The Florida Home Builders Association and the Florida Association of Community Developers have lost their legal challenge against the Florida Department of Environmental Protection’s proposed water reservation rule.
The petition challenged DEP’s statutory authority to adopt, as rule, a policy allowing Florida’s Water Management Districts to reserve unlimited amounts of groundwater for the general purpose of restoring and enhancing natural systems.
The one-day hearing before an administrative law judge was held December 7 and the ruling was issued last month.
Expert biologists in the case testified on behalf of builders and developers that the concept of “protecting” a water body is much different from, and more limiting than, “restoring or enhancing” a water body. However, during the rule challenge, DEP strategically modified the wording of its rule proposal and instead said that the use of water reservations for restoration and enhancement could only be used in the context of “protecting fish and wildlife.”
This change to the wording of the rule was sufficient for the judge to uphold the rule on its face.
“Once again, this is a major expansion of WMD power and a major water policy decision is being made by agencies and not the Florida Legislature, “ said Keith Hettrick, FHBA General Counsel. “There is no way around saying that barring any constraints by WMDs in applying this new policy, this decision is a terrible precedent for a balanced state water policy and could lead to disastrous results for all water users in Florida as well as foster and accelerate a climate of conflict in resolving regional water issues.