TO: Governing Board
THROUGH: Donald 0. Morgan, Executive Director
Tom Brown, Legal Counsel
FROM: a avid W. Fisk, Assistant Executive Director
DATE January 2, 1987
RE: Recommended Public Hearing Draft Isolated Wetlands
The district should notice in the Florida Administrative Weekly
(FAW) the attached Recommended Public Hearing / Notice Draft of
proposed rule amendments dated January 2, 1987, or the attached
Alternate Public Hearing / Notice Draft of the same date.
The FAW notice should specify that public hearings, if
requested, will be held coincident with the February and March
board meetings and that adoption will occur following the public
hearing at the March board meeting. Staff recommend that the
rules have an effective date of October 1, 1987.
It should be noted that any rule noticed in the FAW for
adoption can be amended or changed as a result of comments
received at public hearings.
Attached are two versions of draft rule amendments intended to
address the requirements of s.373.414, Florida Statutes regarding
district reviews of fish and wildlife habitat impacts in isolated
wetlands. The drafts are labeled Recommended Public Hearing
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Draft / Notice Draft or Alternate Public Hearing / Notice Draft
respectively. The differences in the two drafts are described
later in this memorandum.
Regardless of which draft is noticed, staff recommends an
effective date of proposed amendments no sooner than October 1,
1987. This is to allow time to refine the various criteria in
the amendments; to allow staff to develop needed interagency
agreements with Department of Environmental Regulation,
Department of Natural Resources and the Florida Game and Fresh
Water Fish Commission; allow the district to prepare a permitting
manual for development with wetland impacts; and to provide
adequate time to consider future amendments should the 1987
Legislature provide clarification of s.373.414, F.S.
The district will comply with the specific requirements of
s.373.414, F.S. by adopting rules at the March board meeting (in
advance of the March 31, 1987 deadline). In the interim period
between March 31, 1987 and October 1, 1987, the statutory
thresholds adopted in s.373.414, F.S. are repealed effective
March 31, 1987 and the existing district rules regarding wetland
impacts would apply (essentially a "zero threshold" and case-by-
case action on mitigation by the board).
Due to several conflicts with board member and staff schedules
and the general lack of interest or schedule conflicts with
members of the general public, the public workshop previously
scheduled for 1:00 pm, January, 7, 1987, has been canceled.
Mr. Brown is still planning to discuss the legal aspects of
wetland regulation and the status of water management district
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rulemaking at the January 15, 1987 board meeting before the
agenda item to consider recommended rule amendments.
The field trip scheduled for January 22, 1987 to Occidental and
Hamilton county and the Public Workshop scheduled for February 4,
1987 at 1:00 pm are still on schedule.
DISCUSSION OF DRAFT RULE AMENDMENTS
The recommended rule amendment language consists of four proposed
Proposed amendment 1 is intended to clarify the definitions of
wetlands in the district rule. The proposed amendment equates
"Contiguous wetland" with a wetland that falls under DER
jurisdiction and "Isolated wetland" with all other wetlands that
are outside the DER jurisdiction.
Proposed amendment 2 conforms the maximum allowable amount of
wetland loss resulting from agricultural and forestry road
building to the thresholds established later in the rules.
Subsequent to the preparation of earlier drafts or the governing
board workshop held on December 18, 1986, staff has completed a
draft of the FY 85-86 accounting of wetland impacts required by
the 1984 Henderson Wetlands Act. The draft inventory shows that
the agricultural and forestry permitting program is working very
well and minimal wetland losses are being recorded (within the
district jurisdiction). In summary, the district issued permits
to 139 agricultural and forestry projects in FY 85-86, of which
10 had significant wetland impacts. A total of 126 acres of
wetlands were impacted by those projects with 24 acres of the
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impact being considered "loss". The district required 58 acres
of restoration through mitigation to offset the losses.
Approximately 1,035 acres of wetlands within those projects were
either preserved or not impacted. The 139 projects accounted for
over 3860 acres of total project area. Staff feels that given
our actual experience with agricultural and forestry permitting,
restriction of the general permit beyond the language in the
proposed amendment is not warranted at this time.
Proposed amendment 3 clarifies permit application requirements
in two areas. Applicants will be responsible for providing plan
information and tabulation of acreages of wetlands within a
project area or wetlands which boarder a project area. Also,
applicants will be required to have at least one of the plans or
surveys of the project registered to either Florida State Plane
Coordinates or a section corner. These requirements are
recommended to allow timely response to permit applicants
regarding the need for implementing wetland mitigation
requirements and to allow the accounting for cumulative impact
required by s.373.414, F.S.
Proposed amendment 4 establishes thresholds, how the thresholds
are to be used, general criteria for determining wetland values,
general criteria for determining if impacts are significant and
criteria for mitigation of adverse impact.
The concept of the recommended draft is that there be a size
below which fish and wildlife values are presumed to be minimal
(recommended as 0.5 acres and referred to as the "Minimum
Threshold" in the draft). Likewise, there is a threshold where
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the district can assume that values are high and impacts will be
significant (recommended as 5.0 acres and referred to as the
"Upper Threshold" in the draft). Wetlands that fall between the
minimum and upper thresholds (larger than 0.5 acres but smaller
than 5.0 acres) would be in an "Intermediate Threshold" and a
case-by-case determination of both the value of a wetland and
whether the proposed impacts are significant would be made by the
district. For wetlands above the upper threshold, there is a
presumption of value and that impacts will be significant. The
burden is on an applicant to show otherwise. This determination
could be made in consultation with other state or federal agency
personnel or other knowledgeable individuals. The determination
would be made as part of a conceptual approval permit application
(within 90 days) or during the initial review of a permit
application (within 30 days) for construction or operation of a
surfacewater management system. Wetlands smaller than the
minimum threshold would not be required to include mitigation for
fish, wildlife, and habitat values.
The draft includes general criteria for determining both the
value of an intermediate wetland and whether impacts to wetlands
are significant. Mitigation criteria are also included. There
are, of course, default threshold conditions covering wetlands
used by threatened or endangered species, wetlands in an area of
critical state concern, or wetlands that are part of a larger
The recommended public hearing draft is based in large part on
a wetlands study for Seminole County published in January 1983,
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by M. T. Brown, E. M. Starnes, and others. Excerpts from that
study are attached for reference. If this concept is acceptable
to the board, staff would propose the development of a permitting
manual to refine the rule concepts prior to the recommended
October 1987 implementation date.
Alternate Public Hearing / Notice Draft January 2, 1987.
The alternate public hearing draft is in many respects like the
recommended draft. However, the alternate draft is an attempt to
track the legislative thresholds set forth in s.373.414, F.S.
That is, the section dealing with "thresholds" sets a single
threshold at 5.0 acres and establishes a presumption of both
value and significant impact for wetlands larger than the
threshold. This draft has been prepared as an alternate;
however, based on the information presented regarding the
apparent high value of certain wetlands smaller than 5.0 acres,
staff considers it likely that establishing a 5.0-acre threshold
would result in a rule challenge (based on the requirements of
s.373.414, F.S. to set thresholds based on biological and
hydrological evidence that values are minimal).
The default conditions regarding threatened and endangered
species and areas of critical state concern are also included.
RECEIVED JAN 5980?