Background Report in Support of Development of a Wetland Buffer Zone Ordinance


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Background Report in Support of Development of a Wetland Buffer Zone Ordinance
Alternate Title:
JEA Project Np.: 19270-485-01
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Mixed Material
Brown, Mark T.
Center for Wetlands and Water Resources
Center for Wetlands
Place of Publication:
Gainesville, FL
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Subjects / Keywords:
buffer zones

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University of Florida
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University of Florida
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TABLE OF CONTENTS 1.0 lNTRODUCTION1-11.1PROJECTGOALS1-11.2 ECOLOGICAL VALUEOFBUFFER ZONES 1-2 2.0 IDENTIFICATION AND CLASSIFICAnONOF ECOLOGICAL COMMUNITIES........................................... 2-1 2.1 HABITAT TYPES 2-1 2.1.2 Hardwood Swamps 2-3 2.1.3 Freshwater Marsh 2-3 2.1.5PineFlatwoods 2-4 2.1.6 Upland Hammock 2-4 2.1.7 Xeric Uplands 2-4 2.2 ENVIRONMENTALLY SENSITIVE LANDS 2-4 2.3 IMPERILED AND THREATENED HABITATS 2-8 3.0 REVIEW OFOTHERCOUNTY ORDINANCES 3-1 4.0REVIEWOFOTHERWETLANDREGULATIONS4-1 4.1 FEDERAL REQUIREMENTS 4-1 4.2 STATE REQUIREMENTS 4-3 4.2.1 Conditions Where State RegulatoI)' BuffersAreNot Addressed 4-4 5.0 REVIEW OF RELATED REPORTSANDSTUDIES 5-1 5.1 EAST CENTRAL FLORIDA 5-1 5.2TOMOKARIVER AND SPRUCE CREEK 5-3 5.3 ECONLOCKHATCHEERIVER 5-35.4WEKIVA RIVER 5-3 6.0 REVIEW OFLEGALIMPLICATIONS 6-1 6.1 AUTHORITYTOADOPT WETLAND BUFFER ORDINANCE 6-1 6.1.1 Local Government Comprehensive Planning and Land Development Regulation Act ............................................ 6-1 6.1.2 Police Power 6-4 6.2 POTENTIAL LIMITATIONS ON ESTABLISHMENT OF WETLANDBUFFERZONE ORDINANCE 6-5 6.2.1DueProcess 6-5 6.2.2 Equal Protection 6-6 6.2.3 Takings 6-7 6.2.4 BertJ.Harris.Jf..Private Property Rights ProtectionAct.......... 6-17 6.3 WETLAND DEFINITIONIDELINEATION 6-24 7.0 SUMMARY 7-1 8.0 REFERENCES 8-1APPENDIXAPPENDIX A WetlandlUpland Buffer Zone Ordinance Summaries from Various Florida Municipalities ReportFinal.wpdTABLEOF CONTENTS


LIST OF FIGURES1 Land UselLand Cover (Level 3) Habitat Classification Map 2-2 2 Environmentally Significant Lands 2-7 3 Existing and Proposed Conservation Lands. ................................. 2-7 4 Environmentally Sensitive Lands 2-7 5 Environmentally Sensitive Lands 2-7 6 Environmentally Sensitive Lands 2-7 7 Environmentally Sensitive Lands 2-7 8 Environmentally Sensitive Lands 2-7 9 Strategic Conservation Areas for Bears ..................................... 2-7lOPotential Bear Habitat 2-7W:\19270\485010600\BackgroundReportFina1.wpd. _..--FIGURES


LIST OF TABLES2.1Imperiled and Threatened Habitats in St. Johns County (Source: FNAI and FDNR 1990) 2-93.1SummaryofBuffer Zone Ordinances for Various Municipalities (See Appendix A for a more detailed descriptionofwetland ordinances).............................................................. 3-1 4.1 DescriptionofBuffer Attributes and Corresponding Numerical ScoreasPresented in the Wetland Rapid Assessment Procedure(WRAP)(Miller and Gunsalus 1997).. 4-2 5.1Buffer Width for each Habitat in the East Central Florida Regional Planning Council5-2 .7.1SummaryofBuffer Widths from Local Ordinances, State Regulations, Federal Regulations, and Scientific Studies 7-32.1State Element RanksofImperiled and Threatened Habitats in St. Johns County (Source: FNAI and FDNR 1990) : 2-93.1SummaryofBuffer Zone Ordinances for Various Municipalities (See Appendix A for a more detailed descriptionofwetland ordinances) 3-34.1DescriptionofBuffer Attributes and Corresponding Numerical Score as Presentedinthe Wetland Rapid Assessment Procedure(WRAP)(Miller and Gunsalus 1997)..4-25.1Buffer Width for each Habitat in the East Central Florida Regional Planning Council "'"'" "'" 5-2 7.1SummaryofBuffer Widths from Local Ordinances, State Regulations, Federal Regulations, and Scientific Studies 7-3 W;\19270\485010600\BackgroundReportFina1.wpdFIGURES


2.0 IDENTJFICATION AND CLASSJFICATION OF ECOLOGICAL COMMUNITIES The primary habitat classification system utilized for identifying ecological communities inSt.Johns County is theFloridaLandUse,CoverandForms Classification System(FLUCCS) (Level 3) (DOT 1985). This standardized habitat classification system is frequently used throughout Florida,aswell as in the St. Johns County draft Land Development Code. Geographic Information System (GIS) data depicting FLUCCS (Level 3) Land UselLand Cover were obtained from the St. Johns River Water Management District (SJRWMD), who maintain a FLUCCS (Level 3) GIS database for each county in its district. The GIS Land UselLand Cover mapisdepictedinFigure I. A fewofthe most significant upland and wetland FLUCCS categories mappedinSt. Johns County and their associated distribution include the following: 2000 Agriculture southeast portionofthe county 4110 Pine Flatwoods extensive throughout the county 4120 Longleaf Pine Xeric Oak (i.e., Sandhill) infrequent 4340 Upland Mixed ConiferouslHardwood (i.e., Mesic Uplands) infrequent 6150 RiverlLake Swamp Bottomland (i.e., Floodplains) frequent throughout the county 6210 Cypress infrequent 6300 Wetland Forested Mixed extensive in the central portionofthe county 6420 Saltwater Marsh extensive along the coast2.1HABITAT TYPES Manyoftheabove habitat types have been used to assess wildlife utilization and associated spatial requirements in previous buffer zone studies (Brown etal.1990a, Brown and Orell1995) and were subsequently usedtodevelop appropriate buffer widths for protecting wetland-dependent wildlife species. The habitat types used in the above-mentioned buffer studies are applicable to St. Johns County and were therefore adapted for this study. The habitat types used for assessing wildlife spatial requirements include hardwood swamp, cypress wetland, freshwater marsh, saltwater marsh, flatwoods, mesic hammock, and xeric upland. Upland habitats were included because they occur in association with wetlands within a landscape mosaic and provide important feeding and nesting habitat for many wetland-dependent wildlife species. Eachofthese habitat types are described below. 2.1.1 Cypress Wetlands Cypress wetlands coincide with the FLUCCS category 6210 and are frequently associated with cypress domes and cypress strands in north Florida. They tend tobemore recurrentininland counties, whereas mixed hardwood swamps tend to be more frequent in St.JohnsCounty. Pond cypress(Taxodium ascendens)istypically tlle dominant tree species in cypresswetlands, whereas red maple(Acer rubrum),water oak(Quercus nigra), sweetgunl (Liquidambar styraciflua),swamp black gunl (Nyssa sylvaticavar.biflora),and bays occurassubdominants. These are still-water wetland forests which have water present for mostofthe year. This habitat generally occurs in depressionsinupland areas oflittle topographic relief suchaspine flatwoods.Itseldom occurs in the floodplains.W:\l 9270\48501 0600\BackgroundReportFinal.wpd ..... __ .,., Inn ... IDENTIFICATIONANDCLASSIFICAnON


and developments, where vegetation can trap sediments and attached pollutants before they are deposited into wetlands and watercourses.W:\19270\4850t0600\BgckgroundReportFinal.wpdINTRODUCTION


Figure 1 Land UselLand Cover (Level 3) Habitat Classification MapW:\19270\485010600\BackgroundReportFinaLwpdIDENTIFICATION AND CLASSIFICATION


, Figure1LanduselLand Cover (Level 3) Habitat Classification Map ,IN'nUlCOASTALWATDlWA.GUANAlUVXR LEGEND .N;'Major.......BmsLocalRoadi tr .....ConntyBoundary SJRWMDLand UselLand Cover Itransportation urb.. '._';,barrenIinds : 2000 agriculture 3000 nmgaland_ 4110 plneflatwoodl .4120 Jongleafploe-xerIcoak 4130 sand pine 4340 uplandmbedconfferouslhardwood 4400 tree plantatiODI water6110bayIWlUDpI 6150 rivet:1lakenramp (bottomlan'd) 6110Cypl'ell6300wetland(Ol'Qfedmh:ed7'./. 6410 freshwatermanhes;::<;: .. ;6420slltwatermarshes 6430 wetpralrles6440emergentaquaticvegetation6450nbmergeut aquatic vegetatioD6460mhedIcrub-lhntb wetland ?it\., 6500 DOJloVq;etatedwet1aDdSource: SJRWMDSCALE Miles -]..'liy=f..':'\ I _'.:.-J .. / .'. or_wnr..-_-.-


IFbhtaD SwampFigure 2 Environmentally Significant Lands IN1"D.COASt'ALWA'l'ERWA N i LEGEND Elemeatal OCCW'ancesNM2jo,,,,,..../:\I.LowRoads/Vs......I:JCountyBoundary CARL Landt(potentWAcquWtlon)MauledAreasAquaticPI'elIU'VeI Save OUrlUTen (potential AtquJsltlon) Area, of ConJervatioDInteratPotendalNaturalAreu (ACIB&C) Source:FNAI SCALE __ Mlles '-!::'===ll::l:;20=0::'l00il::0r:f;"r;;'it Joe es y tt!.: .Jfd.4-="!


I Figure 3 Existing&Proposed Conservation Lands,N t LEGENDElemental OceurancesNM>jo,Ro...1/.\/.=... County Boundary"u:"CARLLandi(potentialAcquisition)Manqed ArealAquatic PrelIel'VQ Save Our RIven (potcntW Acquillition) Areuof COllJervatfonInterelt",-,'PotentialNaturalAreal (ACI B&C)Soun:e:FNA! SCALE 2 0 2 4j1:200000 '"Filhtan Swamp


I LEGEND .f,\f.MaJorRoadJ1\1Loea.lRoedlCJ CotIDty BoaDdary7-'WeOandSpecIesOverl8p7-9WetlandSpedesOverlap W .....IDgherNumba'iJutlQtcI greaterDumber oflisted IpedIUpramtSource: FGWFC Figure 4 Environmentally Sensitive Lands I SCALE 2"ioi Mlles /{;:/:-}


,Figure 5 Environmentally Sensitive LandsLEGEND N.M8jorRoalULSLLocalRoadJCCountyBOlUldll)'il .. f.,.""""f., W ... .. wo....ScoraanbaNd OD quUtyofwetlaDdf,proDmItyof.atlaCeoJoaleI,udIIIIIIlbwotwadla.birdrped ... 8Ipero1llDbe!'iJldkataalaJ&hunWd_Source:FGFWFCSCALE__Mile.. .":_=::_:::::_:::_=::.::---"j;'_\


1Figure 6 Environmentally Sensitive Lands I N i LEGEND Road. !SLLocalRoadsCJ County BoundaryStrategic HabitatConservation Areas for WadingoSource:FGFWFCGtJANAIUVER


, INtf,1l.COASTALWATERWA Figure 7 Environmentally Sensitive LandsN i LEGEND NMajorRoads1'\1 Local RoadsCJ Coaaty BoaadaryForaging Zones Around Wood Stork Colonies oSource: SJRWMD


EagleNedsUa(l972-1993) EagleNestSlta(1994-1996)!Ea&leNeri SUa 1rithBuO'en (l972-1993) EagleNatSIte Bden (1994-1996)MajorRoadl!SILocalRo.cbJ:JCounty BotlJldarySourte:J'GFWFC ,N i LEGENDFigure 8 Environmentally Sensitive Lands ,GVANARlVERflr.AUGIJS':l'Jl'(B.BEA""SCALE Mil.. =::_::::_:::_=_::.:--


SoUtte:FGFW1i'C Bear Ro.dIdIIs,N'MaJorRoad.1\/Local Roads J:J County Boundary Strategic Habitat Conservation Areasfor Bean CJ,N t LEGENDFigure 9 StrategicConservation Areas for BearsI tIroAUGUSl1N.KllIACII


,Figure 10 PotentialBearHabiat ,JND:llCOAST.u.WATERWA'Y-"""" LEGEND SC:Orelluebued.lIpOD.proDmitytouIdiDJCO.llllerntktoarw.IIUorroadlePlfhvI;lfyDle.nrf1pef,udlptCUieconrtwa.barJaahlUtb .....ped.acoRol1udtheJdPeftil_n4atlo..t II BearRoadldJlsMajorRoldl!SLLocal RoalllI:JQoaUfativeScorerofPolmtfaIBelli'HabOO 1 ., 34 57,,.


2.1.2 Hardwood Swamps This habitat type comprises several FLUCCS categories including river/lake swamp bottomland (6150), wetland forested mixed (6300), and bay swamps (6110). The first category is frequently found in strands along many drainageways, watercourses, and areas influencedbyseasonal flooding. The second and third category canbea floodplain wetland, contiguous wetland, or isolated wetland. They are all similarinthat they support a diverse conglomerationofpredominantly hardwood species, with someofthe more common species including red"map1e, water oak, sweetgum, swamp black gum, and bays.Bayswamps are dominated primarilybyoneormore wetlandbayspecies, such as loblollybay(Gordonia lasianthus),swampbay(Persea palustris),and/or sweetbay(Magnolia virginiana).Associated species include cypress, slash pine, loblolly pine, and dahoon holly(Ilex cassine).These various hardwood swamps areofgreat value for maintaining good water quality and quantity and for wildlife and wilderness values. Water quality is enhanced through the actionsofsedimentation and uptakeofnutrientsbyvegetation. During flood times when waters reach their highest elevations, the swamp fringeoflakes and rivers help to reduce suspended nutrients and organic matter and slow water flow due to the frictionoftrunk, stems, and roots. Hardwood swamps provide food, cover, nesting sites, and hibernating places for a varietyofanimals, but many animals spend onlyp"artoftheir lives in wetlands, moving to uplands or to other water bodies as water levels rise and fall (Myers and Ewel 1991). Hardwood swamps comprising floodplains, wetland forested mixed, and bay swamps are common throughout the county except along the coastal strand. 2.1.3 Freshwater Marsh Insteadofa forested wetland community, this habitat type consistsofa marsh that is dominatedbyhydrophytic herbs. A shallow freshwater marsh (6410) appears as an open expanseofgrasses, sedges, and rushes and is adapted to prolonged periodsofflooding. Plant associations vary markedly along hydrological gradients, but species tolerances to inundation overlap broadly (Myers and EweI1991). Marsh systems will eventually succeedtoa shrub or forested wetland in the prolonged absenceoffire, orifthe hydroperiod is permanently lowered. Wet prairies (6430) are includedinthis landscape habitat. Freshwater marshes andwetprairies are infrequentinSt. Johns County. Similartoother wetlands, ephemeral marshes and wet prairies provide valuable wildlife habitat to a varietyofamphibians such as oak toads, chorus frogs, little grass frogs, and several other frog and toad species (Brown et al. 1990) where their associated predators are excluded due to noncontinuous inundation. 2.1.4 Saltwater Marsh Salt marshes (6420), which are characterizedbygrasses, sedges, and rushes, generally straddle Guana River, Tolomato River,Matanzas River, Moultrie Creek, Moses Creek, Pellicer Creek, andtheIntracoastal Waterway in St. Johns County. Salt marsh soils are nearly level and are coveredwithsaltorbrackish water during daily high tides. They are very poorly drained, withmuckyorsandy clay loams. Salt marsh vegetation is often zoned in accordance with average salinity and depthofflooding to which the zones are exposed. Black needlerush(Juncus roemerianus)and seashore saltgrass(Distichlis spicata)are tolerantofvariable conditions and are found throughoutthemarsh. Smooth cordgrass(Spartina altemiflora)is found in regularly flooded areas and is often a dominant salt marsh plant. Marshhay cordgrass(Spartina patens),marsh elder(Iva imbricata),saltwort(BalisW:\19270\48501 0600\BackgroundReportFinal.wpdDecember 22. 19992-)IDENTIFICAnONAND CLASSIFICAnONOF6COWGICALCOMMUNITIES


maritima),and sea oxeye(Borrichiaspp.) are typicalofhigher areas that are less frequently flooded. Saltwater marshes provide valuable habitat to a wide rangeofsnails, crabs, amphipods, wading birds, and fish. Many commercially important fish species spend a large portionoftheir lives in saltwater marshes, adjacent estuaries, and tidal creeks. 2.1.5 Pine Flatwoods Pine flatwoods(4110)are poorly drained uplands that represent the most extensive upland habitatinSt. Johns County. Pine trees in the canopy and a thick shrub layerofsaw palmetto(Serenoa repens),gallberry(flex glabra),and dwarf huckleberry(Gaylussacia dumosa)typify pine flatwoods. Slash pine(Pinus elliottizJis frequently the most common pine tree present; however, loblolly pine(Pinus taeda)and longleaf pine(Pinus palustris)can also occur. Private timber companies manage extensive acres ofpine stands on pine flatwoods. Pine flatwoods can occur over a moderately wide hydrologic gradient, from the drier scrubby flatwoods to the wetter hydric flatwoods. 2.1.6 Upland Hammock This upland habitat is a mesic upland that is comprisedofa mixtureofhardwoods and conifers. The upland mixed forest (4340) represents the corresponding FLUCCS code. This upland habitat tends tobeintermediate in drainage between the poorly drained pine fla,two()ds and the excessively drained sandhills and scrubs. Dominant treespeCieslll.dllde slash pine, water oak, live oak(Quercus virginiana),laurel oak(Quercus haemisphaerica),sweetgum, and saw palmetto. This habitat ismorerestrictive in distribution in St. Johns County than pine flatwoods; however, it is frequently foundinthe northwest portionofthe county and is associated with the steeply incised ravines. 2.1. 7 Xeric Uplands Sandhill (4120) and scrub (4130) are xeric communities thatcharacteristically support drought tolerant species on deep, infertile sandy soils. Although these are distinctly different communities, they have been combinedinthis habitattorepresent xeric communities that often occur adjacent to wetlands. Longleaf pine and sand pine(Pinus clausa)are the dominant conifers on sandhills and scrub, respectively. Turkey oak(Quercus laevis),blue-jack oak(Quercus incana),wiregrass(Aristida beyrichiana),and other drought-tolerant species flourish in these xeric communities andcanbecome dominant or co dominant in the absenceoffue.The Florida Natural Areas Inventory (FNAl) has classified both sandhill and scrub communities as imperiled due to the severe development pressure on these locally rare communities. These two xeric communities support a rare suiteofwildlife, including the endangered indigo snake that depends on gopher tortoise burrows during winter months and frequents adjacent wetland communities throughout the remainderofthe year. 2.2 ENVIRONMENTALLYSENSITNELANDS The county Comprehensive Plan, in its definitionofterms, defmes environmentally sensitive lands as jurisdictional wetlands that are regulatedbythe Florida DepartmentofEnvironmental Protection (DEP) andSJRWMD,est1ianes or estuarine systems as depicted on the Environmentally Sensitive Lands Mapofthe Future LandUseMap Series, areas designated pursuant to the Federal Coastal Barrier Resource Act (pL 97-348) and those beacli and dune areas seawardofthe CoastalW:\19270\485010600\BackgroundReportFinat.wpdDecember 22. 1999 2-4 IDENTIFICAnONAND CLASSIFICATIONOFECOLOGICAL COMMUNITIES


Construction Control Line; habitat areas that, after appropriate study and analysis, are determined tobenecessary for the supporfol1!iIeateneil6[ endangered spedes'found tobeactually using, or of and (iii)theirsignificant potential for protection due to oWnership,JJ,1lttems, development status,orother factors, are designated as envrronmiiritaIlysensitive landsbyactionofthe County Commission.Forthisbuffer zone analysis, we were directed to include as environmentally sensitive lands, all wetlands and their associated upland areas that include, but are not limited to, those located adjacent to OFWs, Class IIwaters, Class III waters, Aquatic Preserves, estuaries, shellfish harvesting areas,andall rivers, and headwaters to major creeks and isolated wetlands. Numerous pertinent GIS data layers were obtained and investigatedinorder to map the distribution and extentofenvironmentally sensitive lands in St. Johns County. GIS data layers were obtained from the SJRWMD, DEP, the Florida Game and Freshwater Fish Commission (FGFWFC),FNAI,andSt. Johns County.TheGIS maps are provided as Figure 1 through 10. Jurisdictional wetlands are classifiedbydominant vegetation types according to the FLUCCS (Level 3) data provided by the SJRWMD (Figure1).While this map providesanoverall generalizationofthevegetative communities in the county, field ,Yerification to substantiate precise habitats within the constraintsofa project boundary is necessary.Majorrivers, such as the St. Johns River, Julington Creek, Guana River, Tolomato River, Matarizas River, and Pellicer Creek are depicted on the GIS maps (Figure 110). We were unable to find a GIS layerthatdepicted headwaters to rivers and creeksorestuaries. However, where they originate within the county boundary, headwaters canbeinterpolatedonthe GIS maps as the originofthe creekorstream network. Estuaries are broadly definedasareas where sea water is dilutedbywater from rivers and streams. These areas' can be interpolated on theGISmaps as junctures where streamsjoinsaltwater marshes (Figure 1),orwhere streamsjoinClass II waters (Figure 2). Significant waterbodies are depicted on Figure 2 and include ClassI,II, and III waterbodies,OFWs, and Aquatic Preserves. Class I waters are surface waters that are used for potable water supply andmeetdrinking water quality standards. There are no Class I waters in St. Johns County. Class II surface waters are designated shellfish propagationorharvesting areas. Class II watersthecounty coincidewithdesignated areasofGuanaRiver, Tolomato River, Salt Run, Matanzas River, Pellicer Creek, and their connecting tributaries (Figure 2). Class III waters are all other surface waters that are used for recreation, propagation, and maintenanceofa healthy, well-balanced populationoffishandwildlife (Chapter 62-302.400, F.A.C.). SOfie water bodies have received duel classification designations, such as a Class II water body and OFW. Five areas have been designated as OFWs inthecounty and include surface waters in Anastasia State Recreation Area, surface watersinGuana River State iark, Guana River, surface watersinFaver-Dykes State Park, and surface waters in Ft.Mose(Figure 2). Aquatic Preserves include GuanaRiverMarsh and Pellicer Creek. Class II waters (shellfish propagation and harvesting waters), OFWs, and Aquatic Preserves coincidewiththe unique and sensitive tidal areas located along the coastal sideofthe county. Severalmoreinland areas in the county have been identified based on unique vegetative communities, high ecological value, and important wildlife habitat, and are categorized as existingandproposed conservation lands (Figure 3). Areas such as Moses Creek, Deep Creek,andStokesW:\19270\485010600\BackgroundReportFina1.wpdDecember 22, 1999 ,,< IDENTIFICATIONAND CLASSIFICATION 1"\"'""""''''01.IF ....


Landing have been acquiredbythe SJRWMD for preservation and recreation (Figure 3). Other areas such as Trestle Bay Swamp, Fishtail Swamp, and Deep Creek have qualifiedasPotential Natural Areas basedona Natural Areas InventoryofTiger Bay (Schultz andOrzelll995). Lar&e\IJ:limPls:te

Figure 2 Figure 3 Figure 4 Figure 5 Figure 6 Figure 7 Figure 8 Figure 9 Figure10Environmentally Significant Lands Existing and Proposed Conservation Lands Environmentally Sensitive Lands Environmentally Sensitive Lands Environmentally Sensitive Lands Environmentally Sensitive Lands Environmentally Sensitive Lands Strategic Conservation Areas for Bears Potential Bear HabitatW:\19270\4850 I 0600\BackgroundReportFinal.wpdDecember 22, 19992-7 IDENTIFICATION AND CLASSIFICATIONOFECOLOGICAL COMMUNITIES


2.3 IMPERILED AND THREATENED HABITATS The FNAI has published a state and global listofimperiled and threatened habitatsofSt. Johns County basedonlackofabundance in the county and vulnerability to extinction. This list is referenced in the Comprehensive Plan and in the Draft Land Development Code. The state imperiled habitats are those habitats that are rare (6-20 occurrences or little remaining area) or becauseofsome factor(s) makes them very vulnerable to extinction throughout their range (FNAI andFDNR1990). The state threatened habitats are those habitats that are rare or uncommon in the state (on the orderof21to 100 occurrences) (FNAI and FDNR 1990). Abriefdescriptionofthestate imperiled and threatened habitatsinSt. Johns County is provided on Table 2. I.Itshouldbenoted that the FNAI listofimperiled and threatened habitats in St. Johns County is not inclusiveofall endangered or rare habitats in the county.Forexample, not listed as imperiled or threatened are the steep-sided ravines in the northwestern comerofthe county that are unique, rare, support unusual flora, and are vulnerable to degradation and erosion from development. Additionally, seepage slopes are listed as imperiled for other counties in Florida but are not included on the St. Johns County list. This community has been documentedasoccurring in the county(L.Grant, K. John, pers. comm.) and probably should be included as imperiledinSt. Johns County.w:\t9270\4850 I 0600\BackgroundReportFinal.wpdDecember 22, 1999 2-8 IDENTIFICATIONANDCLASSrFlCAnONOFECOLOGICAL COMMUNITIES


Table 2.1 Imperiled and Threatened HabitatsinSt. Jolms County (Source:FNAland FDNR 1990) Habitat DescriptionofHabitat, Distribution, and Vulnerability Factors Imperiled Beach Dune These are found along shorelines subject to high energy waves which deposit sand-sized grainstofonnthe open beach. Beach dunes are subject to drastic topographic alterations during winter storms and hurricanes. Taking the bruntofstorm surge, intact beach dunes are essential for protectionofinland biological communities. IQ. spiteoftheirability to withstand harsh maritime enviromnents, plants on the beach dunes are extremely vulnerable to human impacts. A footpath or off-road vehicle trail can damage vegetation and destabilize dunes. Coastal Grassland This is a flat low area found behind the foredunesoncapes, spits, and estuaries.Itmay be periodically floodedbysaltwater and covered with sand and debris during major stonns. Plant species will colonize expansesofnewly deposited sands and can, over time and in the absenceoflargestorms, succeed into coastal strand or flatwoods. Coastal These dynamic areas between sand dune ridges afford additional Interdunal Swale protection to inland biological communities during storm events by trapping sand and debris, thus reducing inland nativevegetation from sand burial. They also provide a haven from high winds for some wildlife species. Coastal Strand Coastal strands are stabilized, wind-deposited coast dunes that are vegetated with a dense thicketofsalt-tolerant shrubs and herbs. They are generally quite stable but are susceptibletosevere damageifthe vegetation is disturbed. Coastal strand is probably the most rapidly disappearing community in Florida. Because it is prime resort and residential property, coastal strands now occnt as broken and isolated segments, rather than a long continuous strand as it historically was. Along with other coastal communities, coastal strand protects inland communities from the severe effectsofstorms. Maritime Maritime hammock is characterized as a narrow bandofhardwood forest Hammock lyingjustinlandofthe coastal strand community. Varioushardwood species combine tofonna dense, wind-pruned canopy whose streamlined profile deflects wind and generally prevents hurricanes from uprooting the trees. This community occursonold coastal dunes that have been stabilized long enough for the growthofa forest. Maritime hammock is prime resort and residential property becauseofits relatively protected location along the coast. Although it originally occurredinvirtually continuous bands along the coast, it is now dissected into short stripsbydevelopment and is rapidly disappearing.W:\19270\485010600\BackgroundReportFinal.wpdDecember 22, 1999 2-0 lDENTlFICATIONAND CLASSIFICATION ('IFFrnrnI"::Ir"""rf"\U'r..nn..1l'TT'CC'


Table2.1Imperiled and Threatened HabitatsinSt. Johns County (Source: FNAI and FDNR 1990) Habitat DescriptionofHabitat, Distribution, and Vulnerability Factors Sandhill This community has been briefly described in Section 2.1. Sandhills are much more restricted in distribution now compared to historical distribution due primarily to development and agriculture. Scrub This community has also been briefly described in Section 2.1. Scrub communities and their many endangered and threatened species have rapidly been lost to development. Threatened Basin Swamp Basin swamps can overlap with someofthe forested wetland communities listed in the FLUCCS categories and depictedonFigure 1. These includebayswamps (6110), bottomlands (6150), cypress (6210), andwetland forested mixed (6400). Basin swamps are vulnerabletomanipulationofthe hydroperiod, whereby an increased hydroperiodcanlead to a demiseofless water-tolerant species, and shortened hydroperiod which allow invasionofdrier species. Many basin swamps have been degradedbytimber harvest and have been drained or pollutedbysedimentation and erosion. Depression These are typically small, isolated depressions that support a very Marsh different assemblageofspecies than that found in larger, more permanent wetlands. Depression marshes are considered extremely importantinproviding breedingorforaging habitat for many speciesofsalamanders, toads, frogs, and wading birds. Depression marshes occurring as isolated wetlands within larger upland ecosystems areofcritical importance to many additional wetland and upland animals.DomeSwamp Dome swamps typically develop in sandy flatwoods and in karst areas where subsidence has occurred and created a conicaldepression. Many dome swamps have been ditched and drained, which alters the hydrophytic vegetationassociated with these wetlands. Scrubby Scrubby flatwoods are rare in St. Johns County and often occur Flatwoods intermingled with mesic flatwoods along slightly elevated relict sandbars and dunes. Xeric Hammock Xeric hammock is an advanced successional stageofscruborsandhill.Itdevelopsaslarge treesonsites that have been protected from fire for 30ormore years.Itgenerally occursasisolated patches that rarely cover extensive areas. Mature examples are rare and are prime residential property, especially near the coast. Remaining tractsofxeric hammock require protection from fire and development.W:\19270\48S010600\BackgroundReportFinaJ.wpd December 22, 19992-10 IDENTlFlCAnONAND CLASSIFICAnON f"lJ:;'l::rnrt"rHr'A J ""1"'\"'.,.,....'.,...11":("


3.0 REVIEW OFOTHERCOUNTYORDINANCES A search was conducted to determine those municipalities that have adopted a wetland buffer ordinance. The search consisted primarilyofcounties; however, some cities were included as well. The taskofreviewingcityand county ordinances quickly became an arduous endeavor duetothe endless stacksofregulations that had tobescmtinized for each municipality in order to decipher which buffer requirements were applicabletothis projec1.Due to the numerous municipalities and regulatory documents associated with each, we limitedourreview to coastal counties and to some inland counties that have adopted pertinent buffer requirements. Thirty-nine county and nine city ordinances were reviewed and summarized. These counties and cities are listed below and are summarized in Appendix A.COUNTIESAlachuaBayBrevard Broward Charlotte Collier Dade Dixie Duval Flagler Franklin Gadsden Hemando Hillsborough Indian River Jefferson Lake Lee Leon Levy Manatee Martin Monroe Okaloosa Orange Palm Beach Pasco Pinellas PutnamS1.JohnsS1.Lucie Santa Rosa Sarasota Seminole Taylor Volusia Wakulla WaltonCITIESChattahoochee Clermont Apopka Clearwater Oldsmar PalatkaS1.Augustine Ormond Beach Port OrangeOfthe 39 county ordinances reviewed,13have no adopted buffer requirement between wetlands and development (Table 3.1)butinstead defer to state recommendations which require an averageof25 feet and minimumof15feet to prevent secondary impacts. (This is described in greater detail inSection4.2). A buffer widthof50 feet is frequently mandatedbymanymunicipalities to protect wetlands; however, typically only the most significant or environmentally sensitive water bodies are afforded this levelofprotection (Table 3.1). The two exceptions areGulfandNassau Counties,whichhave adopted a 50-foot buffer to protect all wetlandsinthe county. CurrentlyinSt. Johns County, a 50-foot buffer applies only to the St. Johns River, Matanzas River, Guana River, Tolomato River, and water bodiesorwetlands connected to those named rivers. A smaller bufferof25 feet applies to all other wetlandsinthe county. Similarly, in Brevard County, a 50-foot buffer is stipulated only for Class II waters, OFWs, Aquatic Preserves, and conditionally approved shellfishing waters.Thebuffer width in Brevard County is greater for Class I waters (potable waters) and smaller for Class III waters. Likewise, Manatee County has adopted a 50-foot bufferW:\19270\485010600\Background Report Final.wpdDecember22,19993-1 REVIEWOFCOUNTYORDINANCES


Table3.1SummaryofBufferZoneOrdinancesforVarious Municipalities(SeeAppendixA for amoredetaileddescriptionofwetlandordinances)(Page1of2)Buffer Width (feet) County None, defer Broward, Charlotte, Collier, Dade, Duval, Jefferson, Lee, Levy, Monroe, Palm Beach, to State Pasco, Santa Rosa, Taylor guidelines10St. Lucy (2: 50%ofshoreline must be buffered by feetofbuffer)15Hernando (for lots cleared&platted before8/90)Lake (for isolated wetlands,>for other wetlands) Pinellas (for isolated wetlands&channels,>for other wetlands)20Leon25Brevard (for Class III waters,>forother wetlands) Flagler Gadsden Lake(>for rivers/streams&non-isolated wetlands with variable buffers) Okaloosa Putnam St. J9hns (>for specifically named rivers&their associated wetlands) Volusia(>for OFWs and NRMAs) Walton30Bay Hillsborough (for conservation areas,>for preservation areas) Manatee(>fornamed areas and wetlands contiguoustonamed areas) Sarasota(>forwater bodies)35Alachua(>for OFWs) Dixie(>for Suwannee River)W:\19270\485010600\BackgroundReportFinal.wpd n_ ..... .... ,j 10003-1REVIEWOFCOUNTY ORDINANCES


Table3.1SummaryofBufferZoneOrdinancesforVariousMunicipalities(SeeAppendixA for amoredetaileddescriptionofwetlandordinances)(Page2of2)Buffer Width (feet) County 50 Brevard (for Class II, OFWs, Aquatic Preserves,&conditionally approved shellfish areas; for ClassI)Franklin (> for Critical Shoreline District&Pollution Sensitive Segments)GulfHillsborough (for preservation areas, for non-isolated wetlands) Nassau (average width for all wetlands) Orange (> for Wekiva, Econ, and tributariesofWekiva and Econ) Pinellasfor isolated wetlands, creeks, and channels) St. Johnsfor wetlands not associated with St. Johns River, Matanzas River, Guana River,orTolomato River) Sarasota (between water bodies&development, for nest/den areas) lOa Lake (for rivers and streams using a variable width buffer,

only for Terra Ceia Aquatic Preserve, Sarasota Bay, Little Manatee River, and inflowing watercourses within the Watershed Protection Overlay Districts. A 30-foot,buffl':!js.Ieqllired in Manatee County for all other wetlands that are not contiguous with the above-named water bodies. The majorityofcounties reviewed have designated a buffer width that is less than 50 feet, either as the standard width used for all wetlands or for the less importantorless environmentally sensitive wetlands and associated water bodies.Forinstance, Flagler, Gadsden, Okaloosa, and Putnam Counties mandate a 25-foot buffer for all wetlands (Table 3.1). Alachua County requires a 35-foot buffer for all wetlands exceptOFWs, and Dixie County implements a 35-foot buffer for all wetlands except the Suwannee River. The smallest wetland bufferof10 feetwasfoundinSt. Lucy County; however, many projectsinthis county follow state guidelines and implement a feet for preventing secondary impacts. -_ ...Buffer widths larger than50feet were encountered for several counties. Four couuties specify a 75-foot.bufferwidth,..ins:11!diI!lLAlachua (only-forOFFs), Dixie (only for the Suwannee River), (for specific rivers and associated wetlands), and Martin (for most wetlands; however, a smaller buffer for isolated wetlands and larger buffer for nesting! denning areas). A 150-footbufferis used in Franklin CO.\!lll}'on!y..for the Critical Shoreline District and Pollution Brevard County sanctioned a 200foOtbufferror ali<:TaSsIWater bodies (potable water bodies), and Martin Countyjustrecently aduptedT300::foofbutferfor nesting and denning areas. The largest buffer width encountered was 550 feet, which is Wekiva River and wetlauds associated with the WekivaRiver. Buffer size requirements have typicallybeenestablishedbypolitical acceptability rather than scientific merit. As described above,inthe vast majorityofbuffer ordinances reviewed, the standard buffer width is 50 feet or less, while many counties simply defer to state guidelinesof25feet. A larger bufferof75feet or more is the exception and is afforded only to some water b-;;'dTesbysome counties. In reviewing the vast setofwetland ordinances, very few references were made between scientific studies and buffer width, In Martin County, which most recently adopted a buffer ordinance, the buffer can extend up to 300 feet or the or denofa threatened or In determiiiiiigtlle'appropriate buffer distance necessary to listed species, the ordinance stipulates that the Growth Management Department consult scientific literature such asClosing the Gaps in Florida's Wildlife Conservation System(Cox etai.1994), the Florida Natural Areas InventoryPriority Wetlandsfor Listed Species,and other pertinent guidelines.Additionally, Buffer ZonesforWater, Wetlands,andWildlife in East Central Florida(Brown etal.1990a) was referenced during developmentofthis ordinance and was the basis for adopting the 300-foot buffer. The other county which used scientific literature to establish a buffer width is Orange County. Although not specified directlyinthe ordinance, the buffer width of550 feet for the Wekiva River, wetlands assoCiated with the Wekiva River, and tributariesofthe Econ River is adopted from resultsofAnevaluationofthe applicabilityofupland buffersforthe wetlandsofthe Wekiva Basin,inwhich 536 feet was the width necessarytoprevent harmful effectsofdevelopmentonindividual wetland-dependent animals (Brown and Shaeffer 1987). In manyofthe ordinances reviewed permitted activities are allowed within the buffer zone such as planting native vegetation, repairofpermitted structures, pruning, removalofexotic and nuisance plant species, passive recreation activities (hunting, fishing, swimming), and walking trails.W:\19270\485010600\BackgroundReportFina1.wpd n .. "'.......h .... ?? 10003-3REVIEWOFCOUNTY ORDINANCES


Table4.1DescriptionofBufferAttributesandCorrespondingNumericalScoreasPresentedintheWetlandRapidAssessmentProcedure(WRAP)(MillerandGunsalus1997) Buffer Description Buffer Attributes Numerical Score No adjacent buffer Buffer non-existent 0 Adjacent buffer averages :::;V' Less than 30 feet average widthI30 feet, containing V' Mostly desirable plant species which provide cover, desirable plant species food source, and"roosting areas for wildlife V' Not connected to wildlife corridors V' > 300 feet but dominated (>75%) by invasive exotic or nuisance plant species Adjacent buffer averages V' 30 300 feet average width230 300 feet, containing V' Contains desirable plant species which provide predominately desirable cover, food, and roosting areas for wildlife plant species V' Portions connected with contiguous offsite wetland systems,Wlldlifu...--_.-V' >300 feet but dominated (>75%) by undesirable noninvasive plant species (e.g., pasture grasses) Adjacent buffer averages> V' > 300 feet average width 3 300 feet containing V' Contains predominantly desirable plant species predominantly desirable10%nuisance and no exotic species) for cover, plant species food, and roosting areas for wildlife V' Connected to wildlife corridor or contiguous with off-site wetland system or areas that are large enough to support habitat for large mammals or reptilesW:\19270\4850t0600\BackgroundReportFinat.wpdDecember 22, 1999 4-2REVIEWOFOTHERWETLAND REGULATIONS


Indirectly, buffer zones are also used in WRAP in the evaluation.ofwater quality input and treatment.Inthis category, a surrounding land useofopen space or natural undeveloped area receives the highest numerical scoreof3.0, whereas land use activities such as row crops, improved pasture, roadways, and multifamily residential areas adjacent to a wetland receive a low scoreof1.0. Additionally, land nse activities with stormwater pretreatment facilities receive higher scores than activities that allow stormwater and sediments to flow directly into wetlands. 4.2 STATE REQUIREMENTS Wetlands are regulatedbyDEP and the water management districts under Chapter 62-340, F.A.C. Split agency permitting responsibilities evolved during developmentofthis rule, so that the water management districts review projects pertaining to development.of general residential, commercial, industrial, institutional, and govemmental projects; transportation projects; agricultural/silvicultural projects; and DEP projects. On the other hand,DEPreviews projects relating to solid, domestic, hazardous, and industrial waste; power plants and transmission lines; communication cables and lines; natural gas or petroleum exploration; marinas, ports and navigational dredging; all projects seawardofthe coastal control line; mining except borrow pits; certain single family residences5 acres); high speed rail and magnetic levitation projects; commercial film production; and water management district projects. Buffer zones are generally addressed in the wetland Environmental Resource Permitting (ERP) process for preventing secondary impacts to wetlands.Inthe SJRWMD'sApplicant Handbook; ManagementandStorageof Sl1rface Waters,buffers with a minimum widthof15feet and an average widthof25feet are considered impacts to the habitat adjac!':l!-!..l:Ipland activities (Section 12.2.7). Wider buffer widths can be requiiedifthe wetland supports protected listed species and these species need greater buffer width for nesting, denning,.9.J:.l

4.0 REVIEWOFOTHER WETLAND REGULATIONS Wetlands are regulatedona federal level by the U.S. Army CorpsofEngineers (ACOE), at the state levelbythe DEP and water management districts, andinsome cases, at a county and/or city level. Select county and city ordinances areodescribfd in Section 3.0 and Appendix A. The various levelsoffederal and state wetland regulations as applicable to wetland buffers are summarized in this section.4.1FEDERAL REQUIREMENTSTheACOE regulates wetlands under Section 404ofthe Clean Water Act and regulates navigable waters under Section 10ofthe Rivers and Harbors Actof1899. Section 404 authorizes dischargeofdredgedorfill materialin"watersofthe United States" including wetlands and other special aquatic sites, whereas Section10authorizes workinnavigable waters. Neither Section 404ofthe Clean Water Act nor Section 10ofthe Rivers and Harbors Act regulate uplands. Consequently, buffer areas landwardof wetlands or aquatic habitats are not required nor regulated at the federal -.-. levelbythe ACOE. However, the ACOE has begun addressing upland buffer zones with the Wetland Rapid Assessment Procedure (WRAP) (Miller and Gunsalus 1997). The WRAP establishes a numerical ranking for individual ecological and anthropogenic factors (variables) that can strongly influence the ecological qualityofwetlands. The ACOE has implemented the WRAP methodologytoquantitatively evaluate functions in wetlands, functions that will be loss or altered duetodevelopment activities, and functions that will be enhanced through mitigation. Specifically, the ACOE uses WRAP to evaluate whether mitigation is necessarytooffset wetland impacts, andifso,ifthe proposed mitigation plan will adequately compensate for lossofecological functions and secondary and cumulative impacts incurred by the project. One variable evaluated with WRAP is adjacent upland/wetland buffers. This variable is evaluated based on the adjacent buffer size and sediment removal, nutrient uptake, cover, food source, and area provides forthewetlarid that is being assessed.TI1-e"criterii'fcli:evaIuatillgM adequate buffer size are based on qualityofthe wetland and intensityoftheadjacent land use. The highest numerical scoreof3.0 is assigned to those wetlands that contain a large buffer strip with high benefits to wildlife and natural areas. The lowest numerical scoreof0.0 is assigned to wetlands with no buffer area. A buffer widthof300feet is assumed tobesufficient to protect the wetland from adverse impactsofdevelopment. The width is basedonnumerous technical studies that were summarized by Castelle et al. (1994).Thebuffer requirements and corresponding numerical score used in WRAP are summarized in Table 4.1.W:\19270\4850t0600\Background Report Final.wpd December22,19994-1REVIEW OF OTHER WETLAND REGULAnONS


4.2.1 Conditions Where State Regulatory Buffers Are Not Addressed Buffers with a minimum widthof15feet and an average widthof25feet are recommended during state permitting for many projectsinthe permitting process. However, there are a numberofsituations in which wetland buffers are not addressed or implemented. These so called "loopholes" allow development activitiestooccur right up to the wetland edge. Single-family residences that occur solelyinuplands do not address state buffer recommendations. There are ongoing examplesofthis in81.Johns County near Matanzas Inlet where several lots in coastal strand habitat (an imperiled habitat) have recently been cleared right down to the edgeofthe salt marsh. There is no buffer left between the cleared upland vegetation and salt marsh. Even largerprojectssuch as residential developments, and new agricultural

5.0 REVIEW OF RELATED REPORTS AND STUDIES A literature review was conducted to evaluate ecological studies that focused on buffer and transition zones between uplands and wetlands.Wewere especially interestedinthose studies which are pertinent to Florida. The firsthalfofthis literature review summarizes buffer zone studies that focusedonspecific areas within Florida. These were considered most applicable to developmentofbuffers in St. Johns County as they were conducted in relatively close proximity, they addressed a similar suiteofhabitats and wildlife species, and they provided an analysisofbuffers basedonwater quality, water quantity, and wildlife. The secondhalfofthis literature review summarizes other buffer studies that generally focused on only one wetland parameter (i.e., wildlife, water quality, or draw down). Manyofthese studies occurred outsideofFlorida. 5.1 EAST CENTRAL FLORIDA Perhaps the most noteworthy study conducted on buffer zones in Florida isBufferZortesfor Water, '1 Wetlands and Wildlife in East Central Florida(Brown et al. 1990a). This 'study targeted. Brevard, Lake, Orange,Osceoia,VofuslaCouiii:les. Three goals were identified in this study for determining buffer widths: (1) minimizing impacts from groundwater drawdown, (2) protecting against sedimentation and turbidity, and (3) protecting habitat needsofwetland-dependent wildlife. This study provides a step-by-step procedure so that buffers mightbecalculatedbylandowners with a minimumoftraining within the six county areaofthe East Central Florida Regional Planning Council (ECFRPC). Six landscape associations were identified in the region and include pine flatwoods/isolated wetlands, pine flatwoods/flowing water wetlands, pine flatwoodslharnmocks/ hardwood swamps, sandhill communities/isolated or flowing-water wetlands, pine flatwoods/salt marshes, and coastal hammocks with salt marshes. The buffer zones were developed for each general landscape association. Resultsofthis study suggested that protectionofwetland-dependent wildlife was the driving factorindetermining the appropriate buffer width.Inother words,ifthe buffer zone is wide enough to protect wildlife species; then it is sufficiently wide enough to prevent impacts from groundwater drawdown and sedimentation and turbidity. The recommended buffer width to protect water quality, water quantity, and wildlife in the six county areaofthe ECFRPC ranges and is based on habitat type and habitat quality. A summaryofbuffer widths for East Central Florida is provided on Table 5.1. Sandhill communities that occur between a proposed development andanadjacent wetland require the widest buffer zone because more than halfofthe wildlife species foundinsandhill communities, including listed species, obtain their resources from the ground surface. The hognose snake was the indicator species chosen for sandhill communities, and spatial requirements for this species, basedonaverage distance between captures, was 732 feet. The above study provides specific methodology for calculating buffer distances for protecting groundwater quantity, quality, and wildlife habitat. Such highgroundwater, centerofwetland and center ot:.c.llJ!

Table5.1BufferWidthforeachHabitatintheEastCentralFlorida RegionalPlanningCouncil (Brown et al. 1990a) Habitat QualityofHabitat Buffer Width Salt and Freshwater Marshes High 322 feet Medium 322 feet and revegetate buffer into natural habitat Low as wideaspossible up to 322 feet Cypress and Hardwood High 550 feet Swamps, Hammock, and Medium 550 feet and revegetate buffer into natural Flatwoods habitat Low as wideaspossible upto550 feet Sandhills High 732 feet Medium 732 feet and revegetate buffer into natural habitat Low as wide as possible upto732 feetW:\19270\485010600\Background Report Final.wpdDecember 22. 19995-2 REVIEW OF RELATED REPORTS AND STUDIES


5.2 TOMOKA RlVER AND SPRUCE CREEK A riparian habitat protection study was commissioned by the SJRWMD to address concerns for increased urbanization and associated effects on water quality and habitat for aquatic and wetland dependent wildlife species. The study, conducted by the UniversityofFlorida Center for Wetlands (BrownandOrell1995), researched current literature concerning Riparian Habitat Protection Zonesandtheir applicability to the Tomoka River and Spruce CreekinVolusia County, Florida. The authors assessed the applicabilityofbuffer widths on the Tomoka River and Spruce Creek from the buffers developed in the above mentioned study for the six county area in the ECFRPC (Brown The buffer zone.widthsof20 to 550 feet were applied to the remaining undeveloped portionsofthese two waterways. The authorsrecommended that for protectionofaquatic and wetland-dependent wildlife species, a buffer width between 322 and 550 feet was needed for freshwater riverine systems and 322 feet for salt water (salt marsh) systems. 5.3 ECONLOCKHATCHEE RlVER The SJRWMD contracted with the UniversityofFlorida Center for Wetlands to develop a basinwide management plan for the Econlockhatchee River (Brown etal.1990b). Often referredtoas the "Econ" River, it is locatedinthe eastern portionsofOrange, Seminole, and Osceola counties near the rapidly growing Orlando metropolitan area. As oneofthe few intact riverine systems in central Florida,itswater, wetlands, and wildlife became the focusofintense scrutiny related to how besttoprotect its resources in the faceofstrong development pressure. A fewofthe management strategies that were recommended to protect the resources in the Econ basin included applying buffers or development set-backs to all wetlands within the basin, developing a landscape ordinance that requires the useofplants indigenous to natural communities, restricting removalofunderstory vegetationsothat developed areas will blend into natural areas, providing a contiguous basin preserve that consistsoflarge diverse habitat areas that are connectedbynatural corridors, and developing standards for stormwater control ponds that include the useofnative emergent vegetation, littoral zones, and native vegetation along the shore so that these ponds also serve an ecological function. Numerical buffer zones were not calculated for the Econ River or its associated wetlands. 5.4 WEKlV A RlVER Similartothe East Central Florida buffer study (Brown et al. 1990a), a study was conducted to define buffer zone widths that were sufficienttoprotect water and wildlife resources in the Wekiva River Basin (Brown and Schaefer 1987). Locatedin central Florida, the Wekiva River Basin is a unique natural ecosystem that lies in the zone where tropical and temperate floras overlap. The flowofnumerous artesian springs from the Floridan aquifer, together with groundwater drainage from the surrounding watershed, have created avast networkofstream channels and associated floodplains, lakes, and sinkholes that support extensive areasofhydric and mesic habitats. Four factors were usedtodetermine the widthofbuffer zones to protect the water resourcesinthe Wekiva River Basin and include the SJR WMD jurisdictional wetland line (40C-4 FAC), erodibilityofsoils in the zone immediately uplandofthe jurisdictional wetland line, depthofgroundwater below the soil surface in the zone immediately uplandofthe wetland line, andhabitat requirementsofaquatic and wetland-dependent wildlife species. Equations were provided for calculationofbufferW:\l 9270\4850 1 0600\BackgroundReportFinal. .....-pd December 22. 19995-3RE'vIEWOFRELArED REPORTS AND STUDIES


widths basedonsoil erosion, groundwater draw down, and noise attenuation. For forested habitats, a buffer width feet was recommended as the minimum width necessarytoprevent harmful effectsofdevelopmentonindividual wetland-dependent animals. Orange County adopted a similar buffer width requirement and imposes a 550foot buffer between development and the Wekiva River andit'sassociated wetlands. 5.5 SEMINOLECOUNTYLiteratureonthe structural and functional aspectsoffreshwater wetland ecosystems was reviewed (Brown and Starnes 1983). Methods were also developed for evaluating wetland ecosystems foundinSeminole County and for determining the compatibilityofpossible development activities within each wetland ecosystem. Both the Comprehensive Plan and Land Development Code for Seminole County were reviewed and made consistent with this concern for wetlands protection. Additionally, a reviewoflocal, state, and federal wetlands policy and protection measures were made. Recent literatureonwetlands case law was also reviewed. Basedonall reviews, the means for regulating development in wetland areas andareas adjacent to wetlands were developed. A model Wetlands Development Ordinance for Serninole County was draftedasthe final task. Numerical buffer zones were not calculated for Seminole County wetlands. 5.6 OTHER STUDIESThebenefitsofvegetative buffer strips in preventingorminimizing sedimentation, erosion, and pollution is well documented in riparian communities (Lowrance et al. 1984; Lowrance et al. 1986; Pinay and Decamps 1988) as well as in forestry settings (Borman etal.1968; Riekert et al. 1980; Hollis et. aI1978). Vegetative buffer zones are often examined with regard to vegetation type and minimum width neededtoprotect water quality; however, recommended design criteria for buffer widths are highly variable. Karr and Schlosser (1977), relying on workofTimble and Sartz (1957), suggested a minimum widthofbuffers encounteredin"municipal conditions" as 49to66 feet (15 to 20 m) for lowest (0 to 3 percent) slopes andashigh as 262 feet (80 m) for slopes of60 percent. Erman etal.(1977),innorthern California studies oflogged landscapes with and without streamside buffers, found that buffers were very important in minimizing erosion from logged lands, and that streams with narrow (less than 98 feet) buffers showed effects comparable to streams with no buffers. Furthermore, their research showed that streams with highest diversity indices had buffers greater than 164 feet (50 m) in width. The Florida DivisionofForestry's Silviculture Best Management Practices (BMP) Manual (1979) recommends a Discretionary Zone for land occurring within 300 feetofa watercourse. This 300-foot wide buffer is considered 'the zone most influential to surface water quality. Recommendations are given for varying site sensitivities regarding the intensity levelofactivities, such as road construction, site preparation, and tree harvesting. After reviewing numerous buffer width studies, a buffer widthof300 feet is also suggestedbyCastelle et. al. (1994) for protecting wetland functions.Anadequate buffer width between wetlands and drainage improvement structures is essentialinminimizing water table drawdown in adjacent wetlands. Protecting the hydrology by not lowering the water table to accommodate developmentisprobably the single most important factor affecting adjacent wetlands (Brown and Schaefer 1987). The impactoflowered water tablesonadjacent wetlands is a reductioninhydrologic function, gradual replacementofwetland vegetation with upland species, and consequential lossofhabitat values for aquatic and wetland-dependent wildlifeW:\19270\485010600\Background Report Final.wpd n,...r:emher 22. 1999 5-4 REVIEW OF RELATED REPORTS AND STUDIES


species. The long-term, wide-scale effects0f drainage practices throughout the state have been discussedbyBrown (1986) and are pervasive. Wildlife habitat corridors have been shown tobeimportant for sustaining wildlife populations, and buffer zone width is probably the most important variable affecting wildlife populations (Forman 1983). The maintenanceofstreamside stripsofnative buffer vegetation is an important management tool for maintaining gray squfrrel populations withinpineplantations (McElfresh et al. 1980). Turkeys havebeensuccessfully managed in a mosaicofpoor habitat (short-rotation pine plantations)bymaintaining hardwood and 'mature pine treesintravel corridors. These corridors allowed turkeys to move widely among foraging and roosting areas (Gehrken 1975).Intwo studies conducted in Florida, set-back distances were calculated based on flight distance from human disturbanceon16different speciesofwaterbirds.Inthe first study, Rodgers and Smith (1995) determined that a set-back distance between 207 and 584 feet shouldbeadequate to effectively buffer breeding bird colonies from humaridisturbance. Similarly, Rodgers and Smith (1997) concluded that a buffer between 220 and 413 feet should minimize disturbancetomost speciesofwaterbirds studied.Ina study conducted in maritime forests near St. Johns County on Amelia, Big and Little Talbot, and Ft. George Islands in Nassau and Duval counties,Cox(1988) reported that species richnessofavifauna ",as greaterinlarge hammocks, and several bird species showed a preferenceofeither large or small harmndcks. Species favoring large maritime harmnocks were black and white warbler, ovenbird, northern parula, and summer tanager. small areas were mourning dove, brown-headed, c.owbird, and fish crow. The brown-headed cowbirdis a nest parasite thatreduces the-breeding successofsome area-sensitive species, such as the painted bunting, a prized residentofSt. Johns County. The fish crow is also a potential nest predator. Maritime harmnocks, such as those found in St. Johns County, represent a narrowly distributed plant association that often contains a diverse assemblageofmigratory bird species. Considering the linear, north-south orientationofmaritime hammocks along the coastofnortheastern Florida, the author concluded that it might be importanttodistribute several large protection areas across the limited distributionofmaritime hammock habitattoserveasstepping stones for migratory species moving along a general north-south axis. Several forest interior species are known tobeexcluded when corridor widths fall below a critical level, which is a functionofedge effects and home range requirements (Brown and Schaefer 1987). Sta;;.ffer (1978) reported that bird species richness increased significantly with widthofwooded riparian habitat, where some species were restricted only to the wider strips. With similar results, Tassone (1981) found that interior forest species such as Acadian flycatcher, American redstart, hooded warbler, and Louisiana waterthrush were infrequently found in corridors less than 164 feet (50 m) in width. Hairy and pileated woodpeckers required minimum strip widthsof164to197 feet (50 to 60 m), while the parula warbler required at least 262 feet (80 m).Hesuggested that leave stripsbea minimumof328 feet (100 m)onlarger streams to take advantageoftheir intrinsic wildlife value.InKentucky, Triquet et al. (1990) found that neotropical migrants were more abundant in corridors wider than 328 feet (100 m), whereas riparian areas less than 328 feet wide were inhabited mainlybyresident or short-distance migrants. Similarly, Spackman and Hughes (1995) reported that corridor widthsof492 and 574 feet (150 and175m) were necessary to include 90 to 95 percentofthe bird species, respectively, atmostsites. Kilgoetal. (1998) concluded thatW:\19270\485010600\BackgroundReportFinal.wpd __'\.._")., 10005-5REVIEWOFRELATED REPORTS AND STUDIES


although narrow strips can support an abundant and diverse bird population in bottomland hardwood forests, vegetated buffer zones at least 1,641 feet wide are neceSsary tomaintain the complete avian communityofbottomland hardwood swamps.Whena buffer zone functions as a corridor (i.e., continuously connected to undisturbed native vegetation), it also has the potentialtoconnect a diversityofhabitat typesina landscape, which could provide more wildlife value to a region (Forman and Godron 1981,1986; Weins et al. 1992; Turner et al. 1995). Corridors also can expand the distributionofwide-ranging animals or may provide avenuesofescape from predators (Harris and Scheck 1991; Harrison 1992). Additional benefits canbegained from corridorsbyallowing individualsofsome species, especially large mammals, to range more widely in order to meet their food requirements and to minimize inbreedingbyallowing exposure to more individuals within a given species (Harris 1984, 1985). However, there are some disadvantages associatedwithwildlife corridors which shouldbeconsidered (Simberloff and Cox 1987). Corridors increase the exposureofanimals to humans, domestic animals, and predators (Soule and Simberloff 1986).Ina residential development where domestic cats and dogs are not strictly controlled, wildlife species thatcongregate within corridors can be gfeatly impacted. Wildlife corridors located along highway rights-of-way can also lead to increased incidencesofroad kills (Harris 1985). For riparian systems as wellasother wetland and aquatic systems, recommended design criteria for buffer widths are highly variable. Additionally, few studies other than-ihe-bufrerstl::tilies described ,,'''''''_"".' ,', __ W<' __' .abovefor East Central Floridat13rown etal.1990a), Tomoka and Spruce Creek (Brown and Orell, 1995), and the Wekiva River Basin (Brown and Schaefer 1987) combined water quality buffer width determinationswithbuffer widths necessary to protect wetland-dependent wildlife species.Inthe Florida buffer zone studies described above, Brownetal. (1990a) found that a rangeof322 to 732 feet was necessary to protect wetland-dependent wildlife species. The buffer width dependedonwetland/upland associations and qualityofthe adjacent upland. Protectionofwildlife species was the driving force in selecting the buffer zone width,aswidth to protect wetland-dependent wildlife exceeded the width necessarytoprotect water quality and water quantity. Similarly, Brown and Orell (1995) reported that 322 to 550 feet was necessary to protect wetland-dependent wildlife speciesinfreshwater riverine systemsofTomoka River and Spruce Creek, whereas 322 feet was neededtoprotect wildlife in salt marsh habitats. Again, protectionofwildlife species dictated the required buffer zone width along Tomoka River and Spruce Creek. Likewise, Brown and Shaefer (1987) recommended a 536-foot buffer to protect individual wetland-dependent wildlife species in. forested segmentsofthe Wekiva River. W;\19270\4850 1 0600\BackgroundReportFinal.wpdDecember 22,t999 5-6REVIEWOFRELATED REPORTS AND STUDIES


6.0 REVIEWOFLEGAL IMPLICATIONS 6.1 AUTHORlTY TO ADOPT WETLAND BUFFER ORDINANCE 6.1.1 Local Government Comprehensive Planning and Land Development Regulation Act Florida's Local Government Comprehensive Planning and Land Development Regulation Act! (alsoknownas the Growth Management Act)establishes an integrated planning process designed to promote orderly development and to regulate impacts to environmental resources. The Growth Management Act reqUires that local government comprehensive plansbeconsistent with the goals, objectives and policiesofthe State Comprehensive Plan 2 and the Comprehensive Regional Policy Planofthe relevant Regional Planning Council. The Act also requires that local land development regulationsbeadopted which are consistent with and implement the goals, objectives, and policiesofthelocal government's comprehensive plan.' Florida's State Comprehensive Plan was adopted in 1984 and established broad goals and policieswhichprovide guidance for Comprehensive Regional Policy Plans and local government comprehensive plans. The State Comprehensive Plan includes wetland protection goals and policies within the following elements: Water Resources,4 Coastal and Marine Resources,s Natural Systems and Recreational Lands,6 and Land Use. 7 A related chapterofthe Florida Statutes requires that eachofFlorida's11Regional Planning Councils adopt regional plans that are consistent with the State Comprehensive Plan, and that address goals and policies which are appropriate to the regions coveredbythe regional planning councils.Local Government Comprehensive PlanThe Growth Management Act requires local governmentstoprepare or amend comprehensive plans which address a numberofelements related to the orderly growthofthe local jurisdiction. A localplanmustbeconsistent with the State Comprehensive Plan and the applicable comprehensive. regional policy plan, and must maintain internal consistency among its own elements. The local planning agency is required to evaluate, appraise, and update the local comprehensive plan at leastIFLA.STAT.Chapt. 163, Pt. II (1997).2FLA.STAT.Chapped. 187 (1997).3FLA.STAT.,.3202 (1997).4FLA.STAT.,.201(8)(a), (b)4.,8.,10.(1997).sFLA.STAT.,.201(9)(a), (b)4., 6.,7.(1997).6FLA.STAT.,.201(10)(a), (b)1.,2., 3., 5.,7. (1997).7FLA.STAT.,.201(16)(a), (b)2.,6.(1997).W:\19270\48501 0600\BackgroundReportFinal.wpd ""........m1-..... 1QQQ6-1REVIEWOFLEGAL IMPLICAnONS


once every five years,ina reporttothe local governing body and the Florida DepartmentofCommunity Affairs (DCA). Pursuant to the standards and requirementsofthe Growth Management Act, each local government comprehensive planmustinclude the following elements: capital improvements; future land use; traffic circulation; sanitary sewer, solid waste, drainage, potable water and natural groundwater aquifer recharge; conservation; recreation and open space; housing; intergovernmental coordination; and coastal management,ifapplicable. 8 St. Johns County's adopted comprehensive plan 9 includes many goals, objectives, and policies directed to the conservation and protectionofwetland resources. Within the Land Use Element, PolicyA.l.7.3 requires the county's land development regulationstoinclude provisions that "protect environmentally sensitive land from the impactsofdevelopment to assure their conservation, and to ensure their availability for future generations."tO Policy A.1.7.13 states that, at a minimum, the county's land development regulations must contain provisions for protectionofenvironmentally sensitive lands and regulationofareas subject to seasonal and periodic flooding.11Similarly, Policy A.l.l.o.3 requires the county to offer a residential density bonus for protectionofuplands adjacent to wetlands under the provisionsofthe Optional Density Factor bonus system.12Within the Coastal/Conservation Management Element, Policy G.l.5.3 states that the county "shall protect or enhance Coastal Area water quality, for wildlife propagation, fishing, shellfishing, recreations, navigation and other related activities, and shall improve ClassIIand Classillwatersbyrequiring new development to meet the standards and requirementsofthe county's environmentally sensitive lands land development regulations to be adopted pursuant to Policy G.2.2.2."13 Similarly, ObjectiveG.2.2 (Floodplains, Wetlands and Upland Communities and Surface Water) states that the county "shall protect floodplains, wetlands, forests, and surface waters within the county from development impactstoprovide for maintenanceofenvironmental quality and wildlife habitats."14 Policy G.2.2.2 requires the county to "protect environmentally sensitive lands or areas through the adoptionofland development regulations which, as necessaryorappropriate, address the alternative typesofprotection needed by the typeofenvironmentally sensitive land or area addressed by the8FLA.STAT.,.3177 (1997).9ST .JOHNSCOUNTYCOMPREHENSIVEPLAN1990-2005 (as amended through August 28, 1998) AA-15. 13policyG.1.5.3;id.atGG-I0.140bjective G.2.2; GG-19.W:\19270\48S0t0600\BackgroundReportFinal.wpdDecember 22. 1999 6-2 REVIEWOFLEGAL lMPLICAnONS


particular land development regulation."" For wetlands, estuaries, and OFWs, such land development regulations must establish buffers between those areas and upland development and must address any additional drainage requirements or standards to maintain natural hydroperiods and other conditions as mayberequiredbythe type arid natureofthe wetland or waterbody.16Many threatened and endangered species are dependentonwetland habitats at critical points in their life cycles. Objective G.2.6ofthe Comprehensive Plan states that the county "shall protect habitatsofpopulationsofexisting threatened and endangered species."17 Policy G.2.2.2 requires the developmentofland development regulations which include standards and procedures for the protection or acquisitionofspecific habitat areas which havebeenidentified as necessary for the supportofan existing threatenedorendangered species population.18Similarly, Policy G.2.2.8 requires the county to provide technical supporttothe FGFWC and the SJRWMDininventorying, assessing, and mappingofexisting fish and wildlife habitat and significant upland communities. Within one yearofthe completionofthe inventories, the county must amend its Comprehensive Plan to incorporatetheidentified areas and implement suggested protective measures.19Concurrently with the inventories provided for in Policy G.2.2.8, the county must identifY environmentally sensitive lands and must amend the Comprehensive Plan as necessarytodesignate these areas-for Inaddition to pursuing the acquisitionofthese areas through state and local funding mechanisms,21 the county is requiredtoprotect such areas through application and enforcementofthe land development regulations outlined in Objective G.2.2 and supporting policies. 2 'AdoptionofLand Development RegulationsThe Growth ManagementActrequires that within one yearofthe date it submits its comprehensive plan for review by the DCA, a local government must adopt or amend and enforce land development regulations that are consistent with and implement the comprehensive plan.'3 Thus, the goals, "Policy G.2.2.2; GG-20. 170bjective G.2.6;id.atGG-27. 18policy G.2.2.2; GG-20. 19policy G.2.2.8; GG-21. 2Opolicy G.2.5.1; GG-26. 2lpolicy G.2.5.2;id.22policy G.2.5.3;id.23FLA.STAT.,.3202 (1997).W:\19270\485010600\BackgroundReportFina1.wpdDecember 22. 19996-3REVIEW OF LEGAL IMPLICAnONS


. objectives, and policiesofthe St. JohnsCountyComprehensive Plan,asrelated to wetlands and environmentally sensitive lands, provide tlle basis for adoptionofa wetland buffer ordinance. The Act requires tl1at any existing developmentregulation which is not consistent witl1 the plan mustbeamended tobeconsistent. During anyinterim period, inwhichunamended regulations remain inconsistentwiththe adopted comprehensive plan, theplanitselfwill govern any action taken in regard to an application for a development order. The regulations must be specific and at a minimum must do the following:oRegulate the subdivisionofland. Regulate useofland and water for tl10se categoriesofland use i.ncluded in the land use element; ensure compatibilityofadjacent uses and provide for open space.oProtect potable water wellfields. Regulate areas subject to seasonal and periodic flooding and provide for drainage and stormwater management.oEnsure protectionofenvironmentally sensitive lands designatedinthe comprehensive plan.oRegulate sigoage. Provide that public facilities and services meet ilie standardsof tl1e capital improvements element and are availablewhenneeded,orthat development orders and permits are conditionedonthe availabilityoffacilities to serve the proposed development. Local governments are not allowed to issue a development orderorpermit which results in a reductioninthe levelofservices for the affected public facilities below the levelofservices provided in the local comprehensive plan.oEnsure safe traffic flow, considering needed parking.24After its review and consultation process,if ilie DCAdetermines that a local government has not adoptedoramended the required land development regulations, it may file suit in circuit court to require adoptionof tl1e regulations.2SThe wetland buffer zone ordinance that is the subj ectofthisproject will serve to satisfy tl1e requirementsofthis provisionofthe Growtl1 Management Act. 6.1.2 Police Power Local government authority to regulate land use and development for environmental purposes is derived from the police power, tl1e term given to tl1e general governmental power to protect the healtl1, safety, morals, and general welfareofcitizens witlrin a jurisdiction.26Florida has delegated this power to local governments through its constitution.Therangeofpurposes addressedbythe 2SFLA. STAT.,.3202 (4) (1997)' 26VillageofEuclid v. Ambler Realty Co., 272 U.S. 365 (1926); Nollan v. California Coastal Comrn'n, 483 U.S. 825, 843 (1987) (Brennan, J., dissenting)(citingAgins v. Tiburon,447U.S. 255 (1980);PennCentral Transp. Co. v. New York City, 438 U.S. 104(1978.W:\19270\485010600\BackgroundReportFinal.wpdDecember22,199964REVIEWOFLEGAL IMPLICATIONS


policepoweris broad, and land use regulations have been consistently recognized as appropriate exercisesofthepower.27Whenthe police power is usedinawaydesigned to protect the natural environment, the test is notwhetherthere is a clear and present danger to the environment which justifies the regulation, but whether the local government could have reasonably determined that the legislation is necessary or desirable for its intended purpose. Thus, a buffer zone ordinance to control water quality and stormwaterrunofforprotect wildlife habitatwouldberationally related tothepublic health or welfare.Asexpressedinone Supreme Court decision: The conceptofthe public welfare is broad and inclusive.Thevalues it represents are spiritualaswellasphysical, aestheticaswellasmonetary.Itis within the powerofthe legislaturetodetermine that the community shouldbebeautifulaswellashealthy, spaciousaswellasclean, well-balancedaswellascarefully patrolled.286.2 POTENTIAL LIMITATIONSONESTABLISHMENTOFWETLAND BUFFER ZONE ORDINANCEThoughthe police power is wide-ranging, certainproVIsIOnsoftheFifthand Fourteenth Amendments to the U.S. Constitution place limitsongovernmental useofthe police power. These provisions include those prohibiting the takingofprivate property for public use withoutjustcompensation;29 prohibiting the deprivationoflife, liberty or property without due process;30 and guaranteeing all people the equal protectionofthe laws.31Generally, a landuseregulation reflecting exerciseofthe police powermayonlybe for means which are reasonably related to those purposes, andilla manner that does normIpose exceSSIvecostsoncitizens.326.2.1DueProcess The due process clausesoftheFifth and Fourteenth Amendments to the U.S. Constitution prohibit governmental entities from depriving a landownerofproperty "withoutdueprocessoflaw.,,3327VillageofEuclid v. Ambler Realty Co., 272 U.S. 365 (1926). 28Berman v. Parker, 348 U.S.26,32-33(1954). CaNST.amend. V, cl. 4 (made applicable to the states by wayofthedueprocess clauseofthe Fourteenth Amendment). 3OU.S. CaNST.amend. V, cl. 3; amend.XN,sec.1.3IU.S.CaNST.amend.XN,sec.1.32See,Lawton v. Steele, 152 U.S. 133, 137 (1894) ( ...[1]tmust appear, first,thatthe interestsofthe public ... require [governmental] interference; and, second, that the meansarereasonably necessary for the accomplishmentofthe purpose, and not unduly oppressiveuponindividuals.)33U.S.CaNST.amends. V andXN.W:\19270\485010600\BackgroundReportFinal.wpdDecember 22, 19996-5REVIEW OFLEGALIMPLICATrONS


Generally, due process includes considerationofthe closely related conceptsof"procedural due process" and "substantive due process. Procedural due processmustbefollowed when an individual is deprivedofa recognized property interest as a resultof"stateaction.,,34Actionsoflocal governments are state action.35In local land use matters, "procedural due process"isnot required for legislative action such as the adoption of policies or ordinances that affect a large groupofcitizens.36However, counties must observe the requirementsofSec. 125.66,FLA.STAT.,relative to the process for enactinganordinance. Procedural due process does require that the applicationofan ordinanceorregulation, including a rezoning,37 provide notification to landownersofproposed action. The applicationofordinances must also provide landowners possessing an applicable property interest the opportunitytoaddress the local decision making body in a fairly conducted public hearing.38The more severe the potential deprivation, the more formal mustbethe procedures.39The structuringofthe proposed buffer zone ordinancemustaddress these procedural requirements. In general terms, "substantive due process" requires considerationofthe reasonablenessofa reguiatio ll As interpr&edbythe coiiri;,this is a three-part analysis. mustbefor (1) a valiap;;blic purpose, (2) using means which are reasonably related to those purposes, and (3) which are not unduly oppressiveonindividuals.40Failure to meet one or moreofthese standards may leave the local government open to a charge that the regulation is invalidasanarbitrary and capricious exerciseofpower. Courts normally defer to legislative determinationsofreasonableness, and begin with a presumption that all legislative enactments are valid!t Ifthe meansofregulation chosenbythe government is "fairly debatable," the enactment will ordinarily stand. Analysisofthe third factor, whether the applicationofan ordinance is unduly oppressive on individuals, is generally the same as that used for determining whether there has been an unconstitutional "taking," discussed infra. 6.2.2 Equal Protect jon 34BoardofRegents v. Roth, 408 U.S.564,569(1972). 35Edmondsonv.Jordon, 415 U.S. 651 (1974). 36Bi-MetallicInv. Co.v.BoardofEqualization, 239 U.S. 441 (1915).37CityofGainesville v.GNVInvestments, Inc., 413 So.2d 770 (Fla. 151DCA1982). 38Irvinev.Duval County Planning Commission, 504 So.2d 1265 (Fla. 1"DCA1986). 39Littley.Streater, 452 U.S. 1 (1981).40See,Lawtonv.Steele, 152 U.S. 133, 137 (1894);seealso, Kaiser Development Co. v.City&CountyofHonolulu, 649 F. Supp. 926, 943(D.Hawaii 1986), citing Williamsonv.Lee -Optical; 348 U.S. 483, 487-88 (1955),aff'd.898 F.2d 112(9thCir. 1990). 4tParking Facilities, Inc.v.CityofMiami Beach,88So.2d141(Fla. 1956).W:\19270\485010600\BackgroundReportFina1.wpd n"l" ... rTIhpr77 1 QQQ 6-6REVIEWOFLEGAL IMPLICATIONS


Theequal protection clauseofthe Fourteenth Amendment provides that"Nostate shall... denytoany person within its jurisdiction the equal protectionofthe laws.''''' Ifa regulation is allegedtoimpact a landowner becauseofrace, or other suspect class, orifa fundamental right is involved, the landowner may bring a "facial challenge"tothe regulation. Courts will strictly scrutinize whether the regulation is necessary to promote a compelling state interestY The remedy for a facial challenge isaninjunctiononthe enforcementoftheregulation.44Ifthe claim does not involve race, suspect class or a fundamental right, the courts will ask whether there is a rational relationship between the classification and a legitimate governmental objective.45This is essentially thesame test as applied in the areaofsubstantive due process. The remedy for this typeof"as applied" claim is an injunction against the unconstitutional applicationofthe regulation. Generally, in the contextoflocallanduse regulation, this requires that landowners who are similarly situated mustbesimilarly treated.466.2.3 TakingsGenerallyGovernmental regulationofland use, including the establishmentofbuffer zones, must address issues related to the takings clauseoftheU.S. and Florida Constitutions. The Fifth Amendment to the U.S. Constitution, appliedtostate and local governments through the Fourteenth Amendment, prohibits the government from taking private propertywithoutjustcompensation.47This provision is manifestly applicable to cases in which the government exercises its powerofeminent domain to take property for a public purpose.Itis also applicable in casesof"inverse condemnation," when government physically occupies land or imposes regulations which constitute a permanent physical invasionofthe land.48"Seealso,Article I, ,FLA.CONST.("All natural persons are equal before the law.").43Eidev. Sarasota County, 908 F.2d716,722(11thCir.1990).44ld.46See,Executive 100, Inc.v.Martin County, 922 F.2d 1536, 1541 (11thCir. 1991),cert. den.112 S.C!. 55 (landowners brought equal protection challenge, alleging that defendants treated them differently from other similarly situated landowners along an interstate, without any reasonable basis).47U.s.CONST.amend V. ("[N]or shall private propertybetaken for public use, without just compensation.").See also,Art. X, 6(a),FLA.CONST.("No private property shallbetaken except for a public purpose and with full compensation therefor .... ").48See,eg.,First English Evangelical Lutheran Churchv.CountyofLesAngeles, 482 U.S. 304 (1987); Lucasv.South Carolina Coastal Council, 505 U.S. 1003, 1028-29 (1992).W:\19270\48S0t0600\Background Report Final.wpd .... .,., 10006-7REVIEW OF LEGAL lMPUCAnONS


Thetakings clause is also potentially applicable when governmental regulationofprivate property has the effectofsignificantly restricting an owner's exerciseofthe "bundleofrights" that comprise property ownership. As expressedbyJustice HolmesinPennsylvania CoalCo.v.Mahon,"while propertymayberegulated to a certain extent,ifregulation goes too far it willberecognized as a taking."49TheSupreme Court hasnotdeveloped a clear approach to this analysis, emphasizing instead that the question requires a casebycase balancingofpublic and private interests. This was first expressedinPenn Central Transportation Co.v.New York City,sowhenPenn Centra! challengedNewYorkCity'slandmark preservation law. Under this law, the CityofNewYork designated Grand Central Terminal as a landmark. As a result, Penn Central could not make any changes to the exteriorofthe terminal without prior approvalofa Landmarks Preservation Commission.PennCentral proposed alternative plans to build either a fifty-three storyora fifty-five story additionontopofthe terminal.TheCommission rejected both plansonthe basis that they would aesthetically degrade the landmark,andPennCentral challengedthelawas a taking.SITheSupreme Court, rejecting the challenge to the law, stated thatitwould not put forth a"setformula" for determining takings,butwouldinstead "engage in essentially ad hoc, factual inquiries."s2 The court identified a numberoffactors that are relevantindetermining whether a regulation is a taking, including: (1) the characterofthe government action, (2) the economic impactoftheregulation, and(3)the extent to which the action interferes with investment-backed expectations.53Applying these factors, the Court upheld the ordinance, noting that Penn Central could still use the property for its original purpose and that a reasonable return was availableonthe land.54Itdid not however,clarifyhowthe factors relate to each other. Though it appeared to givemoreweight to the degreeofinterferencewithinvestment-backed expectations, the Courtdidnotclarifywhatthat term meansorhowitshouldbeapplied.Inrecent years, certain SupremeCourtdecisions seem to have expanded takings claimsinlandusecontexts. A careful reading ofthe decisions indicates that they have limited application to the issuesina takings analysis;5S onlyoneofthecases addressed the typical regulatory takings issue. 49pennsylvania Coal Co. v. Mahon, 260U.s.393, 415 (1922). 50Penn Central Transportation Co. v. CityofNewYork, 438 U.S. 104 (1978) 136.S5Therelevant finding in the 1987 caseofFirst English Evangelical Lutheran ChurchofGlendale v. CountyofLos Angeles, 482 U.S.304(1987), is thatincases where a taking is found,justcompensation is required for the time between the adoptionofa regulation and the final determination that a taking occurs. Prior to this case,iflandowners successfully challenged aW:\19270\48S010600\BackgroundReportFinat.wpdDecember22.19996-8REVIEWOFLEGALIMPUCA TIONS


Themost pertinent recent SupremeCourtcase addressing the regulatory takings issue is the 1992 decisionofLucasv.South Carolina Coastal Council.56The plaintifflandowner had bought two beachfront lots and, consistent with laws applicable at the time, planned to build single-family homes. Subsequently, South Carolina adopted legislation intended to protect sensitive areas along the coast. The effectofthe legislation wastoprohibit the constructionofany permanent habitable structure on theplaintiffsland.57The trial court found that, as a result, the property was made "valueless," and that a taking had occurred.mreversing, the South Carolina Supreme Court held that even in cases. with great economic impact a taking would notbefoundifthe law was enacted "to prevent serious publicharm.,,58regulation, they were usually limited to invalidating the restriction, and could obtain compensation onlyifthe goverrunent failed to repeal its regulation. The Court held thatifa regulation was eventually found tobea taking,justcompensation was required for the period from enactment to repeal. Another 1987 Supreme Court case, Nollan v. CalifomiaCoastal Commission,383U.S. 825 (1987), dealt with the questionofwhether a taking occurs when development approval is conditioned on a landowner first providing a dedicationofland, where that dedication is umelated-tothe impactsofthe development. When coastal landowners requested a permit to demolish one house and build another, the permit that was granted was conditionedona dedicationoftheir land between the high tide line and the seawall. The Court held that there mustbean "essential nexus" between the dedication and the state interest that would initially justify the denialofthe permit. The state's expressed concern was that a larger house would interfere with visual access to the beach for peopleonthe road and create a psychological barrier to using the beach. TheCourtfound no nexus between these concerns and the required easement:"Itis quite impossibletounderstand how a requirement that people alreadyonthe public beaches be able to walk across the Nollans' property reduces any obstaclestoviewing the beach createdbythe new house." 383 U.S. at 838.mDolanv.CityofTigard, 512 U.S. 374 (1994), the Court added that there had tobe"rough proportionality" between the required exaction and the negative impactsofa development.Irithis case, the landowner requested a permit to greatly increasethesizeofa store and add a paved parking lot. The planning commission granted thepermit but required thattheowner dedicate partofthepropertyasa greenway within the city's floodplain and that she dedicate a 15-foot stripoflandnexttothe floodplain as a path for pedestrians and bicycles.TheCourt invalidated the dedications as not meeting a testof''rough proportionality." The essential lessonofNollanand Dolan is that exactions mustbesomewhat closely related to the impactsofa development.565D5U.S. 1003 (1992).57[ 1008-09.58Lucasv.South Carolina Coastal Council, 304 S.C.376,383,404S.E.2d 895, 899 (1991).W:\19270\48501 0600\BackgroundReportFinal.wpd ......... -_ .....,,,,.,,, 6-9REVIEWOF LEGAL IMPLICATIONS


In reversing the state Supreme Court, the U.S. Supreme Court held that a land use regulation that deprives an ownerofall "economically viable" useofthe land is ataking,59but also recognized a fairly narrow common law nuisance exception to this standard.6oTheLucasdecision affirmed that in deciding taking cases, the Court engages in "ad hoc, factual inquiries," but the decision also recognized two typesofcategorical takings. Oneiswhen the government "physically invades" or requires that a memberofthe publicbeallowed to enter the property. In these cases a taking will almost always be found, "no matter how minute the intrusion, and no matter how weighty the public purpose behind it.,,61The second typeofcategorical taking is "where regulation denies all economically beneficialorproductive useofland."62A lossofall economic viability cannotbesupported by simply asserting important public interests, but can be justified only where the regulation is aimed at preventing a cornmon law nuisance.63The Court noted that most casesofthis type do not result in a lossofall economic viability.64 TheLucasdecision provided little guidance for situationsinwhich land use regulations simply reduce the economic viabilityofa property, other than affirming that they couldbeanalyzed and found to be takings under anad hoc balancing approach. Economic impact on the landowner and the extentofinterference with "distinct investment-backed expectations" are relevant to this analysis,65 but the analysis must include considerationofthe public interest servedbythe regulation.66The decision stated that where a regulation reduces but does not eliminate land value, the Court will assume that governmentis"adjusting the benefits and burdensofeconomic a manner that secures an 'average reciprocityofadvantage' everyone concemed.,,67 Thus, the Court affirmed the position that a diminutioninvalue does not necessarily require compensation, and that its significance must be evaluated in the contextofother factors.AdHoc Factual InquiryIn making its"adhoc" inquiry, the Supreme Court has identified three factorsofparticular importance in determining whether government action works a taking: (1) the characterofthe59S0SU.S. 1003, 1019 (1992).60S0SU.S. at lOIS.See also.Lorettov.Teleprompter Manhattan CATV Corp.,4S8U.S. 419, (1982) 62S0SU.S. at 1019 1017-18 (quoting Penn Central Transportation Co.v.New York City, 438 U.S. at 124, and Pennsylvania Coal Co. v. Mahon, 260 U.S. at 4IS).W:\19270\485010600\BackgroundReportFinal.wpdDecember22,19996-10REVIEW OF LEGALIMPUCAnONS


government action; (2) the economic impactoftheregulation; and (3) the extent to which the action interferes with reasonable investment-backed expectations.68Ifthe government's action canbecharacterized as a physical invasionoftheproperty, a court willbemore likelytofmd a taking.69Ifthe action canbecharacterizedaseliminating substantial rights held in property, such as the right to possess, use, and disposeofthe property, and the right to exclude others, courts may also be more likely to find a taking.70The Court determines the economic impactofa regulationbycomparing the valueofthe property before and after the regulation's interference with the property.7I However, the fact that property value is diminished as a resultofgovernment regulation does not necessarily amount to a compensable taking.72The denialofa development permit may create a takingifthe effectofthe denial is to prevent all economically viable useofthe land in question.73Where regulations restrict or prohibit the destructionofwetlandsona site, the existenceofdevelopable uplands within the parcel may provide enough economic value to defeat a takings claim.74In analyzing whether a regulation effects a taking, courts will also consider the impactofthe actiononthe property owner's reasonable investment-backed expectations.75Reasonable investment backed expectation analysis looks at what property rights, both economic and non-economic, the regulation takes away. InPenn Central,76the Court held that because a New York City landmark law did not interfere with current usesofthe parcel and allowed a reasonable returnonthe original investment made in the property, the law did not interfere with plaintiff's investment-backed expectations. The Court inPennCentralnoted that the law would still allow the landowners to use the property as it had been used for over sixty years, and that Penn Central would still be able to obtain a "reasonable return" on its investment. The decision also noted that the regulation's stated rationale68PennCentral Transportation Co.v.CityofNew York, 438 U.S. 104, 124 (1978).69Lorettov. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982). WWveladies Harbor, Inc.v.United States,15C1.Ct. 381, 391 (1988). 7IKeystone Bituminous Coal Ass'nv. 480 U.S. 470, 497 (1987).72PennCentral Transportation Co.v.CityofNewYork, 438 U.S. 104 (1978).73SeeUnited Statesv.Riverside Bayview Homes, Inc., 474 U.S.121(1985); Bowlesv.United States,31C1.Ct.37, 48-51 (1994); Florida Rock Indus.v.United States,18F.3d 1560 (Fed.Cir.1994).74SeeDeltona Corp.v.United States, 657 F.2d 1184, 1192 (Ct.C1.1981).75438 U.S. at 124.76438 U.S. 104.W:\19270\485010600\BackgroundReportFinat.wpdDecember 22, 19996-1I REVIEW OF LEGAL IMPLICA TrONS


wouldbenefit the ownersofthe terminal in that it "benefit[s] all New York citizens and all structures, both economically andbyimproving the qualityoflife in the city as a whole." Oneofthe most cited Florida casesonregulatory takings isGrahamv.Estuary Properties.77InEstuary Properties,a development company owned 6,500 acresofcoastal land which included extensive wetlands and mangrovesinbetween the developable portionofthe land and various bays and inlets. The company requested a permittoclear the mangroves and build a canal, and wanted to place the fill in low areas to increase the amountofdevelopable land. The BoardofCounty Commissioners denied the permit, and the company filed suitonthe basis that the permit denial constituted a taking without just compensation.78Inanalyzing the case, the Florida Supreme Court looked at several factors: (1) whether there was a physical invasionofthe property; (2) whether the regulation precluded all economically reasonable useofthe property; (3) whether the government action conferred a public benefit or prevented a public harm; (4) whether the government action promoted the health, safety, welfare,ormoralsofthe public; (5) whether the regulation was arbitrarily or capriciously applied to the property; and (6) the extenttowhich the regulation curtailed investment-backed expectations.79TheEstuary Propertiesdecisionwasnot decidedonthe fourthorfifth factors, but on a Fifth Amendment takings claim for just compensation basedonthe other factors.8oThe first factor usedbythe court considered whether the government physically invaded the developer's property. No actual physical invasion was involved,butthe company attempted to argue that denying the dredge and fill permit and maintaining the mangroves for recreational fishing was essentially a physical occupation.81Italso argued thatifthe denialofthe dredge and fill permit conferred a benefit to the public, it was similar to an exerciseofeminent domain requiring compensation. Addressing the third factor, the court noted that the actofregulating property simplytoachieve a public benefit can be a taking, but that the line between the preventionofa public harm and the creationofa public benefit is not clear.82Itagreed that preventing the ofthe mangroves could be seen as conferring a benefitonthe public because the filtration provided by a mangrove ecosystem helps maintain the qualityofwater in thewaterways.83However, this was a maintenanceofthe status quo which did not create a new public benefit or enhance the existing positionofthe77399So. 2d.l374 (Fla. 1981) 1379.W:\19270\485010600\BackgroundReportFinal.wpd 6-12 REVIEW OFLEGALIMPLICATIONS


public.84Thus, the court determined that the permit and was a valid exerciseofthe police power as opposed to a physical invasion.8sInexamining the second factor, whether the governmental action precluded all economically reasonable useofthe property, the court noted that when government action makes property useless, the owner must receive compensation equivalent to that he would receiveiftheproperty were takenbyeminent domain.86Here,thedeveloper attempted to argue that denialofthedredge and fill permitmadetheproj ect impracticable,andthat there was no remaining economically feasible useoftheproperty.87 The court noted that property owners are not necessarily entitled to the highest andbestuseofthe propertyifthat use creates a public harm.88Italsonotedthat a landowner does nothaveanabsolute right to change the natural purposeofthe change isnotappropriate to the natural stateof thf

Inreversing the state Supreme Court, the U.S. Supreme Court held that a land use regulation that deprives an ownerofall "economically viable" useofthe land is ataking,59but also recognized a fairly narrow cornmon law nuisance exception to this standard.60TheLucasdecision affirmed that in deciding taking cases, the Court engages in"adhoc, factual inquiries," but the decision also recognized two typesofcategorical takings. Oneiswhen the government "physically invades" or requires that a memberofthe publicbeallowed to enter the property.Inthese cases a taking will ahnost always be found, "no matter how minute the intrusion, and no matter how weighty the public purpose behindit.,,61The second typeofcategorical taking is "where regulation denies all economically beneficialorproductive useofland.,,62A lossofall economic viability cannotbesupported by simply asserting important public interests, but can be justified only where the regulation is aimed at preventing a common law nuisance.63The Court noted that most casesofthis type do not result in a lossofall economic viability.64 TheLucasdecision provided little guidance for situationsinwhich land use regulations simply reduce the economic viabilityofa property, other than affirming that they couldbeanalyzed and foundtobe takings under an ad hoc balancing approach. Economic impact on the landowner and the extentofinterference with "distinct investment-backed expectations" are relevant to this analysis,65 but the analysis must include considerationofthe public interest served by the regulation.66The decision stated thatwhere a regulation reduces but does not eliminate land value, the Courtwillassume that government is "adjusting the benefits and burdensofeconomic a manner that secures an 'average reciprocityofadvantage' everyone concerned.,,67 Thus, the Court affirmed the position that a diminutioninvalue does not necessarily require compensation, and that its significance must be evaluatedinthe contextofother factors.AdHoc Factual InquiryInmaking its "ad hoc" inquiry, the Supreme Court has identified three factorsofparticular importance in determining whether government action works a taking: (1) the characterofthe59505 U.S. 1003,1019 (1992).60505 U.S. at 1015.See also,Lorettov.Teleprompter Manhattan CATV Corp., 458 U.S. 419, (1982).62505 U.S. at 1019 1017-18 (quoting Penn Central Transportation Co.v.New York City, 438 U.S. at 124, and Pennsylvania Coal Co. v. Mahon, 260 U.S. at 415).W:\19270\485010600\BackgroundReportFinal.wpdDecember 22,19996-10REVIEWOFLEGAL lMPUCATIONS


government action; (2) the economic impactoftheregulation; and (3) the extent to which the action interferes with reasonable investment-backed expectations.68Ifthegovernment's action canbecharacterized as a physical invasionofthe property, a court willbemore likelytofind a taking.69Ifthe action canbecharacterized as eliminating substantial rights heldinproperty, such as the right to possess, use, and disposeofthe property, and the right to exclude others, courts may alsobemore likely to find a taking.70The Court determines the economic impactofa regulationbycomparing the valueofthe property before and after the regulation's interference with the property.71 However, the fact that property value is diminished as a resultofgovernment regulation does not necessarily amount to a compensable taking.72The denialofa development permit may create a takingifthe effectofthe denial is to prevent all economically viable useofthe landinquestion.73Where regulations restrictorprohibit the destructionofwetlands on a site, the existenceofdevelopable uplands within the parcelmayprovide enough economic value to defeat a takings claim.74In analyzing whether a regulation effects a taking, courts will also consider the impactofthe actiononthe property owner's reasonable investment-backed expectations.75Reasonable investment backed expectation analysis looks at what property rights, both economic and non-economic, the regulation takes away. InPenn Central,76theCourtheld that because aNewYork City landmark law did not interfere with current usesoftheparcel and allowed a reasonable returnonthe original investment made in the property, the law did not interfere with plaintiffs investment-backed expectations. The Court inPenn Centralnoted that the law would still allow the landowners to use the property as it had been used for over sixty years, and that Penn Central would stillbeable to obtain a "reasonable return" on its investment. The decision also noted that the regulation's stated rationale68PennCentral Transportation Co. v. CityofNewYork, 438 U.S. 104, 124 (1978). 69Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982). 70[.0veladies Harbor, Inc.v.United States,15Cl.Ct. 381, 391 (1988). 71Keystone Bituminous Coal Ass'nv.DeBenedictis, 480 U.S.470,497(1987).72PennCentral Transportation Co.v.CityofNew York, 438U.s.104 (1978).73SeeUnited States v. Riverside Bayview Homes, Inc., 474 U.S.121(1985); Bowlesv.United States, 31 Cl.Ct. 37, 48-51 (1994); Florida Rock Indus.v.United States, 18 F.3d 1560 (Fed.Cir.1994).74SeeDeltona Corp.v.United States, 657 F.2d 1184, 1192 (Ct.C1.1981).75438 U.S. at 124.76438 U.S. 104.W:\19270\485010600\BackgrouodReportFina1.wpdDecember 22. 19996-11REVIEW OF LEGAL IMFLlCAnONS


The Federal Circuit has held that a taking may occur even when a regulation prohibits the landowner from less than all economically beneficial use.InFlorida Rock Industries,Inc.v.UnitedStates,95a corporation purchased a 1,560-acre parcelofwetlandswiththe intentofminingitfor limestone, and destroying the surface wetlands in the process.96After the purchase but before mining had begun, the AnnyCorpsofEngineers promulgated regulations requiring ownersofwetlands to obtain section 404 Clean WaterActpermits before dredgingorfilling. The corporation was denied a permittomine ninety-eightofthe 1,560 acreson the basisofanticipated damage to the wetlands, and it filed suit allegingthatthe permit denial was an uncompensated regulatory taking.97The court took noteofthePenn Centraltest, balancing the economic impactofthe regulationonthe claimant, the extent to which the regulation interferes with the claimant's investment-backed expectations, and the characterofthegovermnent's action. However, it ruled thatifa regulation has an effect which is equivalent to a permanent physical occupation, it amountstoa compensable taking.98Regulations that prohibit less than all economically beneficial useofland and result in only a partial deprivationofvalue may not satisfy the categorical taking test.99The court looked at when a partial reduction in value resultsina compensable taking under the Fifth ArnendmentlOOby asking what percentageofa property's economic use must be destroyedbya regulation before a compensable taking occurs and how to determine that percentage. The court concentratedonwhether the govermnent acted in a responsible way by "limiting the constraintsonproperty ownership to those necessary to achieve the public purpose, and not allocating to some numberofindividuals, less than all, a burden that shouldbeborne by all."101The test focusedonthe owner's lossofeconomic useofthe property resulting from the regulation andifthe owner received compensating benefits from the regulation.102There was also considerationofwhether other economically realistic uses for the property remained available.Therecord did not clearly establish that the corporation was deprivedofall economicuseofits land.l03Inordertodetermine whether the deprivation was sufficient to effect a taking, the court9518F.3d 1560 (Fed. Cir. 1994) 1570.97Id. 1572-73.W:\19270\485010600\Background Report Final.wpdn............J.......,., lQQQ6REVIEWOFLEGAL rMPLICA nONS


remanded the case to find the valueofthe land after impositionofthe regulation. Thus, the decision indicates that even in cases where a regulation doesn't completely extinguish the valueofproperty, a partial takingmayhave occurred and compensationmayberequired.104 ..------InCiampittiv.UnitedStates,105the U.S. CourtofClaims ruled that the denialofa Clean WaterActSection 404 permit did not resultina taking where the plaintiff purchased the propertyin1983,hadknowledgeofthe restrictions applicable to the property, and agreed to purchase the regulated wetlands as partofa package deal that included developable uplands. The court ruled that sincetheplaintiff had amplewarningofthe likelihood that the wetlands could notbedeveloped, the permit denial did not interferewiththe plaintiffs reasonable investment-backed expectations. A similar analysis followed inDeltona Corp.v.United States.106There, the CourtofClaimsnotedthat a stiffeningofregulations appliedbythe CorpsofEngineers' under the Clean Water Act, resulting in a denialofa Section 404 wetlands pennit,had"substantially frustrated"plaintiffsreasonable investment-backed expectations. However, the denial did not effect a taking because economically viable uses remained for the property. Whenthedevelopment company acquired the property, it was awareofthe need to obtain permits and knew that the standards and conditions for the issuanceofpermits could change. The court held that property owners cannot establish a taking simplybydemonstrating that they have been "deniedtheability to exploit a property interestthatthey heretofore had believed was available for development."101Reahardv.Lee Counryl08 is a Florida case which dealt with the designationofproperty as a resource protection area under a local comprehensive plan.Inaddressing the questionofwhether the landowner had been denied allorsubstantially all economically viable useofhis property, the court required analysisofthe economic impactofthe regulation and the extent to which the regulation has interfered with investment-backed expectations.109According to the court, a proper analysisofthese factors would address a numberofquestions: Thehistoryofthe real property, including when it was purchased, howmuchwas purchased, where it is located, the natureofthe title, the compositionofthe property, and howitwas initially used. The historyofdevelopment and useofthe real property, including what was developed on the property andbywhom,ifit was subdivided and how and towhomitwas sold, whether plats were filed or recorded, and whether infrastructure and other public servicesorimprovements may have been dedicated to the public.10522 Cl.Ct. 310, 321 (1991) (CiampittiII).106657 F.2d 1184 (1981) 1193. (citing Penn Central, 438 U.S. at 130).108968 F.2d 1131 (1992),cert. denied115 S. Ct. 1693 (1995) 109968 F.2d 1131, 1136 (1992).W:\19270\4850 I0600\BackgroundReportFina1.wpd __"".,,'" 10006-15 REVIEWOFLEGALlMPUCATI0NS


Thehistoryofenvirorunentalprotectionandland use controls andotherregulations, includinghowandwhenthepropertywasclassified,howuse, densityordevelopment was proscribed,andwhatchangesinclassifications occurred.Howa developmentchangedwhentitle passed.Thepresentnatureandextentofthereal property, including its naturalandaltered characteristics.Thereasonable expectationsofthelandowneratthe timeofacquisitionoftheproperty,orirrunediately prior totheimplementationoftheregulationoractionatissue, whicheverislater,undertheregulationsthenineffectandunder corrunon law.Thereasonable expectationsoftheneighboringlandowners under statecommonlaw.Thediminutionininvestment-backed expectationsofthe landowner,ifany, after passageoftheregulation.ExistenceofProperty InterestA takingclaimrequires thatthelandownerholda legitimate interestintheproperty"taken,"asofthetimeofthegoverrnnental action.IIOPlantation Landing Resort, Inc.v.United StatesII Iisanillustrationofone aspectoftheissue. InPlantation,over50 acresoftheplaintiffs59-acre proposedprojectwasbelowmeanhighwaterandcouldonlybeprivatelyownediftheplaintiffhada valid reclamation permit from the state.Therelevantpermithadbeen obtainedbuthadexpired, and thecourtheldthatthishadextinguishedthepropertyinterest. Similar typesofissues are potentially applicable to the interpretationofawetlandbufferzoneordinance, wherethewetlandinquestion iscontiguousto a tidal watersorto navigableinlandwaters.112A differentcaseisrepresentedbydevelopment rights which have vested as a resultofapermitissuanceordevelopment order. tn these situations,thesubsequent establishmentofawetlandbuffer zonemaybemorelikely toresultin a taking, dependinginpartonwhichrightshadvestedandwhethertheordinance allows foranequitable adjustmentofthose rights.InSmithvClearwater,113the courtexamineda local ordinancewhichrezoned as"aquaticlands" wetlands previously zoned as a general business district, a classification whichhadpermitted singl e familyusesormultiple-dwelling useswithdensityrestrictions.Thecourtheldthattheordinancedidnotconstitute a "taking."The"aquaticlands"classification essentially restrictedtheallowable usestorecreationortorelatively uneconomic residential development.Anapplicationwaspendingtodevelophigh-rise dwellingsonhigherportionsoftheland whichwerealsorezonedtoa single dwelling classification. Effectively, in the contextofapplicable state and federal regulations and thephysicalattributesoftheland,theowners'developmentwas restricted to single dwellingsina density even less than that generally permittedbytherezoning ordinance.Thecourtobserved that although there wouldnotbemanyeconomic uses forthewetlands in the faceofaquatic zoning, there llLaceyv.United States, 595F.2d614, 619 (Ct.CI.1979). l1t30 Cl.Ct. 63 (1993). l12Generally, areasbelowmeanhighwaterline (tidally influenced areas)andbelowordinaryhighwaterline (nontidal navigable waters) aresovereignlandsownedbythe state.113383So.2d681 (Fla. 2dDCAI980).W:\19270\485010600\BackgroundReportFina1.wpd n ... 7.2. 1 QQQ 6-16REVIEW OF LEGAL IMPLtCAnONS


was not much the owners could have done with them without such zoning. Except for a 30-foot strip above the high-water mark, allofthe property involved was submerged anditwas unlikely that the owners would havebeenable to obtain permission to fill the land.114Another aspectofthis question ishowthe subject property is defined, and whether it mustbeconsidered as a wholeorcanbesegmentedinorder to influence the analysis and "create" takingsofcertain segments.Ifthe ownerofa property affectedbya buffer zonecansegment a larger property and argue that the segmented parcelwilllose all economic viability as a resultofthe ordinance,hemaybesuccessful in a takings claim. A footnote in theLucasdecision indicated that the issue is stillopen,115but courts normally will not segment the propertyinlooking at economic impact. Although a regulation may affect only one partofa property, in determining economic viability, the relevant unitofanalysis is the entire contiguous property.116Asstatedbythe Court inPenn Central:"Taking" jurisprudence does not divide a single parcel into discrete segrnents and attempttodetermine whether rights in a particular segrnent have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Courtfocusesrather bothonthe character ofthe actionandon the natureandextentofthe interference with rightsinthe parcelasa whole....1176.2.4 BertJ.Harris,Jr.,Private Property Rights Protection Act In addition to considerationsofdue process, equal protection and traditional takings analysis under the Fifth and Fourteenth Amendments, governmental regulations intended to protect wetlands must also address the requirements and restrictions representedbyproperty rights legislation recently adoptedbythe Florida 685.See also,Moviematic Industries Corp. v. BoardofCounty CommissionersofMetropolitan Dade County, 349 So.2d 667 (Fla.3dDCA1977) (no taking found where property was downzoned fromanindustrial classification to one that allowed one single family residential unit on each minimum five-acre lot). IIS"Regrettably, the rhetorical forceofour'deprivationofall economically feasibleuse'rule is greater than its precision, since the rule does notmakeclear the 'property interest' against which the lossofvalue is tobemeasured.' When, for example, a regulation requires a developer to leave 90%ofa rural tractinits natural state,itis unclear whether wewouldanalyze the situation as one in which the owner has been deprivedofall economically beneficial useofthe burdened portionofthe tract, or as one in which the owner has suffered a mere diminution in valueofthe tractasa whole." 505 U.S. at 1016-17 n.7.116SeePenn Central Transportation Co. v. New York City, 438 U.S. at 130-31 (1978); Keystone Bituminous Coal Ass'n v. DeBenedictis, 480 U.S. 470 (1987); Concrete Pipe&Products v. Construction Laborers Pension TrustofSouthemCal., 508 U.S.602,644(1993).117PennCentral Transportation Co.v.NewYork City, 438 U.S. 104, 130-31 (1978).W:\19270\485010600\BackgroundReportFinal.wpdDecember22. 19996-17REVIEWOFLEGAL lMPLlCAnONS


In1995, the Florida legislature adopted the BertJ.Harris, Jr., Private Property Rights Protection Act (Act),118which purports to create a new causeofaction for landowners complainingofgovernment interference with property rights.Itprovides that: when a specific actionofa governmental entity has useofreal property or a vested righttoa specific useofreal property, the property ownerofthat real propertyisentitled illrelief, whichrnay include compensation for the actual losstothe fair market valueof. the property caused by the actionofgovernmerit,asprovided in this section.119As expressed in the statute, the intentofthe legislature was to create"aseparate and distinct causeofaction from the lawoftakings,,120and to provide "for relief,orpaymentofcompensation, when a new law, rule, regulation,orordinance ... as applied, unfairly affects realproperty.,,121The Act does not provide a causeofaction for the applicationofalaw adopted before MayII,1995, at the adjournmentofthe legislative session.122Itdoes nqt apply to an ordinance, ruleorregulation adopted, or formally noticed for adoption beforeMayII,1995.123Theamendmentofan existing ordinanceorcomprehensiveplancould fall within the scopeofthe Act"tothe extent that the applicationofthe amendatory language imposes an inordinate burden apart from the law, rule, regulation,orordinance being amended."124 Thus, the proposed St. Johns County wetland buffer ordinance couldbereviewed under the provisionsofthe Act.Ifa court determines that an inordinate burden has been imposedonthe landowner, the remedy"mayinclude compensation for the fair market value for the actual loss to the fair market valueofthe realproperty"125createdbythe government action. The Act requires that ajurydetermine the fair market valueoftheproperty.Theamountofcompensation due is equal to the difference between the fair market valueofthe propertyprior to the government action, including the owner's reasonable investment-backed expectations, andthecurrent fair market value after the government action,118FLA.STAT..001 (1997).119Id..001(4)(a).12Id..001(1).122Id..001(12).124Id.The Act excludes actionsbythe federal government,oractionsbystateorlocal governments "when exercising the powersoftheUnited Statesoranyofitsagencies through a formal delegationofFederal authority."Id..001(3)(c).W:\19270\4850 I 0600\BackgroundReportFina1.wpdDecember 22, 19996-18REVIEWOFLEGALIMPLICATIONS


including the government's settlement offer and ripenessdecision.126This compensation does not include business damages for development or uses which are prohibited.12?Settlement ProcedureTheAct establishes a mandatory settlement procedure. At least 180 days before filing suit in circuit court under the act, a landowner must give the governmental entity notice, including a valid appraisal supporting the claimofan "inordinate burden," and demonstrating the lossinfair market value to theproperty.128During the lBO-day period, the governmental entity must make a written settlement offer which would resolve theclaim,129along with a written"ripenessdecision"130detailing permitted usesofthe property.131Thelandowner may file suitincircuit court after the ripeness decision has been issued oruponthe expirationofthe 180-day notice period.132Thesettlement offer may include the following changes: An adjustmentoflanddevelopment or permit standards or other provisions controlling the developmentoruseofland.Increasesormodificationsinthe density, intensity, or useofareasofdevelopment. The transferofdevelopmental rights. Land swapsorexchanges. Mitigation, including payments in lieuofonsite mitigation. Location on the least sensitive portionofthe property. Conditioning the amountofdevelopment or use permitted. A requirement that issuesbeaddressedona more comprehensive basis than a single proposed use or development. Issuanceofthe development order, a variance, special exception,orother extraordinary relief. No changes to the actionofthe governmental entity.133126Id..001(6)(b).128Id..001(4)(a). Landowners affectedbygovernment action which falls within the scopeofthe Act have one year in whichtofile suit.Id..00l(11). This one-year period does not begintorun until after any administrative appeals have been completed.Id.129Id..001(4)(c). 130"Ripeness decision" in this context constitutes the "last prerequisitetojudicial review."Id..00l(5)(a).131Id..001(5)(a).133Id..001(4)(c).W:\19270\48S0t0600\Background Report Final.wpd nf':C".P.mher 22. 19996-19REVIEWOFLEGALIMPLICATIONS


Creative useofthese mitigating the proposed buffer zone ordinance will reduce the likelihoodofsuccessful claims that the ordinance "inordinately burdens" a particular property.Ifthe property owner rejects the government's settlement offer and ripeness decision and files suit, the circuit court judge must examine the existing useofthe property,134and determine whether the owner hasanadditional vested right to a specific useoftheproperty.135Then, considering the proposed settlement offer and ripeness decision, the jUdge will decide whether the "actionofthe governmentalentity,,136has inordinately burdened the real property.Inordinate BurdenRelative to the adoption and implementationofa wetland buffer zone ordinance, the most significant issue raisedbythe Act is what constitutes an "inordinate burden." The statutory definition describes two typesof"inordinate burdens." The first is anaction whichrestric.!S (Jrlimits the useofreal property to the extent thatthe_owner is permanently unable to attain "reasonabl';-fnvestment backed expectaiions" for an existing use or vested right to a specific useoftheproperty as a whole.137The second inordinate burden is oneinwhich the owner is left with "umeasonable existing or vested uses such that he bears permanently a disproportionate shareofthe burden imposed for the goodofthe public ...."138Temporary impacts and governmental actiontoremediate a "public nuisance at cornmon law or a noxious useofprivate property" are not includedinthe definitionof"inordinate burden."'39Theprimary question is what degreeofregulation or what diminutionofvalue will constitute an "inordinate burden" under the statute. No caselaw under this provision has developed which bearsonthe definition in the contextofa wetland buffer ordinance. Though the Act is intended to provide 134"Existing use" means an actual, present use or activity on the real property, including periodsofinactivity which are normally associated with,orare incidental to, the natureortypeofUse or activity or such reasonably foreseeable, nonspeculative-Iand uses which are suitable for the subject real property and compatible with adjacent land uses and which have created an existing fair market value in the property greaterthanthe fair market valueoftheactual, present use or activityonthe real property.[d..001(3)(b).I35"Theexistenceofa 'vested right' is to be determinedbyapplying the pnnciples ofequitable estoppelorsubstantive due process under the cornmon laworbyapplying the statutory lawofthis state."[d..001(3)(a). '36"Actionofa governmental entity" is a "specific action ... which affects real property, including actiononan application or permit."[d..001(3)(d).137Id..001(3Xe).138Id.W:\19270\485010600\Background Report Fina1.wpd December21.19996-20REVIEWOFLEGALIMPLICATIONS


a separate causeofaction from present takings jurisprudence,140it is unlikely that courts willbeable to draw a bright line between the new causeofaction and takings jurisprudence. Given the history and logicoftraditional takings analysis, courts hearing cases under the Act will finditdifficult to ignore such precedentswhendetermining whether property hasbeen"inordinately burdened"bygovernment regulations. Though the courts willbedealing with this question in adenovosense, reference canbemadeto the summary analysisoftakings jurisprudenceinSection II.C.ofthis memo to assist in anticipating the direction the analysis might take.141According to the Act, an "inordinate burden" is placedonprivate property whenever the owner is "permanently unable to attain the reasonable, investment-backed expectations" for theuseofthe property.142"Investment-backed expectations" was first introduced as a factorintakings jurisprudencebythe United States Supreme CourtinPenn Central Transportation Co.v.NewYorkCity.143However, the role this factor should play, and its relative importance, were never made clear. The Court's subsequent decision inKeystone Bituminous Coal Associationv.DeBenedittisfocused primarily on whether the regulation advanced a legitimate state interest, and whetheritdenied the owner "economically viable useofhisland."I44The Act also teflects someofthe perspectiveintheFloridaRockcase, in that compensationmayberequired even when government action does not amount to a full diminutioninvalue.14sA second question involves when determining when "reasonable, investment-backed expectations" as to the useofland arise. One Federal Claims Court decision held that "the relevant date for determining plaintiffs historically rooted expectancies...[should be] the datesonwhich the plaintiffs themselves acquired title to their properties."'46 Where land is already subject to government regulation, a buyer's expectations concerning the property should account for this existing regulationofthe property. Interpretationofreasonable investment-backed expectations shouldnotallow recoverybyland speculators who gamble against the market. The Act supports this interpretationbyproviding that "existing use" should mean actual present useofthe land and "reasonably foreseeable, nonspeculative land uses" appropriate to the property and its surroundings.147Speculators who have purchased landwithknowledgeofexisting land use14FLA.STAT..001(I) (1997)("...[S]ome laws, regulations, and ordinancesofthestate and political entitiesinthe state, as applied, may inordinately burden, restrict,orlimit private property rights without amounting to a taking .... ").141Seesupra,notes 47-117, and accompanying text.14ZFLA.STAT..001(3)(e).143438 U.S. 104, 124 (1978).144480U.S. 470, 485 (1987).14sFLA.STAT..001(I) (1997). 146Preseault v. United States, 27 Cl. Ct. 69, 88 (1992).147FLA.STAT..001(3)(b).W:\19270\485010600\BackgroundReportFinal.wpdDecember 22. 19996REVIEWOFLEGALIMPUCA TlONS


restrictions should have much less success arguing that developing the land in a manner that exceeds those restrictions is a "reasonable" expectation.Atthis pointinthe interpretationoftheAct it is impossible to predict whether every diminution in valueofa property as a resultoffuture government regulation will meet this testofinordinately burdening the useofproperty,orwhetheritwill be possible for some regulation to "burden" the property without that burden becoming inordinate. Those advocating increased protectionofproperty rights interpret the Act to providereliefbeginning with the lossofthe first dollaroffair market value.148However, this argument is opposed to the traditional state court evaluationofwhether government action has resultedina regulatory taking.149The FloridaRockcase is somewhat illustrative, but the decision only acknowledged that something less than a complete diminutionofvalue causedbygovernment action could resultina compensable takingofprivate property.Itdid not determine exactlyhowmuch diminution is necessaryinorder to effect a taking.150While the Act incorporates the conceptofpartial takings, there has been no judicial interpretationofhow much diminution constitutes a compensable loss.ExistingUseThereare two typesof"existing use" definedinthe Act. The first is"anactual, present use or activity on the real property."ISI This includes "periodsofinactivity which are normally associated with,orare incidental to, the natureortypeofuseoractivity.,,152 The second includes land useswhichare reasonably foreseeable and nonspeculative, suitable for the subject real property, compatible with adjacent land uses, and which have createdanexisting fair market value in the property greater than the fair market valueofthe actual present use or activity.15]Though the second typeof"existing use" has the potential to create problems for local governments,inthe contextofprotection for upland/wetland systemsitmaynot be as restrictive, since many development projects will not meet testsof"suitability" and "compatibility." Local government definitionofsuch terms, as incorporated into the comprehensive plan and land development codemaybecome important in assisting a courtinreviewing a claim under the Act.148SeeRobertC.Downie,II,Property Rights: Will Exceptions Become the Rule?,69 FLA. B.J., Nov.1995,at 71.15F.3dat1570.lSIId..001(3)(b).IS2Id.w:\tReportFina1.wpdDecember 22, 19996REVIEW OF LEGALlMPUCATlONS


TheAct'sdefinitionsof"reasonably foreseeable" and "nonspeculative" uses were intended to incorporate concepts from eminent domain valuation law.'54Inthis areaoflaw, courts will sometimes accept appraisal testimony regarding highest and best use basedinpart on the appraiser's determinationofwhether zoning changesorother land use changes were reasonably foreseeable.Itis possible that land uses included in the future landuse elementofthe local comprehensive plan maybesufficient to demonstrate that a proposed development proposal is reasonably foreseeable andnotspeculative, since the zoningwouldbeexpected to follow the plan. Thus,incertain cases, regardlessofthe inclusionofanarea in a wetland buffer zone,ifthe future land use classification for that area is not compatible with the purposesofthe buffer zone, a proposed use which matches the future land use classification may be found tobe"reasonably foreseeable."Inthese cases, testsof"suitability" and "compatibility" will take on additional importance. Vested RightsTheActprotects "vested rights" to a specific land use. ISS Under a vested rights approach, a landowner's expectations are considered tobereasonable when in relianceongovernment assurances, he makes a substantial changeinhis position relative to a development.156The actioninreliance upon a government assurance or approval worksto"vest" the landowner's rights to the development. Rights that have "vested" can create expectations that are protectedbythe takings clause.157Inorder for an owner's rights to vest, Florida courts have required that three conditionsbemet: (1) a propertyowner'sgood faith reliance (2)onsome actoromissionofthe government and (3) a substantial changeinposition or the incurringofexcessive obligations and expenses so that it wouldbehighly inequitable and unjust to destroy the right he acquired.158Forexample, where a landowner spent substantial amounts to install water service to his land in reliance upon the existingplanthat allowed multi-family housing, a county was estopped from denying building permits fOf the development.159Where property had long been zoned for residential use, and that use appearedonthe county comprehensive plan, and where residential usage predominated over agricultural, landowners had a vested right in the continuationofresidential154See,DavidL.Powell, et aI., Florida's New Lawto Protect Private Property Rights, 69FLA. B:J. 12,17(Oct. 1995).155FLA.STAT..001(2) (1997).156SeeCompass Lake HillsDevelopment Corp.v.Florida Dept.ofCommunity Affairs, 379 So.2d 376 (Fla. 1stDCA1979); City ofFt. Lauderdalev.DivisionofLocal Resource Management, 424 So.2d 102 (Fla. 1stDCA 1982). 157Resolution Trust Corp.v.TownofHighland Beach,18F.3d 1536(IIthCir. 1994).158HollywoodBeach Hotel Co.v.CityofHollywood, 329 So. 2d 10,15(Fla. 1976); FranklinCountyv.Leisure Properties, Ltd, 430 So.2d475,479(Fla. 1st DCA 1983).159FranklinCounty, 430 So. 2d at 479.W;\19270\485010600\BackgroundReportFinal.wpdDecember 22. 19996-23REVIEWOFLEGALIMPLICATIONS


orsaturation.165The formally delineated wetland boundary is binding on all other governmental. entities for the durationofthepermit. Chapter 62-340, F.A.C. sets out five methods or tests for determining wetland boundaries based on analysesofa combinationofvegetation and soils, vegetation and hydrology, soils and hydrology, a prima facie soils test, and an altered site provision.166The rule also includes a vegetation list that classifies the plants in orderofaffinity to hydrologic conditions.167Ifthe vegetationorsoilsofan uplandorwetland area havebeenalteredbynatural causes or man-induced factors, such that the boundary between wetlands and uplands cannotbedelineated reliablybythe listed tests, there mustbeevidenceofhydric soilsorother hydrologic evidence for these areastobe considered wetlands.168This evidence is to be basedonthe most reliable information available, and it can include such things as aerial photos, remaining vegetation, or topographical inconsistencies.'69Specific exemptions are provided for wastewater treatment and stormwater treatment facilities,aswell as wetlands createdbymosquito control activities.170165R. 62-340.100(1),FLA.ADMIN.CODE(Feb. 1995).166R. 62-340.300-.600,FLA. ADMIN. CODE(Feb. 1995).167R. 62-340.450,FLA.ADMIN.CODE(Feb. 1995).168R.62-340.300(3)(a),FLA.ADMIN.CODE(Feb. 1995).169[d.170R.62-340.700, 62-340.750,FLA.ADMIN.CODE(Feb. 1995).W:\l9270\485010600\Background Report Final.wpd December22,19996-25REVIEWOFLEGALIMPLICAnONS


usage.l60However, courts have also held that the mere existenceofa present right to a certain land use based upon a zoning ordinance is not a sufficient "act"ofthe governmenttobase a vested rightorequitable estoppel claim to prevent enforcementoflater zoning restrictions.161A subsequent purchaser does not automatically inherit vested rightsbymerely purchasing the land, butmustbeable to demonstrate hisownentitlement to the vested rightsorthe benefitofestoppel.1626.3 WETLAND DEFINITIONIDELINEATIONOneofthe issues in establishing a valid wetland buffer ordinance will be how to define wetlands and delineate their landward boundaries. Florida law provides a statutory definitionofwetlands whichistobeused statewidebythe DepartmentofEnvironmental Protection, the water management districts, local governments, and any other state, regional,orlocal governmental authority needing to define wetlands for regulatory purposes.163Wetlands are legislatively defined in the Florida Statutes as: those areas that are inundated or saturated by surface waterorgroundwater at a frequency and a duration sufficient to support, and under normal circumstances do support, a prevalenceofvegetation typically adapted for lifeinsaturated soils. Soils presentinwetlands generally are classified as hydricoralluvial,orpossess characteristics that are associated with reducing soil conditions. The prevalent vegetation in wetlands generally consistsoffacultative or obligate hydrophytic macrophytes that are typically adapted to areas having soil conditions described above. These species, due to morphological, physiological, or reproductive adaptations,havethe ability to grow, reproduce or persist in aquatic environmentsoranaerobic soil conditions. Florida wetlands generally include swamps, marshes, bayheads, bogs, cypress domes and strands, sloughs,wetprairies, riverine swamps and marshes, hydric seepage slopes, tidal marshes, mangrove swamps arid other similar areas. Florida wetlands generally do not include longleaforslashpineflatwoods with an understory dominated by saw palmetto.164Oncean area has been defined as a wetland, Florida also specifies a unified delineation methodology for demarcating thelandward extentofthat wetland. Florida Administrative Code Chapter 62.340 provides that the landward extentofjurisdictional wetlands is tobedeterminedbythedominanceofplant species, soils and other hydrologic evidence indicativeofregular and periodic inundation 16Metropolitan Dade Countyv.Brisker, 485 So. 2d 1349, 1351 (Fla.3dDCA1986).161pascoCounty v. Tampa Dev. Corp., 364 So. 2d 850, 853 (Fla.2dDCA1978). 162Franklin County, 430 So.2dat 480; Jonesv.First Virginia Mortgage&Real Estate Inv. Trust, 399 So.2d1068,1074(Fla. 2dDCA1981).163TheArmyCorpsofEngineers maintains its own wetland definition and delineation methodology for the purposesoffederal wetland permitting decisions. 164FLA. STAT.373.019(22)(1997);R62-340.200(19), FLA. ADMIN.CODE(Feb. 1995).W:\19270\485010600\BackgroundReportFina1.wpdDecember 22, 19996-24REVIEWOFLEGALIMPLICATIONS


7.0 SUMMARY A diverse assemblage ofIiigh quality habitats occurinSt. Johns County, including some which are listed as imperiledorthreatened habitats. These high quality habitats also support a suiteofwildlife species, including many which are threatened or endangered. Incumbent upon the county is the need to provide additional protection to these environmentally sensitive lands, especially in the wakeofhigh developmental pressure.Thecounty planstodevelop a buffer ordinance that will provide additional environmental protection sensitive lands, as well as allow the county tobeincompliance wit1\.. its comprehensive plan. ThisaddItIonal environmental protection will preserve the aesthetic appealofthe county, as well as protect wildlife species, water quality, and hydrologic conditions. Thirty-nine county and nine city ordinances were reviewed and summarizedregarding their existing buffer zone requirements {Tables 3.1 and 7.1). Manyofthe counties have not adopted a buffer ordinance but instead defer to the state recommendation o@!eet (average and15feet minimum) for preventing secondary impacts.Ofthe counties reviewed that have an adopted buffer ordinance, almosthalfofthe counties (17) mandate a buffer widthof30 feet or less.Analmost equal numberofcounties (18) stipulate a buffer widthofbetween 35 and 100 feet. Only four counties mandate a buffer width greater than 100 feet. Many counties mandate multiple buffer widths dependingonthe typeofwetland {isolatedor and its designation (OFWorAquatic Preserve), orifit is a specified water bbdy (i.e., Suwannee River in Dixie County). Therefore, there is considerable overlap in the numbers provided above such that one county (e.g., Martin County) may mandate a 50-foot buffer for isolated wetlands,75feet for contiguous wetlands, and 300 feet for wetlands with -speCres.------------------,---The state recommendation for buffer zones is25feet average and15feet minimum for those projects that could cause secondary impacts to wetlands. Mitigation is often required for impacts to the buffer zone to compensate for potential secondary impacts. There are many proj where state regulatory buffers are not required, such as for single-family residences with no wetland impacts, projects below the ERP pennitting thresholdacres in size, no dredge or fill directly in wetlands, and<12acresofimpervious surface area), projects which qualifY for a Notice General Permit; and projects which are exempt from ERP pennitting. Example projects which are not requiredbythe state to implement a buffer are listed in Section 4.2.Atthe federal level, the ACOE only regulates navigable waters and wetlands. Consequently, buffer areas landwardofwetlands or aquatic habitats are not requirednorregulated at the federal levelbyACOE. However, the ACOE has begun addressing upland buffer zonesinthe WRAP analysis. A buffer widthof300feet is considered to be sufficient to protect wetlands from adverse impactsofdevelopment aiIolSllierefore assigned the highest numerical valueof3.0.A buffer width less than 30 feet is considered inadequate for wetland protection and is assigneaa low numerical scoreof1.0. ofabuffer receives a score ofO. These buffer widthsof30and 300 feet were denved from a summaryofbuffer studies that was compiled byCastelle etaI.(1994). Scientific studiesofbuffer zones were reviewed and summarized in this Background Report. A special emphasis was placed on Florida studies as they were considered most applicable to the developmentofbuffers in St. Johns County due to their close proximity, similarityofhabitats and wildlife species, and more thorough analysisofbuffer parameters. The Florida buffer studiesW:\19270\48S0 10600\BackgroundReportFinal.wpdDecember22.19997-1SUMMARY


combined water quality parameters with buffer widths necessary to protect wetland-dependent wildlife species.Inthe East Central Florida buffer study, a rangeof322to732 feet was determined tobenecessary to protect wetland resources (Brown et al. 1990a). Similarly, Brown and Orell (1995) reported that 322 to 550 feet was necessary to protect wildlife species in freshwater riverine systemsofTomokaRiver and Spruce Creek, whereas 322 feet was needed to protect wildlife in salt marsh habitats. Likewise, 536 feet was recommended for protectionofwetland resources in forested segmentsofthe Wekiva River (Brown and Shaefer 1987). Other scientific studies have shown that relatively wide buffers (150toover 300 feet) are necessary to protect wetland resources.Ingeneral, wider buffers are needed to protect wetland-dependent ?j1,f'. wildlife, whereas more narrow buffers will Anexception is for steep slopes, where a wider buffer is necessary to counteract potentially high erosive forces. A comparisonofbuffer widths for county, state, and federal agencies, as well as other scientific studies is provided on Table 7.1.Oneimportant observation regarding Table 7.1 is thatthemajorityofcounty buffer requirements and the state buffer recommendation is 50 feetorless. Conversely, the buffer recommendation based on scientific studies is in general clustered around300feet. There is quite a discrepancy between the low buffer requirement mandatedbymunicipalities and the high buffer requirement necessary to protect wetland resources.Thefrnalsectionofthe Background Report addresseslegal implicationsofadopting a buffer zone ordinance. Such issuesasthe county comprehensive plan, adoptionoflanddevelopment regulations, potential limitationofestablishing a buffer ordinance, equal protection, takings, ad hoc factual inquiry, settlement procedure, inordinate burden, and vested rights are discussed.W:\19270\4850 I0600\BackgroundReportFina1.wpdDecember 22, 1999 7-2SUMMARY


Table7.1 Summary ofBufferWidthsfromLocalOrdinances,StateRegulations,FederalRegulations,andScientificStudiesBufferWidth(feet)Relatedordinance,regulation,orstudyNone, defer to State Broward, Charlotte, Collier, Dade, Duval, Jefferson, Lee, Levy, Monroe, recommendation Palm Beach, Pasco, Santa Rosa, and Taylor Counties10St. Lucie County15Hernando, Lake, and Pinellas County20Leon County25Brevard, Flagler, Gadsden, Lake, Okaloosa, Putnam, St. Johns, Volusia, and Walton County Average buffer width used for state permittingtoprevent secondary impacts to wetlands30Bay, Hillsborough, Manatee, and Sarasota County :s 30-foot buffer considered insufficient to protect wetlands, andisusedatthe federal level for wetland permitting evaluationbythe ACOE (referenced in Miller and Gunsalus 1997)35Alachua and Dixie County 49-66Minimum buffer for low slopestoprotect water quality (Karr and Schlosser 1977)50Brevard, Franklin, Gulf, Hillsborough, Indian River, Lake, Manatee, Martin, Nassau,Orange, Pinellas, St. Johns, Sarasota, Seminole, and Volusia County75Alachua, Dixie, Hernando,andMartin County100Lake County150Franklin County 164 Buffer to supportseveral interior bird species(fassone1981)164 197Buffer to support hairy and pileated woodpeckers (Tassone 1981) 200 Brevard County 207 584 Recommended set-back distance for15speciesofbreeding colonial birds (Rodgers and Smith 1995) 220 413 Recommended buffer for 16 speciesofwater birds (Rodgers and Smith 1997) 262 Buffer for high slopes to protect water quality (Karr and Schlosser 1977) Buffertosupport parula warbler (Tassone 1981)W:\19270\4gS010600\BackgroundReportFinal.wpdDecember22,19997-3SUMMARY


Table7.1SummaryofBufferWidthsfromLocal Ordinances,StateRegulations, Federal Regulations,andScientificStudiesBufferWidth(feet)Relatedordinance, regulation,orstudy300 Martin County ?.300-foot buffer considered sufficienttoprotect wetlands, and is used at the federal level for wetland permitting evaluation by the ACOE (referencedinMiller and Gunsalus 1997) Zone considered by Florida DivisionofForestry to be most influential to surface water quality 322 Buffer width to protect saltwater and freshwater marshes in East Central Florida (BrownetaI. 1990a) Buffer width to protect saltwater marshes along Tomoka River and Spruce Creek (Brown and Orell 1995) 322 550 Buffer width to protect freshwater riverine systems associated with Tomoka River and SpruceCreek(Brown and Orell 1995) 328 Buffer to protect intrinsic wildlife species on larger streams (Tissone 1981) Buffer for neotropical migrant birds (Triquet et aI. (1990) 492 Buffer for protectionof90%ofbird species (Spackman and Hughes 1995) 536 Buffer width to protect wetland-dependent wildlife along the Wekiva River (Brown and Schaefer 1987) 550 Orange County Buffer width to protect forested wetlandsinEast Central Florida (Brown etaI.1990a) 574 Buffer for protectionof95%ofIiird species (Spackman and Hughes 1995) 732 Buffer to protect wetlands adjacent to sandhill communities in East Central Florida (Browneta\. 1990a)1641Buffer necessarytomaintain the complete brrd populationofbottomland hardwood swamps (Kilgoeta\. 1998) W:\l 9270\4850 I0600\BackgroundReportFina1.wpd ..... .......n"", SUMMARY


8.0 REFERENCES Borman, F.H., G.E. Likens, D.W. Fisher, and R.S. Pierce. 1968. Nutrient loss accelerationbyclearcuttingofa forest ecosystem. Science 159:882-884. Brown, M.T. and E.M. Starnes. 1983. A wetlands studyofSeminole County; identification, evaluation, and preparationofdevelopment standards and guidelines. Center for Wetlands Univ.ofFL.Techn. Rep. No. 41. Brown, M.T. 1986. Cumulative impacts in landscapes dominatedbyhumanity. Pages 33-50InE.D. Estevez, J. Miller, J. Morris, and R. Hamann (eds.), Managing cumulative effects in Florida wetlands: Conference proc. New College Environmental Studies Program Publ. No. 37 (Sarasota, FL). Madison, WI: Ominipress (CFW-86-09). Brown, M.T., and J.M. Schaefer. 1987.Anevaluationofthe applicabilityofupland buffers for the wetlandsofthe Wekiva Basin. Report prepared for the St. Johns River Water Management District. Florida. Publ. No.SJ87-SP7. Brown, M.T., J.M. Schaefer, and K.H. Brandt. 1990a. Buffer zones for water, wetlands, and wildlife in East Central Florida. Report prepared for the East Central Florida Regional Planning Council.CFWPubl. #89-07. Brown, M.T., C.S. Luthin,1.Tucker,R.Hamann,1.Schaefer,L.Wayne and M. Dickinson. 1990b. Econiockhatchee River basin natural resources development and protection plan. Report to the SJRWMD. Publ. No.SJ91-SP1. Brown, M.T. and Grell. 1995. Tomoka River and Spruce Creek Riparian Habitat Protection Zone. Report for the SJRWMD. Palatka, FL. Castelle, A.J.,AW.Johnson, and C. Conolly. 1994. Wetland and stream buffer size requirements A review. J. Environ. Qual. 23:878-882. Clewell, A.F.,J.AGoolsby, andAG.Shuey. 1982. Riverine forestsofthe South Prong Alafia River System, Florida. Wetlands 2:21-72. Cox,J.1988. The influenceofforestsize on transient and resident bird species occupying maritime hammocksofnortheastern Florida.FLField Naturalist. 16 (2) 25-56. Cox, J., R. Kautz, M. MacLaughlin, andT.Gilbert. 1994. Closing the gaps in Florida's wildlife habitat conservation system. OfficeofEnv.ServoFlorida Game and Fresh Water Fish Commission. Erman, D.C., J.D. Newbold, and K.B. Roby. 1977. Evaluationofstreamside bufferstrips for protecting aquatic organisms. Davis, CA: California Water Resources Center, Univ.OfCA.W:\l9270\4850 I 0600\BackgroundReportFinal.wpdDecember 22. 19998-1 REFERENCES


Florida DepartmentofTransportation (DOT), State Topographic Bureau, Thematic Mapping Section. 1985. Florida Land Use, Cover and Forms Classification System. Second Edition. Procedure No. 550-010-001-a. Florida DivisionofForestry. 1979. Silviculture Best Management Practices manual. Tallahassee, FL: Florida Dept.OfAgriculture and Consumer Services, DivisionofForestry, Collins Bldg. Florida Natural Areas Inventory (FNAI) and Florida DepartmentofNatural Resources (FDNR). 1990. Guide to the Natural CommunitiesofFlorida. Forman,RT.T.1983. Corridors in a landscape: Their ecological structure and function. Ecology (CSSR) 2(3): 375-387. Forman,RT.T.,and M. Godran. 1981. Patches and structural components for a landscape ecology. Bioscience31:733-740. Forman,RT.T.and M. Godron 1986. Landscape Ecology. New York, NY: John Wiley&Sons, 619 pp. GehrICen, G.A. 1975. Travel corridor techniqueofwild turkey management. Pages113 117inL.K. Halls (ed.), Proceedingsofthe National Wild Turkey Symposium. Austin, TX: Wildlife Society, Texas Chapter. Gross, F.E.H. 1987. Characteristicsofsmall stream floodplain ecosystems in North and Central Florida. MS Thesis (CFW-87-01). Gainesville, Fl. Univ.ofFL,pp. 167. Harris, L.D. 1984. The fragmented forest: Island biogeographic theory and the preservationofbiotic diversity. Chicago: Univ.OfChicago Press. Harris, L.D. 1985. Conservation corridors: A highway system for wildlife. ENFO Report 85-5. Winter Park, FL. Environmental Information Centerofthe Florida Conservation Foundation.Inc. Harris, L.D. and J. Scheck. 1991. From implications to applications: The dispersal corridor principle applied to the conservationofbiological diversity. Nature conservation 2: The roleofcorridors. D.A. Saunders andRJ.Hobbs, ed., Surrey Beatty and Sons. Harrison, R.L. 1992. Toward a theoryofinter-refuge corridor design. Conserv. BioI. 6:293-295. Hart,RL.1984. Evaluationofmethods for sampling vegetation and delineating wetlands transition zones in coastal West-Central Florida, January 1979-May 1981. Technical Report Y-84-2 U.S. Army Engineers Waterways Experiment Station. Washington, DC: NTIS. Hollis, C.A.,RF.Fisher, and W.L. Pritchett. 1978. Effectsofsome silvicultural practicesonsoil site properties in the lower coastal plains. In Youngberg, C.T., (00.), Forest Soils and Land Use. Forest and Wood Sciences, Colorado State University, Fort Collins, CO., pp. 585-607.W:\I 9270\485010600\BackgroundReport Final.'oVpd December 22. 19998-2REFERENCES


Karr,J.R,and I.J. Schlosser. 1977. Impactofnear stream vegetation and stream morphology on water quality and stream biota. Athens,GA:U.S. EPA Environmental Resource Lab, OfficeofResources and Development. Kilgo, J.e.,RA.Sargent, B.R. Chapman, and K.V. Miller, 1998. Effectofstand width and adjacent habitat on breeding bird communities in bottomland hardwoods. J. Wild!. Manage. 62:72-83. Lowrance,RR.,R.C. Todd, J. Fail,O.Hendrickson,RA.Leonard, and L.E. Asmussen, 1984. Riparian forests as nutrient filters in agricultural watersheds. BioScience 34:374-377. Lowrance,RR.,J.K. Sharpe, and J.M. Sheridan. 1986. Long-term sediment depositioninthe riparian zoneofacoastal plain watershed. J. Soil and Water Conserv. 41:266-271. McElfresh,R,J. Inglis, and B.A. Brown. 1980. Gray squirrel usageofhardwood ravines in pine plantations. Louisiana State Univ. Forestry Symp. 29:79-89. Miller, R.E. Jr. and B.B. Gunsalus. 1997. Wetland Rapid Assessment Procedure (WRAP). South Florida Water Management District. Techn. Pub!.REG-OOl.Myers,RL.andJ.I.Ewe!. 1991. EcosystemsofFlorida. Univ.ofFLPress. Pinay,G.andH.Decamps. 1988. The roleofriparian woods in regulating nitrogen fluxes between the alluvial aquifer and surface water: A conceptual mode!. Regulated Rivers: Research and Management 2:507-516. Riekerk, H., B.F. Swindel, and J.A. Replogle. 1980. Effectsofforestry practicesinFlorida watersheds.Proc.OftheSymposium on Watershed Management. ASCE. pp. 706-720. Rodgers,JA.and H.T. Smith. 1995. Set-back distances to protect nesting bird colonies from human disturbances in Florida.Cons. Biology 9:89-99. Rodgers,I.A.and H.T. Smith. 1997. Buffer zone distances to protect foraging and loafing waterbirds from human disturbances in Florida. Wildlife Society Bull. 25(1): 139-145. Schultz, G.E.andS.L. Orzell 1995. A naturals areas inventoryofthe Tiger Bay area in Flagler, St. Johns, and Volusia Counties, Florida. Florida Naturals Areas Inventory. Soule, M.E. and D. Simberloff 1986. Whatdogenetics and ecology tell us about the designofnature reserves? BioI. Conserv. 35:19-40. Spackman, S.C., and J.W. Hughes. 1995. Assessmentofminimum stream corridor width for biological conservation: Species richness and distribution along mid-order streams in Verrnont. USA Bio!. Conserv.71:325-332. Stauffer, D.F. 1978. Habitat selection by birdsofriparian communities: Evaluating the effectsofhabitat alteration. MS Thesis. Ames, IA: Iowa State University.W:\19270\48S010600\BackgroundReportFinal.WpdDecember 22. 1999REFERENCES


Tassone, J.F. 1981. Utilityofhardwood leave strips for breeding birds in Virginia's central piedmont.MSThesis. Blacksburg, VA: Virginia Polytechnic andInstitute and State College83pp. Triquet,AM.,G.AMcPeek, and W.C. McComb. 1990. Songbird diversity in clearcuts with and without a riparian buffer strip.I.Soil and Water Conserv. 45:500-503. Turner, M.G., R.H. Gardner, and R.V. O'Neill. 1995. Ecological dynamics at broad scales: Ecosystems and landscapes. BioScience Supplement. S29-S35. Vickers, C.R., L.D. Harris, and B.S. Swindel. 1985. Changes in herpetofauna resulting from ditchingofcypress ponds in coastal plains flatwoods. Forest Ecology and Management. 2:17-29. Weins,I.A.,N.C. Stenseth, B. Van Horne, andR.AIms. 1992. Ecological mechanisms and landscape ecology. Oikos 66:369-380.W:\I9270\4850 1 0600\BackgroundReportFinal.wpdDecember 22, 19998-4REFERENCES


Page IWetiandlUplandBuffer Ordinance -Summariesfrom Various LocalFloridaGovernments RequiredBuffer (ft.)CodeAll lsolotedOeeks.Retention Meanhighwater Outstanding Natural Resource Management Allowableactivitiesin buffer Commentswetlands wetlandschannels,pondsmarkintidal Florida Water Area(NRMA) ditches,adjacent toareas,nonnalhigh(OFW) e,""l.,wetbn

Page 2 WetlandlUpland BufferOrdinance-SummariesfromVarious Local Florida GovernmentsRequit

Page 3 WetJandlUplan.d Buffer Ordinance from Various Local Flori.da Governments R"Iuiml Buffer(ft.)Cod,AllIsolated C=!a. Retention Mean high water Outstanding Natural Resource Management Allowable activitiesin buffer Conuncnts wetlandswetlands channels, ponds markintidal Florida Water Area{NRMA) ditches, adjacent to areas, nonnal high (OFW)COlla!s. wetlands water on lakes2 waterwayslGADSEN COUNTY25 it.from DEP or NFWMD jurlsdictionalline,25ft.(Conservation Area) 30ft.landwardofCityofwhichever is greater REC,PS. TRMosquito Creek and 50ft.CHATIAHOOCHEElandwardofApalachicola River average water linesGULF COUNTY50ft.ofthe wetlands edge. Activities presumed to have an insignificant adverse effect on the beneficial functionsofProtected &SA's (see details inSection 4.01.04 for each type ofProtcction Zone)HERNANDONo specific wetland buffer ordinance, withthe exception ofa Riverine Protection Buffer for specific river systems and associated REC.PS. TR,RE, PN.PR ('=s withdbhofInfonnation was gatheredCOUNTYwetlands. Bufferinthese areas is75ft.for new construction and lots that were platted prior to August 1990 that had existing natural<4inches may be taken for viewof water by telephone. vegetation;15ft.for lots cleared and platted prior to August 1990. through window)IULLSBOROUGH30ft.for Conservation PS, Sprinkler system, utility line, landscaping Septic tanks, septic tank COUNTY Areas] and 50ft.for Preservation (no removalof native vegetation), stonnwaterdrainfields and swimming Are"" related structure, grade futishing to provide a pools are prohibited. No gradual slope between the setback line and the setbackis required Environmentally SensitiveArea(ESA), landwardofaseawall limited useofsemi-pervious paving material, constructed pursuant to retaining walls, golf cart paths; specific the approvalofapproval for construction ofa swimming pool appropriate regulatory provided there isnoencroachment within15agencies. Requirementsft.ofa ConservaflonArei and25 it. ofa for phosphate mining can Preservation Axe?? be found in Sec. 8.02.08.PNplanting of nativevegetation PS.. penniuod structures and repairs ofSlIme(i.e. erosion control structures, docks.boalramps, etc.)W:\192'1O\4SSOI06OO\Table-Onlmanees ..,.eIPR-prunmg RE" removal of exotic and nuisancepioneer plantspecies RECpassiverecreationactivities(hunting,fishing,swimming) TR.walkingtrails(creation and maintenance)


Page 4 'etland/Upland Buf(er Ordinance Summaries (rom Various Local Florida Governments Required Buffer(ft.)CodeAllIsolated Creeks, Retention Mean highwater Outstanding Natural. Resource Management Allowable activities in buffer Comments wetlands wetlands channels, ponw.mark intidalFlorida Water A=(NRMA)ditches, adjacenttoareas,normal high (OFW) oanaIs.wetlands water on lakel Iwaterwaysl INDIANRIVERMinimumoflOsq.Ft.ofnative vegetation buffer for Conl (public lands conservationSeeMatrixin Sec. 911.12 forpcm:ritted COUNTY each linear footofwetland or deepwater habitat Upland district)and Con (Estuarine activities and special exceptions for the three edge bufferlocatedsuch thatno less than50% oitota! wetlands conservation district): conservation districts. For shoreline protection shoreline is buffered byminimumwidthof10ft.OfNone specifically addressed in buffer. docks, boat ramps, pexviouswalkways upland habitat ""do. and elevated walkways for reasonable access Con-3(St.Sebastion River xeric to waterway. 50-ft. buffer fromwetland boundary or 100ft.fromscrub conservation district): 100mean high water, whicheveris greater; 50ft.for lotsft.from mean high water mark or platted before 6/18/91. riveror50ft.landwardof jurisdiction wetland along any river or tributary, whichever is greater; special c:x:ception for recontsc:x:isting prior toJune18,1991(Sec.911.12 (e.JEFFERSONNolocal ordinances defer toNWFWMDregulations, whichdecidesdownstream protection corridor and upland buffer requirementsDecidedonacase-by-case basis InfonnationfromphoneCOUNTYon a c.ase-by-case basis depending onthesizeandquality ofwctland, soils, slopeofsUIIoundingarea,etc. conversation with the CountyPlanning Department and NWFWMDalIi"" LAKECOUNTYNon-15ft., ShorelineTR,RE, boardwalks,fishingpiers,boat docks, BMP'sshould beused forisolated:25variable protection: 50ft.stonnwatermanagementfacilitiesto enhance or agricultural andsilviculturalft.,variablebuffer[orwith exception of maintain [unctionsof wetland orbuffer,protection activities; septictank and bufferforESA's: min:existing lots thatofnesting, feeding, orhabitat areas forDesignateddrainfidd setback fromESA's:min:ioft.;avg:cannot meet thc Species, orsupportthePropagationof other native ordinary highwaterlineofIS ft.;avg: 25ft. standard (avg. species; protection of archeological or historicallakesandwetlands; 100 n. 50ft. shoreline and site;erosioncontrolmeasures;wildlifemonitoring Existing principle structuresRivers andwetlandsetbackstationsmay be usedto establish anStreams:50 u=l)average shorelineandft.;variablewetlandsetback where buffer(or existing structures donotESA's:min: ",nfann. 35ft.;avg:100ft. pooling of native vegetation pcnnittodstructuIcs and repairs of same (i.e. erosion control structures, docks, boat rantpS, etc.)PR pruniJt.gREof exotic and nuisancepionccr plant species RECpassivc=tionactivities(hunting, fishing, swimming) TR-walkingtrails (creation andmainteoancc)


PageSWetland/UplandBufferOrdinance-SummariesfromVariousLocalFloridaGovernmentsRequired Buffer(ft.)Code AllIsolated C=ks,Retention MeanhighwaterOutstanding Natural. ResourceManagementAllowable activities inbufferCommentswetlandswetlandschannels, ponds mark intidal FloridaWater Area(NRMA)ditehe., adjacentto areas, normal high (OFW) canals,wetlandswateron waterwaysl Cityof20 ft.for15ft.for any25ft.(zoned Preservation) Distinct water-depcndent structures CLERMONT those over city25ft.wide at dedicatedtop ofbankretention or>4ft. deep; 10 it. forsmallerditchesLEE COUNTY No specific buffer ordinance forwetlands, onlyamaximum The Plan contains very density requirement ofone dwelling unit per 20 acres, with general. languageinthe some exceptions listed in Table lea), Chapter XDIoflhe goals ofprotectingof Comprehensive Plan (infonnationhasnot been received fromwetlands and conservation countyyet).lands LEONCQUNTY Vegetation cannotbedisturbed within20ft.ESA's with significant grade areas Best Management Practices (BMP's)foroftheperimeter boundaryofawetland, (10.20010)where soil type threatens Silvicultural Activities. Special buffers outlined in exceptfor certain specified conditions. erosion: 50%of site mustbe left Section 10-191forESA's in ZoneA (wetland and natural (including grade areas and floodplain ecotone fromelevation89ft.NOVDorshall be placedtoproved downhill water's edge, whichever provides more areaof buffers, protect forested areas, and protection), Zone B(transitional ecotone from buffer protected features such as elevation100ft. to 110ft.NGVD), Lake wetlands). All ESA's should apply Protection Area (based onLakeJackson basin BMl"s in25ft.buffer. boundary); sec Section10-192for other zoning defmitions for lake systems. LEVY COUNTY' No local ordinances defer to SWFWMD regulations, which ill' a minimumof15ft., average 25ft.;ERPprovides mechanism through which more Not specified; decided on .casc--by-case basis Informationfromphone stringent buffers can be appliedona casc--by-ase basis, depending on the type and quality ofwctland conversations with theCountyPlanning Department andSWFWMDMANATEECOUNTY30ft.forwetlands not contiguous with Terra CeiaAquatic Preserve, Sarasota Bay,50ft.for Terra Ceia Aquatic Presen>e"Sarasota Bay, Little PS, RB, limited clearing ofvegetation for Informationfromthe Land Little Manatee River, or inflowing watercourses within the Watershed Protection Manatee River. or infIowing watel'coW1lCS within the stonnwater management, boat launch areas no Development Code Overlay Districts and that are not upland cuiditches Watershed Protection Overlay Districts morethan10ft.wide unless approvedby Director, approved mosquito or aquatic weed control, protective barriers10limit access to the wetland or its buffer. PN" planting of nativevegetation PS -permittedstructures and rcpaiBohame (Le. erosion control sttuetures,docks, boat ramps,etc.) PRo-pruningRErCIIlO\!lI ofexotic and nuisance pioIlCef plant species REC copassiverecreationactivities(hunting,fIShing,swimming) TR... walkingnils(creation and maintenance)


Page6 {etland{Upland BufferOrdinanceSummaries fromVariousLocalFloridaGovernmentsRequiredBuffer(ft)CodeAllIsolatedCreeks,RetentionMeanhighwater Outstanding Natural Resource ManagementAllowableactivities in bufferComm_wetlandswetlandschannels, po"",mark intidalFloridaWater Ar", (NRMA) ditches,adjacenttoareas,normal high (OFW)=aIs.wet1mds wateronlakes z watelWaysl:MARTIN COUNTYFornatural50ft.Lotson man 75ft.75ft.;specific WetlandsofSpecial Concern PS(page34),RE,PN, elevated walkways Additional setbacksfrom creeks,madecanal criteria for proposed300ft.buffer for nesting wetland and uplandwhich are asofShorelineand denning areas (referenced OF preserves of10 ft.newwater bodies February 20, ProtectionZone Center for Wetlands Study titled construction of primaryconnected to1990,may(Indian, IMfq'lorucsjfnt"wooWetlstructures andfiveft.for watersof the be reduced Loxahatchee, and and Wjldlife in theEadCentralaccessorystructures (pool stateand to25 ft. with St LucieRivers f1grida Regign). decks,screen enclosures, """ certain anditsnavigable driveways); 200ft. between connections. provisions tributariesand bJ.Ifli:

Page 7WetiandlUplandBnfIer Ontiaance -SummariesfromVarionsLocalFloridaGovernmentsRequired Buffer (ft.) CodeAllIsolatedCreeks,RetentionMeanhighwater Outstanding Natural ResourceManagement Allowableactivitiesinbuffer Comments wetlands wetlands channel..po",", markintidal Florida Water A=(NRMA) ditches, adjacenttoareas,normal high(OFW)canals, wetlands water on lakes2 waterways' MONROE COUNTY No buffer Developmentpennitted in theOnmanmade canals: 1R, utility pilings, fences. Measures offinancialrdief specified, Mainland Native AreaDistrict shall public boat ramps and elevated docks, unenclosedmay be availableto secure but structure comply with applicable regulations gazebos;Scarifiedcanal shorellneJ only: boat wetlands and other lands designtypes of the Big Cypress National ramps + above".SltoreJlne setback area: specific withbeneficial uses under are strictly Preserve. Nodevelopment in aIlowed activities lengthy andoutlinedin Sec. 9.5certain conditions (See. 9.5defmedin wetlands unless enclosed, elevated 286; Shorelines identified as having turtle172).Environmental design Sec. 9.5-345 structures on pilingsorpoles. nesting areas:none;clocks,piers, and walkways criteria are specificto19(m). Commercial FishingArea Districtover lU'oml:rgedlands. wetlands,ormangrove habitats and can befoundin setbacks maybe variedona casehabitat shall be elevatedsuchthatthe landorSec. 9.5-345, but are not basis. water underneathisnot altered and remains specifically relatedto vegetated.buffers with the exceptionofthe BeachBerm,Complex. Outdoor waterfront lighting within2Sft.ofany water body shall be cutoff lights andshaIlnot exceed Igft.above grade. Nooutdoor lighting shall be permitted within 300it ofany shoreline which is capableof serving asor is listed as a turtle nesting site. NASSAU COUNTY Widths can vary around wetlandto average outto50ft.; evaluated ona basis None; buffer should be left undisturbed Infonnation from phone conversations regarding the Comprehensive Plan OKALOOSA25 ft.I COUNTY PNplanting of nativevegc:ration PS -pennittedstrucl'U%eS and repairsofsame (Le. erosioncontrolstructures,docks, boatramps,etc.) W':\192'1O\4150106CO\Table-Onlitm>cel.wpd PR pruningREarc:mo'l.'8l ofexoticand nuisance pioneerplant species REC passive=ationactivities(hl1Dling,fishing,swimming) TRwalking trails (cmuionandmaintenance)


fetlandlUplandBufferOrdinance-Summariesfrom Various LocalFloridaGovernmentsRequiredBuffer(ft.)CodeAllIsolated Creeks, Retention MeanhighwaterOutstandingNatural Resource ManagementAllowable activitiesinbufferCommentswetlands wetl"""' channels, ponds mark in tidalFloridaWater Area(NRMA) ditches. adjacentto areas, nonna! high (OFW) ..-, wetlands water on 1aJ:ceslwaterways! ORANGE COUNTY Upland buffers averaging 50ft.inwidth with fl minimum inwidthshaH be Critical AreasoftheCreatedforested or herbaceous wetlands, passive75 flfrom the control required for Class r andClassn' ConservationAreasand,where: feasible, they shall Econlockhatchee RiverBasin4 :recreation when proventheyshall not adversely elevationfor all artificial connect with each otherandwith larger natural systems. A bufferof50ft. from ft.landwardofthe river main affect aquatic and wetland-dcpendent wildlife. water bodies for septic normalhighwater elevation ofall surfacewater bodies;150ft.setback from channel, 550 ft.landwardofthe water quality, groundwater table or surface water """'. nonnalhigh water elevationofall surface water bodies. stream'sedge ofmajor tributaries, levels (Wekiva River and Critical Areasoftheand ft.landwardofedgeof Eeon River), Retentionareas intheCritical Areas wetlands abutting the main riverofthe Econ and named tributaries;550fLfrom landward limitorwatersofthestateoredgeoftheWekiva River.orfromthe landward edge ofwetlands associated withit.Cityof50ft.APOPKAPALM BEACHNo wetland jurisdiction, with the exception ofone isolated subdivision, andthereare0.0buffer requirements.SFWMD requirements ofminimwnNotspecifiedInformation from phone COUNTYISfL, average 25ft.or,if under ERPprocess,maybeevaluatedona case-by-ease basis conversation withtheCounty Environmental Resources Management-.n' PASCOCOUNTYNo local ordinances defu toSWFWMDregulations.which is a minimumofISft., average 2Sft.;ERP providesmechanismthrough which more Not specified; decided on case-by-ease basis Infonnationfromphonestringentbufferscanbe applied on a case-by-ease basis. depending on the type andqualityofwetland conversation withthe Countyplanning department andSWFWMD m plantingofnativevegetation.. permittedstructuresand repairsoCsame (i.e.erosion control strucl11res,docks, boat tamps, etc.) PR-pruning RE" removal of exoticandnuisaocepioneer plant spa:iesREC" passive recreation activities(hunting,fIShing, swimming) TRwalkiDgtrails(creationandmaintenance)


Page 9WetlandlUplandBufferOrdinance-Summaries from Various Local FloridaGovernments Required Buffer(ft.) Code AllIsolated CreW. Retention Meanhigh waterOutstanding Natural Resource Management Allowable activities inbufferCommentswetlands wetlands cbannels.pon<1smark intidalFloridaWater A=(NR.MA) ditches,adjacentto axeas,normal. high(OFW)canals, wetlandswateronlakes2 waterways! PINELLAS COUNTY 50ft. (except 15ft. 157 (those15ft.fromWidth may be reduced by !!::11.1if::!; that width is No development, those listednot edge ofadded in another portion ofbuffer or by buffer redevelopment, orfillshall under other designatedaswetlandsto enhancement upon approval byCountybeallowed withinthe25categories) preservation topofbank Administrator; maintenance of creeks, channels, yearfloodplainor100-year land useof retention canals, ditches, or otherwaterways; docks,f100dwayofany natural areas)pond provided they do not extendmore than300ft.flood storagearea.waterward oftheseawall or meanhighwater line Prohibited activitiesand prOvided thatnodocking facility encroaches structures, roads, utilities, closer than 150 ft. tothe centerlineofthe exotic vegetation planting, intracoastal waterway; those activities not listed in removing native vegetation the comments section as prohibited (including mowing or trirmningexcept forsakeof health, welfare, and safety), filling, excavation, maintenance oflivestoek, storage, and portable buildings. City ofCLEARWA1'ER25ft. (except 25ft.25ft.from2Sft. (zoned Preservation)PS,PRoRE,width maybe reduced by :s1f.Iif::!;that NRMA's) lands within width is addedinanotherportionofbuffer15ft.oftopof bank' ofthose which contain jurisdictional. wetlands CityoflSft. ISII.IS6 ft.Buffer width maybereducedthroUgh buffer OLDSMARbanking or buffer enhancement(sec Code) PUTNAM COUNTY25ft. Structures,grading, filling, dredging, vegetative CityofPalatka removal or alterationof hydroperiod byvariance only; singlc.-family homeson existing recorded lots not partofa larger common development plan,maintenanceof existing roads and drainage structures. recreationaluses,silvicultural activities other activities approved prior to August 27, 1992.PN.. planting ofnative vegetation PS" permittdtistructures and repairs orsamc(Le. erosioneODll;olstructures,dock:s, boat ramps,e!l::.)W:\l9270\4l5010600\TJoblc-Ord;n,ncos.wpd PR= pruningRE'"removal of exoticandnuisancepioneer plant species REC.. passiverecreationactivities (hunting, fIShing,swimming) TRWllikingtrails (creation and maintenance)


Page10'etlandfUpland Buffel"OrdiuauceSummaries (rom VariousLocal :FIol"ida Govel"nments RoquiredBuff'" (ft.)CodeAll IsolatedC.50 ft. and from are separate guidelines for construction in Navarre landward boundaty ofZoneBeach Canals (Section 6.08.12)2 is 45itSetback fromthe waters ofSanta Rosa Sound is50ft.ARASOTA COUNTY30 ft..except water bodies50ft.No development invegetated mangroves and scrubbybuffer under flatwoods,unless with subdivision stipulationsto protect the regulationsresource.Specialprotection botww> shallbe provided for mesio water bodies bamrnocb along the ",dMyakkaRiver andits development tributaries; wider buffers maybe required. The County shall adopt and implement a shoreline protection ordinance of amend existing ordinances soonto address additional concerns(Sec.D. page 19).Allinfonnationis from the Comprehensive Plan, Chapter 2., planting ofnative vc:getation pcrmitte'"dstructures and rc::pairs ofsamc(i.c, erosion control structures,docks, boat ramps, Clc.) PR-pruningR&ooremoval of cxotic and nuisancepioneerplan!.speciC$ REC -passiverecreation activities (hunling, fishing, swimming) TRwalking trails (creation and mainlCjjance)


PageIIWedand/UplandBuffer fromVarlousLocal F10ridaGovernments Required Buffer(ft.) Cod, AllIsolated Creoks. RetentionMeanhighwaterOutstandingNatural Resource Management AllowableactivitiesinbufferComments wetlands wetlands channels, ponds mark.intidal FloridaWater h",(NRMA) .ditches, adjacenttoareas,normalhigh(OFW) canals, wetlandswateronlakes2waterwaysISEMINOLECOUNTYSOft.average with exception oflistings underNRMA column See comments under Orange County NRMA See comments under OrangeCounty Informationper telephone conversation with Planning Depmmon' TAnOR COUN'l'Y No local ordinances defertoSRWMD regulations; which are decidedona caseCase dependent Information per telephone by-ease basis with a minimum of25ft, prefembly35 ft.orwiclerdependingon conversation with Planning quality/functionofwetland DepartmentandSRWMDVOLUSIA COUNTY 25ft. (exceptSO' ft.501ft.PR, PI.,TR, RE OFW'sand NRMA's)CityofOnnond Beach SOft. from upland/wetland edge or (Tomoka River and120ft.from mean high water line. tributaries only) whichever is greaterforTomoka and Little Tomoka Ri\!Cl'S; SOft.from uplandlwetland edge or60ft. :limn mean high water line for tributariestothe Tomaka River. Cityof TR., PS(thosethatdonot have significantadverseExemptions: wetlands Port Orange25ft.effectson natural buffer function). PI.. PRo RE. acreofsmaller, provided RECthat entire weiland areas on project do not exceed this .,... WAKULLACOUNTY50 it:limn .PI andP-2 preservation zones(toTR;development activity with approval ofProhibited activities include mean high protect ESA's andtolimit proposed site plan in accordance with other terms improvements ofbuildings, water lineof construction in wetlands. and provisionsofCOlfe.structures, pools, street anybodyoffloodplains andotherareas pavements. curbs and water1n generally unsuitablefor gutters.street signs. development): SOft. accessory buildings. storage sheds. septie tanks, and othersimilarimprovements. planting ofnativevegetationPS" permittedstructures andrepairs ofsarne [I.e. erosioncon!l'Olstructures.docks, bnalramps. ere.)W:\I'}27CM8SOI0600\Tal,k-Otdin ances.wpdPR-proning RE-removal ofexoticand nuisance pioneer plantspeciesREC .. passivereaea.tion activities (hunting.flShing,swimming)lR-walking trails (creationandmaiDtenance)


Page12'Vetland/UplandBufferOrdinance Summaries fromVarious Local Florida Governments RequiredBuffer(ft.)CodeAllIsolated Qeob. Retention. Mean highwater Outstanding Natural ResourceManagement AllowableactivitiesinbufferCommentswetlandswetlands channels,po",",mark intidalFloridaWater Area(NRMA) ditches, aijacent: to areas, normal high(OPW) c>nal1;,wetlands wateron lakes1 waterwayslWALTON COUNTY 2Sft. for wetlands and called secondal)'wetland protection zone. Secondary Wetland ProtectionZone(25ft. Certain wetland impacts, landward ofwaters oflhestate):TN.. PS, clearing where unavoidableorwhereofnative vegetation shallbelimitedto10%of properlymitigated, shallbetotal area inzone; restrictionson developmentarepermitted (Section very specific and lCl.lgthyfor ofthe zones 4.01.o2(A)(24; density identified in the previous column and canbefound transfer from wetlandto in Section 4.02.06 (pages 5-35) uplandzonesisallowedto ::uragedevelopment inands onlyENDNOTESI.Those connected tothe waters ofthestate asdefined intheFlorida Administrative Code2.The established eCCL set bytheFlorida D<:putmentofEnvironmental Protection mustalso be byall coastalcounties 3. Envirownentally sensitive areasareConsen>ationAreasaudAreas, as defUlCd in theComprehensive Plan. ConservationAreasinclude thefollowing typesorwetlands (w), naturalwater bodies(owb), anduplands (u): freshwatermarshes (w), wetplRiries (w). bardwoodswzmps(w),cypress swamp$(w).lUl1lr.Usborelines other Ibmnr.b.ln1beachesanddunes (w). ClasslliWaters (w.nwb).and sipifieantwildlif<: habitat (w, nwb,u). PreservationAreas includethe ronowing types ofwctlands,naturalwaterbodiesand uplands: coastalmarshes (w), mengroveswamps (w), marinegtaSSbeds (w,nwb), naturalbt:aclles and dunes (w,u), Class I and U Waters (w,nwb), aquaticpreserves (w,nwb), essential wildlifehabitat(w,owb,u), andnaturalpresetVeS (w,nwb.u).4. Class I COllServalionAreasshallmeanthose wetland areaswhichmeet anyor the rollowing eriteria: (I) Have a hydrological to natlUalsurhcewaterbodies; or(2) Lake:linoral zone; or(3) Arelargeisolated uninterruptedwetlands 40 acres or larger; or(4)Providecritical habitat CorfederaJ.andIOfstatelilItedtIlleattn.ed. or endangellspecic:s 5. C1ass U Conservatioo AreasshallIJ1eI! any orthefollowing criIcria: (I)Consistof isolatedwetlands or formerly isolated wetlands whichby way orman's activities have beendirectlyconnected to olbersurf.lcewaterdrainage;andaregreaterthan or equal to 5IC{CS; or(2)Do no!:oIhC(Wisequalifyas a ClauICons.o:tYalionA1:eL 6. River corridor protection%One!hat includes the mainriver cbannel of theBigEconIoekhatcheeRiver (&on River) andit'smajor Iributaries(&onlocIcbatchee RiverSwamp,FourmileCleek, Little Creet,TurkeyCreek,Green.Branch,Cowpc:nBranch,Hart Brancl\,IlIIdLongBWlcb).Thesm:am'sedge: is defmed as thee:xten.t of therhowever, ir reliablebydrologicrecordsm not abailablc.theliI!1dv.'3rdextent ofthe hctbat:couscmtlgeDtwetlandvegetationgrowinginthesestreamsshall be consideted tobethe stream'sedge.Thisprotection zone shall besubjeet to section15-440 orthis article until a flnaIfunctional studyis approved by the COUilty.7. Measlndfrom outside the toporbaIlk or contiguouswetlandwb.ieh.e