Drainage Changes on a Lot: What Your Board Must Ask Before Approving Regrading, Fill or a French Drain

Jason Hamilton Mikes, JD, MBA
Founder & Managing Shareholder

• Published September 25, 2026
• Reviewed by Jason Hamilton Mikes, JD, MBA, September 26, 2026
• Florida Statutes as of July 1, 2026
• Applies to: HOAs · Master associations

When an owner asks to regrade a yard, bring in fill, cut a French drain or pipe a swale, the board is being asked to approve a change to the community's stormwater system, whether or not the application says so. The covenants govern whether the improvement is allowed. They do not govern whether it is lawful, whether the water management district must authorize it, or whether the owner will be liable to the neighbor downhill. Those are three separate questions, and the board should answer all three before it votes.

A drainage request is not an ordinary architectural request

Most architectural applications ask the board a question about appearance. A drainage application asks a question about physics. When an owner adds fill to a back yard, cuts a French drain to the lot line, or pipes a rear-lot swale so the lawn mows more easily, water that used to sit or move in one place now sits or moves somewhere else. In a Southwest Florida community, somewhere else is usually a neighbor's lot, a street, or a lake.

That matters more here than in most of the country. Lakes in Lee, Collier and Charlotte County communities are not amenities that happen to hold water. They are the permitted stormwater treatment and attenuation system for the development, designed and approved before the first house was framed. The swales between lots, the inlets in the street, the pipes under the pavement and the control structure at the outfall are parts of the same system. Change one piece and you have changed how the whole thing performs.

So a drainage application is not a paint color with a shovel. The questions are different, the approvals are different, and the consequences of getting it wrong land on the association as well as on the owner. Our overview of the association's stormwater and lake responsibilities sets out the larger framework. This guide is about the narrow moment when somebody asks permission to change something.

Who holds the permit, and what that obliges the association to do

Stormwater systems in Florida are permitted under Part IV of Chapter 373, Florida Statutes, and Chapter 62-330 of the Florida Administrative Code. The permit is an environmental resource permit, and it is issued by the water management district. For Lee and Collier Counties, and for most of Charlotte County, that is the South Florida Water Management District. Part of Charlotte County lies in the Southwest Florida Water Management District, so a community there should confirm which agency issued its permit before writing to anyone.

A development is permitted first for construction. Under rule 62-330.310(1), F.A.C., the permit is then converted to the operation and maintenance phase once construction is complete, and it is transferred to an operation and maintenance entity. In a residential community that entity is almost always the homeowners association. Section 373.416(2), Florida Statutes, makes an operation permit permanent, and requires the permit holder to notify the district of a change of ownership within 30 days.

Four consequences follow, and a board should be able to recite them:

• Rule 62-330.310(6), F.A.C. provides that the operation and maintenance entity remains liable for compliance with the permit in perpetuity, unless the permit is transferred to another entity.
• General condition (a) in rule 62-330.350(1), F.A.C. requires that all activities be implemented following the plans, specifications and performance criteria approved by the permit.
• General condition (p) requires the permittee to provide routine maintenance of all components of the stormwater management system, including removal of trapped sediments and debris.
• General condition (m) gives agency staff with proper identification permission to enter, inspect, sample and test the project to confirm conformity with the approved plans.

Read that list from the board's chair. The association is on the permit, the permit obliges it to keep the system as the district approved it, and the district may come and look. Nothing in that chain mentions the owner who raised his back yard eighteen inches, which is the point: when the system stops performing, the district's letter arrives at the association's address.

Architectural approval is not a permit

Section 720.3035(1)(a), Florida Statutes, gives an association and its architectural or construction improvement committee authority to review and approve plans for the location, size, type or appearance of an improvement on a parcel, but only to the extent that authority is specifically stated or reasonably inferred in the declaration or in published guidelines the declaration authorizes. That is the whole of what the committee decides: does this improvement comply with the covenants.

It decides nothing about whether the work complies with the environmental resource permit, the county or city land development code, or the Florida Building Code. An owner who reads an approval letter as clearance to dig is reading something the letter does not say, and a board that lets him keep believing it is storing up an argument for later.

The 2026 session added a wrinkle that is frequently misread. Chapter 2026-63, Laws of Florida, effective July 1, 2026, added section 720.3035(1)(c), which provides that an association or its architectural or construction improvement committee may not require that a building permit have been issued as a prerequisite for the association's review of proposed construction or improvements on a parcel. The association can no longer tell an owner to come back once he has his county permit. It can still approve conditionally, so that the approval takes effect only when the owner obtains every permit the work requires, and lapses if he does not.

Denials have their own rule. Section 720.3035(4)(a) requires the association to give written notice stating with specificity the rule or covenant relied on and the specific aspect of the proposed improvement that does not conform to it. "Denied, does not meet community standards" is not a denial that will survive review. Our guide to architectural review procedures covers the mechanics.

Does the work need a state permit? Exempt, general, or individual

Rule 62-330.051, F.A.C. lists activities exempt from environmental resource permitting. Several of them come up on lot-level drainage applications, and each carries conditions that matter more than the headline:

• Swales. The construction and maintenance of swales is exempt under section 403.813(1)(j), Florida Statutes, carried into rule 62-330.051(7)(e). A "swale" is a defined term. Section 403.803(13) requires a manmade trench with a top-width-to-depth ratio of at least 6:1 or side slopes of at least 3 feet horizontal to 1 foot vertical, standing or flowing water only after rainfall, stabilizing vegetation, and a design that accounts for soil erodibility, percolation, slope and drainage area.
• Driveway culverts. Rule 62-330.051(4)(b) exempts culverted driveway or roadway crossings of non-navigable artificial drainage conveyances serving limited areas, on the condition that the culvert is sized and installed to pass normal high water stages without causing adverse impacts.
• Pipe replacement. Rule 62-330.051(9)(a) covers repair or replacement of existing pipes or culverts with equivalent hydraulic capacity.

A condition runs through several of these exemptions: there must be no reduction in the capacity of existing swales, ditches or other stormwater management systems legally in existence. That condition does most of the work in practice. Maintaining a swale is exempt. Filling a swale is not, because filling reduces capacity. Replacing a culvert is exempt if the replacement is hydraulically equivalent, and is not if the owner upsized it so his driveway drains faster into a ditch that was never sized for it.

Work that is not exempt needs authorization under either a general or an individual permit in Chapter 62-330. Because the community's system is already permitted, work inside it is usually handled as a modification of the association's permit rather than a new permit in the owner's name. The paperwork, and the exposure, come back to the association.

Liability for pushing water onto a neighbor

Florida follows the reasonable use rule for surface water because the Florida Supreme Court adopted it in Westland Skating Center, Inc. v. Gus Machado Buick, Inc., 542 So. 2d 959 (Fla. 1989). The Court said that the Florida position on interference with surface waters was "not entirely clear," and then elected "to adopt the reasonable use rule in cases involving the interference with surface waters." Under that rule each possessor is legally privileged to make reasonable use of his land even though the flow of surface waters is altered and causes some harm to others, and incurs liability only when the harmful interference with the flow of surface waters is unreasonable.

The court drew on the Restatement (Second) of Torts section 833, which treats surface water interference under nuisance principles: intentional interference is measured for reasonableness, unintentional interference by negligence. Two features catch people out. The rule applies to the lower owner as well as the upper one, so the homeowner who builds a berm to keep water off is judged by the same standard as the one who sent it. And compliance with a building code is evidence of reasonableness, not reasonableness as a matter of law.

A permit does not solve this. General condition (i) in rule 62-330.350(1), F.A.C. states that the permit conveys no property rights, does not authorize entry upon or work on property that is not owned, held in easement, or controlled by the permittee, and does not relieve the permittee of other compliance obligations. Section 373.443, Florida Statutes, immunizes the state and the district from liability for approving a permit or for a system's failure. It does not immunize the permittee, and it plainly does not immunize the owner. Nor does the association's approval stand between the owner and the neighbor in any useful way. It much more often puts the association's name in the caption alongside them.

What the common requests actually do

The last row is the one boards miss. Many Southwest Florida permits were issued on assumptions about how much of each lot would be covered by roof and pavement. Twenty years of pools, lanais and paver driveways can quietly carry a community past the impervious area its system was sized for, and no single application looks like the one that did it. That is a question for the association's engineer, not the committee.

What the board should require before approving

A workable standard for any application that moves water:

1. A drawing, not a description. Existing and proposed grades, the discharge point, and the relationship of the work to any platted drainage or lake maintenance easement.
2. Identification of every easement the work touches, taken from the recorded plat rather than from a sketch the contractor drew on the survey.
3. Written confirmation of which governmental approvals the work requires: the water management district, the county or municipal land development code, and the building department.
4. A condition that approval is void if the work is built other than as drawn, and that the owner furnish as-built confirmation when it is finished.
5. A signed owner acknowledgment that the approval is an approval under the covenants only, is not a permit, and is not a representation that the work is lawful or harmless.
6. Where the work touches the permitted system, review by the association's engineer at the owner's expense, and a written determination whether a permit modification is needed.
7. A maintenance covenant: the owner maintains the improvement, and the association may enter to correct a failure and charge the cost back.
8. A written decision either way, on the schedule the declaration sets, meeting section 720.3035(4)(a) if the answer is no.

When the work is already in the ground

Unapproved drainage work is different from an unapproved mailbox, and it should be handled differently. Fines do not move dirt. The remedy that matters is injunctive relief requiring removal and restoration, and the covenants in most Southwest Florida communities support it, often with a self-help right to enter and correct at the owner's expense. Our guide to unapproved owner improvements covers the enforcement sequence in general terms.

Two things argue for moving quickly. The first is evidentiary: grades, sod lines and water marks are provable in the months after the work and much harder to prove in year three. The second is doctrinal. A board that knew and did nothing for years has a harder time explaining why this owner and not the other three, and hands the owner arguments about waiver and selective enforcement he would not otherwise have had.

There is also the regulator. Rule 62-330.310(6), F.A.C. does not make the association's obligation contingent on whether an owner cooperated. If the district concludes the permitted system is not being maintained as approved, it deals with the permittee, which is the association. Our note on when to call the association attorney is a useful triage tool for managers.

Contact Hamilton Mikes

Hamilton Mikes advises Southwest Florida homeowners association boards on drainage and architectural applications, including how to condition an approval, when to involve the association's engineer, and what to do when work is already in the ground. Call 239-594-7227 or visit our Architectural Review page.