IX. THE PERMITS REQUIRED FOR IMPLEMENTATION OF THE INTERIM ACTION PROGRAM
South Florida Water Management District
Collier County is located within the jurisdiction of the South Florida
Water Management District (SFWMD), which was granted extensive authority
in the Florida Water Resources Act of 1972, Chapter 373, Florida Statutes,
to control the management of surface waters. Section 373.413 provides:
[T]he governing board or the department may require
such permits and impose such reasonable conditions
as are necessary to assure that the construction or
alteration of any dam, impoundment, reservoir,
appurtenant work, or works will not be harmful to
the water resources of the district ....
A person proposing to construct or alter a dam, im-
poundment, reservoir, appurtenant work, or works
subject to such permit shall apply to the governing
board or department for a permit authorizing such
construction or alteration.
The term "person" is defined broadly enough to include Collier County.
373.314. In addition, the terms "alter", "dam", "impoundment", "reservoir",
and "appurtenant works" are defined so as to clearly encompass the con-
struction and modification of weirs proposed in the Interim Action Program.*
"Dam means any artificial or natural barrier, with appurtenant works,
raised to obstruct or impound, or which does obstruct or impound, any
of the surface waters of the state." 373.403(1).
"Impoundment means any lake, reservoir, pond, or other containment
of surface water occupying a bed or depression in the earth's surface
and having a discernible shoreline." 373.403(3).
"Reservoir means any artificial or natural holding area which contains
or will contain the water impounded by a dam." 373.403(4).
"Appurtenant works means any artificial improvements to a dam which
might affect the safety of such dam or, when employed, might affect the
holding capacity of such dam or of the reservoir or impoundment created
by such dam." 373.403(2).
Pursuant to this authorization, the South Florida Water Management
District presently requires permits for the construction or alteration of
"any dam, impoundment, reservoir or appurtenant works thereof where such
impoundment is located on a surface watercourse or relies on a surface
watercourse for its supply or such impoundment is greater than 320 acres
in area." F.A.C. 16K-4.03. To obtain a permit, an applicant must show
(a) the requested act:
1. will not be harmful to the water resources
of the District,
2. will not interfere with the legal rights
of others, and
3. is not against public policy; and
(b) the proposed land use is compatible with the
applicable zoning for the area. F.A.C. 16K-4.03.
Department of Environmental Regulation
The Department of Environmental Regulation (DER) requires permits for
all "filling activities which are to be conducted in or connected directly
or via an excavated waterbody or series of excavated waterbodies to the ...
Gulf of Mexico." F.A.C. 17-4.28. Filling activities are defined as "the
deposition, by any means, of materials onto submerged land." F.A.C.
17-4.02(16). This definition clearly encompasses the proposed placement
of fill in the canals to reinforce the weirs and construct earth plugs.
A short-form application may be submitted and a permit may be issued by
the district office if the project requires emplacement of less that 4,000
cubic yards of material. Fla. Stat. 403.813(1). Otherwise, a long-form
'application must be submitted.
United States Corps of Engineers
The Corps of Engineers (COE) may require a permit under section 404
of the Federal Water Pollution Control Act, popularly called the Clean
Water Act (CWA), before fill may be discharged into waters of the United
States. 33 U.S.C. 1344. Regulations of the Corps define "fill" as,
any pollutant used to create fill in the traditional
sense of replacing an aquatic area with dry land
or of changing the bottom elevation of a waterbody
for any purpose. 33 C.F.R. $209.120(d)(6).
The "discharge of fill material" is defined to mean,
the addition of fill material into navigable waters
for the purpose of creating fastlands, elevations
of land beneath navigable waters, or for impound-
ments of water. The term generally includes, without
limitation, the following activities: placement of
fill that is necessary to the construction of any
structure in a navigable water; the building of any
structure or impoundment requiring rock, sand, dirt,
or other pollutants for its construction. 33 C.F.R.
The authority of the Corps extends to the emplacement of fill in,
All artificially created channels and canals used
for recreational or other navigable purposes that
are connected to other navigable waters, landward
to their ordinary high water mark. 33 C.F.R.
Since Fahka Union Canal is used for navigational purposes, at least
seaward of U.S. 41, the authority of the Corps would appear to extend
throughout the canal system and a permit would therefore be required
before the deposition of fill as contemplated in the Interim Action
Program. However, it is not necessary to make a separate application to
the Corps of Engineers. DER and COE have entered into a memorandum of
understanding for the joint processing of permit applications. F.A.C.
:Ch. 17-4, Supp. No. 18. In accordance with this memorandum, a joint
application may be submitted to DER. DER will then transmit a copy to
the Corps and the two agencies will jointly process it.