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1.7 FEDERAL AND STATE LEGISLATION AND REQUIREMENTS Federal and State legislation, and their subsequent regulatory requirements, form the basis for most of the changes in stormwater management programs in Florida in the last two decades. This legislation has expanded the focus of a community's drainage program to include floodplain regulation, water quality management and ecological preservation. 1.7.1 Florida Constitution and City/County Authority Florida communities are granted specific authority under the Florida Constitution and general and special laws. Communities in Florida fall into one of three categories -- cities, charter counties or non-charter counties -- and their authority to exercise local powers are both specific and different. Generally, cities and charter counties have all powers of home rule that are not specifically limited by the Legislature. Non-charter counties have those powers of home rule that are specifically authorized by the Legislature. However, in Chapter 125, FS, the Legislature has conferred broad powers of home rule to non-charter counties. The primary difference between the powers of charter counties and non-charter counties now depends upon the language of the charter itself. A charter can be drawn to alter the county's structure and its service delivery patterns. For example, many of the county charters grant authority to the county to develop and adopt countywide environmental policy. In these cases, the county is authorized to prescribe minimal environmental standards throughout the entire county. City governments are authorized to adopt stricter standards but may not utilize standards that are less stringent than those of the county. Cities TThe Florida Constitution allows municipalities to exercise any power for municipal purpose, as long as general or special laws do not restrict that power. Municipal powers are granted to cities, which enable them to impose any charge, which is not otherwise prohibited in law. Charter Counties The Florida Constitution authorizes counties to adopt a "home rule charter" through several processes, which provides counties with broad flexibility to exercise their powers for non-restricted purposes. The majority of Florida's urban counties have adopted home rule charters. Charter county governments have the power to impose any charge or tax that a city is authorized to impose. However, home rule authority is limited in that the Constitution precludes all forms of taxation, other than the property tax, except as conferred through general law. Non-Charter Counties Most of Florida's small to medium sized,
non-urban counties have not adopted a home rule charter and are more
limited in their flexibility and exercise of local powers. Florida's
Constitution limits non-charter counties to the powers provided by the
Legislature through general or special laws. However, the Florida Legislature
has adopted general laws giving non-charter counties essentially the
same broad authority and powers as provided to cities.
A detailed discussion of the Home Rule authority of Florida cities,
charter counties and non-charter counties can be found in
Chapter 2 of this manual
1.7.2 State Legislation Impacting Stormwater Programs
A number of laws in Florida specifically address stormwater management
requirements and establish the authority of cities and counties to establish
stormwater utilities.
Chapter 125 provides both charter and non-charter counties with
four important abilities with respect to stormwater management functions:
Chapter 163, known as the Local Government Comprehensive Planning
Act, requires that each city and county adopt a broad based comprehensive
plan that includes sections addressing water supply, drainage, groundwater
and aquifer recharge. The Act requires communities to assess problems,
identify needs and establish the facilities that will be needed by the
community.
Chapter 166, known as the Municipal Home Rule Powers Act, enables
cities to enact legislation concerning any subject matter on which the
State Legislature may act excepting annexation and specific subjects
precluded by the Constitution, county charters or general/specific laws.
Chapter 403 provides both cities and counties with three very
important authorities with respect to development and operation of stormwater
utilities:
Chapter 403 also requires local governments to consider FDEP's and the Water Management Districts' water resources rules when adopting and updating their Comprehensive Plans.
Chapter 2 of this manual provides
a discussion of Florida statutes that facilitate cities and counties
in developing stormwater utilities.
1.7.3 Federal Regulatory Programs Impacting Stormwater Programs
The Federal government has focused its regulatory attention on a number
of aspects of stormwater management that have resulted in increased
obligations and costs for Florida's communities as well as long-term
flooding reduction and environmental enhancement benefits for Florida's
citizens.
FEMA Floodplain Management Programs
The Federal government's influence on a community's stormwater program
has, until recent years, been relatively small and limited to interaction
with the Federal Emergency Management Agency (FEMA), which has regulation
of development in the 100-year floodplain and issuance of flood insurance
through the Federal Insurance Program its primary institutional objectives.
FEMA programs tend to be a voluntary participation process that indirectly
impacts a community through the rates that the citizens pay for their
individual flood insurance policies.
Stormwater NPDES Permitting Program
The role of the Federal government has become more pronounced in Florida
since the emergence of the Environmental Protection Agency's (EPA) Stormwater
NPDES Permitting Program. Starting in 1990, EPA required many Florida
counties and cities to secure Municipal Separate Storm Sewer System
(MS4) Permits for their stormwater discharges to waters of the United
States. The MS4 Permit focuses on the reduction of pollutant loads discharged
from stormwater outfalls and overall improvement of ambient water quality
through the development of an integrated process for prevention, reduction
and mitigation of pollutant discharges by citizens and governmental
functions, and the education of citizens and governmental employees
in the areas of stormwater management and pollution abatement.
EPA's Stormwater NPDES Permitting Program is not a voluntary process
-- it is mandated for designated communities -- and EPA has administrative,
civil and criminal penalties for failure to apply for required permits
and failure to properly implement issued permits. EPA's program directly
impacts a community through the incremental costs associated with new
employees for new/enhanced stormwater management programs and additional
capital investments required for the modification/construction of stormwater
facilities.
1.7.4 State Regulatory Programs Impacting Stormwater Programs
Florida developed several regulatory programs that address stormwater
discharges, both public and private, in response to regional flooding
and water quality degradation in the 1960s and early 1970s.
State Stormwater Permitting
Chapter 62-25 FAC, commonly known as the Stormwater Rule, establishes
certain requirements for attenuation and treatment of off-site stormwater
discharges. Prior to the development of this rule, most Florida focused
communities exclusively on flood control. However, since the Stormwater
Rule was adopted, communities have been required to address water quality
in a programmatic manner. Cities and counties in Florida that are subject
to the Federal Stormwater NPDES Permitting Program have benefited from
their earlier attention to water quality and stormwater treatment that
was necessitated by FDEP's development of the Stormwater Rule.
FDEP's evolving Total Maximum Daily Load (TMDL) program, intended to remove water quality impairments in Florida waters caused by excessive pollutant discharges, will likely be Florida's most far-reaching stormwater regulatory program. The work activities of this program-developing water quality simulation models for impaired waters, assessing pollutant discharges, identifying necessary and possible reductions in pollutant loads, subsequently allocating these reductions to point source and nonpoint source discharges, and incorporating these reductions into discharge permits-will impact most of Florida's existing stormwater utilities and is likely to serve as the basis for many more communities to develop and implement stormwater utilities.
Water Management Districts Rules
In response to extensive flooding in the 1960s, Florida created five water management districts (WMDs) that were intended to provide statewide management of flood flows. In the last 25 years, the Water Management Districts have constructed channel improvements and flood control facilities to reduce/eliminate regional flooding from significant storm events and have developed a regulatory program that addresses the attenuation and treatment of off-site stormwater discharges. The current version of this program normally requires communities to secure Environmental Resources Permits that address stormwater management and dredge and fill issues involved with both new facility construction and maintenance of existing facilities.. South Florida WMD, Southwest Florida WMD, St. Johns River WMD and the Suwannee River WMD process and issue Environmental Resource Permits. The Northwest Florida WMD, due largely to its lack of taxing authority, does not operate an Environmental Resource Permit program, and projects in this WMD are required to receive permits from FDEP pursuant to Chapter 62-25 FAC. Several of the WMDs are have begun linking the processing of Environmental Resources Permits to the designation of impaired waters under FDEP's TMDL Program. Consequently, the issuance of an Environmental Resources Permit for a stormwater management system that discharges to a designated impaired water (identified on the §303(d) Impaired Waters List under FDEP's TMDL Program) may either (1) be denied, or (2) may be issued with additional permit conditions that focus on controlling annual pollutant loads contained in stormwater discharges to the State's receiving waters.
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