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 Fiscal Policy
BILL: CS/CS/CS/SB 738
INTRODUCER: Fiscal Policy Committee; Judiciary Committee; Environmental and Natural Resources
Committee; and Senator Burgess
SUBJECT: Environmental Management
DATE: February 16, 2024 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Barriero Rogers EN Fav/CS
2. Collazo Cibula JU Fav/CS
3. Barriero Yeatman FP Fav/CS
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/CS/CS/SB 738 requires the side slopes of nonindustrial stormwater management systems, in
or adjacent to residential or urban areas that are accessible to the general public, to 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 fenced,
greenscaped, or has other barriers installed 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 that 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.
BILL: CS/CS/CS/SB 738 Page 2
II. Present Situation:
Stormwater Runoff
Nationwide, polluted stormwater runoff is considered to be the greatest threat to clean water.1
More than 40 percent of waters assessed by the states are too polluted for fishing or swimming.2
Nonpoint sources associated with stormwater account for more than 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 ground water.
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 Jan. 23, 2024).
2
Department of Environmental Protection (DEP), Stormwater Support, https://floridadep.gov/water/engineering-hydrology-
geology/content/stormwater-support (last visited Jan. 23, 2024). 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 Jan. 23, 2024).
4
Id.
5
Id.
6
Meijing Zhang et al., Florida Rainfall Data Sources and Types, University of Florida Institute of Food and Agricultural
Sciences (UF/IFAS), 1 (Oct. 9, 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/sourcewater
protection/urbanization-and-stormwater-runoff (last visited Jan. 23, 2024).
8
Southwest Florida Water Management District (SWFWMD), Stormwater Runoff, https://www.swfwmd.state.fl.us/residents/
education/kids/stormwater-runoff (last visited Jan. 23, 2024).
9
Id.
BILL: CS/CS/CS/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 life11 and flood prevention and decrease water quality. 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.12
 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
SFWMD, Your Impact on the Environment, https://www.sfwmd.gov/community-residents/what-can-you-do (last visited
Jan. 23, 2024).
13
SWFWMD, Stormwater Runoff, https://www.swfwmd.state.fl.us/residents/education/kids/stormwater-runoff (last visited
Jan. 23, 2024).
14
Fla. Admin. Code R. 62-40.431(2)(b).
15
DEP, Stormwater Management, available at https://floridadep.gov/sites/default/files/stormwater-management.pdf (last
visited Jan. 23, 2024); U.S. Environmental Protection Agency (EPA), Stormwater Management Practices at EPA Facilities,
https://www.epa.gov/greeningepa/stormwater-management-practices-epa-facilities (last visited Jan. 23, 2024).
16
City of Jacksonville, Retention Pond Safety, Jun. 1, 2020, https://www.jacksonville.gov/welcome/welcome-news/retention-
pond-safety; see also 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, Jun. 1, 2020, https://www.jacksonville.gov/welcome/welcome-news/retention-
pond-safety.
18
Id.
19
Id.
BILL: CS/CS/CS/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 system24
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, 1 (2021), available at https://www.epa.gov/
system/files/documents/2021-11/bmp-wet-ponds.pdf.
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, s. 12.4 (2013), available at https://www.flrules.org/Gateway/reference.
asp?No=Ref-03172.
27
EPA, Stormwater Best Management Practice: Wet Ponds, 3 (2021), available at https://www.epa.gov/system/files/
documents/2021-11/bmp-wet-ponds.pdf.
BILL: CS/CS/CS/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 system32
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
NWFWMD, ERP Applicant’s Handbook: Vol. II, s. 5.1 (2013), available at https://www.flrules.org/Gateway/reference.
asp?No=Ref-03172.
29
Id. Samantha T. Howley et al., Stormwater Pond Management: What You Need to Know About Aeration, UF/IFAS, 2
(2021), available at https://edis.ifas.ufl.edu/publication/SS695.
30
NWFWMD, ERP Applicant’s Handbook: Vol. II, s. 5.1 (2013), available at https://www.flrules.org/Gateway/reference.
asp?No=Ref-03172.
31
Id.
32
Id. at s. 5.1, figure 5.1-1.
33
Id. at s. 8.11; SFWMD, ERP Applicant’s Handbook: Vol. II, s. 5.4.2(d) (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 (2013), available at https://www.flrules.org/Gateway/reference.asp?No=Ref-03181; Suwannee
River Water Management District (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(c)
(2013) available at https://www.flrules.org/Gateway/reference.asp?No=Ref-03176.
34
SFWMD, ERP Applicant’s Handbook: Vol. II, s. 5.4.2(e) (2013) available at https://www.flrules.org/
Gateway/reference.asp?No=Ref-02528.
BILL: CS/CS/CS/SB 738 Page 6
ponds35 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
vegetation37 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 a 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
Water Quality Assurance Act
The Water Quality Assurance Act (Act)43 creates a private cause of action for all damages
resulting from a discharge44 or other condition of pollution covered under the Act if the
discharge was not authorized pursuant to chapter 403, F.S., regarding environmental control.45
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 that may unreasonably interfere with the enjoyment of life or
35
SJRWMD, ERP Applicant’s Handbook: Vol. II, s. 2.6.1 (2013), available at https://www.flrules.org/Gateway/reference.
asp?No=Ref-03181.
36
SRWMD, ERP Applicant’s Handbook: Vol. II, s. 4.5.1 (2013), available at https://www.flrules.org/Gateway/reference.
asp?No=Ref-03182.
37
Id.