Hurricane Ian was one of the most devastating hurricanes to impact Florida in recent history. Due to the devastation, the Florida Governor placed almost all of the State of Florida in a State of Emergency on September 23, 2022. As the impacts of Ian are still persisting, the Governor has extended this State of Emergency numerous times, with the latest extension, extending the State of Emergency for another 60 days, on August 23, 2024.

While in a State of Emergency, Florida Statutes require that certain development permits have their expiration date tolled. Specifically, Florida Statutes provide the following:

The declaration of a state of emergency issued by the Governor for a natural emergency tolls the period remaining to exercise the rights under a permit or other authorization for the duration of the emergency declaration. Further, the emergency declaration extends the period remaining to exercise the rights under a permit or other authorization for 24 months in addition to the tolled period. The extended period to exercise the rights under a permit or other authorization may not exceed 48 months in total in the event of multiple natural emergencies for which the Governor declares a state of emergency. The tolling and extension of permits and other authorizations under this paragraph shall apply retroactively to September 28, 2022. This paragraph applies to the following:
1. The expiration of a development order issued by a local government.
2. The expiration of a building permit.
3. The expiration of a permit issued by the Department of Environmental Protection or a water management district pursuant to part IV of chapter 373.
4. Permits issued by the Department of Environmental Protection or a water management district pursuant to part II of chapter 373 for land subject to a development agreement under ss. 163.3220-163.3243 in which the permittee and the developer are the same or a related entity.
5. The buildout date of a development of regional impact, including any extension of a buildout date that was previously granted as specified in s. 380.06(7)(c).
6. The expiration of a development permit or development agreement authorized by Florida Statutes, including those authorized under the Florida Local Government Development Agreement Act, or issued by a local government or other governmental agency.

Fla. Stat. § 252.363(1)(a) (emphasis added).

Thus, pursuant to Florida Statute, a development permit authorized by Florida Statutes and issued by a government agency has had its expiration date tolled during this state of emergency.

Does this Tolling Statute Apply to Septic System Installation Permits?

Septic System permits are issued by a governmental agency, the Florida Department of Environmental Protection, and are authorized by Florida Statutes (See Fla. Stat. s. 381.0065(1)(b)(“the department shall issue permits for the construction, installation, modification, abandonment, or repair of onsite sewage treatment and disposal systems under conditions as described in this section and rules adopted under this section.”).

The only unanswered question is – are these permits “development permits” as set forth in the statute. DEP has stated, in writing, that it does not believe that the tolling statute is applicable to these septic system permits. However, it has cited no reasoning for the same or why it believes these permits are exploded from the fairly broad tolling statute.

To be fair, there is no case law applying the tolling statute to septic system permits and the relevant statutes do not define “development permit.” However, in the absence of a definition in statute, Courts will look to the dictionary definition of a term. Here, Black’s Law Dictionary defines “development” as, among other things, the following: “a substantial human-created change to improved or unimproved real estate.” Installing a new septic system would seem to meet this definition. This is further bolstered by the actual permit itself which states that it is for the “development” of the property.

While the ultimate answer would be up to a Court, there is a strong legal argument that any septic system permits that would have naturally expired on or after September 23, 2022 have been tolled pursuant to the tolling statute.

If you have questions or would like to discuss this issue with an attorney, please contact us for a free consultation.