Title: Intermittent Water Courses
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Permanent Link: http://ufdc.ufl.edu/WL00004542/00001
 Material Information
Title: Intermittent Water Courses
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collection - Intermittent Water Courses (JDV Box 91)
General Note: Box 23, Folder 1 ( Miscellaneous Water Papers, Studies, Reports, Newsletters, Booklets, Annual Reports, etc. - 1973 -1992 ), Item 45
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00004542
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text





I. Intermittent Water Courses.

Amend Section 403.817, Fla. Stat., by adding the following:

(6) Such landward extent shall not include intermittent

water courses, including intermittent tributaries, or portions

thereof, in the absence of a continuation of the plant indicator

species in or adjacent to the water course. Standard hydrological

methods shall be used to determine an intermittent water course.



Rationale for Amendment:

Pursuant to s. 403.817, Fla. Stat., the plant indicators are

designated by the legislature to delineate "areas subject t'o

regular and periodic innundation by waters of the state."

Portions of an intermittent water course that are not regularly

and periodically innundated frequently enough so as to allow the

establishment and growth of the plant indicators are statutorily

presumed beyond the "landward extent" of waters of the state.

Confusion has evolved with regard to the Department's application

of jurisdiction in intermittent water courses beyond areas not

dominated by the plant indicator species. Accordingly, this

amendment clarifies the Department's assertion of jurisdiction to

insure it occurs in intermittent water courses only to the extent

of the continuation of the Department's plant indicator species in

or adjacent to the water course. This amendment is also consis-

tent with administrative and judicial opinions regarding deline-

ation of the landward extent of the Department's dredge and fill

regulatory jurisdiction. See Occidental Chemical Co. v. State of

Florida, Department of Environmental Regulation, DOAH Case No.

77-2051, affirmed, 411 So.2d 388 (Fla. 1 DCA 1981).










For the purpose of identifying intermittent water courses

standard hydrological methods will be used. Such methods are

easily and economically applied by agency personnel and project

engineers or from reviews of existing, published documents such as

United States Geological Survey topographical maps.


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II. Isolated wetland areas connected to waters of the state

by artificial connectors.

Amend Section 403.817(2), Fla. Stat., by adding the following

sentence:

Nor shall isolated lands dominated by the plant indicators and

owned entirely by one person come within the department's

jurisdiction solely because of construction of an artificially

created,ditch, fire lane, or other artificial connection to such

lands, provided the total cross-sectional area at the point of

connection to waters of the state is less than 35 square feet.



Rationale for Amendment:

Pursuant to 403.031(3), Fla. Stat., isolated areas owned

entirely by one person are not included as "waters of the state"

and do not come within the Department's dredge and fill permitting

jurisdiction. However, as a result of construction of a fire lane

or drainage ditch these isolated areas may be brought within the

Department's permitting jurisdiction. The landowner should not

suffer a land loss as a result of the Department's assertion of

jurisdiction, or otherwise be penalized, solely due to limited

artificial improvements to his property.

This amendment will not relieve the landowner from complying

with Department rules and regulations including water quality

standards at the point of connection to waters of the state. The

limiting criteria of 35 square feet at the point of connection to

waters of the state was selected from the Department's proposal to

exempt certain artificial connections from permitting.









III. Exemption for dredging or filling in artificial

waterways discharging into surface water management systems.

Amend Section 403.813(2), Fla. Stat., by adding the following

paragraph:

(p) The dredging or filling in artificial waterways dis-

charging into surface water management control systems permitted

by a water management district pursuant to part IV, chapter 373.



Rationale for Amendment:

Chapter 373 water management districts now consider water

quality as well as water quantity issues in conjunction with

permitting the construction, operation, and maintenance of surface

water management systems. There are no additional water quality

benefits derived from requiring a Department dredge and fill

permit for activities undertaken in waters that are connected and

discharge into a surface water management system permitted by a

water management district. Therefore, Department dredge and fill

permitting of the same activities that are already being

considered for water quality impacts by a water management

district is an unnecessary duplication.


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IV. Fish and wildlife considerations limited to certain

waters of the state.

Add sentence to fish and wildlife considerations in permit

authority of the Department in House and Senate bills as follows:

In this chapter and chapter 373, fish and wildlife considerations

shall be limited to waters of the state below the five cubic feet

per second mean annual flow and to their landward extent as

determined under s. 403.817(2).



Rationale for Amendment:

This amendment would bring conformity between the Department

and water management districts considering fish and wildlife

issues relative to permitting. In Chapter 403 and Chapter 373,

fish and wildlife considerations would be limited to the landward

extent of waters of the state as determined in s. 403.817(2).

Additionally, the amendment would focus Department and dis-

trict consideration of fish and wildlife habitat to areas down-

stream of the 5 cubic feet per second (cfs) flow. The United

States Army Corps of Engineers and Environmental Protection

Agency, through a history of wetlands evaluation and permitting,

have determined that alteration of areas upstream of the point of

5 cfs mean annual flow, which typically represents a drainage

area of five square miles, does not sufficiently impact the

environment to justify regulation. This is borne out by the

automatic granting of a nationwide permit for activities occurring

above the 5 cfs flow point. There is no sufficient justification

warranting the Department or districts to consider fish and

wildlife habitat issues in conjunction with permitting above the 5

cfs flow point in a manner contrary to the federal government.
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V. Mitigation.

Amend Section 403.061, Fla. Stat., by adding the following:

(30) Consider mitigation measures offered by applicants for

activities in waters of the state. Provided however, mitigation

measures may only be required if the applicant cannot provide

reasonable assurances of compliance with standards or rules

promulgated by the department and shall not be required if the

proposed activity otherwise complies with such standards or rules.

As used in this subsection mitigation means the creation,

restoration, reclamation, or enhancement of waters of the state to

maintain or improve any beneficial functional characteristics or

processes of such waters.



Rationale for Amendment:

This language is necessary to prevent the Department from

requiring mitigation measures to obtain all permits. If

mitigation measures are not limited it can be expected the

Department will insist applicants mitigate all environmental

disturbances in order to receive a permit even if such

disturbances do not violate any Department rule or standard.

Mitigation should only become a factor in Department permitting

when proposed activities do not meet Department requirements

imposed by law.


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VI. Fences.

Amend Section 403.813(2), Fla. Stat., by adding the following

paragraph:



(g) The installation of fences in waters of the state,

provided that such fences do not restrict navigation in navigable

waters or the flow of waters.



Rationale for Amendment:

This amendment is self-explanatory and is consistent with

amendments being proposed by the Department of Environmenta-1.,

Regulation.










VII. Exemption for construction of water control structures.

Amend s. 403.813(2), Fla. Stat., by adding the following

paragraph:

(r) The construction of water control structures permitted

by a water management district pursuant to part IV, chapter 373.



Rationale for Amendment:

Same as amendment creating paragraph (p).










VIII. Construction, dredging, or filling of drainage

ditches.

Amend s. 403.813(2), Fla. Stat., by adding the following

paragraph:

(s) The construction of, and dredging or filling in, irriga-

tion or drainage ditches constructed in the uplands, including

those connecting isolated areas owned entirely by one person and

dominated by the plant indicator species, provided the total

cross-sectional area at the point of connection to waters is less

than 35 square feet.



Rationale for Amendment:

These activities are minor in nature and do not justify

Department permitting approval. They will continue to be subject

to Department water quality standards at the point of connection

to waters of the state.


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