ECONLOCKHATCHEE RIVER BASIN
NATURAL RESOURCES DEVELOPMENT AND
REGULATORY FRAMEWORK OF THE ECONLOCKHATCHEE RIVER
Final Report to St. Johns River Water Management District
Mark T. Brown and Charles S. Luthin John Tucker and Richard Hamann
Center for Wetlands Center for Governmental Responsibility
University of Florida University of Florida
Joseph Schaefer Lucy Wayne and Martin Dickinson
Urban Wildlife Program SouthArc Inc.
Department of Wildlife and Range Sciences Gainesville, Florida
Institute of Food and Agricultural Sciences
University of Florida
TABLE OF CONTENTS
VOLUME I: RESOURCE INVENTORIES
Summary and Recommendations
Chapter 1: Water Resources
Chapter 2: Terrestrial and Wetland Resources
Chapter 3: Wildlife Resources
Chapter 4: Historical Resources
VOLUME I: REGULATORY FRAMEWORK OF THE ECONLOCKHATCHEE RIVER
Land Use Planning and Regulations
Significant Development Structures and Activities
VOLUME III: CRITICAL AREAS MANAGEMENT AND PROTECTION PLAN
Management and Development Guidelines
Summary and Recommendations
We are grateful to Tom Ziegler and the staff of the St Johns River Water Management District
in Palatka, including John Hendrickson, Hal Wilkening, Lataine Donelin, and Librarian Judith Hunter, for
unfailing attention to and friendly assistance on the project We are particularly indebted to Colleen Logan
(Seminole County Planning Department) and Sherry Hooper (Orange County Planning Department) for their
special help in providing useful resource information for the Econlockhatchee River Basin Natural Resources
Development and Protection Plan project.
We acknowledge the following individuals for sharing information and materials for preparation
of this report:
Wes Biggs (Florida Audubon Society, Maitland)
Ken Bosserman (Friends of the Econ, Winter Park)
Jim Bradner (Department Environmental Regulation, Orlando)
Greg Brock (Florida Department of Natural Resources, Tallahassee)
Jim Crall (Orlando Utilities Commisision, Orlando)
Fred Cross (Florida Game and Fresh Water Fish Commission, Melbourne)
Jay Davoll (Florida Department of Transportation, Winter Park)
Michael Dennis (Breedlove, Dennis and Associates, Orlando)
Jim Farr (Department of Community Affairs, Tallahassee)
Richard Fowler (Florida Department of Transportation, Deland)
Chris Frye (Osceola County Planning Department)
Albert Gregory (Florida Department of Natural Resources, Tallahassee)
Michael Gilbrook and other staff, (East Central Florida Regional Planning Council, Winter Park)
Ellen Hemmert (East Central Florida Regional Planning Council, Winter Park)
Jim Hulbert (Florida Department of Environmental Regulation, Orlando)
Linda Jennings (Orange County Environmental Protection Department, Orlando)
Herb Kale (Florida Audubon Society, Maitland)
Dainne Kramer (Oviedo Planning Department)
David Kriz (USDA Soil Conservation Service, Orange County)
Roland Magyar (Orlando Planning and Development Department)
Bill Masi (Orange County Engineering Department, Orlando
Donald McIntosh (Donald W. McIntosh Associates, Inc., Orlando)
Rick Smith (Office of the Governor, Tallahassee)
Jack Stout (University of Central Florida, Orlando)
Henry Whittier (University of Central Florida, Orlando)
TABLE OF CONTENTS
EXECUTIVE SUMMARY 1
LAND USE PLANNING AND REGULATIONS 12
I. Political Jurisdictions 12
II. Comprehensive Plans 12
A. State Planning Criteria 13
B. Regional Comprehensive Plan 16
C. Local Government Comprehensive Plans 19
1. Seminole County 20
2. Orange County 25
3. Osceola County 31
4. Oviedo 33
5. Orlando 35
m. Local Government Regulations 37
A. Seminole County 38
B. Orange County 47
C. Osceola County 57
D. Oviedo 59
E. Orlando 61
ENVIRONMENTAL REGULATIONS 65
I. Point Source Discharges 65
II. Surface Water and Stormwater Management 66
A. St. Johns River Water Management District MSSW Permitting Program 66
1. Description of Water Management District MSSW
Permitting Program 66
2. Wetlands Protection in Water Management District
3. Analysis of Water Management District MSSW
B. St. Johns River Water Management District Stormwater Permitting Program 79
1. Description of Water Management District
Stormwater Permitting Program 79
2. Analysis of Water Management District Stormwater
Permitting Program 82
m. Wetlands 84
A. Federal 86
B. State 86
C. St. Johns River Water Management District 87
SIGNIFICANT DEVELOPMENT, STRUCTURES, AND ACTIVITIES 89
I. Little Econ Basin 89
A. Major Developments, Planned Developments, and DRIs 89
B. Public Utilities and Institutions 93
C. Roads 94
II. Big Econ Basin 96
A. Major Developments, Planned Developments, and DRIs 96
B. Public Utilities and Institutions 99
C. Roads 99
I. Lower Econ Basin 100
A. Major Developments, Planned Developments, and DRIs 100
B. Public Utilities and Institutions 101
C. Roads 101
SPECIAL PROTECTION OF FLORIDA RIVERS 103
I. Wekiva River 104
A. Wekiva River Task Force Findings 104
B. Florida Legislature 105
1. Wekiva River Protection Act 105
2. Amendments to Part IV, Chapter 373 Management
and Storage of Surface Waters 108
C. Regional Agencies 109
1. St. Johns River Water Management District -
MSSW Wekiva Rule Criteria 109
2. East Central Florida Regional Planning Council -
Comprehensive Plan Policies 113
D. Local Governments 114
1. Seminole County 114
2. Orange County 115
3. Lake County 117
II. Myakka River 120
III. Suwannee River 122
IV. Summary and Conclusions 124
HISTORICAL RESOURCES 129
I. Federal 129
II. State 131
Table 1 Residential DRI Thresholds in the Econ Basin 18
Table 2 Local Government Comprehensive Plan Due Dates 19
Table 3 Summary of Local Government Environmental
Resource Regulations in the Econ Basin 37
Table 4 Local Government Isolated Wetlands Permitting
Thresholds in the Econ
Table 5 Summary of Agency Environmental Resource
Regulations in the Econ
Table 6 Review Criteria for MSSW Activities 69
Table 7 Regional, State, and Federal Isolated Wetlands
Permitting Thresholds in the Econ Basin 85
Table 8 Differences Between MSSW and Wekiva Basin
Figure 1 Wekiva River Water Quality Protection Zone 111
Figure 2 Wekiva River Water Quantity Protection Zone 112
Figure 3 Wekiva River Riparian Habitat Protection Zone 113
Figure 4 Lake County TDR Scheme for Wekiva River Protection 118
Figure 5 Myakka River Area and Wild and Scenic Protection Zone 121
Map 1 Political Jurisdictions M-1
Map 2 Econ Sub Basins M-2
Map 3 Major Developments in the Econ Basin M-3
Map 4 New Roads and Road Improvements in the Econ
Appendix A Florida Game and Fresh Water Fish Commission
Appendix B Selected Provisions From East Central Regional
Policy Plan B-1
Appendix C Wekiva River Task Force Recommendations C-1
Appendix D Wekiva River Protection Act D-1
Appendix E St. Johns River Water Management District Wekiva
River Basin Rules E-1
Appendix F Myakka River Wild and Scenic Designation and
Appendix G Myakka River Task Force Recommendations G-1
Appendix H Suwannee River Task Force Recommendations H-1
REGULATORY FRAMEWORK FOR THE ECONLOCKHATCHEE RIVER BASIN
John Tucker and Richard Hamann
Regulatory Framework for the Econlockhatchee River
This volume (Volume II) of the Econlockhatchee (Econ) River Basin Natural Resources
Development and Protection Plan describes existing planning and regulatory mechanisms in the Econ
River Basin and evaluates whether they are adequate to protect the water, wetland, wildlife, and
historical and cultural resources of the basin. This volume and Volume I (Resource Inventories) provide
the basis for the specific regulatory and policy initiatives contained in Volume III (Critical Areas
Management and Protection Plan) of the plan.
The primary conclusion of this volume is that existing planning and regulatory mechanisms will
not adequately protect the natural resource values of the Econ River. Current regulations are inadequate
to protect aquatic, wetland-dependent, and upland species of wildlife because the regulations do not
provide for protection of upland habitat adjacent to watercourses and wetlands. Uplands provide
essential habitat for wetland-dependent and upland species of wildlife. In addition, uplands perform
important functions such as filtering nutrients and other pollutants from runoff and buffering wildlife
from noise and physical encroachment.
Analysis of the existing regulatory framework in the Econ Basin identifies a compelling need
for development of additional regulations and assignment of these regulations to various existing
governmental entities. The findings of this report are supported by positions taken by regulatory entities
and language in existing and draft local government comprehensive plans with regulatory jurisdiction
within the Econ River Basin.
The need for comprehensive management and use of buffers to protect the river ecosystem has
been clearly identified and either mandated or endorsed by most governmental entities with regulatory
jurisdiction within the Econ Basin. The Office of the Governor recognizes the need for protection of
the Econ River ecosystem and endorses the concept of protection buffers along the river. The
Department of Environmental Regulation also recognizes the need for protection of the river and
endorses the concept of protection zones and reclassification of the river to an Outstanding Florida
Water. The Department of Community Affairs, pursuant to Chapter 163, Part II, Florida Statutes,
requires local governments to adopt comprehensive plans which conserve and protect existing fisheries,
wildlife habitats, rivers, floodplains, wetlands, freshwater beaches and shores, and their natural functions.
The Florida Game and Fresh Water Fish Commission has developed a model conservation element
which recommends that local governments maintain upland buffers along waterways and wetlands to
provide upland wildlife habitat and corridors, prevent erosion, retard runoff, and preserve natural
Similarly, the East Central Florida Regional Planning Council (Planning Council) recommends
that local governments establish buffers along waterways and wetlands to provide wildlife habitat and
protect water quality. The Planning Council recently funded a study which found that 550-foot buffers
where needed to protect wildlife habitat along rivers in central Florida. The St. Johns River Water
Management District Governing Board identified the Econ River Basin as an ecosystem needing
comprehensive management and protection. The Governing Board, in response to this study, has
directed the district staff to begin drafting rules to protect the Econ River ecosystem.
Local governments within the Econ River Basin have also recognized the need to provide
special protection for the river ecosystem. Seminole County, in its existing comprehensive plan, states
that the counties' policy is to preserve and maintain water body littoral zones through the use of buffers
and setbacks and to develop standards for maintaining heavily wooded areas adjacent to water bodies
and wetlands. Seminole Counties' draft comprehensive plan goes further and specifically recommends
establishing (1) land development regulations similar to those within the Wekiva River Hydrologic Basin
for the entire Econ River Basin, and (2) wetland and upland buffers for development within the basin.
Orange County's existing comprehensive plan directs the county to protect shoreline vegetation.
Like Seminole County, the Orange County draft conservation element identifies the Econ River
System as worthy of special protection, stating that "[c]ounty action is warranted because the current
level of protection does not ensure the long-term maintenance of the river's character." In addition, the
draft element states that wildlife corridors should be protected and preserved from fragmentation and
destruction. The draft conservation element of Osceola County states that wetland buffers and criteria
for adjacent upland development should be adopted to protect wetlands, to protect surface waters, to
control land clearing, to protect the natural functions of the 100-year floodplain, and to protect wildlife.
Finally, the Econ River Task Force, a committee with representatives from many interest groups,
specifically recommended the adoption of protection zones adjacent to (1) the river, (2) many of its
tributaries, and (3) isolated wetlands.
Despite the overwhelming authority requiring and supporting establishment of special protection
zones along the river and wetlands, to date none are in place. While draft local government
comprehensive plans indicate that local governments in the Econ Basin recognize the need to provide
upland habitat adjacent to riverine systems, the draft comprehensive plans are presently either
incomplete or un-adopted. Adoption of new comprehensive plans and implementation of the plans
through land development regulations will take considerable time. Accordingly, it is unclear whether
local governments will adequately protect the Econ River ecosystem without a legislative directive.
Similarly, although the St. Johns River Water Management has begun drafting preliminary rules
for the Econ Basin, it is unlikely that the Water Management District alone can provide adequate
protection for the entire river ecosystem. Fortunately, effective protection of the Econ can be
accomplished through existing regulatory entities. Specific regulatory and policy initiatives are
contained in Volume III of the Critical Areas Management and Protection Plan.
The following is a summary of abbreviated findings and recommendations from this volume of
the Econlockhatchee (Econ) River Basin National Resources Development and Protection Plan.
Findings and Recommendations
Land Use Planning and Regulations
A. State Planning Criteria
1. Chapter 163, Part II, Florida Statutes and Rule 9J-5 require local governments to adopt
conservation elements which protect natural resources, but these documents do not
include sufficient specificity to ensure that local governments provide uniform and
comprehensive protection for the entire Econ River Basin.
2. The East Central Florida Regional Planning Council (Planning Council) Regional
Policy Plan contains detailed policy guidelines which could provide significant
protection for the Econ River and Basin if implemented by local governments. In
addition, the Planning Council has funded a study which provides a scientific basis for
adoption of wildlife buffers. Local governments should utilize the Planning Council
Regional Policy Plan and Buffer Study to help develop appropriate river and basin
protection regulations for the Econ Basin.
3. Development of Regional Impact (DRI) thresholds should be lowered within the Econ
River Basin so that more developments will go through the rigorous DRI review
process. Residential DRI thresholds within the Econ Basin are 750 dwelling units for
Osceola County, 2000 dwelling units for Seminole County, and 3000 dwelling units
for Orange County.
B. Local Government Comprehensive Plans
1. Existing future land use, conservation, and recreation and open space elements of
political jurisdictions within the Econ Basin do not provide for sufficient protection of
Econ River or Basin because they do not provide for adequate protection of wildlife,
riparian habitat, uplands, water quality, or water quantity.
2. The draft conservation element for Seminole County identifies the Econ River as a
unique and sensitive area and recommends (1) establishing land development
regulations similar to those within the Wekiva River Basin, (2) developing wetland and
upland buffers for development within the basin, (3) maintaining the rural character of
the basin, and (4) using innovative preservation and acquisition measures such as off-
site mitigation, transfer of development rights, and land banking. Adoption and
implementation of provisions contained in the Seminole County draft conservation
element could provide considerable protection for the Econ River and Basin.
3. The draft conservation element for Orange County identifies the Econ River as a
sensitive riverine system which could benefit from comprehensive protection. The
element states that the current level of protection does not ensure the long-term
maintenance of the river's character. The element recommends adopting land
development regulations which (1) require upland buffers adjacent to riverine systems,
(2) protect identified wildlife corridors, (3) include cluster developments, transfer of
development rights, buffering sensitive areas, and discourage fragmentation of wildlife
corridors. Adoption and implementation of provisions contained in the Orange County
draft conservation element could provide considerable protection for the Econ River
4. The draft element for Osceola County provides general mandates for protection of
natural resources, including wetland buffers, criteria for adjacent upland development,
prohibitions against dredging and filling, and protecting wildlife. However, the
element does not identify the headwater swamp of the Big Econ River as a sensitive
area worthy of special protection. Osceola County should include specific criteria for
protection of the headwaters of the Big Econ River in the conservation element.
5. Draft conservation elements for Orlando and Oviedo are currently unavailable.
6. Substantial adverse development of the Econ Basin could occur before new
comprehensive and land development regulations are adopted. Updated comprehensive
plans are due on the following dates: (1) Seminole County April 1, 1991; (2)
Orange County Dec. 1, 1990; (3) Osceola County, July 1, 1990; (4) Orlando Jan 1,
1991; and (5) Oviedo April 1, 1991. Land development regulations are not due until
one year after the comprehensive plans are due. Intense development pressure in the
Econ Basin necessitates interim protection measures. Local governments should
consider adopting interim development regulations or moratoriums for the Econ Basin,
particularly in riparian areas.
7. None of the political jurisdictions within the Econ Basin have optional historic and
scenic preservation elements in their current or draft comprehensive plans. Local
governments could better identify and protect archaeological artifacts by adoption of
scenic and historical preservation elements.
C. Local Government Land Development Regulations
1. Local government land development regulations are inadequate to protect natural
resources of the Econ River Basin because the regulations do not provide for adequate
protection of uplands and wildlife.
2. Local government land development regulations are inadequate to protect wildlife
resources of the Econ Basin and River because the regulations do not provide for
protection of wildlife corridors or prevent fragmentation of wildlife habitat.
3. Local government land development regulations are inadequate to protect natural
resources of the Econ Basin and River because the regulations do not provide buffers
to protect rivers and wetlands.
4. Local government wetland, stormwater, and dredge and fill regulations rarely provide
more protection than regional, state, or federal regulations. Local government
wetlands regulations allow development of many small isolated wetlands which
provide essential functions for certain species of wildlife.
1. St. Johns River Water Management District (Water Management District) Management
and Storage of Surface Waters (MSSW) regulations do not adequately protect wildlife
resources of the Econ River and Basin because the rule does not protect wildlife
habitat by requiring setbacks or buffers from the river or from wetlands.
2. Water Management District MSSW regulations do not adequately protect wildlife
resources of the Econ River and Basin because the rules do not provide for
consideration of upland species of wildlife.
3. Water Management District MSSW regulations do not adequately protect the water
quantity and base flow of the Econ River and Basin because the rules allow lowering
of groundwater levels.
4. Water Management District MSSW regulations do not adequately protect water quality
of the Econ River and Basin because the rules do not ensure that all characteristics of
post-development runoff are similar to pre-development runoff characteristics.
5. Water Management District MSSW regulations do not adequately protect wildlife
resources of the Econ River and Basin because the rules do not adequately protect
small ephemeral wetlands which are essential to certain species of wildlife.
6. Some additional protection could be obtained by lowering MSSW permitting
thresholds for the Econ Basin, thereby requiring more projects to meet MSSW
7. Water Management District stormwater regulations do not adequately protect the
natural resources of the Econ River and downstream St. Johns River because the rule
does not consider the effect of constructing stormwater systems on wildlife habitat.
8. Water Management District stormwater regulations do not adequately protect the
natural resources of the Econ River and downstream St. Johns River because lack of
compliance and enforcement are a significant problem.
9. Water Management District stormwater regulations do not adequately protect the water
quality of the Econ River and downstream St. Johns River because the rule allows
construction of detention with filtration systems, a treatment design which is
ineffective in areas with high water tables.
10. Water Management District stormwater regulations do not adequately protect the water
quality of the Econ River and downstream St. Johns River because the nutrient
standard is inadequate and the assimilative capacity of the water bodies is unknown.
11. There are no environmental regulations which protect upland habitat and wildlife other
than endangered and threatened species.
Significant Development, Structures, and Activities
1. The portion of the Econ Basin surrounding the Little Econ River is highly developed. Most
other portions of the basin are relatively undeveloped.
2. Much of the Econ Basin is currently under intense development pressure. Many acres of land
within the basin have already been committed to development. Recent submittals propose
development of substantial portions of land near the Big Econ River.
Special Protection of Florida Rivers
Special regulations have been or are being developed for the Wekiva, Myakka, and Suwannee
Rivers because citizens and regulatory entities determined that existing regulations did not provide
adequate protection for the river ecosystems.
1. The Florida Legislature mandated that specific protection mechanisms be developed for
the Wekiva River. State agencies, the regional planning council, the water
management district, and local governments have adopted special regulations to protect
the Wekiva River Basin.
2. The legislature directed the Department of Natural Resources (DNR) to pursue
acquisition of recreation and conservation lands within the Wekiva Basin.
3. Thresholds for residential Developments of Regional Impact (DRIs) have been lowered
by 50% within the Wekiva Basin.
4. The East Central Florida Regional Planning Council adopted policy recommendations
supporting establishment of protection zones by the St. Johns River Water
Management District and local governments.
5. The St. Johns River Water Management District adopted a riparian habitat protection
zone for the Wekiva River and its major tributaries which strongly discourages any
development within 550 feet of the river or within 50 feet of wetlands which are
adjacent to the river.
6. The Water Management District adopted a water quality protection zone extending one
half mile from the Wekiva River and many of its tributaries and one quarter mile from
any abutting wetland.
7. The Water Management District adopted a water quantity protection zone extending
300 feet landward from wetlands abutting the Wekiva River and many of its
8. Local governments adopted comprehensive plan amendments and land development
regulations which protect natural resource values in the Wekiva Basin, including
building and clearing setbacks from the Wekiva River and density and intensity
restrictions for the entire basin.
1. The Myakka River Management Coordinating Council has adopted a management plan
(Plan) for the Myakka River which identifies development activities near the river as
the primary threat to the river system.
2. The Plan recommends protection of three areas:
(a) The river and adjoining wetlands
(b) A zone extending 220 feet from the river and wetlands
(c) The remaining watershed
3. The Plan recommends that the Department of Natural Resources (DNR) regulate the
river and adjoining wetlands, and that local governments regulate the remaining
protection areas. The plan recommends that the legislature give DNR the authority to
take over regulation of the 220-foot zone if local governments fail to adequately
manage the zone.
4. The Plan recommends that agencies acquire headwater lands, wetlands, tributaries, and
lands bordering the Myakka River.
5. The Plan recommends that the South West Florida Water Management District
establish resource-based water quality and quantity standards for the river.
6. The Florida Legislature has approved amendments to the Myakka River Wild and
Scenic Designation and Preservation Act which include recommendations from the
7. DNR is drafting a rule to implement some of the Plan's recommendations.
The Suwannee River Task Force, created by Governor Martinez, reported their findings in
November of 1989.
1. The Suwannee River Task Force found that existing regulatory mechanisms, such as
the Surface Water Improvement and Management (SWIM) program and the local
government comprehensive planning process should be able to adequately protect the
2. The Task Force recommended the local governments adopt setbacks from the river of
75 feet or greater to protect wildlife habitat and the aesthetic quality of the river.
3. The Task Force recommended that development of regional impact thresholds be
lowered by 50% within the 100-year floodplains.
4. The Task Force recommended that development within the 100-year floodplain be
discouraged, and be low intensity or density when allowed.
5. The Task Force recommended that there be no further degradation of water quality in
the river or its tributaries.
6. The Task Force recommended that all septic tanks, private wells, and central
wastewater facilities be prohibited within the 10-year floodplain.
1. Of the three efforts at river protection which were examined, the approach taken for
the Wekiva River Basin appears to provide the most comprehensive protection for the
river and the entire basin because: (1) assigning a regional agency, the St Johns River
Water Management District, as the agency responsible for administering the protection
zones ensures consistent and comprehensive application of protection measures; (2) the
Water Management District was able to incorporate protection criteria into the existing
MSSW regulatory program, thereby eliminating the need to create new regulatory
entities or to greatly expand the duties of other agencies; (3) the plan provides for
protection of water quality, water quantity, and aquatic and wetland-dependent wildlife
habitat; (4) local governments are required to meet certain protection criteria when
making land use decisions; and (5) the protection program was specifically mandated
by the Florida Legislature.
2. Some limitations of the Wekiva approach are that: (1) the legislation did not provide
the Water Management District with authority to regulate for the benefit of upland
species of wildlife; and (2) the legislation did not provide detailed criteria to guide
local governments, such as minimum setback distances from the river and minimum
density requirements, thereby leading to inconsistent criteria being adopted by the local
3. The approach taken for the Myakka River is similar to that taken in the Wekiva but it
relies on local governments to implement the protection zone adjacent to the river and
requires the Department of Natural Resources to regulate portions of the basin.
4. The approach taken for the Suwannee River is not appropriate for the Econ River
Basin because development is occurring too rapidly in the Econ Basin for the local
government comprehensive planning and land development regulation process to
effectively deal with the development. In addition, the Econ River has not been
identified as an area requiring protection and restoration under the SWIM program.
5. An approach similar to that taken for the Wekiva which incorporates findings of this
report (Econlockhatchee River Basin Natural Resources Development and Protection
Plan) would be appropriate for the Econ River Basin and would provide
comprehensive and consistent protection of its natural resources.
1. A variety of state and federal laws provide for consideration and protection of historical
2. Historical resources are poorly documented in the Econ River Basin because most of the basin
has not been surveyed (see chapter 4, Volume I of this report).
3. Currently, none of the political jurisdictions within the Econ River Basin have historical and
scenic preservation elements in their comprehensive plans.
4. Historical resources could be better protected if local governments would adopt historical and
scenic preservation elements requiring future development within the basin to complete cultural
resource assessments (see chapter 4, Volume I of this report).
REGULATORY FRAMEWORK FOR THE ECONLOCKHATCHEE RIVER BASIN
John Tucker and Richard Hamann
The resources of the Econlockhatchee River Basin are subject to regulation by a number of
political entities at the local, regional, state, and federal levels of government Three counties--Orange,
Seminole and Osceola--and several cities have comprehensive planning and land use regulatory authority
over the basin. Their comprehensive plans are being revised and will be reviewed by the East Central
Florida Regional Planning Council and the Florida Department of Community Affairs. The
comprehensive plans must then be implemented through land development regulations. Meanwhile, land
use is regulated by existing comprehensive plans and land development regulations. Certain large-scale
developments (Developments of Regional Impact or DRIs) are subject to special review by local
governments, the regional planning council, the Department of Community Affairs and, if appealed, the
Governor and Cabinet.
Environmental quality is regulated through a variety of permitting programs. The discharge of
domestic and industrial waste through point sources is primarily regulated by the Florida Department of
Environmental Regulation and the U.S. Environmental Protection Agency (EPA). The St. Johns River
Water Management District (Water Management District) regulates the construction and operation of
surface water management systems. The Florida Department of Environmental Regulation's (DER)
stormwater rule is also implemented by the Water Management District. The effects of surface water
management systems on wetlands and wildlife are considered by the Water Management District. In
addition, the Water Management District, DER, the U.S. Army Corps of Engineers and the U.S.
Environmental Protection Agency regulate activities in wetlands under varying jurisdictional and
permitting criteria. The effects of wetlands development on wildlife is considered by both state and
federal agencies with the assistance of the Florida Game and Freshwater Fish Commission and the U.S.
Fish and Wildlife Service. Special protection for endangered and threatened species and their habitat is
provided for by state and federal laws. The effect of consumptive water use on both ground and surface
waters and associated resources is regulated exclusively by the Water Management District
The planning and regulatory system is thus extraordinarily complex. The purpose of this
section is to briefly describe the most important programs and assess their potential for protecting the
resources of the Econ. This evaluation will provide a basis for recommending ways to implement the
management recommendations of Volume I.
LAND USE PLANNING AND REGULATIONS
I. Political Jurisdictions
Map 1 depicts the political jurisdictions within the Econ Basin. Seminole, Orange, and Osceola
counties and the cities of Orlando, Oviedo, Winter Park, Maitland, and Casselberry have regulatory
authority over portions of the Econ Basin. At the time of this writing the cities of Winter Park,
Maitland, and Casselberry appear to have relatively insignificant impacts on the Econ Basin, and have
been excluded from this report due to time constraints. However, the regulatory structure and growth
management disposition of these cities should be examined in the future.
The headwaters of the Big Econ lie in an undeveloped portion of north Osceola County. The
Big Econ then flows in a northerly direction through Orange County for about 18 miles. The Little
Econ originates in Orange County on the East side of the city of Orlando and flows in a north easterly
direction for approximately 13 miles. The Big and Little Econ cross into Seminole County and join
together in the city of Oviedo to form the Econ river. The river then turns east and flows for about 13
miles through undeveloped areas of Seminole County and ultimately discharges into the St. Johns River.
II. Comprehensive Plans
Chapter 163 Part II of the Florida Statutes (Local Government Comprehensive Planning and
Land Development Regulation Act)1 requires that local governments devise comprehensive planning
programs to guide and control future development. Comprehensive plans are long range policy
documents which provide guidance for local government regulatory activities. Local government
comprehensive plans must address a number of required elements, most of which have some bearing on
the nature and intensity of development in the Econ Basin. Comprehensive plan elements must be
consistent with guidelines in regional and state comprehensive plans.2
An in-depth examination of each comprehensive plan element is beyond the scope of this
report. This discussion will thus focus on the elements most critical to the control of development
affecting the Econ Basin, which are the future land use, conservation, and recreation and open space
elements of each local government's comprehensive plan.
1. Fla. Stat. 163.3161 163.3243 (1989).
2. Id. 163.3177(10)(a).
Chapter 163 Part II requires that the future land use element designate the future distribution,
location, and extent of private and public land uses.3 The element must include standards for control
and distribution of population densities and building intensities for each land use category.4 Local
governments must create future land use maps which depict the proposed future distribution, location,
and extent of land uses.5 The conservation element must provide for the "conservation, use, and
protection of natural resources in the area, including ... water, water recharge areas, wetlands, waterwells
... soils ... shores, floodplains, rivers ... lakes ... forests, fisheries and wildlife ... and other natural and
environmental resources."6 The recreation and open space element must provide for a comprehensive
system of public and private sites for recreation, including natural reservations, parks, and open spaces.7
Local governments must incorporate state and regional goals and objectives into their local
comprehensive plans and land development regulations. The Department of Community Affairs and the
East Central Florida Regional Planning Council review and assist in development of plans and
regulations by local governments within the Econ Basin.
A. State Planning Criteria
The Department of Community Affairs (DCA) is responsible for ensuring that local
governments and regional councils abide by the policy guidelines of the state comprehensive plan.8
Rule 9J-5 was adopted by DCA and establishes minimum criteria for revising local comprehensive
plans.9 Rule 9J-5 requires that local government comprehensive plans include future land use,
conservation, and recreation and open space elements. The state comprehensive plan provides additional
policy guidelines for water resources, natural systems, recreational lands, and land use.'1
3. Fla. Stat. 163.3177(6)(a) (1989).
6. Id. 163.3177(6)(d).
7. Id. 163.3177(6)(e).
8. Fla. Stat. 163.3167(2), ch. 187 (1989).
9. Fla. Admin. Code ch. 9J-5 (Dec., 1986).
10. Fla. Stat. 187.201(8),(10),(16) (1989).
Future Land Use Elements
Local government future land use elements must show generalized land uses and natural
resources on existing land use maps." The maps must include natural resources such as shores, rivers,
lakes, floodplains, wetlands, minerals, and soils.12 The elements must include general densities or
intensities of use for gross land areas within each use category.3 The element must also include an
analysis of the availability of services and facilities to serve existing uses, the character and magnitude
of existing undeveloped land to determine its suitability for use, the amount of land needed to
accommodate the projected population, and the suitability of development and redevelopment of flood-
Future land use elements must include objectives which protect natural and historic resources,
discourage urban sprawl, and encourage use of innovative land development regulations such as planned
unit developments." In addition, the elements must include policies to ensure: (1) development
approval is conditioned upon the availability of adequate levels of service, (2) management of drainage
and stormwater, and (3) protection of environmentally sensitive lands.16 The elements must also
include a future land use map which shows natural resources and the proposed distribution, extent, and
location of generalized land uses.17
Local government conservation elements must identify and analyze rivers, wetlands,
floodplains, fisheries, wildlife, and vegetative communities including forests."s Local governments
must then create goals and policies to protect these natural resources." These goals and policies must
(1) conserve and protect native vegetative communities, including forests, from destruction by
development activities, (2) conserve and protect existing soils, fisheries, wildlife habitats, rivers, lakes,
11. Fla. Admin. Code 9J-5.006(l)(a),(b) (Dec., 1989).
13. Id. 9J-5.006(1)(c).
14. Id. 9J-5.006(2).
15. Id. 9J-5.006(3)(b).
16. Id. 9J-5.006(3)(c).
17. Id. 9J-5.006(4).
18. Fla. Admin. Code 9J-5.013(1) (Dec., 1986).
19. Id. 9J-5.013(2).
floodplains, wetlands, freshwater beaches and shores, and their natural functions, (3) protect waterwells
and water recharge areas, (4) encourage cooperation with other local governments to conserve "unique
vegetative communities located within more than one local jurisdiction," and (5) designate
environmentally sensitive lands for protection."
The Florida Game and Fresh Water Fish Commission (GFC) has created a model conservation
element for local governments to use for guidance.2' The document includes selected provisions from
the State Comprehensive Plan and the State Land Development Plan which relate to fish and wildlife
resources. In addition, the GFC recommends a number of policies, many of which could, if adopted
and implemented by local governments, provide significant protection in the Econ Basin. Many of the
GFC recommendations are consistent with recommendations contained in this report, including the
Conserve forests, wetlands, fish ... and wildlife to maintain their
environmental, economic, aesthetic, and recreational values.
Develop and implement a comprehensive planning, management and
acquisition program to ensure the integrity of Florida's river systems.
Emphasize the acquisition and maintenance of ecologically intact systems in
all land and water planning, management and regulation.
Prevent water management and development projects that may alter or disrupt
the natural function of significant natural systems.
[Develop a] critical habitat map ... to delineate specific locations of sensitive
natural resources ... [including] high quality and/or unique natural plant communities
(ie.,... longleaf pine wiregrass, ... xeric oak and sand pine scrubs) ... and corridor areas
such as strips of undeveloped habitat separating existing conservation reserves, or
transitional zones along major floodplains.
Maintain the local government's current complement of wildlife species [and
natural plant communities] through preservation of diverse and viable habitats.
Encourage and promote the protection of viable tracts of sensitive or high
quality natural plant communities within developments.
Require detailed inventories and assessments of the impacts of development
on environmentally significant systems.
Maintain upland buffers along the local government's waterways to provide
wildlife habitat and corridors, prevent erosion, retard runoff and preserve natural
Protect, restore, or create wetland areas to provide wildlife habitat, prevent
water quality degradation, aid water storage and recharge the aquifer.
Incorporate upland preservation in and around preserved wetlands to provide
habitat diversity, enhance edge effect, and promote wildlife conservation.
20. Id. 9J-5.013(2).
21. Florida Game and Fresh Water Fish Commission, Model Local Government Comprehensive
Plan Conservation Element (August, 1987).
Promote the long-term maintenance of natural systems through such
instruments as deed restrictions, covenants, easements, transfer of development rights,
mitigation banks, zoning and acquisition.
Promote the establishment of wildlife corridors in order to help maintain
regional species viability and diversity.'
A more complete list of the GFC policy recommendations is contained in Appendix A.
Recreation and Open Space Elements
The recreation and open space element must provide guidance for the creation of public and
private recreational facilities and open space sites." Rule 9J-5 directs local governments to assess
existing recreation and open space sites and to project future needs in this area.2 Local governments
must create policies which ensure that future public and private development provides adequate open
space and recreation lands to accommodate existing and future recreation demands.2
Rule 9J-5 directs local governments to "ensure public access to identified recreation sites ...
including freshwater beaches and shores."" This provision is directed toward "recreation" sites, and
should not be interpreted to mean that all public lands should be open to intense public use. Areas
defined as conservation or environmentally sensitive may require special criteria limiting the intensity
and types of public use in order to preserve the natural character of these areas.
B. Regional Comprehensive Plan
The East Central Florida Regional Planning Council (Planning Council) is responsible for
reviewing the comprehensive plans of local governments having regulatory authority within the Econ
Basin for consistency with regional policies." The conservation element of the Comprehensive
Regional Policy Plan includes a number of policy guidelines which are important to the protection of the
23. Fla. Admin. Code 9J-5.014 (Dec., 1986).
24. Id. 9J-5.014(2).
25. Id. 9J-5.014(3).
26. Id. 9J-5.5014(3)(b)1. (Dec., 1986).
27. Id. 29F-11.001 (Sept., 1989).
Econ Basin.2 Several of the most important policies are discussed here, and a more complete list is
contained in Appendix B.
The Planning Council Comprehensive Regional Policy Plan recommends that vegetative
communities and wildlife habitat be protected by preserving ecologically viable upland plant
communities.29 Semi-aquatic and wetland-dependent species of wildlife should be protected through
the use of buffer zones of native upland vegetation adjacent to wetlands.o3 In addition, habitat
corridors should be identified and protected.31 Transportation agencies should avoid new construction
or improvements which would adversely affect wildlife corridors, and should create "wildlife
underpasses" whenever construction cannot be avoided.32
With respect to water quality and aquatic systems, the Planning Council recommends that: (1)
stormwater management systems which use natural wetlands as detention reservoirs should provide for
diversion of the first flush prior to discharging into natural wetlands, to protect the wetland from the
adverse effects of stormwater pollution;33 (2) isolated wetlands should be incorporated into stormwater
treatment systems, as long as the first flush is diverted before discharge into the wetland, rather than
destroying the wetland through dredging or filling;" (3) flood control regulations should limit the
placement of fill in the 100-year floodplain and, when filling is allowed, should require compensating
storage in adjacent uplands rather than within the floodplain;3 (4) wastewater treatment plant effluent
impacts should be evaluated by considering the cumulative effects of point and nonpoint sources, and
impacts should be reduced by more effective monitoring and enforcement, and through the use of
alternative methods of disposal;36 and (5) septic tanks should be discouraged whenever central sewage
facilities exist and when lands are unsuitable.3
In addition, the Planning Council participates in review of Developments of Regional Impact
(DRI or DRIs). A DRI is a development which, "because of its character, magnitude, or location,
28. Id. 29F-19.001 (Sept., 1989) (Incorporating by reference the East Central Florida Regional
Planning Council Regional Policy Plan, which may be obtained at the Council offices located at 1011
Wymore Road, Suite 105, Winter Park, Fla.).
29. East Central Florida Regional Planning Council Regional Policy Plan, policy 43.3 (Sept, 1989).
30. Id. at policy 43.8.
31. Id. at policies 43.5,43.6.
32. Id. at policy 43.6.
33. Id. at policy 38.5.
34. Id. at policy 39.7.
35. Id. at policy 39.10.
36. Id. at policy 38.8.
37. Id. at policy 38.9.
would have a substantial effect upon the ... citizens of more than one county."" DRIs are identified,
however, through the application of numerical thresholds adopted by the Governor and Cabinet39
Residential DRI thresholds for Seminole, Orange, and Osceola counties are contained in Table 1.
RESIDENTIAL DRI THRESHOLDS IN THE ECON BASIN40
County* Dwelling Units
Any residential development located within two miles of a county line is subject to the
threshold of the least populous county.
The Governor and Cabinet can recommend that applicable thresholds be increased or decreased by up to
50%.4 Changes in DRI thresholds do not become effective unless adopted by the Florida
Legislature.42 The regional comprehensive plan is used by the Planning Council in reviewing DRIs
and in deciding whether to appeal local development orders for DRIs.
38. Fla. Stat. 380.06(1) (1989).
39. Fla. Admin. Code Rule 28-24 (August, 1989).
40. Id. 28-24.010.
41. Fla. Stat. 380.06(3)(c) (1989). See, e.g., Rule 28-24.014(4), Fla. Admin. Code (reducing
thresholds by 50 percent in the Wekiva River Protection Area).
42. Fla. Stat. 380.06(3)(e) (1989).
C. Local Government Comprehensive Plans
Local governments within the Econ Basin are currently using growth management plans
developed to satisfy the Local Government Comprehensive Planning Act of 1975. These local
governments are developing new comprehensive plans designed to satisfy the more stringent
requirements of the Local Government Comprehensive Planning and Land Development Regulation Act
and Rule 9J-5.43 Therefore, each local government within the Econ Basin has an existing
comprehensive plan which is currently being used to guide policy and regulatory decisions, and a draft
comprehensive plan which will be adopted sometime in the next two years. Local governments must
submit draft comprehensive plans to the Department of Community Affairs by late 1990 or 1991, and
corresponding land development regulations are due a year later." Some local governments have
already incorporated portions of their draft conservation element into existing regulatory programs.
Table 2 illustrates when comprehensive plans are due for local governments within the Econ Basin.
LOCAL GOVERNMENT COMPREHENSIVE PLAN DUE DATES
Political Jurisdiction Due Date
Osceola County July 1, 1990
Orange County Dec. 1, 1990
Orlando Jan. 1, 1991
Seminole County April 1, 1991
Oviedo April 1, 1991
43. Rule 9J-5, Fla. Admin. Code, provides minimum criteria for review of local government
comprehensive plans and determination of compliance with the Local Government Comprehensive
Planning and Land Development Regulation Act.
44. Fla. Admin. Code 9J-12.007(1),(6),(7),(10) (Aug., 1988).
The following discussion examines currently adopted and draft comprehensive plan elements of
local governments within the Econ Basin. Review of existing comprehensive plan elements is limited to
future land use, conservation, and recreation and open space elements. Review of draft comprehensive
plan elements is limited to conservation elements. In addition, the discussion identifies the presence or
absence of optional comprehensive plan elements which are important to the future management of the
Econ Basin, such as historical and scenic preservation elements.
1. Seminole County
a. Existing Comprehensive Plan
The currently adopted Seminole County Comprehensive plan includes future land use,
conservation, and recreation and open space elements. The plan does not contain a historical and scenic
Future Land Use Element
The future land use element contains several broad policy statements indicating that riverine
systems such as the Econ should be protected. The future land use element states the policy of
Seminole county is to "preserve and maintain water body littoral zones through the use of buffers,
setbacks and drainage and water conservation easements,"45 and to "develop criteria and standards for
maintaining or re-vegetating heavily wooded areas ... adjacent to conservation areas."" The element
also encourages planned developments and clustering to preserve open space and conservation areas.47
The future land use element directs Seminole County to adopt the Future Land Map as a guide
for future development and to require that all development be consistent with land use classifications
and specific policies." The Seminole County Future Land Use Map designates most land which is
immediately adjacent to the Econ River as Conservation land.49 Only wetlands or lands within the
100-year floodplain are designated as conservation.50
45. Seminole County, Fla., Seminole County Comprehensive Plan VI-A1 (July 11, 1989).
47. Id. at VI-A1,4.
48. Id. at VI-A3.
49. Seminole County, Fla., Seminole County Future Land Use Map (Dec. 8, 1987).
50. Seminole County, Fla., Seminole County Comprehensive Plan VI-A17 (July 11, 1989).
The general policies of the future land use element encourage uses in conservation areas which
maintain natural flood storage and nutrient assimilation capability of wetlands and floodplains."1 The
future land use element designates the following uses as appropriate for conservation areas:
(1) publicly owned open space, recreation and water management areas;
(2) public and private game preserves and wildlife management;
(3) private development open space, recreation, and water management areas; and
(4) livestock grazing and short-term crop production.52
However, the zoning regulations which implement the future land use element may allow a
variety of uses on conservation lands, including dairy farms, poultry production, groves, and
residences." Conservation lands in Seminole County are subject to the wetlands overlay zoning
classification or the flood-prone zoning classification, or both. However, many of these uses may
satisfy the requirements of the flood-prone classification,5 although it is unlikely that they would be
allowed within wetlands.55
Land designated as Conservation may be zoned Agricultural Development and Conservation
District56 or Agricultural.57 Permitted uses within the Agriculture zoning district are characterized as
being appropriate for rural areas where urban services are non-existent or limited, and are similar to uses
52. Id. at VI-A17.
53. Seminole County, Fla., Seminole County Land Development Code 5.82 (April, 1989).
54. See discussion of Seminole County Floodplain regulations contained in this report.
55. See discussion of Seminole County Wetland regulations contained in this report.
56. Permitted uses within the Agricultural Development and Conservation District may include:
Groves and farms for the cultivation and propagation of citrus, vegetables, fruits, berries, nuts, grass
sod, and trees; Pastures and grasslands for the cultivation and propagation of livestock, excluding
commercial raising of swine; Plant nurseries and greenhouses not involved with retail sales to the
general public; Poultry production; Dairy farms; Fish hatcheries; Bait production; Public-owned and/or -
controlled parks and recreation areas; Stables, barns, sheds, silos, granaries, windmills, and related
agriculture structures; Home occupations; Single-family dwelling and customary accessory uses,
including docks and boat houses; and Guest houses.
Conditional uses within the Agriculture Development and Conservation District include:
Cemeteries; Kennels, including the commercial raising or breeding of dogs; Sawmills; Public utility and
service structures; Borrow operations; Country and golf clubs, fishing clubs, fishing camps, marinas, gun
clubs when located on lands comprising ten (10) acres or more and making use of the land in its
predominantly natural state; Riding stables when located on lands of ten (10) acres or more; Commercial
raising of swine; Tenant dwellings, one- and two-family, where the land use is for bona fide agricultural
purposes; Mobile homes and customary accessory uses; and Adult congregate living facilities and group
homes. Seminole County, Fla., Seminole County Land Development Code 5.82,5.83 (April, 1989).
57. Seminole County, Fla., Seminole County Future Land Use Map (Dec. 8, 1987).
allowed in the Agricultural Development and Conservation District.58 The minimum building site area
for single-family dwellings in the Agriculture District is one dwelling unit per acre.5
The minimum building site area for single-family dwellings in the Agricultural Development
and Conservation District areas is 1 dwelling unit per 5 acres.60 Most of the other unincorporated land
in Seminole County which is within the Econ Basin is located northeast of the city of Oviedo, and is
designated as general rural or suburban estates.61 General rural and suburban estates designations
58. Permitted uses within the Agriculture zoning district include: Citrus or other fruit crops
cultivation, production, and horticulture; Truck farms; Plant nurseries and greenhouses not involved with
retail sales to the general public; Poultry and livestock production, excluding commercial swine raising,
except as otherwise provided within the district; Grazing and pasturing of animals; Home occupations
wherein products sold shall have been produced in major part by the permanent occupants thereof;
Roadside stands for the sale of fruits, vegetable, and similar products produced on the premises;
Governmental-owned or -operated building or use excluding public utility and service structures; Fish
hatcheries or fish pools; Publicly owned and/or controlled parks and recreation areas; Bait production;
Stables, barns, sheds, silos, granaries, windmills, and related agricultural structures; Dairies; Apiculture;
Silviculture including timber production; Single-family dwelling and customary accessory uses including
docks and boat houses; Neighborhood recreation areas, when approved as part of a subdivision plat; and
Churches and structures appurtenant thereto.
Conditional uses in the Agriculture zoning district include: Cemeteries, mausoleums; Kennels
including the commercial raising or breeding of dogs; Hospitals, sanitariums, convalescent homes,
veterinary clinics, adult congregate living facilities, and group homes; Private nursery schools,
kindergartens, primary schools, secondary schools, and colleges; Temporary asphalt plants for purpose
of specific public road construction; Sawmills; Public utility and service structures; Fraternal clubs;
Borrow operations; Country and golf clubs, fishing clubs, fishing camps, marinas, gun clubs, or similar
enterprises or clubs making use of land in its predominantly natural state; Privately owned and operated
recreation facilities open to the paying public, such as, athletic fields, stadiums, race-tracks, and
speedways; Golf driving ranges; Riding stables; Airplane landing fields and helicopter ports and
accessory facilities; Commercial raising of swine; Sewage disposal plants, water plants, and sanitary
landfill operations; Antenna farms; Off-street parking lots; Tenant dwellings; Mobil homes [one per lot];
Retail nurseries; and Slaughter of livestock and meat cutting and processing operations. Seminole
County Fla., Seminole County Land Development Code 5.102, 5.104 (April, 1989).
59. Id. 5.107.
60. Seminole County, Fla., Land Development Code 5.85 (April, 1989).
61. Seminole County, Fla., Seminole County Future Land Use Map (Dec. 8, 1987).
allow a maximum of 1 dwelling unit per net buildable acre.62 Lands in the Econ Basin which are
located south of Oviedo receive a variety of designations.63
The conservation element of the existing Seminole County Comprehensive Plan contains
numerous policy guidelines which, if implemented, could offer significant protection to the Econ Basin.
The element identifies floodplains, wetlands, and upland communities as ecological systems which are
sensitive to development impacts and should be protected." The element directs Seminole County to
establish development review guidelines and standards to provide for consideration of open space, tree
protection, scenic corridors, and wildlife habitat.65
The conservation element directs that all buildings be set back at least fifty feet from the
ordinary high water mark of water bodies." In addition, the element directs that surface water
management guidelines be adopted which include special criteria for wild and scenic rivers."
62. Id. The general rural land use designation permits the following zoning designations:
Agricultural Development and Conservation; Agriculture; Public Lands and Institutions; and Travel
Trailer Park and Campsites. The suburban estates land use designation permits the following zoning
districts: Agricultural Development and Conservation; Agriculture; Country Homes District; and Public
lands and Institutions. (Seminole County, Fla., Seminole County Land Development Code ch. 5 (April,
1989). Allowable uses for each zoning district are contained in the Seminole County Land
Development Code. Id.
63. Seminole County, Fla., Seminole County Future Land Use Map (Dec. 8, 1987). Most of the
land immediately adjacent to the Little and Big Econ Rivers and south of Oviedo is designated
Conservation. Land use designations for the remaining lands within the Basin and south of Oviedo
include Suburban Estates (maximum of 1 dwelling unit per acre), Low Density Residential (maximum
of 4 dwelling units per acre), Medium Density Residential (maximum of 10 dwelling units per acre),
High Density Residential (Greater than 10 dwelling units per acre), Planned Development, Higher
Intensity Planned Development, Public and Quasi-Public, Commercial, and Industrial (Id.). Allowable
zoning districts and uses for each land use designation are contained in the Seminole County Land
Development Code (Seminole County, Fla., Seminole County Land Development Code ch. 5 (April,
64. Seminole County, Fla., Seminole County Comprehensive Plan VI-C1,2 (July 11, 1989).
65. Id. at VI-C2.
66. Id. at VI-C4.
67. Id. at VI-C5.
Recreation and Open Space Element
The recreation and open space element of the Seminole County comprehensive plan states that
"major environmental areas such as the ... Econlockhatchee River"68 should be preserved through
development regulations or land acquisition. The element directs that unique environmentally sensitive
areas, scenic areas, and wildlife corridors should be identified and programs should be developed to
preserve these areas.6 The element encourages the use of protection devices such as building and
development setbacks, retention and replanting of native vegetation, and land dedication and
Future land use, conservation, and recreation and open space elements of the existing Seminole
County Comprehensive Plan contain substantial policies and directives which could be used to protect
the ecologically sensitive Econ Basin.
b. Draft Conservation Element
The draft conservation element of the Seminole County comprehensive plan71, which is being
prepared to satisfy the Local Government Comprehensive Planning and Land Development Regulation
Act, recognizes the Lower Econlockhatchee River system as one of the "most natural settings in Central
Florida."72 It describes the Lower Econlockhatchee River system as consisting of about fifteen miles
of river and "pristine bottomland hardwood forest ... surrounded by watershed of undisturbed
ranchlands,"73 located between the city of Oviedo and the St. Johns River.
The draft conservation element identifies the Lower Econlockhatchee River system as a unique
system which should be preserved and recommends specific actions to accomplish its preservation.74
The draft element makes the following recommendations for the entire Econ River Basin:
1) Seminole County should pass a resolution in support of the CARL [Conservation and
Recreational Lands] and SJRWMD [St. Johns River Water Management District]
68. Id. at VI-J3.
71. Seminole County, Fla., Draft Conservation Element of the Seminole County Comprehensive
Plan (October 1988).
72. Id. at 36.
74. Id. at 37.
2) Establish land development regulations similar to those within the Wekiva River
3) Encourage the rural character within the basin through maintaining rural estate,
suburban estate, and conservation land uses. [sic]
4) Develop wetland and upland buffers for development within the basin. [sic]
5) The County should consider the feasibility to [sic] alternative open space-preservation-
acquisition measures that include off-site mitigation, transfer of development rights,
land banking and contributions to acquisition funds.7
The draft conservation element also identifies the Geneva lens, an isolated upland recharge area
of the Florida aquifer completely surrounded by saline water, as a sensitive area requiring special
protection.76 About one half of the Geneva lens is located within the Econ Basin. The draft
conservation element recommends that the Geneva lens be protected by preserving the rural character of
the area.7 The element recommends protection of recharge areas through open space requirements,
percolation of stormwater, and preservation of upland habitat.78 Finally, the element recommends
regulating potable water supply wells which are exempt from Water Management District regulations.79
Policy directives in the draft conservation element, if adopted and implemented, could provide
significant protection for portions of the Econ Basin located in Seminole County. However, the draft
conservation element has not been formally adopted at the present time. Furthermore, the policies
contained in the comprehensive plan must be implemented through effective land use regulations.
2. Orange County
a. Existing Comprehensive Plan
The overall goals of the existing Orange County Comprehensive Plan8s are to:
1) [P]romote the orderly economic development of Orange County....
2) Encourage the maintenance of an agricultural sector in the Orange County economy.
3) Protect and manage the diverse and valuable land, water, and air resources of Orange
County for the use and enjoyment of present and future generations.
75. Id. at 37-38 (emphasis added).
76. Id. at 41-43.
77. Id. at 43.
80. Orange County, Fla., Orange County Growth Management Policy (August 11, 1986).
4) [P]romote and maintain a balanced ecological system in the County in the context of
area-wide problems and solutions, and to develop methods that will enable County
residents to continue the physical development of the area without damaging the
The plan directs that Orange County be divided into the Urban and Rural Service Areas, based upon
density and intensity of development, availability of services, environmental factors, and land use
The Urban Service Area is that portion of the county, excluding conservation areas, in which
urban services already exist or are planned to be available by the year 2005.8 The Rural Service Area
consists of portions of the county not designated as conservation or which are not within the Urban
Service Area." The Urban Service Area within the Econ Basin is illustrated in Figure 3. Generally,
development in the Rural Service Area is limited to densities less than or equal to one dwelling unit per
2.0 gross acres."8 The plan states that the "rural character" of the area is to be reinforced through
application of land development regulations and the provision of services."6 The plan discourages
extension of urban services to the Rural Service Area on a piecemeal basis.8
Future Land Use Element
The future land use element of the Orange County Comprehensive Plan contains the following
1) Encourage the Cluster Development Pattern, which builds upon existing urban
development in a contiguous fashion, provides adequate space for future development,
and encourages and supports rural life styles and agricultural pursuits.
2) Ensure that future development is directed in a harmonious pattern with existing
development and the natural environment.
81. Id. at II-13.
82. Id. at H-15.
83. Id. at II-10.
85. Id. at II-11,24. Densities in agricultural areas and areas zoned Rural Country Estate may not
exceed 1 dwelling unit per 5 acres. Id. at VI-8,55.
86. Id. at II-24.
87. Id. at 11-24.
3) Provide for orderly future development, with adequate community facilities and
services that are compatible with the surroundings.88
Generally, the plan directs the county to establish greater compatibility between the land development
process and the natural environment by preserving sensitive areas and directing development to areas
which are better able to absorb development impacts."9 The availability of services, the sensitivity of
land to development, and the use of clustering techniques should be considered when making land use
The future land use element contains specific policies for residential, commercial, industrial,
institutional, agricultural, conservation, and recreation and open space land uses. The element identifies
the Big Econ River as a system which is
in a relatively natural state ... [and which has] not been severely impacted by
development and, therefore, provide[s] high quality waters and [is one of] the most
desirable recreational and scenic areas and natural resources in the County.91
Policies for the conservation land use designation direct the county to establish and protect
areas which are sensitive to development (conservation areas).92 Conservation areas are identified
based on an analysis of soils, vegetation, topography, and flood hazard.93 The plan directs the county
to develop and adopt regulations94 for conservation areas which limit encroachment,5 encourage
cluster development, and provide for density transfers.96
The conservation element of the Orange County Comprehensive Plan contains much of the
same information which is contained in the Conservation Land Use section of the future land use
element. In addition, the conservation element provides additional criteria to be included in regulations.
The objectives of the conservation element are to: (1) define and protect conservation areas, (2) identify
88. Id. at VI-1.
89. Id. at VI-2.
90. Id. at VI-2.
91. Id. at VI-59.
92. Id. at VI-61.
93. Id. at VI-56. To date, wetlands are the only habitat type identified as conservation areas by
94. Id. at VI-68,69.
95. Id. at VI-67.
96. Id. at VI-68,69.
and protect prime recharge areas and ground water supplies, (3) identify and abate sources of surface
water pollution, (4) identify and reduce sources of air pollution, and (5) ensure future development is
constructed on appropriate soils.97 The element identifies urbanization and the corresponding increase
in runoff as the major nonpoint source of pollutants in Orange County.98 Channelization of natural
streams and wetlands have reduced stream assimilative capacity and caused erosion problems.99
The conservation element directs the county to create the Comprehensive Conservation
Ordinance,'0 which must satisfy the requirements of the conservation land use designation in the
future land use element. Conservation areas are to be incorporated into development proposals in a
manner which allows the continued productive functioning of the conservation area.1" In addition, the
Ordinance should determine the types of development, if any, which will be allowed in conservation
The conservation element directs Orange County to establish monitoring and regulatory
programs to protect the five natural resource functions identified as the objectives of the conservation
element.1 Specific policies direct the county to: (1) eliminate malfunctioning drainage wells and
septic tanks; (2) develop water quality standards which maintain or improve existing water quality; (3)
identify and minimize stormwater runoff from agricultural areas and paved surfaces; (4) identify and
reduce the harmful effects of all point and nonpoint sources of water pollution; (5) establish a
comprehensive program to protect shoreline vegetation; (6) require stormwater retention and detention
systems to be designed to prevent degradation of surface waters to the fullest extent possible; and (7)
require that land uses be compatible with the soil's suitability for development."
Recreation and Open Space Element
The goals of the Recreation and Open Space element of the Orange County Comprehensive
Plan are to:
97. Id. at II-2.
98. Id. at III-10.
99. Id.at II-11.
100. Id. at III-18. The Orange County Conservation Ordinance was created to satisfy this directive
and is discussed supra p. 46.
101. Id. at 111-18.
102. Id. at III-18.
103. See note 276 and accompanying text.
104. Orange County, Fla., Orange County Growth Management Policy III-18,19,20 (August 11,
1) Recognize the intrinsic value of open space and work to preserve and manage
sufficient open space to enhance the total quality of life in the County.
2) Preserve and provide areas with recreation potential for the current and future needs of
3) Encourage future development patterns which take the unique natural and agricultural
features of the County into consideration.10,
Open space should be used as buffers between incompatible land uses and to protect unique
environmental systems.'0 The element encourages the use of conservation areas for active or passive
recreation if such uses would not cause significant adverse environmental impact.1" The element also
encourages the creation of a long-range parks acquisition program.'18
Future land use, conservation, and recreation and open space elements of the existing Orange
County Comprehensive Plan contain goals and policies which provide some protection for the Econ
Basin. However, existing comprehensive plan elements do not adequately provide for protection of
upland wildlife habitat, creation of wildlife corridors, or establishment of construction setbacks from
b. Draft Conservation Element
The draft conservation element of the Orange County Comprehensive Plan,09 which
is being developed to satisfy the Local Government Comprehensive Planning and Land Development
Regulation Act, states as its overall goal that:
Orange County shall conserve and protect all natural resources, including air, surface
water, groundwater, environmentally sensitive lands and endangered species, to ensure
that these resources are preserved for the benefit of present and future generations."0
Included in the draft element are a number of specific policies which could provide greater protection to
the Econ Basin. The draft element directs Orange County to abate water pollution by (1) identifying all
point and nonpoint sources of water pollution and creating and expanding regulatory programs to reduce
the impacts of these pollutants, (2) developing basin specific criteria for the protection of river systems,
and (3) adopting development regulations which will preserve significant surface waters."'
105. Id. at XII-1.
106. Id. at XII-2.
107. Id. at XII-2.
109. Orange County, Fla., Draft Conservation Element of Orange County Comprehensive Plan
110. Id. at Appendix B, Goal 1.
111. Id. at Appendix B, policies 1.2.2, 1.2.6, 1.2.8.
In addition, the draft element directs Orange County to protect the natural functions of
floodplains and flood zone areas so as to "maintain flood-carrying and flood storage capacities, existing
wildlife habitat, and wildlife corridors where identified.""1 These objectives should be accomplished
through the Orange County floodplain regulations, land acquisition, and the use of clustering and
Wetland functions and rare and endangered wildlife are to be identified and protected through
the Orange County Conservation Ordinance, and by requiring "upland buffer areas adjacent to major
riverine wetland systems in order to protect water quality, preserve natural wetland functions, and
preserve endangered and rare wildlife."113 The draft conservation element also indicates the need for
protection of groundwater and wellfields."4
A particularly significant objective in the draft element states that "all ecological communities
and wildlife, especially endangered and rare species, shall be identified, managed and protected.""'
This should be accomplished by
adopt[ing] land development regulations that provide protection and preservation of
scarce ecological communities and identified wildlife corridors. Such regulations
may include cluster developments, transfer of development rights, buffering
sensitive areas and discouraging the fragmentation of identified wildlife corridors.
At a minimum, developments which are located in scarce natural ecosystems shall be
required to develop as Planned Developments or under the appropriate Cluster Zoning
In addition, the element states that uplands, wetlands, and wildlife corridors should be purchased
whenever possible and provided with buffers to minimize adverse impacts from adjacent activities."7
The Orange County draft conservation element, like that of Seminole County, identifies the
Econ River as a sensitive area which is being threatened by development pressure."8 Orange County
staff recognized the inadequacy of current regulations and articulated the need to manage the Econ River
as one integrated system:
The Econlockhatchee River is an example of another natural riverine system that could
benefit from comprehensive protection. This river system ... represents a unique
opportunity to conserve a resource before extensive development pressure occurs.
112. Id. at Appendix B, Objective 1.3.
113. Id. at Appendix B, policy 1.4.3.
114. Id. at Appendix B, objective 1.5.
115. Id. at Appendix B, Objective 1.8.
116. Id. at Appendix B, Policy 1.8.4. (Emphasis added).
117. Id. at Appendix B, policy 1.8.5, objective 1.9.
118. Id. at 4, 37.
County action is warranted because the current level of protection does not
ensure the long-term maintenance of the river's character."'
The element recommends implementing some form of upland buffer adjacent to wetlands associated
with the Econ River."
The draft Orange County conservation elements contains policies and recommendations which
could lead to considerable protection of the Econ River. However, as with other comprehensive plans,
the element's provisions must be adopted and effectively implemented before the resources at issue are
3. Osceola County
In reviewing Osceola County comprehensive plan elements it is important to know that Osceola
County contains the headwater swamp to the Econ River and that no identifiable river channel exists
within the county.
a. Existing Comprehensive Plan
The current Osceola County Comprehensive Plan contains future land use, conservation, and
recreation and open space elements.'2 The Plan does not contain an historical and scenic preservation
Future Land Use Element
The future land use element directs the county to adopt a future land use map, which designates
the Econ Basin as a rural area.'1 Allowable uses in the rural area include low density residential (one
dwelling unit per five acres maximum density), commercial retail-office, public-institutional, and
agricultural.'" The future land use element also contains some general language stating that adverse
environmental impacts of development should be minimized and open space should be conserved.24
119. Id. at 7. (Emphasis added).
121. Osceola County, Fla., Osceola County Comprehensive Plan (April 3, 1989).
122. Id. at policy 1.2.4; Interview with Chris Frye, Planner, Osceola County Planning Department
123. Osceola County, Fla., Osceola County Comprehensive Plan 8,19 (April 3, 1989).
124. Id. at 35-36.
The conservation element of the Osceola County Comprehensive Plan directs the county to
prepare a conservation land use map identifying resources of regional importance." The element
contains general language discouraging development in wetlands which would result in detriment to
natural drainage patterns. Endangered species are also to receive special consideration in the
development review process.17 The element also states that all surface water bodies are resources of
special concern and their water quality should be protected and improved.'1 The element directs that
development regulations should be revised to protect and enhance surface water through devices such as
lot coverage setback requirements.'2
Recreation and Open Space Element
The recreation and open space element of the Osceola County Comprehensive Plan encourages
the preservation of open space and recreation lands for future generations.3" Wetlands are considered
to be open space.1' However the element does not provide policy guidelines to ensure that the
natural character, vegetation, and wildlife of these lands is protected.'32
The existing Osceola County Comprehensive Plan does not provide sufficient policy guidelines
to adequately protect the portion of the Econ Basin located within Osceola county. The plan does not
identify the need to provide for protection of wetlands or uplands through county regulations and does
not identify the Econ River Swamp as an environmentally sensitive area of regional significance.
125. Id. at 71, obj. 1.2.0.
126. Id. at 74, policy 1.6.3
127. Id. at 74, policy 1.6.2.
128. Id. at 79-80, obj. 1.12.0.
129. Id. at 80, policy 1.12.2.
130. Id. at 86, goal 2.00.
131. Id. at 86, policy 2.1.1.
132. Id. at 82-87.
b. Draft Conservation Element
The draft conservation element of the Osceola County Comprehensive Plan,13 if adopted and
implemented, should provide substantial improvements over existing guidelines. Most notably, the draft
element directs the county to adopt rules to: (1) protect wetlands and surface waters, including wetland
setbacks or buffers, criteria for adjacent upland development, and prohibitions against ditching, dredging
and filling, and channelization;"34 (2) manage stormwater;135 (3) control land clearing and
landscaping;1" (4) protect the natural functions of the 100-year floodplain;37 (5) inventory and
protect wildlife;13 and (6) regulate forestry practices to protect environmental systems.139
The draft conservation element of the Osceola County Comprehensive Plan could provide
significant protection to the Econ Basin if implemented properly. However, as with the other counties
involved, it will take considerable time to complete the adoption and implementation of the element.
a. Existing Comprehensive Plan
Land Use Element
The land use element of the Oviedo Comprehensive Plan"' provides some general guidelines
for future land use. Objectives of the element include providing adequate open space and preserving
"areas of critical environmental importance, areas of high ecological sensitivity, and areas with unique
natural features."'41 Future development should be orderly and contingent upon availability of
services.'42 The element directs that future residential development fall within the category of (1)
133. Osceola County, Fla., Draft Conservation Element of Osceola Comprehensive Plan (June 15,
134. Id. at 101-102, obj. 13.1,13.2,13.7,13.9, policy 13.1.
135. Id. at 101, 103, policies 13.2, 13.13, 13.14.
136. Id. at 101, policy 13.3.
137. Id. at 103, policy 13.13.
138. Id. at 105, obj. 13.6, policy 13.24.
139. Id. at 111, obj. 13.10.
140. Oviedo, Fla., Oviedo Comprehensive Plan (1977).
141. Id. at II-2.
142. Id. II-10.
rural density (0.0 1.0 dwelling units per acre), (2) low density (1.1 5.0 dwelling units per acre), or
(3) medium density (5.1 12.0 dwelling units per acre)."3 The element limits the gross average
density of future residential development to 5 units per acre.'" The element directs that the pollution
effects of industrial development be controlled and that loss of agricultural lands be minimized.'45
The stated purpose of the natural resources or conservation element of Oviedo is to "protect the
basic natural land, air, water and wildlife resources....""46 Objectives of the element include (1)
encouraging a development pattern that reflects that land is a limited resource, (2) preserving areas of
critical environmental importance, ecological sensitivity, and unique natural features, and (3) safely
disposing of wastewater.147 The element contains the following policies for natural resources: (1) the
city shall develop a city-wide natural resource plan; (2) stormwater runoff must be treated; (3)
environmentally sensitive areas shall be determined by identification of vegetation, soils, and the 100-
year floodplain; (4) environmentally sensitive areas shall be protected by encouraging land use measures
such as agricultural zoning, green belts, conservation and preservation zoning, scenic, recreation and
conservation easements, and tax incentives; (5) vegetation and wildlife shall be protected through an
arbor ordinance; and (6) surface water criteria shall be established to prevent pollution during
construction and to prevent downstream pollution.'"
Recreation and Open Space Element
The Oviedo comprehensive plan parks and recreation element states that some parks should be
"reserved exclusively for beautification or passive forms of recreation."149 The element directs that
guidelines be established for maintaining environmentally sensitive areas in their natural condition,"15
143. Id. II-11.
145. Id. at II-13.
146. Id. at III-1.
148. Id. at 111-4 III-8.
149. Id. at V-B1.
150. Id. at V-B5.
and that new subdivisions and planned unit developments be required to dedicate land for recreational
The land use, conservation, and parks and recreation elements of the Oviedo Comprehensive
Plan provide some guidance for preservation of natural resources. However, the plan does not provide
for comprehensive protection of important natural resources such as wetlands, uplands, and wildlife. In
addition, the city of Oviedo has grown dramatically since the plan was adopted, and has annexed
portions of the Little Econ, Big Econ, and Econ Rivers. The current plan does not identify the Econ
River as an area of special environmental concern and is inadequate to protect the natural resources of
the Econ Basin.
City of Oviedo planning staff indicate that conservation provisions in the existing
comprehensive plan are outdated and have been augmented by conservation oriented provisions in the
current Oviedo land development regulations. These regulations are discussed in part III.D of this
b. Draft Conservation Element
The draft conservation element of the city of Oviedo is not presently available.
a. Existing Comprehensive Plan
The city of Orlando comprehensive plan is broken down into six regional Growth Management
Plans. The Northeast and Southeast Growth Management Area Plans address areas within the Econ
Basin. The plans contain similar provisions with respect to environmental resources and only the
Northeast plan is discussed here.
The Northeast plan152 identifies wetlands as valuable areas which should be protected.
Wetlands must be identified on the zoning map through a resource protection overlay to be included in
the Orlando Land Development Code. The plan establishes a point system whereby the value of
wetlands is determined by examining factors such as size, linkage, landscape diversity, quality of the
surrounding landscape, intactness, uniqueness, habitat, water quality, and vegetation.'5 Wetlands with
low value, primarily those which have already been altered by urbanization (altered wetlands), may be
developed.'" Wetlands with intermediate value, primarily wetlands which are changing from an
aquatic to a terrestrial state (transitional wetlands), may be developed as long as the wetlands are
151. Id. at V-B4.
152. Orlando Fla., Northeast Growth Management Area Plan (May 1989).
153. Id. at 101-102.
154. Id. at 99.
protected to the extent that they continue to function as viable wetlands.15 Wetlands of high value,
primarily wetlands which regional, state, or federal agencies identify as protected (protected wetlands),
are developable to the extent allowed by these agencies.15
The Northeast plan also limits the total filled area in altered and transitional wetlands to 10% of
the wetland within the property boundaries.1l However, the land development regulations indicate
that while protected wetlands must retain 100% of the wetland as undeveloped area, transitional
wetlands must retain only 60%, and altered wetlands 0%.'1
The Northeast plan states that trees are valuable and should be protected by (1) establishing a
point system to protect existing woodlands and to encourage renewal of woodlands, (2) establishing
standards to protect the roots of trees, and (3) establishing standards for buffering and screening between
different uses.15 Additionally, the Northeast plan directs the city to adopt standards to protect
floodplains,6M and to protect surface waters through the use of stormwater regulations.'61
Development must retain a 50-foot undisturbed vegetative zone around lakes and wetlands.16 The
zone helps to prevent soil erosion and to decrease stormwater runoff rates.1'
b. Draft Conservation Element
The draft conservation element of the city of Orlando is not presently available.
156. Id. at 100.
157. Id. at 100, policy 3.
158. Orlando Fla, Orlando Illustrated Land Development Code 58-384 (June 1985, amended June
159. Id. at 103.
160. Id. at 103, 104.
161. Id. at 134, 135.
162. Id. at 105.
III. Local Government Regulations
Chapter 163 Part II requires local governments to create land development regulations that
implement and enforce the objectives of the comprehensive plan."6 Land development regulations
must: (1) regulate use of land and water; (2) ensure compatibility of adjacent uses; (3) provide for open
space; (4) provide for protection of potable water wellfields; (5) regulate areas subject to seasonal and
periodic flooding; (6) provide for drainage and stormwater management; and (7) ensure the protection of
environmentally sensitive lands designated in the comprehensive plan.16
Local governments typically attempt to implement the conservation and related elements of
their comprehensive plans through ordinances addressing wetlands, floodplains, shorelines, stormwater,
and dredge and fill. The following discussion examines conservation oriented land development
regulations of local governments within the Econ Basin. Table 3 illustrates environmental resources
which are regulated by local governments in the Econ Basin.
SUMMARY OF LOCAL GOVERNMENT ENVIRONMENTAL REGULATIONS IN ECON BASIN
-------Water------ ----------Wildlife----------- ------------Habitat-----------
Regulator Quality Quantity Wetland Endanger- Other Wetlands Flood- Uplands
Seminole R R R R N R R N
Orange R R R R N R R N
Osceola N R N R N N R N
Oviedo R R N R N N R N
Orlando R R R R N R R N
R = Regulation N = No Regulation
Table 4 illustrates isolated wetlands permitting thresholds for local governments within the
LOCAL GOVERNMENT ISOLATED WETLANDS PERMITTING THRESHOLDS
IN THE ECON BASIN
Regulatory Entity Acres
Seminole County 5.0
Orange County 0.0
Osceola County NA*
NA = No Wetlands Regulation
A. Seminole County
The Seminole County Wetlands Ordinance'" regulates activities within wetlands and their
adjacent areas, except for isolated wetlands encompassing less than 5 acres.7" "Adjacent area" is
defined as the transition zone between wetlands and upland communities which has a direct ground or
""Seminole County, Fla., Land Development Code ch. 5, art. XLI (April 1989).
surface water influence on wetlands.'" The following development activities may be regulated in the
"adjacent area": bulkheading (impounding, interrupting, or diverting surface water); drainage ditches;
dredging; filling; hazardous materials (storage, use, or disposal of any hazardous materials); solid waste
disposal; and stormwater retention basins.'" If insufficient information exists to determine the
adjacent area, the area is defined as including 300 feet from the wetland boundary.170 Policy
guidelines for implementing the ordinance dictate that a natural buffer strip 50 feet wide must be
maintained between cleared areas and natural surface water bodies.171
The ordinance provides for county staff determination of the wetland type, significance, and
compatibility for development activity.2" Wetland significance is determined by evaluating the
1) Size (large wetlands are considered to have greater significance than small
2) Connectedness (wetlands connected to major wetlands or aquatic systems are
considered to have greater significance than isolated wetlands)'7
3) Landscape diversity (wetlands surrounded by several types of plant communities are
considered to be more significant than wetlands surrounded by one plant
4) Intactness (wetlands which are undisturbed or have minor alterations are considered to
have greater significance than wetlands which have major alterations)176
5) Uniqueness (scarce or uncommon wetlands are considered to have greater significance
than common wetlands)'17
"71Seminole County, Fla., Planning Guidelines for Natural Resources (Feb. 1987).
"1 Seminole County, Fla., Land Development Code 5.827 (April, 1989).
"3Seminole County, Fla., Planning Guidelines for Natural Resources 30 (Feb. 1987).
74Id. at 31.
"7Id. at 32.
"76d. at 33.
"nId. at 34.
6) Quality of the adjacent area (wetlands which are surrounded by land which is
undisturbed or has minor disturbance are considered to have greater significance than
adjacent land which has major alterations)17
Development activities are evaluated to determine whether the activities are compatible with
wetland functions.179 Wetland type and significance are used to help determine to what extent a
wetland can accept development activities without diminishing the wetland's functions.'1 The
compatibility of the development activity is determined by comparing the effects of the activity on
wetland functions for each wetland type.'18 Development activities are categorized as:
1) Compatible: Development activities which have nominal affects on wetland functions
are encouraged but not required to satisfy performance standards.'2
2) Compatible subject to performance standards: Development activities which adversely
affect the physical and biological functions of wetlands are required to comply with
3) Incompatible: Development activities which adversely affect at least two wetland
functions are prohibited. These are uses that "can disrupt the normal functioning of
wetlands and can cause an increase in pollution of surface and groundwaters, increase
flooding risk, diminish fish and wildlife habitat, and increase erosion and subsequent
The ordinance provides guidelines which are designed to minimize the adverse affects of
development activities on wetland functions.'85 In most instances, guidelines allow destruction of no
more than 10% of a wetland.'6 Additionally, a conservation easement to the county may be required
for the remaining 90% of intact wetland.'7
'7Id. at 35.
"7Id. at 38.
82Id. at 38.
'3Id. at 44.
""Seminole County, Fla., Planning Guidelines for Natural Resources 44 (Feb., 1987); Seminole County, Fla.,
Land Development Code Appendix B, ch. 3 (April 1989).
"7Seminole County, Fla., Land Development Code 6.41(c) (April, 1989). This provision is contained in
the subdivision regulations of Seminole County and it is unclear whether the provision applies to other types of
The staff may consider mitigation or compensation on a site specific basis "where site
conditions preclude the use of performance standards and where opportunities exist to enhance wetland
or environmental benefits."'" However, the ordinance does not provide any additional guidance
concerning what type or how much mitigation to require.
The Seminole County Wetlands Ordinance protects many of the wetlands along the Econ River.
The definition of wetlands includes surface waters and therefore the ordinance applies to the Econ
River, wetlands which are hydrologically connected to the Econ River, and "adjacent area[s]" to the
Econ River and its wetlands. The inclusion of adjacent areas in the definition provides some protection
for transitional habitat. However, most of the performance standards for adjacent areas address water
quality and quantity values and not habitat values. Accordingly, the performance standards for adjacent
areas do not adequately consider the impacts of development activities on wildlife.
Furthermore, adjacent areas, as defined in the ordinance, may not be wide enough to provide
adequate habitat for aquatic and wetland-dependent species."89 Studies indicate that a minimum 550-
foot, undisturbed vegetative zone adjacent to the river is needed to satisfy the habitat needs of aquatic
and wetland-dependent species of wildlife.'" The required 50-foot buffer between clearings and
surface water bodies does ensure protection of a narrow strip of land along the river. Policy guidelines
for implementing the wetland regulations, however, state specifically that clearing in areas adjacent to
wetlands is acceptable as long as the clearing is done in conjunction with a permitted structure or
The Ordinance excludes most isolated wetlands smaller than 5 acres from regulation. However,
studies indicate that small ephemeral wetlands provide essential habitat for certain species of
wildlife."9 Small isolated wetlands are important components of the Econ Basin and should be
In conclusion, the Seminole County Wetlands Ordinance does not provide sufficient protection
for the Econ River. The Ordinance applies to wetlands and their adjacent areas, but does not apply to
uplands and other types of habitat critical to preservation of the riverine ecosystem. Although the
"lThe adjacent area is the area between wetlands and upland communities which has a "direct groundwater
or surface water influence on the wetland [and] where development activities may have an adverse impact on
wetlands." If insufficient information exists to determine the width of the adjacent area, the area is defined as
"all property within three hundred feet of the wetland functions." Accordingly, the adjacent area along portions
of the Econ River with high banks and narrow floodplains might often be defined as much narrower than the
three hundred foot width.
""1Brown, M.T., J.M. Schaefer, and K. Brant, Buffer Zones for Water, Wetlands and Wildlife in the East
Central Florida Region, Center for Wetlands, University of Florida, publication no. 89-07 (1990) (report
submitted to the East Central Florida Regional Planning Council).
"9'Seminole County, Fla., Planning Guidelines for Natural Resources 50 (Feb., 1987).
"9Brown, M.T., J.M. Schaefer, and K. Brant, supra note 190. See also, note 438 and accompanying text.
ordinance could be applied in limited instances to create wetland conservation areas, its use could not
provide adequate protection for the Econ River.
Federal floodplain regulations require local governments to adopt floodplain regulations in order
to qualify for federal flood insurance.19 Floodplain regulations are designed to retain the natural
flood storage capacity of natural systems to prevent excessive flooding and protect human life and
property. Floodplain regulations typically prevent alterations of flood prone areas which would reduce
the overall flood storage capacity of the area. The regulations may prohibit construction in certain
areas, allow construction if compensating storage is provided, and require elevation of structures.'1
Protection of environmentally sensitive habitat and wildlife is an additional purpose of
floodplain regulations. Although floodplain regulations are usually designed primarily to protect human
life and property, the regulations may provide the additional benefit of preserving sensitive lands from
development Accordingly, for purposes of this report, review of local government floodplain
regulations will focus on ancillary benefits which the regulations may provide with regard to protection
of habitat, and will not attempt to assess the effectiveness of the regulations in preventing flood damage.
The Seminole County Floodplain Ordinance19 requires that most structures within the
floodplain be elevated one foot above the base flood elevation.'" Additionally, if the development
activity decreases the flood storage capacity of the floodplain, the developer must provide compensating
storage at a one to one ratio.97
Local government floodplain ordinances usually prohibit encroachments within the floodways
of rivers. A floodway is the channel of a river plus any adjacent floodplain area that must be kept free
of encroachment in order that the 100-year flood may be carried without raising flood heights more than
one foot.'" Accordingly, the Seminole County regulations prohibit encroachments within floodways
that could cause an increase in flood levels.'9 However, floodways have not been designated for the
Econ River. Seminole County regulations provide that, in the absence of designated floodways,
encroachments shall be located within a distance of the stream bank equal to five times the width of the
'942 U.S.C. 4022 (1988).
""Hamann, R., Floodplain Regulation, 4 Rohan, Zoning and Land Use Controls 18.02 (1988).
'"Seminole County, Fla., Land Development Code ch. 5, art. XL (April 1989).
stream at the top of the bank or twenty feet each side from top of bank, whichever is greater, unless an
engineer certifies the encroachment will not result in increases of flood levels.20
The Seminole County regulations prohibit or discourage some development in the floodplain
area. The provision addressing floodways could prevent some development within areas immediately
adjacent to the river. If actual floodways were designated, most development would be prohibited in the
zone. Floodways are currently being delineated for the Econ River by the U.S. Army Corps of
Engineers. When this information is available it should be analyzed to determine whether it provides
any significant environmental protection of lands adjacent to the Econ River.
3. Uplands/Sensitive Lands
Seminole County has no ordinance providing for comprehensive preservation of uplands or
other sensitive lands other than wetlands. However, the Seminole County Arbor Ordinance does provide
some protection for trees in unincorporated areas of the county."' No person may remove or destroy
a tree without first obtaining a permit from the county.' Trees smaller than 3 inches in diameter
measured three feet from the base of the tree and which normally reach a minimum height of fifteen
feet are excluded from regulation under the ordinance.'
The ordinance applies to the following areas:
a) All vacant and undeveloped property;
b) All property to be redeveloped;
c) All property where there is to be any addition or alteration, except developed single-
d) The yard areas of all developed property, except developed single-family lots; and
e) All rights-of way, public or private."
Permits may be granted for removal of trees: (1) which are located in areas where a permit application
has been filed for a structure or improvement; (2) which unreasonably restrict the permitted use of the
property; or (3) which are diseased, injured, interfere with utility services, or are otherwise
hazardous.2 Applicants may be required to relocate or replace trees as a condition of granting a
permit." The ordinance also contains criteria to protect trees during development and construction."
Tree removal from single-family lots of 5 acres or less are exempt from the ordinance.08 In
addition, agricultural and silvicultural lands may also be exempt." Trees planted for harvest are
exempt from the ordinance.21 Although some silvicultural activities may be exempt, the ordinance
provides special criteria for "bona fide logging operations."'21 Persons planning to engage in bona
fide logging operations must first obtain a permit from the land management office.212 The county
may attach permit conditions to prevent environmental detriment from the non-exempt logging
operations.213 However, bona fide logging operations which existed in 1973 may not be required to
obtain a permit, although they must abide by certain minimum criteria.214
The Seminole County Arbor Ordinance provides some protection for existing trees. However,
the ordinance does not apply to most agricultural and silvicultural operations. The ordinance does not
provide for any buffers around wetlands or prevent the harvesting of trees within wetlands. In addition,
most understory vegetation is also exempt from regulation. In conclusion, the Arbor Ordinance does not
provide comprehensive protection for wildlife and wildlife habitat.
4. Stormwater/Surface Water Management Standards
Seminole County stormwater regulations are similar to Water Management District stormwater
regulations. Stormwater facilities utilizing retention or detention systems with a positive outfall must be
capable of treating runoff from a 25-year, 24-hour design storm.215 Facilities utilizing retention or
"Id. 8.1, 8.3.
"Id. 8.5(c). To be exempt the lands must be zoned for agricultural or silvicultural uses, be agriculturally
classified for tax purposes, and be used specifically for agricultural or silvicultural operations. Id.
"21Id. 8.2, 8.5(h).
"2Id. 8.2, 8.5(f),(g).
"23Id. 8.5(f)(3). Permit conditions may include provisions to protect certain trees, buffer waterways or
certain lands, guarantee restoration of terrain, prevent pollution, insure reforestation, or preserve rare, valuable, or
historic trees. Id.
21Id. 8.5(g). Minimum criteria include provisions to prevent logging operations from 1) harming trees
designated as rare, valuable, or historic, 2) occurring within 50 feet of residential lands, 3) occurring within 150
feet of any water body or public park, 4) contributing noticeably to pollution of water bodies, or 5) disrupting
substantially the natural drainage of the land. Id.
21Id. at B-15. A 25 year, 24 hour design storm is a storm which occurs every 25 years and which lasts for
detention systems which have no positive outfall must retain runoff from a 100-year, 24-hour design
storm.216 The regulations provide different design storm requirements for certain systems27 and
provide a mechanism for increasing the design frequency if necessary to protect upstream or
downstream properties.21 Stormwater management facilities must also meet the following criteria:
1) The peak discharge resulting from the design storm after development must not exceed
the peak discharge which existed prior to development;
2) Developments without a positive outfall must retain all runoff from the design storm;
3) The design of stormwater management systems must be based on soil
Seminole County also requires that developers use best management practices during and after
construction to prevent pollution of surface waters through erosion.2 The regulations set out five
principles for reducing erosion and sedimentation from developing areas: (1) plan the development to
fit the site; (2) expose the smallest practical area of land for the shortest possible time; (3) apply soil
erosion practices to prevent on-site damage; (4) apply sediment control practices as a perimeter
protection to prevent off-site damage; and (5) implement a thorough maintenance and follow-up
operation.1 Best management practices include: surface protection measures, such as use of
vegetation as ground cover, mulching, fibrous matting, or netting; runoff control measures, such as
reducing runoff velocities through the use of furrowing, berms, diversions, and ditches; and sediment
trapping measures, such as silt fences, excavated pits, and sediment basins.m
Erosion and sediment control measures must be implemented at the "earliest practicable time
consistent with good construction practices."' The control measures must be adequately maintained
217Id. The regulations have specific design storm requirements for retention and detention basins which are
adjacent to a public right-of-way and have no positive outfall (25 year, 24 hour); closed drainage systems which
are internal to development (10 year, 3 hour); roadside swales (10 year, 3 hour); arterial and collector streets (10
year, hydraulic gradient line, 1.0 feet below gutter line); local streets (10 year, hydraulic gradient line, 0.5 feet
below gutter line); canals (25 year); bridges (100 year). Id.
"219d. at B-14.
ZaId. at B-37.
mId. at B-37 B-39.
m d. at B-39 B-40.
2id. at B-41.
during construction of the project2 Material from sediment traps must not be stockpiled or disposed
of in a manner which allows the material to be washed into a watercourse.2
Seminole County regulation of stormwater provides no additional protection over existing
requirements of the St. Johns River Water Management District (the Water Management District
stormwater regulations are discussed in this section).
5. Dredge and Fill
Seminole County requires a dredge and fill permit for some dredge or fill activities in waters
below the ordinary or historical high water mark22 or in wetlands which are not subject to wetlands
permitting procedures.' Construction which is approved as part of a site plan or subdivision review
process is exempt from obtaining a dredge and fill permit.' Normal maintenance and landscaping
are also exempt if the work does not involve addition or relocation of structural or physical features.22
The following activities are exempt from obtaining a dredge and fill permit but are reviewed for
advisement and comment:
1) Improvements, construction, or maintenance dredging of drainage canals, retention or
detention basin, borrow pits, and private ponds under single ownership on privately
2) Overhead power or communications lines, water, sewer and effluent mains, and
petrochemical lines, where construction or replacement of supports is necessary in
3) Installation of subaqueous power or communications lines, water, sewer and effluent
mains, and petrochemical lines.
4) The non-mechanical removal of undesirable aquatic or shoreline vegetation providing
such removal does not effect the physical stability of the shoreline or embankment.
5) Aquatic plant control operations involving chemical or biological methods.
6) Boat docks, boat houses and gazebos on single-family lots under four hundred (400)
square feet, provided a building permit has been issued therefor.
22ld. 10.5(a)(3). This exemption does not include removal of desirable shoreline vegetation. Id.
7) Construction of seawalls on single-family lots less than two hundred (200) feet in
length, provided a building permit has been issued therefor.2
Permit review criteria include consideration of: (1) potential effects on water quality and the
propagation of wildlife, fish, aquatic plants and animals; (2) effects on other property owners and the
public health, safety, and welfare; and (3) recommendations of any governmental or professional
agencies.2 The applicant may be required to undertake erosion and sediment control measures and
replace trees or shrubs destroyed during the activity.232
B. Orange County
1. Conservation (Wetlands)
The Conservation Ordinance of Orange County33 regulates activities within wetlands and
immediately adjacent to wetlands which would have material adverse affects on wetlands.' The
ordinance regulates wetlands of all sizes"5 and establishes a system to identify wetlands23 and to
evaluate the significance of particular wetlands.2 The ordinance provides varying degrees of
protection to wetlands depending upon the perceived overall significance and environmental productivity
of the wetland.' Generally, the ordinance assigns greater significance to wetlands which have
natural hydrological connections to natural surface waters and less significance to small isolated
All activities which might adversely affect wetlands are subject to review under the ordinance.
The conservation ordinance exempts no wetlands except those for which development permits or binding
development orders were obtained prior to formal adoption of the ordinance on July 3, 1989.
In reviewing an application for development in a wetland area, Orange County staff determine:
(1) whether a wetland actually exists, based on the Water Management District definition of wetlands,
(2) the extent and location of the wetland, based on the Water Management District vegetative index, (3)
"Orange County, Fla., Ordinance 89-8 (July 3, 1989).
3Id. 3.02, 4.02.
"2Id. 1.04(b),(c),(d); 4.02; art. V.
"28Id. 1.02(d),(e); art. V; 6.01.
the classification of the wetland as a Class I, II, or III wetland, and (4) the level of protection,
compensation, or mitigation required.
Orange County classifies wetlands as either Class I, II, or III Conservation Areas. Class I
conservation areas are wetland areas which are: (1) hydrologically connected to natural surface water
bodies; (2) lake littoral zone; (3) large isolated uninterrupted wetlands 40 acres or larger; or (4) provide
critical habitat for federal and/or state listed threatened or endangered species."9 Class II
Conservation areas are wetlands which "[c]onsist of isolated wetlands or formerly isolated wetlands ...
and are greater than or equal to 5.0 acres; or [d]o not otherwise qualify as a Class I Conservation
Area."' Class m conservation areas are wetlands which: (1) are isolated wetlands less than 5.0
acres; or (2) do not otherwise qualify as a Class I or Class II Conservation Area.2
Orange County staff consider the following factors to determine the level of protection and
mitigation required for a particular wetland: functional significance, scarcity, vulnerability, and
replaceability of habitat in its pre-developed and post-developed condition.42 The significance and
productivity of wetland habitat is measured by selecting evaluation species and determining the value
the habitat provides to these evaluation species." Significance and productivity of wetlands are
expressed in habitat units.2 Generally, one habitat unit represents one acre of optimum habitat for
the particular evaluation species.5 Each application is reviewed to determine the number of habitat
units existing before the activity and to estimate the number of habitat units which will exist after the
Applicants must demonstrate the preservation, creation, or restoration of an equal number of
habitat units after the activity, unless compensation or mitigation is allowed.7 The relative values of
evaluation species are determined based on the Habitat Evaluation Procedure (HEP) of the U.S. Fish and
Wildlife Service.2 Where evaluation species are determined to have high value because of scarcity
"Id. 5.04(b). See Breedlove, B. W. and J. H. Exum, "Development of an Ordinance Based on Habitat
Valuation Allowing Trade-offs of Wetlands to Maintain Value," in Urban Wetlands (Proceedings of the National
Wetland Symposium) (June 26-29, 1988).
or vulnerability, the applicant must show no net loss of habitat units for the evaluation species or
creation of an equal number of habitat units for species of equal value.9 Where evaluation species
are relatively abundant and have medium to high value, the applicant must show no more than 10% of
the habitat units will be lost or the creation of an equal number of habitat units for other species of
equal value.' Where evaluation species are relatively abundant and have a low value, the applicant
must demonstrate minimal loss of habitat value.25
A development proposal which will result in an adverse impact to wetlands may proceed if the
proposal complies with compensation or mitigation criteria contained in the ordinance.22 The
applicant may attempt to compensate for unavoidable loss of habitat by providing the county with
money or with lands in areas designated by the county.'3 The ordinance provides two methods by
which the amount of compensation is determined, and the applicant may choose either method.'
Under the first method, the applicant may submit a property appraisal which provides an estimate of the
average value per acre of the property.2 This value is calculated by dividing the total estimated
value of the property by the total acreage of the property.26 The amount of compensation money
required is calculated by multiplying the average value per acre of the property by the acres of wetlands
Under the second method, the applicant may purchase designated compensation lands or pay
the required amount of compensation." Orange County establishes off-site areas within the county
and establishes the average cost per acre of these areas."9 An applicant for habitat compensation may
either purchase the amount of required land as determined by mitigation ratios, or pay compensation
based on the average cost per acre of the designated compensation lands multiplied by mitigation
The ordinance provides the basis for review of applications for habitat compensation for each
class of wetland. In Class I wetlands, removal, alteration, or encroachment is prohibited unless "no
other feasible or practical alternatives exist that will permit a reasonable use of the land or where there
is an overriding public benefit.""' "Protection, preservation and continuing viability" of Class I
wetlands is the primary objective of review of development requests.262 Habitat compensation or
mitigation is required if encroachment, alteration, or removal of Class I wetlands is allowed.2 In
Class II wetlands, habitat compensation is "presumed to be allowed unless habitat compensation is
contrary to the public interest. In Class III wetlands, habitat compensation is allowed in all cases.2
Habitat compensation is placed in the Conservation Trust Fund, which may only be used for
purchase, improvement, creation, restoration, or replacement of natural habitat within the county.2
Funds do not have to be used to replace the same type of habitat which was lost due to
Applicants may seek to mitigate adverse impacts on wetlands, rather than to provide land or
monetary compensation." Mitigation proposals may be evaluated to determine "the degree of impact
to wetland functions, whether the impact to these functions can be mitigated ... [and] the anticipated
post-development viability and performance ... [of the wetland]."269
Alternatively, mitigation proposals are acceptable if they meet the following minimum criteria.
Mitigation ratios for Class I wetlands or for mitigation with unlike habitat are considered on a case by
case basis."0 Orange County staff indicate that mitigation ratios for Class I wetlands or unlike habitat
are at least 4-5:1. Class II mitigation ratios require type for type mitigation at the following ratios:
1) Freshwater marshes and wet prairies 1.5:1;
" Id. 6.01.
2) Cypress Wetlands 2.0:1; and
3) Hydric hammocks, bayheads, and mixed hardwood swamps 2.5:1. Y
Mitigation ratios for Class III wetlands are 1:1.272
As with applications for review of habitat compensation, the basis for review for mitigation
strongly discourages activities within Class I wetlands, presumes mitigation is allowed in Class II
wetlands, and almost always allows mitigation in Class III wetlands.73
Applicants for mitigation must provide a monitoring and maintenance program which continues
for a minimum of one year and results in at least 85% coverage of all planted areas."' In addition,
applicants must provide reasonable assurance that the mitigation will be adequately completed,
monitored, and maintained.275
Continued application of the Conservation Ordinance of Orange County could provide
significant protection to many of the wetlands in the Econ Basin. All wetlands with a hydrological
connection to the Econ River, and large isolated wetlands, would probably be Class I wetlands, and
accordingly would receive the highest degree of protection afforded by the ordinance. However, the
protection afforded by the ordinance may not be sufficient to preserve the Econ River ecosystem.
The Conservation Ordinance is limited in scope to review of activities which adversely affect
wetlands. The ordinance does not apply to activities in uplands or non-wetland habitats unless those
activities are immediately adjacent to a wetland and would adversely affect the wetland. Accordingly,
the ordinance may not provide adequate protection for habitat of wetland-dependent species of wildlife.
Furthermore, the ordinance clearly does not apply to purely upland areas to protect upland species.
Another limitation of the Conservation ordinance is that it does not provide for comprehensive
management of the Econ River system as a whole entity. Applications for development in Class I
wetlands, which would include most of the wetlands along the Econ River, are reviewed on a case by
case basis. Although Orange County staff indicate that development is frequently not allowed in these
areas, there is no explicit standard delineating the maximum amount of Class I wetlands which may be
destroyed. Furthermore, the county presently does not have a county-wide system to monitor the total
amount of Class I wetlands which are destroyed and what mitigation or compensation has been required
when destruction is allowed."6
Several provisions of the Conservation Ordinance may prevent adequate protection of the Econ
River system. First, the ordinance, in describing the functional characteristics of conservation areas
"nOrange County staff indicate that a monitoring system is currently being developed to track wetlands
permitting. See Breedlove and Exum, supra note 248.
(wetlands), states that conservation areas are wetlands which "after development of surrounding,
contiguous areas will continue to provide significant and productive habitat."27 This concept is
employed in the measurement of habitat units. Measurement of habitat units before development and
estimates of habitat units after development are "based on the assumption that adjoining lands not
regulated by this ordinance have been or will be developed to the extent permitted by law."' The
classification of a wetland may be lowered if the applicant demonstrates that "development of such
unregulated lands would render the habitat on the [wetlands] no longer viable or significant or
productive."27' This assumption accents the need to preserve lands which are adjacent to wetlands.
Furthermore, the assumption acts as an incentive for developers to pursue intense development of
properties adjacent to wetlands, in the hope that they may cause the wetland to receive a lower
classification. The assumption is inappropriate for maximum protection of irreplaceable wetlands and
adjacent uplands along the Econ River.
Second, the ordinance may not protect adequate numbers of species which are currently
abundant. Applicants proposing to develop in wetlands must demonstrate the preservation, creation, or
restoration of an equal number of habitat units after development, except for losses which are mitigated
or compensated.m Where evaluation species are relatively abundant and have a low value, the
applicant must demonstrate minimization of loss of habitat value.28 However, minimization is
undefined in the ordinance. This lack of a measurable standard could lead to reductions of "abundant
low value" wildlife throughout the county and reduce the bio-diversity of significant wetlands.
Provisions in the ordinance allowing land or monetary compensation for losses of wetlands
have raised some concern that developers might find it profitable to develop highly sought river
properties even though they are required to provide compensation. Activities in Class I wetlands are
allowed only if "no other feasible or practical alternatives exist that will permit a reasonable use of the
land or where there is an overriding public benefit"'m The terms "feasible," "practical," "reasonable,"
"overriding," and "benefit" are undefined in the ordinance. Without more specific guidance as to when
an activity may be allowed in Class I wetlands, there is the risk that activities may be allowed in Class I
wetlands along the Econ River when application of the ordinance would not result in a taking.
Orange County staff indicate that development is rarely allowed in Class I wetlands and when
it is allowed mitigation is often required at 4 or 5:1. However, Orange County presently does not
monitor the amount of Class I wetlands which have been destroyed or the amount of mitigation or
"28ld. 6.01, 7.04.
compensation which was required.' Therefore, it is difficult to determine the amount of wetlands
which are being lost in the Econ Basin.
In summary, the Conservation Ordinance alone cannot provide adequate protection for the Econ
River ecosystem because it does not:
1) protect upland areas which provide critical habitat for wetland-dependent and upland
2) prohibit development in sensitive floodplain areas unless the activity can be shown to
have an adverse affect on wetlands.
3) provide adequate assurances that irreplaceable wetlands along the Econ River will not
The Orange County Floodplain Management Regulations4 require a permit for construction
or substantial alteration of any structure located in an area of special flood hazard.= Areas of special
flood hazard are areas in the unincorporated portions of Orange County which are within the floodplain
and are subject to a 1% or greater chance of flooding in any given year (base flood).26 Standards for
issuance of most permits require that the applicant show that (1) the structure will be elevated at least
one foot above the base flood elevation,2 (2) compensating storage will be provided for any
development which will adversely affect the flood-carrying capacity of any watercourse, and (3)
development in floodways will not cause any increase in flood levels during the occurrence of the base
Development in floodways is prohibited if the development would result in any increase in
flood levels during the occurrence of the base flood discharge.2 Development in areas without
=See, supra note 276.
'Orange County, Fla., Ordinance 81-24, 1 (Nov. 24, 1981). See generally, discussion of floodplain
regulations on page 41 of this report.
2Orange County, Fla., Ordinance 81-24, 36-111 (Nov. 24, 1981).
6Id. 36-75, p. 5. Areas of special flood hazard are identified by the Federal Emergency Management
Agency and are adopted by reference as part of the Orange County Floodplain Management Regulations. Id.
"=Id. 36-133, 134.
established floodways is prohibited within a certain distance from the stream, unless an engineer
certifies the development will not result in increased flood levels.29
Orange County floodplain regulations discourage but do not prohibit development in floodplain
areas. Many developments may be allowed if safety oriented criteria are met, although some
development may be prohibited within floodways. The Orange County floodplain regulations allow
development of floodplain areas which may result in adverse effects on watercourses, wildlife, and
3. Uplands/Sensitive Lands
Orange County does not have regulations which provide comprehensive protection of uplands
or sensitive lands other than wetlands. However, the Orange County Tree Ordinance does regulate the
removal of some trees in unincorporated portions of Orange County.292 The ordinance acknowledges
that trees perform valuable functions in producing oxygen, conserving soil, preventing erosion,
enhancing property value, and providing wildlife habitat.293 Trees which are less than about 3 inches
in diameter and underbrush, including palmetto and shrubs, are usually exempt from the ordinance.29
Trees on lots which already contain residential structures are also exempt from the regulations.29
A permit must be obtained for removal of trees which do not meet any of the exemptions.29
Prior to removal, applicants must submit information concerning the type, size, and location of stands of
trees and trees greater than or equal to 24 inches DBH (Diameter Breast Height).27 It is not clear
whether applicants must submit information about individual trees between 3" and 24" DBH, although
the ordinance does require "an indication of the trees proposed for removal."29
County review of proposals to remove trees is often incorporated into other development review
procedures.2" Trees which are subject to the regulations may be removed if design alternatives are
not feasible or reasonable, and (1) the trees restrict a street or right of way opening, (2) the trees restrict
"291Id. 36-134(A). Development is prohibited "within a distance of the stream bank equal to five times the
width of the stream at the top of bank or twenty feet each side from top of bank, whichever is greater," unless an
engineer certifies the development will not cause an increase in flooding. Id.
"'Orange County, Fla., Ordinance 85-33 (Dec. 9, 1985).
construction of utility lines or drainage facilities, (3) the trees restrict property access or use, (4) the
trees constitute a hazard, (5) the trees are diseased or dying, or (6) the trees are selectively thinned (25%
of existing trees may be removed).30 The ordinance also contains criteria to protect trees during
development and construction.31'
The Orange County tree removal regulations provide some protection for medium and large
trees. Small trees, underbrush, and other types of vegetation are not protected by the ordinance. In
addition, the ordinance does not require replacement of trees which are removed with a permit.
Therefore, the regulations do not provide comprehensive protection for wildlife and wildlife habitat.
The Orange County Planned Development Ordinance may also provide protection for sensitive
lands. All planned developments are required to provide some open space areas.'" Developers can
receive open space credits by permanently preserving undeveloped uplands.303 However, developers
may also satisfy the open space requirements by establishing recreational areas and landscaped
areas.'" Accordingly, while the ordinance may facilitate protection of some uplands, it does not
routinely provide for preservation of undeveloped uplands.
Orange County stormwater regulations for planned unit developments,30 subdivisions,
commercial structures, and industrial structures are contained in Article 10 of the counties' subdivision
regulations.30 Stormwater systems must provide for pollution abatement, recharge (where possible),
and protection from flooding.307 Standards for pollution abatement require the "retention, or detention
with filtration, of one-half inch of runoff from the developed site, or the runoff generated by the first
one inch of rainfall on the developed site."'" The system must be capable of discharging the
stormwater within 72 hours.309 In areas with soils which allow recharge, the total runoff generated by
"30Orange County, Fla., Resolution No. 88-Z-03 10(a)(9) (Sep. 26, 1988).
"3Id. 10 (Sept. 26, 1988).
"3O60range County, Fla., Subdivision Regulations, Art. X (April 1, 1984).
a 25-year frequency storm event must be retained.310 Stormwater systems must provide protection
from flooding by ensuring that the post-development peak rate of discharge does not exceed the pre-
development peak rate of discharge for a 25-year frequency storm event.311
Orange County stormwater regulations are similar to Water Management District stormwater
regulations except Orange County regulations include specific criteria to enhance groundwater recharge
in suitable areas. However, most areas within the Econ Basin have low recharge potential.
Orange County stormwater regulations provide for retention or detention with filtration systems.
However, retention systems do not work well in the Econ Basin because of high water tables. Water
Management District staff indicate that until recently, Orange County has been reluctant to allow wet
detention systems because of concern over operation and maintenance of the systems. Therefore, many
stormwater systems in the Econ Basin are detention with filtration systems, a treatment design which
Water Management District staff indicate is less effective than wet detention systems.
5. Shoreline Protection
The Orange County Lakeshore Protection Regulations312 provide protection for shoreline
vegetation existing at or below the normal high water elevation in lakes.33 The ordinance is unclear
as to whether it applies to streams and rivers. The title of the ordinance suggests the ordinance applies
only to lakes. In addition, the statement of legislative findings, purposes, and objectives refers to lakes
and lake shores.314 Lakes are also mentioned several times in the text of the ordinance.31
However, the legislative findings, purposes, and objectives state that the board of county commissioners
is authorized to "regulate all lakes, canals, streams, [and] waterways...."36 Permits are required under
the ordinance for "any shoreline alteration,"317 and definitions of "shoreline alteration" and "shoreline
vegetation" refer to neither lakes or rivers.318
Regardless of textual ambiguities concerning the scope of application of the ordinance, Orange
County staff indicate that the ordinance is applied only to lakes. The ordinance protects vegetation at or
"312Orange County, Fla., Ordinance 83-25 (June 10, 1983).
below normal high water elevation, and does not protect contiguous or adjacent areas of wildlife habitat.
In summary, the ordinance does not provide adequate protection for the Econ Basin because it is not
applied to river shorelines and it does not protect habitat above the normal high water elevation.
6. Excavating and Filling
The Orange County Excavation and Fill Ordinance requires persons to obtain a permit before
excavating or filling in unincorporated portions of Orange County.3P Activities which are exempt
from the ordinance include: (1) installation of utilities; (2) grading, filling, and moving of earth for
approved commercial or subdivision construction; (3) excavating up to 200 cubic yards of material for
approved commercial or subdivision construction; (4) construction of foundations and building pads for
approved structures; (5) minor landscaping projects which do not encroach in flood prone areas; (6)
approved swimming pool construction; and (7) certain agricultural use ponds.32
Permitted activities must satisfy a number of criteria, including provisions concerning
reclamation, setbacks, and slopes.321 Excavation and fill permits are prohibited for areas designated as
conservation pursuant to Orange County comprehensive plans or regulations.3 Conservation areas in
Orange County are primarily wetlands.
The Orange County Excavation and Fill Ordinance prevents excavations and filling in
conservation areas,323 except to the extent that development may be allowed under the Conservation
Ordinance of Orange County.32 Criteria for permitted excavation and fill activities focus on
regulating the manner of excavation and filling and do not consider the effect of these activities on
wildlife and wildlife habitat.
C. Osceola County
Osceola County has no wetlands regulations although they are currently drafting a wetlands
"319Orange County, Fla., Ordinance 85-32 (Nov. 25, 1985).
4See, Conservation Ordinance of Orange County, page 46 of this volume.
Osceola County Floodplain regulations32 apply to all areas of special flood hazard within the
county.32 Residential structures must be elevated to or above the base flood elevation.3V Non-
structures must be elevated to the level of the base flood elevation or the portions of the structure below
the base flood elevation must be flood proof.32 Encroachments, including fill, are prohibited in
floodways unless an engineer certifies that the encroachment will not result in an increase in flood levels
during the base flood discharge.39 In areas of shallow flooding3" residential and non-residential
structures must have the lowest floor elevated 18 inches above the crown of the nearest street or above
the base flood elevation."3 Alternatively, non-residential structures may flood-proof portions of
structures which are below the base flood elevation.332
Osceola County Floodplain regulations discourage development within sensitive Econ headwater
wetlands by requiring compensating storage and elevation of structures for some floodplain areas.
However, the portion of the Econ Basin which lies in Osceola County is composed almost entirely of
headwater swamp with no discernable river channel. Accordingly, prohibitions against encroachment in
floodways might not apply to the headwaters of the Econ.333 In conclusion, the floodplain regulations
do not provide for comprehensive consideration and protection of watercourses, wildlife, and wildlife
"3Osceola County, Fla., Ordinance No. 82-3 (Feb. 1, 1982), Ordinance No. 87-3 (Mar. 16, 1987). See
generally, discussion of floodplain regulations on page 41 of this report.
6Id. at art. 3A. "Area of special flood hazard" is defined as "land in the flood plain within a community
subject to a one percent or greater chance of flooding in any given year." Id. at art. 2.
"3Osceola County, Fla., Ordinance No. 82-2 art. 5B(1) (Feb. 1, 1982). "Base flood" is defined as "the flood
having a one percent chance of being equalled or exceeded in any given year." Id. at art. 2.
"3Id. at art. 5B(2).
"3Id. at art. 5B(4).
"3"Area of shallow flooding" means a designated zone with "baseflood depths from one to three feet where a
clearly defined channel does not exist, where the path of flooding is unpredictable and indeterminate, and where
velocity flow may be evident." Id. at art. 2.
"331Id. at art. 5C(1),(2).
"332Id. at art. 5C(2).
33"Floodway" is defined as the "channel of a river or other watercourse and the adjacent land areas that must
be reserved in order to discharge the base flood without cumulatively increasing the water surface elevation more
than one foot" Id. at art. 2. It is unclear whether the Econ headwater wetlands would satisfy this definition.
3. Uplands/Sensitive Lands
Osceola County has no ordinance providing for preservation of uplands or other sensitive lands
other than wetlands.
Osceola County has no stormwater regulations.
The city of Oviedo has no wetlands regulations.
The city of Oviedo requires development in floodplains to meet the minimum criteria necessary
to satisfy federal floodplain regulatory criteria.'" Structures must be elevated one foot above the base
flood elevation."3 Although the ordinance has no express provision stating that compensating storage
must be provided, it does require that the proposed development be "consistent with the need to
minimize flood damage."33 The following uses may be allowed within floodplains:
1) General farming, pasture, outdoor plant nurseries, horticulture, forestry, wildlife
sanctuary and other related uses
2) Ground-level loading areas, parking areas
3) Lawns, gardens, play areas
4) Golf courses, tennis courts, driving ranges, parks, trails, open space, and other similar
private and public recreational uses
5) Single-family homes...33
"3See generally, discussion of floodplain regulations on page 41 of this report.
"33City of Oviedo, Fla., Land Development Code 155(c) (1989).
The Ordinance prohibits construction or substantial improvements of buildings within any floodway.33
Artificial obstructions are prohibited within floodways unless an engineer certifies the construction will
result in no increase in flood elevations."9
Oviedo floodplain regulations prohibit some types of development within floodplain areas.
However, the regulations allow other uses, such as farming, forestry, parking areas, and golf courses,
which may be detrimental to water quality and wildlife habitat values of the Econ River.
3. Uplands/Sensitive Lands
The city of Oviedo has no ordinance providing for preservation of uplands or other sensitive
lands. However, the Oviedo land development regulations do provide some protection for large trees.
Article XX (Environmental Preservation) prohibits destruction of natural vegetation until a development
plan has been approved, and requires implementation of protective measures for vegetation and soils
prior to construction." An applicant must obtain a permit prior to removing individual trees or
clearing of land."3 Permits will not be issued for removal of trees more than eight inches DBH
(diameter at breast height) or other vegetation except for removal of underbrush or clearing by hand,
unless a development permit has been approved.342 The regulations provide for consideration of the
affects of clearing on soil erosion and stormwater runoff.343 However, the regulations do not provide
for consideration of the effects of clearing on wildlife and wildlife habitat.
Exempt activities include: removal of trees less than 12 inches DBH on certain one and two
family lots; emergency removal of trees; removal of dead or diseased trees; and removal of trees smaller
than 24 DBH on agriculturally classified lands.3" Applicants may be required to implement tree
preservation measures addressing clearing procedures, protective barricades, construction of tree wells,
391d. 153. An artificial obstruction is defined as "any obstruction, other than a natural obstruction, that is
capable of reducing the flood-carrying capacity of a stream or may accumulate debris and thereby reduce the
flood-carrying capacity of a stream." Id.
"Id. 220. An environmental Level I permit must be obtained prior to removing trees, clearing, or grading
of single family home sites, or clearing and grading of undeveloped or developed land with no approved
development or building plan. An environmental Level II permit must be obtained prior to removal of trees and
vegetation on sites for subdivision, multi-family, commercial, and industrial projects. Id. 220(b).
32d. 220(c). DBH is defined as "the average diameter of the trunk measured at four and one-half ... feet
above natural grade." Id. 14(14).
use of alternative surfaces in traffic areas, and excavations.35 Persons who violate the regulations
may be required to restore trees or vegetation.3
Article XVII (Landscaping, Tree Planting & Buffer Requirements) provides for landscape
preservation, planting, and design.47 The regulations require planting or preservation of canopy trees
and buffer yards.34 The regulations encourage the use of existing vegetation to satisfy the
Oviedo landscape and environmental preservation regulations provide some protection for large
trees and encourage preservation of existing vegetation. However, the regulations do not provide for
comprehensive preservation of areas suitable for habitat for many species of wildlife.
The city of Oviedo stormwater regulations are similar to those of the Water Management
District and Seminole County. The regulations require that runoff after development must be no greater
than it was prior to development.3" Oviedo requires stormwater permits for all primary stormwater
management systems, regardless of the size of the project.351 In addition, Oviedo requires
developments to be constructed and operated in a manner that does not contribute to soil erosion or
sedimentation.32 Oviedo erosion and sediment control standards include basic principles, best
management practices, and construction practices which are similar to those used by Seminole
The city of Orlando has had significant impacts on the Econ River, even though not much of
the actual city limits fall within the Econ Basin. Stormwater and wastewater discharge from Orlando
3Id. 183, 184.
"33d. at Appendix P. See, supra notes 220-225 and accompanying text.
have contributed significantly to degradation of the water quality of the Little Econ and Econ
Rivers.3" In addition, channelization of tributaries of the Little Econ River has resulted in the
reduction of base flows in downstream waters. Future impacts by Orlando cannot be discounted as the
city continues to grow and annex portions of the Econ Basin.
The Northeast Growth Management Area Plan for Orlando (discussed in section II.C.5.)
describes the basic point structure of Orlando's wetland regulations. Generally, the plan provides for a
system to rank and value wetlands, and establishes thresholds for development in wetlands. The
ordinance contained in the Orlando Land Development Code35S imposes some additional criteria,
several which appear to be inconsistent with provisions in the ordinance. Most comprehensive plans are
policy documents and the resulting ordinance is the regulation. However, the Orlando plan appears to
be part of the Orlando wetlands regulation, even though it is not formally adopted by the regulation.
The Orlando regulation35 calls for 100-foot buffers adjacent to protected wetlands and 50-
foot buffers around wetlands in which some development is allowed.57 In addition, the regulation
indicates that 0% of wetlands receiving the "protected" designation may be developed, while 40% of
"transitional" and 100% of "altered" wetlands may be developed.358 The Orlando wetland regulations
protect wetlands but do not provide for comprehensive protection of wildlife habitat.
Orlando floodplain regulations35 regulate development activities within the 100-year
floodplain.3 The regulations require (1) construction to be elevated above the base flood elevation,361
(2) post-development runoff volume to not exceed pre-development volume,32 and (3) compensating
"3Gerry, L., Econlockhatchee River System: Level I Report, St. Johns River Water Management District
Technical Publication SJ 83-5 (June, 1983).
"35Orlando, Fla., Orlando Illustrated Land Development Code (June 1988).
"35Id. 58.3511- 58.3520.
storage must be provided for all displacement of flood water below the 100-year flood elevation.36
Orlando floodplain regulations discourage but do not prohibit development in floodplain areas.
3. Uplands/Sensitive Lands
Orlando provides some regulation of uplands through its tree and woodlands protection
regulation.3" The regulation discourages removal of medium and large sized trees by requiring a
permit for their removal.3' In addition, the regulation establishes buffer areas around the bases of
trees which must be fenced off so the area will not be disturbed during construction.66
The Orlando regulation is tailored to an urban habitat and is inadequate to preserve the integrity
of upland ecosystems, which must include large areas of undisturbed ground cover, shrubs, and small
trees. In addition, the regulation provides no criteria for identifying sensitive uplands.
Orlando has well-developed stormwater regulations 7 which essentially parallel the
regulations of the Water Management District. The regulations are designed to reduce pollution from
runoff and to control flooding.36 The regulations require treatment of the first one-half inch of runoff
or the runoff generated by the first inch of rainfall, whichever is greater.30 Treatment is
accomplished through retention with no discharge or detention with a filtered underdrain discharge.370
36Id. 58.3481-58.3490; Orlando, Fla., Orlando Urban Storm Water Management Manual (March, 1981).
'Orlando, Fla., Orlando Urban Storm Water Management Manual (March, 1981).
"36Orlando, Fla., Orlando Illustrated Land Development Code 58.3481 (June, 1988).
Activities in the Econ Basin are subject to the regulatory authority of federal, state, and
regional agencies. This review is limited to those regulations having the greatest impact on the
management and preservation of water, wetland, and wildlife resources of the Econ Basin. Table 5
illustrates environmental resources which are currently regulated in the Econ Basin by federal, state, and
SUMMARY OF AGENCY ENVIRONMENTAL RESOURCE REGULATIONS IN ECON BASIN
-------Water------ -------------Wildlife------------- ----------------Habitat------------
Regulator Quality Quantity Wetland Endanger- Other Wetlands Flood- Uplands
EPA R R R R N R N N
COE R R R R N R N N
DER R R R R N R N N
SJRWMD R R R R N R R N
R = Regulation N = No Regulation
I. Point Source Discharges
The Environmental Protection Agency (EPA) is responsible for regulating point source
discharges of pollutants into surface waters of the United States. Industrial and municipal point sources
which discharge into the Econ River, such as wastewater treatment facilities, landfills, and factories are
required to obtain National Pollutant Discharge Elimination System (NPDES) permits from EPA.
NPDES permit requirements are designed to ensure enforcement of effluent limitations and new source
performance standards. Prior to issuance of most NPDES permits, EPA must receive certification from
the state of Florida that the discharge will meet state water quality standards. In Florida, most point
source dischargers must also obtain permits from the Department of Environmental Regulation (DER).
II. Surface Water and Stormwater Management
The St. Johns River Water Management District (Water Management District) regulates surface
and storm water in the Econ Basin. Water Management District regulations are implemented through
the management and storage of surface waters (MSSW)371 and stormwater72 permitting programs.
A. St. Johns River Water Management District MSSW Permitting Program
1. Description of Water Management District MSSW Permitting Program
Chapter 373, Florida Statutes,373 provides regulatory authority and guidance for Water
Management District MSSW regulations. Chapter 373 authorizes the Water Management District to
require permits and impose reasonable standards to (1) "assure that the construction or alteration of any
dam, impoundment, reservoir, appurtenant work, or works [MSSW system] will not be harmful to the
water resources of the district,"74 and (2) "assure that the operation or maintenance of any [MSSW
system] will not be inconsistent with the overall objectives of the district and will not be harmful to the
water resources of the district."37 Permits issued for maintenance or operation are permanent,376
unless the owner abandons the MSSW system37 or the Water Management District revokes or
modifies the permit.37
371. Fla. Admin. Code 40C-4 (August 1989).
372. Fla. Admin. Code 40C-42 (August 1987).
373. Fla. Stat. 373 (1989).
374. Id. 373.413.
375. Id. 373.416.
376. Id. 373.416(2).
377. Id. 373.426. MSSW systems which are not owned by the state, and which are not used or
maintained for three years, are presumed abandoned and dedicated to the Water Management District. Id.
378. Id. 373.429. The Water Management District may revoke or modify a permit if the district
determines the MSSW system is a danger to the public health or safety or if operation of the system is
inconsistent with the objectives of the district. Id.
Chapter 373 directs the Water Management District to conduct periodic inspections during the
construction, alteration, and operation of MSSW systems379 and to determine whether remedial
measures are necessary.38 The Water Management District may order that the owner of a MSSW
system alter or repair the system within a reasonable time. If the owner fails to obey the order, the
Water Management District may make the repairs and impose a lien against the owner's property for the
cost of the repairs.381 Furthermore, the Water Management District, state agencies, the state, and
private persons may bring suit to enjoin MSSW systems which are violating the laws of the state or
Water Management District standards.38
Chapter 373 expressly exempts certain activities from the MSSW permitting program.
Agriculture, silviculture, floriculture, or horticulture activities which alter the land surface for "purposes
consistent with the practice of such occupation," are exempt from the MSSW rule unless the sole or
predominant purpose of the alteration is to impound or obstruct surface waters.33 In addition, the
MSSW rule does not apply to the construction, operation, or maintenance of closed agricultural
systems.3" However, the "taking and discharging of water for filling, replenishing, and maintaining
the water level" of a closed agricultural system is subject to consumptive use regulations,3' and dams,
dikes, and levees must be constructed, operated, and maintained to conform with generally accepted
Water Management District MSSW regulations require a permit for "construction, alteration,
operation, maintenance, removal or abandonment" of any system which meets or exceeds permitting
thresholds.3' The Water Management District may issue a conceptual approval permit, an individual
379. Id. 373.423.
380. Id. 373.436.
381. Id. 373.436.
382. Id. 373.433.
383. Id. 373.406(2).
384. Id. 373.406(3); Corporation of President of Church of Jesus Christ of Latter-Day Saints v. St.
Johns River Water Management District, 489 So. 2d 59 (Fla. 5th D.C.A. 1986), cert. denied, 496 So. 2d
142 (Fla. 1986).
385. Fla. Stat. 373.406(3). The Water Management District regulates consumptive use of water
through regulations contained in Fla. Admin. Code chapter 40C-2, which was adopted pursuant to Fla. Stat.
373, Part II.
386. Fla. Stat. 373.406(3).
387. Fla. Admin. Code 40C-4.041(1) (Aug., 1989).
permit, or a general permit.3" Conceptual approval permits do not authorize construction and may be
issued for projects which are developed in phases.'" Within the Econ Basin, an individual or general
MSSW permit must be obtained for a system which:
1) is capable of impounding a volume of water of 40 or more acre feet; or
2) serves a project with a total land area equal to or exceeding 40 acres; or
3) provides for the placement of 12 or more acres of impervious surface which constitutes
40 or more percent of the total land area; or
4) contains a traversing work which traverses:
a) a stream or other watercourse with a drainage area of five or more square
miles upstream from the traversing work; or
b) an impoundment with more than ten acres of surface area; or
5) contains a surface water management system which serves an area of five or more
contiguous acres of a hydrologically sensitive area [wetland] with a direct hydrologic
a) a stream or other watercourse with a drainage area of five or more square
b) an impoundment with no outfall, which is not wholly owned by the applicant
and which is ten acres or greater in size; or
c) a hydrologically sensitive area not wholly owned by the applicant.39
Applicants for general or individual permits for the operation, maintenance, removal, or
abandonment of a system, or for conceptual approval permits, must provide reasonable assurance that
the activity will not:
1) adversely affect navigability of rivers and harbors;
2) adversely affect recreational development or public lands;
3) endanger life, health, or property;
4) be inconsistent with the maintenance of minimum flows and levels established
pursuant to Section 373.042, Florida Statutes;
5) adversely affect the availability of water for reasonable beneficial purposes;
6) be incapable of being effectively operated;
7) adversely affect the operation of a work of the District ...
8) adversely affect existing agricultural, commercial, industrial, or residential
388. Id. 40C-4.041(2).
389. Fla. Admin. Code 40C-4.041(2)(a) (August 1989).
390. Id. 40C-4.041(2)(b). Lower threshold criteria for MSSW systems within the Wekiva Basin are
discussed in the section of this report entitled Special Protection of Florida Rivers.
9) cause adverse impacts to the quality of receiving waters;
10) adversely affect natural resources, fish, and wildlife;
11) induce saltwater or pollution intrusion;
12) increase the potential for damages to off-site property or the public caused by:
a) floodplain development, encroachment or other alteration;
b) retardance, acceleration, displacement or diversion of surface water;
c) reduction of natural water storage areas;
d) facility failure;
13) increase the potential for damages to residences, public buildings, or proposed and
existing streets and roadways; and/or
14) otherwise be inconsistent with the overall objectives of the District.39
The Water Management District may balance the beneficial and harmful effects of the proposed
system on the 14 individual objectives to determine whether the system is consistent with the overall
objectives of the district.39 The phrase "overall objectives of the District" appears to mean a
compilation of objectives derived from the 14 individual objectives listed in the rule,393 the statement
of policy and purpose contained in the rule,39 the declaration of policy contained in Chapter 373,
Florida Statutes,39 and the statement of water policy contained in Chapter 17-40, Florida
Applicants for permits for construction, alteration, operation, or maintenance of a system or to
obtain a conceptual approval permit must give reasonable assurance that the activity will meet the
following seven standards:
1) Adverse water quantity impacts will not be caused to receiving waters and adjacent
2) Surface and ground water levels and surface water flow will not be adversely affected
3) Existing surface water storage and conveyance capabilities will not be adversely
4) The system must be capable of being effectively operated
5) The activity must not result in adverse impacts to the operation of works of the district
6) Hydrologically-related environmental functions will not be adversely affected
391. Id. 40C-4.301(1)(a).
392. Id. 40C-4.301(1)(b).
393. Id. 40C-4.301(1)(a).
394. Id. 40C4.011.
395. Fla. Stat. 373.016 (1989).
396. Fla. Admin. Code chapter 17-40 (Dec. 1988).
7) Otherwise not be harmful to the water resources of the District39
If an applicant provides reasonable assurance that design criteria contained in the Water
Management District Applicant's Handbook are met, then the seven harm to the water resources
standards are presumed to be satisfied.3' Table 6 lists MSSW activities that must satisfy the
"objectives" test and the "harm to water resource" standards.
REVIEW CRITERIA FOR MSSW ACTIVITIES
Activity 14 Objectives Balancing Test Harm to Water Resources
Construction No Yes
Operation Yes Yes
Maintenance Yes Yes
Removal Yes No
Abandonment Yes No
Conceptual Approval Yes Yes
Alteration No Yes
397. Fla. Admin. Code 40C-4.301(2)(a) (August, 1989).
398. Id. 40C4.301(2)(b).
General permits may be issued for MSSW systems which the Water Management District has
determined do not harm the water resources of the district and are not inconsistent with the objectives of
the district.39 Applicants for MSSW general permits must provide reasonable assurances that the
following general and threshold conditions are met:
1) General Conditions
a) The surface water management system must meet the criteria specified in
Rule 40C-4.301, F.A.C. [objectives and standards contained in Rule 40C-
4.301 are discussed later in this subsection].
b) The system must not be located in a stream, impoundment or other
watercourse, or contain more than five contiguous acres of hydrologically
sensitive area which has a direct hydrologic connection to:
(1) a stream or other watercourse with a drainage area of five or more
(2) an impoundment with no outfall, which is not wholly owned by the
applicant, and which is ten acres or greater in size; or
(3) a hydrologically sensitive area not wholly owned by the applicant.
2) Threshold Conditions
a) The system must not be capable of impounding a volume of water more than
120 acre feet.
b) The system must not serve a project of 120 acres or more total land area.
c) The system must not serve a project which provides for the placement of
more than 40% impervious surface in the total land area.4
The duration of general permits for the construction, alteration, or removal of an MSSW system
is 5 years, or for the amount of time specified in the permit."4 Permits for operation, maintenance or
abandonment of MSSW systems are permanent.4 Any general permit may be revoked or modified
as provided for in Section 373.429, Florida Statutes.40 In addition, the Water Management District
may attach limiting conditions to the permit to assure the project is consistent with the overall objectives
of the district and will not be harmful to the water resources of the district."4
399. Id. 40C40.141 (Sept. 1989).
400. Id. 40C-40.302.
401. Id. 40C-40.321.
403. Id. 40C-40.351.
404. Id. 40C-40.381, 40C-4.381.
2. Wetlands Protection in Water Management District MSSW Permitting
The Water Management District regulates wetlands through a Management and Storage of
Surface Waters (MSSW) permitting program under Chapter 373, Part IV.0 Wetlands affected by
MSSW systems meeting the thresholds contained in rule 40C-4.041 are evaluated as part of the review
process. The Water Management District derives its authority to regulate wetlands from Chapter 373,
Florida Statutes, which authorizes the district to ensure that surface water management systems are not
harmful to the water resources of the district. Wetlands are considered part of the Water Management
District's water resources.
Applicants must provide reasonable assurances that projects are both consistent with the overall
objectives of the district and do not harm the water resources of the district.406 Overall objectives of
the district which relate to wetlands include consideration of: (1) minimum flows and levels; (2)
availability of water for reasonable beneficial purposes; (3) quality of receiving waters; (4) natural
resources, fish, and wildlife;
(5) saltwater or pollution intrusion; (6) damages to off-site property or the public caused by: floodplain
development, encroachment, or other alteration; retardance, acceleration, displacement or diversion of
surface water; reduction of natural water storage areas; or facility failure; (7) damages to residences,
public buildings, or proposed and existing streets and roadways." The Water Management District
may balance these factors and other objectives of the district to determine whether the system is
consistent with the overall objectives of the district.40
Wetlands values are also considered in determining whether a project may be harmful to the
water resources of the Water Management District. The following standards relating to wetland values
must be met and are not balanced against other considerations:
1) Adverse water quantity impacts will not be caused to receiving waters and adjacent
2) Surface and ground water levels and surface water flow will not be adversely affected
3) Existing surface water storage and conveyance capabilities will not be adversely
4) Hydrologically-related environmental functions will not be adversely affected
5) Otherwise not be harmful to the water resources of the District"
405. The Water Management District MSSW permitting program is discussed beginning on page 65
of this volume.
406. See, supra text accompanying notes 391-398.
407. Fla. Admin. Code 40C-4.301(1)(a) (August, 1989).
408. Id. 40C-4.301(1)(b).
409. Fla. Admin. Code 40C-4.301(2)(a) (August, 1989).
The term "hydrologically-related environmental functions" includes consideration of aquatic and
wetlands dependent species of wildlife but does not extend to upland species.410
The standards are presumed met if the applicant satisfies criteria contained in the Water
Management District's MSSW Applicant's Handbook.41 These criteria focus on the value that
wetlands provide to off-site aquatic and wetland dependent species of wildlife. With respect to wildlife,
the scope of review is limited to consideration of the "impacts to off-site aquatic and wetland dependent
species relative to the functions currently being provided by the wetland to these types of fish and
wildlife.""42 Applicants must provide reasonable assurance that a proposed system will not cause
adverse off-site changes in:
a) the habitat of an aquatic and wetland dependent species
b) the abundance and diversity of aquatic and wetland dependent species, and
c) the food sources of aquatic and wetland dependent species.413
Jurisdiction extends to all wetlands, including isolated wetlands. Chapter 373, Florida Statutes directs
the Water Management District to adopt a rule which includes:
a) One or more size thresholds of isolated wetlands below which impacts on fish and
wildlife and their habitats will not be considered. These thresholds shall be based on
biological and hydrological evidence that shows the fish and wildlife values of such
areas to be minimal;
b) Criteria for review of fish and wildlife and their habitats for isolated wetlands larger
than the minimum size;
c) Criteria for the protection of threatened and endangered species in isolated wetlands
regardless of size and land use; and
d) Provisions for consideration of the cumulative and offsite impacts of a project or
Water Management District rules presume that isolated wetlands of less than one half acre are of
insignificant value to off-site aquatic or wetland dependent wildlife. Accordingly, the rules allow
development in wetlands of less than one-half acre without the applicant having to satisfy the wetland
410. Friends of Fort George, Inc. v. Fairfield Communities, Inc., DOAH Case No. 85-3596 (Dec. 15,
411. Id. 40C-4.301(2)((b).
412. St. Johns River Water Management District, Applicants Handbook, Management and Storage of
Surface Waters 10.7.4 (August 1988). On-site impacts are assessed if the wetlands are used or reasonable
scientific judgement would indicate use by threatened or endangered species which are aquatic or wetland
414. Fla. Stat. 373.414 (1989).
review criteria.45 The Water Management District may rebut this presumption if it determines that
wetlands of less than one half acre are of value to off-site aquatic or wetland dependent wildlife.416
The Water Management District considers several factors in determining a wetland's value to
aquatic and wetland dependent species. Large wetlands are considered to support greater diversity of
species and to have greater value than small wetlands.41 Wetlands which have a regular hydrologic
connection to off-site areas are considered to have greater value than intermittently connected
wetlands.418 Pristine or unique wetlands are considered to have greater value than disturbed or
commonly occurring wetlands.4" Wetlands surrounded by one or more natural community are
considered to have greater value than wetlands surrounded by man-altered habitat or one natural
Applicants may propose mitigation for projects which fail to satisfy wetland review criteria.
Mitigation is "action or actions taken to offset the adverse effects of a system on off-site functions" and
can consist of either wetland creation or wetland enhancement.421 Mitigation proposals are considered
on a case by case basis.42 When reviewing mitigation proposals, the Water Management District
examines the degree to which wetland functions are impacted, whether the impacts to these functions
can be mitigated, and the feasibility of alternative project designs which would avoid impacts.42
Mitigation is usually required to take place on site or in close proximity to the wetland loss,
although the Water Management District may allow off-site mitigation."4 Mitigation proposals are
typically required to replace the functions which were lost through wetland destruction, although the
Water Management District may allow creation or enhancement of a different type of wetland if this
would benefit the local or regional ecology.42 The preservation of uplands adjacent to preserved or
415. Id. Applicants do have to satisfy other MSSW permitting criteria. Note: The District is currently
considering lowering the threshold.
417. Id. 10.7.5(a).
418. Id. 10.7.5(b). Wetlands with natural off-site hydrologic connections are considered to have
greater value than wetlands with man-made off-site connections. Id.
419. Id. 10.7.5(c),(d).
420. Id. 10.7.5(e).
421. Id. 16.1.3(a).
423. Id. 10.7.4.
424. Id. 16.1.3(b).
425. Id. 16.1.3(c).
enhanced wetlands may be considered as mitigation for wetland loss.42 Similarly, creation of
additional wildlife habitat in lakes, such as expanded vegetated littoral zones, fluctuating water levels,
and islands may be considered as mitigation.42
The Water Management District has guidelines to assist in determining how much wetland
creation will be required to offset destruction of wetlands. Applicants who propose to destroy wetlands
which have a direct hydrologic connection to a watercourse, impoundment, or wetland not wholly
owned by the applicant may have to mitigate at the following ratios, depending upon site specific
1) Hardwood swamps The ratio of created wetland to lost wetland should be 2:1 to 5:1,
or higher if the proposal depends extensively on natural recolonization.
2) Freshwater marshes The ratio of created wetland to lost wetlands should be 1.5:1 to
2:1, or 3:1 to 4:1 if the proposal depends extensively on natural recolonization.4
The Water Management District requires less mitigation than that stated above for destruction of
wetlands which have a man-made direct connection or which do not have a direct hydrologic connection
to a watercourse, impoundment or wetland not wholly owned by the applicant.42 The Water
Management District may adjust mitigation ratios to reflect other beneficial mitigating factors such as
creation of wetlands prior to wetland loss, creation of upland buffers adjacent to wetlands, dedication of
conservation easements, enhancement of wetlands, or other alternative proposals.43
Applicants submitting mitigation proposals are required to include a plan for monitoring and
maintaining the mitigation site. The Water Management District may include specific monitoring and
maintenance requirements as specific conditions in the applicant's permit. Monitoring reports may be
required to include information such as the survival of planted species, the extent of invasion by non-
target species, and the overall vigor of the community.431
426. Id. 16.1.3(d).
427. Id. 16.1.3(e).
428. Id. 16.1.4.
430. Id. The Water Management District does not consider the donation of money to be acceptable
mitigation for wetland loss. However, the Water Management District may allow donation or preservation
of wetlands or uplands if they are "regionally significant or provide unique fish and wildlife habitat." Id.
431. Id. 16.1.5.
3. Analysis of Water Management District MSSW Permitting Program
The Water Management District Management and Storage of Surface Waters permitting
program regulates many activities which affect water quantity and quality and provides some protection
for fish and aquatic and wetland dependent wildlife. However, the program does not provide sufficient
protection for certain resource values within the Econ Basin, such as wildlife, wildlife habitat, and
The MSSW permitting program provides no definite assurances that critical wildlife habitat
such as river buffers will be preserved and protected. The permitting criteria allow development in
environmentally sensitive areas, such as near the river and within its floodplain. Although the rule
provides for consideration of the impacts of MSSW systems on off-site aquatic and wetland dependent
species of wildlife,43 the MSSW rule does not require setbacks from the river's edge or from
wetlands to preserve valuable habitat for wetland dependent and upland species of wildlife.
Consideration of impacts to off-site aquatic and wetland dependent species is limited to functions which
the wetland currently provides to these types of fish and wildlife.433 Furthermore, the MSSW rule
does not provide for consideration of the impacts of MSSW systems on upland species of wildlife or
The MSSW rule does not provide for maintenance of the overall storage capacity of the Econ
basin because the permitting criteria allow ground water tables to be lowered. Ground water levels may
be lowered: (1) over the project area, up to an average of three feet lower than the average dry season
low water table; or (2) at any location, up to five feet lower than the average dry season low water
table; or (3) up to a level that would drain adjacent surface water bodies below minimum levels
established by the Water Management District44
Criteria for rates of discharge require that "post development peak rate of discharge must not
exceed the pre-development peak rate of discharge."435 By comparing only the peak rate of discharge,
this standard does not address other important considerations for maintaining base flow, such as the
timing and quantity of discharge. A standard which ensures that all characteristics of post-development
432. St. Johns River Water Management District, Applicant's Handbook, Management and Storage of
Surface Waters 10.7.4 (Aug., 1988). Arguably, the Water Management District can consider the need to
protect uplands which are adjacent to wetlands and provide habitat for wetland-dependent species of
wildlife. However, the Water Management District was reluctant to adopt rules which provided for upland
buffers in the Wekiva River Basin without an additional grant of legislative authority. See Whitney, N.S.
& J.C. Elledge, Effective Environmental Action: The Case of the Wekiva River, Water: Laws and
Management 9B-13 9B-22 (Symposium proceedings of the American Water Resources Association
434. St. Johns River Water Management District, Applicant's Handbook, Management and Storage of
Surface Waters 10.6.3 (Jan., 1988).
435. Id. 10.3.1.
runoff are equivalent to pre-development runoff characteristics could provide better long-term
maintenance of the storage capacity of the Econ Basin.
Permitting criteria require compensating storage for MSSW systems which cause a net
reduction in flood storage within the 10-year floodplain.43 The compensating storage must be outside
the 10-year floodplain. Accordingly, the floodplain criteria discourages but does not prohibit
development within the 10-year floodplain, and allows development within the 100-year floodplain. The
standard could be strengthened by prohibiting MSSW systems which would cause a net reduction in
flood storage within the 100-year floodplain of the Econ River and its major tributaries, regardless of
whether upland compensating storage could be provided. The more stringent standard would provide
better protection against flooding and would discourage development within sensitive floodplain areas.
Some projects are exempt from the MSSW program because they fall below the thresholds.43
Most of these projects are subject to stormwater permitting criteria, which only allow consideration of
water quality impacts. Water Management District staff indicate there are large numbers of sub-
threshold projects within the Econ Basin. The cumulative impacts of these projects could have adverse
effects on the wildlife habitat and general integrity of the Econ River system. The MSSW program
could provide more protection for the Econ Basin and river if thresholds were lowered.
Although the MSSW wetlands permitting criteria apply to all wetlands, development is
routinely allowed in wetlands smaller than 0.5 acres because the criteria presume that these wetlands are
of insignificant value to off-site aquatic or wetland dependent species. However, studies indicate that
small ephemeral wetlands provide essential habitat to certain wildlife species.43 While the Water
Management District may rebut this presumption if they determine the wetland is of value to wetland
dependent wildlife, rebuttal is unlikely unless endangered or threatened species are present
Furthermore, the criteria do not consider wetland values to on-site wildlife, regardless of the size of the
436. Id. 10.5.2(a).
437. The Water Management District is currently considering lowering the threshold for impacts to
wetlands (Telephone interview with Glenn Lowe, Chief Environmental Specialist, Department of Resource
Management, St. Johns River Water Management District (March, 1990)).
438. Brown, M.T., J.M. Schaefer, & K. Brandt, Buffer Zones for Water, Wetlands, and Wildlife in East
Central Florida, Center for Wetlands, University of Florida, publication number 89-07 (1990) (report
submitted to the East Central Florida Regional Planning Council), citing Ashton, R.E., & P.S. Aston,
Handbook of Reptiles and Amphibians of Florida: Part Three The Amphibians (1988); Caldwell, J.P.,
Demography and Life History of Two Species of Chorus Frogs (Anura; Hylidae) in South Carolina, Copeia
1987: 114-127 (1987); Heyer, W.R., R.W. McDiarmid, and D.L. Wiegmann, Tadpoles, Predation and Pond
Habitats in the Tropics, Biotropics 7:100-111 (1975); Moler, P.E., and R. Franz, Wildlife Values of Small,
Isolated Wetlands in the Southeastern coastal Plain, Proc. 3rd S.E. Nongame and Endangered Wildlife Sym.
GA Dept. Nat. Res., Atlanta, GA (1987); Morin, T., Predation, Competition, and the Composition of Larval
Anuran Guilds, Ecol. Monogr. 53: 119-138 (1983); Wilbur, H.M., Complex Life Cycles, Ann. Rev. Ecol.
Syst. 1980: 67-93 (1980); Woodward, B.D., Predator Prey Interactions and Breeding Pond Use of
Temporary-pond Species in a Desert Anuran Community, Ecology 64: 1549-1555. See also, Lowe, G. &
C. Salafrio, The Evolution of Wetland Regulation Under Chapter 40C-4, F.A.C., Wetlands: Concerns and
Successes 557 (1989) (published in the proceedings of a conference sponsored by the American Water
Resources Association, Tampa, Fla., Sept. 17-22, 1989).
wetland. District staff indicate that occasionally they are unable to show that a wetland has value to
off-site aquatic and wetland dependent wildlife. When this happens, destruction of the wetland may be
allowed under existing criteria, notwithstanding the value of the wetland to on-site aquatic and wetland
dependent wildlife species.
A number of questions surround the use of mitigation in MSSW and dredge and fill4"
permitting programs in Florida. The underlying premise supporting the use of mitigation is that wetland
functions which are destroyed by a project can be replaced through creation, enhancement, or restoration
of other wetlands, or by preserving other wetlands or valuable lands. Ideally, each acre of wetland
which is destroyed will be replaced by a new or restored acre of wetland with equivalent functional
value. However, recent critiques indicate that wetland mitigation programs are allowing a net loss of
wetlands because often: (1) wetland creation is unsuccessful because of unsuitable hydrology, invasions
of exotic plant species, and other site specific problems; (2) applicants do not commence or follow
through with construction of the mitigation area; (3) mitigation areas are constructed improperly; (4)
mitigation areas are not maintained properly; (5) mitigation areas are not monitored properly, by the
applicant or regulatory agencies; and (6) regulatory agencies do not pursue enforcement actions against
applicants who violate mitigation criteria or permit conditions."
In addition, existing mitigation criteria are substantively inadequate to prevent a net loss of
wetlands. While off-site, non-type for type, and monetary mitigation may be appropriate under certain
circumstances, current regulatory criteria do not provide an adequate rationale or methodology for
consistent consideration of often competing natural resource values. For example, Water Management
District rules provide no mitigation ratios for isolated wetlands, wetland enhancement, upland
preservation, or off-site mitigation."1 The Water Management District and other government entities
recognized the inherent limitations of the MSSW program for protecting sensitive riverine habitat when
439. DER delegated dredge and fill authority to the Water Management District in 1988. The Water
Management District applies DER mitigation criteria to dredge and fill projects and MSSW mitigation
criteria to MSSW projects. If a project requires both a dredge and fill and MSSW permit then the applicant
must satisfy Water Management District and DER mitigation criteria. (Interoffice memorandum from Glenn
Lowe, Chief Environmental Specialist, Department of Resource Management, to Environmental Specialist
Staff, Department of Resource Management, St. Johns River Water Management District (August 23,
440. Interoffice memorandum from Lucianne Blair and Michael Dentzau to Janet Llewellyn, et al,
Florida Department of Environmental Regulation (Sept. 1, 1989); Interoffice memorandum from James
Beever III, Resource Management and Research Coordinator, Southwest Florida Aquatic Preserves, to Hank
Smith, Environmental Specialist III, Bureau of State Lands Management, Division of State Lands,
Department of Natural Resources (March 6, 1990); Crewz, David, Habitat-Mitigation Evaluations for
Manatee-Sarasota Counties, Mid-project Summary: Projects 1-11, Report to Manasota 88 (Jan., 1990);
Permit Audit, The Resource, (Resource Regulation Newsletter published by the Southwest Florida Water
Management District) Vol III, Issue 2 (Mar.-Apr., 1990).
441. Memorandum from Jeff Elledge, Director, Department of Resource Management, St Johns River
Water Management District to the St. Johns River Water Management District Governing Board 5 (July 19,
they modified those requirements for the Wekiva River Basin. A discussion of these modifications is
included in this volume in the section addressing Special Protection of Florida Rivers.
B. St. Johns River Water Management District Stormwater Permitting Program
1. Description of Water Management District Stormwater Permitting
The Water Management District regulates discharges of stormwater into waters of the state
under authority delegated by the Florida Department of Environmental Regulation.42 Permits are
required for new stormwater discharge facilities and modifications of existing facilities.43 Stormwater
permitting requirements are incorporated into the review of MSSW projects.4 Most projects which
fall below MSSW thresholds must obtain stormwater discharge permits. However, stormwater facilities
for single-family dwellings units, or for single-family residential projects of less than 10 acres total land
area and which have less than 2 acres impervious surface, are exempt from stormwater permitting
requirements unless the system is part of a larger common plan of development or sale.4s
Stormwater facilities for agricultural and silvicultural lands are not currently required to obtain a permit
under chapter 40C-42 if certain conservation plans and best management practices are followed.44
The goal of the stormwater permitting program is to prevent pollution of waters of the state and
to protect the most beneficial uses of waters."7 An applicant must provide "reasonable assurance that
the discharge will not cause or contribute to a violation of water quality standards in waters of the
state."" Chapter 40C-42 contains design and performance standards which are "established for the
purpose of determining compliance" with the rule."9 However, the Water Management District may
442. Fla. Admin. Code ch. 40C-42 (August, 1987). The Florida Department of Environmental
Regulation had formerly regulated stormwater systems within the District under Rule 17-25, F.A.C. The
delegation was intended to minimize duplication by consolidating stormwater permitting with MSSW
443. Fla. Admin. Code 40C-42.011(2), 40C-42.021(8) (August, 1987).
444. Id. 40C42.061(1).
445. Id. 40C42.031(1)(a),(b) (Feb., 1987).
446. Id. 40C42.031(l)(d),(e).
447. Id. 40C-42.011(1).
448. Id. 40C-42.025.
449. Id. 40C-42.025.
require more stringent design and performance standards to ensure the facility will not violate water
quality standards.5" Generally, stormwater treatment may be accomplished through the use of
retention, detention with filtration, or wet detention systems. Treatment systems must be capable of
accommodating a subsequent rainfall event within a specified period of time.451 In addition, the rule
provides standards for filtration systems, swales, side slopes, erosion and sedimentation, oil and grease
removal, and criteria for Outstanding Florida Waters.452
An applicant may obtain a general permit for new stormwater discharge facilities which:
a) ... discharge into a stormwater discharge facility which ... [is already permitted] or
which was previously approved pursuant to a noticed exemption under Rule 17-25.030,
where appropriate treatment criteria specified in this Chapter and applied to the
permitted or exempt facility are not exceeded by the discharge ... [and written consent
is obtained from the owner of the permitted or exempt facility]; or
b) ... provide retention, or detention with filtration, of the runoff from the first one inch
or rainfall; or, as an option, for projects ... which consist of less than 80% impervious
surface with drainage areas less than 100 acres, facilities which provide retention, or
detention with filtration, of the first one-half inch of runoff. However, facilities which
directly discharge to ... Outstanding Florida Waters shall provide additional treatment
c) [involve] [M]odification or reconstruction by a city, county, state agency or special
district with drainage responsibility, of an existing stormwater management system
which is not intended to serve new development, and which will not increase pollution
loading, or change points of discharge in a manner that would adversely affect the
designated uses of the waters of the state; or
d) [involve] [F]acilities of stormwater management systems that include a combination of
management practices including but not limited to retention basins, swales, pervious
pavement, landscape or natural retention storage that will provide for percolation of the
runoff from a three-year, one-hour design storm.453
General stormwater permits are subject to the general permit procedures and limitations
contained in Chapter 40C-40, Florida Administrative Code (See discussion of general MSSW permits
452. Id. 40C-42.025. Stormwater discharge facilities which discharge directly to Outstanding Florida
Waters must provide "an additional level of treatment equal to fifty percent of the treatment criteria"
required for class III waters. Id. 40C-42.025(10).
453. Id. 40C-42.035.
beginning on page 69 of this volume) and are permanent unless suspended or revoked pursuant to
Section 373.429, Florida Statutes.4"5
Persons planning to construct new stormwater discharge facilities must obtain an individual
permit prior to construction of the facility unless the facility is exempted, permitted under a general
stormwater permit, or permitted under a MSSW permit.45 Generally, individual permits are required
for stormwater systems which propose to satisfy water quality standards by treatment methodologies or
devices other than those described in Chapter 40C-42.4'6 Persons planning to modify existing
stormwater discharge systems, except for emergency repairs, may also be required to obtain an
To obtain an individual permit, the applicant must provide reasonable assurance that the
stormwater discharge facility will not "discharge, emit, or cause pollution in contravention of District
standards, rules or regulations, including Chapter 17-3, F.A.C."4' Facilities are presumed to have
satisfied this standard if the facility will provide for
treatment equivalent to either retention, or detention with filtration ... of the runoff
from the first one inch of rainfall; or, as an option for projects ... which consist of
less than 80% impervious surface with drainage areas less than 100 acres the first one-
half inch of runoff ....45
Facilities which discharge directly into Outstanding Florida Waters must provide additional
In addition, the applicant must provide for adequate operation and maintenance of the proposed
facility."6 The Water Management District may also consider (1) whether best management
practices are proposed, (2) the public interest served by the discharge, (3) the probable costs and
454. Id. 40C-42.035(1).
455. Id. 40C-42.041(1).
456. Id. 40C42.025(12).
457. Id. 40C-42.041(3).
458. Id. 40C-42.041(4). Chapter 17-3, F.A.C., contains state water quality standards.
459. Fla. Admin. Code 40C-42.041(5) (Feb., 1987).
460. Id. See, supra note 452.
461. Fla. Admin. Code 40C-42.041(5).
efficacy of alternative controls, and (4) whether the proposed water quality benefits are reasonably
related to the costs of the controls.462
2. Analysis of Water Management District Stormwater Permitting Program
Stormwater regulations attempt to prevent violations of state water quality standards and
maintain existing water quality conditions by minimizing runoff pollution. However, there are some
limitations in the scope and implementation of the rule. Design and performance standards are
inadequate to maintain water quality and do not consider the effects of stormwater system construction
on upland habitat or adjacent wetlands. In addition to limitations in the scope of the stormwater rule,
Water Management District staff indicate there are enforcement and compliance problems in the
implementation of the rule.
The stormwater rule provides design and performance criteria which are intended to result in
the construction of stormwater treatment systems which do not violate state water quality standards.
Stormwater system criteria are intended to meet a goal of 80% removal of the pollutant load from a
given rainfall event, regardless of the actual amount of pollutant loading. Generally, the rule presumes
this 80% removal efficiency is met if the treatment systems are designed in accordance with Water
Management District design and performance criteria. However, if the pollutant loading is high, or the
system is particularly vulnerable to pollution, a system designed to produce 80% removal efficiency may
result in violations of water quality standards. Accordingly, in some instances, the design and
performance standards may not result in compliance with water quality standards.46 The rule
addresses this problem by stating that discharges may not cause violations of specific values for a
number of water quality parameters, regardless of whether the design or performance criteria are
satisfied. The Water Management District may require monitoring of discharges and take action to
ensure the water quality standards are not violated.
Despite these safeguards, Water Management District staff indicate that violations of water
quality standards are a problem. Properly designed stormwater treatment systems are often poorly
monitored and maintained and as a result may contribute to degradation of water quality. Monitoring
and enforcement actions by the Water Management District are relatively rare compared to the number
of stormwater systems which are likely to be violating water quality standards. In addition, stormwater
treatment systems are occasionally permitted in locations with hydrological and geological traits which
prevent the treatment system from working properly, such as in wetlands or other areas with high water
tables. There are also concerns regarding the effectiveness of detention with filtration systems in the
462. Id. 40C42.041(6).
463. Id. 40C-42.025.
Econ Basin."' Water Management District staff believe wet detention systems provide more effective
treatment, with fewer maintenance problems, in areas with high water tables.
Another limitation involves the nutrient standard for Class III water bodies. The nutrient
standard states "in no case shall nutrient concentrations of a body of water be altered so as to cause an
imbalance in natural populations of aquatic flora or fauna.""4 The standard is apparently based on the
assumption that densities of aquatic flora and fauna are directly proportional to nutrient levels.
However, other factors such as temperature, light, and the rate of water movement also affect densities
of aquatic flora and fauna. Accordingly, it is difficult to predict whether nutrient discharges,
individually or cumulatively, will cause algal blooms, accelerated growth of aquatic macrophytes, such
as water hyacinths, or fish kills in slow moving downstream waters. The standard thus contains no
maximum allowable concentration of nutrients. The only accurate basis for setting such limitations
would be a comprehensive study of the Econ Basin which considers contributions of both point and
nonpoint sources of nutrients and their effect on receiving waters.
The stormwater rule provides for consideration of the affects of water quality on wildlife but
does not allow for consideration of the impacts of the creation of stormwater systems on wildlife. For
example, the rule does not provide for evaluation of (1) the immediate affects of construction of
detention and retention reservoirs on on-site and nearby wildlife species and (2) the cumulative long-
term effects of loss of habitat caused by construction of stormwater reservoirs. In many cases, the
construction of stormwater basins adjacent to wetlands has had the effect of draining water from the
wetlands, thus degrading them. Current rules do not provide for consideration of this impact where the
basin is constructed in uplands.
464. Although the stormwater rule treats detention with filtration and wet detention as equivalent best
management practices, the Water Management District discourages the use of detention with filtration and
encourages wet detention. However, until recently, Orange County would not issue permits under their
stormwater rule for wet detention systems. Accordingly, a large number of stormwater systems in the Econ
Basin utilize detention with filtration, a treatment system which Water Management District staff believe
is not as effective as other methods.
465. Fla. Admin. Code 17-3.121(19) (May, 1987).
The development of wetlands is regulated by both the U.S. Army Corps of Engineers
(Corps)" and the U.S. Environmental Protection Agency (EPA)46 at the federal level. At the state
level, the Florida Department of Environmental Regulation (DER) regulates dredge and fill activities in
wetlands." The Florida Department of Natural Resources (DNR) regulates the use of state-owned
submerged lands," which can include extensive areas of vegetated wetlands along the shores of
navigable rivers and lakes. In addition, wetland impacts are a major consideration in the management
and storage of surface waters permitting program of the St Johns River Water Management District, in
the review of Developments of Regional Impact by the East Central Florida Regional Planning Council
and the Department of Community Affairs, and in local government comprehensive plans and
implementing regulations discussed elsewhere in this volume. There is considerable variation among the
programs with respect to those activities subject to regulation, the geographic area regulated, and the
criteria used for determining whether to permit an activity. Table 7 illustrates isolated wetlands
permitting thresholds for federal, state, and regional agencies.
466. 33 C.F.R. 320.2 (July, 1988).
467. 40 C.F.R. part 230 (July, 1988).
468. Fla. Stat. 403.91-403.938 (1989); Fla. Admin. Code ch. 17-312 (July, 1989).
469. Fla. Stat. 253.03 (1989); Fla. Admin. Code ch. 18-21 (March, 1987).
REGIONAL, STATE, AND FEDERAL ISOLATED WETLANDS PERMITTING
THRESHOLDS IN THE ECON BASIN
Regulatory Entity Acres
Wetlands are regulated through the Water Management District's MSSW permitting
program. Accordingly, MSSW thresholds must be triggered before the Water
Management District will evaluate the effects of a project on wetlands.
S DER regulates waters connected to the state but does not regulate isolated wetlands. DER has
delegated this authority to the Water Management District.
*** EPA and COE have jurisdiction over all "adjacent" wetlands and isolated wetlands, the
loss or destruction of which would adversely affect interstate commerce. 40 C.F.R.
230.3(s) (July 1, 1988). Nationwide permits may authorize activities which do not
cause the loss or substantial adverse modification of less than 10 acres of wetlands.
33 C.F.R. 330.5(a)(26) (Nov. 13, 1986). Activities which cause the loss or
substantial adverse modification of 1 to 10 acres of wetlands must notify the COE. Id.
The wetlands regulatory authority of the U.S. Army Corps of Engineers is derived from two
federal statutes, the Rivers and Harbors Act of 1899 and Section 404 of the Clean Water Act. Under
Section 10 of the Rivers and Harbors Act, the Corps has broad authority to regulate activities affecting
the course, location or capacity of navigable waters.470 Jurisdiction is generally limited to activities
below the ordinary high water mark of navigable waters. Under the Clean Water Act, on the other
hand, jurisdiction extends to nonnavigable tributaries and adjacent wetlands. A hydrologic connection to
navigable waters is not required. Only activities involving the discharge of dredged or fill material,
however, are subject to permitting. Although land clearing and other activities involving a re-deposition
of fill material are regulated, the excavation or drainage of wetlands may be unregulated.
The criteria for permitting involve the application of a public interest test adopted by the
Corps47 and a set of guidelines adopted by EPA472 in consultation with the Corps. Only the public
interest criteria are used in evaluating Rivers and Harbors Act permits. The public interest criteria
involve a balancing of the various factors affecting the public interest, including the public interest in
the preservation of wetlands and associated wildlife.
Guidelines adopted by EPA under section 404(b)(1) of the Clean Water Act are used to
evaluate discharges of dredge or fill material. EPA can enforce these guidelines by "vetoing" Corps-
issued permits under section 404(c), which is extremely rare. The guidelines prohibit the discharge of
dredge or fill material unless the individual and cumulative effects on water quality, wildlife and other
resource values associated with wetlands are not adverse. If there is a practicable alternative that would
be less damaging, the discharge is prohibited and if the activity is not water dependent, practicable
alternatives are presumed to be available.
State wetlands regulation was significantly reformed in 1984 with passage of the Warren S.
Henderson Wetlands Protection Act.4O Many developments, however, were vested under the existing
statutes and regulations. The Wetlands Protection Act extended jurisdiction to encompass additional
wetlands, expanded permitting criteria to allow consideration of a broad range of factors, required DER
to consider mitigation, and exempted agricultural activities from permitting under the Act.
Jurisdiction applies to construction, dredge, or fill activities conducted in "waters of the state"
whose landward extent is defined by the dominance of listed plant species. In all instances, water
470. 33 C.F.R. 320.2(b) (July, 1988).
471. Id. 320.4.
472. 40 C.F.R. part 230 (1988).
473. Fla. Stat. 403.91-403.938 (1989); Fla. Admin. Code ch. 17-312 (July, 1989).
quality standards must be maintained.474 Beyond that, permitting depends on the application of public
interest tests.47" Generally, a permit must be issued if it is "not contrary to the public interest".476
A project located within or which significantly degrades an Outstanding Florida Water must be "clearly
in the public interest". In making the relevant public interest determination, DER is required to consider
and balance a list of factors that include the project's effects on the general public health, safety and
welfare, the property of others, fish and wildlife and their habitats, navigation, the flow of water,
erosion, shoaling, fishing, recreation, marine productivity, and significant historical and archeological
resources. DER is also required to consider the current condition and relative value of affected areas
and whether the activity is of a temporary or permanent nature. Cumulative impacts must also be
considered. If the applicant is unable to otherwise meet the public interest test, DER must consider
proposals to mitigate the adverse effects of the project. Stricter permitting criteria may be adopted for
Outstanding Florida Waters, aquatic preserves, areas of critical state concern, and areas subject to
resource management plans adopted under chapter 380, Florida Statutes.
C. St. Johns River Water Management District
The St. Johns River Water Management District regulates many wetlands through its MSSW
permitting program, which is discussed in this volume. In addition, the Florida Department of
Environmental Regulation has delegated its dredge and fill permitting and enforcement authority to the
Water Management District.477 By operating agreement with DER, the Water Management District
applies DER dredge and fill regulatory criteria for all projects which require a stormwater or MSSW
permit, except for some exceptions including landfills, wastewater treatment plants, and wetland
treatment facilities.47 DER continues to regulate these exceptions, as well as dredge and fill activities
which do not require a stormwater or MSSW permit from the Water Management District479 If a
project requires a dredge and fill and MSSW or stormwater permit then the applicant must satisfy both
474. Fla. Stat. 403.918(1) (1989).
475. Id. 403.918(2).
476. Fla. Admin. Code 17-312.080(2) (July, 1989).
477. Fla. Admin. Code 17-101.040(12)(a)3 (Sept., 1989). The Water Management District's dredge
and fill authority became effective on October 1, 1988. Id.
478. Interoffice memorandum from Glenn Lowe, Chief Environmental Specialist, Department of
Resource Management, to Environmental Specialist Staff, Department of Resource Management, St. Johns
River Water Management District (August 23, 1989); Telephone interview with Glenn Lowe, Chief
Environmental Specialist, Department of Resource Management, St. Johns River Water Management District
Water Management District and DER regulatory criteria." Initial assessments by DER indicate that
the Water Management District's dredge and fill program has not yet attained the quality of regulation
which existed prior to the delegation of authority.