Title: Environmental Resource Oermitting: Streamlining Gone Haywire
CITATION THUMBNAILS PAGE IMAGE ZOOMABLE
Full Citation
STANDARD VIEW MARC VIEW
Permanent Link: http://ufdc.ufl.edu/WL00001464/00001
 Material Information
Title: Environmental Resource Oermitting: Streamlining Gone Haywire
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Environmental Resource Oermitting: Streamlining Gone Haywire, Frank E. Matthews, January 1995
General Note: Box 8, Folder 5 ( Vail Conference, 1995 - 1995 ), Item 78
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001464
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

















ENVIRONMENTAL RESOURCE PERMITTING:
STREAMLINING GONE HAYWIRE!


Frank E. Matthews
Hopping Boyd Green & Sams
January, 1995




CYr
/ /


4.2.1









MAJOR ISSUES REQUIRING ADMINISTRATIVE OR
LEGISLATIVE RESOLUTION IN ERP RULEMAKING


Secondary Impacts -- This issue has been controversial for the last
five years and although various agencies have used it in their
final orders, it has never appeared in the statutes. This would be
the first time it has been codified in a rule. The secondary
impact issue includes sub-issues involving average buffer widths;
the absence of a definition of project area; the consideration of
listed species, which would include species of special concern and
endangered and threatened plants contained in the federal plant
list.


Avoidance and Practicable Alternatives -- Once again, this has been
an issue hotly debated since it involves the agency's ability to
insist upon modification to your project as a condition for permit
issuance. The language in the proposed rule would seem to suggest
that the Department and Districts can demand that you avoid or
limit impacts over certain areas and that your failure to do so, or
to provide information that they deem adequate, establishing that
you are unable to practicably do so, can be a basis for denial.
This is especially troubling with respect to linear facilities
where agencies want the right to demand specific alternative
alignments.


Adverse Impacts on Fish and Wildlife -- The rule includes a
requirement that there be no-net adverse impact on fish or
wildlife. Previously, the statutory language has always stated
that one of the seven public interest balancing criteria involves
an evaluation of the relative condition and functions of the
wetland affected by construction and another whether there is
adverse affect on the conservation of fish and wildlife. The
proposed handbook provision is a glorification of the fish and
wildlife factors to the point where the rule language states that
all projects must have a positive or neutral impact on fish and
wildlife habitat or be subject to compensation which offsets the
impact. This according to the challengers is an unauthorized
elevation of the conservation of fish and wildlife criteria.


Mitigation -- There are a number of sub-issues associated with the
mitigation section of both the rule and the handbooks. The
proposed rules seek to codify a variation of the 1987 DEP incipient
agency policy establishing preservation ratios in the range of
10:60:1. In addition, the enhancement ratio of 4:20:1 can
certainly be considered to be overreaching. I believe these ranges
should be predicated on reasonable average mitigation conditions
because language already exists in the rule allowing for
exceptional mitigation ratios on a case-by-case basis.


4.2.2









Regulation of Plant Species -- Once again, these rules bring into
focus a long simmering debate on whether federally listed
endangered and threatened plant species can be singularly used as
a permit criteria. All of the water management districts and
Department handbook sections include federally endangered and
threatened plant species in their definition of listed species.
The rule also provides protection to animal species designated as
species of special concern.

The Hearing Officer's final order is expected in February of 1995.
The litigants involved in the rule challenge filed proposed orders
on December 19, 1994.

The following pages include a shorthand comparison of existing rule
provisions to proposed environmental resource permit rules and
handbook provisions. The issues identified are the ones that
received the most attention at the rule challenge hearing.


































4.2.3







ELIMINATION/REDUCTION OF IMPACTS

Proposed ERP Current MSSW or D&P


SUMMARY: X.2.1
APPLICANT MUST MAKE AGENCY
REQUIRED PRACTICABLE
MODIFICATIONS OR BE DENIED FOR
FAILURE TO DO SO.

Purported Citations:
17-312.300(3)
17-312.060(10)
SJRWMD 10.7.4
SFWMD 5.1(d)
SWFWMD 5.0(a)

X.2.1 Elimination or Reduction
of Impacts The degree of
impact to wetland and other
surface water functions caused
by a proposed system, whether
the impact to these functions
can be mitigated and the
practicability of design
modifications for the site, as
well as alignment alternatives
for a proposed linear system,
which could eliminate or
reduce impacts to these
functions, are all factors in
determining whether an
application will be approved
by the District. Design
modifications to reduce or
eliminate adverse impacts must
be explored, as described in
subsection 4.2.1.1. Any
adverse impacts remaining
after practicable design
modifications have been
implemented may be offset by
mitigation as described in
subsections 4.3-4.3.8. An
applicant may propose
mitigation, or the District
may suggest mitigation, to
offset the adverse impacts
caused by regulated activities
as identified in sections 4.2-
4.2.8.2. To receive District
approval, a system cannot
cause a net adverse impact on
wetland functions and other
surface water functions which
is not offset by mitigation.

4.2.1.1 Except as provided in
subsection 4.2.1.2, the
District, prior to approval of
any mitigation proposals, will
explore design modifications
for the proposed-site, as well-
as alignment alternatives for
a linear system, that would
eliminate or reduce the
adverse impacts to wetland
functions and other surface
water functions, and will
suggest any such modifications
to the applicant either in


DEP 17-312.310
(7) "Modifications" means changes in the design of a
proposed project, but does not include the alternative
of not implementing the project in some form.
DEP 17-312.310(9)
(9) "Project" means that portion of a proposed
dredging, filling, development, construction or mining
activity which is subject to the Department's dredge
and fill permitting criteria and other applicable
requirements.

DEP 17-312.300(3)
(3) The Department will, in each case, first explore
project modifications that would reduce or eliminate
the adverse environmental impacts of the project, and
will suggest any such modifications to the applicant
either in addition to or in lieu of mitigation, as
provided in Rule 17-312.060(10), F.A.C. The applicant
shall consider modifications to the project proposed
by the Department, whether or not a mitigation
proposal has been submitted. Should such mutual
consideration of modification and mitigation not
result in a permittable project the Department must
deny the permit.

DEP 17-312.060(10)
(10) During the processing of the permit application,
the Department shall determine whether or not the
application, as submitted, meets the criteria
contained in Sections 403.918(1) and (2)(a)1.-7. and
403.919, F.S. If the project, as designed, fails to
meet the permitting criteria, the Department shall
discuss with the applicant any modifications to the
project that may bring the project into compliance
with the permitting criteria. The applicant shall
respond to the Department, in writing, as to whether
or not the identified modification to the proposed
project is practicable and whether the applicant will
make the identified modification. The term
"modification" shall not be construed as including the
alternative of not implementing the project in some
form. When the Department determines that the
project, as submitted or modified, fails to meet the
criteria contained in Sections 403.918(1) and
(2)(a)1.-7. and 403.919, F.S., the applicant may
propose mitigation measures to the Department as
provided in Chapter 17-312, Part III, F.A.C. Nothing
herein shall imply that the Department may not deny an
application for a permit, as submitted or modified, if
it fails to meet the criteria in Section
403.918(2)(a), F.S., or that mitigation must be
accepted by the Department.
*

SJRMMD
10.7.4 The criteria in this subsection are most
easily satisfied if wetlands-are not disturbed.
Incorporation of wetlands into the surface water
management system is the preferred alternative to
destruction and mitigation provided the wetland
criteria and water quality standards are met. If a
system as initially proposed fails to meet wetland
review criteria, the applicant may propose mitigation.
The degree of impact to wetland functions, whether the
impact to these functions can be mitigated (see


4.2.4







zLIMINATION/RzDUCTION OF IMPACTS


Proposed 3RP


addition to or in lieu of
mitigation. The applicant
shall consider the District's
proposed modifications to the
system to reduce or eliminate
adverse impacts to wetland or
other surface water functions
regardless of whether a
mitigation proposal has been
submitted. The applicant
shall respond to the District
in writing as to whether the
identified modifications to
the proposed system are
practicable and whether the
applicant will make the
identified modifications. If
an applicant responds that the
District proposed
modifications are not
practicable, the written
response must provide an
explanation and supporting
documentation.
Alternatively, the applicant
may respond by proposing other
modifications which achieve a
comparable reduction of
adverse impacts to wetland and
other surface water functions.
The applicant shall describe
how its proposed alternative
modification reduces or
eliminates the adverse
impacts.

If the District determines
that an applicant's proposed
system can be modified in a
practicable manner what would
eliminate or reduce adverse
impacts to wetland functions
and other surface water
functions, and if the
applicant refuses to modify
the system accordingly,
mitigation shall not be
approved. If the applicant
modifies the system
accordingly or the identified
modifications are not
practicable, the District will
accept mitigation proposed by
the applicant if the
mitigation offsets the adverse
impacts of the system as
required by subsections 4.3
through 4.3.8.

The term "modification" shall
not be construed as including
the alternative of not
implementing the system in
some form, nor shall it be
construed as requiring a
project that is significantly
different in type or function.


--r -- -- -- -I -


Current MSSW or D&P


subsection 16.1.3), and the feasibility of project
design alternatives which could avoid impacts are all
factors in determining whether a mitigation measure
proposed by the applicant will be acceptable. The
greater the functions the wetland provides and the
higher the impact to these functions, the less the
likelihood a mitigation measure can be proposed that
will off-set the adverse impact to these functions and
therefore the greater the likelihood that in order to
receive District approval, an alternative project
design which avoids the impact would need to be
proposed. To receive District approval, a system can
not cause a net adverse impact on wetland functions
which is not offset by mitigation.
*

SWFNMD
5.0 Wetland Permitting Criteria
Protection of wetlands, i.e., incorporation of
wetlands into the surface water management system, is
preferred because of the uncertainty of current
mitigation technology to restore or create the various
functions and values of isolated wetlands. Wetland
destruction and compensation shall be considered only
when the applicant has demonstrated that:

(a) there are no reasonable development alternatives
to adverse wetland impacts for the particular site;

(b) compensation measures can be successful; and

(c) the protection of endangered and threatened
species is reasonably assured.

Subsections 5.1 and 5.2 set forth options that allow
the applicant to select either the rigid or flexible
wetland design criteria, or a combination of both.
Compensation for fish and wildlife habitat shall not
be required for isolated wetlands that do not provide
fish and wildlife benefits.

4.2 Applications which propose to impact isolated
wetlands may be approved in concept with a Letter of
Conceptual Approval. Detailed proposals shall be
submitted as part of the application for conceptual
approval or as part of the application for a Surface
Water Management Construction and Operation Permit and
shall include:

4.2.c. A short statement of project design
alternatives considered to reduce or eliminate impacts
to isolated wetlands.
*

8FMWD
5.1(d) Protection of isolated wetlands or
incorporation of isolated wetlands into surface water
management systems is favored over isolated wetland
destruction and mitigation or compensation. Wetland
destruction and mitigation or compensation shall be
considered only when there are no feasible project
design alternatives for the particular site.
Reasonable project design alternatives to isolated
wetland impacts shall be considered.


4.2.5


f7







ELIMINATION/REDUCTION OF IMPACTS
Proposed ERP Current MSSW or D&P
A proposed modification which SRWMD App. I.
is not economically viable or II. B. Minimizing Impact
which adversely affects public Because of the uncertainty of current mitigation
safety through the technology to restore or create the various functions
endangerment of lives or and values of isolated wetlands, wetland destruction
property is not considered and compensation shall be considered only when the
"practicable". A proposed applicant has demonstrated that:
modification need not remove
all economic value of the 1) There are no reasonable development alternatives to
property in order to be adverse wetland impacts for the particular site.
considered not "practicable". 2) Compensation measures can be successful.
Conversely, a modification 3) The protection of endangered and threatened species
need not provide the highest is reasonably assured.
and best use of the property
to be "practicable".


(V


4.2.6







ERP PROPOSED POSITIVE OR NEUTRAL
FISH AND WILDLIFE STANDARD

Proposed ERP Current MSSW or D&F


r




/~S


SUMMARY: PROPOSED ERP RULES
REQUIRE AN ABSOLUTE POSITIVE
OR NEUTRAL IMPACT ON FISH AND
WILDLIFE AS OPPOSED TO
BALANCING IT AS A PUBLIC
INTEREST FACTOR.



40X-4.301 Conditions for
Issuance of Permits.
(1) In order to obtain a
standard general, individual,
or conceptual approval permit
under this chapter or Chapter
40E-40, F.A.C., an applicant
must provide reasonable
assurance that the
construction, alteration,
operation, maintenance,
removal or abandonment of a
surface water management
system: ...
(d) will not adversely impact
the value of functions
provided to fish and wildlife
and listed species by
wetlands and other surface
waters;
X.1.1. Environmental
Conditions for Issuance
The District addresses the
conservation of these
beneficial functions in the
permitting process by
requiring applicants to
provide reasonable assurances
that the following conditions
for issuance of permits, set
forth in Sections 40X-4.301
(Conditions for Issuance) and
40X-4.302 (Additional
Conditions for Issuance),
F.A.C., are met. Applicants
must provide reasonable
assurance that:

(a) a regulated activity will
not adversely impact the
value of functions provided
to fish, wildlife and listed
species by wetlands and other
surface waters;


4.2.7


S373.414(1)
(a) In determining whether an activity, which is in,
on, or over surface waters or wetlands, as delineated
in s.373.421(1), and is regulated under this part, is
not contrary to the public interest or is clearly in
the public interest, the governing board or the
department shall consider and balance the following
criteria: ...
2. Whether the activity will adversely affect the
conservation of fish and wildlife, including endangered
or threatened species or their habitats;


DEP
17-312.080(2)
(2) No permit shall be issued unless the applicant
provides the Department with reasonable assurance based
on plans, test results or other information that the
project is not contrary to the public interest in
accordance with Section 403.918(2), F.S.


SJRMD
40C-4.301(1) (a)10
To obtain a general or individual permit for.operation,
maintenance, removal or abandonment of a system or to
obtain a conceptual approval permit, each applicant
must give reasonable assurance that such activity will
not: ... adversely affect natural resources, fish and
wildlife.

(2)(a)7. Wetland functions will not be adversely
affected.

10.7.4 Wetland Review Criteria
To determine whether a system will meet the objective
contained in paragraph 9.1.1(j), the standard contained
in paragraph 10.1.2(g), and that part of the criterion
contained in paragraph 10.2.1(e) wetland functions, the
District will consider only the impacts to fish and
wildlife and threatened or endangered species relative
to the functions the wetlands currently provide to
them ...


An applicant must provide reasonable assurances that a
proposed system will not impact wetland functions so as
to cause adverse impacts to:
(a) the habitat of fish, wildlife, and threatened or
endangered species,
(b) the abundance and diversity of fish, wildlife, and
threatened or endangered species, and --- --
(c) the food sources of fish and wildlife, including
those which are-threatened or endangered. ...







ERP PROPOSED POSITIVE OR NEUTRAL
FISH AND WILDLIFE STANDARD


Proposed BRP


X.2.2 Fish, Wildlife, Listed
Species and Their Habitats
Pursuant to paragraph
4.1.1(a), an applicant must
provide reasonable assurances
that a regulated activity
will not impact the values of
wetland and other surface
water functions so as to.
cause adverse impacts to:

(a) the abundance and
diversity of fish, wildlife
and listed species; and
(b) the habitat of fish,
wildlife and listed species.

X.2.3.2 Fish and Wildlife
and Their Habitats
The District's public
interest review of that
portion of a proposed system
in, on, or over wetlands and
other surface waters for
impacts to the "conservation
of fish and wildlife,
including endangered or
threatened species, or their
habitats" is encompassed
within the required review of
the entire system under
subsection X.2.2. An
applicant must always provide
the reasonable assurances
required under subsection
X.2.2.; consequently, the
public interest in paragraph
X.2.3(b) must always be a
positive or neutral factor in
the public interest balance,
or whenever it is a negative
factor, the adverse impact
must be offset through
mitigation


Current MSSW or D&F


.9


SJRVMD
10.1.2 To obtain a permit for the construction,
alteration, operation or maintenance of a system, each
applicant must give reasonable assurance that such
activity meets the following standards:

(g) Wetland functions will not be adversely affected.


SFMMD
40E-4.301(1) (e)
In order to obtain a permit under this chapter, an
applicant must give reasonable assurances that the
surface water management system ... (e) will not cause
adverse environmental impacts.

3.1.5 Process for Determining Environmental Impacts -
All Surface Water Management Applications will be
reviewed by the Staff for purposes of advising the
District Governing Board as to anticipated impacts of
the proposed work on (a) the water resources of the
District and (b) natural upland systems.

3.1.5.5 The following categorization of environmental
features will be used by the Staff in evaluating
impacts:

a. Environmental features directly related to the water
resources of the District, such as:
1. Wetlands habitat except those previously impacted
by drainage, land clearing, earthwork, or those which
have been invaded by exotic species and are in a state
of environmental decay (excluding unauthorized
activities conducted by the applicant).
2. Natural waterbodies.

b. Environmental features which may be indirectly
related to the water resources of the District, such
as:
1. Intermittent ponds.
2. Significant habitat diversity support systems,
usually consisting of productive mixed upland and
wetland systems with appropriate buffer areas.

c. Environmental features which are not related to the
water resources of the District, such as:
1. Unique upland habitats, usually consisting of
tropical hardwood tree-hammocks and beach dunes. -

d. Preferred habitat for rare or endangered species of
plants or animals will be identified.

3.1.5.6 The actual impact resulting from changes to
the natural site will be predicted by considering the
existing'natural system as altered by the proposed
project. It isrecognized that the variety of actions_
associated with a project may result in both positive
and negative environmental impacts. The Staff
therefore, will balance both the positive and the
negative impacts of the project to achieve a reasonable
degree of protection for significant environmental
features consistent with the overall protection of the
water resources of the District.


4.2.8


(7







ERP PROPOSED POSITIVE OR NEUTRAL
FISH AND WILDLIFE STANDARD
Proposed ERP Current MSSW or D&F
f 3.2.3 Environmental
3.2.3.1 Viable wetlands and appropriate buffer areas
shall be preserved. Manmade wetlands (in on-site
uplands and/or impacted wetlands) of equivalent
productivity may be created to replace natural
wetlands.



40D-4.301 (1) (f)
In order to obtain an individual construction and
operation permit under this chapter, an applicant must
give reasonable assurance that the surface water
management system:
...(f) will not cause adverse environmental impacts, or
adverse impacts to wetlands, fish and wildlife, or
other natural resources.

5.0 Review criteria Because isolated wetlands vary in
type and function, each permit application for a
project that includes isolated wetlands will be
reviewed individually. The applicant must provide
reasonable assurance that the proposed activity,
including protection or mitigation/compensation plans,
complies with the District objective, expressed in the
legislative policies of Sections 373.016(2) and
373.414, Florida Statutes, to maintain the functions of
isolated wetlands, including fish and wildlife and
their habitat, and to protect endangered and threatened
species.
3.2.3 Environmental
3.2.3.1
a. Wetlands and other environmentally sensitive areas
shall be protected by considering and balancing the
following factors:
1. The project's impact on environmental features.
2. The current condition and relative value of
functions being performed by areas affected by the
proposed activity.
3. The predicted ability of the wetlands and
environmentally sensitive areas to maintain their
present functions as part of the proposed surface water
management system.
4. The potential for replacement of qr compensation
for wetland functions which might be lost as a result
of the proposed activity.
5. The extent to which particular disturbances of
wetlands benefit essential economic development.


SRMMD
40B-4.2030(2)(f)
(2) Before a permit is issued for the construction,
alteration, maintenance, operation, or abandonment of a
surfacewater management systems or individual work, the
district must have reasonable assurance that: ...
(f) The system or work will have minimum adverse
environmental impacts including impacts to fish,
wildlife, wetlands, or other natural resources; and



4.2.9







PROPOSED ERP SECONDARY IMPACTS

Proposed ERP Current MSSW or D&F


4.2.7 Secondary Impacts
Pursuant to paragraph 4.1.1(f), an applicant must provide
reasonable assurances that a regulated activity will not cause
adverse secondary impacts to the water resource, as described in
paragraphs (a) through (d), below. Aquatic or wetland dependent
fish and wildlife are an integral part of the water resources
which the District is authorized to protect under Part IV,
Chapter 373, F.S. Those aquatic or wetland dependent species
which are listed as threatened, endangered or of special concern
are particularly in need.of protection.

A proposed system shall be reviewed under this criterion by
evaluating the impacts to: wetland and surface water functions
identified in subsection 4.2.2; water quality; upland habitat for
aquatic or wetland dependent listed species; and historical and
archaeological resources. Deminimis or remotely related
secondary impacts will not be considered.

Applicants may propose measures such as preservation to prevent
secondary impacts. Such preservation shall comply with the land
preservation provisions of subsection 4.3.8. If such secondary
impacts can not be prevented, the applicant may propose
mitigation measures as provided for in subsections 4.3 through
4.3.8. This secondary impact criterion consists of the following
four parts:

(a) An applicant shall provide reasonable assurance that the
secondary impacts from construction, alteration, and intended or
reasonably expected uses of a proposed system will not cause
violations of water quality standards or adverse impacts to the
functions of wetlands or other surface waters, as described in
subsection 4.2.2.

Impacts such as boat traffic generated by a proposed dock, boat
ramp or dry dock facility, which causes an increased threat of
collision with manatees; impacts to wildlife from vehicles using
proposed roads in wetlands or surface waters; impacts to water
quality associated with the use of septic tanks or propeller
dredging by boats and wakes from boats; and impacts associated
with docking facilities as described in paragraphs 4.2.4.3(f) and
(h), will be considered relative to the specific activities
proposed and the potential for such impacts. Impacts of
groundwater withdrawals upon wetlands and other surface waters
that result from the use of wells permitted pursuant to Chapter
40E-2, F.A.C., shall not be considered under rules adopted
pursuant to Part IV, Chapter 373, F.S., since these impacts are
considered in the consumptive use permit application process.

Unless additional measures are required for protection of
wetlands used by listed species, for nesting, denning or -
significant feeding habitat, secondary impacts to the habitat
functions of wetlands associated with adjacent upland activities
will not be considered adverse if buffers, with a minimum width
of 15' and an average width of 25', are provided abutting those
wetlands that will remain under the permitted design. Buffers
shall remain in an undisturbed condition, except for drainage
features such as spreader sales and discharge structures,
provided the construction or use of these features does not
adversely impact-wetlands.--- -- --

Deminimis or remotely related secondary impacts such as changes
in air quality due to increased vehicular traffic associated with
road construction will not be considered unacceptable.

(b) An applicant shall provide reasonable assurance that the
construction, alteration, and intended or reasonably expected
uses of a system will not adversely impact the ecological value
of uplands to aquatic or wetland dependent listed species for:


4.2.10


DEP
No comparable rule
language.


SJRMMD
No comparable rule
language.


SFWMD
No comparable rule
language.


SWFWMD
No comparable rule
language.


SRMMD
No comparable rule
language.







PROPOSED ERP SECONDARY IMPACTS

Proposed RP Current MSSW or D&F
1. existing nesting or denning by these species; and
2. enabling existing nests or dens to be used successfully by
these species.

Table 4.2-1 identifies those aquatic or wetland dependent listed
species that use upland habitats for nesting or denning.

For those aquatic or wetland dependent listed species for which
habitat management guidelines have been developed by the U.S.
Fish and Wildlife Service (USFWS) or the Florida Game and Fresh
Water Fish Commission (FGFWFC), compliance with these guidelines
will provide reasonable assurance that the proposed system will
not adversely impact upland habitat functions described in
paragraph (b). For those aquatic or_wetland dependent listed
species for which habitat management guidelines have not been
developed or in cases where an applicant does not propose to use
USFWS or FGFWFC habitat management guidelines, the applicant
shall propose measures to mitigate adverse impacts to upland
habitat functions described in paragraph (b), provided to aquatic
or wetland dependent listed species.

(c) In addition to evaluating the impacts in the area of any
dredging and filling in, on, or over wetlands or other surface
waters, and as part of the balancing review under subsection
4.2.3, the District will consider any other relevant activities
that are very closely linked and causally related to any proposed
dredging or filling which will cause impacts to significant
historical and archaeological resources.

(d) -An applicant shall provide reasonable assurance that the
following future activities:

1. additional phases or expansion of the proposed system for
which plans have been submitted to the District or other
governmental agencies; and

2. on-site and off-site activities regulated under Part IV,
Chapter 373, F.S., or activities described in section 403.813(2),
F.S., that are very closely linked and causally related to the
proposed system, will not result in water quality violations or
adverse impacts to the functions of wetlands and other surface
waters as described in subsection 4.2.2.

As part of this review, the District will also consider the
impacts of the intended or reasonably expected uses of the future
activities on water quality and wetland and other surface water
functions. In conducting the analysis under paragraph (d)2.,
above, the District will consider those future projects or
activities which would not occur but for the proposed system,
including where the proposed system would be considered a waste
of resources, should the future project or activities not be
permitted. Where practicable, proposed systems shall be designed
in a fashion which does not necessitate future impacts to wetland
and other surface water functions. If future phases or project
expansion have the potential to cause adverse secondary impacts,
applicants must provide sufficient conceptual design information
to provide reasonable assurance that these impacts can be
successfully eliminated or offset.
System expansions and future system phases will be considered in
the secondary impact analysis, and if the District determines
that future phases of a system involve impacts that appear not to
meet permitting criteria, the current application may be denied
unless the applicant can provide reasonable assurance that those
future phases can comply with permitting criteria. One way for
applicants to establish that future phases or system expansions
do not have adverse secondary impacts is for the applicant to
obtain a conceptual approval permit for the entire project.
4.2.11







PROPOSED UPLAND BUFFERS IN ERP


Prboooed ERP


SUMMARY: UPLAND BUFFERS
ARE PROPOSED AS A MEANS
OF PRESUMPTIVELY MEETING
SECONDARY IMPACT
CRITERIA. SWFMMD AND
SPFMD HAVE PROVISIONS
REQUIRING UPLAND BUFFERS
FROM PRESERVED ISOLATED
WETLANDS.



X.2.7(a)..
Unless additional
measures are required
for protection of
wetlands used by listed
species, for nesting,
denning or significant
feeding habitat,
secondary impacts to the
habitat functions of
wetlands associated with
adjacent upland
activities will not be
considered adverse if
buffers, with a minimum
width of 15' and an
average width of 25',
are provided abutting
those wetlands that will
remain under the
permitted design.

Buffers shall remain in
an undisturbed
condition, except for
drainage features such
as spreader swales and
discharge structures,
provided the
construction of use of
these features does not
adversely impact
wetlands.


Current mBUI or D&1


I ERP C


Existing Buffer Language


DEP
No comparable language.
*
SJRWMD
No comparable language.
(Buffers only in Basin Rules 40C-41.)

SRWND
No comparable language.
*
SWFWMD
2.5 Buffer Zone An area adjacent to an isolated wetland
which protects wetland function and minimizes adverse
impacts of upland development on wetland function.

5.1.1 Buffer Zones A buffer zone 15 feet wide is required
on all existing non-exempt or mitigated wetlands. The
vegetation within the buffer zone shall be left undisturbed
except for temporary disturbances for construction of pipes,
swales or other necessary construction. The buffer zone is
considered part of the mitigated acreage required except
where 1 to 1 mitigation is permitted.

5.2.3 Buffer Zones A buffer zone to protect wetland
functions and not to exceed 15 feet may be required on all
existing or mitigated wetlands above the size threshold.
Land cover changes within the buffer zone may be allowed as
part of the
system design. The buffer zone is
considered part of the mitigated acreage required except
where 1 to 1 mitigation is permitted.
*
SFMMD
2.5 Buffer zone--An area adjacent to the isolated wetland
which protects wetland function and minimizes adverse
impacts of upland development on wetland function.

5.1.7 Buffer zones:
a. Buffer zones may be required around isolated wetlands
that are to be protected or incorporated into a surface
water management system to protect wetland function and
minimize adverse impacts of upland development on wetland
function. Actual delineation of the buffer zone may vary
according to site specific conditions. Buffer zones which
extend at least fifteen feet landward from the edge of the
wetland in all places and average twenty-five feet from the
landward edge of the wetland will be presumed to.be
adequate.

b. Prior to issuance of Construction and Operation permits,
buffer zones shall be field verified and delineated in the
field. -

c. Buffer zones may consist of undisturbed uplands, open
water bodies, wildlife corridors or other natural or
structural features which serve the purpose stated in
Section 2.7 as appropriate for the particular site.

d. Upland areas or wildlife corridors adjacent to buffer
zones may be incorporated as compensation areas, provided
they are in excess of the minimum buffer zone and meet all
other requirements for compensation areas.


4.2.12







MITIGATION RATIOS
T


ProDosed ERP


SUMMARY: THE
CREATION/RESTORATION
RATIOS PROPOSED ARE HIGHER
THAN CURRENT REQUIREMENTS
AND THERE ARE NO CURRENT
RULE PROVISIONS WITH
ERNANCEWMET OR
PRESERVATION RATIOS

4.3.2.1.1 Creation and
restoration have the
potential to result in
similar benefits, if they
can be successfully
accomplished. Therefore,
the ratio ranges given
below for these two types
of mitigation are the
same. Restoration is
usually preferred over
creation as it often has a
greater chance of success
due to soil
characteristic, hydrologic
regime, landscape position
or other factors that
favor re-establishment of
wetland or other surface
water communities.
Restoration ratios will
generally be at the lower
end of the ratio ranges
within the guidelines
below. The following
ratio guidelines will be
used to estimate the
acreage of wetland
restoration or creation
required:

(a) Mangrove swamps,
cypress swamps, and
hardwood swamps 2:1 to
5:1 (acres created or
restored: acres impacted).

(b) Saltwater marshes
and freshwater marshes -
1.5:1 to 4:1 (acres
created or restored: acres
impacted.

4.3.2.1.2 The ratio
guidelines for use in the
estimation of the acreage
of wetland enhancement
will range from 4:1 to
20:1 (acres enhanced:
acres impacted).

4.3.2.2 Preservation


t


Current MSSW or D&F


DEP
17-312.340
(2) Ratios for created waters of the state. The
mitigation proposed shall be sufficient to offset the
adverse impacts expected to occur due to the proposed
dredging and filling that render the project
unpermittable. For mitigation involving the creation of
waters of the state, the Department shall use as a
guideline two acres created for each acre adversely
impacted by the proposed dredging or filling. This
guideline is for preliminary planning purposes only and
the actual extent of wetland creation may be more or less
based on a consideration of the factors listed in
subparagraphs (a) through (h) below.
*

(3) Ratios for enhanced waters of the state. It is
recognized that stressed wetlands provide some degree of
wetland function. When enhancement is proposed, the
Department must make a judgment regarding the degree of
enhancement expected to occur. The degree of expected
enhancement must be weighed against the adverse impacts
identified in the evaluation of the dredge and fill
project. In general, ratios for enhanced waters shall be
higher than for created waters. Factors that should be
considered in establishing a ratio include:

(a) The degree to which the wetlands to be enhanced have
been stressed.
(b) The type of stress the wetlands to be enhanced have
experienced.
(c) The cause of the stress.
(d) Whether the proposed method of enhancement is one
that will be low maintenance or self-regulating once
implemented.
(e) The likelihood that the proposed enhancement will be
successful in offsetting the adverse impacts of the dredge
and fill project that caused the project to be not
permittable.


Nothing on preservation Ratios


SFNMD
5.1.2 Isolated wetland mitigation shall be implemented
based upon ratios of acres of wetlands created, or
restored to acres of wetlands destroyed which provide
reasonable assurance that the mitigation will be
successful. The following ratios shall be presumed to
provide such reasonable assurance for type-for-type
mitigation:

a. Forested swamp, non-cypress dominated 2.5:1
b. Forested swamp, cypress dominated 2.0:1
c. Freshwater marshes 1.5:1 -

Ratios for mitigation with unlike habitat, including
expanded littoral zones, or compensation shall be
determined on a case-by-case basis. When type-for-type
mitigation is provided prior to isolated wetland impacts,
a one-to-one ratio shall be presumed to provide such
reasonable assurances.

5.1.3 Disturbed isolated wetlands may be developed and
their loss compensated for by:


4.2.13







MITIGATION RATIOS
I .I.


(c) Wetland and other
surface water preservation
ratios. Since wetlands
and other surface waters
are, to a large extent,
protected by existing
regulations, the ratio
guidelines for
preservation of wetlands
and other surface waters.
is substantially higher.
than for restoration and
creation. The ratio
guidelines for wetland and
other surface water
preservation will be 10:1
to 60:1, (acreage wetlands
another surface waters
preserved to acreage
impacted).
(d) Upland preservation
ratios. Many wildlife
species that are aquatic
or wetland dependent spend
critical portions of their
life cycles in uplands.
Uplands function as the
contributing watershed to
wetlands and are necessary
to maintain the ecological
value of those wetlands.
Because of these values,
the preservation of
certain uplands may be
appropriate for full or
partial mitigation of
wetland impacts, and
impacts to uplands that
are used by listed aquatic
or wetland dependent
species as described in
subsection 4.2.7.1. The
ratio guidelines for
upland preservation will
be 3:1 to 20:1 (acreage of
uplands preserved to
acreage impacted.


Current 385W D&1na


I -


a. Mitigation at ratios less than those required in
5.1.2, based on the degree of disturbance and the
remaining functional qualities. Mitigation through
restoration of other disturbed wetlands is preferred over
wetland creation.
b. Preservation of unique uplands or inclusion of
developable uplands within an upland/wetland protected
system. Mitigation or compensation shall not be required
for isolated wetlands which do not provide functions and
values as expressed above in Sections 1.0 and 5.0.
Nothing on enhancement or preservation.


5.1 Rigid Design Criteria Under this option, the
applicant must mitigate for the loss of each non-exempt
isolated wetland that is to
be impacted by the development project. Only mitigation
is allowed as compensation. This option leaves to the
applicant the determination of which wetlands, with the
exception of those identified in Section 5.2.4, can be
impacted. The applicant must adhere to the following
specific criteria:
(a) If mitigation is successful as described in section
8.0 prior to any impact to wetlands, the ratio of acres
impacted to mitigated acres required is 1 to 1.
Otherwise, mitigation of wetlands shall be at the-
following ratios:


aet-land YPm


Mitigated
hnw.. 1wr'mpq..A 1 .u I ..A-


Forested 1 2.5
Non-forested 1 1.5
Nothing comparable on enhancement or preservation.
SRMM App. I
II.B. The following guidelines should be used to estimate
the extent of wetland creation which may mitigate for the
destruction of a unit of wetland under the permitting
requirements of SRUND.
1) If mitigation is successful prior to any impact on
wetlands, the ratio of acres impacted to mitigated acres
required is 1 to 1.
2) If mitigation is not accomplished prior to wetland
impacts the following impacts--shall apply:- -- -


a


4.2.14


PrbDosed URP


r,


1 i II .1







MITIGATION RATIOS
Proposed BRP Current MSSW or D&a

Mitigated
Wetland Type Acres Impacted Acres Reauired
Forested 1 2.5
Non-Forested 1 1.5
Nothing comparable on enhancement or preservation.

SJRMMD
16.1.4 Wetland Creation
The following guidelines should be used to estimate the
extent of wetland creation which may mitigate for the
destruction of a unit of wetland which has a direct
hydrologic connection to a stream, other watercourse, or
impoundment or wetland not wholly owned. These guidelines
are for preliminary planning purposes only and the actual
extent of wetland creation may be more or less depending
on staff evaluation of site and regional conditions. The
following ratios apply to wetland creation (not wetland
enhancement) proposals.

(a) Mangrove swamps and hardwood swamps The ratio of
created wetland to lost wetland should be 2:1 to 5:1
depending on site-specific factors. If the wetland
proposal depends extensively on natural recolonization the
ratio may be higher.

(b) Saltwater marshes and freshwater marshes The ratio
of created wetland to lost wetland should be 1.5:1 to 2:1.
If the wetland creation proposal depends extensively on
natural recolonization the ratio may be 3:1 to 4:1.
Nothing comparable on enhancement or preservation.


4.2.15











NO STATUTORY REFERENCE TO PLANTS
OR SPECIES OF SPECIAL CONCERN

Proposed ERP Current MSSW or D&F


SUMMARY: RESULT OF BELOW
PROVISIONS IS THAT ENDANGERED
AND THREATENED PLANTS AND
ANIMAL SPECIES OF SPECIAL
CONCERN NOW BECOME A
PERMITTING CRITERIA; A
REQUIRED POSITIVE COMPONENT
OF THE PUBLIC INTEREST
BALANCE; (SEE X.2.2), AND A
SIGNIFICANT ELEMENT OF THE
SECONDARY IMPACT SECTION (SEE
X.2.7).

Listed species to include
plants and species of special
concern animals as a permit
criteria.

40X-4.301 Conditions for
Issuance of Permits.
(1) In order to obtain a
standard general, individual,
or conceptual approval permit
under this chapter or Chapter
40E-40, F.A.C., an applicant
must provide reasonable
assurance that the
construction, alteration,
operation, maintenance,
removal or abandonment of a
surface water management
system:
(d) will not adversely
impact the value of functions
provided to fish and wildlife
and listed species by
wetlands and other surface
waters:

40X-4.021
(24) "Listed Species" means
those animal species which
are endangered, threatened or
of special concern and are
listed in Sections 39-27.003,
39-27.004 and 39-27.005,
F.A.C., and those plant
species listed in 50 Code of
Federal Regulation 17.12.

2.17 "Listed Species" Those
animal species which are
endangered, threatened or of
special-concern and-are --
listed in Section 39-27.003,
39-27.004 and 39-27.005,
F.A.C., and those plant
species listed in 50 Code of
Federal Regulation 17.12.


373.414(1)
(a) In determining whether an activity, which is in,
on, or over surface waters or wetlands, as delineated
in s.373.421(1), and is regulated under this part, is
not contrary to the public interest or is clearly in
the public interest, the governing board or the
department shall consider and balance the following
criteria: ...
2. Whether the activity will adversely affect the
conservation of fish and wildlife, including endangered
or threatened species, or their habitats:
(2) The governing board or the department is
authorized to establish by rule specific permitting
criteria in addition to the other criteria in this part
which provides:
(b) Criteria for the protection of threatened and
endangered species in isolated wetlands regardless of
size and land use.


DEP
No comparable language on plants or species of special
concern.
0** Q


SRWMD
No comparable language
concern.


on plants or species of special


*


3.0 Wetlands Exempt from Fish and Wildlife Review -
Isolated wetlands less than 0.5 acres in size
regardless of property boundaries are exempt from
review for impacts to fish and wildlife and their
habitats. This exemption does not apply in any of the
following circumstances:
(a) A wetland is used by endangered or threatened
species designated in Rules 39-27.003 and 39-27.004,
F.A.C., or 50 CFR 17.12. For purposes of this
Appendix, a wetland is used by endangered or threatened
species if reasonable scientific judgment indicates
that the wetland provides a habitat function including,
but not limited to, nesting, reproduction, food source
or cover for such species.

5.2.4 Protection of Endangered or Threatened Species -
The applicant must provide reasonable assurance that
any proposal to impact wetlands shall protect
endangered and threatened species designated pursuant
to Rules-39-27.003 and 39-27;004.-F.A.C., or 50 CFR.
17.12. Any compensation proposals for wetlands used by
any of these species will be reviewed by the District
on a case-by-case basis. The District may require
additional buffer zone area, wetland protection,
mitigation prior to wetland impacts, or other measures
when necessary for the protection of threatened and
endangered species.


4.2.16


(0










NO STATUTORY REFERENCE TO PLANTS
OR SPECIES OF SPECIAL CONCERN

Proposed RP Current MSSW or D&F
SFWMD
3.1.5.5 The following categorization of environmental
features will be used by the Staff in evaluating
impacts:
d. Preferred habitat for rare or endangered species of
plants or animals will be identified.

4.2 Applications which propose to impact isolated
wetlands may be approved in concept with a Letter of
Conceptual Approval. Detailed proposals shall be
submitted as part of the application for conceptual
approval or as part of the application for a Surface
Water Management Construction and Operation Permit and
shall include ...
b. A list of all plant and animal species listed as
endangered, threatened or of special concern pursuant
to 50 Code of Federal Regulations, Section 17.12 and
Rules 39.27.03, 39-27.04, 39-27.05, Florida
Administrative Code, which are incorporated by
reference and made a part of this rule, which utilize
the area, and an evaluation of the probable
significance of the area to the listed species.


SJRW=D
10.7.4
For the purpose of this rule, "threatened or
endangered" species shall be those animal species
listed in sections 39-27.003 or 39-27.004, F.A.C., and
those plant species listed in paragraph 581.185(5)(a),
F.S.


4.2.17




University of Florida Home Page
© 2004 - 2010 University of Florida George A. Smathers Libraries.
All rights reserved.

Acceptable Use, Copyright, and Disclaimer Statement
Last updated October 10, 2010 - - mvs