Florida's New Environmental Resource Permit Rules

As you may have heard, Florida environmental resource permit (ERP) process has been overhauled and streamlined with the Statewide Environmental Resource Permit (SWERP). The Florida Bar Journal recently ran a good piece on the subject, "New Environmental Resource Permit Rules," written by Susan Roeder Martin. Susan is a senior specialist attorney with the South Florida Water Management District. It's always nice to see pieces like this by agency attorneys to give those of us in private practice an insight into working with them. Ms. Martin begins with a quick backgrounder on the program:

Florida’s water resources are regulated pursuant to the Environmental Resource Permit (ERP) program under Part IV of F.S. Ch. 373. This broad regulatory program went into effect on October 3, 1995, and applies to activities that involve the alteration of surface water flows, including new activities in uplands that generate stormwater runoff from upland construction, as well as dredging and filling in wetlands and other surface waters. The program covers everything from residential and commercial development in wetlands and uplands, to construction of roads, to certain agricultural alterations that impede or divert the flow of surface waters.

ERP applications are processed by either the Department of Environmental Protection (DEP) or one of the state’s five water management districts in accordance with the division of responsibilities specified in operating agreements between DEP and the individual water management districts. The ERP program is in effect throughout the state. 

Each of the five water management districts has historically had different rules for processing ERPs. The rules of each of the water management districts were also adopted by DEP and are utilized by DEP in processing permits. While the environmental criterion was substantially the same in all the water management districts, the processing and administration varied.

The problem with ERP, though, was that this variety led to a lot of confusion and disagreements across the districts; hence the need for the SWERP. After discussing the Legislature's directive for development of the SWERP, Ms. Martin details the permit categories, statutory and rule-based exemptions, fees, and procedures. She then includes a detailed discussion of how under the new SWERP, there are still differences across the districts. The Applicant's Handbook now provides the mechanism by which the districts can differentiate their procedures:

In the pre-statewide ERP rules, each of the five water management districts’ technical criteria was set forth in a separate volume known as the applicant’s handbook (AH) or the basis of review (BOR), incorporated by reference into each water management district’s rules. Each AH or BOR was also adopted by reference by DEP. The pre-statewide ERP AHs and BORs include environmental, water quality, water quantity, and procedural criteria.

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What was formerly referred to as the AH or BOR in each water management district is now called the Environmental Resource Permit Applicant’s Handbook Volume II for Use within the Geographic Limits of the Applicable Water Management District (AH II). AH II includes water quality and quantity design and performance standards, hydrologic basins, and regional watersheds applicable to each water management district. The retention of these provisions in the individual AH II and the retention of special basin criteria satisfies F.S. §373.4131(1)(c)2, which requires that the rules account for different physical or natural characteristics, including special basin considerations, of each water management district. AH II is not generally applicable to 1) projects that cause no more than an incidental amount of stormwater runoff, such as a single-family home up to a quadruplex, which is not part of a larger plan of development; 2) stand-alone in-water projects and shoreline stabilization type projects; 3) docks and piers; 4) activities that do not add more than a de minimis amount of impervious surface; 5) exempt activities; and 6) activities that qualify for a general permit.31

Importantly, water quality and quantity criteria from each water management districts’ AH or BOR are retained. With respect to design and performance standards for stormwater quality and quantity, each water management district, with DEP oversight, may continue to adopt rules on these subjects.32 The criteria set forth in AH II further the goal of meeting the water resource objectives in Part IV of F.S. Ch. 373. Performance criteria were used when possible.

Many thanks to Ms. Martin for this informative article. If you'd like more information, check out DEP's SWERP website, or the webinar produced by the Florida Bar's Environmental and Land Use Section.