2.2.1 Counties (Chapter 125)

Among the particular powers of both charter and noncharter counties conferred by the Legislature in FLA. STAT., § 125.01 is the power to "establish and administer programs of ... flood and ... erosion control... and drainage" (subsection (j)); the power to create municipal service taxing or benefit units in all or part of the unincorporated area "within which may be provided ... drainage... and other essential facilities and municipal services from funds derived from service charges, special assessments or taxes" (subsection q); and the power to levy and collect taxes and special assessments "both for county purposes and for providing of municipal services" (subsection (r)).

FLA. STAT., § 125.0101 (2) authorizes counties to provide, by agreement, drainage or other services to any municipality or special district, but forbids the imposition of special assessments or service charges within the municipality or district. This statute is cumulative to other authorizations, and does not limit them.

2.2.2 Cities (Chapter 166)

This chapter of the Florida Statutes is known as the Municipal Home Rule Powers Act. Substantially rewritten in 1973 after restrictive court decisions, §166.021 now provides that "the legislative body of each municipality has the power to enact legislation concerning any subject matter on which the State Legislature may act." Exceptions are provided for annexation, subjects prohibited by the constitution, or subjects pre-empted to state or county government under the constitution, general laws, or a county charter.

2.2.3 Specific Authority for Stormwater Utilities (Chapter 403)

The Local Government Comprehensive Planning Act requires, in FLA. STAT., § 163.3177, that each city and county adopt a comprehensive plan which must include "a ... drainage ... and natural groundwater aquifer recharge element." The element must describe the problems and needs and the general facilities that will be required for solution. The plan must also contain a feasible capital improvements funding plan, and §163.3180 requires that infrastructure to support development must be funded or in place concurrent with the impact of that development.

Independent special districts are similarly required to file public facilities reports showing their existing and planned facilities. See FLA. STAT., § 189.415.

FLA. STAT., § 403.0891 (3) requires the local governments, in the adoption or updating of their comprehensive plans, and special districts in the preparation of their public facilities reports, to consider the water resource rules of the Department of Environmental Protection and the water management district stormwater management goals and technical information.

FLA. STAT., § 403.0893 provides for the funding of stormwater systems. Subsection (1) authorizes cities and counties to create one or more stormwater utilities and to adopt stormwater utility fees sufficient to "plan, construct, operate and maintain" stormwater systems set out in the required local program. Subsection (2) authorizes the local government to set aside a continuing revenue source (from general taxation or other sources) sufficient to plan, construct, operate and maintain the system.

FLA. STAT., § 403.0893 (3) further authorizes cities and counties to create stormwater management system "benefit areas" and subareas within which all property owners may be assessed a per acreage fee related to the benefits received from the program.

That subsection also authorizes counties or cities to use the non-ad valorem method prescribed in Chapter 197 of the Statutes for the levy, collection and enforcement of fees authorized by that section of the statutes. Chapter 197 is discussed later in this Chapter.

Conceptually, there is no reason why a particular government may not utilize both the user fee and the special assessment as financing tools. For example, a special assessment may be an appropriate mechanism for the initial capital costs of a stormwater utility system, and a recurring user fee may be a proper tool for funding the ongoing operation and maintenance of the system. The overall legal limitation is that the total of fees and assessments paid by each owner cannot exceed the pro rata cost of capital and the pro rata cost of operating the system, for each benefited owner.