• Topics: Handbook of Florida Water Regulation

Handbook of Florida Water Regulation: Management and Storage of Surface Waters¹

Preface

This handbook is designed to provide an accurate, current, and authoritative summary of the principal federal and state (Florida) laws that directly or indirectly relate to agriculture. This handbook provides a basic overview of the many rights and responsibilities that farmers and farmland owners have under both federal and state laws as well as the appropriate contact information to obtain more detailed information. However, the reader should be aware that because the laws, administrative rulings, and court decisions on which this handbook is based are subject to constant revision, portions of this publication could become outdated at any time. Several details of cited laws are also left out due to space limitations.

This handbook is distributed with the understanding that the authors are not engaged in rendering legal or other professional advice, and the information contained herein should not be regarded as a substitute for professional advice. This handbook is not all inclusive in providing information to achieve compliance with the federal and state laws and regulations governing water protection. For these reasons, the use of these materials by any person constitutes an agreement to hold harmless the authors, the Florida Cooperative Extension Service, the Institute of Food and Agricultural Sciences, and the University of Florida for any liability claims, damages, or expenses that may be incurred by any person as a result of reference to or reliance on the information contained in this handbook.

Who Regulates the Management and Storage of Surface Waters?

In order to prevent harm to Florida's waters, both the Florida Department of Enviornmental Protection (FDEP) and the Florida water management districts' (FWMD) governing boards are vested with the authority to require Management and Storage of Surface Water (MSSW) permits and impose conditions on those permits. This authority is delegated almost entirely to FWMDs, which should be consulted before any alteration of surface water is undertaken (see FE616, Contact Agencies).

What Is Included under MSSW?

The scope of the statutes and rules governing surface water management extends basically to the construction, operation, or alteration of any "stormwater management system, dam, impoundment, reservoir, or appurtenant work." The statutory definitions of these terms generally amount to a capability to collectively regulate virtually every type of artificial or natural structure or construction that can be used to connect to, draw water from, drain water into, or be placed in or across surface water. In essence, they include all structures and constructions that can have an effect on surface water. These include:

• Dredging

• Filling

• Activities that create canals, ditches, culverts, impoundments, fill roads, buildings, and other impervious surfaces

What Are the Exemptions under MSSW?

In order to avoid putting unduly burdensome permitting requirements on farmers, the statute contains a qualified exception. People engaged in the occupation of agriculture, silviculture, floriculture, or horticulture may alter any tract of land without a MSSW permit so long as the practices are normal occupational activities whose sole or predominant purpose is not to obstruct or impound surface water. These "activities" include:

• Site preparation, clearing, fencing, or contouring to prevent soil erosion

• Soil preparation, plowing, planting, or harvesting

Each FWMD has entered a memorandum of agreement with the Florida Department of Agriculture and Consumer Services (FDACS) listing the proposed or existing activities that qualify for exemption to MSSW permitting; the memorandum of agreement includes the processes and procedures for evaluating whether an activity qualifies for the exemption. The exemption is qualified in that the impoundment or obstruction of surface waters may not be the chief purpose of the alteration. Construction or maintenance performed on dikes, dams, or levees in an agricultural closed system will be exempt from MSSW permitting requirements. (Closed system means a self-contained irrigation system used in farming that does not discharge off-site.) Nonetheless, these works must still comply with generally accepted engineering standards and, where the engineering practice is regulated by the state, this might require proper certification of the project and strict adherence with the original plans.

It is always wise to consult with the specific district when attempting to determine whether a proposed activity is exempt because a written notice from FDEP or the appropriate FWMD is sometimes required. Also, FWMDs will have the FDACS guidelines for determining whether the activity is actually exempt.

When Are MSSW Permits Required?

Certain FWMDs rely on the "threshold" concept to determine when a permit is required. For example, once a certain quantity of water is impounded by an activity or a certain size project is proposed, the appropriate FWMD will require a permit unless the activity is somehow exempt. Although statutory exemptions apply in all five FWMDs, permitting thresholds and exemptions adopted by rule will vary from district to district. Water quality and quantity considerations, as well as general environmental concerns, will be addressed in the MSSW permit application process. In addition, MSSW permits are now required before building a dry storage area for ten or more vessels if that storage area is associated with a boat launch.

As with other types of permits, revocation or modification of the MSSW permit may occur if the permit conditions or the statutory mandates are not met.

What Must Be Shown to Be Eligible for a MSSW Permit?

At the most basic level, the applicant must show that what is being planned will not be harmful to the water resources and that the planned activity will not be inconsistent with the objectives of the appropriate FWMD. In other words, the planned activity cannot be against the public interest.

If the planned activity will significantly degrade the water quality, the applicant may still be eligible for a permit if the applicant can show that the planned activity is clearly in the public interest. To determine whether or not a planned activity is clearly in the public interest, there are seven criteria that must be considered:

1. Whether the activity will adversely affect the public health, safety, welfare, or the property of others

2. Whether the activity will adversely affect fish and wildlife conservation, including threatened and endangered species and their habitat

3. Whether the activity will adversely affect navigation or the flow of water, or cause erosion

4. Whether the activity will adversely affect fishing or recreational values or marine productivity in the area of the activity

5. Whether the activity is permanent or temporary in nature

6. Whether the activity will adversely affect or will enhance significant historical and archaeological resources

7. Whether the current condition and value of activities occurring in the area will be affected by the planned activity

In addition, there are certain activities that have been listed as in the public interest, such as peat farming or any use of lands that constitutes part of conceptual reclamation plans, so it is best to check with the appropriate FWMD to see if a particular activity qualifies. If the applicant has trouble meeting the criteria of the appropriate FWMD, the applicant may still be eligible for a permit through mitigation as described below.

What Is Mitigation and Mitigation Banking?

Mitigation is the creation, maintenance, or restoration of a surface water area in exchange for the degradation of another area. If someone plans an activity that will degrade surface water in the area of activity, that person might still be eligible for a permit. However, that applicant will have to mitigate the damage by creating or restoring another area.

What Are the Penalties under MSSW?

Aside from modification and revocation of permits, FWMDs are empowered to impose civil penalties up to $10,000 per offense per day for mismanagement of surface water in violation of the statutes or permit conditions. In adddition to civil penalties, violations can involve criminal penalties. Specifically, any willful violation of the statute that results in pollution and damage to human health or welfare or the environment makes the violator guilty of a third-degree felony, punishable by a fine up to $50,000 and/or up to five years' imprisonment. A violator who causes pollution through reckless indifference or gross careless disregard is guilty of a second-degree misdemeanor, punishable by a fine up to $5,000 and/or six months' imprisonment for each offense. Furthermore, intentional violations of the statute, other than polluting, may be a first-degree misdemeanor, giving rise to a fine up to $10,000 and/or six months' imprisonment.

Are Other Permits Required under MSSW?

Regardless of whether MSSW permit requirements attach to the surface water management system, other permits may be necessary. For example, consumptive use permits apply to the taking and discharging of water for filling, replenishing, and maintaining water level in agricultural closed systems (see FE604, Consumptive Use), and fill permits may be necessary for below-threshold-dike (a dike that exists below the water line) building projects based on wetland considerations and federal regulations (see FE606, Activities in Wetlands and Watersheds).

After permit approval, following certain Best Management Practices (BMPs) is an excellent way to help ensure continuing compliance with government regulations. Examples include establishing buffer strips and streamside management zones around a system, maintaining streams and culverts so as not to affect upstream or downstream culverts, and carefully constructing access roads. The BMP manuals adopted by FDACS for different types of agricultural operations and different geographical regions can be found at the FDACS Office of Agricultural Water Policy website at http://www.floridaagwaterpolicy.com/BestMangementPractices.html.

Source

Chapter 373, Florida Statutes, Sections 373.403 to 373.459

Title 40, Florida Administrative Code (individual FWMD rules)

Contact Information

Surface Water Management and Storage (see FE616, Contact Agencies)

• S-1, Florida Water Management Districts

Acknowledgments

The authors are indebted to the personnel of both state and federal agencies who provided their time and advice in the preparation of this handbook.

The Institute of Food and Agricultural Sciences (IFAS) is an Equal Opportunity Institution authorized to provide research, educational information and other services only to individuals and institutions that function with non-discrimination with respect to race, creed, color, religion, age, disability, sex, sexual orientation, marital status, national origin, political opinions or affiliations. For more information on obtaining other extension publications, contact your county Cooperative Extension service.

U.S. Department of Agriculture, Cooperative Extension Service, University of Florida, IFAS, Florida A. & M. University Cooperative Extension Program, and Boards of County Commissioners Cooperating. Nick T. Place, Dean.

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