking; utility law and utility regulation; professional regulation and environmental law. He may be reached at jwharton@www.deanmead.com.