Title: SJRWMD - ERP Handbook Excerpted from SJRWMD April 12, 1994 Board
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Title: SJRWMD - ERP Handbook Excerpted from SJRWMD April 12, 1994 Board
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Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - SJRWMD - ERP Handbook Excerpted from SJRWMD April 12, 1994 Board (JDV Box 95)
General Note: Box 20, Folder 2 ( Water Management Districts - ERP'S - 1994 ), Item 4
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Full Text






ERP HANDBOOK -- SJRWMD -- ENVIRONMENTAL SECTION
(EXCERPTED FROM SJRWMD APRL 12, 1994 BOARD BRIEFING BOOK)
(Incorporating Errata corrections of April 12, 1994)


2.0 Definitions

The following definitions are used by the District to
clarify its intent in implementing its permitting programs
pursuant to Part IV, Chapter 373, F.S. Many of these
definitions are derived directly from chapter 373, F.S., and
are reproduced here for the convenience of applicants.

(a) through (g) No change

(h) Creation The establishment of new wetlands or surface
waters by conversion of other land forms. (sJR:
16.1.3(a), A.B., Amended)

Renumber (h) to (i)

(j)+i+ Direct Hydrologic Connection A surface water
connection which occurs on an average of 30 or
more consecutive days per year. In the absence of
reliable hydrologic records, a continuum of
wetlands maybe used to establish a direct
hydrologic connection (fubeeetien 40C-4.921(4),


Renumber (j) to (k)

(1) Drainage basin- A subdivision of a watershed.
(subsection 373.403(9), F.S.)

(m) Dredging- Excavation, by any means, in surface waters
or wetlands, as delineated in s. 373.421(1).
Excavation also means the excavation, or creation, of a
water body which is, or is to be, connected to surface
waters or wetlands, as delineated in s. 373.421(1),
directly or via an excavated water body or series of
water bodies.(subsection 373.403(13), F.S.)

(n) Enhancement Improving the ecological value of
wetlands, other surface waters, or uplands that have
been degraded in comparison to their-historic
condition. (DEP: 17-312,310(2), F.A.C., Amended; SJRs
16.1.3(a), A.H.)



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(o) Estuary A semienclosed, naturally existing coastal
body of water which has a free connection with the open
sea and within which seawater is measurably diluted
with fresh water derived from riverain
systems.(subsection 373.403(15), F.S.)

(p) Filling- The deposition, by any means, of materials in
surface waters or wetlands, as delineated in s.
373.421(1).(subsection 373.403(14), F.S.)

Renumber (k) through (n) to (q) through (t)

(u)-fe- Isolated Wetland Any wetland without a direct
hydrologic connection to a lake, stream, estuary,
or marine water (New) not within th juridiotion
of the Department of Environmental Regulation for
the purpoeoo of regulation of dredging and


(v) Lagoon- A naturally existing coastal zone depression
which is below mean high water and which has permanent
or ephemeral communications with the sea, but which is
protected from the sea by some type of naturally
existing barrier.(subsection 373.403(16), F.S.)

(w) Listed Species Those animal species which are
endangered, threatened or of special concern and are
listed in sections 39-27.003, 39.27.004, (SJR: 10.4.4,
A.H.; SWF: 3.0(a), App. 4) and 39.27.005, F.A.C. (NWt 40A-
44.021(4), F.A.C., Amended; SF: 4.2(b), 5.1.8, App. 7), and
those plant species listed-in 50 Code of Federal
Regulation 17.12. (NW: 40A-44.021(13), F.A.C.; SF: 4.2(b),
5.1.8, App. 7; SWF: 3.0(a), App. 4).

Renumber (p) and (q) to (x) and (y)

(z) Mitigation An action or series of actions to offset
the adverse impacts that would otherwise cause a
regulated activity to fail to meet the criteria set
forth in sections 12.2 12.2.8.2. Mitigation
usually consists of restoration, enhancement, creation,
preservation, or a combination thereof. (DEP 17-
312.310(6), 17-312.340, 17-312.330, F.A.C., Amended)

(aa) Other surface waters Surface waters as described and
delineated pursuant to section 17-340.600, F.A.C., as
ratified by section 373.4211, F.S., other than
wetlands.


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Renumber (r) through (t) to (bb) through (dd)


(ee) Preservation The protection of wetlands, other
surface waters or uplands from adverse impacts by
placing a conservation easement or other comparable
land use restriction over the property or by donation
of fee simple interest in the property. (DEP: 17-
312.370(1), F.A.C.,
Amended; SJRs 16.1.3, A.H., Amended)

(gg) Regulated activity The construction, alteration,
operation, maintenance, abandonment or removal of a system
regulated pursuant to Part IV, Chapter 373, F.S. (New)

Renumber (v) and (w) to (hh) and (ii)

(jj) Restoration Converting back to a historic condition
those wetlands, surface waters, or uplands which
currently exist as a land form which differs from the
historic condition. (New)

(kk) Seawall- A manmade wall or encroachment, except riprap,
which is made to break the force of waves and to
protect the shore from erosion.(subsection 373.403(17),
F.S.)

S(11) Stormwater management system- A system which is
designed and constructed or implemented to control
discharges which are necessitated by rainfall events,
incorporating methods to collect, convey, store,
absorb, .inhibit,,treat, use, or reuse water to prevent
or reduce flooding, overdrainage, environmental
degradation, and water pollution or otherwise affect
the quantity and quality of discharges from the
system.(subsection 373.403(10), F.S.)


Renumber (x) and (y) to (mm) and (nn)

(oo)-(- Surface Water Management System or System Any
stormwater management system, eembinatien of dame,
impoundment, reservoir, appurtenant work, or
works, or any combination thereof. The terms
"surface water management system" or "systems"
include dredged or filled areas that provides
drainage, water storage, con;vyanee, or ether
surface water management eapabiliti. (subsection
40C-4.021(98), F.A.C.).



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(pp) -aat





(qq) -bb-




(rr)



(ss)-fee


Total Land Area Land holdings under common
ownership which are contiguous or land holdings
which are served by common surface water
management facilities (subsection 40C-4.021(109),
F.A.C.).

Traversing Work Any artificial structure or
construction that is placed in or across a stream,
or other watercourse, or an impoundment(fsubeetion


Watershed- The land area which contributes to the
flow of water into a receiving body of
water.(subsection 373.403(12), F.S.)

Wetlands Those areas that are inundated or
saturated by surface or ground water at a
frequency and a duration sufficient to support,
and under normal circumstances do support, a
prevalence of vegetation typically adapted-for
life in saturated soils. Soils present in
wetlands generally are classified as hydric or
alluvial, or possess characteristics that are
associated with reducing soil conditions. The
prevalent vegetation in wetlands generally
consists of facultative or obligate hydrophytic
macrophytes that are typically adapted to areas
having soil conditions described above. These
species, due to morphological, physiological, or
reproductive adaptations, have the ability to
grow, reproduce, or persist in aquatic
environments or anaerobic soil conditions.
Florida wetlands generally include swamps,
marshes, bayheads, bogs, cypress domes and
strands, sloughs, wet prairies, riverain swamps
and marshes, hydric seepage slopes, tidal marshes,
mangrove swamps and other similar areas. Florida
wetlands generally do not include longleaf or
slash pine flatwoods with an understory dominated
by saw palmetto. (subsection 373.019(17), F.S.)
The landward extent of wetlands shall be
delineated pursuant to sections 17-340.100 through
17-340.550, F.A.C., as ratified by section
373.4211, F.S. Arc hydrelegi clly sensitivee area
which are identified by being inundated or
saturated by surface or ground water with a
frequency and duration sufficient to support, and
that under normal circumstances do support, a
prevalence of vegetation typically adapted for


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-~.^ life in o-BCuraea 01e* eenaiTieono.- tna
generally include swamps, marshes, begs and
im-ilar areas. (subsection 40C-4.021(13)-(--,
F.A.C.)

Renumber (cc) through (ee) to (tt) through (vv)























































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i a











(New Section 12 to be added to Part II, Applicant's
Handbook: Management and Storage of Surface Waters)

12.0 Environmental Considerations

12.1 Wetlands and other surface waters

Wetlands are important components of the water resource
because they often serve as spawning, nursery and
feeding habitats for many species of fish and wildlife,
and because they often provide important flood storage,
nutrient cycling, detrital production, recreational and
water quality functions. Other surface waters such as
lakes, ponds, reservoirs, other impoundments, streams,
rivers and estuaries also often provide such functions,
and in addition may provide flood conveyance,
navigation and water supply functions to the public.
Not all wetlands or other surface waters provide all of
these functions, nor do they provide them to the same
extent. A wide array of biological, physical and
chemical factors affect the functioning of any wetland
or other surface water community. (SJt 10.7.3, A.H.,
Amended) Maintenance of water quality standards in
applicable wetlands and other surface waters is
critical to their ability to provide many of these
functions. Unless exempted by statute or rule, permits
are required for the construction, alteration,
operation, maintenance, abandonment and removal of
systems so that the District can conserve the
beneficia-- functions of these: communities. The term
"systems" includes dredged or filled areas. (New)

12.1.1 Environmental Conditions for Issuance

The District addresses the conservation of these
beneficial functions in the permitting process by
requiring applicants to provide reasonable assurances
that the following conditions for issuance of permits,
set forth in Sections 40C-4.301 (Conditions for
Issuance) and 40C-4.302 (Additional Conditions for
Issuance), F.A.C., are met. Applicants must provide
reasonable assurance that:

(a) a regulated activity will not adversely impact the
value of functions provided to fish and wildlife
and listed species by wetlands and other surface
waters (paragraph 40C-4.301(1) (d), F.A.C.); (sJ
40C-4.301(2)(a)7, F.A.C., Amended; 10.1.2(g), 10.7.4, A.H.,

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Amended; SWF 40D-4.301(1)(f), F.A.C., Amended 3.1.5,
3.1.5.5, 3.2.3.1, Basis, Amended; SF 40E-4.301(1)(e),
F.A.C., Amended; 3.1.5, 3.1.4.3.1.5.5, 3.2.3.1, 5.1.6, App.
7 Amended)

(b) a regulated activity located in, on, or over
wetlands or other surface waters, will not be
contrary to the public interest, or if such an
activity significantly degrades or is located
within an Outstanding Florida Water, that the
regulated activity will be clearly in the public
interest (paragraph 40C-4.302(1)(e), F.A.C.) (DEPt
17-312.080(2), F.A.C.)

(c) a regulated activity will not adversely affect the
quality of receiving waters such that the water
quality standards set forth in chapters 17-3, 17-
4, 17-302, and 17-550, F.A.C., including any
antidegradation provisions of sections 17-
4.242(1)(a) and (b), 17-4.242(2) and (3), and 17-
302.300 and any special standards for Outstanding
Florida Waters and Outstanding National Resource
Waters set forth in sections 17-4.242(2) and (3),
F.A.C., will be violated (paragraph 40C-
4.301(1) (e), F.A.C.) ;(DEP: 17-312.080, F.A.C., Amended;
SJR: 40C-4.301, F.A.C.)

(d) a regulated activity located in, adjacent to or in
close proximity to Class II waters or located in
waters classified by the Department as approved,
restricted, or conditionally restricted for
shellfish harvesting pursuant to chapter 16R-7,
F.A.C., will comply with the additional criteria
in subsection 12.2.5 of the Applicant's Handbook
(paragraph 40C-4.302(1)(c), F.A.C.); (DEP: 17-
312.080(6), F.A.C., Amended)

(e) the construction of vertical seawalls in estuaries
and lagoons will comply with the additional
criteria in subsection 12.2.6 of the Applicant's
Handbook (paragraph 40C-4.302(1)(d), F.A.C.);
(373.414(5), F.S.)

(f) a regulated activity will not cause unacceptable
secondary impacts to the water resources
(paragraph 40C-4.301(1)(f), F.A.C.); (SJR: 9/8/93
policy)

(g) a regulated activity will not cause unacceptable
cumulative impacts upon wetlands and other surface


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waters (paragraph 40C-4.302(1)(b), F.A.C.)
(373.414(8), F.S.; DEP: 17-312.340 and 17-312.370(1)(a),
F.A.C., Amended)

12.2 Environmental Criteria

Compliance with the conditions for issuance in
subsection 12.1.1 will be determined through compliance
with the criteria explained in subsections 12.2 -12.3.8
of this Handbook.

12.2.1 Elimination or Reduction of Impacts

The degree of impact to wetland and other surface water
functions caused by a proposed system, whether the
impact to these functions can be mitigated and the
practicability of design modifications for the site, as
well as alignment alternatives for a proposed linear
system, which could eliminate or reduce impacts to
these functions, are all factors in determining.whether
an application will be approved by the District. (sJi
10.7.4, A.H., Amended) These adverse impacts must be
eliminated or reduced by modifying the project, if
practicable. Any remaining adverse impacts may be
offset by mitigation as described in subsections 12.3-
12.3.8 An applicant may propose mitigation, or the
District may suggest mitigation, to offset the adverse
impacts caused by regulated activities as identified
in sections 12.2-12.2.8.2 (DEP: 17-312.300(3) and (4),
F.A.C., Amended) To receive District approval, a system
can not cause a net adverse impact on wetland functions
and other surface water functions which is not offset
by mitigation. (sJ: 10.7.4, A.H., Amended)

Prior to approval of any mitigation proposals, the
District will explore design modifications for the
proposed site, as well as alignment alternatives for a
linear system, that would eliminate or reduce the
adverse impacts to wetland functions and other surface
water functions, and will suggest any such
modifications to the applicant either in addition to or
in lieu of mitigation. The applicant shall consider
the District's proposed modifications to the system to
reduce or eliminate adverse impacts to wetland or other
surface water functions, regardless of whether a
mitigation proposal has been submitted. (DEP: 17-
312.300(3), F.A.C., Amended) The applicant shall respond
to the District in writing as to whether the identified
modifications to the proposed system are practicable

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and whether the applicant will make the identified
modifications. (DEP: 17-312.060(10), F.A.C.) If an
applicant is responding that the District proposed
modifications are not practicable, the written response
must provide an explanation and supporting
documentation. Alternatively, the applicant may
respond by proposing other modifications which achieve
a comparable reduction of adverse impacts to wetland
and other surface water functions. The applicant shall
describe how its proposed alternative modification
reduces or eliminates the adverse impacts. (New)

If the District determines that an applicant's proposed
system can be modified in a practicable manner that
would eliminate or reduce adverse impacts to wetland
functions and other surface water functions, and if the
applicant refuses to modify the system accordingly,
mitigation shall not be approved. (VQH v. DEP, DEP Order of
Remand (5/10/93); SWF: 5.0(a), App.4, Amended; SFt 5.1(d), App. 7,
Amended) If the applicant modifies the system.
accordingly or the identified modifications are not
practicable, the District will accept mitigation
proposed by the applicant if the mitigation offsets the
adverse impacts of the system as required by
subsections 12.3 through 12.3.8.

The term "modification" shall not be construed as
including the alternative of not implementing the
system in some form, (DEPt 17-312.060(10), F.A.C.) nor
shall it be construed as requiring a project that is
significantly different in type-or function. A
proposed modification which is not economically viable
(VQH, 15 FALR 3411) or which adversely affects public
safety through the endangerment of lives or property
(New) is not considered "practicable." (VQH, 15 FALR 3411)
A proposed modification need not remove all economic
value of the property in order to be considered not
"practicable." Conversely, a modification need not
provide the highest and best use of the property to be
"practicable." (VQH, 15 FALR 3411)

Should such mutual consideration of modification and
mitigation not result in a permittable system, the
District must deny the application. (DEPt 17-312.300(3),
F.A.C.) Nothing herein shall imply that the District
may not deny an application for a permit as submitted
or modified, if it fails to meet the conditions for
issuance, or that mitigation must be accepted by the
District. (DEP: 17-312.060(10), F.A.C.)

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Fish, Wildlife, Listed Species and their Habitats


Pursuant to paragraph 12.1.1(a), an applicant must
provide reasonable assurances that a regulated activity
will not impact the values of wetland and other surface
water functions so as to cause adverse impacts to:

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

(b) the habitat of fish, wildlife and listed species.
(SJR: 10.7.4, A.B., Amended; SWF: 40D-4.301(1)(f), F.A.C.,
Amended; 3.1.5.5, 3.2.3.1.2, Basis, Amended, 5.0, App. 14,
Amended; SF: 5.0, App. 7, Amended)

As part of the assessment of the impacts of regulated
activities upon fish and wildlife, the District will
provide a copy of all applications for standard
general, individual, and conceptual approval permits
which propose regulated activities in, on or over
wetlands or other surface waters to the Florida Game
and Fresh Water Fish Commission for review and comment.
In addition, the District staff may solicit comments
from the Florida Game and Fresh Water Fish Commission
regarding other applications to assist in the
assessment of potential impacts to wildlife and their
habitats, particularly with regard to listed wildlife
species. Where proposed activities have a potential to
impact listed marine species, the District will provide
a copy of the above-referenced types of applications to
the Department of Environmental Protection. (DEP: 17-
312.060(9')(a), Amended; SF: 5.0(b), Basis, Amended)

Generally, wildlife surveys will not be required. The
need for a wildlife survey will depend upon the
likelihood that the site is used by listed species,
considering site characteristics and the range and
habitat needs of such species, and whether the proposed
system will impact that use such that the criteria in
subsection 12.2.2 12.2.2.3 and subsection 12.2.7 will
not be met. Survey methodologies employed to inventory
the site must provide reasonable assurances regarding
the presence or absence of the subject listed species.
(SJR 9/8/93 Policy)

12.2.2.1 Compliance with subsections 12.2.2 12.2.3.7, 12.2.5 -
12.3.8 will not be required for regulated activities in
isolated wetlands less than one half acre in size,
unless:


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12.2.2
























12.2.2.2



















12.2.2.3


(a) the wetland is used by threatened or endangered
species. (SJR: 10.7.4, A.H., Amended; SWF: 3.0(a), App. 4,
Amended; SF: 3.0(a), App.7, Amended)

(b) the wetland is located in an area of critical
state concern designated pursuant to Chapter 380,
F.S., or (swFr 3.0(c), App, 4)

(c) the wetland is connected by standing or flowing
surface water at seasonal high water level to one
or more wetlands, and the combined wetland acreage
so connected is greater than one half acre. (SWF:
3.0(d), App. 4, Amended)


Alterations in livestock watering ponds that were
constructed in uplands and which are less than one acre
in area and alterations in drainage ditches that were
constructed in uplands will not be required to comply
with the provisions of subsections 12.2.2 12.2.2.3,
12.2.2.5 -12.2.3.7, 12.2.5 12.3.8, unless those ponds
or ditches provide significant habitat for threatened
or endangered species. This means that, except in
cases where those ponds or ditches provide significant
habitat for threatened or endangered species, the only
environmental criteria that will apply to those ponds
or ditches are those included in subsections 12.2.4 -
12.2.4.5 and 12.2.2.4. This provision shall only apply
to those ponds and ditches which were constructed
before a permit was required under Part IV, Chapter
373, F.S. or were constructed pursuant to a permit
under Part IV, Chapter 373, F.S. (SWF: 3.1.5.7, Amended)
This provision does not apply to ditches constructed to
divert natural stream flow. (New)

The assessment of impacts expected as a result of
proposed activities on the values of functions will be
based on a review of pertinent scientific literature,
ecologic and hydrologic information, and field
inspection. When assessing the value of functions that
any wetland or other surface water provides to fish,
wildlife, and listed species, the factors which the
District will consider include:


(a) condition this factor addresses whether the
wetland or other surface water is in a high
quality state or has been the subject of past
alterations in hydrology, water quality, or
vegetative composition. However, areas impacted


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by activities in violation of Chapter 373, F.S.,
or a District rule, order, or permit will be
evaluated as if the activity had not occurred.
(SJR: 10.7.5(c), A.H., Amended; SWFi 3.2.3.1 a.2., Basis,
Amended; DEP: 17-312.340(6)(c), F.A.C., Amended)

(b) hydrologic connection this factor addresses the
nature and degree of off-site connection which may
provide benefits to off-site water resources
through detrital export, base flow maintenance,
water quality enhancement or the provision of
nursery habitat. (SJR: 10.7.5(b), A.H., Amended)

(c) uniqueness this factor addresses the relative
rarity of the wetland or other surface water and
its floral and faunal components in relation to
the surrounding regional landscape. (sJRt 10.7.5(d),
A.H., Amended; SWF: 6.0(c), App. 4, Amended; DEP: 17-
312.340(6)(c), F.A.C., Amended)

(d) landscape setting this factor addresses the
location of the wetland or other surface water in
relation to urban, agricultural or other types of
development or significant native habitat. (SJR:
10.7.5(e), A.H., Amended; SWF: 3.1.5.5 b., Basis, Amended,
6.0(c), App. 4, Amended)

(e) fish and wildlife utilization this factor
addresses use of the wetland or other surface
water for resting, feeding or breeding by fish and
wildlife, particularly those which are listed
species. (SWF: 3.1.5.5, Basis, Amended, 4.,6(b),,.6.D(a),
App. 4, Amended; SF: 4.2(b), App. 7, Amended; DEP: 17-
312.340(6)(a) and (b), F.A.C., Amended)

12.2.2.4 Water quantity impacts to wetlands and other surface
waters

Pursuant to paragraph 12.1.1(a), an applicant must
provide reasonable assurance that the regulated
activity will not change the hydroperiod of a wetland
or other surface water, so as to adversely affect
wetland functions or other surface water functions as
follows:

(a) Whenever portions of a system could have the
effect of lowering water levels in a wetland or
other surface water, the applicant must perform an
analysis of the drawdown in water levels or
diversion of water flows resulting from such

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activities and provide reasonable assurance that
these drawdowns or diversions will not adversely
impact the functions that wetlands and other
surface waters provide to fish and wildlife and
listed species. Portions of a proposed system
such as constructed basins, structures, stormwater
ponds, canals and ditches which have the potential
to drain or divert water from wetlands or other
surface waters will be considered to adversely
lower water levels in wetlands or other surface
waters if these portions of the system are located
within 200 feet from the landward edge of the
wetlands or other surface waters at any point,
unless the applicant provides soil or other data
that shows that the hydroperiod of the wetland or
other surface water would not be adversely
affected. (SF: 3.2.3.4, Basis, Amended, 5.1.6, App. 7,
Amended)

(b) Increasing the depth, duration, or frequency of
inundation through changing the rate or method of
discharge of water to wetlands or other surface
waters or by impounding water in wetlands or other
surface waters must also be addressed to prevent
adverse effects to functions that wetlands and
other surface waters provide to fish and wildlife
and listed species. Different types of wetlands
respond differently to increased depth, duration,
or frequency of inundation. Therefore, the
applicant must provide reasonable assurance that
activities that have the potential to increase
discharge or water levels will not adversely
affect the functioning of the specific wetland or
other surface water subject to the increased
discharge or water level. (SF: 5.1.6, App. 7, Amended)


(c) Whenever portions of a system could have the
effect of altering water levels in wetlands or
other surface waters, applicants shall be required
to monitor the wetland or other surface waters to
demonstrate that such alteration has not resulted
in adverse impacts, or to calibrate the system to
prevent adverse impacts. Monitoring parameters,
methods, schedules, and reporting requirements
shall be specified in permit conditions.

12.2.3 Public Interest Test


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In determining whether a regulated activity located in,
on, or over surface waters or wetlands, is not contrary
to the public interest or is clearly in the public
interest, the District shall consider and balance, and
an applicant must address, the following criteria:

(a) Whether the regulated activity will adversely
affect the public health, safety, or welfare or
the property of others (40C-4.302(1)(a)l.,
F.A.C.); (373.414(1)(a)1., F.S.)

(b) Whether the regulated activity will adversely
affect the conservation of fish and wildlife,
including endangered or threatened species, or
their habitats (40C-4.302(1)(a)2., F.A.C.);
(373.414(1)(a)2., F.S.)

(c) Whether the regulated activity will adversely
affect navigation or the flow of water or cause
harmful erosion or shoaling (40C-4.302(l)(a)3.,
F.A.C.); (373.414(1)(a)3., F.S.)

(d) Whether the regulated activity will adversely
affect the fishing or recreational values or
marine productivity in the vicinity of the
activity (40C-4.302(1)(a)4., F.A.C.);
(373.414(1)(a)4., F.S.)

(e) Whether the regulated activity will be of a
temporary or permanent nature (40C-4.302(a)5.,
F.A.C.); (373.414(1)(a)5., F.S.)

(f) Whether the regulated activity will adversely
affect or will enhance significant historical and
archaeological resources under the provisions of
section 267.061, F.S. (40C-4.302(1)(a)6., F.A.C.);
and (373.414(1)(a)6., F.S.)

(g) The current condition and relative value of
functions being performed by areas affected by the
proposed regulated activity (40C-4.302(1)(a)7.,
F.A.C.). (373.414(1)(a)7., F.S.)

12.2.3.1 Public health, safety, or welfare or the property of
others

In reviewing and balancing the criterion regarding
public health, safety, welfare and the property of
others in paragraph 12.2.3(a), the District will

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evaluate, whether the regulated activity located in,
on, or over wetlands or other surface waters will
cause:

(a) an environmental hazard to public health or safety
or improvement to public health or safety with
respect to environmental issues. Each applicant
must identify potential environmental public
health or safety issues resulting from their
project. Examples of these type of issues may
include mosquito control, proper disposal of
solid, hazardous, domestic or industrial waste,
aids to navigation, hurricane preparedness or
cleanup, environmental remediation, enhancement or
restoration and similar environmentally related
issues. For example, the installation of
navigational aids may improve public safety and
may reduce impacts to public resources. (New)

(b) impacts to areas classified by the Department as
approved, conditionally approved, restricted or
conditionally restricted for shellfish harvesting.
Activities which would cause closure or a more
restrictive classification or management plan for
a shellfish harvesting area would result in a
-_ negative factor in the public interest balance
with respect to this criterion. (New)

(c) flooding or alleviate existing flooding on the
property of others. There is at least a neutral
factor in the public interest balance with respect
to the potential for causing or alleviating
flooding problems if the applicant meets the water
quantity criteria in sections 10.3-10.6 of the
Handbook. (New)

(d) environmental impacts to the property of others.
For example, the discharge of nutrient laden water
which results in the proliferation of nuisance
vegetation on an adjacent property would be an
environmental impact to the property of others.
The District will not consider impacts to property
values. (New)

12.2.3.2 Fish and wildlife and their habitats

The District's public interest review of that portion
of a proposed system in, on, or over wetlands and other
surface waters for impacts to "the conservation of fish

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and wildlife, including endangered or threatened
species, or their habitats" is encompassed within the
required review of the entire system under subsection
12.2.2. (New) An applicant must always provide the
reasonable assurances required under subsection 12.2.2;
(SJRs 40C-4.301(2)(a)7., F.A.C., Amended; SWF: 40D-4.301(1)(f),
F.A.C.; SF: 40E-4.301(1)(e), F.A.C., Amended) consequently,
the public interest in paragraph 12.2.3(b) must always
be a positive or neutral factor in the public interest
balance, or whenever it is a negative factor, the
adverse impact must be offset through mitigation. (New)

12.2.3.3 Navigation, water flow, erosion and shoaling

In reviewing and balancing the criterion on navigation,
erosion and shoaling in paragraph 12.2.3(c), the
District will evaluate whether the regulated activity
located in, on or over wetlands or other surface waters
will:

(a) significantly impede navigability or enhance
navigability. The District will consider the
current navigational uses of the surface waters
and will not speculate on uses which may occur in
the future. Applicants proposing to construct
bridges or other traversing works must address
adequate horizontal and vertical clearance for the
type of watercraft currently navigating the
surface waters. Applicants proposing to construct
docks, piers and other works which extend into
surface waters must address the continued
navigability of these waters. An encroachment
into a marked or customarily used navigation
channel is an example of a significant impediment
to navigability. Applicants proposing temporary
activities in navigable surface waters, such as
the mooring of construction barges, must address
measures for clearly marking the work as a hazard
to navigation, including night time lighting. The
addition of navigational aids may be beneficial to
navigation. The submittal of a U.S. Coast Guard
permit issued pursuant to 14 U.S.C. Section 81
(1993), 33 C.F.R. Section 62 (1993) for a
regulated activity in, on or over wetlands or
other surface waters will assist the applicant in
addressing this criterion. (New)

(b) cause or alleviate harmful erosion or shoaling.
Applicants proposing activities such as channel

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relocation, artificial reefs, construction of
jetties, breakwaters, groins, bulkheads and beach
renourishment must address existing and expected
erosion or shoaling in the proposed design.
Compliance with erosion control best management
practices referenced in section 40C-42.025(1),
F.A.C., will be an important consideration in
addressing this criterion. Each permit will have
a general condition which requires applicants to
utilize appropriate erosion control practices and
to correct any adverse erosion or shoaling
resulting from the regulated activities. (New)

(c) significantly impact or enhance water flow.
Applicants must address significant obstructions
to sheet flow by assessing the need for structures
which minimize the obstruction such as culverts or
spreader swales in fill areas. Compliance with
the water quantity criteria found in subsection
12.2.2.4 shall be an important consideration in
addressing this criterion. (New)

12.2.3.4 Fisheries, recreation, marine productivity

In reviewing and balancing the criterion regarding
fishing or recreational values and marine productivity
in paragraph 12.2.3(d), the District will evaluate
whether the regulated activity in, on, or over wetlands
or other surface waters will cause:

(a) adverse effects to sport or commercial fisheries
or marine productivity. Examples of activities
which may adversely affect fisheries or marine
productivity are the elimination or degradation of
fish nursery habitat, and change in ambient water
temperature, change in normal salinity regime,
reduction in detrital export, change in nutrient
levels or other adverse affects on populations of
native aquatic organisms. (New)

(b) adverse effects or improvements to existing
recreational uses of a wetland or other surface
water. Wetlands and other surface waters may
provide recreational uses such as boating,
fishing, swimming, skiing, hunting and
birdwatching. An example of potential adverse
effects to recreational uses is the construction
of a traversing work, such as a road crossing a


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waterway, which could impact the current use of
the waterway for water skiing and boating. (New)

12.2.3.5 Temporary or Permanent Nature

When evaluating the other criteria in subsection
12.2.3, the District will consider whether the impacts
are of a temporary or permanent nature. Temporary
impacts will be considered less harmful than permanent
impacts of the same nature and extent. The impacts
will not be considered temporary in nature if they are
to occur on a regular basis. (New)

12.2.3.6 Historical and Archaeological Resources

In reviewing and balancing the criterion regarding
historical and archaeological resources in paragraph
12.2.3(f), the District will evaluate whether the
regulated activity located in, on, or over wetlands or
other surface waters will impact significant historical
or archaeological resources. The applicant must map
the location of and characterize the significance of
any known historical or archaeological resources that
may be affected by a regulated activity located in, on
or over wetlands or other surface waters. The District
will provide copies of all conceptual, individual and
standard general permit applications to the Division of
Historical Resources of the Department of State and
solicit their comments regarding whether the regulated
activity may adversely affect significant historical or
archaeological resources. If significant historical or
archaeological resources are likely to be found on the
site and impacted by the regulated activity, the
applicant will be required to perform an archaeological
survey and to develop and implement a plan approved by
the District to protect the significant historical or
archaeological resources. (New)


12.2.3.7 Current condition and relative value of functions

When evaluating other criteria in subsection 12.2.3,
the District will consider the current condition and
relative value of the functions performed by wetlands
and other surface waters affected by the proposed
regulated activity. (DEP: 17.312.340(6)(c), F.A.C., Amended)
Wetlands and other surface waters which have had their
hydrology, water quality or vegetative composition
permanently impacted due to past legal alterations or

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occurrences such as infestation with exotic species,
usually provide lower habitat value to fish and
wildlife. However, if the wetland or other surface
water is currently degraded, but is still providing
some beneficial functions, consideration will be given
to whether the regulated activity will further reduce
or eliminate those functions. Consideration will be
given to the significance of wetlands and other surface
waters which will be impacted to local and regional
landscape patterns, including relative abundance of
similar habitat and biota. (SWF: 6.0(c), App. 4, Amended,
3.1.5.5, b., Basis, Amended) The District will also
evaluate the predicted ability of the wetlands or other
surface waters to maintain their current functions as
part of the proposed system once it is developed. (SWF:
3.2.3.1 a.3., Basis, Amended; SF: 5.2.2, App. 7, Amended) Where
previous impacts to a wetland or other surface water
are temporary in nature, consideration will be given to
the inherent functions of these areas relative to
seasonal hydrologic changes, and expected vegetative
regeneration and projected habitat functions if the use
of the subject property were to remain unchanged. (SWF:
6.0(b), App. 4, Amended) When evaluating impacts to
mitigation sites which have not reached success
pursuant to subsection 12.3.6, the District shall
consider the functions that the mitigation site was
intended to offset, and any additional delay or
reduction in offsetting those functions that may be
caused by impacting the mitigation site. Previous
construction or alteration undertaken in violation of
Chapter 373, F.S., or District rule, order-or permit
will not be considered as having diminished the
condition and relative value of a wetland or other
surface water. (SJR: 10.7.5(c), A.H., Amended)

12.2.4 Water quality

Pursuant to paragraph 12.1.1(c), an applicant must
provide reasonable assurance that the regulated
activity will not violate water quality standards in
areas where water quality standards apply. (DEP: 17-
312.080(1), F.A.C., Amended)

Reasonable assurances regarding water quality must be
provided both for the short term and the long term,
addressing the proposed construction, alteration,
operation, maintenance, removal and abandonment of the
system. The following requirements are in addition to


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the water quality requirements found in subsection
10.7.6 of the Handbook. (New)

12.2.4.1 Short term water quality considerations

The applicant must address the short term water quality
impacts of a proposed system, including:

(a) providing turbidity barriers or similar devices
for the duration of dewatering and other
construction activities in or adjacent to wetlands
or other surface waters. (New)

(b) stabilizing newly created slopes or surfaces in or
adjacent to wetlands and other surface waters to
prevent erosion and turbidity. (New)

(c) providing proper construction access for barges,
boats and equipment to ensure that propeller
dredging and rutting from vehicular traffic does
not occur. (New)

(d) maintaining construction equipment to ensure that
oils, greases, gasoline, or other pollutants are
not released into wetlands or other surface
waters. (New)

(e) controlling the discharge from spoil disposal
sites. (New)

(f) preventing-any other discharge or release of
pollutants during construction or alteration that
will cause water quality standards to be violated.
(DEP: 17-312.080(1), F.A.C., Amended; SJR: 10.7.6, A.H.,
Amended)

12.2.4.2 Long term water quality considerations

The applicant must address the long term water quality
impacts of a proposed system, including:

(a) the potential of a constructed or altered water
body to violate water quality standards due to its
depth or configuration. For example, the depth of
water bodies must be designed to insure proper
mixing so that the water quality standard for
dissolved oxygen will not be violated in the lower
levels of the water body, but should not be so
shallow that the bottom sediments are frequently

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resuspended by boat activity. Water bodies must
be configured to prevent the creation of debris
traps or stagnant areas which would be expected to
result in violations of water quality standards.
(New)

(b) long term erosion, siltation or propeller dredging
that will cause turbidity violations. (New)

(c) prevention of any discharge or release of
pollutants from the system that will cause water
quality standards to be violated. (DEP: 17-
312.080(1), F.A.C., Amended; SJRt 10.7.6, A.H., Amended)

12.2.4.3 Additional water quality considerations for docking
facilities

Docking facilities, due to their nature, provide
sources of pollutants to wetlands and other surface
waters. Sources of pollutants include anti-fouling
paints used on boat hulls, anti-fouling treatments used
in pilings, discharges of fuels from boat motors and
fueling facilities, and discharges of human and solid
wastes from boats. To provide the required reasonable
assurance that water quality standards will not be
violated, the following factors must be addressed by an
applicant proposing the construction of a new docking
facility, or the expansion of or other alteration of an
existing docking facility that has the potential to
adversely affect water quality: (New)

(a) Hydrographic information or studies shall be
required for docking facilities of greater than
ten boat slips. Hydrographic information or
studies also may be required for docking
facilities of less than ten slips, dependent upon
the site specific features described in paragraph
12.2.4.3(b) below. In all cases, the need for a
hydrographic study, and the complexity of the
study, will be dependent upon the specific project
design and the specific features of the project
site. (DEP: 17.312.060(5)(a), F.A.C., Amended)

(b) The purpose of the hydrographic information or
studies is to document the flushing time (the time
required to reduce the concentration of a
conservative pollutant to ten percent of its
original concentration) of the water at the
docking facility. This information is used to


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determine the likelihood that the facility will
accumulate pollutants to the extent that water
quality violations will occur. Generally, a
flushing time of less than or equal to four days
is the maximum that is desirable for docking
facilities. However, the evaluation of the
maximum desirable flushing time also takes into
consideration the size (number of slips) and
configuration of the proposed docking facility;
the amplitude and periodicity of the tide; the
geometry of the subject waterbody; the circulation
and flushing of the waterbody; the quality of the
waters at the project site; the type and nature of
the docking facility; the services provided at the
docking facility; and the number and type of other
sources of water pollution in the area. (New)

(c) The level and type of hydrographic information or
studies that will be required for the proposed
docking facility will be determined on a case
specific basis. As compared to sites that flush
in less than four days, sites where the flushing
time is greater than four days generally will
require additional, more complex levels of
hydrographic studies or information to determine
whether water quality standards can be expected to
be violated by the facility. Generally, the
degree and complexity of the hydrographic study
will be dependent upon the types of considerations
listed in paragraph 12.2.4.3.(b), including the
potential for the facility, based on its design
and location, to add pollutants to the receiving
waters. Types of information that can be required
include site-specific measurements of: waterway
geometry, tidal amplitude, the periodicity of
forces that drive water movement at the site, and
water tracer studies that document specific
circulation patterns. (New)

(d) The applicant shall document, through hydrographic
information or studies, that pollutants leaving
the site of the docking facility will be
adequately dispersed in the receiving water body
so as to not cause violations of water quality
standards based on circulation patterns and
flushing characteristics of the receiving water
body. (DEP: 17-312.060(5)(a), F.A.C., Amended)



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(e) In all cases, the hydrographic studies shall be
designed to document the hydrographic
characteristics of the project site and
surrounding waters. All hydrographic studies must
be approved by the District based on the factors
described in paragraphs (a)-(d) above, therefore
an applicant should consult with the District
prior to conducting such a study. (DEPI 17-
312.060(5)(a), F.A.C., Amended)

(f) Fueling facilities shall be located and operated
so that the potential for spills or discharges to
surface waters and wetlands is minimized.
Containment equipment and emergency response plans
must be provided to ensure that the effects of
spills are minimized. (New)

(g) The disposal of domestic wastes from boat heads,
particularly from liveaboard vessels, must be
addressed to prevent improper disposal into
wetlands or other surface waters. A liveaboard
vessel shall be defined as a vessel docked at the
facility that is inhabited by a person or persons
for any five consecutive days or a total of ten
days within a 30 day period. (New)

(h) The disposal of solid waste, such as garbage and
fish cleaning debris, must be addressed to prevent
improper disposal into wetlands or other surface
waters. (New)

x (i) Pollutant leaching characteristics of materials -
such as pilings and anti-fouling paints used on
the hulls of vessels must be addressed to ensure
that any pollutants that leach from the structures
and vessels will not cause violations of water
quality standards given the flushing at the site
and the type, number and concentration of the
likely sources of pollutants. (DEP: 17-312.060(5)(a),
F.A.C., Amended)

12.2.4.4 Mixing Zones

A temporary mixing zone for water quality during
construction or alteration may be requested by the
applicant. The District shall consider such request
pursuant to sections 17-4.242 and 17-4.244(5), in
accordance with the Operating Agreement Concerning
Regulation Under Part IV, Chapter 373, F.S. adopted by


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reference in Section 40C-4.091, F.A.C. (DEPr 17-
4.242(2)(a)2.b. and 17-4.244, F.A.C., Amended)

12.2.4.5 Where ambient water quality does not meet standards

If the site of the proposed activity currently does
not meet water quality standards, the applicant must
demonstrate compliance with the water quality standards
by meeting the provisions in subsections 12.2.4.1,
12.2.4.2, and 12.2.4.3, as applicable, and for the
parameters which do not meet water quality standards,
the applicant must demonstrate that the proposed
activity will not contribute to the existing violation.
If the proposed activity will contribute to the
existing violation, mitigation may be proposed as
described in subsection 12.3.1.4. (17-312. F.A.C.,
Amended)

12.2.5 Class II Waters; Waters approved for shellfish
harvesting

The special value and importance of shellfish
harvesting waters to Florida's economy as existing or
potential sites of commercial and recreational
shellfish harvesting and as a nursery area for fish and
shell fish is recognized by the District. (DEPt 17-
312.080(6), F.A.C.) In accordance with paragraph
12.1.1(d), the District shall:

(a) deny a permit for a regulated activity in Class II
waters which are not approved for shellfish
harvesting unless the applicant.-submits a plan or
proposes a procedure to protect those waters and
waters in the vicinity. The plan or procedure
shall detail the measures to be taken to prevent
significant damage to the immediate project area
and the adjacent area and shall provide reasonable
assurance that the standards for Class II waters
will not be violated; (DEP: 17-312.080(6)(a), F.A.C.)

(b) deny a permit for a regulated activity in any
class of waters where the location of the system
is adjacent or in close proximity to Class II
waters, unless the applicant submits a plan or
proposes a procedure which demonstrates that the
regulated activity will not have a negative effect
on the Class II waters and will not result in
violations of water quality standards in the Class
II waters (DEPt 17-312.080 (6)(b), F.A.C.); and

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(c) deny a permit for a regulated activity that is
located directly in Class II or Class III waters
which are classified by the Department as
approved, restricted, conditionally approved or
conditionally restricted for shellfish harvesting.
However, the District may issue permits or
certifications for maintenance dredging of
navigational channels, the construction of
shoreline protection structures, the installation
of transmission and distribution lines for
carrying potable water, electricity or
communication cables in rights-of-way previously
used for such lines, for clam and oyster culture,
and for private, single family boat docks that
meet the following criteria for installation in
such waters: (DEP: 17-312.080(7), F.A.C., Amended)

1. there shall be no more than two boats moored
at the dock; (DEP: 17-312.080(7)(a), F.A.C.)

2. no overboard discharges of trash, human or
animal waste, or fuel shall occur at the
dock; (DEP: 17-312.080(7)(b), F.A.C.)

3. any non-water dependent structures, such as
gazebos or fish cleaning stations, shall be
located on the uplands; (DEP: 17-312.080(7)(c),
F.A.C.)

4. prior to the mooring of any boat at the dock,
there shall be existing structures with
toilet facilities-located on the uplands;
(DEP: 17-312.080(7)(d), F.A.C.)

5. any proposed shelter shall not have enclosed
sides; (DEP: 17-312.080(7)(e), F.A.C.)

6. the mooring area shall be located in waters
sufficiently deep to prevent bottom scour by
boat propellers; and (DEP: 17-312.080(7)(f),
F.A.C.)

7. any structures located over grassbeds shall
be designed so as to allow for the maximum
light penetration practicable. (DEPt 17-
312.080(7)(gf), F.A.C.)

12.2.6 Vertical seawalls



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(a) The construction of vertical seawalls in estuaries
or lagoons is prohibited unless one of the
following conditions exists: (373.414(5)(b), Pr..)

1. the proposed construction is located within a
port as defined in Section 315.02, F.S., or
Section 403.021, F.S.; (373.414(5)(b)1., F.S.)

2. the proposed construction is necessary for
the creation of a marina, the vertical
seawalls are necessary to provide access to
watercraft, or the proposed construction is
necessary for public facilities;
(373.414(5)(b)2., F.S.)

3. the proposed construction is to be located
within an existing manmade canal and the
shoreline of such canal is currently occupied
in whole or in part by vertical seawalls; or
(373.414(5)(b)3., F.S.)

4. the proposed construction is to be conducted
by a public utility when such utility is
acting in the performance of its obligation
to provide service to the public.
(373.414(5)(b)4., F.S.)

(b) When considering an application for a permit to
repair or replace an existing vertical seawall,
the District shall generally require such seawall
to be faced with riprap material, or to be
replaced entirely with riprap material unless a
condition specified in subparagraphs 1.-4. above
exists. (373.414(5)(c), F.S.) This subsection shall
in no way hinder any activity previously exempt or
permitted, or those activities permitted pursuant
to Chapter 161, F.S. (373.414(5)(d), F.S.)

12.2.7 Secondary Impacts

Pursuant to paragraph 12.1.1(f), an applicant must
provide reasonable assurances that a regulated activity
will not cause unacceptable secondary water resource
impacts. Aquatic or wetland dependent fish and
wildlife are an integral part of the water resources
which the District is authorized to protect under Part
IV, Chapter 373, F.S. Those aquatic or wetland
dependent species which are listed as threatened,


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- endangered or of special concern are particularly in
need of protection.

A proposed system shall be reviewed under this
criterion by evaluating the impacts to: wetland and
surface water functions identified in subsection
12.2.2, water quality, upland habitat for aquatic or
wetland dependent listed species, and historical and
archaeological resources in uplands. (sJRt 9/8/93 Policy,
Amended) Applicants may propose measures such as
preservation to prevent secondary impacts. Such
preservation shall comply with the land preservation
provisions of subsection 12.3.8. If such secondary
impacts can not be prevented, the applicant may propose
mitigation measures as provided for in subsections 12.3
12.3.6.

This secondary impact criterion consists of the
following four parts:

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

Impacts such as boat traffic generated by a
proposed dock, boat ramp or dry dock facility,
which causes an increased threat of collision with
manate-es; -impacts to wildlife from vehicles using
proposed roads in wetlands or surface waters;
impacts to water quality associated with the use
of septic tanks or propeller dredging by boats and
wakes from boats; and impacts associated with
docking facilities as described in paragraphs
12.2.4.3(f) and (h), will be considered relative
to the specific activities proposed and the
potential for such impacts.

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

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

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

(b) An applicant shall provide reasonable assurance
that the.construction, alteration, and intended or
reasonaSBy expected uses of a proposed system will
not cause an unacceptable impact upon habitat
functions that uplands within the project area
currently provide for aquatic or wetland dependent
listed species. For the purpose of this
paragraph, "unacceptable impacts to habitat
functions" shall mean adverse impacts to upland
habitat which is used for nesting or denning or
which isinecessary to access these habitats.
Table 12.2.7-1 identifies those aquatic or wetland
dependent listed species that use upland habitats
for nesting and denning. (sJRs 9/8/93 Policy,
Amended)

For those aquatic or wetland dependent listed
species for which habitat management guidelines
have been developed by the U.S. Fish and Wildlife
Service (USFWS) or the Florida Game and Fresh
- Water Fish Commission (FGFWFC), compliance with- .... -..
these guidelines will provide reasonable assurance
that the proposed system will not cause
unacceptable impacts to upland habitat functions
described in this criterion. For those aquatic or
wetland dependent listed species for which habitat
management guidelines have not been developed and
in cases where an applicant does not follow USFWS
or FGFWFC habitat management guidelines, the
applicant must implement District approved
measures to mitigate unacceptable adverse impacts
to upland habitat functions provided to aquatic or
wetland dependeAt listed species. (SJR: 9/8/93
Policy)

(c) In addition to evaluating the impacts in the area
of any dredging and filling in, on, or over
wetlands or other surface waters, and as part of

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the balancing review under subsection 12.2.3, the
District will consider any other relevant
activities that are very closely linked and
causally related to any proposed dredging or
filling which will cause impacts to significant
historical and archaeological resources in
uplands. (McCormick v. City of Jacksonville, 12 FALR 980)

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

1. additional phases or expansion of the
proposed system for which plans have been
submitted to the District or other
governmental agencies; and (SJR: 9/8/93, Policy)

2. on-site and off-site activities regulated
under Part IV, Chapter 373, F.S., or
activities described in section 403.813(2),
F.S., that are very closely linked and
causally related to the proposed system,
(SJRi 9/8/93, Policy)

will not result in water quality violations
or unacceptable impacts to the functions of
wetlands and other surface waters as
- described in subsection 12.2.2. As part of
this review, the District will also consider
the impacts of the intended or reasonably
expected uses of the future activities on
water quality and wetland and other surface
water functions.

In conducting the analysis under paragraph
(d)2., above, the District will consider
those future projects or activities which
would not occur but for the proposed system,
including where the proposed system would be
considered a waste of resources, should the
future project or activities not be
permitted. (SJR: 9/8/93, Policy)

Where practicable, proposed systems shall be
designed in a fashion which does not
necessitate future impacts to wetland and
other surface water functions. If a proposed
system will necessitate future impacts to
these functions, the applicant must provide
reasonable assurances that those future

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impacts to such functions can be successfully
offset. To provide reasonable assurances
that future impacts to wetland and other
surface water functions can be successfully
offset and that water quality standards will
not be violated, the applicant must provide
information sufficient to obtain a conceptual
approval permit for those future
impacts.(SJR: 9/8/93, Policy)

System expansions and future system phases
will be considered in the secondary impact
analysis, and if the District determines that
future phases of a system involve impacts
that appear not to meet permitting criteria,
the current application may be denied unless
the applicant can provide reasonable
assurance that those future phases can comply
with permitting criteria. One way for
applicants to establish that future phases or
system expansions do not have unacceptable
secondary impacts is for the applicant to
obtain a conceptual approval permit for the
entire project. (sJR: 9/8/93, Policy)

12.2.8 Cumulative Impacts

Pursuant to paragraph 12.1.1(g), an applicant must
provide reasonable assurances that a regulated activity
will not cause unacceptable cumulative impacts upon
wetlands and other surface waters within the same
drainage basin as the regulated activity for which a
permit is sought. The impact on wetlands and other
surface waters shall be reviewed by evaluating the
impacts to water quality and by evaluating the impacts
to functions identified in subsection 12.2.2. The
drainage basins within the District are identified on
Figure 12.2.8-1. Applicants may propose measures such
as preservation to prevent cumulative impacts. Such
preservation shall comply with the land preservation
provisions in subsection 12.3.8. If unacceptable
cumulative impacts can not be prevented, the applicant
may propose mitigation measures as provided for in
sections 12.3 12.3.6.

The cumulative impact criterion consists of two parts,
one part addressing the relationship between the system
under review and certain past actions, the other


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addressing the relationship between the system under
review and certain future actions. (SJR: 9/8/93, Policy)

(a) With respect to past actions, an applicant must
provide reasonable assurance that the proposed
system, when considered with:

1. existing projects, and

2. on-going construction regulated under Part
IV, Chapter 373, F.S.,

which are located in the same drainage basin and which
have similar types of impacts (adverse effects) as the
proposed system, will not result in unacceptable
cumulative impacts to the quality or the functions of
wetlands and other surface waters, within the same
drainage basin. This analysis asks the question
whether the proposed system is the proverbial "straw
that breaks the camel's back" regarding water quality
or wetland and other surface water functions in the
basin. (SJR: 9/8/93, Policy)

(b) With respect to future activities, an applicant
must provide reasonable assurance that the
proposed system, when considered with:

1. future projects for which permits under part
IV, chapter 373, F.S., have been sought;

2. future projects regulated under part IV,
chapter 373, F.S., -for which determinations
pursuant to section 373.421, F.S. or section
403.914, F.S. (1991), have been sought;

3. future activities which are under review,
approved or vested pursuant to section
380.06, F.S.; and

4. future projects regulated under Part IV,
Chapter 373, F.S., reasonably expected to be
located within wetlands or other surface
waters as delineated pursuant to the
methodology authorized in subsection
373.421(1), F.S.,

which are located within the same drainage basin and
which have impacts like those which will be caused by
the proposed system under review, will not result in

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12.2.8.1







12.2.8.2







12.3


unacceptable cumulative impacts to water quality or the
functions of wetlands and other surface waters, within
the same drainage basin. This analysis is conducted
using an assumption that reasonably expected future
applications with like impacts will be sought, thus
necessitating equitable distribution of acceptable
impacts among future applications. (SJRZ 9/8/93, Policy,
Amended)

Cumulative impacts are considered unacceptable when the
proposed system, considered in conjunction with the
past, present, and future activities as described in
12.2.8 would then result in a violation of state water
quality standards or a significant loss of functions of
wetlands or other surface waters within the same
drainage basin when considering the basin as a whole.

For the purpose of this cumulative impact review,
existing comprehensive plans, adopted pursuant to
Chapter 163, F.S., of the local governments having
jurisdiction over the activities, or applicable land
use restrictions and regulations will be considered in
determining whether a project is "reasonably to be
expected." (SJR: 9/8/93, Policy)

Mitigation

Protection of wetlands and other surface waters is
preferred to destruction and mitigation due to the
temporal loss of ecological value and uncertainty
regarding the ability to recreate certain functions
associated- with these features. (New) Mitigation can
be approved only after the applicant has complied with
the requirements of subsection 12.2.1 regarding
practicable modifications to eliminate or reduce
adverse impacts. (DEP: 17-312(3), F.A.C., VHQ) This
section establishes criteria to be followed in
evaluating mitigation proposals.

Mitigation required by sections 12.3 12.3.8 must
offset the adverse impacts caused by regulated
activities as identified in sections 12.2 12.2.8.2.
In certain cases, mitigation cannot offset impacts
sufficiently to yield a permittable project. Such
instances may include activities which significantly
degrade Outstanding Florida Waters, adversely impact
habitat for listed species, or adversely impact those
wetlands or other surface waters not likely to be
successfully recreated. (DEPI 17-312.300(5), F.A.C., Amended)


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12.3.1


12.3.1.1













12.3.1.2


Applicants are encouraged to consult with District
staff in pre-application conferences or during the
application process to identify appropriate mitigation
options.

Types of Mitigation

Mitigation usually consists of restoration,
enhancement, creation, or preservation of wetlands,
other surface waters or uplands. In some cases, a
combination of mitigation types is the best approach to
offset adverse impacts resulting from the regulated
activity.

In general, mitigation is best accomplished through
creation, restoration, enhancement, or preservation of
ecological communities similar to those being impacted.
However, when the area proposed to be impacted is
degraded, compared to its historic condition,
mitigation is best accomplished through creation,
restoration, enhancement or preservation of the
ecological community which was historically present.
Mitigation involving other ecological communities is
acceptable if impacts are offset and the applicant
demonstrates that greater improvement in ecological
value will result. (DEP: 17-312.340(1)(b), F.A.C., Amended;
SJR: 16.1.5(c), A.H., Amended)

In general, mitigation is best accomplished when
located on-site or in close proximity to the area being
impacted. (DEP: 17-312.340(6), F.A.C., Amended; SJRt 16.1.3(b),
A.H., Amended) Off-site mitigation can be accepted,
however, if adverse impacts are offset and the
applicant demonstrates that:


(a) on-site mitigation opportunities are not expected
to have comparable long-term viability due to such
factors as unsuitable hydrologic conditions or
ecologically incompatible existing adjacent land
uses or future land uses identified in a local
comprehensive plan adopted according to Chapter
163, F.S.; or (DEP: 17-342.300(1)(a), F.A.C.; SJR:
12.4.3, A.H., Amended)

(b) off-site mitigation would provide greater
improvement in ecological value than on-site
mitigation. (DEP: 17-342.300(1)(b), F.A.C., Amended; SJR:
12.4.3, A.H., Amended)


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12.3.1.3




12.3.1.4










12.3.1.5













12.3.1.6


12.3.1.7








12.3.1.8


Mitigation through participation in a mitigation bank
shall be in accordance with subsection 12.4 Use of
Mitigation Banks (DEP: 17-342, F.A.C.; SJR: 12.4 16.1.7,
A.H.; SWF: App. 6; SF: App. 8)

In instances where an applicant is unable to meet water
quality standards because existing ambient water
quality does not meet standards and the system will
contribute to this existing condition, mitigation for
water quality impacts can consist of water quality
enhancement. In these cases, the District will
consider mitigation measures proposed by the applicant
that will cause net improvement of the water quality in
the receiving waters for those parameters which do not
meet standards. (See 373.414(1)(16), F.S.)

To offset adverse secondary impacts from regulated
activities to habitat functions that uplands provide to
listed species evaluated as provided in paragraph
12.2.7(b), mitigation can include the implementation of
management plans, participation in a wildlife
mitigation park established by the FGFWFC, or other
measures. Measures to offset adverse secondary impacts
on wetlands and other surface waters resulting from use
of a system can include the incorporation of culverts
or bridged crossings designed to facilitate wildlife
movement, fencing to limit access, reduced speed zones,
or other measures designed to offset the secondary
impact. (New)

Mitigation for certain mining activities shall be in
accordance with subsection 373.414(6), F.S.!.

Mitigation or reclamation required or approved by other
agencies for a specific project will be acceptable to
the District to the extent that such mitigation or
reclamation fulfills the requirements of sections 12.3-
12.3.8 and offsets adverse impacts of the same project
in accordance with the criteria in sections 12.2-
12.2.8.2 (DEP: 17-312.300(6), F.A.C., Amended; SJR: 16.1.4,
A.H., Amended)

Innovative mitigation proposals which deviate from the
standard practices described in sections 12.3-12.3.6
shall be considered on a case-by-case basis. The
donation of money is not considered to be an acceptable
method of mitigation, unless cash payments are
specified for use in a District or Department of
Environmental Protection endorsed environmental


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enhancement or restoration project, and the payments
initiate a project or supplement an ongoing project.
The project or portion of the project funded by the
donation of money must offset the impacts of the
proposed system. (DEP 17.312.310(6)(b), F.A.C, Amended; SJR:
12.4, A.H., Amended)

12.3.2 Mitigation Ratios

Subsections 12.3.2 12.3.2.2 establish ratios for the
acreage of mitigation required compared to the acreage
which is adversely impacted by regulated activities.
Ranges of ratios are provided below for certain
specific types of mitigation. These ratios are
provided as guidelines for preliminary planning
purposes only and the actual ratio may be higher or
lower based on a consideration of the factors listed in
subsections 12.3.2.1 and 12.3.2.2. For other types of
mitigation, ratios will be determined on a case-by-case
basis depending on the reduction in quality and
relative value of the functions of the areas adversely
impacted as compared to the expected improvement in
quality and value of the functions of the mitigation
area. (DEPs 17-312.340(2), F.A.C., Amended; SJR: 16.1.4, A.H.,
Amended)

S 12.3.2.1 Creation, Restoration and Enhancement

When considering creation, restoration and enhancement
as mitigation, the following factors will be considered
to determine whether the mitigation proposal will
offset the proposed impacts and to-determinethe
appropriate mitigation ratio:

(a) The reduction in quality and relative value of the
function of the areas adversely impacted,
including the factors listed in subsection
12.2.2.3, as compared to the proposed improvement
in quality and value of the functions of the area
to be created, restored or enhanced.(sJR 16.1.3 -
16.1.4, A.H., Amended; DEPt 17-312.340(2)(d), F.A.C.,
Amended)

(b) Any special designation or classification of the
affected area. (DEP: 17-312.340(2)(b), F.A.C., Amended)

(c) The presence and abundance of nuisance and exotic
plants within the area to be adversely impacted.
(DEPs 17-312.340(2)(g), F.A.C., Amended)


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(d) The hydrologic condition of the area to be
adversely impacted and the degree to which it has
been altered relative to the historic condition.

(e) The length of time expected to elapse before the
functions of the area to be adversely impacted
will be offset. (DEPt 17-312.340(2)(a), F.A.C., Amended)

(f) The likelihood of mitigation success. (DEPt 17-
312.340(2)(c) and (3)(e), F.A.C., Amended)

(g) For mine reclamation activities subject to Chapter
211, F.S., Part II, whether the ratio is
consistent with the mine reclamation plan
submitted pursuant to Chapter 378, F.S. (DEPt 17-
312.340(2)(f), F.A.C., Amended)


12.3.2.1.1


12.3.2.1.2


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

(a) Mangrove swamps, cypress swamps, and hardwood
swamps 2:1 to 5:1 (acres created or
restored: acres impacted). SJR: 16.1.4, A.H.,
Amended

(b) Saltwater marshes and freshwater marshes -
1.5:1 to 4:1 (acres created or restored:
acres impacted. (sJR: 16.1.4, A.H., Amended)

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


12.3.2.2 Preservation

(a) Preservation of important ecosystems can provide
an improved level of protection over the current

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- regulatory programs. The District may consider as
mitigation the preservation, by donation or
conservation easement or other comparable land use
restriction, of wetlands, other surface waters, or
uplands. Conservation easements or restrictions
must be consistent with the requirements of
subsection 12.3.8.(DEP: 17-312.270(1),
F.A.C.Amended) In many cases it is not expected
that preservation alone will be sufficient to
offset adverse impacts. (SJR: 16.1.3(d) and 12.4,
A.H., Amended) Preservation will most frequently
be approved in combination with other mitigation
measures.

(b) When considering preservation as mitigation, the
following factors will be considered to determine
whether the preservation parcel would offset the
proposed impacts and to determine the appropriate
mitigation ratio.

1. The reduction in quality and relative value
of the functions of the areas adversely
impacted, including those factors listed in
subsection 12.2.2.3, as compared to the
quality and value of the functions of the
area to be preserved and the additional
protection provided to these functions by the
proposed preservation. (DEP: 17-312.340(1),
17-312.370(1), F.A.C., Amended; SJR: 16.1.3 16.1.4,
A.H., Amended) Factors used in determining
this additional level of protection include
the extent and likelihood that the land to be
preserved would be adversely impacted if it
were not preserved, considering the
protection provided by existing regulations
and land use restrictions. DEP: 17-
312.370(1)(b), F.A.C., Amended)

2. Any special designation or classification of
the affected area. (DEP: 17-342.470(2) (i),
F.A.C., Amended)

3. The presence and abundance of nuisance and
exotic plants within the area to be adversely
impacted.
New.

4. The ecological and hydrological relationship
between wetlands, other surface waters, and


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uplands to be preserved. (DEP: 17-
342.470(2)(e),
F.A.C., Amended)

5. The extent to which proposed management
activities on the area to be preserved
promote natural ecological conditions, such
as natural fire patterns. (DEP: 17-
342.470(2)(b), F.A.C., Amended)

6. The proximity of the area to be preserved to
areas of national, state, or regional
ecological significance, such as national or
state parks, Outstanding Florida Waters, and
other regionally significant ecological
resources or habitats, such as lands acquired
or to be acquired through governmental or
non-profit land acquisition programs for
environmental conservation, and whether the
areas to be preserved include corridors
between these habitats. (DEP: 27-
342.470(2)(b), F.A.C., Amended)

7. The extent to which the preserved area
provides habitat for fish and wildlife,
especially listed species. (New)

8. Any special designation or classification of
the area to be preserved. (DEP: 17-
342.470(2)(i), F.A.C., Amended)

9. The extent of invasion of nuisance and exotic -
species within the area to be preserved.
(New)

(c) Wetland and other surface water preservation
ratios. Since wetlands and other surface waters
are, to a large extent, protected by existing
regulations, the ratio guideline for preservation
of wetlands and other surface waters is
substantially higher than for restoration and
creation. The ratio guideline for wetland and
other surface water preservation will be 10:1 to
100:1, (acreage wetlands and other surface waters
preserved to acreage impacted). (New)

(d) Upland preservation ratios. Many wildlife species
that are aquatic or wetland dependent spend
critical portions of their life cycles in uplands.

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12.3.2.3







12.3.3

12.3.3.1


12.3.3.2


Uplands function as the contributing watershed to
wetlands and are necessary to maintain the
ecological value of those wetlands. Because of
these values, the preservation of certain uplands
may be appropriate for full or partial mitigation
of wetland impacts, impacts to the upland portion
of the riparian habitat protection zones described
in subsections 11.3.5 and 11.4.4, and impacts to
uplands that are used by listed aquatic or
wetland dependent species as described in
subsection 12.2.7.1. The ratio guideline for
upland preservation will be 3:1 to 20:1 (acreage
of uplands preserved to acreage impacted). (New)

To the extent that the area to be preserved offset the
adverse impact and otherwise meets the requirements of
this section, wetland, other surface water, or upland
habitat which is proposed to be preserved in order to
prevent secondary or cumulative impacts can be
considered as part of the mitigation plan to offset
other adverse impacts of the system.

Mitigation Proposals

Applicants shall provide reasonable assurance that
proposed mitigation will:

(a) offset adverse impacts due to regulated
activities; and

(b) achieve mitigation success by providing viable and
sustainable ecological and hydrological functions.
(DEP: 17-312.340, F.A.C., Amended)


Applicants shall submit detailed plans describing
proposed construction, establishment, and management of
mitigation areas. These plans shall include the
following information, as appropriate for the type of
mitigation proposed:(DEP: 17-312.330, F.A.C., Amended; SF 4.3,
App., Amended; SJR: 16.1.5, A.H., Amended; SWF: 4.6, App. 4,
Amended: for (a) (o) below)


(a) A soils map of the mitigation area and other soils
information pertinent to the specific mitigation
actions proposed.

(b) A topographic map of the mitigation area and
adjacent hydrologic contributing and receiving
areas.

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(c) A hydrologic features map of the mitigation area
and adjacent hydrologic contributing and receiving
areas.

(d) A description of current hydrologic conditions
affecting the mitigation area.

(e) A map of vegetation communities in and around the
mitigation area.

(f) Construction drawings detailing proposed
topographic alterations and all structural
components associated with proposed activities.

(g) Proposed construction activities, including a
detailed schedule for implementation.

(h) A vegetation planting scheme and schedule for
implementation.

(i) Sources of plants and soils used in wetland
creation.

(j) Measures to be implemented during and after
construction to avoid adverse impacts related to
proposed activities.

(k) A management plan comprising all aspects of
operation and maintenance, including water
management practices, vegetation establishment,
exotic and nuisance species control, fire
management, and control of access.

(1) A proposed monitoring plan to demonstrate
mitigation success.

(m) A description of the activities proposed to
control exotic and nuisance species should these
become established in the mitigation area. The
mitigation proposal must include reasonable
measures to assure that these species do not
invade the mitigation area in such numbers as to
affect the likelihood of success of the project.
(DEP: 17-312.340(5), F.A.C.)

(n) a description of anticipated site conditions in
and around the mitigation area after the
mitigation plan is successfully implemented.


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(o) a comparison of current fish and wildlife habitat
to expected habitat after the mitigation plan is
successfully implemented.

(p) For mitigation plans with projected implementation
costs in excess of $25,000.00, an itemized
estimate of the cost of implementing mitigation as
set forth in subsection 12.3.7.8. (DEP: 17-
312.330(5), F.A.C.)

12.3.3.3 Applicants may be required to submit additional
information necessary to evaluate whether the proposed
mitigation meets the criteria in these rules. (DEP: 17-
312.330(1), F.A.C., Amended)


12.3.4 Monitoring Requirements for Mitigation Areas

Applicants shall be required to monitor the progress of
mitigation areas until success can be demonstrated as
provided in subsection 12.3.6. Monitoring parameters,
methods, schedules, and reporting requirements will be
specified in permit conditions. (DEPS 17-312.330(4),
F.A.C., Amended)

12.3.5 Protection of Mitigation Areas

Applicants shall propose and be responsible for
implementing appropriate methods to assure that
mitigation areas will not be adversely impacted by
incidental encroachment or secondary activities which
might compromise mitigation success. (DEP: 17-312.340(4),
F.A.C., Amended)

12.3.6 Mitigation Success

Due to the wide range of types of projects which may be
proposed for mitigation, specific success criteria will
be determined on a case-by-case basis. Success must be
measured in terms of whether the objectives of the
mitigation can be realized. The success criteria to be
included in permit conditions will specify the minimum
requirements necessary to attain a determination of
success. The mitigation shall be deemed successful by
the District when all applicable water quality
standards are met, the mitigation area has achieved
viable and sustainable ecological and hydrological
functions and the specific success criteria contained
in the permit are met. If success is not achieved
within a time frame specified within the permit,

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remedial measures shall be required. Monitoring and
maintenance requirements shall remain in effect until
success is achieved. (DEP: 17-312.350(1), F.A.C., Amended)

12.3.7 Financial Responsibility for Mitigation.

As part of compliance with paragraph 40C-4.301(l)(j),
F.A.C., where an applicant proposes mitigation, the
applicant shall provide proof of financial
responsibility to:

(a) conduct the mitigation activities;

(b) conduct any necessary management of the mitigation
site;

(c) conduct monitoring of the mitigation; and

(d) conduct any necessary corrective action indicated
by the monitoring. (DEP: 17-312.390(1)(a), F.A.C.,
Amended)

12.3.7.1 Applicants not subject to financial responsibility
requirements.

The following applicants shall not be subject to the
financial responsibility requirements in subsections
12.3.7-12.3.7.9:

(a) Applicants whose mitigation is deemed successful
pursuant to subsection 12.3.6 of this Handbook
prior to undertaking the construction activities
authorized under the permit issued pursuant to
Part IV, Chapter 372, F.S. (DEP: 17-312.390(1)(a),
F.A.C., Amended)

(b) Applicants whose mitigation is estimated to cost
less than $25,000.00. (DEP: 17-312.390(1)(b) F.A.C.,
Amended)

(c) Federal, state, county and municipal governments,
state political subdivisions and investor owned
utilities regulated by the Public Service
Commission. (DEP: 17-312.390(1)(a), F.A.C., Amended)

(d) mitigation banks which comply with the financial
responsibility provisions of section 12.4 of this
Handbook. (DEP: 17-342.700, F.A.C.; SJR: 12.4.11, A.H.)

12.3.7.2 Amount of financial responsibility.

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The amount of financial responsibility provided by the
applicant shall be in an amount equal to 110 percent of
the cost estimate determined pursuant to subsection
12.3.7.8 below, for each phase of the mitigation plan
submitted under the requirements of sections 12.3 -
12.3.8. (DEP: 17-312.390(2) F.A.C., Amended)

12.3.7.3 Documentation.

The permit applicant shall provide draft documentation
of the required financial responsibility mechanism
described below with the permit application, and shall
submit to the District the executed or finalized
documentation within the time frames specified in the
permit. (DEP: 17-342.700(2), F.A.C., Amended)


12.3.7.4 General Terms for Financial Responsibility Mechanisms.

In addition to the specific provisions regarding
financial responsibility mechanisms set forth in
subsection 12.3.7.6 below, the following, as they
relate to the specific mechanism proposed, shall be
complied with:

(a) The form and content of all financial
responsibility mechanisms shall be approved by the
District. (New)

(b) The financial mechanisms shall name the District
as sole beneficiary or shall be payable solely to
the District. If the financial mechanism is of a
type which is retained bythe beneficiary according
to industry standards, the original financial
responsibility mechanism shall be retained by the
District. (DEP: 17-342.700(3)(a), F.A.C.)

(c) The financial responsibility mechanisms shall be
established with a state or national bank, savings
and loan association, or other financial
institution, licensed in this state. In the case
of letters of credit, the letter of credit must be
issued by an entity which has authority to issue
letters of credit and whose letter of credit
operations are regulated and examined by a federal
or state agency. In the case of a surety bond,
the surety bond must be issued by a surety company
registered with the state of Florida. (DEP: 17-
342.700(3)(a), F.A.C., Amended)

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12.3.7.5











12.3.7.6


(d) The financial responsibility mechanisms shall be
effective on or prior to the date that the
activity authorized by the permit commences and
shall continue to be effective through the date of
notification of final release by the District in
accordance with subsection 12.3.7.7.2 below of
this Handbook. (DEPt 17-312.390(3) F.A.C., Amended)

(e) The financial responsibility mechanisms shall
provide that they cannot be revoked, terminated or
cancelled. Within 90 days of receipt by the
permitted of actual or constructive notice of
revocation, termination or cancellation of a
financial responsibility mechanism or other actual
or constructive notice of cancellation, the
permitted shall provide an alternate financial
responsibility mechanism which meets the
requirements of subsections 12.3.7 12.3.7.9.
(DEP: 17-342.700(3)(e), F.A.C.)

If the permitted fails to comply with the terms and
conditions of the permit, subsection 12.3.7 or fails to
complete the mitigation and monitoring within the
timeframes specified by the permit conditions or any
extension thereof, such failure shall be deemed a
violation of chapter 40C-4, F.A.C., and the permit
issued thereunder. In addition to any other remedies
for such violation as the District may have, the
District, upon notice as provided in the mechanism or
if none, upon reasonable notice, may draw upon the
financial mechanism. (DEP:.,17-342.,-7Q(3.)(f), F.A.C., Amended)

Financial Responsibility Mechanisms.


Financial responsibility for the mitigation, monitoring
and corrective action for each phase of the project may
be established by any of the following methods, at the
discretion of the applicant (DEP: 17-312.390(4), F.A.C.,
Amended):

(a) Performance bond; (DEP: 17-312.390(c), 17-342.700(4)(b),
F.A.C.)

(b) Irrevocable letter of credit; (DEP: 17-312.390(b),
F.A.C., Amended; 17-342.700(4)(b), F.A.C.)

(c) Trust fund agreement; (DEP: 17-342.700(4)(b), F.A.C.)


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(d) Deposit of cash or cash equivalent [into an escrow
account; (DEP: 17-312.390(4)(a), F.A.C., Amended)

(e) An audited annual financial statement submitted by
a Certified Public Accountant representing that
the applicant has a tangible net worth equal to or
in excess of the cost of the mitigation plan. For
purposes of this subparagraph, "tangible net
worth" means total assets, not including
intangibles such as goodwill and right to patents
or royalties, minus total liabilities, computed in
accordance with generally accepted accounting
principles. (DEP: 17-312.390(4)(d), F.A.C.)

(f) A demonstration that the applicant meets the
financial test and corporate guarantee
requirements set forth in 40 C.F.R. Section
264.143(f) incorporated herein by reference.
Where the referenced test is used to provide
evidence of financial resources necessary to
conduct mitigation activities the term "closure
and post-closure cost estimates" as set forth
therein, shall generally be construed as meaning
"mitigation cost estimates." (DEP: 17-312.390(4)(e),
F.A.C.)

(g) guarantee bond; (DEP: 17-342.700(4)(b), F.A.C.)

(h) insurance certificate; (DEP: 17-342.700(4)(b), F.A.C.)

(i) A demonstration that the applicant meets the self-
bonding provisions set forth at 30 C.F.R. Section
800.23 incorporated herein by reference. Where
the referenced provisions are used to provide
evidence of financial responsibility to conduct
mitigation activities, the term "surface coal
mining and reclamation operations," as set forth
therein, shall generally be construed as meaning
"mitigation activities." (DEP: 17-312.390(4)(f),
F.A.C.)

12.3.7.7 Cost estimates.

For the purposes of determining the amount of financial
responsibility that is required by this subsection, the
applicant shall submit a detailed written estimate, in
current dollars, of the total cost of conducting the
mitigation and maintenance activities and monitoring
the mitigation, if applicable. (DEP: 17-312.330(5), F.A.C.,
Amended)

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(a) The cost estimate for conducting the mitigation
and monitoring shall include all associated costs
for each phase thereof, including earthmoving,
planting, structure installation, maintaining and
operating any structures, controlling nuisance or
exotic species, fire management, consultant fees,
monitoring activities and reports. (DEPt 17-
342.700(6)(b), F.A.C., Amended)

(b) The applicant shall submit the estimates, together
with verifiable documentation, to the District
along with the draft of the financial
responsibility mechanism. (DEP: 17-342.700(6)(d),
F.A.C., Amended)

(c) The costs shall be estimated based on a third
party performing the work and supplying materials
at the fair market value of the services and
materials. The source of any cost estimates shall
be indicated. (DEP: 17-342.700(6)(e), F.A.C.)

12.3.7.7.1 Partial Releases. The permitted may request the
District to release portions of the financial
responsibility mechanism as phases of the
mitigation plan, such as earth moving or other
construction or activities for which cost
estimates were submitted and approved by the
District, are successfully completed. (DEP: 17-
312.390(6), F.A.C., Amended)

(a) The request shall be in writing and include
documentation that the phase or phases have
been completed and have been paid for or will
be paid for upon release of the applicable
portion of the financial responsibility
mechanism. (New)

(b) The District shall authorize the release of
the portion requested upon verification that
the construction or activities have been
completed in accordance with the mitigation
plans. (DEP: 17-312.390(6), F.A.C., Amended)

12.3.7.7.2 Final Release.

Within thirty (30) days of the District
determining that the mitigation is successful in
accordance with subsection 12.3.6, the District
shall so notify the permitted and shall authorize
the return and release of all funds held or give

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_










written authorization to the appropriate third
party for the cancellation or termination of the
financial responsibility mechanism. (DEP: 17-
312.390(5), F.A.C., Amended)

12.3.7.8 Financial Responsibility Conditions.

For applicants subject to the financial responsibility
of subsections 12.3.7 12.3.7.9, the District will
include the following conditions on the permit.

(a) A permitted must notify the District by certified
mail of the commencement of a voluntary or
involuntary proceeding under Title XI
(Bankruptcy), U.S. Code naming the permitted as
debtor within 10 business days after the
commencement of the proceeding. (DEP: 17-
312.390(7)(a), F.A.C.)

(b) A permitted who fulfills the requirements of
subsections 12.3.7 12.3.7.9 by obtaining a
letter of credit or performance bond will be
deemed to be without the required financial
assurance in the event of bankruptcy, insolvency
or suspension or revocation of the license or
charter of the issuing institution. The permitted
Must reestablish in accordance with subsections
12.3.7 12.3.7.9 a financial responsibility
mechanism within 60 days after such event. (DEP:
17-312.390(7)(b), F.A.C.)

(c) When transferring a permit in accordance with
section 40C-4.351, F.A.C., the new owner or person
with legal control shall submit documentation to
satisfy the financial responsibility requirements
of subsections 12.3.7 12.3.7.9. The prior owner
or person with legal control of the project shall
continue the financial responsibility mechanism
until the District has approved the permit
transfer and substitute financial responsibility
mechanism. (New)

12.3.7.9 Financial Responsibility Mechanisms For Multiple
Projects.

A applicant may use a mechanism specified in subsection
12.3.7.6 above to meet the financial responsibility
requirement for multiple projects. The financial
responsibility mechanism must include a list of
projects and the amount of funds assured for each

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project. The mechanism must be no less than the sum of
the funds that would be necessary in accordance with
subsection 12.3.7.2 above, as if separate mechanisms
had been established for each project. As additional
permits are issued which require mitigation, the amount
of the financial responsibility mechanism may be
increased in accordance with subsection 12.3.7.2, above
and the project added to the list. (DEP: 17-312.390(8),
F.A.C., Amended)

12.3.8 Real property conveyances.

(a) All conservation easements shall be granted in
perpetuity without encumbrances, unless such
encumbrances do not adversely affect the
ecological viability of the mitigation. All liens
against the conservation easement site shall
release, be subordinated to, or joined with the
conservation easement. All conservation easements
shall, at a minimum, be consistent with the
requirements and restrictions of Section 704.06,
F.S.; however, the District shall require further
restrictions in the conservation easement if
necessary to ensure the ecological viability of
the site. (DEP: 17-312.370(3), F.A.C., Amended)

(b) All real property conveyances shall be in fee
simple and by statutory warranty deed, special
warranty deed, or other deed, without encumbrances
that adversely affect the integrity of the
preservation. The District shall also accept a
quit claim deed if necessary to aid in clearing
minor title defects or otherwise resolving
boundary questions. (New)
















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I











Mitigation Banks


12.4.116.1-6.1 Intent.


The Environmental Reorganization Act of 1993 directs
the District to adopt rules governing the creation and
use of mitigation banks to offset adverse impacts
caused by activities regulated under Part IV of Chapter
373, F.S. This section, in addition to other rules
promulgated under Part IV of Chapter 373, F. S., is
intended to meet this requirement. The establishment
and ue of. Mitigation Bar ko in or adjacent tc areas of
national, -tate, -r regional "ol..gial hignifioan.:A i3
encouraged, provided the area in whieh the Mitigation
Bank ia prepesed to be located is determined
appropriate for mitigation banking and the bank meets
all applicable permitting criteria.


The District recognizes that, in certain instances,
adverse impacts of activities regulated under Part IV
of Chapter 373, F.S, can be offset through
participation in a Mitigation Bank. This section
provides criteria for this mitigation alternative to
complement existing mitigation criteria and
requirements. This section does not supersede any
other criteria and requirements in rules promulgated
under Part IV of Chapter 373, F.S.

The District intends that Regional Mitigation Banks be
used to minimize mitigation uncertainty associated with
traditional mitigation practices and provide greater
assurance of mitigation success. It is anticipated
that the consolidation of multiple mitigation projects
into larger contiguous areas will provide greater
assurance that the mitigation will yield long-term,
sustainable, regional ecological benefits. Mitigation
Banks should emphasize restoration and enhancement of
degraded ecosystems and the preservation of uplands and
wetlands as intact ecosystems rather than alteration of
landscapes to create wetlands. The establishment and
use of Mitigation Banks in or adjacent to areas of
national, state, or regional ecological significance is
encouraged, provided the area in which the Mitigation
Bank is proposed to be located is determined
appropriate for mitigation banking and the bank meets
all applicable permitting criteria.



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12.416.1.6










Nothing in this section shall affect the mitigation
requirements set forth in any mitigation bank agreement
or any permit issued pursuant to Chapter 84-79, Laws of
Florida, or Part IV of Chapter 373, F.S., prior to the
effective date of this section. If a permitted wishes
to substantially modify a mitigation bank previously
established by agreement or permit, the permitted must
comply with this section. This section does not
prohibit an applicant from proposing project-specific,
pre-construction mitigation, or off-site mitigation,
without establishing a Mitigation Bank pursuant to this
section 12.4.

12.4.216.1.6.2 Definitions.

As used in section 12.416-r46:

(a) through (g) No Change

16.1.6.3 renumbered to 12.4.3

12.4.416.1.4 Criteria for Establishing a Mitigation Bank.

The following criteria shall be met to establish a
Mitigation Bank:

(a) The banker shall provide reasonable assurance that
the proposed Mitigation Bank will:

1 through 4 No Change

5. achieve the proposed mitigation success ee
defined by the District; and

6. No Change

(b) A Mitigation Bank may be implemented in phases if
each phase independently meets the requirements of
subsection 12.416-v.6.4(a) above.

(c) The banker shall:

1. have sufficient legal or equitable interest
in the property to meet the requirements of
section 12.41-6.1..10; and

2. meet the financial responsibility
requirements of section 12.4-161.6.11.


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12.4.516-v.5 Mitigation Bank Permit Applications.

Any person or entity proposing to establish a
Mitigation Bank must apply for a Mitigation Bank
Permit. An application for a Mitigation Bank Permit
shall also constitute include an application for any
required permit required under chapters 40C-4, 40C-40,
40C-41, 40C-42, or 40C-400, F.A.C., to construct and
operate the bank. authorized under Part IV ef Chapter
373, F.S. Mitigation Bank Permit applications shall be
processed according to Chapter 120, F.S. To provide
the District with reasonable assurances that the
proposed Mitigation Bank will meet the criteria in this
section 12.4, each Mitigation Bank Permit application
submitted to the District shall include the information
needed to review any permit required under chapters
40C-4, 40C-40, 40C-41, 40C-42, or 40C-400, F.A.C.
pursuant to Part IV of Chapter 373, F.C., and the
information specified below as appropriate for the
project:

(a) A description of the location of the proposed
Mitigation Bank which shall include:

1. a map at regional scale showing the proposed
Mitigation Bank site project area in relation
to the regional watershed and proposed
mitigation service area;

2. a vicinity map showing the proposed
Mitigation Bank site project area in relation
to adjacent lands and offsite areas of
ecologic or hydrologic significance which
could affect the long term viability or
ecological value of the bank;

3. an aerial photograph identifying boundaries
of the proposed Mitigation Bank project area;

4. a highway map showing points of access to the
proposed Mitigation Bank for site inspection;
and

5. a legal description of the proposed
Mitigation Bank.

(b) A description of the ecological significance of
the proposed Mitigation Bank to the regional
watershed in which it is located.

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I I











(c) A description and assessment of current eite
conditions at the proposed Mitigation Bank site
which shall include:

1. a soils map of the proposed Mitigation Bank
site project area;

2. a topographic map of the proposed Mitigation
Bank site prejeet area and adjacent
hydrologic contributing and receiving areas;

3. a hydrologic features map of the proposed
Mitigation Bank site project area and
adjacent hydrologic contributing and
receiving areas;

4. current hydrologic conditions in the proposed
Mitigation Bank site project area;

5. a vegetation map of the proposed Mitigation
Bank site prejeet area;

6. ecological benefits currently provided to the
regional watershed by the proposed Mitigation
Bank site prejeet area;

7 through 9. No Change

(d) and (e) No Change

(f) Evidence of sufficient lelgaT'or equitable interest
in the property which is to become the Mitigation
Bank to meet the requirements of section
12.4.1016~1.6.

(g) Draft documentation of financial responsibility
meeting the requirements of section 12.4.l116.ri

(h) No Change

12.4.616.-.6.6 Establishment of Mitigation Credits.

(a) through (h) No Change

(i) The District shall maintain a ledger of the
Mitigation Credits available in each Mitigation
Bank. Mitigation Credits shall be withdrawn as a


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non-substantial modification of the Mitigation
Bank Permit.

1. To withdraw Mitigation Credits for activities
undergoing permit review at the District, the
permit applicant must submit to the District
documentation from the banker demonstrating
that Mitigation Credits have been reserved,
sold or transferred to the permit applicant,
and requesting that the Mitigation Credits be
withdrawn from the Mitigation Bank. If the
District determines, pursuant to section
12.3, that use of the Mitigation Credits
proposed by the applicant is appropriate to
offset the adverse impacts, and a sufficient
number of Mitigation Credits are available,
the District shall withdraw the Mitigation
Credits, and notify the banker by letter of
the withdrawal of the Mitigation Credits and
the remaining balance of Mitigation Credits.

2. No Change

(j) No Change

12.4.716.1.6.7 Contribution of Lands.

A permit applicant may contribute land to a Mitigation
Bank if:

(a) the adverse impacts to be offset by the land
donation are within the mitigation service area of
the Mitigation Bank, except as provided in section
12.416.1.6.9(d);

(b) through (d) No Change

(e) the land will be encumbered pursuant to the
requirements of section 12.416--r6.10; and

(f) No Change

12.4.816.I.6.8 Contribution of Funds.

Funds may be contributed to a Mitigation Bank by
purchasing Mitigation Credits from the banker. The
cost per Mitigation Credit from a District Mitigation
Bank shall be set by the District, but shall net zxoczd
the higher ef:

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~ ~~~~ __~~~_~~~_









v--a the estimated ooot, at the time of final permit
1prooccing, of creating onc acre of wetland on
project site, including the fair market value o:
lando to be uscd for mitigation, and cenotruoti:


the


operation, monitoring, and management cooto;- r

-(b-) the Distrit' estimatd oeeoto pzr credit for
aquioition, dcoign, conotruotion, operation,
monitoring and management of the Mitigation Bank.

12.4.9164.u6.9 Mitigation Service Area.

(a) through (c) No Change

(d) In addition to projects located wholly within the
Mitigation Service Area of a Mitigation Bank, the
following projects are eligible to use a
Mitigation Bank if the requirements in section
12.416.1-6.3 are met:

1. Projects with adverse impacts partially
located within the Mitigation Service Area.

2. Linear projects, such as roadways,
transmission lines, distribution lines,
pipelines, or railways.

3. Projects with total adverse impacts of less
than one-half acre in size.

(e) and (f) No Change

12.4.1016.1.6.10 Land Use Restrictions on Mitigation Banks

(a) Before Mitigation Credits may be used from a
Mitigation Bank or any phase of a Mitigation Bank,
the banker shall either (1) cause a fee interest
to be conveyed to the District, or (2) cause a
conservation easement to be conveyed to both the
Department of Environmental Protection and the
District. The grantor may convey a conservation
easement to additional grantees upen Diotriot
approval. Mitigation Banks on Federally owned
land shall be encumbered in perpetuity by
conservation easements or other mechanisms
ensuring preservation in accordance with the
Mitigation Bank permit.



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(b) If the Mitigation Bank is located within an area
identified in the District's five year land
acquisition plan, and the District determines that
the ecological environmental value of the bank can
be increased by incorporating the bank into the
District's land management programs, the District
shall award additional mitigation credits if the
fee interest in the bank is conveyed to the
District as opposed to a conservation easement.

(c) All conservation easements shall be granted in
perpetuity without encumbrances, unless such
encumbrances do not adversely affect the
ecological viability of the Mitigation Bank. All
conservation easements shall be of a form and
content sufficient to ensure preservation of the
Mitigation Bank according to the permit aeeeptable
te the Distriet, and shall, at a minimum, meet the
requirements and restrictions of Section 704.06,
F.S., except as provided in the Mitigation Bank
permit, and meet the requirements of subsection
12.416-.1..10(j). Hwever-, the Di.triet ,hal
r.uir. further restrictions in the .on.crvati. n
easement if necessoary to ensure the ecological
viability of the M1itigation Barnk.

(d) All real property conveyances shall be in fee
simple and by statutory warranty deed, special
warranty deed, or other deed, without encumbrances
that adversely affect the District's title in the
Mitigation Bank property or preservation of the
Mitigation Bank according to the permit integrity
of the bank and arc aeeeptable to the Distriet.
The District shall may-alse accept a quit claim
deed if necessary ine order to aid in clearing
minor title defects or otherwise resolve a
boundary question in the Mitigation Bank.

(e) The grantor of the property or conservation
easement shall provide the following unless the
District determines during the permit review
process that such items are not necessary to
ensure preservation the integrity of the
Mitigation Bank according to the permit:

1. A survey of the property or the area within
the conservation easement. The survey must
be certified by a land surveyor or
professional engineer registered in the State

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. 4 "










of Florida to meet the requirements of the
District, and the minimum technical standards
set forth by the Florida Board of
Professional Land Surveyors in Chapter 21 HH-
6, Florida Administrative Code, pursuant to
Section 472.027, F.S.

2. A certified appraisal of the market value of
the property or interest to be conveyed to
determine the appropriate amount of title
insurance.

3. Assurance of the marketability of the
interest in real property being acquired in
the form of a marketable title commitment and
owner's title policy (ALTA Form B) in an
amount at least equal to the fair market
value, as established in section
12.416-r46.10(e)2., of the real property.
The coverage, form and exceptions of the
title insurance policy shall ensure be
subject to District approval in order to
aeeure that the Mitigation Bank will be
preserved according to the Mitigation Bank
permit District'i interest- are fully
preteeted.

4. If a fee simple interest is being conveyed, a
Phase I environmental audit identifying any
environmental problems which may affect the
liability of the District and any additional
audits as determinnednecessary--to ensure that
the District is not subject to liability
under Federal or State laws relating to the
treatment or disposal of hazardous substances
or ownership of land upon which hazardous
substances are located..

(f) through (h) No Change

(i) The grantor shall remove all abandoned personal
property and solid waste from the property that
reduces the proposed ecological value of the
property, will adversely affect the construction,
implementation or management of the bank, or poses
a substantial risk of liability to the District,
tc atifacetie.n ef the Diotrict as a condition of
receipt of the conveyance.


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. 1


(j) through (k) No Change

12.4.11l6I..6.11 Financial Responsibility.

(a) To provide reasonable assurances that the proposed
Mitigation Bank will meet the requirements of this
section 12.4 and the associated permit conditions,
non-governmental bankers shall provide proof of
financial responsibility for: (1) the construction
and implementation phase of the bank, and (2) the
long term management of the bank, as required in
this section. Governmental entities shall provide
proof of financial responsibility pursuant to
section 12.416t4&6.11(h). The amount of financial
responsibility provided in the mechanisms required
in this section shall be based on the cost
estimates determined pursuant to section
12.4146.i6.11(f).

(b) Financial Responsibility Documentation. .The
applicant shall provide draft documentation of the
required financial responsibility mechanisms
described below with the permit application, and
shall submit to the District the executed or
finalized documentation within the time frames
specified in the permit. The provisions of this
section shall also apply for any modifications to
the Mitigation Bank Permit.

(c) General Terms for Financial Responsibility
Mechanisms. In addition to the specific
.. provisions regarding financial responsibility
mechanisms for construction and implementation in
subsection 12.416i..6.ll(d) and long term
management in subsection 12.416-.16.11(e), the
following terms shall be complied with:

1. The financial mechanisms shall name the
District as sole beneficiary or shall be
payable solely to the District. If tPhe
financial responsibility mechanism is of a
type which is retained by the beneficiary
according to industry standards, it shall be
retained by the District as appropriate.

2. The financial responsibility mechanisms shall
be established with a state or national bank,
savings and loan association, or other
financial institution, licensed in this state

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with an amount of Federal Deposit Insurance
Corporation insurance at least equal to the
amount of required financial responsibility.

3. No peraon hall withdraw or transfer any
portion of the menieo provided for financial
reopenoibility without firot obtaining prior
written approval from the Distriot.

34. The financial responsibility mechanisms shall
not expire or terminate prior to completion
of the applicable permit conditions.

45. The financial responsibility mechanisms shall
not be terminated or cancelled by the banker
without prior written consent of the
District. Within 90 days of receipt of a
notice of cancellation of a financial
responsibility mechanism or other actual or
constructive notice of cancellation, the
banker shall provide an alternate financial
responsibility mechanism which meets the
requirements of this section, and- obtain
prior written approval of the mschaniam from
the -Distriet.

56. If the Mitigation Bank has failed to comply
with the terms and conditions of the permit,
the District upon reasonable notice may draw
upon the financial mechanism.

(d) FinancialaResponsibility for Construction and
Implementation.

1. and 2. No Change

3. The amount of financial responsibility
established shall equal the cost of
construction and implementation of each phase
of the Mitigation Bank which is being
implemented, pursuant to section
12.416.1.6.11(f). When a current phase of
the bank has been deemed by -taff te be
completely constructed, implemented and
trending toward success according to the
terms of in c-mpliance with the permit, the
respective amount of financial responsibility
for that phase shall be released.


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4. No Change


(e) Financial Responsibility for the Long Term
Management.

1. A banker shall establish a trust fund
agreement to provide financial responsibility
for the long term management of the
Mitigation Bank, or phase thereof. Trust
fund agreements shall be submitted in a
format approved by the Distriot and which
meets standard industry practices.

2. The amount of financial responsibility shall
equal the cost of long term management,
pursuant to section 12.4164.16.11(f), for all
previously constructed phases and the current
phase for which credits have been approved
for withdrawal.

3. No Change

(f) Cost estimates.

1 through 3. No Change

4. The banker shall submit the estimates,
together with verifiable documentation, to
the District for approval along with the
proof of financial responsibility.

5. No Change .......

(g) Cost adjustments.

1. The banker shall, every two years, adjust the
amount of financial responsibility provided
for construction, implementation, and long
term management. Every two years the banker
shall submit to the District a cost
adjustment statement accompanied by
supporting documentation. Construction and
implementation and long term management costs
shall be listed separately. The District
shall review the cost adjustment statement
and supporting documentation to determine if
it reflects all construction, implementation,
and long term management costs. If the cost
adjustment statement and supporting

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documentation reflects all construction,
implementation, and long term management
costs, the District shall approve the cost
adjustment statement.

2. and 3. No Change

4. Revised cost estimates shall be used as the
basis for modifying the financial mechanism.
If the value of the financial mechanism is
less than the total amount of the current
construction and implementation and long term
management cost estimates, the banker shall,
upon District approval of the cost adjustment
statement, increase the value of the
financial mechanism to reflect the new
estimate within 60 days. If the value of the
funding mechanism is greater than the total
amount of the current cost estimate, the
banker may reduce the value of the funding
mechanism to reflect the new estimate upon
receiving District approval of the cost
adjustment statement.

5. The District shall may require adjustment of
the amount of financial responsibility
provided for construction, implementation or
long term management at times other than the
cost adjustment period when the costs
associated with compliance with the permit
conditions exceed the current amount of
financial responsibility and such financiadL.
assurances are deemed necessary to ensure
compliance with the permit conditions.

(h) Financial Responsibility for Governmental, Non-
Department,

1. Governmental entities other than the
Department shall demonstrate that they can
meet the construction and implementation
requirements of the Mitigation Bank Permit
financial rrespensibility for construotien and
implementation by any of the mechanisms in
Section 12.416-.r6.11(d) above, or by other
financial mechanisms aeeeptable te the
istri4et which arc -ufficient te meet the
requirements of paragraph 12.4.11(c)3.,


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12.4.11(c)4., 12.4.11(d)3. and this
subsection 12.4.11(g).

2. Governmental entities other than the
Department shall establish a trust fund for
the long term management of the Mitigation
Bank in accordance with Section
12.416 .1 .11(e) above. The trust fund
agreement for long term management may be
funded as Mitigation Credits are withdrawn,
provided that the trust fund agreement is
fully funded when all Mitigation Credits are
withdrawn. Governmental entities shall comply
with the cost adjustment provisions in
Section 12.416.1.6.11(g).

12.4.1216.1.6.12 Mitigation Bank Permit and Mitigation Bank
Conceptual Approval.

If the Mitigation Bank proposal meets the criteria in
this section, the District shall issue either'a
Mitigation Bank Permit or a Mitigation Bank Conceptual
Approval to the banker.

(a) The Mitigation Bank Permit authorizes the
implementation and operation of the Mitigation
Bank and sets forth the rights and
responsibilities of the banker for the
implementation, management, maintenance and
operation of the Mitigation Bank. The Mitigation
Bank Permit shall include the following:

1. through 4. No Change

5. Requirements for the execution and recording
of the conservation easement or conveyance of
the fee interest as provided in section
12.416.1i6.10.

6. through 8. No Change

(b) and (c) No Change

12.4.1316.1.6.13 Surrender, Transfer, or Modification of
Mitigation Bank Permits.

(a) No Change



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(b) If a property interest has been conveyed as
provided in Section 12.416.1.6.10 for a Mitigation
Bank permit which is surrendered as provided
above, the District shall convey the property
interest back to the grantor of that interest.

(c) If a surface water management system has been
constructed or altered within the Mitigation Bank,
the banker shall obtain any permits required under
Chapter 40C-4, 40C-40, 40C-41, 40C-42, or 40C-400,
F.A.C. pursuant to -Part IV of Chapter 373, F.S.,
to operate or abandon the surface water management
system.

(d) To transfer a Mitigation Bank Permit, the banker
shall meet the requirements of section 40C-1.612,
F.A.C., and the entity to which the permit will be
transferred to must provide reasonable assurances
that it can meet the requirements of sections
12.416.1i..10 and 12.416.1.6.11. If the transfer
to the District is proposed, the current banker
shall provide an updated cost estimate and adjust
the financial responsibility mechanism, as
appropriate, prior to transfer of the permit.

(e) No Change

12.4.1416.1.6.14 Department of Environmental Protection

The Department of Environmental Protection
("Department") may construct, operate, manage, and
maintain, a Mitigation Bank pursuant to this section
after obtaining a Mitigation Bank Permit from the
District.

(a) No Change

(b) Land Use Restrictions on Department

1. No Change

2. Notwithstanding any other provision of this
section 12.4, the Department may sell,
transfer, or use Mitigation Credits prior to
acquiring the proposed mitigation site as set
forth in its Mitigation Bank Permit.

(c) No Change


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(d) Procedures for Establishment of Mitigation Banks
established by the Department shall be permitted
pursuant to the procedures in the that o-rtain
First A-mndment To August 28, !992, Operating
Agreement Concerning Management and tr"age. -of
Surface Watero Regulation, and Wetland Reseurec
Regulation Under Part IV, Chapter 373, F.S.,
Between The St. Johns River Water Management
District and Department of Environmental
Protection Regulation.

12.516.2 Formal Wetland Determination of the Landward Extent of
Wetlands and other Surface Waters

Pursuant to subsection 373.421(2), F.S., the Governing
Board has established a procedure by which a real
property owner, an entity that has the power of eminent
domain, or any person who has a legal or equitable
interest in real property may petition the District for
a formal wetland determination for that property. A
formal wetland determination means the District will
determine verify the locations on the property of the
landward extent boundaries of the wetlands and other
surface waters defined by chapter 17-340, F.A.C., as
ratified in section 373.4211, F.S. (See Appendix G
which contains this methodology.)

12.5.116.2.1 Procedure

To petition for a formal determination, the petitioner
must submit to the District the following:

(a) five eeven copies of completed form 40C-1.181(12),
including copies of all items required by the
form, which can be found in Appendix B of the
Applicant's Handbook: Management and Storage of
Surface Waters, and

(b) the appropriate non-refundable formal wetland
determination fee pursuant to section 40C-1.603,
F.A.C.

Within 30 days of receipt of a petition for a formal
wetland determination, the District shall notify the
petitioner of any missing or insufficient information
in the petition documentation submitted which may be
necessary in order to complete review of the petition.



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The District shall complete the determination and shall
issue a notice of intended agency action within 60 days
after the petition is deemed complete. The District
shall publish the notice of intended agency action on
the petition in a newspaper of general circulation in
the county or counties where the property is located.

Sections 120.57 and 120.59, F.S., apply to formal
wetland determinations made pursuant to this section.
Any person whose substantial interests will be affected
by the District's proposed action on the petition may
request an administrative hearing on the proposed
action pursuant to section 40C-1.511, F.A.C. If no
request for an administrative hearing is filed, the
Executive Director will then take final action on the
petition for the formal wetland determination.

The Executive Director will only issue a formal wetland
determination if the petitioner has satisfied all the
requirements of section 12.5. A person requesting a
formal wetland determination may withdraw the petition
without prejudice at any point before final agency
action.


12.5.216.2.2 Types of Formal Determinations Surveys

A petitioner can request a formal determination
consisting of a certified survey, an approximate
delineation, or combinations thereof, as described
below.

(a) The survey of the extent of wetlands and other
surface waters shall be certified pursuant to
chapter 472, F.S., to meet the minimum technical
standards in chapter 61G17-6, F.A.C. A petitioner
seeking a certified surveyed delineation shall
have a land surveyor registered in the State of
Florida survey the verified boundaries of wetlands
and other surface waters, and shall have the
surveyor or surveyor's representative accompany
the District representative on the delineation
verification described in subsection 12.5.3. The
certified survey shall also contain a legal
description of, and acreage contained within, the
boundaries of the property for which the
determination is sought. The boundaries of
wetlands and other surface waters shall be
witnessed to the property boundaries, and shall be

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capable of being mathematically reproduced from
the survey. The petitioner shall submit five
copies of the survey, along with five copies of
the survey depicted on aerial photographs, to the
District to complete the petition.

(b) An approximate delineation shall consist of a
boundary produced by using global positioning
system (GPS), a boundary drawn on rectified aerial
photographs, a geo-reference image produced from a
boundary drawn on a non-rectified aerial
photograph, or any combination thereof.

1. A range of variability shall be determined
for all approximate delineations by comparing
a number of specific boundary points
indicated on the aerial photograph, or
located by GPS, to field located boundary
points. The District shall determine the
number and location of comparison sites using
the total linear feet of delineated boundary
such that the total number of sites reflects
at least one site for every 1000 feet of
delineated boundary. No fewer than three
boundary point comparisons shall be performed
for each approximate delineation. For GPS
approximate delineations, the petitioner
shall conduct a specific purpose survey, as
defined in chapter 61G17-6, F.A.C., to show
the relationship of field located boundary
points to the GPS located boundary points.
The range of variability shall be the
greatest deviation measured at the comparison
boundary points. An approximate delineation
method cannot be used if the range of
variability is equal to or greater than plus
or minus 25 feet.

2. An aerial photograph shall serve as the basis
for an approximate delineation only when the
aerial photograph accurately depicts the
boundaries of the wetlands and other surface
waters by a clear expression of vegetative or
physical signatures as verified by
groundtruthing. If a submitted aerial
photograph does not provide an accurate
depiction, then the landward extent of
wetlands and other surface waters shall be
delineated by flagging the boundary, and the

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formal determination shall be produced using
GPS or a certified survey.

3. Following any verification and adjustment as
required in subsection 12.5.3, the petitioner
shall submit five copies of the following to
complete the petition: a hand drawn
delineation on a rectified aerial photograph;
the geo-referenced image of the delineation
and aerial photograph with the delineation;
or the GPS depiction of the delineation on an
aerial photograph.

4. When a subsequent permit application includes
regulated activities within 200 feet of the
landward extent of the range of variability
of an approximate delineation at a given
location, the applicant shall establish in
the field the exact boundary of the wetlands
and other surface waters at that location.


The petitizner or hio agent hall clearly
delineate the landward boundary of wetlands on the
property in accordance with ooCticn 16.1. A
District representative will verify th location
of the boundary lin-. The petitioner mu-t then
have the boundary line surveyed and must return
four certified eepizo of that survey to tho
District. The district encourages potitioncro to
arrange for a surveyor, or his representative, to
accompany the District .representative on the
wetland line verification. In order for the
petition to the doomed complete, tho diatriot muot
rzczivc four certified copico of the curvcy.w


12.5.3 Locating the Surface Waters and Wetlands Boundary Line

If the property is 10 acres or greater in size, the
petitioner or his agent shall initially delineate the
boundaries of wetlands and other surface waters by
either flagging the boundary for a certified survey or
GPS, or estimating the extent of wetlands and other
surface waters on aerial photographs, prior to the
District's inspection of the site. A District
representative will then verify the location of the

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- boundary line and indicate to the petitioner any
necessary adjustments in the initial delineation needed
to reflect an accurate boundary. For properties less
than 10 acres in size, the petitioner is not required
to approximate the delineation.

12.5.416.2.3 Duration

The formal wetland determination shall be binding for
five years provided physical conditions on the property
do not change so as to alter the boundaries of wetlands
boundariee and other surface waters during that period.
Changes in surface water or wetland boundaries
resulting from work authorized by a Management and
Storage f Surfacea Water. permit pursuant to Part IV,
Chapter 373, F.S., will not be considered as altering
the wetland boundary for the purposes of this
subsection. The formal w-tland determination shall bk
i.ued ft-r five y.aro. The Governing Board may revoke
a formal wetland determination upon a finding that the
petitioner has submitted inaccurate information to the
District.

12.5.516-2.4 Formal Determinations for Properties with an
Existing Formal Determination Renewale

Within sixty days prior to the expiration of a formal
determination, the property owner, an entity that has
the power of eminent domain, or any other person who
has a legal or equitable interest in the property may
petition for a new formal determination for the same
parcel of property and such determination.,shall. be -
issued, approving the same extent of surface waters and
wetlands in the previous formal determination, as long
as physical conditions on the property have not
changed, other than changes which have been authorized
by a permit pursuant to this part, so as to alter the
boundaries of surface waters or wetlands and the
methodology for determining the extent of surface
waters and wetlands authorized by s. 373.421(1) has not
been amended since the previous formal determination.
The application fee for such a subsequent petition
shall be less than the application fee for the original
determination. Any person eligible to petition fer a
wetland determination may petition to renew a fr-mal
wetland determination prier to the expiration date. A
petition to renew an expired formal wetland
determination hall be proacased in the same manner ae
a petition for an original formal wetland

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A. *


determination. Person. petitioning the DiPtri" t to
renew an expired formal wetlan.d determinatiCn muot
submit the information required by subseetions 16.3.1.
and 16.3.2 and the renewal fee required by section 40CG
1.693, F.A.C.


12.5.6-6-2-5 Nonbinding Determinations

The District may issue informal nonbinding
pre-application wetland determinations or otherwise
initiate nonbinding wetland determinations on its own
initiative as provided by law.







































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April 12,1994 rg-handbook.14c 6




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