2019 is ushering in a new year with important water issues that will affect Florida’s business community. The water-related issues are many, and it is important for Florida’s businesses to be aware of these developments in 2019 as the changes are being implemented and as public comment periods open. Developers, farmers, industry and entities seeking new permits or renewals will be interested in these developments. Business owners should be aware of these changes so they are able to identify the significance and impact to their respective businesses.

2018’s sweeping set of Florida constitutional reforms included Amendment 6, which reversed the long-standing law that courts and administrative law judges deferred to an agency’s interpretation of the law in the agency’s subject matter jurisdiction. This old system of agency deference gave weight to the agency’s interpretation, and in state permitting and water proceedings, it advantaged a party who was aligned with an agency’s interpretation. This freshly adopted amendment has already tipped the balance toward the challenger of agency action, with the First District Court of Appeal’s reversal of Florida Department of Environmental Protection’s (FDEP) denial of a permit for exploratory drilling in Broward County. After reviewing the statutes anew and finding it was not bound to FDEP’s interpretation, the court found the applicant’s permit should be granted. Parties may still argue an agency’s interpretation of its own law, but judges will no longer be constrained by agency deference in their review. This constitutional amendment will make the outcomes of administrative hearings more uncertain, particularly for businesses who have permits challenged by third parties, because it affords challengers the opportunity to persuade the court in favor of their own interpretation of agency law.