HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 789 Environmental Management
SPONSOR(S): Infrastructure Strategies Committee, Water Quality, Supply & Treatment Subcommittee,
Overdorf and others
TIED BILLS: IDEN./SIM. BILLS: CS/CS/SB 738
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Water Quality, Supply & Treatment 17 Y, 0 N, As CS Guy-Hudson Curtin
Subcommittee
2) Agriculture & Natural Resources Appropriations 10 Y, 5 N Byrd Pigott
Subcommittee
3) Infrastructure Strategies Committee 16 Y, 7 N, As CS Guy-Hudson Harrington
SUMMARY ANALYSIS
Florida averages 40-60 inches of rainfall a year, depending on the location, with approximately two-thirds
falling between June and October. Because stormwater runoff contains pollutants including sediment, nutrients
(such as nitrogen and phosphorous) and other chemicals, effective stormwater treatment systems should be
designed to reduce nonpoint source pollution and protect surface water resources.
Stormwater ponds are one of the most widely used stormwater treatment controls and, in Florida, are often
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. Statewide regulations include this maximum ratio but individual water management
districts (WMDs) may include additional or differing requirements.
The Water Quality Assurance Act (WQAA) creates a private cause of action for all damages resulting from a
pollutant discharge or other condition of pollution covered under the WQAA if the discharge was not authorized
by a governmental approval or permit pursuant to ch. 403, F.S., relating to environmental control. The WQAA
defines pollution and pollutants according to ch. 376, F.S., relating to pollutant discharge prevention and
removal. The WQAA imposes strict liability, meaning it is not necessary to show negligence, only that the
prohibited discharge or other pollutive condition occurred. The WQAA allows for joint and several liability and
provides that the only defenses to such a cause of action are those specified in s. 376.308, F.S.: an act of war;
an act of government; an act of God; or, an act or omission of a third party.
The bill sets, for purposes of water quality, a maximum side slope design requirement of a 4:1 horizontal-to-
vertical ratio to a depth of at least two feet below the control elevation for a nonindustrial stormwater
management system that is accessible to the general public and is in or adjacent to residential or urban areas.
The side slope must be stabilized with vegetation to prevent erosion and provide for pollutant removal. The bill
provides that a side slope may be designed with a steeper ratio if the slope incorporates erosion prevention
and sediment control best management practices.
The bill limits a cause of action under the WQAA to damages for real or personal property directly resulting
from pollution which was not authorized by any government approval or permit pursuant to ch. 373, F.S.,
relating to water resources, ch. 376, F.S., relating to pollutant discharge prevention and removal and ch. 403,
F.S. The bill provides that the strict liability exceptions to such a cause of action include those specified in s.
376.308, F.S., and adds s. 376.82, F.S., relating to the rehabilitation of a brownfields site.
The bill does not appear to have a fiscal impact on state or local governments.
The bill provides an effective date of July 1, 2024.
This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives .
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 FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
According to a recent national water quality study, Florida ranks first for lakes impaired for swimming
and aquatic life and second for lakes classified as impaired for any use.1 Nationwide, polluted
stormwater runoff is considered to be the greatest threat to clean water. 2 Nonpoint sources 3 associated
with stormwater account for over 40 percent of polluted waters.4 Stormwater is the flow of water
resulting from, and immediately following, a rainfall event.5 When stormwater falls on pavement,
buildings and other impermeable surfaces, the runoff flows quickly and can pick up sediment, nutrients
(such as nitrogen and phosphorous), chemicals and other pollutants. 6 Florida averages 40-60 inches of
rainfall a year, depending on the location, with approximately two-thirds falling between June and
October.7
A stormwater management system is a system designed “…to control discharges which are
necessitated by rainfall events, incorporating methods to collect, convey, store, absorb, inhibit, treat,
use, or reuse water to prevent or reduce flooding, overdrainage, environmental degradation, and water
pollution. . . .”8 Most activities that create new impervious surfaces or alter surface water flows involve a
stormwater management system.9
Effective stormwater management reduces nonpoint source pollution and protects surface water
resources from stormwater pollution from existing and new land uses. 10 These pollutants adversely
impact drinking water supplies, recreation, fisheries and wildlife. 11 Inadequate stormwater management
increases stormwater flows and velocities, contributes to erosion, overtaxes the carrying capacity of
streams and other conveyances, reduces ground water recharge and threatens public health and
safety.12 Stormwater is the primary source of pollutant loading entering Florida’s rivers, lakes and
estuaries.13
1 Environmental Integrity Project, The Clean Water Act at 50, p. 7 (Mar. 17, 2022), https://environmentalintegrity.org/wp-
content/uploads/2022/03/CWA@50-report-3-17-22.pdf (last visited Feb. 12, 2024).
2 South Florida Water Management Dis trict (SFWMD), Your Impact on the Environment, https://www.sfwmd.gov/community-
residents/what-can-you-do (last visited Feb. 12, 2024).
3 Nonpoint source pollution may come from land runoff, rain or hydrologic modification, among other diffuse sources. Environmental
Protection Agency (EPA), Polluted Runoff: Nonpoint Source (NPS) Pollution, Basic Information about Nonpoint Source (NPS)
Pollution (last updated Dec. 24, 2023), Basic Information about Nonpoint Source (NPS) Pollution | US EPA (last visited Feb. 12,
2024).
4 Department of Environmental Protection (DEP), Stormwater Support (last updated Aug. 4, 2023),
https://floridadep.gov/water/engineering-hydrology-geology/content/stormwater-support (last visited Feb. 12, 2024). Traditional point
sources (i.e., wastewater treatment plants) account for approximately 10 percent of these polluted or impaired waters.
5 DEP, Environmental Resource Permit Applicant’s Handbook Volume I (General and Environmental), p. 2-10 (Dec. 22, 2020)
Modified Document, 1/6/2021, https://www.flrules.org/gateway/reference.asp?No=Ref-12078 (last visited Feb. 12, 2024).
6 EPA, Source Water Protection, Urbanization and Stormwater Runoff (last updated Feb. 7, 2024),
https://www.epa.gov/sourcewaterprotection/urbanization -and-stormwater-
runoff#:~:text=Stormwater%20runoff%20is%20generated%20fro m%20rain%20and%20snowmelt,chemicals%2C%20and%20dirt%2
Fsediment%20into%20streams%2C%20lakes%2C%20and%20groundwater (last visited Feb. 12, 2024).
7 University of Florida Institute of Food and Agricultural Sciences (UF/IFAS), Florida Rainfall Data Sources and Types, (Oct. 9,
2023), https://edis.ifas.ufl.edu/publication/AE517 (last visited Feb. 12, 2024).
8 S. 373.403(10), F.S. See s. 403.031(18), F.S., relating to pollution control.
9 DEP, Modernizing Florida’s Stormwater Rules, Presentation to the House Water Quality, Supply & Treatment Subcommittee, pp. 1-
5 (Jan. 10, 2024),
https://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?PublicationType=Committees&CommitteeId=3251&Session=20
24&DocumentType=Meeting+Packets&FileName=wst+1-10-24.pdf (last visited Feb. 12, 2024).
10 R. 62-40.431(1), F.A.C.
11 EPA, Polluted Runoff: Nonpoint Source (NPS) Pollution, Basic Information about Nonpoint Source (NPS) Pollution , supra note 3.
12 R. 62-40.431(2)(b), F.A.C.
13 Id.
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 Stormwater ponds
A best management practice for pollutant removal, stormwater ponds are one of the most widely used
stormwater treatment controls 14 and are defined as either retention or detention ponds. 15 Wet retention
ponds retain all the water within them and allow the water to percolate into the soil and prevent it from
moving to other surface waters.16 Pollutant removal is achieved by biological activity in the pond and
associated soil.17 Wet retention ponds are traditionally used for large scale development projects. 18 A
dry detention pond captures stormwater runoff and temporarily stores it before slowly releasing the
water downstream.19 Requiring at least 10 or more acres, dry detention ponds are typically used for
flood control and may be less effective for water quality improvement as they allow pollutants to settle. 20
The Department of Environmental Protection (DEP) and water management districts (WMDs) provide
requirements, respectively, for side slope horizontal-to-vertical ratio and depth (see Side Slope Ratios
below).
Environmental Resource Permitting
The Clean Water Act (CWA) is the primary federal law that regulates water pollution in the United
States and it prohibits the discharge of any pollutant21 into waters of the United States (WOTUS).22 The
discharge of dredged or fill material into WOTUS, including wetlands, is regulated by a program
established in Section 404 of the CWA.23 States may apply to the U.S. Environmental Protection
Agency (EPA) to assume the federal dredge and fill permitting program; Florida assumed the 404
permitting program in 2020.24 DEP’s Submerged Lands and Environmental Resources Coordination
Program is responsible for the consistent implementation of both the State 404 Program and the
Environmental Resource Permit (ERP) Program.25
DEP regulates surface water flows via the ERP Program, a permitting process that addresses and
regulates impacts to the landscape including clearing, grading, construction of structures and filling and
dredging, whether the work occurs in uplands, wetlands or other surface waters. 26 An ERP permit may
be issued by DEP, a WMD or a local government to which DEP delegated ERP permitting authority. 27
ERPs are designed to prevent flooding, protect wetlands and other surface waters and protect Florida’s
water quality from stormwater pollution.28
While the State 404 Program and the ERP Program are separate programs, approximately 85 percent
of review requirements of the two programs overlap.29 Both programs require avoidance and
minimization measures to reduce impacts to wetlands and any remaining adverse impacts to be offset
by mitigation. The methodology ratified by the Legislature for identifying and delineating the extent of
14 EPA, Stormwater Best Management Practices: Dry Ponds, (Dec. 2021), NPDES: Stormwater Best Management Practices, Dry
Detention Ponds (epa.gov) (last visited Feb. 12, 2024).
15 EPA, Stormwater Best Management Practices: Wet Ponds, (Dec. 2021), NPDES: Stormwater Best Management Practice, Wet
Ponds (epa.gov) (last visited Feb. 12, 2024).
16 Id.
17 Id.
18 Id.
19 EPA, Dry Ponds, supra note 14.
20 Id.
21 33 U.S.C. § 1311(a). The definition of the term “pollutant” is quite broad. 33 U.S.C. § 1362(6).
22 33 U.S.C. § 1362(12)(A). “The term ‘navigable waters’ means the waters of the United States, including the territorial seas.” 33
U.S.C. §1362(7).
23 EPA, Section 404 of the Clean Water Act, Permit Program under CWA Section 404 (last updated Mar. 31, 2023),
https://www.epa.gov/cwa-404/permit-program-under-cwa-section-404 (last visited Jan. 21, 2024).
24 40 C.F.R. § 233.1. See also DEP, State 404 Program (last updated Feb. 1, 2024), https://floridadep.gov/water/submerged-lands-
environmental-resources-coordination/content/state-404-program (last visited Jan. 21, 2024).
25 DEP, Submerged Lands and Environmental Resources Coordination Program, https://floridadep.gov/water/submerged-lands-
environmental-resources-coordination (last visited Feb. 12, 2024).
26 DEP, Environmental Resource Permitting Online Help (last updated Feb. 8, 2022), https://floridadep.gov/water/submerged-lands-
environmental-resources-coordination/content/environmental-resource-0 (last visited Feb. 12, 2024).
27 Id.
28 Id.
29 DEP, State 404 Program, supra note 24.
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 wetlands and surface waters 30 is also the methodology used to establish the boundary of state-
assumed waters under the State 404 Program.31 Provisions of state law that conflict with federal
requirements under the CWA do not apply to state-administered 404 permits.32
ERP permitting for stormwater management systems as well as dams, reservoirs and water
impoundment is governed by s. 373.4131, F.S. DEP implements this section of law in ch. 62-330,
F.A.C., which provides for the permitting rules, application process and standards by which applications
are considered and approved or denied. The ERP Applicant’s Handbook, which is incorporated by
reference into DEP rules, provides guidance on DEP’s ERP program, which includes all permitted
activities governed by ch. 373, part IV, F.S., relating to management and storage of surface waters, as
well as stormwater management systems-specific activities.33 Applicants for an ERP must adhere to
requirements in both the Applicant’s Handbook, Volume I, which governs general permitting while
WMD-specific permitting requirements are contained in the Applicant’s Handbook, Volume II, for which
there is one per WMD.34
Side Slope Ratios
In Florida, generally, stormwater ponds are 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.35 Florida’s Clean Waterways
Act36 required DEP and the WMDs to initiate rulemaking for Rule Chapter 62-330, F.A.C., to update
stormwater design and operation regulations and the ERP Applicant’s Handbook using the most recent
scientific information available.37 The adopted ERP Applicant Handbook, Vol. I, includes a maximum of
4:1 horizontal-to-vertical ratio for side slopes of stormwater treatment system easements. 38 Graphics
included in the appendices 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. 39
Each WMD has specific side slope requirements contained within the ERP Applicant Handbook, Vol. II.
With respect to side slope requirements, some of the WMDs’ Applicant Handbook, Vol II, contain
additional and/or differing requirements despite state law requiring statewide, consistent ERP
regulations.40 For example, the South Florida WMD (SFWMD) provides alternative criteria for golf
courses,41 while other WMDs include exceptions for fenced ponds 42 or ponds with slopes that
incorporate erosion and sediment control best management practices. 43 In addition, some WMDs
require the stabilization of pond side slopes with vegetation44 or the creation of vegetative littoral
30 S. 373.4211, F.S.
31 R. 62-331.010(3), F.A.C.
32 S. 373.4146(3), F.S.
33 R. 62-330.010(4), F.A.C. See DEP, Environmental Resource Permit Applicant’s Handbook Volume I (General and Environmental) ,
supra note 5, p. 1-4.
34 DEP, ERP Stormwater (last updated June 7, 2022), ERP Stormwater | Florida Department of Environmental Protection (last visited
Feb. 12, 2024).
35 Northwest Florida Water Management District (NWFWMD), ERP Applicant’s Handbook: Vol. II, Figure 5.1-1, p.8-10 (Sept. 30,
2013), https://www.flrules.org/Gateway/reference.asp?No=Ref-03172 (last visited Feb. 12, 2024); SFWMD, ERP Applicant’s
Handbook: Vol. II, s. 5.4.2, p. 27 (Dec. 16, 2013), https://www.flrules.org/Gateway/reference.asp?No=Ref-02528 (last visited Feb. 12,
2024); St. Johns River Water Management District (SJRWMD), ERP Applicant’s Handbook: Vol. II, s. 2.6.1, p. 2-7 (Feb. 27, 2014)
https://www.flrules.org/Gateway/reference.asp?No=Ref-03181 (last visited Feb. 12, 2024); Suwannee River Water Management
District (SRWMD), ERP Applicant’s Handbook: Vol. II, s. 4.5.1, (Aug. 30, 2013),
https://www.flrules.org/Gateway/reference.asp?No=Ref-03182 (last visited Feb. 12, 2024); Southwest Florida Water Management
District (SWFWMD), ERP Applicant’s Handbook: Vol. II, s. 5.4.1 (Sept. 23, 2014)
https://www.flrules.org/Gateway/reference.asp?No=Ref-03176 (last visited Feb. 12, 2024).
36 Ch. 2020-150, Laws of Fla.
37 Rule Chapter 62-300, F.A.C., requires legislative ratification to become effective.
38 DEP, Environmental Resource Permit Applicant’s Handbook Volume I (General and Environmental) , p. 12-9, TABLE OF
CONTENTS (state.fl.us) (last visited Feb. 12, 2024).
39 DEP, Environmental Resource Permit Applicant’s Handbook Volume I (Appendix L through Appendix P) , ss. P-5, P-6, Appendices
L-P_1.pdf (floridadep.gov) (last visited Feb. 12, 2024).
40 S. 373.4131(1)(a), F.S.
41 SFWMD, ERP Applicant’s Handbook: Vol. II, s. 5.4.2(e), supra note 35, p. 27.
42 SJRWMD, ERP Applicant’s Handbook, Vol. II, supra note 35.
43 SRWMD, ERP Applicant’s Handbook: Vol. II, supra note 35.
44 Id.
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