Addressing Environmental Permit Issues Prior to Closing

Florida has five regional water management districts and the Department of Environmental Protection that oversee the state’s water resources. They issue permits for activities involving wetlands or surface waters. Most properties in Florida have or need a permit. The system includes things like lakes, culverts, and canals, and some require active maintenance. A permit is needed for most of these systems from the water management districts or DEP. Their authority is broad. Before buying a property, make sure to check if it has any environmental permits. If there are permits, the current owner needs to tell the water management district about the ownership change within 30 days. It’s easier to deal with these issues before buying the property, because they can become complicated after the sale is done. In South Florida, there’s a public notice for certain permits, but for others, you’ll need to contact the water management district to find out. When someone wants to transfer a water management permit for a property, they need to notify the Water Management District (WMD) within 30 days of the transfer. The new owner also needs to confirm in writing that they accept responsibility for following the permit rules. The WMD will approve the transfer as long as the new owner shows they can follow the permit rules. Until the transfer is approved, the original owner is still responsible for following the permit rules, even if they no longer own the property. So, it’s best to deal with the transfer issues before selling the property to avoid continued liability. The rules of the SJRWMD and SWFWMD say that the person or group who has the permit for the stormwater management system is responsible for following the rules until the permit is officially transferred to someone else. This often happens when a homeowners’ association takes over from a developer. A certified engineer needs to check the project and say it was built correctly before the permit can be transferred. It’s important to do this quickly so any maintenance issues can be fixed before the transfer. When a construction permit for a water management system needs to be converted to an operational permit, a responsible entity must be designated to operate and maintain the system. Within 30 days of the completion of construction, a certification from a registered professional must be submitted to show that the system has been built according to the permit. If the property is transferred to multiple owners or a portion of the property is sold, the new owners have three options: they can transfer the permit to all new owners, convey an easement to a property owners’ association, or obtain separate permits. If new owners want to share responsibility for the stormwater management (SWM) system, they can become joint permittees and agree to follow the rules of the permit. They may also form a master association to manage the SWM system together. If they prefer to have separate permits, they need to work together to address any drainage issues and may need to create easements to allow water to flow across each other’s property. If the SWM system is not totally independent, the new owners are responsible for the whole system. If a property owner doesn’t transfer a permit for a stormwater management (SWM) system when they sell their property, they are still responsible for following the rules of the permit, even if they don’t own the property anymore. This means they could get in trouble if the new owner doesn’t take care of the SWM system properly. The new owner could also get in trouble for using the SWM system without a permit. So, it’s important for both the old and new owners to make sure the permit is transferred correctly. It’s important to transfer permits for managing stormwater before buying or selling a property. If you don’t, you could be fined for operating without a permit. The original owner doesn’t want to be responsible for a property they no longer own, and the new owner doesn’t want to be fined for something they didn’t do. So, it’s best to take care of permit transfer before or at the time of closing. The Florida Department of Environmental Protection (DEP) and the Water Management Districts (WMDs) have an agreement that sets out who is responsible for regulating surface waters and wetlands in Florida. The WMDs have rules in place for managing surface water, and the Northwest Florida WMD has a special agreement with DEP because of financial limitations. There are exemptions from permitting for certain activities, and there are specific requirements for transferring permits in the Southwest Florida Water Management District. To operate and maintain a surface water management system, certain entities, like local government units, must meet certain requirements and have the power to own, maintain, and enforce rules for the system. If the permit is transferred to a homeowners’ association, the association must have the power to operate and maintain the system. The association must also have rules in place for managing the system and must be responsible for completing wetland mitigation tasks. Susan Roeder Martin is a senior attorney who works for the South Florida Water Management District. Before that, she worked for Florida Power & Light Company as a lawyer and lobbyist.

Source: https://www.floridabar.org/the-florida-bar-journal/addressing-environmental-permit-issues-prior-to-closing/