Title: Memorandum: Recommended Public Hearing Draft- Isolated Wetlands Rule Amendments
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Permanent Link: http://ufdc.ufl.edu/WL00000729/00001
 Material Information
Title: Memorandum: Recommended Public Hearing Draft- Isolated Wetlands Rule Amendments
Physical Description: Book
Language: English
Publisher: Suwannee River Management District
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Memorandum: Recommended Public Hearing Draft- Isolated Wetlands Rule Amendments, January 2, 1987
General Note: Box 7, Folder 2 ( Vail Conference 1987 - 1987 ), Item 5
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00000729
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






MEMORANDUM

TO: Governing Board
Interested Parties

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
Rule Amendments


RECOMMENDATION:


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.


BACKGROUND:


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

amendments.

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

wetland system.

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.













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