2019 is ushering in a new year with important water issues that will affect Florida's business community. The water-related issues are many, and it is important for Florida's businesses to be aware of these developments in 2019 as the changes are being implemented and as public comment periods open. Developers, farmers, industry and entities seeking new permits or renewals will be interested in these developments. Business owners should be aware of these changes so they are able to identify the significance and impact to their respective businesses.

2018's sweeping set of Florida constitutional reforms included Amendment 6, which reversed the long-standing law that courts and administrative law judges deferred to an agency's interpretation of the law in the agency's subject matter jurisdiction. This old system of agency deference gave weight to the agency's interpretation, and in state permitting and water proceedings, it advantaged a party who was aligned with an agency's interpretation. This freshly adopted amendment has already tipped the balance toward the challenger of agency action, with the First District Court of Appeal's reversal of Florida Department of Environmental Protection's (FDEP) denial of a permit for exploratory drilling in Broward County. After reviewing the statutes anew and finding it was not bound to FDEP's interpretation, the court found the applicant's permit should be granted. Parties may still argue an agency's interpretation of its own law, but judges will no longer be constrained by agency deference in their review. This constitutional amendment will make the outcomes of administrative hearings more uncertain, particularly for businesses who have permits challenged by third parties, because it affords challengers the opportunity to persuade the court in favor of their own interpretation of agency law.

Florida made progress in 2018 in its initiative to assume the federal government's permitting program under Section 404 of the Clean Water Act. If completed, the state of Florida would become the third state (after New Jersey and Michigan) to take over the permitting responsibilities of the U.S. Army Corps of Engineers and U.S. Environmental Protection Agency for Section 404 “dredge and fill” permits. The 2018 Florida Legislature's adoption of Section 373.4146, Florida Statutes, and FDEP's rulemaking efforts established the framework for assuming the program. What remains to be ironed out are the details of the final Memoranda of Agreement between Florida and the Corps and the EPA and the role of the U.S. Fish and Wildlife Service in federally listed species review under the assumed program. Completing Florida's assumption of the 404 permitting program is expected to streamline development permits in both timing and process. If finalized, this delegation effort is widely considered a benefit to businesses who regularly obtain Corps 404 permits.

At the federal level, the EPA is beginning the next chapter in the saga of adopting a definition of “Waters of the United States” or “WOTUS” under the Clean Water Act. At press time, the EPA is proposing a new WOTUS definition that is intended to be easier for a lay person to understand and to recognize the traditional, more limited role of the federal government in the cooperative federalism system. In adopting a new WOTUS definition, the EPA seeks to replace the 2015 Obama administration definition of WOTUS and the preceding definition before that rule, which was largely based on U.S. Supreme Court interpretations. Though the litigation efforts started in 2015, both the pre-2015 WOTUS rule and the 2015 WOTUS rule are being applied, depending on the state in which a project is located. Although more litigation is expected to challenge the EPA's new definition, perhaps the Trump administration's efforts to repeal and replace the 2015 WOTUS rule will result in a more understandable rule being adopted. The business community, including developers and agriculture, generally view the newly proposed WOTUS rule as beneficial because it replaces the expansive 2015 WOTUS rule and the complicated Supreme Court case interpretations in the pre-2015 WOTUS rule with a rule that places more authority in the hands of states, which businesses are more accustomed to working with on their permitting efforts.

Affecting the liquid heart of the state, Lake Okeechobee, the U.S. Army Corps of Engineers is initiating its development of a new Lake Okeechobee regulation schedule, known as the Lake Okeechobee system operating manual (LOSOM). With repairs to the Herbert Hoover Dike which surrounds the lake nearly completed and several comprehensive Everglades restoration projects coming online, the Corps has the opportunity to take advantage of new infrastructure to achieve a more sustainable future for Florida. Adopting a schedule that improves the lake's ability to provide flood control, storage and water supply for all types of users and the environment, will help Florida achieve a better economic and environmental future. The opportunity to mitigate damaging high water releases to the estuaries through additional storage in Lake Okeechobee and emergency estuary protection wells will likely be important to coastal businesses. Businesses rely on the water resources the lake provides, including recreation and water-supply needs.

These developments in water law in 2019 deserve the attention of the business community, as they have the potential to change the status quo for Florida businesses who depend on water permits and water resources like Lake Okeechobee.

Gregory M. Munson is a shareholder in the Tallahassee office of Gunster where he represents regulated industries in the industrial, agricultural, mining and utility sectors in all areas of state and federal environmental law. 

Luna E. Phillips is a Florida Bar board certified firm shareholder who practices in the area of environmental, administrative and governmental law. She leads the firm's environmental practice.

Deborah Madden is an associate with the firm whose practice focuses on the area of environmental law.