Title: Draft 8-29-94 - Page B3-1 - Chapter Three - Environmental
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Title: Draft 8-29-94 - Page B3-1 - Chapter Three - Environmental
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Draft 8-29-94 - Page B3-1 - Chapter Three - Environmental (JDV Box 95)
General Note: Box 20, Folder 2 ( Water Management Districts - ERP'S - 1994 ), Item 14
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DRAFT 8-29-94
PAGE B3-1

(Substantial rewording of Section 3.1, see Basis of Review dated
January 1994 for current language)

CHAPTER THREE ENVIRONMENTAL

3.1.0 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. Maintenance of water quality standards
in applicable wetlands and other surface waters is
critical to their ability to provide many of these
functions.

It is the intent of the Governing Board that the criteria
in subsections 3.2 through 3.3.8 this chapter be
implemented in a manner which maintains the ecological
value of natural systems and achieves a programmatic goal
of no net loss of wetlands and other surface water
functions. This goal shall not include projects that are
exempt by statute or rule or which are authorized by a
noticed general permit. 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
beneficial functions of these communities. The term
"systems" includes areas of dredging or filling, as those
terms are defined in s. 373.403(13) and (14), F.S.

3.1.1 Environmental Conditions for Issuance

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









DRAFT 8-29-94
PAGE B3-2

(a) a regulated activity will not adversely impact the
value of functions provided to fish wildlife and
listed species, including aquatic and wetland
dependent species, by wetlands and other surface
waters and other water related resources of the
District. (paragraph 40D-4.301(1) (d), F.A.C.) (see
subsection 3.2.2);

(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 (see subsection 3.2.3);

(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, 17-520, 27-522 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 40D-
4.301(1) (e) 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 3.2.5 (paragraph 40D-4.302(1) (c),
F.A.C.;

(e) the construction of vertical seawalls in estuaries
and lagoons will comply with the additional
criteria in subsection 3.2.6; (paragraph 40D-
4.302(1) (d), F.A.C.)

(f) a regulated activity will not cause adverse
secondary impacts to the water resources (paragraph
40D-4.301(1) (f), F.A.C.) (see subsection 3.2.7);

(g) a regulated activity will not cause adverse
una.eeptable cumulative impacts upon wetlands and
other surface waters, as delineated pursuant to the
methodology authorized by subsection 373.421(1),


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DRAFT 8-29-94
PAGE B3-3


F.S. (paragraph 40D-4.302(1) (b) ,
subsection 3.2.8);


F.A.C.) (see


3.2


Environmental Criteria

Compliance with the conditions for issuance in subsection
3.1.1 will be determined through compliance with the
criteria explained in subsections 3.2 -3.3.8.5 of this
Handbook.

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.-These
advoroc impacts must be-eliminated 9r reduced by
modifying the project, if -practicable. Design
modifications to reduce or eliminate adverse impacts must
be explored as described in 3.2.1.1. Any adverse impacts
remaining after practicable design modifications have
been implemented- ny -emain --- -ad se- ipaet. may be
offset by mitigation as described in subsections 3.3-
3.3.8. An applicant may propose mitigation, or the
District may suggest mitigation, to offset the adverse
impacts which would cause the system to fail to meet the
conditions for issuance. 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.

Except as provided in 3.2.1.2,Prior to approval of any
mitiga tic p:ropoalo, Thhe District, prior to approval of
any mitigation proposals, will explore design
modifications for the proposed site, as well as alignment
alternatives for a linear system, that would eliminate or
reduce the adverse impacts to wetland functions and other
surface water functions, and will suggest any such
modifications to the applicant either in addition to or
in lieu of mitigation. The applicant shall consider the
District's proposed modifications to the system to reduce
or eliminate adverse impacts to wetland or other surface
water functions, regardless of whether a mitigation
proposal has been submitted. The applicant shall respond
to the District in writing as to whether the identified
modifications to the proposed system are practicable and
whether the applicant will make the identified


3.2.1


3.2.1.1










DRAFT 8-29-94
PAGE B3-4

modifications. 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.

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. 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
3.3 through 3.3.8.

The term "modification" shall not be construed as
including the alternative of not implementing the system
in some form, nor shall it be construed as requiring a
project that is significantly different in type or
function. A proposed modification which is not
economically viable or which adversely affects public
safety through the endangerment of lives or property is
not considered "practicable." 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."

3.2.1.2 In instances where the District has determined, based on
the factors in 3.2.2.3, that the ecological value of the
functions provided by the area of wetland or other
surface water to be adversely affected is low, the
District will not require the applicant to implement
practicable design modifications to reduce or eliminate
impacts, if the District has determined that the proposed
mitigation will provide greater long-term ecological
value than the area of wetland or other surface water to
be adversely affected.

3.2.1.3 Should such mutual consideration of modification and
mitigation not result in a permittable system, the
District must deny the application. Nothing herein shall
imply that the District may not deny an application for
a permit as submitted or modified, if it fails to meet


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DRAFT 8-29-94
PAGE B3-5

the conditions for issuance, or that mitigation must be
accepted by the District.

3.2.2 Fish, Wildlife, Listed Species and their Habitats

Pursuant to paragraph 3.1.1(a), an applicant must provide
reasonable assurance that a regulated activity will not
impact the values of wetlands, other surface waters and
other water related resources of the District, 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.

In evaluating whether an applicant has provided such
reasonable assurance under subsection 3.2.2, B.O.R., the
magnitude of the effect of the regulated activity shall
be considered, and de minimis effects shall not be
considered adverse.

As part of the assessment of the impacts of regulated
activities upon fish and wildlife and their habitat, the
District will provide a copy of all notices of
application for standard general, individual, including
end conceptual 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.

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 3.2.2 3.2.2.3 and subsection 3.2.7.1 will
not be met. Survey methodologies employed to inventory
the site must provide reasonable assurance regarding the
presence or absence of the subject listed species.









DRAFT 8-29-94
PAGE B3-6

3.2.2.1 Compliance with subsections 3.2.2 3.2.3.7 and 3.2.5 -
3.3.8 will not be required for regulated activities in
isolated wetlands less than one half acre in size,
unless:

(a) the wetland is used by threatened or endangered
species.

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

(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.

(d) the District establishes that the wetland to be
impacted is, or several such wetlands to be
impacted are cumulatively, of more than minimal
value to fish and wildlife.

3.2.2.2 Alterations to-ft 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 3.2.2 3.2.2.3, 3.2.3
3.2.3.7 and 3.2.5 3.3.8, 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 3.2.2.4, and
3.2.4 3.2.4.5. and 2.2.2.4. 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. This provision does not apply to
ditches constructed to divert natural stream flow.

3.2.2.3 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:










DRAFT 8-29-94
PAGE B3-7


(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 by activities
in violation of a District or Department rule,
order or permit adopted or issued pursuant to
Chapter 373, or Part VIII, Chaoter 403 F.S. (1984
as amended), io"uod curauant -c thre .Chartero. or
a District or Departmgent rule, or ado2 td ordore -
peLfit will be evaluated as if the activity had not
occurred.

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

(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.

(d) locationlando ap oetti:ng this factor addresses
the location of the wetland or other surface water
in relation to its surroundings urban, agricultural
or other typsc of development or significant nativE
habitat.

(e) fish and wildlife utilization this factor
addresses use of the wetland or other surface water
for resting, feeding, breeding, nesting or denning
by fish and wildlife, particularly those which are
listed species.

3.2.2.4 Water quantity impacts to wetlands and other surface
waters

Pursuant to paragraph 3.1.1(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, such as constructed
basins, structures, stormwater ponds, canals, and
ditches, could have the effect of reducing the
depth, duration or frequency of inundation or
saturation in a wetland or other surface water, the










DRAFT 8-29-94
PAGE B3-8

applicant must perform an analysis of the drawdown
in water levels or diversion of water flows
resulting from such 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.

(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.

(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.

3.2.3 Public Interest Test

In determining whether a regulated activity located in,
on, or over surface waters or wetlands, is not contrary
to the public interest or if such an activity
significantly degrades or is within an Outstanding
Florida Water, that the regulated activity 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;


_1










DRAFT 8-29-94
PAGE B3-9

(b) Whether the regulated activity will adversely
affect the conservation of fish and wildlife,
including endangered or threatened species, or
their habitats;

(c) Whether the regulated activity will adversely
affect navigation or the flow of water or cause
harmful erosion or shoaling;

(d) Whether the regulated activity will adversely
affect the fishing or recreational values or marine
productivity in the vicinity of the activity;

(e) Whether the regulated activity will be of a
temporary or permanent nature;

(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.; and

(g) The current condition and relative value of
functions being performed by areas affected by the
proposed regulated activity.

3.2.3.1 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 3.2.3(a), the District will 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 controli- proper disposal of solid,
hazardous, domestic or industrial wastej- aids to
navigation_-r hurricane preparedness or cleanup.L
environmental remediation, enhancement or
restorations and similar environmentally related
issues. For example, the installation of
navigational aids may improve public safety and may
reduce impacts to public resources.

(b) impacts to areas classified by the Department as
approved, conditionally approved, restricted or









DRAFT 8-29-94
PAGE B3-10

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.

(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 Chapter Four -':otion4:10.
10.6 of the Handoo.k.

(d) environmental impacts to the property of others.
For example, construction of a ditch that results
in drawdown impacts to a wetland on an adjacent
propert- th diocharg of nutrient laden water
which -roult- in the proliferation e- nuianco
:egotat.ion n an adjacent property would be an
environmental impact to the property of others.
The District will not consider impacts to property
values.

3.2.3.2 Fish and wildlife and their habitats

The District's public interest review of that portion of
a proposed system in, on, or over wetlands and other
surface waters for impacts to "the conservation of fish
and wildlife, including endangered or threatened species,
or their habitate- is encompassed within the required
review of the entire system under subsection 3.2.2. An
applicant must always provide the reasonable assurance
required under subsection 3.2.2; consequently, the public
interest criterion in subsection 3.2.3(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.

3.2.3.3 Navigation, water flow, erosion and shoaling

In reviewing and balancing the criterion on navigation,
erosion and shoaling in paragraph 3.2.3(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


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DRAFT 8-29-94
PAGE B3-11

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 nighttime lighting.
The addition of navigational aids may be beneficial
to navigation. If the applicant has been issuesThe
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, submittal
of this permit with the application may assist-will
asict the applicant in addressing this criterion.

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

(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 3.2.2.4
shall be an important consideration in addressing
this criterion.

3.2.3.4 Fisheries, recreation, marine productivity

In reviewing and balancing the criterion regarding
fishing or recreational values and marine productivity in
paragraph 3.2.3(d), the District will evaluate whether










DRAFT 8-29-94
PAGE B3-12

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.

(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
waterway, which could impact the current use of the
waterway for waterskiing and boating.

3.2.3.5 Temporary or Permanent Nature

When evaluating the other criteria in subsection 3.2.3,
the District will consider the frequency and duration of
the impacts caused by the proposed activity Temporary
impacts will be considered less harmful than permanent
impacts of the same nature and extent.

3.2.3.6 Historical and Archaeological Resources

In reviewing and balancing the criterion regarding
historical and archaeological resources in paragraph
3.2.3(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 list the significance of any known
historical or archaeological resources that may be
affected by the 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. The applicant will be required to submit an
archaeological survey performed by a qualified


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DRAFT 8-29-94
PAGE B3-13

professional such as one listed by the Florida Archeology
Council or the Division of Historical Resources and to
develop and implement a plan approved by the Distrit as
necessary to demarcate and to protect the significant
historical and archaeological resources ifs- such
resources are reasonably expected to be impacted by the
regulated activity.

3.2.3.7 Current condition and relative value of functions

When evaluating other criteria in subsection 3.2.3, 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. Wetlands and other surface waters which have
had their hydrology, water quality or vegetative
composition permanently impacted due to past legal
alterations or 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. Concidr.ation will
be given to the .ignificanc of w.tlando and other-
aurfaco wator- which will be impacted to local and
regional landscape patterns, including relative abundance
of similar habitat and biota. 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. 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. When evaluating
impacts to mitigation sites which have not reached
success pursuant to 3.3.6, 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.


3.2.4 Water quality









DRAFT 8-29-94
PAGE B3-14

Pursuant to paragraph 3.1.1(c), an applicant must provide
reasonable assurance that the regulated activity will not
violate water quality standards in areas where water
quality standards apply.

Reasonable assurance 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
the water quality requirements found in Chapter 5.

3.2.4.1 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.

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

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

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


(e) controlling the discharge from spoil disposal
sites.

(f) preventing any other discharge or release of
pollutants during construction or alteration that
will cause water quality standards to be violated.

3.2.4.2 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










DRAFT 8-29-94
PAGE B3-15

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 the depth should not
be so shallow that the bottom sediments are
frequently resuspended by boat activity. Water
bodies must be configured to prevent the creation
of debris traps or stagnant areas which couldwould
be e-xpcted- to- result in violations of water
quality standards.

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

(c) prevention of any discharge or release of
pollutants from the system that will cause water
quality standards to be violated.

3.2.4.3 Additional water quality considerations for docking
facilities

Docking facilities, due to their nature, provide
potential sources of pollutants to wetlands and other
surface waters. Potential .ouroco of pollutants include
anti f-ouling paints uod on boat hulls, anti fouling
treatmontn used in pilings, dizoharges of fuelo from boat
motors and fueling facilition, and discharges of human
and solid wastzo f-rom bo.at. 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:

(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 (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.

(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










DRAFT 8-29-94
PAGE B3-16

facility. This information is used to 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.

(c) The level and type of hydrographic information or
studies that will be required for the propo.od
docking facility will be determined based upon an
analysis on site case specific characteristics
b e-ie. 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. Coenrally, -T-he degree and
complexity of the hydrographic study will be
dependent upon the types of considerations listed
in 3.2.4.3.(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 -b required include the
following: site-specific measurements-efe- waterway
geometry; tidal amplitude; the periodicity of
forces that drive water movement at the site; and
water tracer studies that document specific
circulation patterns.

(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.

(e) In all cases, the hydrographic studies shall be
designed to document the hydrographic


I










DRAFT 8-29-94
PAGE B3-17

characteristics of the project site and surrounding
waters. All hydrographic studies must be approved
by the Di:trict based on the factors described in
(a)-(d) above., thcrforQ .Aaen applicant should
consult with the District prior to conducting such
a study.

(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.

(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.

(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.

(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.

3.2.4.4 Mixing Zones

Temporary mixing zones for water quality during
construction or alteration may be requested by the
applicant. The District shall revieweensider such
request pursuant to sections 17-4.242 and 17-4.244(5),
F.A.C., in accordance with the Operating Agreement
Concerning Regulation Under Part IV, Chapter 373, F.S.
adopted by reference in 40D-4.091(1)(b), F.A.C.

3.2.4.5 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









DRAFT 8-29-94
PAGE B3-18

demonstrate compliance with the water quality standards
by meeting the provisions in 3.2.4.1, 3.2.4.2, and
3.2.4.3, 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
3.3.1.4.

3.2.5 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. In accordance with section
3.1.1(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;

(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

(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,


I










DRAFT 8-29-94
PAGE B3-19

and for private, single family boat docks that meet
the following criteria for installation in such
waters:

1. there shall be no more than two boats moored
at the dock;

2. no overboard discharges of trash, human or
animal waste, or fuel shall occur at the dock;

3. any non-water dependent structures, such as
gazebos or fish cleaning stations, shall be
located on the uplands;

4. prior to the mooring of any boat at the dock,
there shall be existing structures with toilet
facilities located on the uplands;

5. any proposed shelter shall not have enclosed
sides;

6. the mooring area shall be located in waters
sufficiently deep to prevent bottom scour by
boat propellers; and

7. any structures located over grassbeds shall be
designed so as to allow for the maximum light
penetration practicable.

3.2.6 Vertical seawalls

(a) The construction of vertical seawalls in estuaries
or lagoons is prohibited unless one of the
following conditions exists:

1. the proposed construction is located within a
port as defined in Section 315.02, F.S., or
Section 403.021, 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. For the purpose of this
paragraph 3.2.6(a)2., necessary means
essential to the activity or the activity
would not occur at the site;

3. the proposed construction is to be located
within an existing manmade canal and the








DRAFT 8-29-94
PAGE B3-20

shoreline of such canal is currently occupied
in whole or in pare by vertical seawalls; or

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.

(b) When considering an application for a permit to
repair or replace an existing vertical seawall, che
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 1.-4. above exists. Nothing in tThis
subsection shall be construed to- no feway hinder
any activity previously exempt or permitted or
those activities permitted pursuant to Chapter 161,
F.S.

3.2.7 Secondary Impacts

Pursuant to paragraph 3.1.1(r), an applicant must provide
reasonable assurance that a regulated activity will not
cause adverse secondary impacts to the water-resource
impact as described in paragraphs .(a) through (d) below.

A proposed system shall be reviewed under this criterion
by evaluating the impacts to: wetland and surface water
functions identified in subsection 3.2.2; water quality;
upland habitat for aquatic and wetland dependent listed
species; and historical and archaeological resources.
Dde nminimijs or rriorely .elate- secondary impacts will
not be considered. Applicants may propose measures such
as preservation to prevent secondary impacts. Such
preservation shall comply with the.land preservation
provisions of subsection 3.3.8. If such secondary
impacts can not be prevented, the applicant may propose
mitigation measures as provided for in section 3.3 -
3.3. 84.

This secondary impact criterion consists of the following
four parts:

(a) An applicant shall provide reasonable assurance
that the secondary impacts from construction,
alteration, and intended or reasonably expected
uses of a proposed system will not cause violations
of water quality standards or adverse impacts to
the functions of wetlands or other surface waters
as described in section 3.2.2.


I










DRAFT 8-29-94
PAGE B3-21

Impacts such as boat traffic generated by a
proposed dock, boat ramp or dry dock facility,
which causes an increased threat of collision with
manatees; impacts co 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
3.2.4.3(f; and (h), will be considered relative to
the specific activities proposed and the potential
for such impacts. Impacts of ground water
withdrawals to-een wetlands and other surface
waters that result from the use of wells permitted
pursuant to Chapter 40D-2, F.A.C., shall not be
considered as secondary impacts under rules adopted
pursuant to Part IV of Chapter 373, F.S., since
these impacts shall e considered in the
waterccn:umptiv: use permit application process.

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

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

1. Existing nesting or denning by these species;
and
2. Enabling existing nests or dens to be used
successfully by.these species.

Appendix 5 identifies those aquatic and wetland
dependent listed species that use upland habitats
for nesting or denning.









DRAFT 8-29-94
PAGE B3-22

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

(c) In addition to evaluating the impacts in the area
of any dredging and filling in, on, or over
wetlands or other surface waters, and as part of
the balancing review under subsection 3.2.3, 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 uplanda.

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

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

2. on-site and off-site activities regulated
under Part IV, Chapter 373, F.S., or
activities described in section 403.813(2),
F.S., that are very closely linked and
causally related to the proposed system, will
not result in water quality violations or
adverse impacts to the functions of wetlands
and other surface waters as described in
section 3.2.2. 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.


I










DRAFT 8-29-94
PAGE B3-23

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

Where practicable, proposed systems shall be
designed in a fashion which does not necessitate
future impacts to wetland and other surface water
functions. If future phases or project expansion
have the potential to cause adverse secondary
impacts, applicants must provide sufficient
conceptual design information to provide reasonable
assurance that these impacts can be successfully
eliminated or offset.

One way for applicants to establish that future
phases or system expansions do not have adverse
secondary impacts is for the applicant to obtain a
conceptual permit for the entire project.

3.2.8 Cumulative Impacts

Pursuant to paragraph 3.1.1(g), an applicant must provide
reasonable assurance 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 as
set forth in subsection 3.1.1(c) and by evaluating the
impacts to functions identified in subsection 3.2.2. The
drainage basins within the District are identified on
Appendix 6.

An applicant must provide reasonable assurance that the
proposed system, when considered with the following
activities, will not result in unacceptable cumulative
impacts to water quality or the functions of wetlands and
other surface waters, within the same drainage basin:

(a) projects which are existing or activities regulated
under part IV, chapter 373, which are under
construction or projects for which permits or
determinations pursuant to sections 373.421 or
403.914- have been sought.

(b) activities which are under review, approved, or
vested pursuant to section 380.06, or other










DRAFT 8-29-94
PAGE B3-24

activities regulated under part IV, chapter 373,
which may reasonably be expected to be located
within wetlands or other surface waters, in the
same drainage basin, based upon the comprehensive
plans, adopted pursuant to chapter 163, of the
local governments having jurisdiction over the
activities, or applicable land use restrictions and
regulations.

Only those activities listed in paragraphs (a) and (b)
which have similar types of impacts (adverse effects) to
those which will be caused by the proposed system will be
considered. (All citations in paragraphs (a) and (b)
refer to provisions of Florida Statutes.

The cumulative impact evaluation 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.

3.2.8.1 Cumulative impacts are considered unacceptable when the
proposed system, considered in conjunction with the past,
present, and future activities as described in 3.2.8
would then result in a violation of state water quality
standards as set forth in subsection 3.1.1(c) or
significant adverse impacts to functions of wetlands or
other surface waters identified in subsection 3.2.2
within the same drainage basin when considering the basin
as a whole.

3.2.8.2 Applicants may propose measures such as preservation to
prevent cumulative impacts. Such preservation shall
comply with the land preservation provisions in
subsection 3.3.8. If unacceptable cumulative impacts are
expected to occur can not be prevented, the applicant may
propose mitigation measures as provided for in sections
3.3 3.3.8.

3.3 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. Mitigation willeea be
approved only after the applicant has complied with the
requirements of subsection 3.2.1 regarding practicable
modifications to reduce or eliminate or reduce adverse
impacts. However, any mitigation proposal submitted for
review by an applicant shall be reviewed concurrently


I










DRAFT 8-29-94
PAGE B3-25

with the analysis of any modifications pursuant to
subsection 3.2.1. This section establishes criteria to
be followed in evaluating mitigation proposals.

Mitigation required by sections 3.3 3.3.8 must offset
the adverse impacts to the functionscauced by regulated
activities as identified in sections 3.2 3.2.8.1 caused
by regulated activities. In certain cases, mitigation
cannot offset impacts sufficiently to yield a permittable
project. Such causes ofteninatances -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.

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

3.3.1 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.

3.3.1.1 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.

3.3.1.2 In general, mitigation is best accomplished when located
on-site or in close proximity to the area being impacted.
Off-site mitigation will onlveea 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









DRAFT 8-29-94
PAGE B3-26

comprehensive plan adopted according to Chapter
163, F.S.; or

(b) off-site mitigation would provide greater
improvement in ecological value than on-site
mitigation.

One example of a project that would be expected to meet
the criteria of paragraph (a) or (b) above is a linear
project which cannot effectively implement on-site
mitigation due to right-of-way constraints.

3.3.1.3 Mitigation through participation in a mitigation bank
shall be in accordance with Appendix 4, Establishment and
Use of Mitigation Banks.

3.3.1.4 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 applicant must implementDictrict will
cn-sidor mitigation measures propo..d by the applic .nt
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.)

3.3.1.5 To offset adverse secondary impacts from regulated
activities to habitat functions that uplands provide to
listed species evaluated as provided in paragraph
3.2.7.1(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.

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

3.3.1.7 Except as provided in 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 subsections 3.3
3.3.8.6 and offsets adverse impacts of the same project
in accordance with the criteria in subsections 3.2 -
3.2.8.2.


I









DRAFT 8-29-94
PAGE B3-27

3.3.1.8 Innovative mitigation proposals which deviate from the
standard practices described in subsections 3.3-3.3.6
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, preservation
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.

3.3.2 Mitigation Ratios

Subsections 3.3.2 3.3.2.2.2 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, including creation, restoration,
enhancement and preservation. The difference between the
ranges of ratios provided for mitigation types is based
on the degree of improvement in ecological value expected
from each type. Creation and restoration are assigned
the lowest range of ratios as these activities, when
successfully conducted, add new wetlands or other surface
waters which provide the same or similar functions as the
area being adversely impacted. The range of ratios
established for enhancement is higher than that for
creation and restoration, as the area being enhanced
currently provides a degree of the desired functions, and
this type of mitigation serves to increase, rather than
create, those functions. Preservation differs from the
other types of mitigation in that it does not serve to
improve the existing ecological value of an area in the
short term. However, preservation does provide benefits
as it can ensure that the values of the preserved area
are protected and maintained in the long term,
particularly when these values are not fully protected
under existing regulatory programs. Therefore, the range
of ratios established for preservation is higher than
those for other 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
3.3.2.1 and 3.3.2.2. For other types of mitigation,
ratios will be determined based uponeon a aac by cac
bai- depending .n 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.









DRAFT 8-29-94
PAGE B3-28

3.3.2.1 Creation, Restoration and Enhancement

When considering creation, restoration and enhancement as
mitigation, the following factors will be considered to
determine whether the mitigation will offset the proposed
impacts and to determine the 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 3.2.2.3, as
compared to the proposed improvement in quality and
value of the functions of the area to be created,
restored or enhanced.

(b) Any special designation or classification of the
affected area.

(c) The presence and abundance of nuisance and exotic
plants within the area to be adversely impacted.

(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 t- be adversely impacted will
be offset.

(f) The likelihood of mitigation success.

(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.

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










DRAFT 8-29-94
PAGE B3-29

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

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

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

3.3.2.2 Preservation

(a) Preservation of important ecosystems can provide an
improved level of protection over the current
regulatory programs. The District may consider as
mitigation the preservation, by donation,
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 3.3.8. In many cases it is not expected
that preservation alone will be sufficient to
offset adverse impacts. 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
3.2.2.3, 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. 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.

2. Any special designation or classification of
the affected area.









DRAFT 8-29-94
PAGE B3-30

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

4. The ecological and hydrological relationship
between wetlands, other surface waters, and
uplands to be preserved.

5. The extent to which proposed management
activities on the area to be preserved promote
natural ecological conditions, such as natural
fire patterns.

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.

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

8. Any special designation or classification of
the area to be preserved.

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

(c) Wetland- and ther- surface -water- pri Lrvatizn
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
6014:1, (acreage wetlands and other surface waters
preserved to acreage impacted).

(d) Upland pr: crvation ratio s. Uplands function as
hydrologic contributing areas to wetlands and are
necessary to maintain the ecological value of those
wetlands. Many wildlife species that are aquatic
or wetland dependent spend critical portions of


I









DRAFT 8-29-94
PAGE B3-31

their life cycles in uplands. Upland-s funtiozn a-
hydrologic contributing ar to wtnsdo and a--
no ary ,to mfain tai.n the e logical value e of tho
wetlands Because of these values, the preservation
of certain uplands may be appropriate for full or
partial mitigation of wetland impacts, and impacts
to uplands that are used by listed aquatic and
wetland dependent species as described in
subsection 3.2.7.1. The ratio guideline for upland
preservation will be 3:1 to 20:1 (acreage of
uplands preserved to acreage impacted).

3.3.2.3 To the extent that the area to be preserved offsets- he
adverse impacts 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.

3.3.3 Mitigation Proposals

3.3.3.1 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.

3.3.3.2 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:

(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.

(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.









DRAFT 8-29-94
PAGE B3-32

(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 if planting is
proposed, 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.

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

(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 3.3.7.8.


I










DRAFT 8-29-94
PAGE B3-33

3.3.3.3 Applieants Maay- -be --:roequir-ede- submit- -additional
information nccaary to evalu~ate whether thoe ropoacd
mitigation m.ta the criteria in thes rules.

3.3.4 Monitoring Requirements for Mitigation Areas

Applicants shall be required to monitor the progress of
mitigation areas until success can be demonstrated as
provided in section 3.3.6. Monitoring parameters,
methods, schedules, and reporting requirements will be
specified in permit conditions.

3.3.5 Protection of Mitigation Areas

Applicants shall propose and be responsible for
implementing appropriate methods whicht-e assure that
mitigation areas will not be adversely impacted by
incidental encroachment or secondary activities which
might compromise mitigation success.

3.3.6 Mitigation Success

Due to the wide range of typc of project which may be
proposed for mitigation, opecific oucocoo criteria will
be determined o- n a car by ao baoi z. Mitigation
sSuccess willmuet 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,
remedial measures shall be required. Monitoring and
maintenance requirements shall remain in effect until
success is achieved.

3.3.7 Financial Responsibility for Mitigation

As part of compliance with paragraph 40D-4.301(1) (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;









DRAFT 8-29-94
PAGE B3-34

(c) conduct monitoring of the mitigation; and

(d) conduct any necessary corrective action indicated
by the monitoring.

3.3.7.1 Applicants not subject to financial responsibility
requirements.

The following applicants shall not be subject to the
financial responsibility requirements in subsections
3.3.7-3.3.7.9:

(a) Applicants whose mitigation is deemed successful
pursuant to section 3.3.6 of this Handbook prior to
undertaking the construction activities authorized
under the permit issued pursuant to Rule 40D-400,
F.A.C.

(b) Applicants whose mitigation is estimated to cost
less than $25,000.00.

(c) Federal, state, county and municipal governments,
state political subdivisions and investor-owned
utilities regulated by the Public Service
Commission, and rural electric cooperatives.

(d) mitigation banks which comply with the financial
responsibility provisions of Appendix 4.

3.3.7.2 Amount of financial responsibility.

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
3.3.7.8 below, for each phase of the mitigation plan
submitted under the requirements of subsections 3.3 -
3.3.8.

3.3.7.3 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.

3.3.7.4 General Terms for Financial Responsibility Mechanisms.

In addition to the specific provisions regarding
financial responsibility mechanisms set forth in
subsection 3.3.7.6 below, the following, as they relate


I









DRAFT 8-29-94
PAGE B3-35

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.

(b) The financial mechanisms shall name the District as
sole beneficiary or shall be payable to the
District. The original financial responsibility
mechanism shall be retained by the District.

(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.

(d) Prior written consent from the District shall be
obtained before-rior to- any peson- prconting
draft against the -financial- reoponibility
mheeanl a -- e withdrawing or transferring any
portion of the funds thereinmonice provided fe-
financial r..pon"ibility.

(e) 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 3.3.7.7.2 below of this
Handbook.

(f) The financial responsibility mechanisms shall
provide that they can be revoked, terminated or
cancelled only upon the prior written conent- of
the District. 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 3.3.7 3.3.7.9.









DRAFT 8-29-94
PAGE B3-36

3.3.7.5 If the permittee fails to comply with the terms and
conditions of the permit, subsection 3.3.7 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 40D-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.

3.3.7.6 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.

(a) Performance bond;

(b) Irrevocable letter of credit;

(c) Trust fund agreement;

(d) Deposit of cash or cash equivalent into an escrow
account;

(e) 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 gener-ally be
construed toes mean-in "mitigation cost estimates."

(f) Guarantee bond;

(g) Insurance certificate;

(h) 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."


I









DRAFT 8-29-94
PAGE B3-37

3.3.7.7 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, including anveyd maintenance activities and
monitoring activities, and the applicant shall comply
with the following: the mitigation, if applicable.

(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.

(b) The applicant shall submit the estimates, together
with verifiable documentation, to the District for
approval along with the draft of the financial
responsibility mechanism.

(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.


3.3.7.7.1


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 in accordance with subsection
3.3.7.7and approved by the Diotrict, are successfully
completed. The request shall be in writing and include
documentation that the phase or chases have been
completed and have been paid for or will be paid for upon
release of the applicable portion of the financial
responsibility mechanism. 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.

(a) The reque-t shall be in writing and. include
documfentation tat th phase ior phasoso have beon
completed and have been paid for or will be paid
for upon releaso of the applicable portion of the
financial rooponcibility moohaniSm.










DRAFT 8-29-94
PAGE B3-38

(b) The District -hall authori- the relcaase of the
portion -erouzstrd upon veLrification -that -toe
onoatruetion or activitis lhavo boon complet-ed int
accordan. with th mitigation plan.--

3.3.7.7.2 Final Release. Within thirty (30) days of the District
determining that the mitigation is successful in
accordance with subsection 3.3.6, the District shall so
notify the permitted and shall authorize the return and
release of all funds held or give written authorization
to the appropriate third party for the cancellation or
termination of the financial responsibility mechanism.

3.3.7.8 Financial Responsibility Conditions.

For applicants subject to the financial responsibility of
subsections 3.3.7 3.3.7.9, 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.

(b) A permitted who fulfills the requirements of
subsections 3.3.7 3.3.7.9 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 3.3.7 3.3.7.9 a
financial responsibility mechanism within 60 days
after such event.

(c) When transferring a permit in accordance with
section 40D-4.351, F.A.C., the new owner or person
with legal control shall submit documentation to
satisfy the financial responsibility requirements
of subsections 3.3.7 3.3.7.9. 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.


I










DRAFT 8-29-94
PAGE B3-39

3.3.7.9 Financial Responsibility Mechanisms For Multiple
Projects.

A applicant may use a mechanism specified in subsection
3.3.7.6 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 project. The
mechanism must be no less than the sum of the funds that
would be necessary in accordance with subsection 3.3.7.2
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 3.3.7.2, above and the project added to
the list.

3.3.8 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 r.quircm.nt a:nd
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.

(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 may also accept a quit
claim deed for the purpose of clearing minor title
defects or otherwise resolving boundary questions.

3.4 Formal 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 determination for that property. A formal
wetland determination means the District will determine
the locations on the property of the landward extent









DRAFT 8-29-94
PAGE B3-40

(boundaries) of the wetlands and other surface waters
delineated according to chapter 17-340, F.A.C., as
ratified in section 373.4211, F.S.

3.4.1 Procedure

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

(a) five copies of the Petition for Formal
Determination as identified in section 40D-1.659,
F.A.C., including copies of all items required by
the form, and

(b) the appropriate non-refundable formal determination
fee pursuant to section 40D-1.607, F.A.C.

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

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
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
Chapter 40D-1, 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 determination.

The Executive Director will only issue a formal
determination if the petitioner has satisfied all the
requirements of section 3.4. A person requesting a formal
determination may withdraw the petition without prejudice
at any point before final agency action.

3.4.2 Types of Formal Determinations

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


I









DRAFT 8-29-94
PAGE B3-41

(a) The survey of the extent of wetlands and other
surface waters shall be certified pursuant co
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 3.4.3. 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 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









DRAFT 8-29-94
PAGE B3-42

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

3. Following any verification and adjustment as
required in subsection 3.4.3, 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.

3.4.3 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 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.









DRAFT 8-29-94
PAGE B3-43

3.4.4 Duration

The formal determination shall be binding for five years
provided physical conditions on the property do not
change so as to alter the boundaries of wetlands and
other surface waters during that period. The Governing
Board may revoke a formal determination upon a finding
that the petitioner has submitted inaccurate information
to the District.

3.4.5 Formal Determinations for Properties with an Existing
Formal Determination

A petition for a new formal determination for a property
for which a formal determination already exists shall be
eligible for a reduced fee set forth in Section 40D-
1.607, F.A.C., provided:

(a) physical conditions on the property have not
changed so as to alter the boundaries of the
wetlands and other surface waters during that
period; and

(b) the petition is submitted within 60 days prior to
the existing determination's expiration.

3.4.6 Nonbinding Determinations

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




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