An extremely common question I often get is how Florida from clients experiencing issues with flooding caused by new residential developments in Florida is who regulates new residential developments in Florida and how that regulation or lack of regulation can potentially negatively affect existing properties around new development. Given that new residential developments can cause such bad flooding in neighborhoods or parts of Florida that previously experienced no flooding problems before a new development started being built, this is an extremely important issue. The answer is two fold: (1) local and state governmental authorities, including the five water management districts in Florida, have very limited powers to enforce permitting restrictions or deny permits even where a residential developer may be adversely affecting existing properties by putting in a new residential development and (2), even to the extent that the water management districts do have enforcement powers, the reality of state and local politics often means the water management districts do not utilize even the limited powers they do have. This often can have disastrous consequences, including resulting in the flooding of older, more established homes and properties as a result of new residential developments with inadequate storm water drainage or surface water management or simply developers cutting corners. However, sadly, Florida law does not provide for a remedy pursuant to which property owners negatively affected by a water management district’s issuance of a permit or enforcement of a permit can hold the water management district responsible. To the contrary, such claims are expressly prohibited under Florida law.
The Five Water Management Districts
The five water management districts in Florida (Southwest Florida Water Management District, Suwanee River Water Management District, South Florida Water Management District and Northwest Florida Water Management District) have a variety of regulatory and conservation powers at their disposal to protect residential property owners. The most important of these powers is in the review and issuance of permits, including Environmental Resource Permits, or ERPs. An ERP is required any time there will be construction or development that will affect either wetlands or water flow in the State of Florida. Given that virtually every new development affects water flow, nearly always negatively, any new residential development almost always will necessitate an ERP. The water management districts review all applications for ERPs on the front end and then, once an ERP is issued, the water management district will monitor the permitee’s compliance with the conditions of that ERP throughout the process of construction of the new residential development. This is where things can go wrong, however.
Limited Powers of the Water Management District
While the water management districts can put conditions on a permit and do monitor permitees’ compliance with the conditions of the applicable ERP, the enforcement powers that the water management districts have over permitees are limited. This results in the water management districts being largely toothless when it comes to enforcement. Given that developers often have friends in high places, there also can be an imbalance of power between the water management district employees and the developers given that a developer may lean on the political appointees at the water management districts in order to allow the developer to move forward where the developer may be violating the terms of a permit or cutting corners on the protection of adjacent properties.
Can I Sue a Water Management District for Failing to Enforce the Conditions of an ERP?
Unfortunately, there also is little you can do against the water management districts themselves to force them to do a better job enforcing the conditions of permits they have issued. Under Florida law, it is difficult if not impossible to sue the water management districts for either failing to enforce the law or failing to ensure that a permitee follows the conditions of the ERP issued to it for development of a new residential development. Pursuant to Florida law, the water management districts are immune from liability for approving any permit.
Therefore, to the extent the local water management district in your town, city or county fails to enforce a permit or fails to take your property into account when either issuing or enforcing a permit, you would not be able to pursue that water management district given the express grant of immunity to it under Florida law.
Contact the Florida Flood Lawyer if You Have Been Negatively Affected by Flooding from a New Residential Development
If you have suffered damages to your home or business as a result of flooding caused by a new development, ongoing construction, or someone else’s negligence, including where a water management district has failed in its duties to enforce the conditions of a permit against a developer building a new residential development near you, contact me today via email to discuss your options.
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