Title: Wave
Full Citation
Permanent Link: http://ufdc.ufl.edu/WL00001468/00001
 Material Information
Title: Wave
Physical Description: Book
Language: English
Publisher: Water Management Institute, Inc.
Spatial Coverage: North America -- United States of America -- Florida
Abstract: Wave, June 1994
General Note: Box 8, Folder 5 ( Vail Conference, 1995 - 1995 ), Item 82
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001468
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

A Publication of the Water Management Institute, Inc.

June 1994

Federal Wetlands Permitting
and Jurisdiction
State Assumption of Federal Wetland Permitting

The Water Management Institute
has an active interest in the
state/water management districts'
,.,assumption of all or part of the
( federal Wetlands Permitting pro-
grams. The private sector needs to
be involved in the delegation deci-
sions to protect our interests and
the Water Management Institute
Board has assigned Sandy Young
to take the lead in involving the
The Florida Department of
Environmental Protection has con-
tracted with the Phoenix
Environmental Group, Inc. to
explore the delegation. Mr.
Randall L. Armstrong. Executive
Vice President of that firm, pre-
pared the following paper which is
presented with .his compliments.
The State of Florida Department
of Environmental Regulation (now
Part of the Department of
Environmental Protection, DEP)
has been considering options to
takeover federal wetand permit-
"i"ng responsibilities for a number
of years. The state and federal
agencies have considered such a
change for two primary reasons.
First, combining all or a portion of

the regulatory programs into one
agency could eliminate (or at least
reduce) duplication that currency
exists sort of "one stop shop-
ping." The regulated public
should benefit with a simplified
and theoretically faster and less
costly permitting process. Second,
such consolidation could allow
state and federal agencies to make
better use of limited resources,
possibly providing a better degree
of resource protection.
Before discussing issues specific to
Florida, a review of the federal reg-
ulatory authority is warranted.
Section 404 of the Clean Water
Act of 1977defines waters of the
United States." This definition
includes most open water and wet-
lands (both connected and isolat-
ed).The responsibility to imple-
ment the Act is shared between
the Environmental Protection
Agency (EPA) and the Army
Corps of Engineers (Corps).
Section 10 of the Rivers and
Harbors Act of 1899 also man-
dates the regulation of activities in
waters. Jurisdiction under this Act
is limited to navigable waters, with
the sole responsibility for imple-
mentation resting with the Corps.

State consideration of taking over
the federal dredge and fill pro-
grams must focus on primarily
(but not entirely) these two acts.
Basically, three options currently
exist for a combined state/federal
program. The first would be for
the state to "assume" federal
responsibilities pursuant to Section
404 of the Clean Water Act. With
this option, the state would estab-
lish a program under state authori-
ty that would have to provide
equal or greater protection to state
waters and wetlands. The EPA
and Corps would essentially allow
the state to regulate wetlands and
waters covered by that Act with
respect to dredge and fill permit-
ting in lieu of the federal program
continuing to operate. The "404"
responsibilities could be assumed
by Florida under an agreement
negotiated between the state, EPA
and the Corps. The federal agen-
cies (including U. S. Fish and
Wildlife Service and National
Marine Fisheries Service) would
provide oversight.
To date, only one other state
See 404 update on Page 2


404 Update
Continued from Page 1

(Michigan) has operated a program
under 404 assumption but others
are considering such a move or
have proposed a program that is
under review (New Jersey has just
received approval). There are a
number of reasons given as to why
more states have not developed a
404 program. One of the greatest
problems is that all waters are not
assumable under 404. In addition,
the regulatory responsibilities
under Section 10 cannot be
assumed by the states. Therefore, a
fragmented state/federal program
would result with only assumption
in place. Other problems have
been the restrictions on state
assumption contained within the
Clean Water Act and the lack of
substantial start-up and operating
-0The second method for the state to
take over some federal wetand
responsibilities is through the
development of a State
Programmatic General Permit
(SPGP). Simply put, an activity
covered under and SPGP would
require state authorization but, if
granted, such authorization would
result in "automatic" federal
approval. The state authorization
document (e.g. permit or exemp-
tion) could actually serve secondar-
ily as the federal authorization.
Again, federal oversight would be
included per the SPGP. A number
of states have such programs in
The third method for a state to
take over federal wetland responsi-
bilities would be through combina-
tion of a 404 and SPGP program.
Since certain waters and the
responsibilities under Section 10
,are not "assumable" under Section
( 404, a 404/Section 10 joint pro-
gram can be considered to allow
regulation of all waters by a state.
In Florida, Section 10 water may
constitute over 50% of regulated

water and wetand areas. To fur-
ther complicate matters, significant
statutory changes would likely be
needed for Florida to assume 404
waters as well as to obtain an
SPGP. However, the same statuto-
ry changes may make it possible
for Florida to obtain an SPGP cov-
ering essentially all waters of the
state (eliminating altogether the
need to pursue 404 assumption).

Therefore to accomplish the goal
of streamlined wetland permitting
in Florida (at least as it relates to
the federal program overlap), it
would appear that Florida must
either assume the Section 404 pro-
gram and obtain authority in non-
assumable waters under an SPGP,
or negotiate an SPGP for all
waters. Florida has been actively
evaluating options to take over the
federal program for some time.
Our firm, Phoenix, was selected to
begin a study of assumption and
SPGP's for DEP in November,
1992 and that work is continuing.

However, Florida's ability to take
over the federal wetand program
was somewhat complicated in
1993. The Legislature passed the
"Florida Environmental
Reorganization Act of 1993" which
not only created DEP, but mandat-
ed considerable rulemaking and
organizational changes to the regu-
latory program. In the area of
dredge and fill regulation, DEP
and the Water Management
Districts are in the process of
developing rules for, among other
things, a new wetland delineation
methodology and a new permitting
process (the Environmental
Resources Permit ERP).

Since these and other aspects of the
new Florida wetland regulatory
program are still being developed,
the state has decided not to pursue
404 assumption at this time.
Instead, Florida has begun discus-
sion with the federal review agen-
cies and affected state agencies to
evaluate the possibility of negotiat-

ing a limited SPGP. The SPGP
would allow the state to review cer-
tain dredge and fill activities which
the federal agencies agree can be
evaluated in such a manner under
current state statutes to provide
equal or greater wetland protection
as the federal program provides.
An informal test program would be
put in place, which may be limited
geographically, to allow the state
to"get its feet wet" in assessing cer-
tain types of projects from a federal
perspective and to allow the federal
agencies to develop a new coordi-
nation and review process. If the
"test program" is successful, Florida
and the federal agencies would
consider formalizing and expand-
ing the program under a negotiated
SPGP and, if desirable, pursuing
404 assumption.

DEP and the federal and affected
state agencies have met several
times to evaluate and begin to
develop the SPGP informal test
program. The test program would
only focus on certain proposed
dredge and fill activities that could
be evaluated under the current
state statutory authority that would
conform to federal requirements.
If successful, and after current rule-
making is completed and any 1994
statutory changes are in place,
DEP would consider expansion of
the program under an SPGP and
whether to pursue 404 assumption.

ERP Update

The Suwannee River, St. Johns
River Southwest Florida and
South Florida Water Management
Districts and the Department of
Environmental Protection all
noticed proposed rules to imple-
ment the Environmental Resources
Permit Program in May of 1994.
To date a number of comment let-
ters have been received, and ten
formal objections and petitions for

See ERP on Page 3

~ 2 *99*******


The 1994 Florida Legislative
Session was extremely active in
water resource issues even extend-
ing to a one week overtime. By the
time it was all over, the following
actions took place.

The Consolidated Environmental
Resource Permit (ERP) passed and
included implementation money
for DEP and the Suwanee River

The Wedands Delineation Bill
passed which also included refer-
ring the recent State Water Policy
changes to the Land and Water
Planning Task Force to report back
to the 1995 Legislature. The
changes made to State Water Policy
in December, 1993 are on hold
( "pending the 1995 session.
The reorganization of DEP passed
without the Game & Fish merger

The Water Management District
Review Commission passed creat-
ing a 21 member committee to
review the WMD institutional
framework and administrative
powers. The commission is not
supposed to review the regulatory
functions. The President of the
Senate Speaker of the House, and
the Governor are to appoint 7
members each according to a pre-
scription in the law. The Governor
will name the chair.

House Bill 1305 passed which
includes many provisions to pro-
mote Reuse and affects activities, of
local governments, WMD's, DEP
and the PSC.

Included in another bill was some
reliefe f for small Counties from pay-
ing permit fees over $100 to DEP
& WMD's.

The "For Everglades" Bill passed

setting up a time frame and cost
allocation for a proposed restora-
tion of the Everglades and induded
some provisions to begin dean-up
of Florida Bay.

The Green Swamp Bill passed
which set up a commission to eval-
uate land ownership in the Green
Swamp Area of Critical State con-
cern and develop a less than fee
simple acquisition process for cer-
tain lands by SJRWMD and

Other matters that passed include:
* Requirements for WMD
Governing Boards to employ an
Inspector General.
* The next Issue of P2000

*A change in the SWIM match
for NFWMD and SRWMD to

* $10 Million for SWIM

* The Indian River Lagoon
License Tag

* The first year of studies for Lake
Jesup restoration.

* A bill providing for streamlined
land acquisition by the State, espe-
cially if a joint project with a

What did not pass:
*WMD Sunset
* WMD ad valorem tax cap
* P2000 dedicated funding
* Geneva Lens Bill
* Property Rights Bill
* Blue Belt Bill
* Water Well Construction


Legislative Report

Continued from page 2

an administrative hearing on the
validity of the proposed rules have
been fled.

Nine of the ten petitions deal with
issues that are virtually identical or
have significant overlap between
the water management districts
and the Department. The water
management districts and
Department, and most of the peti-
tioners are asking the Division of
Administrative Hearings to consoli-
date nine of the petitions into a
single hearing. The tenth petition
challenges portions of the rules of
the Southwest Florida Water
Management District that are
unique to that district, and the par-
ties have opposed consolidation of
this petition. In the motions to
consolidate the petitions, counsel
for the water districts,
Department, and nine petitioners
have recommended a 10-day hear-
ing schedule to commence on
September 26, 1994, in either
Orlando or West Palm Beach.

Rather than consider final adop-
tion in June as originally contem-
plated in the notices of rule devel-
opment, final adoption hearings
will be continued pending comple-
tion of the hearings. Prior to the
hearings, the water management
districts and Department will be
working with persons who have
offered comments or suggestions
and the petitioner's, to resolve as
many issues as possible through the
rule amendment process. The first
round of rule amendments, mostly
minor technical amendments and
non-controversial amendments
arising out of comment letters,
will be considered by the water
management district Governing
Board. Then, a more substantive
round of amendments to hopefully
address some of the major out-
standing issues are contemplated
for the July and August Governing
Board meetings.


********e* 3 e***9e****


President's Message
The Board of Directors of the Water Management Institute held its annual meeting on March 19, 1994 in Tallahassee, Florida. The
purpose of the meeting was to elect the Board of Directors (BOD) and Officers for the upcoming year. In addition, a list of activities
('were discussed for the upcoming year.
The Board of Directors elected at the meeting are as follows: Officers
Sandy Young Rod Fields Doug Manson Howard Searcy President: Bob Higgins
Gerry Ward Bob Higgins Olin Braids Earl Masteller Vice President: Sandy Young
Chris Bentey Buddy Blain R.S. Murali Marty Jessen Secretary: Rod Fields
Al Robertson Jack Maloy Treasurer. Olin Braids
I am certainly pleased to have been elected President of this organization. I look forward to facilitating many of the activities outlined by
the BOD for the upcoming year. In addition, I along with the entire membership need to recruit new members for this infant organiza-
One of the activities discussed at the Board of Directors' meeting was the newsletter which we have decided to publish quarterly.
Hopefully at some time in the future, it can be published bi-monthly and maybe even monthly. We also continued discussing th produc-
tion and sales of a weather /water calendar for the State of Florida. In January of 1995, we will be the primary sponsor and organizer of
the "1995 Water Management Seminar" in Vail. This seminar has been previously sponsored by Fink, Inc.
After the WMI meeting, the annual meeting of the Water Management Association was held. This organization will not be a non-profit,
tax exempt corporation which will allow it to be involved with many different activities that the WMI could not get involved with.
The BOD for the Water Management Association is the same as the Board for the WMI, however, the Officers are as follows:
President: Doug Manson Vice President: Sandy Young Secretary: R.S. Murali
The WMA Board decided to pursue as a private sector initiative, the delegation or assumption of the Federal Section 404 permitting pro-
gram (See article contained herein).
Any members who wish to become more involved with the Institute (or the Association) or contribute to the newsletter, are urged to call
me (407) 439-7807 or any other Board Member.
The next meeting of the WMI and WMA are scheduled for July 23, 1994 in Key West at the Casa Marina Hotel. Any member that is
-N attending the AWRA meeting is welcome to attend. I hope to see you there. Bob Higgin


VWer Management Instiste Inc
P.QO Bo 399
Tapa FL 33801


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