Comparisons Between WID & DER Wetland Jurisdiction
Excerpted from: "Report to the Legislature on Wetlands Permitting
Projects October 1, 1986 September 30, 1987
The regulatory jurisdiction of the Department of Environmental Regulation under
Chapter 403 F.S., over wetlands differs from that of the water management
districts under Chapter 373, F.S. All waters in the state are subject to
regulation by the WMDs. WMDs authority is constrained neither by ownership of a
waterbody by one person, as is DER under Section 403.031(12), F.S., nor by the
limitations to jurisdiction over certain waters of the state found in Section 17-
12.030(2), F.A.C. The important DER regulatory restriction of "landward extent
of waters of the state" found in Sections 403.817 and 403.8171, F.S., and F.A.C.
Rules 17-4.02(17) and 17-4.022 is not found in Chapter 373, F.S., and
consequently is not a mandatory part of the surface water management permitting
programs. In addition, unlike DER, the WMDs have jurisdiction over isolated
wetlands. These and other jurisdictional differences between the agencies will
result in instances where review of the same proposed development will result in
differing wetland acreage being recorded by the agencies.
Department of Environmental Reaulation Any activity, unless otherwise exempted
which involves construction, removal of material, or placement of material in
waters of the state to their landward extent requires a dredge and fill permit.
To obtain a permit, a project must meet the permitting criteria in Section
403.918-919, F.S., which pertain to water quality, fish and wildlife habitat,
marine productivity, navigation, and other environmental considerations.
Wetlands under DER dredge and fill jurisdiction are specifically and narrowly
defined. Section 403.031(12), F.S., states that "Waters include but are not
limited to rivers, lakes, streams, springs, impoundments and all other waters or
bodies of water including fresh, brackish, saline, tidal, surface or underground
waters." Section 403.817, F.S., defines landward extent of waters of the state
for regulatory purposes by the "species of plants or soils which are
characteristic of those areas subject to regular and periodic inundation by
waters of the state," and specifies Florida Administrative Code Rule 17-4.022 as
the means to delineate landward extent. The Warren Henderson Act of 1984 in turn
defines "wetlands" as "those areas within the jurisdiction of the department
pursuant to Subsection 403.817".
Water Management Districts The wetlands monitoring system which was established
by the five WMDs, in cooperation with DER, is designed to identify the wetlands
impacts of all projects permitted under Part IV, Management and Storage of
Surface Waters (MSSW), of Chapter 373, F.S. Pursuant to this statute, the WMDs
are authorized to regulate the construction, alteration, maintenance, operation,
abandonment, and removal of dams, impoundments, reservoirs, works and appurtenant
works. Depending upon the nature of the proposed project, it must meet either
the statutory MSSW permitting standard that the project "will not be harmful to
the water resources of the district" or that the project "will not be
inconsistent with the overall objectives of the district" or both.
The scope of WMD regulatory jurisdiction in the MSSW program set forth in Chapter
373, F.S., is broad. The statutory definitions of the terms "dam,"
"impoundment," "reservoirs," "works," and "appurtenant works," reveal the wide
range of development activities which may be required to undergo MSSW permit
review. For example, Section 373.403(5) F.S., defines "work" to include
artificial structures and construction that connects to, draws water from, drains
water into, or is placed in or across the waters in the state. As defined in
Section 373.019, F.S., "waters in the state" over which the WMDs have
jurisdiction include any and all water on or beneath the surface of the ground or
in the atmosphere, including natural or artificial watercourses, lakes, ponds, or
diffused surface water and water percolating, standing, or flowing beneath the
surface of the ground, as well as all coastal waters within the jurisdiction of
the state. Wetlands, whether they are isolated or not, are one type of "waters
in the state" in which the above activities are subject to regulation.
"Wetlands" are defined in the WMD monitoring system as areas "inundated or
saturated by surface or ground water with a frequency and duration sufficient to
support, and that under normal circumstances do support, a prevalence of
vegetation typically adapted for life in saturated soil conditions." A
monitoring system using this definition, rather than the definition given in the
Henderson Act, was chosen because such.a system more accurately reflects the
impact of MSSW permitting programs on those areas which the WMDs, operating under
Chapter 373, F.S., consider to be wetlands.