Title: Basis of Review for Surface Water Management Permit Applications Within the South Florida Water Management Disctrict
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00000632/00001
 Material Information
Title: Basis of Review for Surface Water Management Permit Applications Within the South Florida Water Management Disctrict
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Basis of Review for Surface Water Management Permit Applications Within the South Florida Water Management Disctrict, Appendix 7: Isolated Wetlands
General Note: Box 7, Folder 1 ( Vail Conference 1987 - 1987 ), Item 25
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00000632
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text

1.0 Introduction
An objective of the District expressed by the legislative policy of Section
373.016(2), Florida Statutes, is to manage and protect water related resources of the
south Florida region, including isolated wetlands and their associated fish and
wildlife functions and values. The loss of single isolated wetlands may cause
localized adverse impacts to fish and wildlife and their habitats. Cumulative
impacts from the loss of many such wetlands could cause significant adverse impacts
on a broader basis to water quality, hydrologic function and fish and wildlife
habitat. The protection of wetland functions is necessary for the protection of
wetland associated fish and wildlife.
Section 373.414, Florida Statutes (1986), directs water management districts
to establish specific permitting criteria for review of fish and wildlife and their
habitats, protection of threatened and endangered species, and consideration of
cumulative and off-site impacts in isolated wetlands. This Appendix to the Basis of
Review for Surface Water Management Permit Applications addresses isolated
wetlands and the requirement of Section 373.414, Florida Statutes (1986). It applies
to all proposed systems for projects with isolated wetlands.
Isolated wetlands vary in type and function, so the permit application for a
S project which contains them shall include site specific information. The applicant
must provide reasonable assurance that the proposed system, including protection
or mitigation/compensation plans, complies with the District's isolated wetland
objectives. The applicant may provide such reasonable assurance in many cases by
meeting the specific design criteria in Section 5.1 below. Other project designs will
be considered pursuant to Section 5.2 below. Because of the uncertain ability of
current mitigation technology to restore or create the various functions and values
of isolated wetlands, protection and incorporation of existing isolated wetlands in
surface water management systems are preferred alternatives to destruction and
mitigation or compensation.
2.0 Glossary
2.1 Wetland--Areas that are inundated by surface or ground water with a
frequency sufficient to support, and under normal circumstances do or would
support, a prevalence of vegetative or aquatic life that require saturated or
seasonally saturated soil conditions for growth and reproduction. Wetlands
generally include swamps, marshes, bogs, and similar areas such as sloughs,
potholes, wet meadows, river overflows, mud flats and natural ponds. [Ref:
Executive Order 11990, 42 Fed. Reg. 26961 (1977)].
2.2 Isolated wetland--Any wetland not under jurisdiction of the Department of
Environmental Regulation (DER) for the purposes of regulation of dredging and
filling, and is separated from other wetlands, DER jurisdictional or not, by an upland
area which remains above an average wet season water level and is hydrologically
Separate. Multiple individual wetlands not thus separated are presumed to be a
single isolated wetland system.


2.3 Disturbed wetland-- Wetlands as defined in Section 2.1 altered by drainage,
dredge and fill, or invasive exotic plants so that hydrologic and biological functions
are significantly diminished. A wetland or portion of a wetland with a prevalence
of exotic plant species, such as Melaleuca or Schinus, shall be presumed disturbed.
Wetlands impacted by drainage, dredge and fill, or other activities conducted in
violation of the law or the conditions of a District permit shall not be considered
disturbed for the purposes of this rule.
2.4 Protected wetland--Wetland areas set aside through project design,
conservation or protection easement, or other approved method, and managed to
ensure continued biological and hydrologic function indicative of that wetland's
particular type.
2.5 Marsh--Wetlands dominated by emergent, herbaceous species.
2.6 Swamp--Wetlands dominated by woody vegetation.
2.7 Buffer zone--An area adjacent to the isolated wetland which protects
wetland function and minimizes adverse impacts of upland development on
wetland function.
2.8 Mitigation--Remedying wetland impacts by restoring or enhancing affected
habitat, or by creating similar habitat of equal or greater function. For purposes of
this rule, there is a presumption that similar habitat equals similar function.
2.9 Compensation--Replacement of isolated wetlands with a mixture of
wetland/upland habitat, unique upland habitat, or other offsetting processes which
enhance fish and wildlife habitat or otherwise provide overall benefits to the
natural system.
2.10 Maintenance--As used in this Appendix, maintenance means regular upkeep
of isolated wetlands to assure goals of an approved mitigation or compensation
plan will be met. This may include a guaranteed survival rate of planted species
and/or recruited desirous wetland species, and the removal of undesirable invasion
species, such as Melaleuca and Schinus.
3.0 Size threshold
Isolated wetlands less than 0.5 acres in size will not be reviewed for impacts
to fish and wildlife and their habitats, and mitigation or compensation shall not be
required for their loss, unless:
a. Threatened or endangered species are present (See Section 5.0), or
b. Cumulative impacts from the loss of such wetlands reaches an excessive
level based on either:
1) the presumption that the loss of such wetlands exceeding 3 acres for
projects 100 acres or smaller in size or 2% of the project area for projects over 100
acres in size produces excessive cumulative impacts, or
2) an evaluation of the post development character of the site, based on
significance of the habitat type, abundance of similar habitat proposed for


Protection within the project area, proximity to similar publicly owned and
protected fish and wildlife habitat, and other relevant factors.
4.0 Review procedures for projects which propose to impact isolated wetlands.
4.1 This Appendix will apply to all pending and new applications which are not
complete, as evidenced by a letter of completeness, on the effective date of this
Appendix. The provisions of Rule 40E-4.301(3) (Conditions for Issuance) apply to the
evaluation of applications for construction and operation permits for projects which
have previously approved conceptual approvals or construction and operation
4.2 Applications which propose to impact isolated wetlands may be approved in
concept with a Letter of Conceptual Approval. Detailed proposals shall be
submitted as part of the application for conceptual approval or as part of the
application for a Surface Water Management Construction and Operation Permit
and shall include
a. A description of the type and function of the wetland being impacted,
which shall include area, vegetative community and hydrologic regime.
b. A list of all plant and animal species listed as endangered, threatened
or of special concern pursuant to Section 581.185(a)&(b), Florida Statutes, and Rules
39-27.03 and 39-27.04, Florida Administrative Code, which are incorporated by
reference and made a part of this rule which utilize, or can reasonably be expected
Sto utilize, the area and an evaluation of the probable significance of the area to the
listed species.
c. A list stating 1) reasons for proposing to impact isolated wetlands, 2)
possible alternatives to wetland impacts considered, 3) reasons the wetlands cannot
be incorporated into the project surface water management system or project
d. Additional information as required to evaluate site specific conditions
or unique project designs.
4.3 Applications which propose mitigation shall include a description of the
wetland community to be created, restored or enhanced as a result of the
mitigation activity, and shall specifically include descriptions of:
a. area and location
b. species to be planted
c. plant density
d. source of plants or mulch if not supplied by a commercial plant nursery
e. hydrologic regime.
f. monitoring and maintenance plan

g. itemized estimate of the cost of implementing mitigation based on
relevant market conditions.

4.4 Applications which propose compensation shall include relevant information
needed to demonstrate the proposal provides the required reasonable assurances,
and may include, but is not limited to, the information listed in Section 4.3 above.
4.5 The operation phase of a project which impacts isolated wetlands shall not
become effective until the requirement of Rule 40E-4.381(2)(d), Florida
Administrative Code, (Limiting Conditions) has been met, specifically including the
construction or provision of required mitigation/compensation.
5.0 Review criteria Because isolated wetlands vary in type and function, each
permit application for a project that includes isolated wetlands will be reviewed
individually. The applicant must provide reasonable assurance that the proposed
activity, including protection or mitigation/compensation plans, complies with the
District objective, expressed in the legislative policies of Sections 373.016(2) and
373.414, Florida Statutes, to maintain the functions of isolated wetlands, including
fish and wildlife and their habitat, and to protect endangered and threatened
a. An applicant may provide such reasonable assurances by: 1) meeting
the criteria and quantitative values as provided in Section 5.1 below, or 2) proposing
unique project design features appropriate for the particular site and
environmental system affected and providing additional information necessary to
evaluate the proposal, as provided in Section 5.2 below.
b. In addition, all applicants must provide reasonable assurance that the
proposed project meets the following endangered and threatened species criteria:
1) Wetland habitat, regardless of size or land use, that is utilized by
species of plants or animals designated as endangered or threatened pursuant to
the authority cited in Section 4.2(b) shall be protected as described in Section 2.4
2) Wetland habitat that can reasonably be expected to be utilized by
endangered or threatened species shall be maintained. Methods of maintaining
wetland habitat include, but are not limited to:

(a) wetland protection
(b) type-for-type mitigation prior to wetland impacts
(c) type-for-type mitigation after the wetland impacts occur,
provided the wetland habitat type is not a limiting factor within the range of the
species during the time period needed to complete the mitigation.
3) Staff may consult with the Florida Game & Fresh Water Fish
Commission or other knowledgeable experts when reviewing the habitat of
threatened and endangered species and considering proposals for the protection of
endangered or threatened species.

"* .1I

5.1 Quantitative design criteria

5.1.1 The natural functions of isolated wetlands over 0.5 acres in size,
including water quality, water quantity, and fish and wildlife habitat, shall be

(a) Mitigation or compensation for elimination of wetlands between 0.5
and 5.0 acres in size, pursuant to Section 5.1.2 below, shall be presumed to maintain
wetland functions.

(b) Because of the experimental nature of mitigation and the net wetland
loss inherent in compensation, there is no presumption that the function of
wetlands over 5.0 acres in size can be maintained by measures other than protection
as defined in Section 2.4 above. Protection of isolated wetlands over 5.0 acres in
size shall be the preferred method of providing the required reasonable assurance.

(c) In no case shall the total wetlands impacted by a project exceed an
amount which is inconsistent with the District's wetland objectives as expressed
above in Sections 1.0 and 5.0. Cumulative impacts will be evaluated by the same
criteria described in Section 3.0(b)(2) above.

(d) Protection of wetlands or incorporation of wetlands into surface water
management systems is favored over wetland destruction and mitigation or
compensation. Wetland destruction and mitigation or compensation shall be
considered only when there are no reasonable development alternatives for the
particular site.
5.1.2 Wetland mitigation shall be implemented at ratios of wetlands
created, restored or enhanced to wetlands destroyed which provide reasonable
assurance that the mitigation will be successful. The following ratios shall be
presumed to provide such reasonable assurance for type-for-type mitigation:
a. Forested swamp, non-cypress dominated-----2.5:1
b. Forested swamp, cypress dominated-----------2.0:1
c. Freshwater marshes--------------------------- 1.5:1
Ratios for mitigation with unlike habitat, including expanded littoral zones, or
compensation shall be determined on a case-by-case basis.
5.1.3 Disturbed wetlands may be developed and their loss compensated for
a. Mitigation at ratios less than those required in 5.1.2, based on the
degree of disturbance and the remaining functional qualities. Mitigation through
restoration of other disturbed wetlands is preferred over wetland creation.
b. Preservation of unique uplands or inclusion of developable uplands
within an upland/wetland protected system.
5.1.4 Isolated or created wetlands may be part of a surface water
management system provided the wetland's functional qualities are maintained or
improved and no adverse water quantity impacts are caused.


5.1.5 Wetlands which extend off-site may be included in surface water
management systems, provided the project is consistent with other requirements of
the Basis of Review for Surface Water Management Permit Applications and legal
drainage rights and permit requirements are satisfied. The cooperative use of
isolated wetlands is encouraged.
5.1.6 Water tables:
a. Water tables shall not be altered such that on-site and off-site
wetlands are adversely affected.
b. Minimum separation distance between protected wetlands and
canal/lake excavations shall be 200 feet, unless soil or other data shows that water
table elevations in the wetlands would not be adversely affected.
c. Control elevations shall be established which maintain or improve
pre-development hydroperiods in protected wetlands.
d. Control elevations shall be established which provide adequate
hydroperiods to promote successful creation, restoration or enhancement of
wetlands in mitigation areas.
e. Other requirements of the Basis of Review for Surface Water
Management Permit Applications shall be met.
5.1.7 Buffer zones:
a. Buffer zones shall be provided around all isolated wetlands that are to
be protected or incorporated into a surface water management system. Actual
delineation of the buffer zone may vary according to site specific conditions,
provided it extends at least fifteen feet landward from the edge of the wetland in
all places and averages twenty-five feet from the landward edge of the wetland.
b. Prior to issuance of Construction and Operation permits, buffer zones
shall be field verified and delineated in the field.
c. Buffer zones may consist of natural features suitable for the particular
site, such as undisturbed uplands, open water bodies, wildlife corridors or other
appropriate natural features.
d. Upland areas or wildlife corridors adjacent to buffer zones may be
incorporated as compensation areas, provided they are in excess of the minimum
buffer zone and meet all other requirements for compensation areas.
5.2 Qualitative criteria Instead of meeting the quantitative criteria listed
above, an applicant may propose a unique project design which provides
reasonable assurance that the project complies with the District's objective to
manage and protect isolated wetlands and their associated fish and wildlife
functions and values as expressed above in Sections 1.0 and 5.0. The applicant has
the burden of demonstrating such reasonable assurance. Final approval of unique
project design rests with the District's Governing Board.


5.2.1 The applicant should provide the information necessary to evaluate
the particular proposal. The District will consider applicable numerical and
productivity models, including the U. S. Fish and Wildlife Service Habitat Evaluation
Procedure (HEP), and information regarding the pre-and-post-development
condition of the site and its relation to the surrounding ecosystem.
5.2.2 Innovative proposals for mitigation or compensation, including off-site
proposals and replacement with unlike habitat, will be evaluated individually based
on such factors as regional significance of the wetland type to be impacted,
expected system-wide benefits of the proposal, and ability to comparatively replace
lost wetland values.
6.0 Project guarantee criteria
6.1 Wetland monitoring and maintenance programs will be required for
proposals involving mitigation and/or compensation.
6.2 Monitoring and maintenance requirements will normally be established
based on wetland type, size, complexity and construction schedule and will typically
range from 1-5 years.
6.3 Mitigation/compensation shall be completed in each phase of construction to
mitigate the wetlands lost by that phase of construction as defined by the areas
included within a given construction permit.
6.4 The permitted must provide reasonable assurance of financial and
institutional ability to carry out the mitigation/compensation, monitoring, and
maintenance requirements. Reasonable assurance may be provided by one of the
a. A surety bond in an amount equal to 125% of the cost estimate of the
proposed mitigation/compensation, monitoring, and maintenance plan.
b. Performance guarantee to a local government as a part of a project
construction guarantee, provided the guarantee adequately covers the project's
isolated wetland requirements.
c. Cash bond or letter of credit from a financial institution.
d. Escrow agreements which could include money, land and
e. Performance prior to wetland loss.
The portion of the financial guarantee proportionate to each phase of
mitigation/compensation may be released after the requirements of that phase are
completed, inspected and approved in writing by the District, provided a sufficient
portion of the financial guarantee remains to ensure that monitoring and
maintenance may be carried out for the duration of the permit requirements.



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