Page 105 - Akerman | 2016 Guide to Doing Business in Florida

construction of dams or reservoirs, and other activities affecting state waters.
Further, parties are required to obtain a consumptive use permit (“CUP”) or a
water use permit (“WUP”) from the respective WMD to withdraw surface or
groundwater for certain reasonable and beneficial uses such as public supply
(drinking water), agricultural and landscape irrigation, and industry and power
generation. There are a number of variations and requirements concerning
the application, maintenance, and renewal of ERPs, CUPs, and WUPs,
generally set forth in Chapters 40A through 40E, F.A.C.

(d) Pollutant Discharge Prevention and Control Act. The Pollutant Discharge
Prevention and Control Act, Florida Statutes §§ 376.011-376.21, generally
prohibits the discharge of pollutants into or upon any waters or lands of
Florida. Further, other related provisions, such as Florida Statutes § 376.302
(which identifies other similar and/or related prohibited acts), create liability for
any discharges or polluting conditions.

In the event of such a violation and/or covered release, responsible parties are
generally required to remediate affected properties to the extent necessary to
meet to certain numeric cleanup target levels, which are different for each
respective pollutant, media (i.e., soil or groundwater), and land use (residential
or industrial). Specific FDEP cleanup criteria are set forth in: 62-777, F.A.C.
(Contaminant Cleanup Target Levels); and 62-780, F.A.C. (Contaminated Site
Cleanup Criteria, i.e., risk based corrective action (“RBCA”)). Please note that
on June 12, 2013, Chapter 62-770, F.A.C. (Petroleum Contamination Site
Cleanup Criteria); 62-782, F.A.C. (Drycleaning Solvent Cleanup Criteria); and
62-785, F.A.C. (Brownfield Cleanup Criteria Rule) were repealed and certain
provisions from those rule chapters were consolidated and incorporated into
Chapter 62-780, F.A.C. (Contaminated Site Cleanup Criteria).

In addition to FDEP enforcement of such provisions, Florida Statutes
§ 376.313 has been held to create a strict liability private cause of action for
adjacent properties owners impacted by certain covered releases of
pollutants. See Aramark Uniform & Career Apparel, Inc. v. Easton, 894 So.2d
20 (Fla. 2004).

(e) Underground and Aboveground Storage Tanks. FDEP also regulates the
registration, construction, maintenance, installation, removal, and disposal of
underground and aboveground tanks pursuant to Florida Statutes § 376.303.
Further, Florida Statutes § 376.308(1) holds a number of parties strictly liable
for prohibited discharges including the person causing the discharge, the
person who owned or operated the facility at the time of the discharge, the
person who owned or operated the tanks at the time of the discharge, and
the person who currently owns the facility. In addition, Chapters 62-761 and
62-762, F.A.C., contains FDEP’s rules regulating underground and
aboveground storage tanks and their associated piping.

(f) Brownfields Redevelopment Act. The Brownfields Redevelopment Act
(Florida Statutes §§ 376.77–376.85), created a voluntary program for local
governments and state agencies to provide financial and regulatory incentives
and technical assistance to persons and businesses involved in the
redevelopment of Florida “brownfield sites”, which are defined in § 376.79(3)

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