Legal Issues

Groundwater Protection

Following a petition of local citizens, the then Florida Department of Environmental Regulation (now FDEP), on October 28, 1982, submitted a report to the Environmental Regulation Commission (ERC) on The Proposed Designation of the Crystal River as an Outstanding Florida Water (OFW).

Subsequently, with effect February 1, 1983, the ERC approved the petition designating Crystal River/Kings Bay an OFW (Chapter 62-302.700(9) FAC). Ambient water quality of the system, against which the state Antidegradation Policy is to be applied, is defined as that existing on March 1, 1979 (Chapter 62-302.700(8) FAC).

Florida State Law

Antidegradation Policy

The Florida Antidegradation Policy (Sections 62-302.300 and 62-4.242, F.A.C.) recognizes that pollution that causes or contributes to new violations of water quality standards or to the continuation of existing violations is harmful to the waters of the state. Under this policy, the permitting of new or previously unpermitted existing discharges is prohibited where the discharge is expected to reduce the quality of a receiving water below the classification established for it. Any lowering of water quality caused by a new or expanded discharge to surface waters must be in the public interest (that is, the benefits of the discharge to public health, safety, and welfare must outweigh any adverse impacts on fish and wildlife or recreation). Further, the permittee must demonstrate that other disposal alternatives (for example, reuse) or pollution prevention are not economically and technologically reasonable alternatives to the surface water discharge.

FDEP Commentary

Notwithstanding that "Waters" are defined whether or not flowing underground through pores or conduits, (Sections 62-520,200(21) FAC.), the following interpretations have been given by FDEP by e-mail exchange (Jim Stoutamire).

1. "Classification of a surface water as an OFW does not extend that classification to adjacent groundwater. As I previously noted Florida law treats surface water and ground water as two separate things even when groundwater flows directly into a surface water. However, in considering whether or not to issue an ERP consideration would be given to the impact of that activity on groundwater and if that groundwater directly flows to a surface water that is an OFW then consideration would be given to the impact on the OFW."
2. "The 9th CC decision relates to determining whether or not a wetland is subject to regulation by the U.S. Army Corps of Engineers under the Federal Clean Water Act. That decision has no relation to whether a wetland is regulated under Florida law thru the Environmental Resource Permit program. The ERP regulates all wetlands whether they are connected to other state waters or not. That said wetlands whose only connection to other state waters is thru groundwater flow are considered "isolated" as state law does not recognize such connections. If state law was revised to recognize groundwater connections, this would require legislative action, then it would be possible to amend the state wetland delineation rule (62-340). Amending that rule would require ERC approval and legislative ratification of the rule amendment."
3. Regarding whether retention ponds may be permitted in wetland areas, "There is no direct prohibition but doing so would result in those wetlands being severed from jurisdiction. In order to permit that to happen the applicant would have to minimize and avoid doing this and would have to mitigate for any severance of jurisdiction. Short version it's not impossible to permit but it's very difficult to permit."
4. "The ERP rules (for SFWMD see rule 40D-4.301) state that in order to receive a permit an applicant must provide reasonable assurance that, among other things, the project will not adversely affect the quality of receiving waters such that the water quality standards set forth in Chapters 62-4, 62-302, 62-520, 62-522 and 62-550, F.A.C., including any antidegradation provisions of paragraphs 62-4.242(1)(a) and (b), subsections 62-4.242(2) and (3), and Rule 62-302.300, F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in subsections 62-4.242(2) and (3), F.A.C., will be violated. Rules 62-520 and 522 are the groundwater rules."

Comment

1. The wording of the Antidegradation Policy appears to beg the question of whether the surface water discharge is meant as a point discharge physically into a surface water, or a discharge of surface water into waters directly connected with a surface water. The definition of "waters" coupled with the ruling handed down by the 9th CC, to the effect in the normal sense of the word that a Tributary flow from a source into a waterway may be underground or on the surface, suggests that both interpretations could apply.

2. Comment A would indicate that the first two sentences of point 1. above contradict common use of language. Leaving the meaning open with regard to the processing of an ERP application, as indicated by the third sentence, does not help. Particularly as it ignores the consequence of conduit flows in fracture sets.

3. The point 2 above ignores the science which describes "conduit" flow, in context of an artesian aquifer, when artesian water flow takes a path of least resistance in a fracture. That flow would cease should it fail to offer the least resistant path and cease to be the conduit in the normal sense of the word. To simply consider all underground flows as one type of flow because the law does not recognize any second, albeit an existing type of flow, illustrates a deficiency in the law and to "isolate" the connection becomes a nonsense.

   However, it is made clear that state law does not recognize connectivity of a wetland area when the connection is solely by underground water flow.

4. The point 3 above clearly implies that building a retention pond on a wetland destroys any function value of the wetland. When such a value function is to cleanse water before it enters the aquifer then mitigation elsewhere is simply not feasible. I assume the use of the word "and" means to minimize so as to avoid, although this is not totally clear from the context.

5. The point 4 above, by emphasizing "groundwater rules", seems to infer that should a water management district consider that ground water flows are separate from surface waters (per point 1 above), and wetlands deemed to be "isolated" (as in point 2 above), then no part of an ERP process would protect the OFW from any degradation, contradicting the law under which the classification was granted.

Conclusion as to State Law

State law regards wetland as "Isolated" unless connected by surface water flows. There is finite risk of decisions being taken that would result in degrading water quality of protected waters, contrary to law.

United States Federal Law

Clean Water Act of 1972 (federal law administered by USACoE, supervised by EPA) .

Congress intended The Clean Water Act (CWA) to apply to "all waters of the United States" Waters of the United States embraced among other things, tributaries of various waters, adjacent wetlands, and intrastate waters with linkages to interstate commerce. However, the act has been weakened by two Supreme Court decisions.

In 2001, the United States Supreme court in a 5 to 4 decision held in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers — the SWANCC case - that non-navigable, intrastate waters are not protected by the Clean Water Act.

In June, 2006, the United States Supreme court in the case referred to as Rapanos/ Carabell handed down a plurality decision with four justices opining that the jurisdiction of the CWA should only apply to "relatively permanent, standing, or continuously flowing" waters, or wetlands immediately adjacent to such waters. Justice Kennedy voted with the plurality to remand the case to the lower court, but disagreed with the plurality's reasoning and rendered his own explanation. Justice Kennedy's opinion focused on whether the specific wetlands at issue possess a "significant nexus" with navigable waters.

Among numerous court decisions following the SWANCC and Rapanos decisions, the Ninth Circuit Court of Appeal, on August 6, 2007, handed down their decision in the Russian River case. The decision affirmed the wetland significant nexus (JK), and that Tributary flow into a navigable-in-fact United States waterway may be surface or underground (according to normal use of the word "Tributary") and flows could be intermittent (seasonal or drought).

The Clean Water Restoration Act of 2009, currently in U.S. Congress, would seek to restore longstanding safeguards to all the nation's water resources by replacing the word "navigable" with "waters of the United States" throughout the CWA, to include all "isolated" waters, headwater streams, small rivers, ponds, lakes and wetlands, and remove any doubts introduced by the Supreme Court decisions.

Conclusion as to Federal Law

It would appear that federal law outweighs state law today in regard to isolated waters, when such waters (flowing above or below ground) connect with tributaries of a navigable-in-fact United States waterway, which may include wetlands in "significant nexus".

However, it is noted that under the significant nexus test, a party seeking to invoke the court's jurisdiction had to present evidence of a hydrologic connection. Rapanos, 126 S. Ct. at 2250-51 (Kennedy, J., concurring). That connection may suffice in some but not all cases to show "some measure of the significance of that connection for downstream water quality." Id. at 2251.86/

A question is raised as to the meaning of significant nexus. Although evidence of hydrologic connection would assure a definite connection, it is conceivable that such evidence could not be obtained in every case. In a case where a United States navigable-in-fact waterway was protected by law against degradation of water quality, and it was supplied with a volume of water by a tributary (flowing above or underground), should any pollutant discharge into the tributary be considered sufficient to degrade water in the waterway, then it is assumed that the tributary and waterway would be classed as a significant nexus. However, should a wetland be adjacent to the tributary and cleanse run off before it entered the tributary, would it be correct to assume that the wetland possessed significant nexus with the waterway, and be a connected wetland? [Currently excluded under state law].

Overall Conclusion

It is important to know the course of underground water flows in order to frame decisions which safeguard our precious underground water resources, as they continue to be consumed at higher rates than they are created by rainfall. That said, for purposes of a court proceedings would evidence of a hydrologic connection be necessary in addition to any fracture set analysis or any other reasoning?

In view of the different treatments prescribed by state and federal law, and having in mind the principal of Supremacy of Law, it would seem that the only way to achieve harmony would appear to be for the law to be clarified by a binding court decision.

Reasons for Concern

People and land-use practices are currently the leading cause of water pollution, harmful to humans, wildlife and the environment.
Polluted runoff occurs when rain runs off surfaces such as rooftops, paved streets, highways, and parking lots. As water runs off these surfaces, it can pick up pollution such as: oil, grease, toxic chemicals, bacteria, excess fertilizer nutrients, pesticides, soil, trash, and animal waste. From here, the water can flow directly, into a local stream, bay, lake, an underground tributary, or waterway. Clearance of trees and shrubs greatly assists this phenomenon.

In addition, the large impervious surfaces in urban areas increase the quantity of peak flows of runoff, which in turn cause hydrologic impacts such as scoured stream beds, channels, in-stream sedimentation, loss of fish and wildlife habitat and stimulates toxic algal blooms. Sandy or gravelly soils allow rapid infiltration of stormwater to contaminate aquifers used for drinking and domestic water supply.

Untreated stormwater is not safe to drink or swim in. It can contain toxic metals such as cadmium, molybdenum and lead, organic compounds, bacteria, and viruses. Polluted stormwater is the cause of many beach closures.

Notes

The preemption or supremacy doctrine derives from the Supremacy Clause of the Constitution (Article VI) which states that the "Constitution and the laws of the United States... shall be the supreme law of the land... anything in the constitutions or laws of any State to the contrary notwithstanding." This means that any federal law and even a regulation of a federal agency trumps any conflicting state law.

However, the application of this principle is not always easy as many issues arise which are considered implied and not expressly stated in the language of any given rule of law.

Furthermore, Section 307 of the Coastal Zone Management Act, 1972, (CZMA) contains the Federal consistency requirements, which apply to federal activities, development projects, permits and licenses, and support to state and local governments. In the CZMA, Congress created a federal and state partnership for management of coastal resources, codified in the state's coastal management program. The processes established, to ensure compliance with the state's federally approved coastal management program, is called a consistency determination for federal activities and development projects and a consistency certification for federal permits and licenses and federal support to state and local agencies.