Title: Memorandum: Wetlands Rulemaking Update
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Permanent Link: http://ufdc.ufl.edu/WL00000634/00001
 Material Information
Title: Memorandum: Wetlands Rulemaking Update
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Memorandum: Wetlands Rulemaking Update, December 12, 1986
General Note: Box 7, Folder 1 ( Vail Conference 1987 - 1987 ), Item 27
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00000634
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

I I,



MEMORANDUM "I

TO: Governing Board
Interested Parties

THROUGH: Donald 0. Morgan, Executive Director
Tom Brown, Legal Counsel

FROM: David W. Fisk, Assistant Executive Director

DATE: Decem .. 12, 1986

RE: Wetlands Rulemaking Update


Attached to this update are several items:

Revised rule adoption/workshop/hearing schedule;
SFWMD rule and Florida Administrative Weekly notice;
Copy of challenge to SFWMD proposed rules;
SWFWMD proposed thresholds and criteria; and
Letter from Colonel Robert M. Brantly, Florida Game and
Fresh Water Fish Commission, 12-10-86.

Please note that the revised schedule proposes governing board
workshops coincident with the December and January board
meetings, other informal public workshops (staff workshops) prior
to the January and February board meetings, and formal public
hearings coincident with the February and March board meetings.
Adoption of any rule amendments is proposed for March 19, 1987
coincident with the final public hearing and March board meeting
(prior to the March 31, 1987 deadline called for in the statute).
Chapter 120, Florida Statutes, provides that rules are adopted
when filed with the Secretary of State; and final board action on
March 19, 1987 allows adequate time to file before the March 31,
1987 deadline.

Also on the proposed schedule is a field trip (January 22, 1987--
the Thursday following the January board meeting) to see in the
field examples of wetland impact mitigation and compensation.
The field trip was offered by Occidental Chemical Company, and in
staff's opinion, it would be worthwhile for the board and staff
to visit reclamation projects and see firsthand some of the
mitigation and compensation techniques used in Florida. There is
also a second reason and equally important reason for the field
trip. The district is considering purchase of several tracts of
land in the general vicinity of Occidental (in Hamilton and
Columbia counties), and Mr, Curtis feels this would also be a
good opportunity to visit one or more of those tracts. The field
trip would of course be noticed and open to the public as are all
meetings of the hoard.


3./7











Page 2


The workshop scheduled for December 18, 1986 is intended to be a
forum to explore the function or value of wetlands. Staff have
invited Dr. Mark Brown with the Center for Wetlands at the
University of Florida and Mr. Paul Moler with the Florida Game
and Fresh Water Fish Commission's Wildlife Research Laboratory at
the University of Florida to make brief presentations (15-20
minutes each) to the board relative to the values associated with
wetlands and in particular isolated wetlands. Following the
presentations, there should be approximately one hour for a
general dialog/question period. If time permits, informal public
comment might also be appropriate. Both Dr. Brown and Mr. Moler
are very familiar with the current efforts to refine wetlands
regulation in Florida and the efforts of the water management
districts.

For the workshop scheduled on January 15,1987, staff suggest that
the time be allotted to a discussion of the legal aspect-s of
wetlands regulation--in particular, the statutory/constitutional
provisions regarding infringement on private property rights, the
ability or how the district might implement rule criteria
pertaining to protection of fish and wildlife values, the
enforceability of rule criteria, and the status of the SFWMD rule
challenge. Mr. Brown will lead the workshop.

The informal public workshops scheduled for January 7, and
February 4, 1987 would be for the refinement of draft rule
amendment language and initial comment on the hearing draft
respectively. The informal public workshops are intended to he
opportunities for staff to meet with interested parties to
discuss the rule amendment drafts, and board member attendance is
not necessary. However, board member participation at the
informal public workshops would certainly be welcome.

In order to meet the rule adoption schedule, staff will prepare a
hearing draft of proposed rule amendments based on comments
received at the governing board workshops, the informal public
workshop scheduled for January 7,1987, and other input. The
hearing draft will be noticed along with two formal public
hearings in the Florida Administrative Weekly as per the attached
schedule (following review by Mr. Brown and Mr. Morgan). The
hearing draft is of course subject to change prior to adoption or
withdrawal based on comment at the public hearings or other
input.

As a final note, staff have attended or reviewed minutes of
workshops held by the other water management districts on the
subject of wetlands permitting criteria and offer the following
observation of what is seen as a consistent theme. The
"threshold setting" part of the current activities seems to he
getting all of the attention, particularly since the legislation
called for the thresholds to be based on hydrological and










Page 3


biological evidence that values are minimal. The dilemma as
explained in a previous memorandum, is that for certain (some
would argue all) isolated wetlands that are in fact very small
the fish and wildlife value or function is apparently very high.
To date, the concept of a threshold has been equated to an
exemption--that is, below a certain size fish and wildlife values
would not be considered, and that may be what the legislature
intended. The dilemma is, however, that if the threshold
represents an exemption, and for exempt wetlands one assumes
destruction without regard to value or function, it is
understandable that some would insist the threshold protect the
valuable small wetlands (set the threshold small enough to insure
that valuable small wetlands are protected). It is the staff's
opinion that this train of thought (threshold exemption -
destruction), combined with substantial evidence that at least
some small wetlands have significant fish and wildlife values,
has resulted in the call for low (0-1 acre) thresholds. It is
also staff's opinion that based on the evidence being presented
at the hearings and workshops at least some of the districts will
adopt small thresholds to insure protection of those wetlands.
The low thresholds will be adopted as the only alternative to
setting an exemption threshold that might result in the
destruction of a truly valuable wetland in spite of the fact that
several board members have commented that their first preference
would be to have a rule that allows the district to review all
projects, regardless of the size of wetlands involved, and make
some reasonable evaluation as to the value of wetlands and the
level of protection or mitigation required.

Well, what if the threshold did not represent an exemption? What
if the threshold instead represented a point at which the burden
of determining the significance of fish and wildlife values of
isolated wetlands shifted from the applicant (above the threshold
the district presumes value exists unless the applicant
demonstrates otherwise--mitigation or protection required) to the
district? All project applications with wetland impacts are
reviewed for fish and wildlife impact, but for the "below
threshold" wetlands, the burden is on the district to determine
if the impact is significant and what level of mitigation if any
should be required. If rules were developed along these lines,
several benefits might surface:

(1) At a minimum, all cumulative adverse impacts to
wetlands could be tracked;

(2) All projects with wetland impacts would receive at
least some level of review, but the focus of staff
effort and other resources could hopefully he centered
on "valuable wetlands";











Page 4


(3) Criteria could be developed not only to measure success
of mitigation efforts, but what impacts are at a level
of significance as to required mitigation or
compensation in the first place (an exercise that is
not getting much attention right now);

(4) Criteria might also be developed that reflected the
severity of impacts with respect to the different
adjacent land uses or the possible benefits of certain
adjacent land uses;

(5) Decisions regarding fish and wildlife values of
wetlands could be made more deliberately and in
relationship to the other values of wetland and upland
ecosystems; and

(6) A thorough review of both the technical and the legal
implications on conditioning surfacewater and
stormwater permits on fish and wildlife impacts could
occur on a case-by-case basis (limited "cook book"
decision making by staff).

This concept has appeal to staff for the reasons mentioned above,
and, in addition, it might allow a reasonable level of
implementation and enforcement with limited staff resources. It
might be particularly well suited to SRWMD because of the
relatively small number of permit applications the district
receives with proposed adverse impacts to wetlands (more
accurately, the district reviews a relatively small number of
projects with adverse wetlands impacts over which the district
has authority/jurisdiction). Such a scenario might also have
applicability to all of the districts as the "threshold" could
vary from district to district depending on the nature of the
"problem" or the ability to implement in each district, but there
would be some assurance that valuable wetland ecosystems are
protected.

Any comments or input would be appreciated.


DWF/ah




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