The Department of Environmental Protection (DEP) finalized its Water Quality Enhancement Areas (WQEA) rulemaking and filed the amendments to Chapters 62-4, and 62-330, F.A.C., and the new Chapter 62-332, F.A.C., for certification. The amendments will take effect November 19, 2026. DEP initiated WQEA rulemaking in response to legislation enacted in 2022, 2024, and 2026. The amendments include establishing WQEA and clarifications on the use of Regional Stormwater Management Systems (RSMS) for options to achieve water quality requirements under the state’s stormwater management rules, updated in June 2024.
Chapter 62-332 Amendment Purpose
DEP created the WQEA rules to authorize Environmental Resource Permit (ERP) applicants to address water quality improvements and adverse water quality impacts from ERP activities through the construction, operation, maintenance, and long-term management of WQEAs that provide offsite compensatory treatment. This new tool will work much like a mitigation bank that offsets the impacts to wetlands. Enhancement credits from WQEAs are intended to give ERP applicants flexibility to satisfy water quality performance standards and meet allocations under the state’s water quality restoration targets. The amendments address two categories: establishing WQEAs and using WQEA credits.
Chapter 62-332, Establishment of WQEAs
Chapter 62-332, F.A.C., sets criteria for establishing a WQEA. Only DEP may issue WQEA permits, which will be processed and issued as ERPs. Once effective, the rules will establish the following requirements:
- Permitting: Applicants must meet all conditions for issuance in the ERP and WQEA rule chapters, including documentation of the WQEA’s efficacy, a proposed performance and success criteria monitoring plan, financial assurance, and perpetual conservation easement.
- Performance and monitoring: WQEA owners must provide reasonable assurances that pollutant load reductions are met annually.
- Financial assurance and perpetual protection: The rules establish requirements for perpetual protection and proof of financial responsibility for perpetual operation, maintenance, and monitoring.
- Service area: A WQEA’s service area must encompass hydrologically connected waters where DEP determines the WQEA will reasonably offset pollution contributions. At a minimum, the area must consist of a Hydrologic Unit Code 8 (HUC 8) sub-basin.
- Governmental entities: Governmental entities may establish WQEAs and use credits for their own water quality needs but may not sell credits to third parties.
62-332, Use of WQEA Credits
Once available, WQEA credits will allow purchasing ERP applicants to satisfy water quality performance standards. Under the amendments, purchasing credits will transfer legal responsibility for achieving water quality load reductions to the WQEA owner. A purchaser’s ERP will not be affected if the WQEA fails to meet its success criteria. Governmental entities may also use credits to meet an assigned BMAP allocation or RAP. Although only DEP may issue WQEA permits, credits may be used in ERPs reviewed by DEP, water management districts, and locally delegated programs. Once effective, the rules will provide the following procedures: Credit Reservation, Credit Valuation, and a Credit Ledger.
62-4 Conforming Amendments
DEP amended Chapter 62-4, F.A.C., to add a fee schedule for WQEAs.
62-330 and Applicant’s Handbook, Vol. I Amendments
DEP amended Chapter 62-330, F.A.C., to reflect that WQEA permits are ERPs. DEP also revised the ERP Applicant’s Handbook, Volume I, governing compensating stormwater treatment to clarify and add details on Regional Stormwater Management Systems (RSMS), and to add Master Stormwater Management Systems (MSMS) and WQEAs. These three compensating stormwater treatment activities may be used as an alternative to, or in combination with on-site treatment to meet the required performance standards. For projects in impaired waters, an applicant must achieve net improvement at their project site prior to utilizing any form of compensating stormwater treatment.
Several stakeholders raised multiple questions regarding application of the rule during a challenge to the rule’s validity. DEP published a questions and answers document to clarify the relationship between the ERP rule Chapter 62-330, F.A.C., and the new WQEA rule Chapter 62-332, F.A.C.
These amendments offer opportunities to achieve stormwater water quality requirements and resolve permitting issues. If you have any questions about the new law or need help navigating the permitting process for WQEAs, please contact West Gregory and Debbie Madden.
Meet the Team
West Gregory is the former Director of Agricultural Water Policy at the Florida Department of Agriculture and Consumer Services and Deputy General Counsel at the Florida Department of Environmental Protection. Since 2006, he has practiced environmental law, including defending permitting decisions, drafting water use regulations, facilitating administrative rulemaking, implementing grant funding initiatives, and exchanging land use interests to facilitate infrastructure improvements.
Deborah Madden is a Gunster shareholder and has practiced environmental law since joining the firm in 2012. Deborah represents a broad range of clients, including developers, agricultural interests, utilities, mining interests, and public and private companies. Deborah brings extensive experience to provide legal support for client permitting and litigation matters involving water resources, wetlands, water supply, state and federal listed species issues, mitigation banking, state submerged lands and coastal construction.
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