Enhanced Water Quality Protection in Florida: An Analysis of the Regulatory and Practical Significance of an Outstanding Florida Water Designation

The Outstanding Florida Water (OFW) designation is the highest protection offered to a body of water by the state of Florida and is available only to those waters whose “natural attributes” warrant it. An OFW designation provides that water body with an antidegradation standard for certain activities affecting its water quality. Ordinarily, waters in Florida must meet the criteria established by rule for their respective class of water (based on the Florida water body classification system), regardless of existing water quality. Once a water body is designated as an OFW, however, a baseline water quality standard is set based on the ambient water quality of that particular water body. Because the OFW water quality standard may be higher than the rule-based water quality classification criteria, regulated activities that may affect the OFW are subject to additional scrutiny by regulatory agencies. In addition, those activities not necessarily occurring within an OFW, but that may “significantly degrade” an OFW, are subject to heightened scrutiny. The ability of current OFW regulation to fulfill the legislative intent behind the OFW designation remains uncertain. Judicial and administrative case law addressing OFWs provide little clear guidance in interpreting the statutory standards for the issuance of permits in or affecting OFWs, especially the “clearly in the public interest” standard. The Florida Department of Environmental Protection (FDEP) should consider adopting for the OFW Program the type of public interest benefits/costs balancing test currently provided for in Aquatic Preserves Program rules. This test creates a discernible distinction between the public interest standard for submerged lands activities that are within aquatic preserves as opposed to those occurring outside of the preserves. The effect of the OFW designation on water quality parameters subject to a narrative standard (nutrients), and on water quality parameters that are not currently established by rule (e.g. emerging pathogens of concern) has not been established. In addition OFWs do not appear to enjoy any special consideration as designated uses subject to impaired waters restoration. The definitions of non-degradation and of ambient water quality for the purposes of OFW designation should be amended to ensure that they contemplate degradation by contaminants other than the current rule–based list of water quality standards and criteria. The extent to which Best Management Practices (BMPs) for silviculture operations are sufficient to safeguard OFW water quality may require further research. In addition, the extent to which the OFW statute and rules recognize the ecological role and recreational value of riparian zones remains in question. This should be clarified by the FDEP