Title: Wetlands and Water Law Conference For Engineers, Surveyors and Attorneys - Transcript of Proceedings, Dated April 14-15, 1977, Kissimmee, Florida
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Title: Wetlands and Water Law Conference For Engineers, Surveyors and Attorneys - Transcript of Proceedings, Dated April 14-15, 1977, Kissimmee, Florida
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Language: English
Publisher: Orlando Reporters, Inc.
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Wetlands and Water Law Conference For Engineers, Surveyors and Attorneys - Transcript of Proceedings Dated April 14-15, 1977, Kissimmee, Florida (JDV Box 43)
General Note: Box 18, Folder 4 ( Environmental Information - 1977-1980 ), Item 5
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00004215
Volume ID: VID00001
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Holding Location: Levin College of Law, University of Florida
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WETLANDS AND WATER
LAW CONFERENCE

i FOR ENGINEERS,
SURVEYORS &
ATTORNEYS


TRANSCRIPT OF
PROCEEDINGS



APRIL 14-15, 1977
KISSIMMEE, FLORIDA


Sponsored By:
The Real Property, Probate and Trust Law Section
of The Florida Bar
The Environmental Law Section
of The Florida Bar
The Florida Section
American Society of Civil Engineers
The Florida Society
of Professional Land Surveyors


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WETLANDS AND WATER LAW CONFERENCE
FOR ENGINEERS, SURVEYORS & ATTORNEYS

Sponsored by:
The Real Property, Probate and Trust Law Section
of The Florida Bar

The Environmental Law Section
of The Florida Bar
The Florida Section
American Society of Civil Engineers
The Florida Society
of Professional Land Surveyors

APRIL 14-15, 1977


PROGRAM 9
THURSDAY, APRIL 14- 10
8:00 a.m. REGISTRATION
9:00 a.m. WELCOME
910 a.m. POLICY STATEMENT ENVIRONMENTAL OVERVIEW 11
9:40 a.m. AGENCIES INVOLVED IN REGULATING WETLANDS
1. Corps. of Engineers Jacksonville District Office Staff 12
2. DER James Brindell, Esq., Tallahassee
3. Division of State Planning Louis Hubener, Esq., Tallahassee
4. Chapter 373 Water Management Districts Donald R. Feaster, 13
P.E., Exec. Dir., Brooksville
5. Regional Planning Councils Staffs
12:00 noon LUNCH (included in your registration fee) 14
1:30 p.m. IDENTIFYING WETLANDS
1. Biological R. Linthurst, M.S., Raleigh, N.C.
2. Hydrological C. K. Sarkar, P.E., Naples 15
3. Geological Lorraine Teleky, Esq., Lyndhurst, N.Y.
4. Remote Sensing Analysis Donald Thompson, A.I.A., Atlanta16
3:30 p.m. PROPOSED FLORIDA FRESH WATER BOUNDARY
DETERMINATION ACT OF 1977 Daniel Fernandez, Esq.,
Gainesville; Paul O'Hargan, R.L.S., Naples 17
3:50 p.m. RIVER AND LAKE BOUNDARIES Sherman Weiss, Esq.,
Tallahassee; George Cole, R.L.S., Tallahassee
4:20 p.m. COMMON PITFALLS 18
1. Legal Implication of Unauthorized Dredge and Fill Activities -
Daniel Richardson, Esq., Jacksonville
2. Common Pitfalls in State Regulatory Process W. Daniel 19
Stephens, Esq., Bartow
5:00 p.m. PROGRAM ENDS 20

FRIDAY, APRIL 15 21
8:30 a.m. REGISTRATION
9:00 a.m. COASTAL WETLANDS 22
1. Coastal Setback Lines- William M. Sensabaugh, P.E.,
Tallahassee
2. Finding The Mean High Water George Cole, R.L.S., 23
Tallahassee
,-a-m" l INLAND WETLAND CASE STUDIES
1. Green Swamp George Stahlman, Bartow, Polk County 24
Development Administrator
2. Lake Washington Dr. George Comwell, Gainesville
T NV ENGINEER IN WATER MANAGEMENT Charles King; P.E., 25
I registration fee)
ANT RELATIONSHIPS IN COASTAL
fghodb, EAq., Tallahassee; Dan Farley,
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Sponsored By

The Real Property, Probate and Trust Law Section
of the Florida Bar

The Environmental Law Section
of The Florida Bar

The Florida Section
American Society of Engineers

The Florida Soceity
of Professional Land Surveyors




THE PRESENTATION OF

MR. GEORGE CRAIG




AS REPORTED BY


LELAND GAMBLING, C.S.R., C.M., R.P.R.
Notary Public
State of Florida at Large




April 14, 1977


ORLANDO HYATT HOUSE
6375 Space Coast Parkway
Kissimmee, Florida 32741







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WETLANDS AND WATER LAW CONFERENCE

FOR ENGINEERS, SURVEYORS & ATTORNEYS







1 PROCEED ING 1

2 MR. CRAIG: Good morning. Colonel Donald Wisdom 2

3 would like to express his appreciation for

4 allowing the Corps to be a part of this 4

5 program. We always like to present as much

6 information as we can to as many people about

7 the 404 program in our wetlands protection

8 program so that we avoid a lot of those phone

9 calls.

10 I would like to ask the man in the back 1

11 to turn on the slide projector, and I'll go 11

12 into a little bit of the history of the 1E

13 program and then Burt will discuss a great 1:

14 deal about the criteria that the Corps is 1I

15 using in evaluating wetlands permits, and 1

16 then I'll give a little brief presentation 11

17 at the end on where we're going from here. 1

18 We have presently some legislation that 1

19 may affect our jurisdiction considerably, 1

20 particularly in what are known as Phases Two 21

21 and Three. We have the Rivers & Harbors Act 2

22 of 1899 as the first piece of major 2Z

23 legislation that affects wetlands in Florida 2

24 and elsewhere. We until about 1968 were 2

25 primarily concerned with just if your 2


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structure or fill blocked navigation. Of

course, this changed with increasing

environmental awareness in our country, and

the Corps pronounced new rules in December

of 1968, giving a widespread area of public

interest review. We continued this procedure

up until the present time through any Section

10 permit.

Now, in about 1972, the Corps promulgated

a regulation on the definition of navigable

waters of the United States, and in that

definition we said, we expanded our

jurisdiction into these wetlands that were

below the mean high water line. It added

below the ordinary high water line. It did

include marshes and shallows, provided they

were below the mean high water line. And the

surveyors had a good time, I guess, tromping

through the mangroves to try to find the mean

high water line, and we have litigated a

number of cases over where that elusive line

is. And we promulgated that regulation in

September of 1972, and Congress decided to

change the rules in October of 1972 and passed

the Federal Water Pollution Control Act



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1 Amendment.

2 Now, the Corps, having decided that they

3 spent a long time on promulgating a regulation

4 to define navigable waters of the United

5 States, took three years before it decided

6 it was going to change its navigable waters

7 of the United States. Well, actually, they

8 didn't decide; they had a little bit of arm

9 twisting. We had the Holland case in Florida,

10 which some of you are aware of, in which EPA 1

11 litigated against a developer over in St. 1

12 Petersburg and determined that mean high water 1.

13 line was not the criteria, that it went up 1

14 into coastal wetlands that are periodically 1

15 inundated by the tides and we were also 1

16 sued by the Natural Resource Defense Council. 1

17 And the Court in Washington ruled that the 1

18 Corps would issue new regulations to come up 1

19 with an expanded jurisdiction above the mean 1

20 high water line in coastal wetlands and also 2

21 in freshwater wetlands. 2

22 The term in the FWPCA was "Waters of the 2

23 United States," even though the Act, 2

24 throughout the FWPCA, talks in terms of 2

25 navigable waters, and the Courts gave us the 2


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expanded jurisdiction.

Now, the Corps also has applied to it

a series of additional legislation that aids

in the public interest review process. The

Fish & Wildlife Coordination Act was

promulgated in 1958, but it started to get

emphasis in about 1968, and in 1970, I think,

they signed the memoranda of understanding

between the Secretary of Interior and

Secretary of the Army relatingto coordination

on Corps permits. It means, basically, that

if the Department of Interior objects to a

project that the Corps things it might issue

a permit on, the decision has to go to

Washington or at least to Atlanta to see if

the Corps can overcome Interior's objections.

Obviously, if Interior registers an

objection to a project, it can mean a

considerable delay to anybody seeking a

permit. We have NEPA, which relates to any

major projects that you may have under

consideration. That was passed in 1969.

It involves the preparation of an environmental

impact statement when the granting of the

Federal permit may be a major Federal action







1 significantly affecting the quality of human

2 environment. That long phrase has been

3 interpreted in a number of cases, all of which

4 does not help clarify exactly what it says.

5 I can say that in the Jacksonville district

6 every project gets a threshold look at,

7 whether or not it is one, and then we wait

8 for comments from the general public, and if

9 controversy arises, a considerable amount of

10 controversy arises, there's a very good

11 chance, even though it may seem like a middle-

12 sized project or a smaller-sized project,

13 that an environmental impact statement will

14 be prepared.

15 We have the Coastal Zone Management Act

16 of 1972, which I'm not going to say a great

17 deal about, since the State does not have an

18 approved coastal zone management plan. When

19 the State does, it can mean that it's another

20 stopping point in the coastal zone areas

21 before you can get a Corps permit for

22 development, whether it's in wetlands or in

23 other areas.

24 One other act that is not shown on the

25 slides is the Endangered Species Act. Much


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1 of Florida coastal areas are known as

2 critical habitat and have been designated as

3 such for the Florida manatee. In addition,

4 parts of the Everglades National Forest and

5 in that area has been designated critical

6 habitat for the Florida alligator -- Florida

7 crocodile, excuse me.

8 The significance of this Act is that

9 the Corps, as in the Fish and Wildlife

10 Coordination Act, has to go through certain

11 formal coordination procedures with the

12 Department of Interior to determine whether

13 or not the authorization of a Federal permit

14 will significantly affect or modify the

15 habitat of an endangered species, in this

16 case, the Florida manatee or the Florida

17 crocodile.

18 There may be other plants and other

19 animals which could be designated as

20 endangered species and in which certain

21 habitat would be designated as critical

22 habitat where the Corps would have to go

23 through these formal consultation procedures.

24 The Federal Register in mid-January

25 showed a proposed rule on consultation



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1 procedures, and the Jacksonville District

2 is beginning to follow those procedures,

3 even though they have not been finalized as

4 a rule in obtaining consultation from

5 Interior. In essence, it requires a 60-day

6 threshold determination by Interior, and then

7 upon receipt of all the information, they

8 have 60 days in which to give a final decision

9 to the Agency on whether or not there is a

10 significant effect on the habitat by the

11 authorization of a permitted project.

12 Finally, the Court cases that have had

13 a great deal of bearing on our permits

14 program, first of all, was Zabel v. Tabb, in

15 1970. That Fifth Circuit decision allowed

16 the Corps to get into that extensive public

17 interest review. Further, it is one that

18 did away with this old criteria of navigation

19 and allowed us to get into this full fledged

20 environmental review.

21 The second major case would be NRDC v.

22 Hoffman, or the Secretary of the Army, that

23 got us into the 404-B jurisdiction.

24 I'd like to turn the microphone over now

25 to Mr. Heimer, who will explain a great deal


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.1 of the criteria they use in evaluating

2 wetlands projects.

3 *

4(At this point, the

5 presentation of Mr. Bert Heimer was given,

6 after which the following presentation by

:7 Mr. Craig was continued:)

8 One thing Bert didn't give you and I

9 think you might want to take it down for your

10 own reference, we'll give you the Jacksonville

11 District's Permit telephone number, which

12 is Area Code (904) 791-2211, and as we say,

13 that the Jacksonville area is, of course,

14 peninsular Florida. If you're west of the

15 Aucilla River, Mobile District will be

16 handling the permit application. Peninsular

17 Florida is in the Jacksonville District. I

18 don't have Mobile's telephone number. (It's

19 (205) 690-2660) And I'm sure if you just

20 state the area that you're interested in

21 talking about a permit, they can direct you

22 to the proper project manager.

23 I'd like to at least briefly talk about

24 H.R. 3199, which is a bill, part of the

25 Wright Amendment, which has passed the House


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i 1 and is in committee with the Senate, and this

2 bill significantly changes the Corps'

3 jurisdiction, not necessarily in coastal

4 wetlands, not necessarily in freshwater

5 wetlands, but in phases two and three that

6 we've talked about before. The Bill added

7 the concept of "adjacent wetlands" to the

8 term "navigable waters" and adopts pretty

9 much the definition of adjacent wetlands that

10 is talked about in the Corps' July, 1975,

11 regulation. It reads pretty much word-for-

12 word. Indeed, it includes the concept that

13 I find a little unique, that is, adjacent

14 or contiguous wetland, and the Corps is

15 taking the position that by "adjacent," if it

16 is separated by a dike, it can still be

17 within our jurisdiction from the waterway

18 that is nearby, and dike wetlands have been

19 and are continuing to be subject to our

20 regulatory jurisdiction.

21 The Bill does away with the concept of

22 historic navigation for determining whether

23 or not the wetland area is subject to our

24 jurisdiction. In other words, the Bill says

25 that the term "navigable waters" shall mean


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1 "all waters which are presently used or are

2 susceptible to use in their natural condition

3 or by reasonable improvement as a means to

4 transport interstate or foreign commerce

5 shoreward to their ordinary high water mark,"

6 and as well as the mean high water mark. It

7 does away with the concept of historic

8 navigability in making a determination as to

9 whether 404 jurisdiction would apply. That

10 may mean something to the lawyers. I'm sure

11 the engineers have a great deal of trouble

12 with that concept, anyway.

13 It carries over the "characterized by

14 wetland vegetation" and that term, I would

15 like to elaborate a little bit. It means

16 that even if the area doesn't have the

17 vegetation, but a biologist says that it

18 could be characterized by the vegetation,

19 such as the situation where someone has come

20 in and cleared the area, but which you can

21 now see it would still be inundated and

22 mangrove probably could eventually establish

23 themselves, that we would be asserted

24 jurisdiction in that area.

25 The Bill gives the State the option of


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1 regulating phases two and three, providing

2 they enter into an agreement with the Chief

3 of Engineers.

4 It gives the Corps statutory authority

5 for general permits. You may have seen some

6 who are generally using it for docks and

7 permissible smaller structures. In Georgia,

8 they are working on a permit for clay

9 excavation. It is a concept that can cut a

10 lot of red tape, and we're going to be

11 working closely with the State in coordinating

12 our general permits along with their

13 exceptions.

14 The Bill also carries over some of the

15 exemptions that are contained in our July,

16 1975 regulations, including the determinations

17 related to "normal farming, silviculture,

18 ranching activities, including but not

- 19 limited to plowing, terracing, cultivating,

20 seeding, and harvesting for the production

21 of food, fiber, and forest products."

22 It allows "maintenance of currently

23 serviceable structures, including dikes,

24 dams, levees, groins," et cetera, et cetera.

25 The Bill also has in it that applies


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1 not only to the Corps but to EPA provision

2 that allows after an agency like the Corps

3 or EPA has promulgated a regulation, it

4 Allows a period of 60 days for the Congress

5 after it has gone into Session, from 60 days

6 in which the Congress may by a vote of either

7 House or the Senate overrule the regulations

8 put in by the agency. So that the Corps

9 could come in and redraft their current

10 regulations as they may have to do if the

11 Bill goes through, and the House or Senate

12 could strike them down. This is, I guess,

13 Florida is doing this, and I think that we're

14 going to see more of this in a Federal level

15 where the House and Senate want to have some

16 say-so over whether or not the rules and

17 regulations that Federal agencies are

18 implementing are consistent with the

19 legislation the Congress enacted.

20 I will put a copy of the two sections

21 that we've talked about in the -- give them

22 to the Court Reporter, and he will include

23 them in the transcript that he sends to you.

24 Thank you very much.

25


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1 EXCERPT
E x c E R p TI.

2

3 95th CONGRESS 1st Session

4 H.R. 3199
IN THE HOUSE OF REPRESENTATIVES
5

6 A BILL

7 * *

8 PERMITS FOR DREDGED OR FILL MATERIAL

9 Sec. 16. (a) Subsection (a) of section

10 404 of the Federal Water Pollution Control

11 Act (33 U.S.C. 1344) is amended by adding

12 immediately after "navigable waters" the

13 followings: "and adjacent wetlands".

14 (b) Such section 404 is further amended

15 by adding at the end thereof the following

16 new subsections:

17 "(d) (1) The term 'navigable waters' as

18 used in this section shall mean all waters

19 which are presently used, or are susceptible

20 to use in their natural condition or by

21 reasonable improvement as a means to

22 transport interstate or foreign commerce

23 shoreward to their ordinary high water mark,

24 including all waters which are subject to

25 the ebb and flow of the tide shoreward to


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1 their mean high water mark (mean higher high

2 water mark on the west coast.)

3 "(2) The term 'adjacent wetlands' as

4 used in this section shall mean (A) those

5 wetlands, mudflats, swamps, marshes, shallows,

6 and those areas periodically inundated by

7 saline or brackish waters that are normally

8 characterized by the prevalence of salt or

9 brackish water vegetation capable of growth

10 and reproduction, which are contiguous or

11 adjacent to navigable waters, and (B) those

12 freshwater wetlands including marshes,

13 shallows, swamps, and similar areas that are

14 contiguous or adjacent to navigable waters,

15 that support freshwater vegetation and that

16 are periodically inundated and are normally

17 characterized by the prevalence of vegetation

18 that requires saturated soil conditions for

19 growth and reproduction.

20 "(c) Except as provided in subsection (f)

21 of this section, the discharge of dredged or

22 fill material in waters other than navigable

23 waters and in wetlands other than adjacent

24 wetlands is not prohibited by or otherwise

25 subject to regulation under this Act, or


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1 section 9, section 10, or section 13 of the

2 Act of March 3, 1899.

3 "(f) If the Secretary of the Army,

4 acting through the Chief of Engineers, and the

5 Governor of a State enter into a joint

6 agreement that the discharge of dredged or

7 fill material in waters other than navigable

8 waters and in wetlands other than adjacent

9 wetlands of such State should be regulated

10 because of the ecological and environmental

11 importance of such waters, the Secretary,

12 acting through the Chief of Engineers, may

13 regulate such discharge pursuant to the

14 provisions of this section. Any joint

15 agreement entered into pursuant to this

16 subsection may be revoked, in whole or in

17 part, by the Governor of the State who entered

18 into such joint agreement or by the Secretary

19 of the Army, acting through the Chief of

20 Engineers.

21 "(g) In carrying out his functions

22 relating to the discharge of dredged or fill

23 material under this section, the Secretary of

24 the Army, acting through the Chief of

25 Engineers, is authorized to issue those


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1 general permits which he determines to be in

2 the public interest.

3 "(h) The discharge of dredged or fill

e4 material--

5 "(1) from normal farming,

6 silviculture, and ranching activities,

7 including, but not limited to, plowing,

8 terracing, cultivating, seeding and

9 harvesting for the production of food,

10 fiber, and forest products;

11 "(2) for the purpose of maintenance

12 of currently serviceable structures,

13 including, but not limited to, dikes, dams,

14 levees, groins, riprap, breakwaters,

15 causeways, and bridge abutments and

16 approaches, and other transportation

ed 17 structures (including emergency

S18 reconstruction); or

19 "(3) for the purpose of construction

20 or maintenance of farm or stock ponds and

21 irrigation ditches,

L 22 is not prohibited by or otherwise subject to

)f 23 regulation under this Act.

24 "(i) The discharge of dredged or fill

25 material as part of the construction,


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1 alteration, or repair of a Federal or

2 federally assisted project authorized by

3 Congress is not prohibited by or otherwise

4 subject to regulation under this Act if the

5 effects of such discharge have been included

6 in an environmental impact statement or

7 environmental assessment for such project

8 pursuant to the provisions of the National

9 Environmental Policy Act of 1969 and such

10 environmental impact statement or

11 environmental assessment has been submitted

12 to Congress in connection with the

13 authorization or funding of such project.

14 "(j) The Secretary of the Army, acting

15 through the Chief of Engineers, is authorized

16 to delegate to a State upon its request all

17 or any part of those functions vested in him

18 by this section relating to the adjacent

19 wetlands in that State if he determines

20 (a) that such State has the authority,

21 responsibility, and capability to carry out

22 such functions, and (b) that such delegation

23 is in the public interest. Any such

24 delegation shall be subject to such terms

25 and conditions as the Secretary deems


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necessary, including, but not limited to

suspension and revocation for cause of such

a delegation.".





























































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1

2 WETLANDS AND WATER LAW CONFERENCE

3 FOR ENGINEERS, SURVEYORS & ATTORNEYS

4
Sponsored By
5
The Real Property, Probate and Trust Law Section
6 of The Florida Bar

The Environmental Law Section
of The Florida Bar
8
The Florida Section
9 American Society of Engineers

10 The Florida Society
of Professional Land Surveyors
11

12

13 THE PRESENTATION OF

14 MR. BERT HEIMER
CORPS OF ENGINEERS
15 JACKSONVILLE DISTRICT OFFICE

16

17 AS REPORTED BY

18 LELAND GAMBLING, C.S.R., C.M., R.P.R.
Notary Public
19 State of Florida at Large

20

21 April 14, 1977

22
ORLANDO HYATT HOUSE
23 6375 Space Coast Parkway
Kissimmee, Florida 32741
24

25



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PI R S
S1 PROCEEDINGS

2 MR. HEIMER: The regulatory branch is the district

!3 element that processes applications for

4 Department of Army permits. Like George

5 said, as a result of the NRDC ruling, we have

6 had to go into an expanded jurisdiction in

7 areas above where we normally held

8 jurisdiction. This slide shows a possible

9 area within a river. At some point in that

10 river, we callit the head of navigation, and

11 beyond that point we did not have

12 jurisdiction for any permits.

13 Along the portion of the river which we

14 call navigable waters of the United States,

15 our jurisdiction was to the ordinary high

16 water line. That term was defined very, very

17 vaguely in the '72 regulations that define

18 navigable waters of the United States and

19 said that it was the normal high of a river

20 not considering the unusual highs nor unusual

21 lows. There was no way that an engineer

22 could compute the ordinary high water mark

23 of a river in areas above tidal action. We

24 recommended to the Chief Engineer that they

25 use the 25 percent point on a stage duration


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1 graph, saying that ordinary high water being

2 the place where the river is never higher

3 than that point 25 percent of the time.

4 The regulations that we got on 25 July

5 accepted our recommendations, but changed

8 "stage" to "flow," so now you have to have

7 a flow duration curve for any river if you're

8 going to get real technical on where the

9 ordinary high water line is, and I don't know

10 of too many rivers where we have flow

11 duration curves. We have stages in rivers

12 all over the State of Florida, and we can

13 get stage duration curves, but not flow

14 duration curves.

15 Along the coastal areas, the jurisdiction

16 was the mean high water, which, as you know,

17 is the average of all the high waters over

18 a certain cycle of 19 and a half years.

19 Because of the Court ruling, we went into

20 what is called the three phase expanded

21 jurisdiction. Phase one of the regulations

22 took us -- We kept the same navigable waters

23 of the United States, but we encompassed all

24 wetland areas adjacent or contiguous to

25 navigable waters of the United States.



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H' 1 Phase two was effective 1 July of last 1

2 year, took us into primary tributaries of

navigable waters of the United States and 3
4 natural lakes larger than five acres. 4

|5 Phase three, which will be effective 5

6 1st July of this year, takes us into all other 6

7 waters to their headwaters and all their 7

8 contiguous or adjacent wetland areas, the 8

9 headwater of the river being defined as the 9

10 point of the five c.f.s. flow. We've often 10
11 been asked how we are going to determine the 11

12 five c.f.s. flow. 12

13 This slide shows our expanded 13

14 jurisdiction in a coastal area, wetland area, 14

15 anywhere in Southwest Florida. In this area 15

16 our jurisdiction would have been to the mean 18

17 high water, only. The mean high water line is 17

18 very difficult to find in this coastal area, 18

19 but if you could have found it, it probably 19

20 would be somewhere around the center of the 20

21 slide, which means all the wetland areas 21

22 landward of the center of the slide were 22

23 subject to development. 23

24 Now, assume that this is the saltern; 24

25 it is not the saltern that was on the landward 25


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|1 that saltern. 1

2 It is because of the things that have 2

3 happened that we have learned to recognize 3

4 the value of areas such as this. Those of 4

5 you who saw the movie last night will 5

6 recognize that engineering technology has

7 been around for a long time. A hundred years 7

8 ago we could do things as engineers, but we 8

9 did not recognize until very recently that 9

10 these areas need protection, and there's an 10

11 instrument and a way to go about it, and if 11

12 you would turn the slide projector off, I'd 12

13 like to go a little bit into the Corps' 13

14 procedures and criterias for evaluating j14

15 permits for working in wetlands. 15

16 An applicant submits an application. 16

17 Almost always it is returned for additional 17
17

18 information, certainly enough information

19 from which we can prepare some sort of 19

20 preliminary environmental assessment. It is 20

21 not a formal document. It is information

22 from which we have to make a preliminary 22

23 decision whether or not an environmental 23

24 impact statement is required. ,24

25 If the decision is that an environmental 25


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P -I


1 impact statement is required, the developer

2 is in a lot of trouble time-wise. We have

3 gone through a flow chart telling people that

4 we can do an EIS, putting everything on the

5 critical path, in about 19 months. We've

6 never done one yet in 19 months. We've had

rs 7 developers tell us that they're going to

8 break it, they're going to do it in one year,

9 but it hasn't happened.

in
n 10 But, assuming that an EIS is not needed

11 because of the magnitude of the project or

12 because of the environmental impact of the

13 project, we make that preliminary decision

14 with the preliminary environmental assessment

15 and prepare and issue a public notice going

16 out for coordination, normally 30 days.

al 17 Agencies can request extension of time up to


18 75 days. If there are requests for public

19 hearing under the Act we must honor the

20 request and have a public hearing. If there

21 are no requests for public hearing, we coordi-

22 nate all the comments with the applicant,

23 give him a chance for rebuttal, possibly have

24 interagency meetings or meetings whereby he

ttal 25 might modify his project somewhat, assuming



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1 somewhere along the line he'll take a stand 1
2 2
S2 and say, "I can't give up any more," because

3 normal modification is limited to one thing, 3

4 and that is, to the developer giving up real 4

5 estate. He's to pull back from the wetland 5

6 areas. If he's got sufficient land, fine, i

7 but if he doesn't and he's trying to make the 7

8 project a go project, somewhere he's going to 8

9 have to hold the line. At that point, then, 8

10 the Corps must go through their decision 10

11 making process, and there are three things 11

12 that we consider and that probably those 12

13 representing developers should read and 13

14 realize what our rules are. 14

15 They are: The Corps' wetlands policies

16 found in paragraph G3 of our permit

17 regulations that came out the 25th of July, 15

18 1975, 33CFR, 209.

19 The second thing being EPA's 404(B) 1I

20 guidelines which the Corps must use in 2(

21 evaluating any projects for fill and wetland, I 21

22 which came out in the Federal Register of 2

23 5 September 1975, 40CFR,230. 2

24 And the third thing is our own public 2A

25 interest review factors found in our 2!


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1 regulations in paragraph F.

2 Very briefly, to point out some of the

3 things in the Corns' wetlands policy;

4 Paragraph G3 of our regulations says,

5 "Wetlands serve important purposes relating

6 to fish, and wildlife, recreation, and other

7 elements of general public interest as

8 environmentally vital areas. They constitute

9 a productive and valid public resource."

10 Here's the point: The unnecessary alteration

11 or destruction of which should be discouraged

12 as contrary to the public interest.

13 So, the Chief of Engineers has told the

14 District Engineers that it is not in the

15 public interest to allow or issue a Federal

16 permit for work which would cause an

17 unnecessary destruction of wetland areas.

18 Then, they clarify what productive or

19 important wetland areas are. We have six

20 categories of wetlands. They are very

21 general.

22 One, wetland which serves important

23 natural biological function; two, wetlands

24 which are set aside for certain studies;

25 three, wetland contiguous to the above-



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1 mentioned wetland. That means that if you

2 have a coastal wetland that has some sort

3 of biological importance, wetlands contiguous

4 to that coastal wetlands is part of the

5 wetlands we're supposed to protect whether or

6 not they are important, themselves. Thus,

7 the criteria kind of tells us that it is not

8 for us to evaluate whether the wetland areas

9 is important wetland, or not, if it's

10 contiguous to an important wetland.

11 Three, wetlands which shield other areas

12 from wave action, erosion, storm damage, 1

13 and they tell us that this also includes i

14 barrier-islands, including possibly all of

15 Hutchison Island and all of the eastern

16 islands on the coast of Florida. Wetlands

17 which serve as storage areas for flood waters,,

18 wetlands which are a prime natural recharge

19 area. Then, they tell us that no permit

20 shall be granted for work in wetlands that i2

21 are identified as important, unless the

22 public interest review indicates that the 2:

23 benefit of the alteration will outweigh the

24 damage and that the alteration is necessary

25 to realize the benefits. That gives the 2


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1 District Engineer a decision making procedure.

2 He has to go through and say whether or not

it's in the general public interest to allow

the alteration of these wetlands.

5 EPA's 404(B) guidelines are somewhat

6 restrictive. We have to apply them in all

7 cases for work in wetlands. There are two

8 paragraphs we have to consider; paragraph

9 230.4, Ecological Evaluation, and paragraph

10 230.5.

11 Paragraph 230.5 has two sub-paragraphs,

12 (A) and (B). Sub-paragraph (A) has eight

13 objectives. Sub-paragraph (B) has ten very

14 strong restrictions.

15 The eight objectives of sub-paragraph

16 (A) are: To avoid activities that will

17 disrupt the biology integrity of the aquatic

18 ecosystem, avoid activities that significantly

19 disrupt the nutrient chain, that inhibit

20 movement of fauna, that destroy wetland that

21 helps maintain water quality, avoid activities

22 that destroy wetlands that retain natural high

23 or flood waters, minimize adverse turbidity

24 level, avoid activities that degrade

25 aesthetics, recreational, and economic values,


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i 1 and avoid degradation of water quality.

S2 Now, the restrictions of sub-paragraph

3 3
(B) are: No discharge in proximity of public

4 water supply intake, no discharge in areas
5 5
5 of shellfish production, we are supposed to
S8
6 avoid disruption of fish spawning and nursery

areas, minimize impact on habitat, food chain

8 8
8 and wildlife, minimize impact on recreational

9 areas, no discharge that will jeopardize the

10 continued existence of threatened or 1

11 endangered species. That particular item is 11

12 also, as George mentioned, covered under the 12

13 Endangered Species Act, which is now in

14 effect, and we have to have certain consulta-

15 tion with the Department of Interior if we 15

16 determine that a particular activity would 16

17 jeopardize the continued existence of a

18 threatened or endangered species. That

19 determination must be made by the Corps of

20 Engineers, not by the Interior. 20

21 The discharge must have minimal impact 21

22 on bentic life, and paragraph (B)(8), that is 22

23 probably the most important of all having to 23

24 do with wetland: "No discharge in wetlands 24

25 unless the site is the least environmentally 25


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1 damaging alternative, other alternatives are

2 not practical, and the discharge will not have

3 an unacceptable adverse impact on aquatic

4 resources.

5 No discharge in wetlands unless applicant

6 clearly demonstrate two things; one, the

7 water dependency of the activity or other

8 site construction alternatives are not

9 practical, and that the discharge will not

10 cause a permanent unacceptable disruption

11 to beneficial water quality uses that would

12 affect the water ecosystem.

13 Our public interest review found in

14 paragraph "F" of the regulation is supposed

15 to be the evaluation on which we made a

16 decision whether or not a permit should be

17 issued or denied. If we decide the permit

18 should be issued and there are no

19 outstanding objections from other Federal

20 agencies, and the State has issued the water

21 quality certification and the State permit,

22 the permit can be issued at the District level.

23 If the State has issued and if there are

24 no outstanding objections from other Federal

25 agencies, but we want to deny based on our


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1 own public interest review criteria, we must

2 go up the line seeking authority to deny the

3 permit. The District can only deny a permit

4 based on navigation. If the State has

5 issued and we want to issue, but there are

6 outstanding objections from Federal agencies,

7 we must go up the line seeking authority to

8 issue a permit over the objections of a

9 sister Federal agency. The District Engineer

10 cannot issue a permit over another Federal

11 agency's objection.

12 Our public interest review says that the

13 decision will be based on evaluation of the

14 probable impact of the work and its intended

15 use on the public interest. A very general

16 statement.

17 This review requires a careful weighing

18 of all factors that become relevant in each

19 particular case. In cases involving

20 discharge of fill and wetlands, that includes

21 the Corps' own wetlands policy and evaluation

22 of the 404(B) guidelines. The decision

23 should reflect natural concern for both

24 protection and usage of important resources

25 factors that may be relevant, including but


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1 not limited to conservation, administration,

2 esthetics, historical values, fish and

3 wildlife values, environmental concern, flood

4 damage prevention, land use classification,

5 navigation, recreational use, water supply,

6 water quality and, in general, the needs and

7 welfare of the people. A lot of these are

8 not applicable for in working wetlands, of

9 course.

10 Then, it goes on to say, "No permit

11 will be issued unless the issuance is found

12 to be in public interest," and we have four

13 general criteria that must be considered;

14 one, relative extent of public and private

15 need; two, desirability of using appropriate

16 alternative locations and methods to

17 accomplish the objectives; three, extent and

18 permanence of the beneficial or detrimental

19 effects that the work may have on public and

20 private uses to which the area is suited;

21 four, probable impact in relation to

22 cumulative effect increased by existing and

23 anticipated structures in the general area.

24 So that in concluding, we'd like to

25 recommend that if you have a project,


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[---



SI1 although our regulations do not allow us to

2 prejudge an application, we cannot tell you

3 whether a permit will be issued or denied in

4 the case until we have gone through all the

5 arguments and procedures, even if it takes

6 five years. If you still have a project and

7 you'd like to talk to us about it, come and

8 see us. We will be more than glad to tell

9 you our opinions of whether or not the

10 project meets the 404(B) guidelines, whether

11 or not it will meet the Corps' own wetland

12 policies criteria, and whether you should

13 pursue it, or if it's a deadend case; you

14 won't go to a lot of trouble at the end only

15 to have it denied.

16 Thank you very much.

17

18 *

19

20

21

22

23

24

25


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THE PRESENTATION OF

MR. ROSS McWILLIAMS

ESTATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

DIVISION OF ENVIRONMENTAL PERMITTING



































-36-







r


1


PROCEEDINGS


MR. McWILLIAMS: Thank you and good morning. I suppose it's only
appropriate that we ask ourselves why wetlands are worth
protecting, if they are, and what do we typically describe
as wetlands in the State of Florida. I'll begin with a
simple scheme for categorizing Florida wetlands. Perhaps
"simple" is not the correct word. Perhaps "simplistic," is
better but I think it will give you a good overview of what
we consider to be wetlands in the State of Florida. If you
came in this morning or last night on an airplane, you've
probably already seen most of these areas that I'm going
to describe.
Wetlands in Florida can be divided into two broad
categories; coastal wetlands and interior wetlands. Our
coastal wetlands are salt water wetland which can be further
divided into unvegetated, sandy beach areas and vegetated
wetlands.
In the interior of the state, we have vegetated wet-
land and they are further broken down into subcategories.
The sandy beaches in Florida, as I mentioned, are
unvegetated. They play a major role in Florida tourism.
They provide areas for swimming, they provide nursery
grounds for juvenile fish, and the esthetics of sandy
beaches are appreciated by both native Floridians and
tourists alike.
The remaining dune systems in Florida, although
topographically distinct from the sandy beach or sandy
intertidal area, can be considered as a necessary element
of the unvegetated coastal wetlands. Currently, we have
-37-









dune systems on the East Coast extending from North of

the St. Johns River down past St. Augustine and a little

south of there. The east coast of Florida experienced

some of the earliest development, and the once extensive

dune system is found now only as remnants.

On the Gulf, we still have extensive dune systems

extending from the northern limits of the low energy zone

(approximately due south of Tallahassee) on west to the

State border.

These dune systems function today as the only ex-

isting source of sand to naturally renourish the beaches

in the State of Florida. In the past, undeveloped rivers

transported sediments down to the coast where the sediments

would be distributed and sorted by longshore currents and

the beaches thus maintained. This is no longer the case

and the primary source of sand available to maintain the

beaches now comes from the adjacent dune systems.

The vegetated saltwater wetlands serve many functions.

And let me interject here that these benefits or functions

that I'm speaking of today are benefits that are derived

by the population of Florida at zero cost, that is, these

wetlands in their natural state provide these benefits

without cost to the taxpayer. These saltwater wetlands

serve to stabilize shorelines and reduce storm surge.

Mangroves and most often credited with this function but

we have many low energy shorelines on the Gulf Coast which

have broad expanses of various marsh grasses which do the

same thing. They provide nursery grounds for commercial

species of fish and shellfish as well as functioning in


-38-








nutrient uptake and transport. These are buffer areas.

they prevent the offshore waters from being impacted

directly by man's upland activities in the coastal zone.

They function as wildlife habitat; migratory birds use

these wetlands as sites for feeding and resting. These

wetlands are used for recreation, including fishing, and

hunting, and finally, they function in water quality

maintenance.

The vegetated freshwater wetlands have many similar

functions. One of their primary functions and one which

is rapidly passing with time is their ability to control

flood waters. Natural rivers and natural streams typically

possess flood plains which are able to hold water and re-

lease it slowly. The vegetation in these flood plains is

adapted to and dependentent on this periodic flooding and

will moderate the rapid input of fresh water. This par-

ticular function is one of the first functions that was

tampered with by man when he entered the State of Florida,

or when he entered the Territory of Florida, and we now see

the evidence of this in our extensive canal systems, in our

straightened rivers, and in our neverending battle for flood

control and the taxes that support these endeavors. This

flood control was originally free. We presently pay the

price for imposing our own types of flood control. We have

reaped benefits from im pin going on the environment. We've

exposed lands for agricultural, we have created areas as

wildlife refuges and cattle range, but we continue to pay

to maintain these lands.



-39-
ii








Freshwater wetlands of Florida function in water

storage and supply. This is becoming one of the most

important aspects of our freshwater wetlands. The topis

of water supply is typically in the newspaper at least

once a day. The water management districts are currently

dealing with this and other aspects of the wetlands.

Wetlands function in aquifer recharge. Many of the

wetlands in the State of Florida exists on relatively flat

lands at an elevation much above that of your surrounding

coastal areas. It's in these areas that the aquifer is

typically recharged.

The freshwater wetlands function in water quality

maintenance. They provide for water of a quality that is

suitable for drinking, is suitable for swimming, other body

contact sports, and fishing.

Perhaps one of the most overlooked functions of the

freshwater wetlands in the State of Florida is wildlife

habitat, both for our game species, and for rare and en-

e dangered species. Florida is one of the few states where

r. it's suspected that the Ivory-billed woodpecker still exists.

o There's the commercial value of the Florida wetlands.

Harvestable timber; approximately 40 years ago the timber

industry completed the large scale harvesting of cypress

e Trees and we're now harvesting the second growth. The

ef maintenance of these wetlands will provide us with
harvestable timber again in the future.

Finally, there are the esthetic aspects of the Florida

wetlands. People come to Florida because they've heard

about the water, the sunshine, and the green foliage.

-40-










Florida has the ability at this time to maintain these

wetlands, to maintain its image, and to combine them with

the abundant sunshine to provide us with a low cost-high

benefit system. If we insist on altering these systems,

we will have to be ready to pay for the maintenance of

them.

Thank you.
































2

2


2.


-41-











WETLANDS AND WATER LAW CONFERENCE

FOR ENGINEERS, SURVEYORS & ATTORNEYS



Sponsored By

The Real Property, Probate and Trust Law Section
of The Florida Bar

The Environmental Law Section
of The Florida Bar

The Florida Section
American Society of Engineers

The Florida Society
of Professional Land Surveyors




THE PRESENTATION OF

MR. ESTES WHITFIELD
DIVISION OF STATE PLANNING
TALLAHASSEE




AS REPORTED BY

LELAND GAMBLING, C.S.R., C.M., P.P.R.
Notary Public
State of Florida at Large




April 14, 1977


OrLANDO HYATT HOUSE
6375 Space Coast Parkway
Kissimmee, Florida 32741



i s *


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1 PROCEED INGS

2 MR. WHITFIELD: I'm standing in for Louis Hubener,

S3 who is the Division Attorney. Lou would

4 probably take a much different direction to

5 this presentation than I will. With Burt's

8 introduction, I feel constrained to modify

7 what I was going to say, but I'm going to try

8 to stick with it. With the time constraints,

9 I'll breeze through a lot of things here and

10 then try to elaborate on some of what I

11 consider the most significant things that the

12 Division of State Planning is doing,

13 particularly the State Comprehensive Plan.

14 I'd like to preface by saying that the

15 Division of State Planning doesn't consider

16 itself to be a regulatory agency, even though

17 there are two or three programs that we're

18 involved in which do smack of that; but on the

19 other hand, I wouldn't want to misinform you

20 and say that we're not somewhat into that

21 business. With that disclaimer, T want to

22 go ahead and get into some of the Division's

23 Wetland's related functions, that is, planning

24 functions.

25 As I mentioned, there are three primary


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programs that the Division administers which

do have regulatory connotations. One is the

DRI process, which is pursuant to Chapter

380, Florida Statutes. Another, the area of

Critical State Concern in the program, which

is also pursuant to Chapter 380, and the State

Clearinghouse, which is actually pursuant to

| Federal Law and Guidelines, but is sanctioned

under Chapter 23, the State Comprehensive

Planning Act.

I feel that most of you have some

familiarity, maybe as much as I do, with the

IS DRI process, and the critical area process, so

1 I won't go into that except by saying that DRI

15 process is primarily a process by which local

8 governments are given the authority to

17 regulate development. The Division's role is

18 to: (I) prepare the DRI thresholds (contained

19 in Chapter 22-F-2, FAC), (2) to prepare

t the application for development approval

21 requirements and guidelines, (3) to monitor

22 the DRI process, and (4) to issue binding

23 letters of interpretation on the possible

24 DRI's. The Division may also appeal a

25 development approval by a local government.


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1 The regional planning council may appeal and

2 also the developer may appeal.

The Division's role in the area of

4 Critical State Concern program is quite

5 different. The Division may study areas and

6 prepare reports with recommendations that

7 certain areas of the State be declared areas

8 of Critical State Concern. If they are

9 designated, that being by the Florida Land

10 & Water Commission, local governments in the

11 affected areas are directly responsible for

12 preparing land use control ordinances and

13 regulations for accomplishing the objective

14 for which the study was initially undertaken.

15 Those objectives may be for protection of

16 the environment; (water, wetlands, et cetera);

17 historic, archeological resources; or protec-

18 tion of a public investment; also an area of

19 Critical State Concern may be designated in an

20 area of major development potential, which

21 may be a site for the community.

22 The third function of the Division as

23 relates to regulation, in a sense, is the

24 Environmental Clearinghouse. The Environmenta

25 Clearinghouse has two primary functions, but



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before I go into that, let me say that the

Environmental Clearinghouse is established

in the Division of State Planning by Chapter

23. The need for the Environmental

Clearinghouse came pursuant to a couple of

Federal Laws, one being the Intergovernmental

Cooperation Act of 1968, the National

Environmental Policy Act of 1969, and the

Demonstration Cities and Metropolitan

Development Act of 1966.

The U.S. Office of Management and Budget

has promulgated a publication entitled

"OMB Circular A-95," which has the purpose of

implementing these laws that I just mentioned.

It requires that States establish a

Clearinghouse. The first function of the

Clearinghouse is to coordinate reviews of

notifications of intent to apply for federal

assistance. What that means is that applicant

who contemplate applying for federal

assistance must prepare and submit to the

Clearinghouse an "advance notification."

The Clearinghouse, in turn, coordinates a

review of this notification of intent with all

the interested and affected state agencies.


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1 Those comments received through the

2 Clearinghouse, are transmitted to the

3 applicant, who is required to append those

4 comments, including the Division's comments,

5 to the application for Federal assistance.

S6 A Federal agency is not very likely to

7 approve a grant, a permit, or mortgage

8 insurance application, or anything else, if

9 it's got adverse State comments attached to

10 it. So, whereas the Clearinghouse is not a

11 regulatory process, if through that process

12 negative comments on a grant application are

13 obtained and are transmitted to the Federal

14 agency, that reduces greatly, almost to zero,

15 the chances of that application being approved.

16 The second function of the Clearinghouse,

17 and this is also contained in Circular A-95,

18 is the environmental impact statement review

19 process. The Division is the environmental

20 impact statement coordinating agency in the

21 State. The way that system works is, when

22 a Federal agency prepares an environmental

23 impact statement, they send sufficient copies

24 to the Division at which time copies are

25 distributed to the various State agencies.


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Upon receipt of comments from those agencies,

the Clearinghouse prepares a State position,

transmits it back to the Federal agency, who

has to consider that and incorporate it into

their final environmental impact statement.

Again, Federal agencies in their attempt

to be consistent with State plans, policies,

and projects, will generally abide by State

comment. So, when a Federal statement comes

through, the State has a tremendous impact on

that. project through the Clearinghouse process.

It is well documented that the Clearinghouse

has been very effective in influencing Federal

spending, Federal legislation, i.e. mortgage

insurance approvals through IIUD, the Soil

Conservation Services work, the Public Works

Program, EPA's programs, the entire gamut of

Federal activities.

The rest of my presentation will be in

terms of what else does the Division of State

Planning do as relates to wetlands. I'm going

to give the Court Reuorter a list of some of

the publications and activities that we're

invovled in and maybe it can be reproduced and

sent out, because I'll try to hurry.



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1 The U.S. Fish & Wildlife Service is

2 presently conducting a nationwide wetlands

I 3 inventory. The Division of State Planning is

k 4 state contact on this project. It's presently

5 underway in the northern portion of the state,

6 and it's expected to be completed by the end

7 of calendar '77 for the entire state.

8 The inventory will utilize a vertical

9 classification system, which identifies

10 wetlands by classes and sub-classes. It's

11 similar to a taxonomic system. The entire

12 U.S. will be mapped at scale, a scale of

13 1-100,000 however, Florida, due to its

14 topography and large amount of wetlands, will

15 be mapped at one-twenty four thousandths.

16 All wetlands or nroup of three acres or

17 larger will be included in the inventory.

18 There will also be a computer data management

S19 system. This map set and system will include

20 classifications of wetlands, the acreage,

21 political location, ecoregion, or physical

22 subdivision, and major watershed location.

23 The Division will be receiving these materials

24 when they're finished. The project has an

25 office in St. Petersburg; it being a new


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program, they invite inquiries.

The Division is involved in what's called

the LUDA Project, Land Use and Cover Data and

Analysis Project, which is basically a land

use mapping project. It's undertaken through

a cooperative agreement with the U.S.

Geological Survey and is essentially complete.

The information is derived from the high

altitude Mark Hurd photography. There are

37 categories of land uses covered, shown at

level two. The resolution is generally about

ten acres in urban areas, built up areas, and

40 acres in rural areas. These maps are

available at a scale of one to one-twenty-six-

seven-twenty.

The Division has also prepared a set of

generalized soil maps for the entire State.

These are general soil interpretations for

each county. The original atlases are

prepared at one inch equals three miles.

However, the data has been transferred to the

LUDA scale of one inch equals one-twenty-six-

seven-twenty. These are available from the

Division. There are five atlases. There are

two regional planning areas per atlas.



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1 The Division was instrumental in

2 development of a Florida Land Use Cover

3 Classifications Systems. This was a document

S4 published in 1976 by the Division of State

5 Planning. However, eight State agencies

6 helped in preparing this. The purpose was to

7 prepare a land use classification system with

8 a variety of uses and under which information

9 can be interchanged. The system is likewise

10 based on the U.S.G.S. system and has

11 hierarchial levels of increasing specificity.

12 There are seven Level One categories and 40

13 Level Two categories which have been agreed

14 upon by these State agencies.

15 Another project the Division is involved

16 in and has been for the last three or four

17 years, has been a Special Project To Prevent

18 The Etrophication of Lake Okeechobee. This

19 project is essentially complete, as far as

20 the Division's work is concerned, and I'll

21 just describe it very briefly. The objective

22 is to improve water quality in Lake

23 Okeechobee. The study determined that there

24 is a problem with the lake. It is polluted

25 by back-pumping from the agricultural areas


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to the south of the lake, and by the cattle

and dairy farms to the north of the lake, and

along Kissimmee River in the upper part of the

basin. The study came out with numerous

recommendations. I think they can be

categorized in four types of recommendations;

one is to retain water in marshes and direct

runoff through marshes rather than directly

into the river and lake; re-establish marshes

in the northern portion of the basin

(approximately 100,000 acres) for water

treatment; store water which is currently

back-pumped into Lake Okeechobee in the

marshes to the south. (This is an area

that's called "The Holy Land.") And the

fourth type of recommendation is improved land

use techniques.

The Division has completed another study

of South Florida. It's entitled the "South

Florida Study." It was a cooperative study

partially funded by the Department of

Interior and the Division of State Planning.

The University of Florida's Center for

Wetlands did the most of the work, the

principal investigator being Dr. H. T. Odom.


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This study is very simply an ecological type

2 land use study of 16 counties of South Florida

S A summary report is out and available from

the Division, and there are special reports

5 in the counties of Collier, Hendry, and Lee.

6 A subsidiary of that study was a manual or

7 a document entitled "The Forested Wetlands of

8 Florida, Their Management and Use." This

document was prepared by the Center for

10 Wetlands, (Dr. H. T. Odom) for the Division of

11 State Planning, and there are very limited

12 copies, but it's a very useful document for

18 planners, and developers, and nature

14 enthusiasts.

15 I've saved the best part for last,and

16 I'm running out of time, but Chapter 23 is

17 called "The State Comprehensive Planning

18 Act." It requires the Division of State

19 Planning to prepare a comprehensive plan for

20
20 the State and set forth goals, objectives,

21
1 and policies for the orderly social, physical,

22
22 and economic growth of the state. Here is

23 the way we interpret the comprehensive plan

24 and the way we've approached it:

25 We foresee the State Comprehensive Plan



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divided into 17 elements. These elements

range from education, to social services, to

housing, to land use, environment,

transportation, environmental resources,

water, and on down the line. Those are

elements of the comprehensive plan. For each

of these elements, within the Division, there

is a project team, a project team which

interacts with its counterparts in State

Government, Federal Government, and the

private world. And through these interactions

and coordinations, meetings, conferences,

and so forth, an individual element is

prepared. When the individual 17 elements

get prepared and lumped together, they'll be

considered the State Comprehensive Plan.

There are presently nine elements of

the State Comprehensive Plan which are

completed in draft form and are being

considered by the Governor presently for

approval. (These nine elements are now

approved by the Governor.) Significant to

this conference would be the Land

Development Element, or the State Land

Development Plan and the Agricultural Element.







1 There are also Recreation and Transportation

2 which would have some significance.

3 There is a water element, but it's in

4 very early draft stages. It will be

5 ultimately integrated into the State Water

6 Use Plan and the State Water Plan, which

7 the water management districts and DER are

8 working on.

9 The Land Development Plan is a set of

10 development goals, objectives and policies.

11 It addresses wetlands directly. It says in

12 so many words, "Wetlands should be protected,

13 but they should be reasonably used in a

14 manner consistent with their values and

15 functions. They should not be destroyed,

18 except for projects of utmost state

17 significance, which require location therein."

18 The State Land Development Plan nor

19 any of the other 3eements that I have worked

20 on on the Comprehensive Plan contemplate new

21 legislation in the area of wetlands. We feel

22 that there is sufficient legal base for proper

23 wetland protection, management and use, but

24 there is a need for increasing the

25 effectiveness of the existing programs not


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only in regulation and planning. Also very

importantly there is a need for increasing

the level of technical knowledge about what

wetlands are, where they are, and what they

are good for.

There's one last item on this list, and

that's the Local Government Comprehensive

Planning Act. The Division of State Planning

has, also, a responsibility in administering

this Act. The Local Comprehensive Planning

Act very briefly says that all local

governments will prepare a local comprehensive

plan by July the 1st, 1979. There are certain

required elements of those local plans, one

being a conservation element which must

address one way or the other water quality,

wetlands, air quality, et cetera. The

Division of Planning does not have veto power

over local comprehensive plans. We have got

review authority, and the Law says that local

plans must consider the comments made by the

Division of State Planning. It also says

that it should be consistent with the State

Comprehensive Plan. Also, it's conceived by

us and most of the people that have been


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1 associated with this comprehensive plan

2 process that the State budget will need to

3 be consistent with the State Comprehensive

4 Plan, and what that means, I don't know, but

5 it has the potential of being very

6 significant. And for that matter, all State

7 activities should be consistent with the

8 State Comprehensive Plan. The includes DRI's,

9 A-95 Projects, regulations, et cetera.

10 I realize my time is up. I hope that

11 I've been more informative than confusing.

12 Thank you very much.

13 (Thereupon, the presentation

14 was concluded.)

15

16 *

17

18

19

20

21

22

23

24

25


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WETLANDS AND WATER LAW CONFERENCE

FOR ENGINEERS, SURVEYORS & ATTORNEYS


Sponsored By

The Real Property, Probate and Trust Law Section
of The Florida Bar

The Environmental Law Section
of The Florida Bar

The Florida Section
American Society of Engineers

The Florida Soceity
of Professional Land Surveyors




THE PRESENTATION OF

MR. DONALD R. FEASTER, P.E.
Executive Director, Brooksville
CHAPTER 373 WATER MANAGEMENT DISTRICTS




AS REPORTED BY

LELAND GAMBLING, C.S.R., C.M., R.P.R.
Notary Public
State of Florida at Large




April 14, 1977


ORLANDO HYATT HOUSE
6375 Space Coast Parkway
Kissimmee, Florida 32741


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1 0 PROCEEDINGS
2 MR. FEASTER: The time is a little bit short this

3 morning, so I'll read through all these

4 documents real fast. Jake said earlier,

5 when we started out with the Corps, that all

6 of us can tell you what authority we have and

7 whether or not we have it from a legal

8 standpoint. Just believe us, we're going to

9 try to do that. I'm going to take a little

10 bit different approach. I'm going to try to

11 tell you what the District is doing in a way

12 to assist you, and I will hit upon our

13 regulatory efforts.

14 We do get involved in regulation, but

15 I feel we are more involved in the wetlands

16 areas in other ways, and we refer to it as

17 a flood plain as opposed to wetland. But, I

18 believe we're into it more from an assistance

19 standpoint. So, as part of that, I'm going

20 to walk you through the various areas we're

21 involved in, and I'll touch lightly on the

22 regulatory areas, too.

23 Jake mentioned about the reorganization

24 and how it happened back in the Water

25 Resources Act of 1972. Before then, there


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was one water management district. The other

point for you to understand is the five water

management districts today fit under the

umbrella of the Department of Environmental

Regulation. Our budgets are submitted

through them. We coordinate through them.

They have certain responsibilities over us,

not total responsibility, certain

responsibilities, and they delegate sections

of Chapter 373 of Florida Statutes to water

"management districts. They retain some of

these responsibilities, but most of them are

delegated.

The Southwest Florida Management

District is some 10,000 square miles, 16 coun-

ties, centered essentially in the Tampa area.

We go about a hundred miles north and a hun-

dred miles south. We come in almost here to

Orlando. Our easterly boundary is

essentially Highway 27, about Haines City.

I've tried to boil down what the

responsibilities of the water management

districts are, and let me make it clear; I'm

talking about this from the position of the

Southwest Florida Water Management District,


I








1 because each district has their own separate

2 governing board of at least nine persons.

3 Currently, we have ten, appointed by the

4 Governor. Each governing board sets the

5 position and policy of that particular

6 district. We operate under the same laws, but

7 our rules and regulations are somewhat

8 different. The very philosophy, the positions

9 of the board, are somewhat different, so some

10 of what I say to you may apply to the other

11 water management districts; some of it may not

12 In one of the earlier presentations

13 which opened up the conference, Ross referred

14 to the coastal wetlands and interior wetlands.

15 Our interest is interior wetland, not coastal

16 wetland, as such. Now, if you look in our

17 rules and regulations, or Chapter 373 of

18 Florida Statutes, that governs the districts

19 and on which our regulations are based, you

20 will see in 373.016 a lengthy shopping list,

21 of responsibilities of the State Department

22 of Environmental Regulation, some of which

23 have been delegated. They're kind of vague,

24 kind of broad.

25 Now, for ease of understanding, I'm going


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to set closer objectives. We at SWFWMD have

divided our objectives, our goals into four

areas of operation; flood control; flood

mapping and delineation; and water use

planning. Each of these areas can be broken

down into great detail, and each of them also

has some involvement in the wetlands or the

flood plain areas.

I'd like to refer first to the flood

control effort. We are a flood control

district, we spend millions of dollars a

year on capital intense public works

projects, some of it creating adverse

environmental problems.

When Ross opened up this morning, he was

talking about the value of interior coastal

wetlands, and he said, one was control of

flood waters. I concur with that completely,

that the headwaters store, supply, recharge,

water, and provide wildlife habitat. I would

like to point out to you how we also are

interested and concerned with these same

basic areas.

Our flood control project has a lot of

construction, including dams, and canals,


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1 primarily, in the Tampa area. When originally

2 conceived in 1962, the Corps of Engineers

S3 had learned from problems in other areas.

4 So, the project is primarily flood

5 control by reservoir detention that is short

6 term flood detention areas. We have acquired

7 and are continuing to acquire thousands of

8 acres costing millions of dollars as flood

9 detention areas, and in many cases we are

10 preserving areas that are natural wetlands.

11 We're preserving areas which had been moving

12 toward development, areas that were being

13 developed which probably shouldn't have been

14 developed, with our Federal project, the

15 "Four River Basins, Florida."

16 We have acquired or are acquiring

17 thousands of acres at millions of dollars'

18 expense, as part of the flood control project

19 and I want to touch on a couple of points

I; 20 that DeWitt mentioned that they're involved

21 in.

22 The Corps of Engineers representatives

23 referred to the National Environmental

24 Protection Act; the Environment Impact

25 Statement; and the State Clearinghouse. Our



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projects go through the Clearinghouse, and

that way we have a cleaner, environmentally

sound project. With the biologists on our

staff, we prepare an environmental assessment.

We did one about seven years ago on the Tampa

Bypass and ran it through the Clearinghouse.

This way we had greater input to the design of

the project -- I mean, "we," at Swiftmud.

Then, after the review was in, we submitted

this to the Corps of Engineers for further

review and incorporation in their official

environmental impact statement. One thing

that showed up on our Tampa Bypass Canal was

that as originally designed, it would lower

the water in some wetlands areas and ground

water pressure. As a result, we added a water

control structure costing about two and a half

million dollars to hold a five foot greater

head back behind it. We're somewhat concerned

we haven't resolved all the problems, so we're

still looking at that. And, recently, working

with the U.S. Geologic Survey, we have put

in additional monitoring wells to see if we

have done enough.

Now, a more important way that we've



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1 taken a look at the Four River Basins

2 Project, is relative to water supply. Back

3 in December of 1969, we asked the Corps of

S4 Engineers by resolution to the United States

5 Congress, to restudy the flood control

6 project to see if it could be turned into a

7 water supply project.

8 That resolution said, "Resolved, that

9 the 'Four River Basins, Florida' project be

10 reviewed with a view to determining whether

11 any modification of the recommendations

12 contained therein is advisable at this time

13 with respect to municipal, industrial,

14 irrigation, and domestic water supply."

15 Going on a step further, and I'm going

16 to come back and review that study in just a

17 minute.

18 Back in 1970, we realized that there

19 were numerous problems that would never be

20 resolved by construction and the expense of

21 millions of dollars on public works. In a

22 lake area in the center part of the district,

23 there was flooding. As we studied the

24 problem of flooding over septic tanks, near

25 homes, under trailers, we realized the lake


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hadn't even reached its natural level.

People had built where they shouldn't have

been allowed to build in the first place.

As a result of that, our board took the

first steps of moving us in the direction of

wetlands or flood plain control. Reading

from the minutes of the February, 1970,

governing board meeting, and this is seven

years ago, I quote: "After a full discussion,

the board instructed the Executive Director

to write to each Board of County Commissioners

within the District to offer the special flood

knowledge services of the District to assist

and encourage the Counties to provide

regulation by way of zoning and building

permit restrictions."

Following that, a letter went out,

dated February 24, 1970, to all 15 County

Commissioners in the District. The meat of

this letter, "It is becoming painfully

apparent here at the Southwest Florida Water

Management District that one of the key I

lessons that we all should have learned about

flood control is continuing to evade solution.

That item is the prevention of construction


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S1 in areas that are known to be flood prone."

2 To the best of my knowledge, that's the

3 first time in the State or any place else

4 that a flood control district took a position

5 opposing the need for continued public works

6 projects.

7 Let me go back to the water resources

8 management study. Reading from our official

9 statement presented to the Corps of Engineers

10 February 23, 1971 -- Recommendation number

11 two, we identify as "saving flood plains and

12 marshlands" and in wetland protection with

13 water supply, "Another method of getting more

14 water into the ground while at the same time

S15 preventing flooding is the concept that

16 involves the complete protection from drainage

17 and building construction on the flood plain

18 areas of rivers and lakes. The Pour Rivers

( 19 Basin's project could assist by having as a

20 project purpose the delineation of, as an

21 example, the 25-year flood, and the charge to

22 the District and the State of Florida to

23 protect these lands -- through public ownership

24 or through firm uniform statewide zoning --

25 in their natural state. The benefits of


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increased recharge, lessened flooding,

preservation of bird and wildlife habitat and

esthetic advantages would be immediate.

Additional surface water used by agriculture

and industry could be more feasible if the

water was there."

We go on to make several comments. We

say, "The point is, if the Four Rivers Basin

project set out and identified the flood

plains and marshlands of the rivers, and Some

lakes, of the District as land needed for

water management purposes, then this District

would have an obligation to protect it and

the needed State Laws could be better pushed.

The benefits to sound planning, to flood

prevention, to water supply, and to the total

natural scheme of flora and fauna are obvious.

Long ribbons of green, with abundant water,

would then still be there a hundred years from

now." I believe that's a point that hadn't

been hit so far today that is the importance

of supply to wetlands.

Another approach we took, October 18,

1972, was to send several hundred copies of

a letter to lending institutions, savings


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; 1 and loans, and banks. In essence, we said

2 about the same thing to the banks that we did

to the County Commissioners, offering our

4 assistance, but requesting specifically that

before funding any major developments that

6 they come to us for information so that they

7 could be properly advised. Again, we're not

8 talking about regulation, but assistance so


9 that developers, and engineers, and others

S10 would know what areas are truly flood prone.

11 Since those days, we have entered into

12 a very extensive program of aerial mapping

13 that produces a one inch equals two hundred

14 foot horizontal scale, a one foot contour

15 level, one square mile to a sheet, roughly

16 30 inches square. We have mapped so far some
17 I
7 1500 square miles at a cost of 1.2 million

1 dollars to the District. When these maps
19
come into our office, they are immediately

S20 made available and sent to all the counties

j 21 and cities that might use these. They are

22 sold at a cost of $10 per sheet to surveyors,

23 developers, engineers, anyone who might make

:, 24 use of these.

: 25 In addition, we give these maps to


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1 hydraulic engineers on our staff, who

delineate the various floods, a one in two

ten, 25, and 50 year. These maps are also

made available to those agencies having land

use and control, and they are available to

others.

We've produced numerous flood plain

reports that are available if you write our

office in Brooksville. We've done reports

on the Alafia, the Hillsborough, the Peace,

and other areas throughout the District. We

coordinate with the City, County, State, and

Federal Government. The U.S. Geological

Survey is involved in some of this work

through our cooperative program. We work

closely with the Corps of Engineers on these

flood plain studies, and we coordinate with

HUD. Frankly, we have had some problems with

HUD and we are trying to get proper input

because our maps are good, valid, with good

technical data. We've had problems with some

of the information that has come out of the

HUD office.

Let me touch briefly on our regulatory

effort. The way we get involved with the


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1 wetlands, in our terminology, flood plains

2 is in our "Works of the District." Our Rules

3 and Regulations, Section 16(j)1.05 defines

4 "Works in the District." These works are

5 named; they are lakes, they are rivers, and

right now as it presently exists, there is

some confusion about how far our jurisdiction

8 extends. Like the Corps of Engineers pointed

out to you, they follow rivers and

10 tributaries to a certain point, and our rules

11 and regulations, as it exists now, simply

12 refers to the tributaries that drain thereto.


13 The question is, where does a tributary

14 start? We're holding workshops with all our

15 boards to more closely define just what the

16 "Work of the District" is. Our plan is to

17 make lakes 20 acres or greater in diameter

18 a "work".
i19
'19 Basically, a "Work of the District"
; i
20 means any lake, stream, or other water course,

21 owned or maintained by the District or adopted

i 22 by the governing board. As far as the lateral

23 extent of a permit, it gets back to the

24 definition of ordinary high water mark. Our

25 attorneys have advised that when it's on a


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"Work of the District," you need a permit

if connecting to a "Work".

The question: "What do you mean by

'connects to?'" Our attorneys have said

that our jurisdiction extends to the ordinary

high water mark. Now, we know what that is,

but who can determine it? Several years ago

in ordinary high water areas where we've

tried to determine, it appeared that it was

closely related to the official definition of

the U.S. Geologic Survey, of a "mean annual

flood."

A "mean annual flood" is defined so that

most engineers can go out and compute and

agree on that particular number when the basic

data is available to them. The ordinary

high water mark is the legal line but we

actually use the mean annual flood.

We are working with the Department of

Environmental Regulation on collection and

building a new office in Tampa. The DER,

St. Petersburg office and some of our staff

will move to a joint facility in Tampa just

north of Interstate-4 and Highway 301. Also,

we are putting together a permit package so


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1 that you can get from the DER or from a water

2 management district one pack of information

3 and not have to go to both of us trying to get

4 the permit.

5 Another area that we're involved in

6 relative to wetlands, and water supply, is the

7 consumptive use permitting part of our rules

8 and regulations, Section 211.2(e). In that

9 section we list conditions for a consumptive

10 use permit as follows:

11 "Issuance of a permit will be denied if

12 the withdrawal of water will cause the water

13 table to be lowered so that the lake stages

14 or vegetation will be adversely and signifi-

15 cantly affected on lands other than those

16 owned, leased, or otherwise controlled by the

17 applicant."

18 Another section of our rules and

19 regulations pertains to a 5-3-1 criteria and

20 says essentially that, "If you affect the

21 potentiometric level by more than five feet,

22 or you affect the water table by more than

23 three feet, or you affect a lake by more than

24 one foot, the permit will be denied." This

25 is the only regulation I'm aware of that ties


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water supply into wetlands protection.

The last area I'll discuss is water use

planning, which ties in with the State Water

Use Plan. Most people think of the State

Water Use Plan as a water supply study; how

much is there, where is it, how much can we

develop without adversely affecting the area,

and where is it needed. But if you read

373.036 about the State Water Use Plan, it

says, "The Department shall proceed as

rapidly as possible to study existing water

resources of the State -- including flood

plain, or flood hazard area zoning." So,

even the State Water Use Plan will include

wetlands.

Summing up, the point I'm trying to make

is that the Southwest Florida Water Management

District is involved in flood control, flood

mapping and delineation, regulation of water

use planning, and all of these are

significant from the wetlands standpoint, the

purpose of this conference. Our reports are

available without charge although the maps

do cost. We believe with correct information

available, the developer, the owner, the


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1

2

3

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O ,rlanlo Mr porters, nc.
203 NORTH MAGNOLIA SUITE 302
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engineer, or whoever, will try to develop

properly. Then you won't get into the

problem where we have to enter the regulatory

process and restrict you from something you're

trying to do.

Just a point of information in case you

do care to write Brooksville, our office,

Swiftmud, is in Brooksville. The Zip is

33512. Our address is 5060 U.S. Highway 41

South. We're about 30 miles north of Tampa.

Thank you.

(Thereupon, the presentation

was concluded.)




*


_ _

















h


The RE


WETLANDS AND WATER LAW CONFERENCE

FOR ENGINEERS, SURVEYORS & ATTORNEYS


.al


Sponsored By

Property, Probate and Trust Law Section
of the Florida Bar

The Environmental Law Section
of the Florida Bar

The Florida Section
American Society of Engineers

The Florida Society
of Professional Land Surveyors


THE PRESENTATION OF

MR. AARON DOWLING
EAST CENTRAL FLORIDA
REGIONAL PLANNING COUNCIL
WINTER PARK, FLORIDA


AS REPORTED BY

LELAND GAMBLING, C.S.R., C.M., R.P.R.
Notary Public
State of Florida at Large


April 15, 1977


ORLANDO HYATT HOUSE
6375 Space Coast Parkway
Kissimmee, Florida 32741







Orlando 9rporoer, -.9e.
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-76-





2

1 PROCEEDINGS

2 MR. DOWLING: Well, I notice that time is almost gone,

3 but I'll promise I'll try to make my presenta-

4 tion much more brief than I anticipated due to

5 the lateness of the hour. I feel probably

6 the time was better deserved by Don Feaster,

7 simply because from our viewpoint, water

8 management districts are perhaps the most

9 important agencies in Florida from a

10 regulatory standpoint in terms of water

11 resource management. Regulatory powers really

12 come within the framework of management.

13 I was asked to speak on the role of the

14 Regional Planning Council from a regulatory

15 standpoint. Well, frankly, there is none in

16 the sense that Regional Planning Councils are

17 not regulatory agencies. We have no regulatory

18 power; we possess none, we receive none, we

19 give none; so what are Regional Planning

20 Councils?

21 Well, first off, they're organizations

22 that are formed by local units of government.

23 Now, again, State Law requires that there are

24 ten Regional Planning Districts in the State,

25 but it doesn't really specify which agency, or


Oand.o R9portere, J.9 C.
203 NORTH MAGNOLIA. SUITE 302 -77-
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I I







how many agencies, or their composition that

will comprise these ten areas. Most of them

are formed under Chapter 160 or 163 of the

Florida Statutes, and as I said, are voluntary

organizations formed by the local governments.

They are formed for the purpose of assisting

local governments and are governed by local

government representatives and members of the

general public.

I'd like to go into a very brief

presentation of the functions of Regional

Planning Councils. There are several major

functions that we all to varying degrees

provide. One is to provide planning and

associate technical assistance to local

government. Another one is to undertake broad

range plans, primarily on an area-wide basis.

Two principal planning activities that

you should be interested in and probably will

be affected by one way or the other is Section

208, or 201, Water Quality Mangement Planning

that is undertaken in about 12 areas of the

state, primarily the urban areas and,

secondly, coastal zone management planning in

the coastal zone areas. Both of these planning


Orlando 9Cporters, mnc.
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4


1 programs deal with and relate to wetlands,

2 primarily wetlands management.

3 The 208 program looks at wetlands from a

4 water quality standpoint. The coastal zone

5 program looks at coastal wetlands from a

6 management standpoint: i.e. use, purpose,

7 value, et cetera.

8 The Regional Planning Councils also

9 serve as coordinating agencies for various

10 Federal and State agencies on the part of

11 local governments and private industry. We,

12 in the same sense as Mr. Feaster mentioned,

13 serve as assistance agencies. In other words,

14 we try to work with local governments, also

15 private industry, to make them aware of what

16 guidelines exist on the part of other agencies

17 that they have to conform with, because, again,

18 we, like everyone else, like to see our area

19 benefit from growth, a proper type of growth.

20 And, of course, the Federal Government offers

21 a great deal of assistance, primarily financial

22 assistance, to accommodate that type of

23 growth. So, we're very much interested in

24 providing those services.

25 Another area that Estes Whitfield


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mentioned is Clearinghouses. For the most

part, Regional Planning Councils are the

Regional Clearinghouses.

We are the first agency along the line

that see an application for a project in its

very basic form. We try to assist the various

applicants to assure that their projects are

in conformance with appropriate regulations

that other agencies will be looking at them

from the standpoint of. And there are several

Clearinghouse functions or programs that we

relate to. First is the A-95 Clearinghouse,

which is a Federally-oriented type program

under the Office of Budget & Management. The

second one is Developments of Regional Impact,

or DRI. We serve as the reviewing agencies

for large scale public and private development

that may have an impact from an area-wide or

regional basis. It's our purpose, again, to

try to incorporate particular rules and

regulations and insure that these developments

are in accordance with them.

So, really, what we come down to is

Regional Planning Councils are more of a user

of regulations than a maker.


Orlan. Jo portr e, n..
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6

1 Back to the functions of the Regional

2 Planning Council; one thing that we do is to

3 provide information about the uses of wetlands

4 primarily to local governments, one example

5 being in recreational planning. As

6 previously mentioned, there is the Local

7 Government Comprehensive Planning Act. One

8 element of these plans deals with environ-

9 mental protection, and wetlands are a major

10 item of concern on the part of local

11 governments and the public in general.

12 The wetlands have various functions that

13 local governments are concerned about and are

14 aware of. One, of course, is the water

15 storage capabilities. Don Feaster mentioned

16 this as an important use of lake and stream

17 flow regulations. Wetlands also perform

18 certain pollution abatement functions. The

19 fact of the work that Dr. Howard Odom has

20 undertaken relates to this particular function

21 of wetlands. Wetlands have esthetic values

22
22 and recreational uses. For instance, several

23
23 city .parks are located in wetlands. County

24
24 parks take advantage of wetlands, State parks

25
25 take advantage of wetlands and, of course,


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National parks do, also; Everglades National

Park being a good example.

Wetlands also have certain ecological

functions. They serve as a wildlife habitat

and nursery for many aquatic species.

So, there's a real concern about how to

manage wetlands; how to take advantage of the

multiple uses and purposes they perform, both

within a context of regulatory power and land

management.

The conversion of wetlands to other uses

carries a cost-benefit impact. This is a

major concern and relates back into a more-or-

less legal question, which is how to recognize

the trade-offs between wetlands in their

natural form and the land uses that they may

be converted to. This is a very difficult

item to assess, simply because, as Mr.

Whitfield pointed out, there is a lot more

research that still needs to be done to come

up with some sort of substantive information

which can be used.

Another function of Regional Planning

Councils is to review projects to insure

conformance with the various local plans and


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1 policies that have been formulated, and in

2 essense, to evaluate that each project

3 proposed for wetlands utilizes the land in

4 the overall best public benefit. The issue

5 of best public benefit comes back to this

6 previous topic I mentioned, namely the purpose

7 and functions of wetlands. Best public

8 benefit is clearly an area of legal discussion

9 sometimes on a case-by-case basis, because all

10 wetlands are not the same. Various wetlands

11. serve various functions or have capabilities

12 other wetlands don't have. The concept of

13 land rights is a basic issue, primarily in

14 terms of public ownership, or private owner-

15 ship, or public trust. The question rests

16 with where does the concept of public trust

17 fit in the general issue or program of land

18 ownership.

19 There is a major question relating to the

20 regulatory aspects of wetlands in that there

21 are two basic thrusts of regulatory process.

22 One is manifested in just simply regulating

23 what a person can or can't do. A good example

24 is the Area of Critical State Concern

25 designation. The Green Swamp, for example, wa


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b~lrcL~--



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i i


Orranao 9 porters, t.e.
203 NORTH MAGNOLIA. SUITE 302
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designated as an Area of Critical State

Concern. The Big Cypress Swamp was designated

as an Area of Critical State Concern until

Federal funding for its purchase could be

secured. The Area of Critical State Concern

process simply is identifying areas for public

trust purposes, and constraining what each

landowner can do with that particular parcel

of land.

There are quite a few cases, for instance,

in the Green Swamp, that landowners purchased

land originally on a speculation basis,

feeling that being close to Disney World would

make it a prime growth area. Well, the Area

of Critical State Concern designation pretty

much put a damper on some of their ideas or

dreams by constraining what they could do with

their land. This brings up a question of

compensation in an Area of Critical State

Concern. The law does not denote any type of

monetary compensation.

One other alternative is another program

that does envision compensation. This is the

bond program that the citizens of Florida

endorsed several years ago for the purchase of


II_.






10


1 environmentally endangered lands. This, much

2 like the program that Don pointed out, is the

3 acquisition of lands for conservation and

4 preservation purposes. This is taking lands

5 out of the private ownership and compensating

6 the landowner for something that is regarded

7 to be of public value that should be protected

8 for the public interest or used for the public

9 interest.

10 So, we get down to the question -- that

11 local governments have a great deal of problems

12 grappling with -- in that once an area is

13 identified as a wetland and you can identify

14 some importance to it, how do you convert it

15 for the public trust? How do you protect it?

16 How can a local government compensate the

17 landowners for the use of that property? And

18
18 that's an issue that I think has not clearly

19 been decided and probably won't be decided for

20
several years. It is probably one of the

21
major concerns that public officials at the

22
22 local level see as one very large problem

23
existing within the regulatory process. Maybe

24 Mr. Stephens, this afternoon, may touch upon

5 it as a pitfall. I very readily recognize it


orlando lporters., Jnc.
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1 as a pitfall, and it's probably one of the

2 major issues that have caused problems in

3 terms of proper wetlands management.

4 In fact, there have been quite a few

5 articles written on the question of wetlands

6 management. One that I noticed was published

17 about a year ago, and is entitled "Wetlands In

;8 Florida, A New Legal Status," published by the

Joint Environmental & Urban Research Institute

with Florida Atlantic Land University and

Florida International University.

So, wetlands have been a topic of much co-

cern and much debate, and we are moving towards

some sort of solution, but, again, a key point

to be addressed is how we can adequately manage

wetlands so that we don't interfere with land

ownership rights, but we still look at wetlands

from the interest of the general public.

And with that, due to the lateness of the

hour, I'll close, and if there are any ques-

tions, maybe we can entertain them during or

after the lunch hour. I'd like to thank you

very much.

(Thereupon, the presentation of

Mr. Aaron Dowling was concluded.)


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BIOLOGICAL DETERMINATION OF MEAN HIGH WATER:

A QUESTION OF RELIABILITY


Rick A. Linthurst

North Carolina State University Coastal Consultants



INTRODUCTION


The importance of the marsh systems along at least the eastern

coast of the United States is documented by the extensive volume of

literature available (Wentz et al., 1974). Reimold (In press)

estimates that there are 2,199,951 acres of wetlands along the Atlantic

coast of which 1,456,605 acres are salt marshes. Florida has a com-

bined salt marsh and mangrove swamp extent of 117,696 acres or 8.1%

of all the east coast areal extent; an extent certainly ample for

serious consideration.

The undisturbed estuaries along the coast of the United States are

Described as unique ecosystems often dominated by monospecific stands

of marsh plants well adapted to the prevailing environment (Fornes

and Reimold, 1973). The resultant vegetation pattern is seen as a

vertical zonation of marsh plant species with each species responding

to a relatively narrow range of biotic and abiotic components (Adams,

1963). It has been proposed by numerous authors (Johnson and York,

1915; Miller and Egler, 1950; Hinde, 1954; Adams, 1963; Kerwin and

Pedigo, 1971) that tidal elevation is the predominant influence in



North Carolina State University, Department of Botany, P. O. Box
5186, Raleigh, North Carolina 27607; Coastal Consultants, Suite 204,
3512 Horton Street, Raleigh, North Carolina 27607.

-87-





-2-


determining zonation. These zones can be simply classified into two

major categories, low and highmarsh (Adams, 1963) or complexly into

eight zones asdone by Kurz and Wagner (1957) based on vegetation types.

The complexity of classification based on vegetation types and vegetation

association will be the major consideration of this presentation.

Ecologists, state and federal agencies, surveyors, developers,

and lawyers are all becoming well aware of the estuarine system, its

complexity and importance. These diverse professionals, however, often

represent conflicting land use perspectives. The key to the conflicts

often centers around the mean high water line. This line is normally

most accurately located by modern survey techniques (O'Hargan, personal

communication). Over the past decade, more emphasis has been placed on

the possibility for biological determination of this line. It will

be the purpose of this paper to complicate the simplistic view of the

generalized biological mean high water concept from an ecological view

and in turn the associated legal relevance. Emphasis will be placed

on the many factors which can cause species distribution. What follows,

however, is by no means a conclusive study of the subject but purely

a brief and simplistic pathway for theoretical consideration.



DISCUSSION


Estuary Classification

Odum, 1971, suggests three major classifications of estuaries based

on (1) geomorphology, (2) water circulation and stratification, and (3)

systems energetic. From the geomorphological view Pritchard (1967a)

lists four major subdivisions (Odum, 1971).


-88-






-3-





1. Drowned river valleys are most extensively developed
along coastlines with relatively low and wide coastal
plains.
2. Fjord-type estuaries are deep, U-shaped coastal
indentures gourged out by glaciers and generally
with a shallow sill at their mouths formed by
terminal glacial deposits.
3. Bar-built estuaries are shallow basins, often partly
exposed at low tide, enclosed by a chain of offshore
bars or barrier islands, broken at intervals by inlets.
4. Estuaries produced by tectonic processes are coastal
indentures formed by geological faulting or by local
subsidence.

Odum, 1971, adds still another type which he calls River Delta

Estuaries found at the mouths of large rivers.

The geomorphological aspects of the system in turn determine to

some extent the circulation patterns and ultimately the energetic of

the estuary. Circulation within any specific system becomes of prime

importance in determining the distribution of individual species

(Odum, 1971). The major subdivisions are as follows (Prichard, 1967b):

1. Highly stratified or "salt-wedge" estuary, where the
flow of river water is strongly dominant over tidal
action, as in the mouth of a large river, fresh water
tends to overflow the heavier salt water, which
therefore forms a "wedge" extending along the bottom
for a considerable distance upstream.

The Coriolis force causes the fresh water to flow more strongly along

the right shore as the observer faces the sea. The distribution of the

plant species would potentially be different on either side of the

Estuary although the tidal amplitude was the same.

2. The partially mixed or moderately stratified estuary,
where fresh water and tidal inflow are more nearly
equal, the dominant mixing agent is turbulence, caused
by the periodicity in the tidal action...this creating
a complex pattern of layers of water masses.
3. The completely mixed or vertically homogenous estuary,
when tidal action is strongly dominant and vigorous,
the water tends to be well mixed from top to bottom
and the salinity relatively high.


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i I





-4-





Therefore, localization of estuarine species may be more influenced by

circulation and the type of estuary than by tidal activity alone.


Plant Species

Some typical species dominants found along the east coast salt

marshes and mangrove swamps are summarized in Table 1 (Reimold, In

press). Plant species considered most frequently in the south eastern

U. S. with respect to mean high water are: S. alterniflora, J.

roemerianus, D. spicata, S. patens, A. nitida, Salicornia spp., R.

mangle, Laguncularis racemosa Gaertn. (associated with C. erecta)

and Scirpus sp. to suggest only a few. The diversity of vegetation

with distinct zonation superficially suggests easily defined ecological

requirements of these plants of which tidal innundation frequency,

periodiocity, and therefore elevation is often considered to be the

dominating factor. Mixtures and species associations suggest less

clearly defined parameters influencing distribution or successional

occurrence whereby species are able to share the same ecological zone.

What factors determine plant response will be the next consideration

and will suggest that there should be some difficulty in selecting one

prevailing factor as the causal agent in zonation.


Growth Factors

For convenience, let us assume that there are two Florida estuaries

geomorphologically, hydrologically, and energetically alike and that

the species within these two imaginary estuaries are also similar. It

is then necessary to break our system down still further to an individual

plant basis and consider the factors which determine the success of a

plant in a "typical" environment if our goal is to detect the causal

mechanisms of distribution.
-90-







Table 1. Vegetation typical of eastern United States coastal salt flats, salt meadows, irregularly
flooded salt marshes, regularly flooded salt marshes, and mangrove swamps (adapted from
Shaw and Fredine, 1956; Reimold, In press)


Occurrence
area of
Scientific name Common name salt salt irregularly regularly mangrove predominant
flooded flooded mangrove predominant
flat meadow lt m l swamp occurrence
salt marsh salt marsh

Avicennia nitida Jacq. black mangrove x FL
Batis maritima L. saltwort x MS to MD
Carex spp. sedge x LA to MS
Conocarpus erecta L. button mangrove x FL
Distichlis spicata (L.) Greene salt grass x x LA to FL
Juncus balticus Willd. baltic rush x LA to NY
Juncus gerardii Loisel. black rush x NF to NJ
J. roemerianus L. needle rush x MD to FL
Monanthochloe littoralis Engelm. salt-flat grass x FL
Plantago spp. plantain x NS to DE
Pluchea salt-marsh fleabanes x ME to FL
Rhizophora mangle L. red mangrove x FL
Ruppia maritima L. widgeon grass x ME to FL
Salicornia biglovi L. dwarf saltwort x ME to FL
S. europa L. samphire x NS to FL
S. virginica L. perennial saltwort x MS to FL
Scirpus olneyi L. Olney threesquare x NS to FL
Spartina alterniflora Loisel. salt-marsh cord grass x NF to FL
S. patens Muhl. salt-marsh cord grass x NF to FL
Suaeda maritima (L.) Dum. seablite x QU to VA


Abbreviations:


DE = Delaware; FL = Florida; LA = Labrado; MD = Maryland; ME = Maine; MS = Massachusetts;
NF = Newfoundland; NJ = New Jersey; NS = Nova Scotia; NY = New York; QU = Quebec; VA = Virginia.






-6-





Figure 1 shows the major life cycle stages of a plant (from

Etherington, 1975) and some dominant climatic influences. As can be

seen from this table, the requirements for each stage of development are

specific and alterations of these factors can determine the success or

failure of an individual plant or a species as a whole. In addition,

this concept is complicated still further by considering the factors

which determine the survival of a plant through growth. These factors

are listed in Table 2 (adapted from Etherington, 1975).

In addition to these environmental variables, each one which

could be broken still into many more components since there are also

genetic characteristics of the plant to consider. I am ignoring these

variables since I am assuming that our system has already selected those

species capable of surviving because of their characteristics and

adaptability to the estuarine environment.

An example of the compleity of these interactions is shown in

Figure 2 (Etherington, 1975) for a single variable, Nitrogen. The

figure is shown not for the details of the nitrogen cycle but purely to

show additional evidence of the complicated association of organisms

and their environment and the difficulty in isolating a single variable

as the prevailing factor. Figure 3 shows how complicated such interactions

might become from a holocoenotic viewpoint.


Competition

Pielou and Routledge (1976) mathematically evaluate the zonation

of salt marsh plants. They contend that the vegetation depends not only

on its tolerance limits for the abiotic factors that vary along a gradient

but to some extent by between species competition. This adds still

another consideration to this distribution complex.


-92-












.-- SEED



GERMINATION





SEEDLING





GROWTH TO
MATURITY






FLOWERING AND
SEED SETTING








,SEED VIABILITY





Figure 1.


Genetic constitution controls
phenotypic responses to
following factors

Pretreatment: sensitive to
water and temperature
Requirement for correct light
and temperature conditions and
an adequate, stable water supply

Prone to frost, drought and wind
effects. Rate of root extension
and safe establishment related
to prevailing temperature and
water supply. Light quality

Demands a minimal energy input
with sustained temperature and
water supply conditions.
Sensitive to occasional
catastrophic events such as
frost or drought. Light
quality

Pretreatment: temperature and
daylength requirement perhaps
as early as seed stage
Requirement for correct tempera-
ture and daylength regime. Seed
production may reflect preflower-
ing energy fixation. Light
quality


PERENNATION
Requires correct
temperature and
daylength. Low
temperature or
flooding may kill


1
SPRING REGROWTH
Temperature and
daylength to break
dormancy. Prone to
frost, wind and
drought damage


Specific water, temperature and
light conditions




Possible interactions of climatic factors with plant
growth at different life cycle stages (From Etherington,
1975)


-93-














Table 2. Some environmental variables responsible for
plant growth

1. Energy quantity and quality
2. C02 supply
3. Air and leaf temperatures
4. Soil texture, structure, chemistry
5. Mineral nutrition quantity and availability
6. Seasonality of climate
7. Pathological condition
8. Water availability, salinity, chemistry

















Table 3. Some components of the ecosystem for which plants
compete

1. SPACE
2. LIGHT
3. CARBON DIOXIDE
4. NUTRIENTS
5. WATER
6. POLLINATORS
7. DISPERSAL AGENTS


-94-


F














S- Storoge

S- Transfmohon
-l- Flow


Figure 2.


Block diagram for a systems analysis of the processes involved in ecological
nitrogen cycling. The lines represent flow paths, the boxes are transformations
that regulate flow quantities and the circles are storage reservoirs. The two
double-walled boxes represent storage outside the boundary of the ecosystem.
Diagram from Etherington (1975).






-10-


Diagrammatic representation of the complex and holocoenotic
interactions between environmental factors and an organism.
Solid lines show factor-plant relationships; dashed lines
show factor interactions. Time is an environmental
dimension, not a factor, and its modifying influence is
indicated by inward-pointing arrows just inside the border
of the diagram. Diagram from Billings (1952).


-96-


Figure 3.







-11-


Generalized components for which plants compete are shown in

Table 3. Man has a considerable influence on several of these factors

which include space (perturbation), nutrients (urban run-off), and

pollutants and dispersal agents (perturbation of hatitat for seed

carriers and pollinators). It appears conclusive then that man alone

can change the areal extent of a well adapted plant by changing com-

ponents of interspecific competition.

If we suggest that a plant grows where it does because it is

better adapted to grow at that specific location than anywhere else

or better than any other plant, then by changing that environment, the

stage may be set for another species to begin establishment in the same

location. Depending on the tolerance limits and competitive ability

of both plants, the result is either a mixture of species or evolution

to a pure stand of the encroaching species. To answer such questions

will take many years of research designed to quantify the tolerance of

individual plant species to numerous factors. To conclusively establish

the limiting growth or distribution factor of a plant is strongly

dependent on the other prevailing factors and it is my contention that

mean high water is no exception. Although tidal flushing is certainly

an influential parameter, it is still dependent on many other parameters

which could in themselves be even more influential.


Environmental Gradients

As I have suggested throughout this presentation, plants are

distributed with respect to environmental gradients. Generally environ-

mental gradients are not sharp and distinct. Mean high water is a prime

example. At times the water flows beyond this line and with similar

frequency, water fails to reach this line. Therefore, as its title


-97-






-12-


suggests, it is an average of the daily, monthly, and yearly fluctua-

tions. With rising sea level, mean high water is going to follow the

general trend and rise also. If there exists a biological line which

designates mean high water, whether or not it will respond appropriately

to this change is still questionable based solely on the time it may

take; that is, how long will it take for one species to be out competed

or die out and allow another species to move in, dominate and in turn,

i reestablish our line?

SFigure 4 (Whittaker, 1975) portrays the population response to

two environmental gradients. The density here is shown to decrease as

you move away from the population center. This suggests that species

are distributed with respect to a multi-dimensional hyperspace. That

is, a plant responds to numerous environmental and biological parameters

in such a manner that it has an optimum response based on an optimum

interaction of these many parameters and a distribution limit based on

i the interaction of these same variants. Obviously it would be difficult

to portray such a concept pictorially inclusive of all variables at

once. Therefore, for the purpose of this presentation it must remain

as an abstract concept.

This hyperspace or hypervolume concept then becomes one theory

of plant distribution. That is, if we select numerous salt marsh

species and analyze them individually, we will discover that these

hyperspaces are overlapping. Two plants then tend to have tolerance

levels which will allow them to occupy similar habitats. It is doubtful,

however, that any two species have identical optimum hyperspaces. This

suggests then that one must also have some measure of the biological

response of the plant in addition to simply quantification of the


-98-




































Population response to two environmental gradients. The distribution
forms a bell-shaped or hill-shaped figure, with population density
decreasing in all directions away from the population center or peak.
In any transect of communities along a single environmental gradient
that cuts through this population solid, a bell-shaped curve of popula-
tion density will be obtained. Diagram from Whittaker (1975).




















Habital or Niche Gradient
Establishment of a new species in a community gradient. The new
species, number 4, has a potential distribution along the habitat
gradient as represented in the dashed line of the upper figure. In
competition with species 3 and 5 it fits in between these, as indicated
in the lower figure. The bars between the figures represent dispersions,
the degrees of deviation or spread of the populations on each side of
their mean positions along the gradient. Diagram from Whittaker (1975)


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