ENVIRONMENTAL RESOURCE REGULATORY PROGRAM
By John.a, Fumero
House Bill 1751 ("The legislation") consolidates all permits for activities which currently
require wetland resource, surface water management, and alteration of mangrove permits
into a single new regulatory program referred to as an "environmental resource permit"
(ERP) program Statutily,. ti.,araor cmlif -by. transferring the Warre Henderson
Wetlands Protection Act (now part of Chapter 403) into Part IV of Chpter 373, Fla. Stat.'
The primary legislative policy and intent of the legislation is threefold: to streamline
wetlands permitting; establish a comprehensive, statewide program administered by both
regional and state agencies; and enhance environmental protection through a natural
Activity-Based Snlit of
With the consolidation of wetlands permitting in Part IV of Chapter 373, Fla. Stat., the
. question becomes which agency will exercise this authority. The legislation addresses this
question by ratifying the division of responsibilities currently established in the operating
agreement between DER and the WMDs.' Permit by permit oversight by DER which is
required by the existing operating agreement is rescinded. The legislature authorized the
WMDs and DER to modify the division of responsibilities "to provide for greater efficiency
and avoid duplication." Necessary modifications to the operating agreement will be
addressed within the next year.
'The legislation repeals sections of the Warren Henderson Wetlands Act which
substantive provisions have been incorporated into Chapter 373. Repeal of those sections
dealing with "landward extent of waters of the State" is provided for once the wetland
delineation rule is ratified by the 1994 legislature.
'Under the operating agreement, DER generally handles permitting of solid waste,
hazardous waste, wastewater treatment, mining, and power plant facilities. WMDs conduct
permitting for all other projects, including residential and commercial development.
Review of Permit Decisions by the Governor and Cabinet
sitting as the Land and Water Adiudicatory Commission (AWAC)
As it stands now, LAWAC has exclusive authority to review any order3 (permit) or rule of
a water management district. DER permit decisions, however, are not subject to this type
of review. LAWAC decisions can have significant, far-reaching impacts on regulatory policy.
Last year in Sierra Club V. SJRWMD, LAWAC mandated that WMDs initiate rulemaldng
to implement a "secondary and cumulative impact" analysis over surface water management
Under the new legislation, LAWAC jurisdiction will include permit decisions by DER and
local governments"' pursuant '- tot- envirnntal resource-regulatory program.' In
relevant part, the following amendments to the LAWAC appeal process are provided by the
To appeal a permit decision to LAWAC, one must have been a "party to the
proceeding below." This is defined as:
any affected person who submitted oral or written
testimony, sworn or unsworn, of a substantive
nature which stated with particularity objections to
or support for the rule or order that are cognzable
within the scope of the provisions and purposes of
this chapter, or any person who participated as a
party in a proceeding instituted pursuant to
Quite simply, this means you cannot appeal a permit decision, unless you have
made and documented efforts to address concerns prior to issuance of the
permit. Such a limitation is viewed as a narrowing of standing. However, this
provision does not prohibit DER from appealing a WMD decision to
While the existing statewide provisions require an order on appeal to be of
"statewide or regional significance," the new legislation provides that four
'For purposes of LAWAC review, the terms "permit" and "order" are used
4Only applies to local governments delegated authority to issue ERP's.
sThis subsection on LAWAC procedures becomes effective upon legislative ratification
of the wetland delineation methodology.
members of the LAWAC must affirmatively detennine that the activity or
project authorized by the order, would "substantially affect natural resources
of statewide or regional significance." Review may also be accepted if four
members of LAWAC determine that the order "raises issues of policy,
statutory interpretation, or rule interpretation that have regional or statewide
significance from the standpoint of agency precedent."
If the order does not substantially affect resources of statewide or regional
significance, but does affect policy, rule, or statutory interpretaton as
described above, LAWAC may direct WMDs to initiate rulemaking without
modifying the specific order. This is precisely what occurred in the Sierra
Club case where LAWAC required the WMDs to initiate rulemaling, while
allowing the underlying -permit to issue to FDOT.
Project size thresholds are designated below which a project is presumed to
not affect resources of statewide or regional significance.
Wetland Definition and Delineation Methodology
The legislation provides a statutory definition of wetlands to be used statewide by DER,
WMDs and local governments.
"wetlands" means those areas that are inundated or saturated by surface water
or ground water at frequency and a duration sufficient to support, pnd under
normal circumstances do support, a prevalence of vegetation typically adapted
for I(fe in saturated soils. Soils present in wetlands generally ae lassified as
hydric or alluvial, or possess characteristics that are associated with reducing
soil conditions. The prevalent vegetation in wetlands generally consists of
facultative or obligate hydrophytic macrophytes that are typically adapted to
areas having soil conditions described above. These species,:. due to
morphological, physiological, or reproductive adaptions, have the ability to
grow, reproduce or persist in aquatic environments or anaerobic soil conditions.
Florida wetlands generally include swamps, marshes, bayheads, bogs, cypress
domes and strands, sloughs, wetprairies, riverine swamps and marshes, hydric
seepage slopes, tidal marshes, mangrove swamps and other similar areas.
Florida wetlands generally do not include longleqf or slash pine flatwoods with
an understory dominated by saw palmetto.
This wetland definition is to be used for the sole purpose of rulemaking to develop a
wetland delineation methodology. By statute, the wetland delineation methodology rule is
to be adopted by January 1, 1994. After ratification of the methodology rule by the
legislature, this restriction on the use of the definition is removed.'
Wetland Mltigtion Bankinl
Perhaps one of the most heralded components of the legislation is the section on mitigation
banking. This section directs the WMDs and DER to 'participate in and encourage" the
establishment of private and public "regional mitigation areas' and mitigation banks. By
January 1, 1994, the WMDs and DER are to adopt rules concerning the establishment and
use of mitigation banking which must address:
Circumstances in which mitigation banking is appropriate or desirable;
Provisions -for-th&- establmernt of- mitigation banks by governmental,
nonprofit, or for-profit private entities with sufficient legal or equitable
interest in the property proposed for mitigation banking;
Procedures for the review of mitigation banking proposals in a timely manner
pursuant to Chapter 120;
A framework for determining the value of a mitigation bank, considering the
ecological value of the mitigation bank compared to the area where adverse
impacts to wetlands or surface waters are proposed. Mitigatoh banks found
to be successful prior to withdrawal of credit shall receive greater credit than
mitigation which has not yet achieved success;
Procedures for the administration of bank credits so that accounting
responsibilities are not unnecessarily duplicated between a water management
district and DER;
Requirements to ensure the financial responsibility of non-governmental
entities proposing to develop mitigation banks;
Measures required to ensure the long term management and protection of
Criteria for the withdrawal of mitigation credits by projects within or outside
the regional watershed where the bank is located;
Criteria governing the contribution of funds or land to an approved mitigation
'As an aside, the wetland definition is consistent with the federal definition of wetlands
which should assist with the effort to assume the federal wetland permitting program. It is,
however, adapted to encompass Florida wetland systems.
Criteria allowing the withdrawal of credits by parties other than the party
creating the bank; and
Provisions for the consideration of creation, restoration, enhancement, and
preservation of wetlands and uplands as part of a mitigation bank.
Once completed, this rule will be adopted by the. Environmental Regulation Commission
and, ultimately, incorporated into WMD rules.
Environmental eror ce.Permit (ERFk Criteria
One of the most challenging mandates contained in the legislation requires integration and
consolidation of the regulatory program developed pursuant to the Warre Henderson
Wetlands Act into the WMD regulatory programs developed pursuant to Part IV of Chapter
373 by July 1, 1994. Rules are to be based primarily on exstln DER and WMD rules.
Any variations between rules of the WMDs and DER are limited to those needed to address
"differing physical or natural characteristics." Good examples of existing variations between
WMDs are the SJRWMD Wekiva Basin Rule or SFWMD floodplain encroachmont basin
Most notably, the legislation provides':
Criteria for considering "cumulative impacts" of a project upon surface water
7Among those items cited above, the legislation incorporates provisions which previously
existed in Chapter 403 concerning: the treatment of stormwater and domestic wastewater
in wetlands; prohibition against vertical seawalls in estuaries and lagoons; provisions for
acceptable mitigation practices for mining activities; grandfathering provisions for sand,
limerock and limestone mining.
Other grandfathering provisions include time limited grandfathering of certain
jurisdictional determinations. Activities proposed within these grandfathered areas will be
reviewed under the surface water management and wetland resource permitting rules in
effect prior to the new rules, unless the applicant elects to fall under the new rules.
Applications which are submitted and complete prior to adoption of new rules will also be
reviewed under previous rules; certain mining activities shall be reviewed under previous
rules until the DER and DNR are merged and such rules are modified or repealed, or until
January 1, 1996, whichever occurs first; and the variance provisions previously existing in the
wetland resource permitting program are applicable to this section.
and wetlands within the "same drainage basin."'
Exemptions from the need to obtain an ERP for:
projects which received or were exempt from the need for a wetland
resource permit and did not require a surface water management permit prior
to the new permitting rules discussed above.
activities which received a surface water management permit, and also
received a wetland resource permit or were exempt from wetland resource
permitting, prior to the effective date of the new permitting rules.
Clear authority to require submission of proof of financial responsibility (i.e.
bonds' orother-frmof sM prior tor commencement of construction. .
Incorporation of the 7-part public interest test' currently used by DER in its
'Scope of review considers impacts of the activity for which the permit is sought; existing
projects or activities regulated under the ERP program which are under construction or
projects which have obtained a jurisdiction declaratory statement; activities under review,
approved, or vested pursuant to Section 380.06,or other activities which are regulated by
Part IV, Chapter 373 which may reasonably be expected to be located within surface waters
or wetlands in the same drainage basin based on comprehensive plans or land use
'In determining whether a project is not contrary to the public interest, or is clearly in
the public interest, DER and WMD will be considering and balancing the following criteria:
(1) Whether the project will adversely affect the public health,
safety, or welfare or the property of others;
(2) Whether the project will adversely affect the conservation of
fish and wildlife, including endangered or threatened species, or
(3) Whether the project will adversely affect navigation or the flow
of water or cause harmful erosion or shoaling;
(4) Whether the project will adversely affect the fishing or
recreational values or marine productivity in the vicinity of the
(5) Whether the project will be of a temporary or permanent
(6) Whether the project will adversely affect or will enhance significant '
historical and archaeological resources under the provisions of Section
(7) The current condition and relative value of functions being
performed by areas affected by the proposed activity.
wetland resource (dredge and fill) permit program. The new criteria will be
considered as part of the existing harm to the water resources and objectives
of the District test found in Chapter 373. Thus, the public interest test will
be applied whenever a permit is required for the construction, alteration,
maintenance, operation, removal or abandonment of any dam, impoundment,
reservoir, appurtenant work, or works in, on or over surface waters or
Direction to DER to develop water quality standards for wetlands.
Local Government Preemption and Delegation
Although the legislation does-not express preempt local governments's ability to implement
a wetlands regulatory program separate and apart from the ERP program, it does provide
that if mitigation required by a local government cannot be "reconciled" with that required
in the ERP, the ERP wll control. Further, where activities for a project occur in more than
one local jurisdiction, and permitting conditions or requirements impose by a local
government cannot be reconciled with that of the ERP, the ERP control. With regad to
delegation, the legislation directs DER to adopt rules by December 1, 1994, to guide
participation of counties, municipalities, and local pollution control programs in the ERP
program. The rules must address:
Procedures for delegation and approval by WMD or DER, whichever agency
Provisions concerning the financial, technical, and administrative capabilities
to implement the ERP program.
Provisions under which a delegated program may have "stricter environmental
Provisions for "identifying and reconciling" any duplicative permitting by
January 1, 1995.
Provisions for timely and cost-efficient notification by the reviewing agency of
permit applications, and permit requirements, local pollution control
programs, DER or WMDs, as appropriate.
Provisions for ensuring the consistency of permit applications with local
Provisions for the partial delegation of the ERP program to local pollution
control programs, and standards and criteria to be employed in the
implementation of such delegation by counties, municipalities and local
pollution control programs.
"Special provisions' under which' the environmental resource permit program
may be delegated to local pollution control programs serving populations of
50,000 or less.
Provisions for the applicability of Chapter 120, Fla. Stat. to local government
programs when the environmental resource permit program is delegated to
local pollution control programs.
Clearly, the intent is to avoid inconsistencies and duplication between local and state
pollution control programs.
Report of the Secretary ..
By December 10, 1993, the Secretary of DER is to submit a report to the .egislaturet
regarding the following:
(1) the efficiency of the procedures and division of permitting responsibilities.
(2) progress toward execution of further interagency agreements.
(3) integration of permitting with sovereignty lands approval.
(4) feasibility of improving the protection of the environment through
comprehensive criteria for protection of natural systems.
Because of the comprehensive nature of this legislation, the report could be used to address
any inconsistencies or "bugs" which result from the legislation and "fine tune" other
'The legislation specifically requires that a copy of the repot be provided to the
Governor, President of the Senate, Speaker of the House, and minority leaders.
Partners for a Better Florida Advisory Council
Looking to further expand permit streamlining and environmental protection efforts, the
legislation directs Parters for a Better Florida Advisory Council" to submit a report to
the 1994 Legislature which includes: recommendations for improving or expanding the sting
acts, techniques other than permitting to improve environmental quality, commendation
for linking tax credits to compliance with environmental policies and programs, and for
enhancing natural system protection. Finally, the legislation authorizes appointment of three
additional voting members to Partners Council representing environmental Interests.
John J. Fumero is a Senior Supervising Attorney with the South Florida Water Management
District responsible for providing and managing legal support for the agency in the areas of
permitting, compliance and rulemaking. He received his B.A. in Economics in 1984 from the
University of Miami and J.D. In 1987 from the University of Miami School of Law.
"Partners was established by legislation created during the 1992 legislative session. The
deliberations by Partners and its Final Report presented to the 1993 legislature led, in part,
to the subject permit streamlining legislation.