The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Environment and Natural Resources
BILL: SB 738
INTRODUCER: Senator Burgess
SUBJECT: Environmental Management
DATE: January 9, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Barriero Rogers EN Pre-meeting
2. JU
3. FP
I. Summary:
SB 738 provides that the prevailing party in a challenge filed against an authorization by the
Department of Environmental Protection (DEP) or a water management district (WMD) is
entitled to recover reasonable costs and attorney fees in challenging or defending such
authorization, regardless of whether the nonprevailing party participated in the proceeding with
an improper purpose.
The bill requires the side slopes of nonindustrial stormwater management systems, in or adjacent
to residential or urban areas, be designed with a horizontal-to-vertical ratio no steeper than 4:1 to
a depth of at least two feet below the control elevation and be stabilized with vegetation. The bill
provides an exception if the slope incorporates erosion and sediment control best management
practices and is sufficiently fenced to prevent accidental incursion into the system. The bill
supersedes all side slope rules that have been adopted by DEP, WMDs, or delegated programs as
of July 1, 2024.
In addition, the bill clarifies that causes of action under the Water Quality Assurance Act must be
limited to damages to real or personal property directly resulting from pollution which was not
authorized by any government approval or permit. The bill provides that the strict liability
exceptions to such causes of action include those specified in s. 376.82, F.S., regarding the
rehabilitation of a brownfields site.
The bill also requires DEP and each WMD to conduct a holistic review of their respective
agency’s current coastal permitting processes and other permit programs to identify areas of
improvement and to increase efficiency within each process and program. The bill specifies the
factors DEP and WMDs must consider during their reviews. In addition, the bill provides that, by
December 31, 2024, DEP and each WMD must provide their findings and proposed solutions in
a report to the Governor and Legislature.
REVISED: BILL: SB 738 Page 2
II. Present Situation:
Stormwater Runoff
Nationwide, polluted stormwater runoff is considered to be the greatest threat to clean water.
1
Over 40 percent of waters assessed by the states are too polluted for fishing or swimming.
2
Nonpoint sources associated with stormwater account for over 40 percent of these polluted
waters.
3
Conversely, traditional point sources (i.e., wastewater treatment plants) account for only
about 10 percent of these polluted or “impaired” waters.
4
Hundreds of impaired water segments
in Florida have lost their designated use due, in part, to stormwater pollution.
5
Florida averages 40-60 inches of rainfall a year, depending on the location, with about two-thirds
falling between June and October.
6
Stormwater runoff generated during these rain events flows
over land or impervious surfaces, such as paved streets, parking lots, driveways, sidewalks, and
rooftops, and picks up pollutants like trash, chemicals, oils, and sediment along the way. This
unfiltered water ends up in streams, ponds, lakes, bays, wetlands, oceans, and groundwater.
Construction sites, lawns, improperly stored hazardous wastes, and illegal dumping are all
potential sources of stormwater pollutants.
7
Stormwater runoff can cause a multitude of problems:
Excess nutrients, primarily nitrogen and phosphorus from lawn fertilizers or natural sources,
such as manure, can cause algal and bacterial blooms that proliferate rapidly. Algae will
consume oxygen, increase turbidity in the waterbody, and eventually die along with the fish
and other aquatic life that need oxygen to live.
8
Pathogenic bacteria and microorganisms can be carried by stormwater into a waterbody. This
creates health hazards and can cause lakes and beaches to close to the public.
9
Sediment can increase the turbidity (a measure of water cloudiness) of a waterbody.
Turbidity can block sunlight from reaching aquatic plants, making it impossible for them to
grow. Without plants, animals lose a food source, and it is more difficult to filter pollutants
1
South Florida Water Management District (SFWMD), Your Impact on the Environment,
https://www.sfwmd.gov/community-residents/what-can-you-do (last visited Dec. 12, 2023).
2
Department of Environmental Protection (DEP), Stormwater Support, https://floridadep.gov/water/engineering-hydrology-
geology/content/stormwater-support (last visited Dec. 12, 2023). A recent study examining water quality across the U.S.
shows Florida ranks first in the nation for total acres of lakes classified as impaired for swimming and aquatic life (873,340
acres), and second for total lake acres listed as impaired for any use (935,808 acres). Environmental Integrity Project, The
Clean Water Act at 50, 28 (2022), available at https://environmentalintegrity.org/wp-content/uploads/2022/03/CWA@50-
report-3-17-22.pdf.
Florida also has the second most total square miles of impaired estuaries (2,533 square miles).
Id. at 29.
3
DEP, Stormwater Support, https://floridadep.gov/water/engineering-hydrology-geology/content/stormwater-support (last
visited Dec. 12, 2023).
4
Id.
5
Id.
6
University of Florida Institute of Food and Agricultural Sciences (UF/IFAS), Florida Rainfall Data Sources and Types, 1
(2023), available at https://edis.ifas.ufl.edu/publication/AE517.
7
U.S. Environmental Protection Agency (EPA), Urbanization and Stormwater Runoff,
https://www.epa.gov/sourcewaterprotection/urbanization-and-stormwater-runoff (last visited Dec. 12, 2023).
8
Southwest Florida Water Management District (SWFWMD), Stormwater Runoff,
https://www.swfwmd.state.fl.us/residents/education/kids/stormwater-runoff (last visited Dec. 12, 2023).
9
Id. BILL: SB 738 Page 3
from the water. Instead, pollutants collect at the bottom of the waterbody and remain there
indefinitely.
10
Debris such as plastic bags, bottles, and cigarette butts can wash into a waterbody and
interfere with aquatic life
11
and flood prevention and decrease water quality.
12
When a
stormwater drain gets clogged with debris, rainwater that normally would be collected cannot
enter into the drainage system. Water will accumulate around the drain, causing flooded
sidewalks or streets and increase the chances for flooding buildings.
Other hazardous wastes, such as insecticides, herbicides, paint, motor oil, and heavy metals,
can be carried by stormwater runoff to waterbodies and cause illness to aquatic life and
humans alike.
13
In addition, inadequate stormwater management increases stormwater flows and velocities,
contributes to erosion, overtaxes the carrying capacity of streams and other conveyances, reduces
ground water recharge, threatens public health and safety, and is the primary source of pollutant
loading entering Florida’s rivers, lakes, and estuaries.
14
Stormwater Management Systems
Stormwater management systems are engineered structures and strategies designed to control
and mitigate the effects of stormwater runoff. There are many types of stormwater management
systems, including constructed wetlands, bioswales, and stormwater ponds. Stormwater ponds
are defined as either retention or detention ponds. Retention ponds retain all the water within
them, allowing the water to percolate into the soil and preventing it from moving to other surface
waters. In contrast, detention ponds capture stormwater runoff and temporarily store it before
slowly releasing the water downstream.
15
While a best management practice for pollutant removal, stormwater ponds may create safety
hazards, including the risk of drowning.
16
Steep sides and slippery slopes can make it difficult
for a person to climb back out if they happen to fall in.
17
In addition, retention ponds are often
deep because they are designed for maximum rainwater collection.
18
Strong currents at inlet and
outlet areas of a pond can also pose a danger.
19
10
Id.
11
Id.
12
South Florida Water Management District (SFWMD), Your Impact on the Environment,
https://www.sfwmd.gov/community-residents/what-can-you-do (last visited Nov. 27, 2023).
13
SWFWMD, Stormwater Runoff, https://www.swfwmd.state.fl.us/residents/education/kids/stormwater-runoff (last visited
Jan. 3, 2024).
14
Fla. Admin. Code R. 62-40.431(2)(b).
15
Id.
16
City of Jacksonville, Retention Pond Safety, https://www.jacksonville.gov/welcome/welcome-news/retention-pond-safety
(last visited Jan. 3, 2024); see also U.S. Environmental Protection Agency (EPA), Stormwater Best Management Practice:
Wet Ponds, 4 (2021), available at https://www.epa.gov/system/files/documents/2021-11/bmp-wet-ponds.pdf.
17
City of Jacksonville, Retention Pond Safety.
18
Id.
19
Id. BILL: SB 738 Page 4
Wet Detention Ponds
Wet detention ponds are one of the most common types of detention systems and consist of
constructed basins that have a permanent pool of water into which stormwater runoff is
directed.
20
The runoff is detained in the pond until it is released downstream or displaced by
runoff from subsequent rain events.
21
By capturing and detaining runoff, wet detention ponds
control both stormwater quantity and quality.
22
Sedimentation processes remove particulates,
organic matter, and metals, while dissolved metals and nutrients are removed through biological
uptake.
23
Typical wet detention system
24
Specific designs may vary considerably, depending on site constraints, local regulations, and
preferences of the designer or community.
25
However, as shown above and discussed in further
detail below, the typical horizontal-to-vertical ratio for side slopes is 6:1 for littoral zones, no
steeper than 4:1 to a depth of at least two feet below the control elevation, and 2:1 at greater
depths. The littoral zone is that portion of a stormwater pond designed to contain rooted aquatic
plants and is usually provided by extending and gently sloping the sides of the pond down to a
depth of two to three feet below the normal water level or control elevation.
26
Vegetative littoral
zones help stabilize the soil around the pond’s edge and increase pollutant uptake.
27
20
EPA, Stormwater Best Management Practice: Wet Ponds at 1.
21
EPA, Stormwater Technology Fact Sheet: Wet detention ponds, 1 (1999), available at
https://nepis.epa.gov/Exe/ZyPDF.cgi/200044D0.PDF?Dockey=200044D0.PDF.
22
Id.
23
Id.
24
Northwest Florida Water Management District (NWFWMD), ERP Applicant’s Handbook: Vol. II, figure 8.1-1 (2013),
available at https://www.flrules.org/Gateway/reference.asp?No=Ref-03172. “T.O.B.” means top of bank.
25
EPA, Stormwater Best Management Practice: Wet Ponds, 2 (2021), available at
https://www.epa.gov/system/files/documents/2021-11/bmp-wet-ponds.pdf.
26
NWFWMD, ERP Applicant’s Handbook: Vol. II at s. 12.4.
27
EPA, Stormwater Best Management Practice: Wet Ponds, 2 (2021), available at
https://www.epa.gov/system/files/documents/2021-11/bmp-wet-ponds.pdf. BILL: SB 738 Page 5
Dry Retention Ponds
Unlike wet stormwater ponds, dry retention ponds do not have permanent pools of water or
discharge to downstream surface waters.
28
Instead, these systems remain dry until filled with
water during rain events.
29
Substantial amounts of suspended solids, heavy metals, bacteria, and
some varieties of pesticides and nutrients such as phosphorus are removed as runoff percolates
through the vegetation and soil.
30
Retention systems also promote the recharge of ground water
and help prevent saltwater intrusion in coastal areas.
31
Typical dry retention system
32
Stormwater Management System Design Criteria
Design criteria for stormwater management systems is regulated by the Department of
Environmental Protection (DEP), water management districts (WMDs), and delegated local
programs. Requirements vary by type of stormwater management system and regulating
authority.
In general, stormwater ponds must be designed with side slopes no steeper than a 4:1 horizontal-
to-vertical ratio to a depth of at least two feet below the control elevation.
33
However, certain
exceptions may apply. For example, the South Florida Water Management District (SFWMD)
provides alternative criteria for golf courses,
34
while other WMDs include exceptions for fenced
28
Suwannee River Water Management District (SRWMD), ERP Applicant’s Handbook: Vol. II, s. 5.1.1, available at
https://www.flrules.org/Gateway/reference.asp?No=Ref-03182.
29
Id. UF/IFAS, Stormwater Pond Management; What you need to know about aeration, 2 (2021), available at
https://edis.ifas.ufl.edu/publication/SS695.
30
SRWMD, ERP Applicant’s Handbook: Vol. II, s. 5.1.1, available at
https://www.flrules.org/Gateway/reference.asp?No=Ref-03182.
31
Id.
32
NWFWMD, ERP Applicant’s Handbook: Vol. II, figure 5.1-1 (2013), available at
https://www.flrules.org/Gateway/reference.asp?No=Ref-03172.
33
Id. at s. 8.11; SFWMD, ERP Applicant’s Handbook: Vol. II, s. 5.4.2 (2013) available at
https://www.flrules.org/Gateway/reference.asp?No=Ref-02528; St. Johns River Water Management District (SJRWMD),
ERP Applicant’s Handbook: Vol. II, ss. 2.6.1 and 8.12 (2013) available at
https://www.flrules.org/Gateway/reference.asp?No=Ref-03181; SRWMD, ERP Applicant’s Handbook: Vol. II, s. 4.5.1
(2013), available at https://www.flrules.org/Gateway/reference.asp?No=Ref-03182; SWFWMD, ERP Applicant’s
Handbook: Vol. II, s. 5.4.1 (2013) available at https://www.flrules.org/Gateway/reference.asp?No=Ref-03176.
34
SFWMD, ERP Applicant’s Handbook: Vol. II at s. 5.4.2(e). BILL: SB 738 Page 6
ponds
35
or ponds with slopes that incorporate erosion and sediment control best management
practices.
36
In addition, some WMDs require the stabilization of pond side slopes with
vegetation
37
or the creation of vegetative littoral zones.
38
Where necessary, littoral zones are
generally required to have slopes with a horizontal-to-vertical ratio of 6:1 or flatter.
39
Other stormwater management systems have different requirements. For example, swales must
have a top width to depth ratio of the cross-section equal to or greater than 6:1 or side slopes
equal to or greater than 3:1 horizontal-to-vertical ratio.
40
DEP has proposed revisions to the stormwater rules within Chapter 62-330 of the Florida
Administrative Code that require legislative ratification before taking effect. The proposed
revisions include some requirements for the design of stormwater ponds. For example, all side
slopes and bottom areas of dry retention ponds must be seeded or sodded with water-tolerant
grass species grown on sandy soils, and the permanent pool volume of wet detention ponds must
meet certain parameters.
41
While the proposed rules do not include express requirements for the
horizontal-to-vertical ratio of stormwater pond side slopes, they do include graphics similar to
the ones shown above that depict a typical side slope ratio of 4:1 for dry retention systems, 6:1
for wet detention systems, and 2:1 for wet detention slopes below the control elevation.
42
Infrastructure Permitting Process Review
Coastal Construction Permits
Coastal construction permits protect Florida’s beaches and dunes from imprudent construction
that may jeopardize the stability of Florida’s natural resources.
43
The coastal construction control
line (CCCL) defines the portion of the beach-dune system that is subject to severe fluctuations
caused by a 100-year storm surge, storm waves, or other forces such as wind, wave, or water
level changes.
44
Seaward of the CCCL, new construction and improvements to existing
structures require a CCCL permit from DEP.
45
The line defines the landward limit of DEP’s
authority to regulate construction.
46
DEP’s CCCL Program regulates structures and activities
35
SJRWMD, ERP Applicant’s Handbook, Vol. II at s. 2.6.1.
36
SRWMD, ERP Applicant’s Handbook: Vol. II at s. 4.5.1.
37
SRWMD, ERP Applicant’s Handbook: Vol. II at s. 4.5.1.
38
SJRWMD, ERP Applicant’s Handbook: Vol. II at s. 8.6; NWFWMD, ERP Applicant’s Handbook: Vol. II at s. 8.6.
39
Id.
40
Id. at 34. This is also the statutory definition of “swale.” Section 403.803(14)(a), F.S.
41
See DEP, ERP Applicant’s Handbook: Vol. I, appendices P-5 and P-6 (proposed 2023), available at
https://floridadep.gov/water/engineering-hydrology-geology/documents/erp-applicants-handbook-volume-i-appendixes-
rulemaking.
42
Id.
43
Section 161.053(1)(a), F.S.
44
Section 161.053, F.S.; Fla. Admin. Code R. 62B-33.005(1); DEP, The Homeowner’s Guide to the Coastal Construction
Control Line Program, 3 (2017), available at
https://floridadep.gov/sites/default/files/Homeowner%27s%20Guide%20to%20the%20CCCL%20Program%206_2012%20%
28002%29_0.pdf.
45
DEP, The Homeowner’s Guide to the Coastal Construction Control Line Program at 2.
46
Id. BILL: SB 738 Page 7
which can cause beach erosion, destabilize dunes, damage upland properties, or interfere with
public access.
47
CCCLs currently exist for large portions of Florida’s coast.
48
Due to the potential environmental impacts and greater risk of hazards from wind and flood, the
standards for construction seaward of the CCCL are often more stringent than those applied in
the rest of the coastal building zone.
49
Approval or denial of a permit application is based upon a
review of factors such as the location of structures and their potential impacts on the surrounding
area.
50
CCCLs are established by DEP on a county basis, but only after such a line has been
determined necessary for protecting upland structures and controlling beach erosion, and after a
public hearing has been held in the affected county.
51
These hearings are conducted in the
manner described in s. 120.54(3)(c), F.S., must be published in the Florida Administrative
Register in the same manner as a rule, and are subject to an invalidity challenge as described in s.
120.56(3), F.S. A petitioner may challenge a rule under s. 120.56(3), F.S., on the basis that it is
an invalid delegation of legislative authority, and must substantiate this allegation by a
preponderance of the evidence.
Joint Costal Permitting (JCP)
DEP implements a concurrent processing of applications for coastal construction permits,
environmental resource permits and sovereign submerged lands authorizations.
52
A JCP is
required for activities that meet all of the following criteria:
Located on Florida’s natural sandy beaches facing the Atlantic Ocean, the Gulf of Mexico,
the Straits of Florida or associated inlets.
Activities extending seaward of the mean high water line.
Activities extending into sovereign submerged lands.
Activities likely to affect the distribution of sand along the beach.
53
JCPs are typically required for beach restoration or nourishment; construction of erosion control
structures; public fishing piers; maintenance of inlets and inlet-related structures; and dredging of
navigation channels that include disposal of dredged material onto the beach or in the nearshore
area.
54
Environmental Resource Permits (ERPs)
Part IV of Chapter 373, F.S., and Chapter 62-330 of the Florida Administrative Code regulate the
statewide ERP program, which is the primary tool used by DEP and water management districts
(WMDs) for preserving natural resources and fish and wildlife, minimizing degradation of water
resources caused by stormwater discharges, and providing for the management of water and
47
DEP, Coastal Construction Control Line Program, https://floridadep.gov/water/coastal-construction-control-line (last
visited Jan. 5, 2023).
48
DEP, Geospatial Open Data, CCCL,
https://geodata.dep.state.fl.us/datasets/4674ee6d93894168933e99aa2f14b923_2/explore (last visited Jan. 5, 2023).
49
Fla. Admin. Code Ch. 62B-33.
50
Fla. Admin. Code R. 62B-33.005.
51
Section 161.053(2), F.S.
52
Section 161.055, F.S.; see also DEP, Beaches, Inlets and Ports, https://floridadep.gov/rcp/beaches-inlets-ports (last visited
Jan. 5, 2023).
53
DEP, Beaches, Inlets and Ports.
54
Id. BILL: SB 738 Page 8
related land resources. The program governs the construction, alteration, operation, maintenance,
repair, abandonment, and removal of stormwater management systems, dams, impoundments,
reservoirs, appurtenant works, and other works such as docks, piers, structures, dredging, and
filling located in, on, or over wetlands or other surface waters.
55
DEP has adopted a comprehensive chapter of rules for the permitting process.
56
These rules
contain:
Criteria and thresholds for requiring permits;
Types of permits;
Procedures governing the review of applications and notices, duration and modification of
permits, operational maintenance requirements, transfers of permits, provisions for
emergencies, and provisions for abandonment and removal of systems;
Exemptions and general permits that do not allow significant adverse impacts to occur
individually or cumulatively;
Conditions for issuance;
General permit conditions, including monitoring, inspection, and reporting requirements;
Standardized fee categories to promote consistency;
Application, notice, and reporting forms; and
An Applicant’s Handbook containing general program information, application and review
procedures, stormwater quality and quantity criteria, erosion and sediment control
requirements, and how environmental criteria are evaluated.
57
State Administered Federal Section 404 Dredge and Fill Permits
In 2020, Florida assumed responsibility under section 404 of the federal Clean Water Act
58
for
dredge and fill permitting.
59
The State 404 Program is responsible for overseeing the permitting
for any project that proposes dredge or fill activities within state assumed waters.
60
DEP adopted
rules implementing this program are within Chapter 62-331 of the Florida Administrative
Code.
61
There is significant overlap between the federal 404 permitting program and the state
ERP program.
Permitting Process
Upon receiving a permit application for use of water resources, DEP or the WMD evaluates the
material to determine if the application is complete.
62
If it is incomplete, DEP or the WMD must
request additional information within 30 days after its receipt of the application.
63
DEP’s rules
55
Fla. Admin. Code R. 62-330.010(2).
56
Fla. Admin. Code Ch. 62-330.
57
Section 373.4131(1)(a), F.S.
58
33 U.S.C. s. 1251 et seq.
59
Section 373.4146, F.S. See Fla. Admin. Code Ch. 62-331. See also DEP, State 404 Program,
https://floridadep.gov/water/submerged-lands-environmental-resources-coordination/content/state-404-program (last visited
Jan. 5, 2023).
60
DEP, State 404 Program, https://floridadep.gov/water/submerged-lands-environmental-resources-
coordination/content/state-404-program (last visited Jan. 5, 2023).
61
See Fla. Admin. Code Ch. 62-331.
62
DEP, Environmental Resource Permit Applicant’s Handbook, Vol. 1, AH 5.5.3, incorporated by reference in Fla. Admin.
Code R. 62- 330.010(4) (Oct. 1, 2013), available at https://www.flrules.org/Gateway/reference.asp?No=Ref-03174.
63
Section 373.4141(1), F.S. BILL: SB 738 Page 9
allow an applicant up to 90 days to respond to such a request.
64
Within 30 days after its receipt of
additional information, the DEP or the WMD must review the submissions.
65
If the application is
complete, the DEP or WMD must decide whether to issue or deny the ERP within 60 days.
66
Except for permits delegated through the 404 program,
67
any application that the DEP or WMD
does not approve or deny within 60 days of completion of the application is deemed approved by
default.
68
Water Quality Assurance Act
The Water Quality Assurance Act (Act)
69
creates a private cause of action for all damages
resulting from a discharge
70
or other condition of pollution covered under the Act if the
discharge was not authorized pursuant to Chapter 403, F.S., regarding environmental control.
71
The Act defines “pollution” 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.
72
“Pollutants” includes any commodity made from oil
or gas, pesticides, ammonia, chlorine, and derivatives thereof, excluding liquefied petroleum
gas.
73
The Act imposes strict liability, meaning it is not necessary to show negligence; it is only
necessary to show the prohibited discharge or other pollutive condition occurred.
74
The Act
allows for joint and several liability
75
and provides that the only defenses to such causes of action
are those specified in s. 376.308, F.S.: an act of war, an act of government,
76
an act of God,
77
or
an act or omission of a third party.
78
64
DEP, Environmental Resource Permit Applicant’s Handbook, Vol. 1 at AH 5.5.3.5.
65
Section 373.4141(1), F.S.
66
Section 373.4141(2), F.S. Most state licensure decisions must be made within 90 days. Section 120.60(1), F.S.
67
Section 373.4146(5)(a), F.S.
68
Section 120.60(1), F.S.
69
See sections 376.30-376.317, F.S.
70
Section 376.301(13), F.S. “Discharge” 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 the Water Quality Assurance Act.
71
Section 376.313(3), F.S. Chapter 403, F.S., relates to environmental control, including pollution control, environmental
regulation, water supply and water treatment plants, among other things.
72
Section 376.301(37), F.S.
73
Section 376.301(36), F.S.
74
Section 376.313(3), F.S. Certain exceptions exist for suits involving petroleum storage systems or drycleaning facility or
wholesale supply facility; see Irizarry v. Orlando Utilities Commission, 393 F. Supp. 3d 1110, 1116 (M.D. Fla. 2019)
(explaining that to state a plausible claim under s. 376.313(3), F.S., a plaintiff must allege: (1) a prohibited discharge or other
pollutive condition occurred; and (2) damages).
75
Section 376.313(3), F.S. Joint and several liability generally means liability that may be apportioned among two or more
parties. See BLACK’S LAW DICTIONARY 997 (9th ed. 2009).
76
This includes state, federal, or local acts of government, unless the person claiming the defense is a governmental body, in
which case the defense is available only by acts of other governmental bodies. Section 376.308(2)(b), F.S.
77
This includes only unforeseeable acts exclusively occasioned by the violence of nature without the interference of any
human agency. Section 376.308(2)(c), F.S.
78
This does not include acts or omissions by an employee or agent of the defendant or one whose act or omission occurs in
connection with a contractual relationship. An exception may apply when the sole contractual arrangement arises from a
published tariff and acceptance for carriage by a common carrier or by rail. Section 376.308(2)(d), F.S. BILL: SB 738 Page 10
However, the Act does not define the term “damages.” In a 2010 case involving a claim arising
under s. 376.313(3), F.S., the Florida Supreme Court applied a definition from a different section
of Chapter 376, F.S., which defines damages as “the documented extent of any destruction to or
loss of any real or personal property, or the documented extent…of any destruction of the
environment and natural resources, including all living things except human beings, as the direct
result of the discharge of a pollutant.”
79
In 2019, the Court receded from this definition, and held
the meaning of “all damages” in s. 376.313(3), F.S., includes personal injury damages.
80
Costs and Attorney’s Fees in Challenges to Agency Actions
In administrative proceedings related to challenges to agency actions where there is a disputed
issue of material fact, the prevailing party is entitled to an award of reasonable costs and
attorney’s fees.
81
However, such costs and fees can only be awarded if the nonprevailing party
participated for an improper purpose, such as to harass, cause unnecessary delay or for frivolous
purposes, or by needlessly increasing litigation costs.
82
In making this determination, the
administrative law judge (ALJ) must consider whether the nonprevailing party has participated in
two or more similar proceedings involving the same prevailing party and the same project as an
adverse party and in which the nonprevailing party failed to establish the factual or legal merits
of its position.
83
The ALJ must also consider whether the factual or legal position asserted in the
instant proceeding would have been cognizable in the previous proceedings.
84
In such cases, it is
rebuttably presumed that the nonprevailing party participated in the proceeding for an improper
purpose.
85
III. Effect of Proposed Changes:
Section 1 amends s. 120.595, F.S., regarding attorney’s fees. The bill provides that the prevailing
party in a challenge filed against a Department of Environmental Protection (DEP) or water
management district (WMD) authorization issued pursuant to Chapter 403 or Chapter 373, F.S.,
respectively, is entitled to recover reasonable costs and attorney fees in challenging or defending
such authorization. The prevailing party is entitled to such fees notwithstanding s. 120.595(1)(b),
which provides that such costs and fees may only be awarded where an administrative law judge
has determined that the nonprevailing party participated in the proceeding for an improper
purpose.
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Section 2 amends s. 373.4131, F.S., regarding statewide environmental resource permitting
rules. The bill provides that a nonindustrial stormwater management system, in or adjacent to
residential or urban areas, side slope must be designed with a horizontal-to-vertical ratio no
79
Curd v. Mosaic Fertilizer, LLC, 39 So. 3d 1216, 1221 (Fla. 2010); section 376.031(5), F.S.
80
Charles L. Lieupo v. Simon’s Trucking, Inc., 286 So. 3d 143, 147 (Fla. 2019).
81
Section 120.595(1), F.S.
82
Section 120.595(1)(b) and (e)1., F.S.
83
Section 120.595(1)(c), F.S.
84
Id.
85
Id.
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“Improper purpose” means participation in a proceeding primarily to harass or to cause unnecessary delay or for frivolous
purpose or to needlessly increase the cost of litigation, licensing, or securing the approval of an activity. Section
120.595(1)(e)1., F.S. BILL: SB 738 Page 11
steeper than 4:1 to a depth of at least two feet below the control elevation and must be stabilized
with vegetation to prevent erosion and provide for pollutant removal.
The bill provides that a nonindustrial stormwater management system side slope in or adjacent to
residential or urban areas may be designed with a steeper 4:1 horizontal-to-vertical ratio if the
slope incorporates adequate temporary and permanent erosion and sediment control best
management practices. For purposes of public safety, a system designed or authorized to be
steeper than 4:1 must be fenced sufficiently to prevent accidental incursion into the system.
The bill provides that all side slope rules adopted by DEP, WMDs, or delegated local programs
as of July 1, 2024, are superseded by this subsection and may be repealed without further
rulemaking by publication of a notice of repeal in the Florida Administrative Register and
subsequent filing of a list of the rules repealed with the Department of State.
Section 3 amends s. 376.313, F.S., regarding the nonexclusiveness of remedies and individual
cause of action for damages under the Water Quality Assurance Act (Act).
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Currently, this
statute permits a person to bring a cause of action in a court of competent jurisdiction for all
damages resulting from a discharge
88
or other condition of pollution covered by the Act if the
discharge was not authorized pursuant to Chapter 403, F.S., regarding environmental control.
89
In 2019, the Supreme Court of Florida held that “all damages” includes personal injury
damages.
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The bill amends the statute to permit causes of action for all damages to real or
personal property directly resulting from a discharge or other condition of pollution covered
under the Act and which was not authorized by any government approval or permit issues
pursuant to Chapters 373, 376, or 403, F.S., regarding water resources, pollutant discharge
prevention and removal, and environmental control, respectively.
Currently, s. 376.313(3), F.S., provides that the only defenses to causes of action under this
section are those specified in s. 376.308, F.S., namely, an act of war, an act of government,
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an
act of God,
92
or an act or omission of a third party.
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The bill changes this language to provide
that the only strict-liability exception defenses to causes of action under this section include
those specified in s. 376.308, F.S. and s. 376.82, F.S., regarding eligibility criteria and liability
protection for the successful completion of a brownfield site rehabilitation agreement.
87
See sections 376.30-376.317, F.S.
88
Section 376.301(13), F.S. “Discharge” 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 the Water Quality Assurance Act.
89
Chapter 403, F.S., relates to environmental control, including pollution control, environmental regulation, water supply and
water treatment plants, among other things.
90
Charles L. Lieupo v. Simon’s Trucking, Inc., 286 So. 3d 143, 147 (Fla. 2019).
91
This includes state, federal, or local acts of government, unless the person claiming the defense is a governmental body, in
which case the defense is available only by acts of other governmental bodies. Section 376.308(2)(b), F.S.
92
This includes only unforeseeable acts exclusively occasioned by the violence of nature without the interference of any
human agency. Section 376.308(2)(c), F.S.
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This does not include acts or omissions by an employee or agent of the defendant or one whose act or omission occurs in
connection with a contractual relationship. An exception may apply when the sole contractual arrangement arises from a
published tariff and acceptance for carriage by a common carrier or by rail. Section 376.308(2)(d), F.S. BILL: SB 738 Page 12
Section 4 creates an undesignated section of law requiring the holistic review of coastal
permitting processes. The bill provides that the Legislature intends to do all of the following:
Build a more resilient and responsive government infrastructure to allow for quick recovery
after natural disasters, including hurricanes and tropical storms.
Promote efficiency in state government across all branches, agencies, and other
governmental entities and identify any area of improvement within each entity which allows
for a quick and effective delivery of services.
Seek out ways to improve the state’s administrative procedures in relevant fields to build a
streamlined permitting process that withstands disruptions caused by natural disasters,
including hurricanes and tropical storms.
The bill requires DEP and each WMD to conduct a holistic review of their respective agency’s
current coastal permitting processes and other permit programs. The review must, at a minimum,
include coastal construction control line permits; joint coastal permits; environmental resource
permits; state-administered section 404 permits consistent with the terms of the United States
Environmental Protection Agency’s approval; and permitting processes related to water supply
infrastructure, wastewater infrastructure, and onsite sewage treatment and disposal systems.
The bill provides that the purpose of these reviews is to identify areas of improvement and to
increase efficiency within each process and program. Factors that must be considered in the
review include all of the following:
The requirements to obtain a permit.
Time periods for review, including those of commenting agencies, and approval of a permit
application.
Areas for improved efficiency and decision-point consolidation within a single project’s
purpose.
Areas of duplication across one or more permit programs;
The methods of requesting a permit.
Potential modifications to memoranda of agreements between the state and the Federal
Government governing delegated or approved federal permitting programs, which
modifications would improve the efficiency and predictability of the program’s
administration, including allowing consistent administration of a permit by a state or federal
entity over the lifetime of a permitted project.
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Any other factors that may increase the efficiency of a permitting process and may allow for
improved storm recovery.
The bill provides that, by December 31, 2024, DEP and each WMD must provide their findings
and proposed solutions in a report to the Governor and Legislature.
Section 5 provides an effective date of July 1, 2024.
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Memoranda of agreements between DEP and federal agencies are available on DEP’s website. See DEP, Operating
Agreements, https://floridadep.gov/ogc/ogc/content/operating-agreements#federal (last visited Jan. 8, 2024). BILL: SB 738 Page 13
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
The bill may have a positive fiscal impact on parties prevailing in cases challenging
permits and other authorizations by the Department of Environment Protection (DEP)
and water management districts (WMDs).
C. Government Sector Impact:
The bill may have a negative fiscal impact on the state related to the award of attorney
fees for cases challenging permits and other authorizations by DEP or WMDs. In
addition, DEP and WMDs will likely incur costs related to the permit review process
required in this bill.
VI. Technical Deficiencies:
The bill specifies which “strict-liability exception defenses” apply to causes of action under the
Water Quality Assurance Act. However, the phrase “strict-liability exceptions” might better
align with the bill’s intent.
VII. Related Issues:
The Department of Environmental Protection has proposed revisions to the stormwater rules
within Chapter 62-330 of the Florida Administrative Code. The proposed revisions do not
include express requirements for the side slopes of stormwater ponds. The water management BILL: SB 738 Page 14
districts have existing rules regarding the design of pond side slopes that may be superseded by
this bill.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 120.595, 373.4131,
and 376.313.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
None.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.