Title: Memorandum: Water Management District Rules Concerning Isolated Wetlands
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00000738/00001
 Material Information
Title: Memorandum: Water Management District Rules Concerning Isolated Wetlands
Physical Description: Book
Language: English
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Memorandum: Water Management District Rules Concerning Isolated Wetlands, December 9, 1986
General Note: Box 7, Folder 2 ( Vail Conference 1987 - 1987 ), Item 14
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00000738
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


TO: Chuck Littlejohn

FROM: W. Ross McWilliams

DATE: December 9, 1986

SUBJECT: Water Management District Rules
Concerning Isolated Wetlands

These first comments are of a general nature and apply

to the drafts of both the South Florida and Southwest

Florida Water Management Districts. The current drafts seem

to be based on DER mitigation policy rather than any

understanding of wetlands. The drafts lack a rationale or

technical basis for the few standards that they attempt.

Those standards that are set forth are generally vague but

this is not unusual in water management district rules. It

appears that the water management districts have been

getting away with this kind of thing in their rules for a

number of years and this would seem to be just a

continuation of the same behavior. The current drafts of

both districts are amazingly similar and I suspect some kind

of common effort in producing them. Both drafts seem to

have an unstated philosophy that working in isolated

wetlands is prohibited. They then proceed to explain under

what circumstances working in wetlands will be allowed and

in both cases, that is in both drafts, the circumstances are

( few and difficult. Of major importance in both of the

^drafts is the issue of endangered or threatened species.

Technically, the reference to the Game and Fish rules

concerning endangered and threatened species is not correct

because they do not cite the date of the effective rule,

therefore, one can never determine which set of rules is

appropriate in attempting to meet the standards. Perhaps
more important is the fact that the Game and Fish

promulgates these rules outside of the regulatory system and

is addressing concerns that have nothing to do with the

water management district or the DER. In fact, many of the

organisms found on these Game and Fish lists are placed

there because the organisms represent a particular habitat

type that the Game and Fish Commission is concerned about

rather than the organism per say. A prime example of this

is the Gopher Tortise which is really not endangered or

threatened, but rather, is a member of Xeric community which

the Game and Fish Commission is concerned about. That is,

they are concerned about the Xeric community. Most members

of the regulated public do not participate in the Game and

Fish rule promulgation process and typically are not even

aware of the process. The result is that you have secondary

standard setting by an agency not empowered to regulate.

Both water management districts seem to rely on the

myth of "uncertainty of mitigation technology" to justify

the mitigation ratios. This myth was first promulgated by

the DER in the development of their mitigation policy and

has its roots in the opposition to the oxy mining in

Hamilton County. There has since been testimony by the DNR

and numerous individuals at the mitigation workshops, that

mitigation technology is not uncertain and, quite to the

contrary, fairly well developed for most types of aquatic

communities. There are certain exceptions to this, but

these exceptions are well-known and could be delt with on a

case-by-case basis.

Both drafts also include or rely on what they term a

"flexible design criteria". I would prefer to call it the

"mystery standard". Basically, the use of the flexible

design criteria means that the applicant goes in and

negotiates with the district staff to come up with something

that is economically feasible to the applicant and

environmentally acceptable to the district. Our experience

with regulatory agencies allows us to predict that the use

of the flexible design criteria by the applicant will simply

mean being subject to the personal philosophy of some

particular group of regulators. In the past, this has not

served as an efficient means of evaluating applications.

Instead, it has propagated a system of government and

regulation by personality.

Finally, both districts seem to use extensively the

concept of reasonable assurance. As we know, this is a

rather difficult concept to address from the applicant's

standpoint and districts' use of the concept does not

reflect much understanding of it as it's used in Chapter 403

I / I I

and Chapter 174. Reasonable assurance is simply another

way of saying you have to make the particular permit

processor happy and if you cannot do that, your alternative

is to request an administrative hearing. From a time and

money standpoint, we know that this is usually not an

acceptable alternative.

As we have discussed before if somewhat briefly, a more

desirable regulatory scheme would include the notion of

reasonable size thresholds for triggering the regulatory

scheme and then the implementation of a set of standards to

evaluate the goodness of a permit application or proposal.

The South Florida Water Management District draft appears to

have the more reasonable size threshold for these isolated

wetlands. The Southwest Florida Water Management District

draft with a threshold of 0.5 acres is not reasonable.

There are probably very, very few isolated wetlands that

would be excluded by this size threshold. In fact, this

might only capture such things as small sinkholes. Most of

the isolated wetlands that we will be dealing with will fall

in one of two categories and in the Southwest Florida Water

Management District it will be temporary or seasonable

herbacious marshes, typically running from several acres up

to approximately ten acres. In the South Florida Water

Management District, we will have a combination of

seasonable herbacious marshes and isolated cypress domes.

The type of vegetation growing in these systems is probably

a function of a large number of things including basin

morphometry prevalence of fire land management activities

and historic land uses. Any draft rule produced should

acknowledge these various factors and should also include

the recognition of reasonable use of the land. Here, I am

concerned about the ability of a landowner to timber these

lands and harvest the timber or engage in other practices

which have historically been deemed acceptable and, in fact,

which may have generated or modified these weapons.

The current drafts by these two water management

districts do not appear to be a sincere effort to come up

with workable rules. Instead, they look like something that

was thrown together simply to satisfy the deadline contained

in the law. At this point, we have several alternatives:

' we can go back and attempt to change the law to give them

more direction which hopefully will result in some of type

of reasonable regulation or; we can fool around with these

rules until the deadline has passed in an attempt to make

something workable out of them. I personally prefer the

first alternative since it would result in a more efficient

use of time by all parties concerned. In doing that, we

can, as we are doing with the DER mitigation rule, continue

to rearrange the deck chairs on the Titanic.

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