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WETLANDS AND WATER
LAW CONFERENCE
i FOR ENGINEERS,
SURVEYORS &
ATTORNEYS
TRANSCRIPT OF
PROCEEDINGS
APRIL 14-15, 1977
KISSIMMEE, FLORIDA
Sponsored By:
The Real Property, Probate and Trust Law Section
of The Florida Bar
The Environmental Law Section
of The Florida Bar
The Florida Section
American Society of Civil Engineers
The Florida Society
of Professional Land Surveyors
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WETLANDS AND WATER LAW CONFERENCE
FOR ENGINEERS, SURVEYORS & ATTORNEYS
Sponsored by:
The Real Property, Probate and Trust Law Section
of The Florida Bar
The Environmental Law Section
of The Florida Bar
The Florida Section
American Society of Civil Engineers
The Florida Society
of Professional Land Surveyors
APRIL 14-15, 1977
PROGRAM 9
THURSDAY, APRIL 14- 10
8:00 a.m. REGISTRATION
9:00 a.m. WELCOME
910 a.m. POLICY STATEMENT ENVIRONMENTAL OVERVIEW 11
9:40 a.m. AGENCIES INVOLVED IN REGULATING WETLANDS
1. Corps. of Engineers Jacksonville District Office Staff 12
2. DER James Brindell, Esq., Tallahassee
3. Division of State Planning Louis Hubener, Esq., Tallahassee
4. Chapter 373 Water Management Districts Donald R. Feaster, 13
P.E., Exec. Dir., Brooksville
5. Regional Planning Councils Staffs
12:00 noon LUNCH (included in your registration fee) 14
1:30 p.m. IDENTIFYING WETLANDS
1. Biological R. Linthurst, M.S., Raleigh, N.C.
2. Hydrological C. K. Sarkar, P.E., Naples 15
3. Geological Lorraine Teleky, Esq., Lyndhurst, N.Y.
4. Remote Sensing Analysis Donald Thompson, A.I.A., Atlanta16
3:30 p.m. PROPOSED FLORIDA FRESH WATER BOUNDARY
DETERMINATION ACT OF 1977 Daniel Fernandez, Esq.,
Gainesville; Paul O'Hargan, R.L.S., Naples 17
3:50 p.m. RIVER AND LAKE BOUNDARIES Sherman Weiss, Esq.,
Tallahassee; George Cole, R.L.S., Tallahassee
4:20 p.m. COMMON PITFALLS 18
1. Legal Implication of Unauthorized Dredge and Fill Activities -
Daniel Richardson, Esq., Jacksonville
2. Common Pitfalls in State Regulatory Process W. Daniel 19
Stephens, Esq., Bartow
5:00 p.m. PROGRAM ENDS 20
FRIDAY, APRIL 15 21
8:30 a.m. REGISTRATION
9:00 a.m. COASTAL WETLANDS 22
1. Coastal Setback Lines- William M. Sensabaugh, P.E.,
Tallahassee
2. Finding The Mean High Water George Cole, R.L.S., 23
Tallahassee
,-a-m" l INLAND WETLAND CASE STUDIES
1. Green Swamp George Stahlman, Bartow, Polk County 24
Development Administrator
2. Lake Washington Dr. George Comwell, Gainesville
T NV ENGINEER IN WATER MANAGEMENT Charles King; P.E., 25
I registration fee)
ANT RELATIONSHIPS IN COASTAL
fghodb, EAq., Tallahassee; Dan Farley,
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Sponsored By
The Real Property, Probate and Trust Law Section
of the Florida Bar
The Environmental Law Section
of The Florida Bar
The Florida Section
American Society of Engineers
The Florida Soceity
of Professional Land Surveyors
THE PRESENTATION OF
MR. GEORGE CRAIG
AS REPORTED BY
LELAND GAMBLING, C.S.R., C.M., R.P.R.
Notary Public
State of Florida at Large
April 14, 1977
ORLANDO HYATT HOUSE
6375 Space Coast Parkway
Kissimmee, Florida 32741
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I
WETLANDS AND WATER LAW CONFERENCE
FOR ENGINEERS, SURVEYORS & ATTORNEYS
1 PROCEED ING 1
2 MR. CRAIG: Good morning. Colonel Donald Wisdom 2
3 would like to express his appreciation for
4 allowing the Corps to be a part of this 4
5 program. We always like to present as much
6 information as we can to as many people about
7 the 404 program in our wetlands protection
8 program so that we avoid a lot of those phone
9 calls.
10 I would like to ask the man in the back 1
11 to turn on the slide projector, and I'll go 11
12 into a little bit of the history of the 1E
13 program and then Burt will discuss a great 1:
14 deal about the criteria that the Corps is 1I
15 using in evaluating wetlands permits, and 1
16 then I'll give a little brief presentation 11
17 at the end on where we're going from here. 1
18 We have presently some legislation that 1
19 may affect our jurisdiction considerably, 1
20 particularly in what are known as Phases Two 21
21 and Three. We have the Rivers & Harbors Act 2
22 of 1899 as the first piece of major 2Z
23 legislation that affects wetlands in Florida 2
24 and elsewhere. We until about 1968 were 2
25 primarily concerned with just if your 2
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structure or fill blocked navigation. Of
course, this changed with increasing
environmental awareness in our country, and
the Corps pronounced new rules in December
of 1968, giving a widespread area of public
interest review. We continued this procedure
up until the present time through any Section
10 permit.
Now, in about 1972, the Corps promulgated
a regulation on the definition of navigable
waters of the United States, and in that
definition we said, we expanded our
jurisdiction into these wetlands that were
below the mean high water line. It added
below the ordinary high water line. It did
include marshes and shallows, provided they
were below the mean high water line. And the
surveyors had a good time, I guess, tromping
through the mangroves to try to find the mean
high water line, and we have litigated a
number of cases over where that elusive line
is. And we promulgated that regulation in
September of 1972, and Congress decided to
change the rules in October of 1972 and passed
the Federal Water Pollution Control Act
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1 Amendment.
2 Now, the Corps, having decided that they
3 spent a long time on promulgating a regulation
4 to define navigable waters of the United
5 States, took three years before it decided
6 it was going to change its navigable waters
7 of the United States. Well, actually, they
8 didn't decide; they had a little bit of arm
9 twisting. We had the Holland case in Florida,
10 which some of you are aware of, in which EPA 1
11 litigated against a developer over in St. 1
12 Petersburg and determined that mean high water 1.
13 line was not the criteria, that it went up 1
14 into coastal wetlands that are periodically 1
15 inundated by the tides and we were also 1
16 sued by the Natural Resource Defense Council. 1
17 And the Court in Washington ruled that the 1
18 Corps would issue new regulations to come up 1
19 with an expanded jurisdiction above the mean 1
20 high water line in coastal wetlands and also 2
21 in freshwater wetlands. 2
22 The term in the FWPCA was "Waters of the 2
23 United States," even though the Act, 2
24 throughout the FWPCA, talks in terms of 2
25 navigable waters, and the Courts gave us the 2
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expanded jurisdiction.
Now, the Corps also has applied to it
a series of additional legislation that aids
in the public interest review process. The
Fish & Wildlife Coordination Act was
promulgated in 1958, but it started to get
emphasis in about 1968, and in 1970, I think,
they signed the memoranda of understanding
between the Secretary of Interior and
Secretary of the Army relatingto coordination
on Corps permits. It means, basically, that
if the Department of Interior objects to a
project that the Corps things it might issue
a permit on, the decision has to go to
Washington or at least to Atlanta to see if
the Corps can overcome Interior's objections.
Obviously, if Interior registers an
objection to a project, it can mean a
considerable delay to anybody seeking a
permit. We have NEPA, which relates to any
major projects that you may have under
consideration. That was passed in 1969.
It involves the preparation of an environmental
impact statement when the granting of the
Federal permit may be a major Federal action
1 significantly affecting the quality of human
2 environment. That long phrase has been
3 interpreted in a number of cases, all of which
4 does not help clarify exactly what it says.
5 I can say that in the Jacksonville district
6 every project gets a threshold look at,
7 whether or not it is one, and then we wait
8 for comments from the general public, and if
9 controversy arises, a considerable amount of
10 controversy arises, there's a very good
11 chance, even though it may seem like a middle-
12 sized project or a smaller-sized project,
13 that an environmental impact statement will
14 be prepared.
15 We have the Coastal Zone Management Act
16 of 1972, which I'm not going to say a great
17 deal about, since the State does not have an
18 approved coastal zone management plan. When
19 the State does, it can mean that it's another
20 stopping point in the coastal zone areas
21 before you can get a Corps permit for
22 development, whether it's in wetlands or in
23 other areas.
24 One other act that is not shown on the
25 slides is the Endangered Species Act. Much
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1 of Florida coastal areas are known as
2 critical habitat and have been designated as
3 such for the Florida manatee. In addition,
4 parts of the Everglades National Forest and
5 in that area has been designated critical
6 habitat for the Florida alligator -- Florida
7 crocodile, excuse me.
8 The significance of this Act is that
9 the Corps, as in the Fish and Wildlife
10 Coordination Act, has to go through certain
11 formal coordination procedures with the
12 Department of Interior to determine whether
13 or not the authorization of a Federal permit
14 will significantly affect or modify the
15 habitat of an endangered species, in this
16 case, the Florida manatee or the Florida
17 crocodile.
18 There may be other plants and other
19 animals which could be designated as
20 endangered species and in which certain
21 habitat would be designated as critical
22 habitat where the Corps would have to go
23 through these formal consultation procedures.
24 The Federal Register in mid-January
25 showed a proposed rule on consultation
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1 procedures, and the Jacksonville District
2 is beginning to follow those procedures,
3 even though they have not been finalized as
4 a rule in obtaining consultation from
5 Interior. In essence, it requires a 60-day
6 threshold determination by Interior, and then
7 upon receipt of all the information, they
8 have 60 days in which to give a final decision
9 to the Agency on whether or not there is a
10 significant effect on the habitat by the
11 authorization of a permitted project.
12 Finally, the Court cases that have had
13 a great deal of bearing on our permits
14 program, first of all, was Zabel v. Tabb, in
15 1970. That Fifth Circuit decision allowed
16 the Corps to get into that extensive public
17 interest review. Further, it is one that
18 did away with this old criteria of navigation
19 and allowed us to get into this full fledged
20 environmental review.
21 The second major case would be NRDC v.
22 Hoffman, or the Secretary of the Army, that
23 got us into the 404-B jurisdiction.
24 I'd like to turn the microphone over now
25 to Mr. Heimer, who will explain a great deal
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.1 of the criteria they use in evaluating
2 wetlands projects.
3 *
4(At this point, the
5 presentation of Mr. Bert Heimer was given,
6 after which the following presentation by
:7 Mr. Craig was continued:)
8 One thing Bert didn't give you and I
9 think you might want to take it down for your
10 own reference, we'll give you the Jacksonville
11 District's Permit telephone number, which
12 is Area Code (904) 791-2211, and as we say,
13 that the Jacksonville area is, of course,
14 peninsular Florida. If you're west of the
15 Aucilla River, Mobile District will be
16 handling the permit application. Peninsular
17 Florida is in the Jacksonville District. I
18 don't have Mobile's telephone number. (It's
19 (205) 690-2660) And I'm sure if you just
20 state the area that you're interested in
21 talking about a permit, they can direct you
22 to the proper project manager.
23 I'd like to at least briefly talk about
24 H.R. 3199, which is a bill, part of the
25 Wright Amendment, which has passed the House
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i 1 and is in committee with the Senate, and this
2 bill significantly changes the Corps'
3 jurisdiction, not necessarily in coastal
4 wetlands, not necessarily in freshwater
5 wetlands, but in phases two and three that
6 we've talked about before. The Bill added
7 the concept of "adjacent wetlands" to the
8 term "navigable waters" and adopts pretty
9 much the definition of adjacent wetlands that
10 is talked about in the Corps' July, 1975,
11 regulation. It reads pretty much word-for-
12 word. Indeed, it includes the concept that
13 I find a little unique, that is, adjacent
14 or contiguous wetland, and the Corps is
15 taking the position that by "adjacent," if it
16 is separated by a dike, it can still be
17 within our jurisdiction from the waterway
18 that is nearby, and dike wetlands have been
19 and are continuing to be subject to our
20 regulatory jurisdiction.
21 The Bill does away with the concept of
22 historic navigation for determining whether
23 or not the wetland area is subject to our
24 jurisdiction. In other words, the Bill says
25 that the term "navigable waters" shall mean
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1 "all waters which are presently used or are
2 susceptible to use in their natural condition
3 or by reasonable improvement as a means to
4 transport interstate or foreign commerce
5 shoreward to their ordinary high water mark,"
6 and as well as the mean high water mark. It
7 does away with the concept of historic
8 navigability in making a determination as to
9 whether 404 jurisdiction would apply. That
10 may mean something to the lawyers. I'm sure
11 the engineers have a great deal of trouble
12 with that concept, anyway.
13 It carries over the "characterized by
14 wetland vegetation" and that term, I would
15 like to elaborate a little bit. It means
16 that even if the area doesn't have the
17 vegetation, but a biologist says that it
18 could be characterized by the vegetation,
19 such as the situation where someone has come
20 in and cleared the area, but which you can
21 now see it would still be inundated and
22 mangrove probably could eventually establish
23 themselves, that we would be asserted
24 jurisdiction in that area.
25 The Bill gives the State the option of
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1 regulating phases two and three, providing
2 they enter into an agreement with the Chief
3 of Engineers.
4 It gives the Corps statutory authority
5 for general permits. You may have seen some
6 who are generally using it for docks and
7 permissible smaller structures. In Georgia,
8 they are working on a permit for clay
9 excavation. It is a concept that can cut a
10 lot of red tape, and we're going to be
11 working closely with the State in coordinating
12 our general permits along with their
13 exceptions.
14 The Bill also carries over some of the
15 exemptions that are contained in our July,
16 1975 regulations, including the determinations
17 related to "normal farming, silviculture,
18 ranching activities, including but not
- 19 limited to plowing, terracing, cultivating,
20 seeding, and harvesting for the production
21 of food, fiber, and forest products."
22 It allows "maintenance of currently
23 serviceable structures, including dikes,
24 dams, levees, groins," et cetera, et cetera.
25 The Bill also has in it that applies
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1 not only to the Corps but to EPA provision
2 that allows after an agency like the Corps
3 or EPA has promulgated a regulation, it
4 Allows a period of 60 days for the Congress
5 after it has gone into Session, from 60 days
6 in which the Congress may by a vote of either
7 House or the Senate overrule the regulations
8 put in by the agency. So that the Corps
9 could come in and redraft their current
10 regulations as they may have to do if the
11 Bill goes through, and the House or Senate
12 could strike them down. This is, I guess,
13 Florida is doing this, and I think that we're
14 going to see more of this in a Federal level
15 where the House and Senate want to have some
16 say-so over whether or not the rules and
17 regulations that Federal agencies are
18 implementing are consistent with the
19 legislation the Congress enacted.
20 I will put a copy of the two sections
21 that we've talked about in the -- give them
22 to the Court Reporter, and he will include
23 them in the transcript that he sends to you.
24 Thank you very much.
25
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1 EXCERPT
E x c E R p TI.
2
3 95th CONGRESS 1st Session
4 H.R. 3199
IN THE HOUSE OF REPRESENTATIVES
5
6 A BILL
7 * *
8 PERMITS FOR DREDGED OR FILL MATERIAL
9 Sec. 16. (a) Subsection (a) of section
10 404 of the Federal Water Pollution Control
11 Act (33 U.S.C. 1344) is amended by adding
12 immediately after "navigable waters" the
13 followings: "and adjacent wetlands".
14 (b) Such section 404 is further amended
15 by adding at the end thereof the following
16 new subsections:
17 "(d) (1) The term 'navigable waters' as
18 used in this section shall mean all waters
19 which are presently used, or are susceptible
20 to use in their natural condition or by
21 reasonable improvement as a means to
22 transport interstate or foreign commerce
23 shoreward to their ordinary high water mark,
24 including all waters which are subject to
25 the ebb and flow of the tide shoreward to
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1 their mean high water mark (mean higher high
2 water mark on the west coast.)
3 "(2) The term 'adjacent wetlands' as
4 used in this section shall mean (A) those
5 wetlands, mudflats, swamps, marshes, shallows,
6 and those areas periodically inundated by
7 saline or brackish waters that are normally
8 characterized by the prevalence of salt or
9 brackish water vegetation capable of growth
10 and reproduction, which are contiguous or
11 adjacent to navigable waters, and (B) those
12 freshwater wetlands including marshes,
13 shallows, swamps, and similar areas that are
14 contiguous or adjacent to navigable waters,
15 that support freshwater vegetation and that
16 are periodically inundated and are normally
17 characterized by the prevalence of vegetation
18 that requires saturated soil conditions for
19 growth and reproduction.
20 "(c) Except as provided in subsection (f)
21 of this section, the discharge of dredged or
22 fill material in waters other than navigable
23 waters and in wetlands other than adjacent
24 wetlands is not prohibited by or otherwise
25 subject to regulation under this Act, or
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1 section 9, section 10, or section 13 of the
2 Act of March 3, 1899.
3 "(f) If the Secretary of the Army,
4 acting through the Chief of Engineers, and the
5 Governor of a State enter into a joint
6 agreement that the discharge of dredged or
7 fill material in waters other than navigable
8 waters and in wetlands other than adjacent
9 wetlands of such State should be regulated
10 because of the ecological and environmental
11 importance of such waters, the Secretary,
12 acting through the Chief of Engineers, may
13 regulate such discharge pursuant to the
14 provisions of this section. Any joint
15 agreement entered into pursuant to this
16 subsection may be revoked, in whole or in
17 part, by the Governor of the State who entered
18 into such joint agreement or by the Secretary
19 of the Army, acting through the Chief of
20 Engineers.
21 "(g) In carrying out his functions
22 relating to the discharge of dredged or fill
23 material under this section, the Secretary of
24 the Army, acting through the Chief of
25 Engineers, is authorized to issue those
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1 general permits which he determines to be in
2 the public interest.
3 "(h) The discharge of dredged or fill
e4 material--
5 "(1) from normal farming,
6 silviculture, and ranching activities,
7 including, but not limited to, plowing,
8 terracing, cultivating, seeding and
9 harvesting for the production of food,
10 fiber, and forest products;
11 "(2) for the purpose of maintenance
12 of currently serviceable structures,
13 including, but not limited to, dikes, dams,
14 levees, groins, riprap, breakwaters,
15 causeways, and bridge abutments and
16 approaches, and other transportation
ed 17 structures (including emergency
S18 reconstruction); or
19 "(3) for the purpose of construction
20 or maintenance of farm or stock ponds and
21 irrigation ditches,
L 22 is not prohibited by or otherwise subject to
)f 23 regulation under this Act.
24 "(i) The discharge of dredged or fill
25 material as part of the construction,
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1 alteration, or repair of a Federal or
2 federally assisted project authorized by
3 Congress is not prohibited by or otherwise
4 subject to regulation under this Act if the
5 effects of such discharge have been included
6 in an environmental impact statement or
7 environmental assessment for such project
8 pursuant to the provisions of the National
9 Environmental Policy Act of 1969 and such
10 environmental impact statement or
11 environmental assessment has been submitted
12 to Congress in connection with the
13 authorization or funding of such project.
14 "(j) The Secretary of the Army, acting
15 through the Chief of Engineers, is authorized
16 to delegate to a State upon its request all
17 or any part of those functions vested in him
18 by this section relating to the adjacent
19 wetlands in that State if he determines
20 (a) that such State has the authority,
21 responsibility, and capability to carry out
22 such functions, and (b) that such delegation
23 is in the public interest. Any such
24 delegation shall be subject to such terms
25 and conditions as the Secretary deems
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necessary, including, but not limited to
suspension and revocation for cause of such
a delegation.".
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1
2 WETLANDS AND WATER LAW CONFERENCE
3 FOR ENGINEERS, SURVEYORS & ATTORNEYS
4
Sponsored By
5
The Real Property, Probate and Trust Law Section
6 of The Florida Bar
The Environmental Law Section
of The Florida Bar
8
The Florida Section
9 American Society of Engineers
10 The Florida Society
of Professional Land Surveyors
11
12
13 THE PRESENTATION OF
14 MR. BERT HEIMER
CORPS OF ENGINEERS
15 JACKSONVILLE DISTRICT OFFICE
16
17 AS REPORTED BY
18 LELAND GAMBLING, C.S.R., C.M., R.P.R.
Notary Public
19 State of Florida at Large
20
21 April 14, 1977
22
ORLANDO HYATT HOUSE
23 6375 Space Coast Parkway
Kissimmee, Florida 32741
24
25
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PI R S
S1 PROCEEDINGS
2 MR. HEIMER: The regulatory branch is the district
!3 element that processes applications for
4 Department of Army permits. Like George
5 said, as a result of the NRDC ruling, we have
6 had to go into an expanded jurisdiction in
7 areas above where we normally held
8 jurisdiction. This slide shows a possible
9 area within a river. At some point in that
10 river, we callit the head of navigation, and
11 beyond that point we did not have
12 jurisdiction for any permits.
13 Along the portion of the river which we
14 call navigable waters of the United States,
15 our jurisdiction was to the ordinary high
16 water line. That term was defined very, very
17 vaguely in the '72 regulations that define
18 navigable waters of the United States and
19 said that it was the normal high of a river
20 not considering the unusual highs nor unusual
21 lows. There was no way that an engineer
22 could compute the ordinary high water mark
23 of a river in areas above tidal action. We
24 recommended to the Chief Engineer that they
25 use the 25 percent point on a stage duration
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1 graph, saying that ordinary high water being
2 the place where the river is never higher
3 than that point 25 percent of the time.
4 The regulations that we got on 25 July
5 accepted our recommendations, but changed
8 "stage" to "flow," so now you have to have
7 a flow duration curve for any river if you're
8 going to get real technical on where the
9 ordinary high water line is, and I don't know
10 of too many rivers where we have flow
11 duration curves. We have stages in rivers
12 all over the State of Florida, and we can
13 get stage duration curves, but not flow
14 duration curves.
15 Along the coastal areas, the jurisdiction
16 was the mean high water, which, as you know,
17 is the average of all the high waters over
18 a certain cycle of 19 and a half years.
19 Because of the Court ruling, we went into
20 what is called the three phase expanded
21 jurisdiction. Phase one of the regulations
22 took us -- We kept the same navigable waters
23 of the United States, but we encompassed all
24 wetland areas adjacent or contiguous to
25 navigable waters of the United States.
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H' 1 Phase two was effective 1 July of last 1
2 year, took us into primary tributaries of
navigable waters of the United States and 3
4 natural lakes larger than five acres. 4
|5 Phase three, which will be effective 5
6 1st July of this year, takes us into all other 6
7 waters to their headwaters and all their 7
8 contiguous or adjacent wetland areas, the 8
9 headwater of the river being defined as the 9
10 point of the five c.f.s. flow. We've often 10
11 been asked how we are going to determine the 11
12 five c.f.s. flow. 12
13 This slide shows our expanded 13
14 jurisdiction in a coastal area, wetland area, 14
15 anywhere in Southwest Florida. In this area 15
16 our jurisdiction would have been to the mean 18
17 high water, only. The mean high water line is 17
18 very difficult to find in this coastal area, 18
19 but if you could have found it, it probably 19
20 would be somewhere around the center of the 20
21 slide, which means all the wetland areas 21
22 landward of the center of the slide were 22
23 subject to development. 23
24 Now, assume that this is the saltern; 24
25 it is not the saltern that was on the landward 25
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|1 that saltern. 1
2 It is because of the things that have 2
3 happened that we have learned to recognize 3
4 the value of areas such as this. Those of 4
5 you who saw the movie last night will 5
6 recognize that engineering technology has
7 been around for a long time. A hundred years 7
8 ago we could do things as engineers, but we 8
9 did not recognize until very recently that 9
10 these areas need protection, and there's an 10
11 instrument and a way to go about it, and if 11
12 you would turn the slide projector off, I'd 12
13 like to go a little bit into the Corps' 13
14 procedures and criterias for evaluating j14
15 permits for working in wetlands. 15
16 An applicant submits an application. 16
17 Almost always it is returned for additional 17
17
18 information, certainly enough information
19 from which we can prepare some sort of 19
20 preliminary environmental assessment. It is 20
21 not a formal document. It is information
22 from which we have to make a preliminary 22
23 decision whether or not an environmental 23
24 impact statement is required. ,24
25 If the decision is that an environmental 25
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P -I
1 impact statement is required, the developer
2 is in a lot of trouble time-wise. We have
3 gone through a flow chart telling people that
4 we can do an EIS, putting everything on the
5 critical path, in about 19 months. We've
6 never done one yet in 19 months. We've had
rs 7 developers tell us that they're going to
8 break it, they're going to do it in one year,
9 but it hasn't happened.
in
n 10 But, assuming that an EIS is not needed
11 because of the magnitude of the project or
12 because of the environmental impact of the
13 project, we make that preliminary decision
14 with the preliminary environmental assessment
15 and prepare and issue a public notice going
16 out for coordination, normally 30 days.
al 17 Agencies can request extension of time up to
18 75 days. If there are requests for public
19 hearing under the Act we must honor the
20 request and have a public hearing. If there
21 are no requests for public hearing, we coordi-
22 nate all the comments with the applicant,
23 give him a chance for rebuttal, possibly have
24 interagency meetings or meetings whereby he
ttal 25 might modify his project somewhat, assuming
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1 somewhere along the line he'll take a stand 1
2 2
S2 and say, "I can't give up any more," because
3 normal modification is limited to one thing, 3
4 and that is, to the developer giving up real 4
5 estate. He's to pull back from the wetland 5
6 areas. If he's got sufficient land, fine, i
7 but if he doesn't and he's trying to make the 7
8 project a go project, somewhere he's going to 8
9 have to hold the line. At that point, then, 8
10 the Corps must go through their decision 10
11 making process, and there are three things 11
12 that we consider and that probably those 12
13 representing developers should read and 13
14 realize what our rules are. 14
15 They are: The Corps' wetlands policies
16 found in paragraph G3 of our permit
17 regulations that came out the 25th of July, 15
18 1975, 33CFR, 209.
19 The second thing being EPA's 404(B) 1I
20 guidelines which the Corps must use in 2(
21 evaluating any projects for fill and wetland, I 21
22 which came out in the Federal Register of 2
23 5 September 1975, 40CFR,230. 2
24 And the third thing is our own public 2A
25 interest review factors found in our 2!
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1 regulations in paragraph F.
2 Very briefly, to point out some of the
3 things in the Corns' wetlands policy;
4 Paragraph G3 of our regulations says,
5 "Wetlands serve important purposes relating
6 to fish, and wildlife, recreation, and other
7 elements of general public interest as
8 environmentally vital areas. They constitute
9 a productive and valid public resource."
10 Here's the point: The unnecessary alteration
11 or destruction of which should be discouraged
12 as contrary to the public interest.
13 So, the Chief of Engineers has told the
14 District Engineers that it is not in the
15 public interest to allow or issue a Federal
16 permit for work which would cause an
17 unnecessary destruction of wetland areas.
18 Then, they clarify what productive or
19 important wetland areas are. We have six
20 categories of wetlands. They are very
21 general.
22 One, wetland which serves important
23 natural biological function; two, wetlands
24 which are set aside for certain studies;
25 three, wetland contiguous to the above-
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1 mentioned wetland. That means that if you
2 have a coastal wetland that has some sort
3 of biological importance, wetlands contiguous
4 to that coastal wetlands is part of the
5 wetlands we're supposed to protect whether or
6 not they are important, themselves. Thus,
7 the criteria kind of tells us that it is not
8 for us to evaluate whether the wetland areas
9 is important wetland, or not, if it's
10 contiguous to an important wetland.
11 Three, wetlands which shield other areas
12 from wave action, erosion, storm damage, 1
13 and they tell us that this also includes i
14 barrier-islands, including possibly all of
15 Hutchison Island and all of the eastern
16 islands on the coast of Florida. Wetlands
17 which serve as storage areas for flood waters,,
18 wetlands which are a prime natural recharge
19 area. Then, they tell us that no permit
20 shall be granted for work in wetlands that i2
21 are identified as important, unless the
22 public interest review indicates that the 2:
23 benefit of the alteration will outweigh the
24 damage and that the alteration is necessary
25 to realize the benefits. That gives the 2
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1 District Engineer a decision making procedure.
2 He has to go through and say whether or not
it's in the general public interest to allow
the alteration of these wetlands.
5 EPA's 404(B) guidelines are somewhat
6 restrictive. We have to apply them in all
7 cases for work in wetlands. There are two
8 paragraphs we have to consider; paragraph
9 230.4, Ecological Evaluation, and paragraph
10 230.5.
11 Paragraph 230.5 has two sub-paragraphs,
12 (A) and (B). Sub-paragraph (A) has eight
13 objectives. Sub-paragraph (B) has ten very
14 strong restrictions.
15 The eight objectives of sub-paragraph
16 (A) are: To avoid activities that will
17 disrupt the biology integrity of the aquatic
18 ecosystem, avoid activities that significantly
19 disrupt the nutrient chain, that inhibit
20 movement of fauna, that destroy wetland that
21 helps maintain water quality, avoid activities
22 that destroy wetlands that retain natural high
23 or flood waters, minimize adverse turbidity
24 level, avoid activities that degrade
25 aesthetics, recreational, and economic values,
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i 1 and avoid degradation of water quality.
S2 Now, the restrictions of sub-paragraph
3 3
(B) are: No discharge in proximity of public
4 water supply intake, no discharge in areas
5 5
5 of shellfish production, we are supposed to
S8
6 avoid disruption of fish spawning and nursery
areas, minimize impact on habitat, food chain
8 8
8 and wildlife, minimize impact on recreational
9 areas, no discharge that will jeopardize the
10 continued existence of threatened or 1
11 endangered species. That particular item is 11
12 also, as George mentioned, covered under the 12
13 Endangered Species Act, which is now in
14 effect, and we have to have certain consulta-
15 tion with the Department of Interior if we 15
16 determine that a particular activity would 16
17 jeopardize the continued existence of a
18 threatened or endangered species. That
19 determination must be made by the Corps of
20 Engineers, not by the Interior. 20
21 The discharge must have minimal impact 21
22 on bentic life, and paragraph (B)(8), that is 22
23 probably the most important of all having to 23
24 do with wetland: "No discharge in wetlands 24
25 unless the site is the least environmentally 25
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1 damaging alternative, other alternatives are
2 not practical, and the discharge will not have
3 an unacceptable adverse impact on aquatic
4 resources.
5 No discharge in wetlands unless applicant
6 clearly demonstrate two things; one, the
7 water dependency of the activity or other
8 site construction alternatives are not
9 practical, and that the discharge will not
10 cause a permanent unacceptable disruption
11 to beneficial water quality uses that would
12 affect the water ecosystem.
13 Our public interest review found in
14 paragraph "F" of the regulation is supposed
15 to be the evaluation on which we made a
16 decision whether or not a permit should be
17 issued or denied. If we decide the permit
18 should be issued and there are no
19 outstanding objections from other Federal
20 agencies, and the State has issued the water
21 quality certification and the State permit,
22 the permit can be issued at the District level.
23 If the State has issued and if there are
24 no outstanding objections from other Federal
25 agencies, but we want to deny based on our
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1 own public interest review criteria, we must
2 go up the line seeking authority to deny the
3 permit. The District can only deny a permit
4 based on navigation. If the State has
5 issued and we want to issue, but there are
6 outstanding objections from Federal agencies,
7 we must go up the line seeking authority to
8 issue a permit over the objections of a
9 sister Federal agency. The District Engineer
10 cannot issue a permit over another Federal
11 agency's objection.
12 Our public interest review says that the
13 decision will be based on evaluation of the
14 probable impact of the work and its intended
15 use on the public interest. A very general
16 statement.
17 This review requires a careful weighing
18 of all factors that become relevant in each
19 particular case. In cases involving
20 discharge of fill and wetlands, that includes
21 the Corps' own wetlands policy and evaluation
22 of the 404(B) guidelines. The decision
23 should reflect natural concern for both
24 protection and usage of important resources
25 factors that may be relevant, including but
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1 not limited to conservation, administration,
2 esthetics, historical values, fish and
3 wildlife values, environmental concern, flood
4 damage prevention, land use classification,
5 navigation, recreational use, water supply,
6 water quality and, in general, the needs and
7 welfare of the people. A lot of these are
8 not applicable for in working wetlands, of
9 course.
10 Then, it goes on to say, "No permit
11 will be issued unless the issuance is found
12 to be in public interest," and we have four
13 general criteria that must be considered;
14 one, relative extent of public and private
15 need; two, desirability of using appropriate
16 alternative locations and methods to
17 accomplish the objectives; three, extent and
18 permanence of the beneficial or detrimental
19 effects that the work may have on public and
20 private uses to which the area is suited;
21 four, probable impact in relation to
22 cumulative effect increased by existing and
23 anticipated structures in the general area.
24 So that in concluding, we'd like to
25 recommend that if you have a project,
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SI1 although our regulations do not allow us to
2 prejudge an application, we cannot tell you
3 whether a permit will be issued or denied in
4 the case until we have gone through all the
5 arguments and procedures, even if it takes
6 five years. If you still have a project and
7 you'd like to talk to us about it, come and
8 see us. We will be more than glad to tell
9 you our opinions of whether or not the
10 project meets the 404(B) guidelines, whether
11 or not it will meet the Corps' own wetland
12 policies criteria, and whether you should
13 pursue it, or if it's a deadend case; you
14 won't go to a lot of trouble at the end only
15 to have it denied.
16 Thank you very much.
17
18 *
19
20
21
22
23
24
25
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THE PRESENTATION OF
MR. ROSS McWILLIAMS
ESTATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DIVISION OF ENVIRONMENTAL PERMITTING
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r
1
PROCEEDINGS
MR. McWILLIAMS: Thank you and good morning. I suppose it's only
appropriate that we ask ourselves why wetlands are worth
protecting, if they are, and what do we typically describe
as wetlands in the State of Florida. I'll begin with a
simple scheme for categorizing Florida wetlands. Perhaps
"simple" is not the correct word. Perhaps "simplistic," is
better but I think it will give you a good overview of what
we consider to be wetlands in the State of Florida. If you
came in this morning or last night on an airplane, you've
probably already seen most of these areas that I'm going
to describe.
Wetlands in Florida can be divided into two broad
categories; coastal wetlands and interior wetlands. Our
coastal wetlands are salt water wetland which can be further
divided into unvegetated, sandy beach areas and vegetated
wetlands.
In the interior of the state, we have vegetated wet-
land and they are further broken down into subcategories.
The sandy beaches in Florida, as I mentioned, are
unvegetated. They play a major role in Florida tourism.
They provide areas for swimming, they provide nursery
grounds for juvenile fish, and the esthetics of sandy
beaches are appreciated by both native Floridians and
tourists alike.
The remaining dune systems in Florida, although
topographically distinct from the sandy beach or sandy
intertidal area, can be considered as a necessary element
of the unvegetated coastal wetlands. Currently, we have
-37-
dune systems on the East Coast extending from North of
the St. Johns River down past St. Augustine and a little
south of there. The east coast of Florida experienced
some of the earliest development, and the once extensive
dune system is found now only as remnants.
On the Gulf, we still have extensive dune systems
extending from the northern limits of the low energy zone
(approximately due south of Tallahassee) on west to the
State border.
These dune systems function today as the only ex-
isting source of sand to naturally renourish the beaches
in the State of Florida. In the past, undeveloped rivers
transported sediments down to the coast where the sediments
would be distributed and sorted by longshore currents and
the beaches thus maintained. This is no longer the case
and the primary source of sand available to maintain the
beaches now comes from the adjacent dune systems.
The vegetated saltwater wetlands serve many functions.
And let me interject here that these benefits or functions
that I'm speaking of today are benefits that are derived
by the population of Florida at zero cost, that is, these
wetlands in their natural state provide these benefits
without cost to the taxpayer. These saltwater wetlands
serve to stabilize shorelines and reduce storm surge.
Mangroves and most often credited with this function but
we have many low energy shorelines on the Gulf Coast which
have broad expanses of various marsh grasses which do the
same thing. They provide nursery grounds for commercial
species of fish and shellfish as well as functioning in
-38-
nutrient uptake and transport. These are buffer areas.
they prevent the offshore waters from being impacted
directly by man's upland activities in the coastal zone.
They function as wildlife habitat; migratory birds use
these wetlands as sites for feeding and resting. These
wetlands are used for recreation, including fishing, and
hunting, and finally, they function in water quality
maintenance.
The vegetated freshwater wetlands have many similar
functions. One of their primary functions and one which
is rapidly passing with time is their ability to control
flood waters. Natural rivers and natural streams typically
possess flood plains which are able to hold water and re-
lease it slowly. The vegetation in these flood plains is
adapted to and dependentent on this periodic flooding and
will moderate the rapid input of fresh water. This par-
ticular function is one of the first functions that was
tampered with by man when he entered the State of Florida,
or when he entered the Territory of Florida, and we now see
the evidence of this in our extensive canal systems, in our
straightened rivers, and in our neverending battle for flood
control and the taxes that support these endeavors. This
flood control was originally free. We presently pay the
price for imposing our own types of flood control. We have
reaped benefits from im pin going on the environment. We've
exposed lands for agricultural, we have created areas as
wildlife refuges and cattle range, but we continue to pay
to maintain these lands.
-39-
ii
Freshwater wetlands of Florida function in water
storage and supply. This is becoming one of the most
important aspects of our freshwater wetlands. The topis
of water supply is typically in the newspaper at least
once a day. The water management districts are currently
dealing with this and other aspects of the wetlands.
Wetlands function in aquifer recharge. Many of the
wetlands in the State of Florida exists on relatively flat
lands at an elevation much above that of your surrounding
coastal areas. It's in these areas that the aquifer is
typically recharged.
The freshwater wetlands function in water quality
maintenance. They provide for water of a quality that is
suitable for drinking, is suitable for swimming, other body
contact sports, and fishing.
Perhaps one of the most overlooked functions of the
freshwater wetlands in the State of Florida is wildlife
habitat, both for our game species, and for rare and en-
e dangered species. Florida is one of the few states where
r. it's suspected that the Ivory-billed woodpecker still exists.
o There's the commercial value of the Florida wetlands.
Harvestable timber; approximately 40 years ago the timber
industry completed the large scale harvesting of cypress
e Trees and we're now harvesting the second growth. The
ef maintenance of these wetlands will provide us with
harvestable timber again in the future.
Finally, there are the esthetic aspects of the Florida
wetlands. People come to Florida because they've heard
about the water, the sunshine, and the green foliage.
-40-
Florida has the ability at this time to maintain these
wetlands, to maintain its image, and to combine them with
the abundant sunshine to provide us with a low cost-high
benefit system. If we insist on altering these systems,
we will have to be ready to pay for the maintenance of
them.
Thank you.
2
2
2.
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WETLANDS AND WATER LAW CONFERENCE
FOR ENGINEERS, SURVEYORS & ATTORNEYS
Sponsored By
The Real Property, Probate and Trust Law Section
of The Florida Bar
The Environmental Law Section
of The Florida Bar
The Florida Section
American Society of Engineers
The Florida Society
of Professional Land Surveyors
THE PRESENTATION OF
MR. ESTES WHITFIELD
DIVISION OF STATE PLANNING
TALLAHASSEE
AS REPORTED BY
LELAND GAMBLING, C.S.R., C.M., P.P.R.
Notary Public
State of Florida at Large
April 14, 1977
OrLANDO HYATT HOUSE
6375 Space Coast Parkway
Kissimmee, Florida 32741
i s *
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1 PROCEED INGS
2 MR. WHITFIELD: I'm standing in for Louis Hubener,
S3 who is the Division Attorney. Lou would
4 probably take a much different direction to
5 this presentation than I will. With Burt's
8 introduction, I feel constrained to modify
7 what I was going to say, but I'm going to try
8 to stick with it. With the time constraints,
9 I'll breeze through a lot of things here and
10 then try to elaborate on some of what I
11 consider the most significant things that the
12 Division of State Planning is doing,
13 particularly the State Comprehensive Plan.
14 I'd like to preface by saying that the
15 Division of State Planning doesn't consider
16 itself to be a regulatory agency, even though
17 there are two or three programs that we're
18 involved in which do smack of that; but on the
19 other hand, I wouldn't want to misinform you
20 and say that we're not somewhat into that
21 business. With that disclaimer, T want to
22 go ahead and get into some of the Division's
23 Wetland's related functions, that is, planning
24 functions.
25 As I mentioned, there are three primary
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A. ,
programs that the Division administers which
do have regulatory connotations. One is the
DRI process, which is pursuant to Chapter
380, Florida Statutes. Another, the area of
Critical State Concern in the program, which
is also pursuant to Chapter 380, and the State
Clearinghouse, which is actually pursuant to
| Federal Law and Guidelines, but is sanctioned
under Chapter 23, the State Comprehensive
Planning Act.
I feel that most of you have some
familiarity, maybe as much as I do, with the
IS DRI process, and the critical area process, so
1 I won't go into that except by saying that DRI
15 process is primarily a process by which local
8 governments are given the authority to
17 regulate development. The Division's role is
18 to: (I) prepare the DRI thresholds (contained
19 in Chapter 22-F-2, FAC), (2) to prepare
t the application for development approval
21 requirements and guidelines, (3) to monitor
22 the DRI process, and (4) to issue binding
23 letters of interpretation on the possible
24 DRI's. The Division may also appeal a
25 development approval by a local government.
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1 The regional planning council may appeal and
2 also the developer may appeal.
The Division's role in the area of
4 Critical State Concern program is quite
5 different. The Division may study areas and
6 prepare reports with recommendations that
7 certain areas of the State be declared areas
8 of Critical State Concern. If they are
9 designated, that being by the Florida Land
10 & Water Commission, local governments in the
11 affected areas are directly responsible for
12 preparing land use control ordinances and
13 regulations for accomplishing the objective
14 for which the study was initially undertaken.
15 Those objectives may be for protection of
16 the environment; (water, wetlands, et cetera);
17 historic, archeological resources; or protec-
18 tion of a public investment; also an area of
19 Critical State Concern may be designated in an
20 area of major development potential, which
21 may be a site for the community.
22 The third function of the Division as
23 relates to regulation, in a sense, is the
24 Environmental Clearinghouse. The Environmenta
25 Clearinghouse has two primary functions, but
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before I go into that, let me say that the
Environmental Clearinghouse is established
in the Division of State Planning by Chapter
23. The need for the Environmental
Clearinghouse came pursuant to a couple of
Federal Laws, one being the Intergovernmental
Cooperation Act of 1968, the National
Environmental Policy Act of 1969, and the
Demonstration Cities and Metropolitan
Development Act of 1966.
The U.S. Office of Management and Budget
has promulgated a publication entitled
"OMB Circular A-95," which has the purpose of
implementing these laws that I just mentioned.
It requires that States establish a
Clearinghouse. The first function of the
Clearinghouse is to coordinate reviews of
notifications of intent to apply for federal
assistance. What that means is that applicant
who contemplate applying for federal
assistance must prepare and submit to the
Clearinghouse an "advance notification."
The Clearinghouse, in turn, coordinates a
review of this notification of intent with all
the interested and affected state agencies.
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1 Those comments received through the
2 Clearinghouse, are transmitted to the
3 applicant, who is required to append those
4 comments, including the Division's comments,
5 to the application for Federal assistance.
S6 A Federal agency is not very likely to
7 approve a grant, a permit, or mortgage
8 insurance application, or anything else, if
9 it's got adverse State comments attached to
10 it. So, whereas the Clearinghouse is not a
11 regulatory process, if through that process
12 negative comments on a grant application are
13 obtained and are transmitted to the Federal
14 agency, that reduces greatly, almost to zero,
15 the chances of that application being approved.
16 The second function of the Clearinghouse,
17 and this is also contained in Circular A-95,
18 is the environmental impact statement review
19 process. The Division is the environmental
20 impact statement coordinating agency in the
21 State. The way that system works is, when
22 a Federal agency prepares an environmental
23 impact statement, they send sufficient copies
24 to the Division at which time copies are
25 distributed to the various State agencies.
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Upon receipt of comments from those agencies,
the Clearinghouse prepares a State position,
transmits it back to the Federal agency, who
has to consider that and incorporate it into
their final environmental impact statement.
Again, Federal agencies in their attempt
to be consistent with State plans, policies,
and projects, will generally abide by State
comment. So, when a Federal statement comes
through, the State has a tremendous impact on
that. project through the Clearinghouse process.
It is well documented that the Clearinghouse
has been very effective in influencing Federal
spending, Federal legislation, i.e. mortgage
insurance approvals through IIUD, the Soil
Conservation Services work, the Public Works
Program, EPA's programs, the entire gamut of
Federal activities.
The rest of my presentation will be in
terms of what else does the Division of State
Planning do as relates to wetlands. I'm going
to give the Court Reuorter a list of some of
the publications and activities that we're
invovled in and maybe it can be reproduced and
sent out, because I'll try to hurry.
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1 The U.S. Fish & Wildlife Service is
2 presently conducting a nationwide wetlands
I 3 inventory. The Division of State Planning is
k 4 state contact on this project. It's presently
5 underway in the northern portion of the state,
6 and it's expected to be completed by the end
7 of calendar '77 for the entire state.
8 The inventory will utilize a vertical
9 classification system, which identifies
10 wetlands by classes and sub-classes. It's
11 similar to a taxonomic system. The entire
12 U.S. will be mapped at scale, a scale of
13 1-100,000 however, Florida, due to its
14 topography and large amount of wetlands, will
15 be mapped at one-twenty four thousandths.
16 All wetlands or nroup of three acres or
17 larger will be included in the inventory.
18 There will also be a computer data management
S19 system. This map set and system will include
20 classifications of wetlands, the acreage,
21 political location, ecoregion, or physical
22 subdivision, and major watershed location.
23 The Division will be receiving these materials
24 when they're finished. The project has an
25 office in St. Petersburg; it being a new
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l1
program, they invite inquiries.
The Division is involved in what's called
the LUDA Project, Land Use and Cover Data and
Analysis Project, which is basically a land
use mapping project. It's undertaken through
a cooperative agreement with the U.S.
Geological Survey and is essentially complete.
The information is derived from the high
altitude Mark Hurd photography. There are
37 categories of land uses covered, shown at
level two. The resolution is generally about
ten acres in urban areas, built up areas, and
40 acres in rural areas. These maps are
available at a scale of one to one-twenty-six-
seven-twenty.
The Division has also prepared a set of
generalized soil maps for the entire State.
These are general soil interpretations for
each county. The original atlases are
prepared at one inch equals three miles.
However, the data has been transferred to the
LUDA scale of one inch equals one-twenty-six-
seven-twenty. These are available from the
Division. There are five atlases. There are
two regional planning areas per atlas.
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1 The Division was instrumental in
2 development of a Florida Land Use Cover
3 Classifications Systems. This was a document
S4 published in 1976 by the Division of State
5 Planning. However, eight State agencies
6 helped in preparing this. The purpose was to
7 prepare a land use classification system with
8 a variety of uses and under which information
9 can be interchanged. The system is likewise
10 based on the U.S.G.S. system and has
11 hierarchial levels of increasing specificity.
12 There are seven Level One categories and 40
13 Level Two categories which have been agreed
14 upon by these State agencies.
15 Another project the Division is involved
16 in and has been for the last three or four
17 years, has been a Special Project To Prevent
18 The Etrophication of Lake Okeechobee. This
19 project is essentially complete, as far as
20 the Division's work is concerned, and I'll
21 just describe it very briefly. The objective
22 is to improve water quality in Lake
23 Okeechobee. The study determined that there
24 is a problem with the lake. It is polluted
25 by back-pumping from the agricultural areas
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to the south of the lake, and by the cattle
and dairy farms to the north of the lake, and
along Kissimmee River in the upper part of the
basin. The study came out with numerous
recommendations. I think they can be
categorized in four types of recommendations;
one is to retain water in marshes and direct
runoff through marshes rather than directly
into the river and lake; re-establish marshes
in the northern portion of the basin
(approximately 100,000 acres) for water
treatment; store water which is currently
back-pumped into Lake Okeechobee in the
marshes to the south. (This is an area
that's called "The Holy Land.") And the
fourth type of recommendation is improved land
use techniques.
The Division has completed another study
of South Florida. It's entitled the "South
Florida Study." It was a cooperative study
partially funded by the Department of
Interior and the Division of State Planning.
The University of Florida's Center for
Wetlands did the most of the work, the
principal investigator being Dr. H. T. Odom.
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This study is very simply an ecological type
2 land use study of 16 counties of South Florida
S A summary report is out and available from
the Division, and there are special reports
5 in the counties of Collier, Hendry, and Lee.
6 A subsidiary of that study was a manual or
7 a document entitled "The Forested Wetlands of
8 Florida, Their Management and Use." This
document was prepared by the Center for
10 Wetlands, (Dr. H. T. Odom) for the Division of
11 State Planning, and there are very limited
12 copies, but it's a very useful document for
18 planners, and developers, and nature
14 enthusiasts.
15 I've saved the best part for last,and
16 I'm running out of time, but Chapter 23 is
17 called "The State Comprehensive Planning
18 Act." It requires the Division of State
19 Planning to prepare a comprehensive plan for
20
20 the State and set forth goals, objectives,
21
1 and policies for the orderly social, physical,
22
22 and economic growth of the state. Here is
23 the way we interpret the comprehensive plan
24 and the way we've approached it:
25 We foresee the State Comprehensive Plan
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divided into 17 elements. These elements
range from education, to social services, to
housing, to land use, environment,
transportation, environmental resources,
water, and on down the line. Those are
elements of the comprehensive plan. For each
of these elements, within the Division, there
is a project team, a project team which
interacts with its counterparts in State
Government, Federal Government, and the
private world. And through these interactions
and coordinations, meetings, conferences,
and so forth, an individual element is
prepared. When the individual 17 elements
get prepared and lumped together, they'll be
considered the State Comprehensive Plan.
There are presently nine elements of
the State Comprehensive Plan which are
completed in draft form and are being
considered by the Governor presently for
approval. (These nine elements are now
approved by the Governor.) Significant to
this conference would be the Land
Development Element, or the State Land
Development Plan and the Agricultural Element.
1 There are also Recreation and Transportation
2 which would have some significance.
3 There is a water element, but it's in
4 very early draft stages. It will be
5 ultimately integrated into the State Water
6 Use Plan and the State Water Plan, which
7 the water management districts and DER are
8 working on.
9 The Land Development Plan is a set of
10 development goals, objectives and policies.
11 It addresses wetlands directly. It says in
12 so many words, "Wetlands should be protected,
13 but they should be reasonably used in a
14 manner consistent with their values and
15 functions. They should not be destroyed,
18 except for projects of utmost state
17 significance, which require location therein."
18 The State Land Development Plan nor
19 any of the other 3eements that I have worked
20 on on the Comprehensive Plan contemplate new
21 legislation in the area of wetlands. We feel
22 that there is sufficient legal base for proper
23 wetland protection, management and use, but
24 there is a need for increasing the
25 effectiveness of the existing programs not
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only in regulation and planning. Also very
importantly there is a need for increasing
the level of technical knowledge about what
wetlands are, where they are, and what they
are good for.
There's one last item on this list, and
that's the Local Government Comprehensive
Planning Act. The Division of State Planning
has, also, a responsibility in administering
this Act. The Local Comprehensive Planning
Act very briefly says that all local
governments will prepare a local comprehensive
plan by July the 1st, 1979. There are certain
required elements of those local plans, one
being a conservation element which must
address one way or the other water quality,
wetlands, air quality, et cetera. The
Division of Planning does not have veto power
over local comprehensive plans. We have got
review authority, and the Law says that local
plans must consider the comments made by the
Division of State Planning. It also says
that it should be consistent with the State
Comprehensive Plan. Also, it's conceived by
us and most of the people that have been
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1 associated with this comprehensive plan
2 process that the State budget will need to
3 be consistent with the State Comprehensive
4 Plan, and what that means, I don't know, but
5 it has the potential of being very
6 significant. And for that matter, all State
7 activities should be consistent with the
8 State Comprehensive Plan. The includes DRI's,
9 A-95 Projects, regulations, et cetera.
10 I realize my time is up. I hope that
11 I've been more informative than confusing.
12 Thank you very much.
13 (Thereupon, the presentation
14 was concluded.)
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WETLANDS AND WATER LAW CONFERENCE
FOR ENGINEERS, SURVEYORS & ATTORNEYS
Sponsored By
The Real Property, Probate and Trust Law Section
of The Florida Bar
The Environmental Law Section
of The Florida Bar
The Florida Section
American Society of Engineers
The Florida Soceity
of Professional Land Surveyors
THE PRESENTATION OF
MR. DONALD R. FEASTER, P.E.
Executive Director, Brooksville
CHAPTER 373 WATER MANAGEMENT DISTRICTS
AS REPORTED BY
LELAND GAMBLING, C.S.R., C.M., R.P.R.
Notary Public
State of Florida at Large
April 14, 1977
ORLANDO HYATT HOUSE
6375 Space Coast Parkway
Kissimmee, Florida 32741
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1 0 PROCEEDINGS
2 MR. FEASTER: The time is a little bit short this
3 morning, so I'll read through all these
4 documents real fast. Jake said earlier,
5 when we started out with the Corps, that all
6 of us can tell you what authority we have and
7 whether or not we have it from a legal
8 standpoint. Just believe us, we're going to
9 try to do that. I'm going to take a little
10 bit different approach. I'm going to try to
11 tell you what the District is doing in a way
12 to assist you, and I will hit upon our
13 regulatory efforts.
14 We do get involved in regulation, but
15 I feel we are more involved in the wetlands
16 areas in other ways, and we refer to it as
17 a flood plain as opposed to wetland. But, I
18 believe we're into it more from an assistance
19 standpoint. So, as part of that, I'm going
20 to walk you through the various areas we're
21 involved in, and I'll touch lightly on the
22 regulatory areas, too.
23 Jake mentioned about the reorganization
24 and how it happened back in the Water
25 Resources Act of 1972. Before then, there
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was one water management district. The other
point for you to understand is the five water
management districts today fit under the
umbrella of the Department of Environmental
Regulation. Our budgets are submitted
through them. We coordinate through them.
They have certain responsibilities over us,
not total responsibility, certain
responsibilities, and they delegate sections
of Chapter 373 of Florida Statutes to water
"management districts. They retain some of
these responsibilities, but most of them are
delegated.
The Southwest Florida Management
District is some 10,000 square miles, 16 coun-
ties, centered essentially in the Tampa area.
We go about a hundred miles north and a hun-
dred miles south. We come in almost here to
Orlando. Our easterly boundary is
essentially Highway 27, about Haines City.
I've tried to boil down what the
responsibilities of the water management
districts are, and let me make it clear; I'm
talking about this from the position of the
Southwest Florida Water Management District,
I
1 because each district has their own separate
2 governing board of at least nine persons.
3 Currently, we have ten, appointed by the
4 Governor. Each governing board sets the
5 position and policy of that particular
6 district. We operate under the same laws, but
7 our rules and regulations are somewhat
8 different. The very philosophy, the positions
9 of the board, are somewhat different, so some
10 of what I say to you may apply to the other
11 water management districts; some of it may not
12 In one of the earlier presentations
13 which opened up the conference, Ross referred
14 to the coastal wetlands and interior wetlands.
15 Our interest is interior wetland, not coastal
16 wetland, as such. Now, if you look in our
17 rules and regulations, or Chapter 373 of
18 Florida Statutes, that governs the districts
19 and on which our regulations are based, you
20 will see in 373.016 a lengthy shopping list,
21 of responsibilities of the State Department
22 of Environmental Regulation, some of which
23 have been delegated. They're kind of vague,
24 kind of broad.
25 Now, for ease of understanding, I'm going
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to set closer objectives. We at SWFWMD have
divided our objectives, our goals into four
areas of operation; flood control; flood
mapping and delineation; and water use
planning. Each of these areas can be broken
down into great detail, and each of them also
has some involvement in the wetlands or the
flood plain areas.
I'd like to refer first to the flood
control effort. We are a flood control
district, we spend millions of dollars a
year on capital intense public works
projects, some of it creating adverse
environmental problems.
When Ross opened up this morning, he was
talking about the value of interior coastal
wetlands, and he said, one was control of
flood waters. I concur with that completely,
that the headwaters store, supply, recharge,
water, and provide wildlife habitat. I would
like to point out to you how we also are
interested and concerned with these same
basic areas.
Our flood control project has a lot of
construction, including dams, and canals,
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1 primarily, in the Tampa area. When originally
2 conceived in 1962, the Corps of Engineers
S3 had learned from problems in other areas.
4 So, the project is primarily flood
5 control by reservoir detention that is short
6 term flood detention areas. We have acquired
7 and are continuing to acquire thousands of
8 acres costing millions of dollars as flood
9 detention areas, and in many cases we are
10 preserving areas that are natural wetlands.
11 We're preserving areas which had been moving
12 toward development, areas that were being
13 developed which probably shouldn't have been
14 developed, with our Federal project, the
15 "Four River Basins, Florida."
16 We have acquired or are acquiring
17 thousands of acres at millions of dollars'
18 expense, as part of the flood control project
19 and I want to touch on a couple of points
I; 20 that DeWitt mentioned that they're involved
21 in.
22 The Corps of Engineers representatives
23 referred to the National Environmental
24 Protection Act; the Environment Impact
25 Statement; and the State Clearinghouse. Our
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projects go through the Clearinghouse, and
that way we have a cleaner, environmentally
sound project. With the biologists on our
staff, we prepare an environmental assessment.
We did one about seven years ago on the Tampa
Bypass and ran it through the Clearinghouse.
This way we had greater input to the design of
the project -- I mean, "we," at Swiftmud.
Then, after the review was in, we submitted
this to the Corps of Engineers for further
review and incorporation in their official
environmental impact statement. One thing
that showed up on our Tampa Bypass Canal was
that as originally designed, it would lower
the water in some wetlands areas and ground
water pressure. As a result, we added a water
control structure costing about two and a half
million dollars to hold a five foot greater
head back behind it. We're somewhat concerned
we haven't resolved all the problems, so we're
still looking at that. And, recently, working
with the U.S. Geologic Survey, we have put
in additional monitoring wells to see if we
have done enough.
Now, a more important way that we've
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1 taken a look at the Four River Basins
2 Project, is relative to water supply. Back
3 in December of 1969, we asked the Corps of
S4 Engineers by resolution to the United States
5 Congress, to restudy the flood control
6 project to see if it could be turned into a
7 water supply project.
8 That resolution said, "Resolved, that
9 the 'Four River Basins, Florida' project be
10 reviewed with a view to determining whether
11 any modification of the recommendations
12 contained therein is advisable at this time
13 with respect to municipal, industrial,
14 irrigation, and domestic water supply."
15 Going on a step further, and I'm going
16 to come back and review that study in just a
17 minute.
18 Back in 1970, we realized that there
19 were numerous problems that would never be
20 resolved by construction and the expense of
21 millions of dollars on public works. In a
22 lake area in the center part of the district,
23 there was flooding. As we studied the
24 problem of flooding over septic tanks, near
25 homes, under trailers, we realized the lake
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hadn't even reached its natural level.
People had built where they shouldn't have
been allowed to build in the first place.
As a result of that, our board took the
first steps of moving us in the direction of
wetlands or flood plain control. Reading
from the minutes of the February, 1970,
governing board meeting, and this is seven
years ago, I quote: "After a full discussion,
the board instructed the Executive Director
to write to each Board of County Commissioners
within the District to offer the special flood
knowledge services of the District to assist
and encourage the Counties to provide
regulation by way of zoning and building
permit restrictions."
Following that, a letter went out,
dated February 24, 1970, to all 15 County
Commissioners in the District. The meat of
this letter, "It is becoming painfully
apparent here at the Southwest Florida Water
Management District that one of the key I
lessons that we all should have learned about
flood control is continuing to evade solution.
That item is the prevention of construction
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S1 in areas that are known to be flood prone."
2 To the best of my knowledge, that's the
3 first time in the State or any place else
4 that a flood control district took a position
5 opposing the need for continued public works
6 projects.
7 Let me go back to the water resources
8 management study. Reading from our official
9 statement presented to the Corps of Engineers
10 February 23, 1971 -- Recommendation number
11 two, we identify as "saving flood plains and
12 marshlands" and in wetland protection with
13 water supply, "Another method of getting more
14 water into the ground while at the same time
S15 preventing flooding is the concept that
16 involves the complete protection from drainage
17 and building construction on the flood plain
18 areas of rivers and lakes. The Pour Rivers
( 19 Basin's project could assist by having as a
20 project purpose the delineation of, as an
21 example, the 25-year flood, and the charge to
22 the District and the State of Florida to
23 protect these lands -- through public ownership
24 or through firm uniform statewide zoning --
25 in their natural state. The benefits of
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increased recharge, lessened flooding,
preservation of bird and wildlife habitat and
esthetic advantages would be immediate.
Additional surface water used by agriculture
and industry could be more feasible if the
water was there."
We go on to make several comments. We
say, "The point is, if the Four Rivers Basin
project set out and identified the flood
plains and marshlands of the rivers, and Some
lakes, of the District as land needed for
water management purposes, then this District
would have an obligation to protect it and
the needed State Laws could be better pushed.
The benefits to sound planning, to flood
prevention, to water supply, and to the total
natural scheme of flora and fauna are obvious.
Long ribbons of green, with abundant water,
would then still be there a hundred years from
now." I believe that's a point that hadn't
been hit so far today that is the importance
of supply to wetlands.
Another approach we took, October 18,
1972, was to send several hundred copies of
a letter to lending institutions, savings
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; 1 and loans, and banks. In essence, we said
2 about the same thing to the banks that we did
to the County Commissioners, offering our
4 assistance, but requesting specifically that
before funding any major developments that
6 they come to us for information so that they
7 could be properly advised. Again, we're not
8 talking about regulation, but assistance so
9 that developers, and engineers, and others
S10 would know what areas are truly flood prone.
11 Since those days, we have entered into
12 a very extensive program of aerial mapping
13 that produces a one inch equals two hundred
14 foot horizontal scale, a one foot contour
15 level, one square mile to a sheet, roughly
16 30 inches square. We have mapped so far some
17 I
7 1500 square miles at a cost of 1.2 million
1 dollars to the District. When these maps
19
come into our office, they are immediately
S20 made available and sent to all the counties
j 21 and cities that might use these. They are
22 sold at a cost of $10 per sheet to surveyors,
23 developers, engineers, anyone who might make
:, 24 use of these.
: 25 In addition, we give these maps to
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1 hydraulic engineers on our staff, who
delineate the various floods, a one in two
ten, 25, and 50 year. These maps are also
made available to those agencies having land
use and control, and they are available to
others.
We've produced numerous flood plain
reports that are available if you write our
office in Brooksville. We've done reports
on the Alafia, the Hillsborough, the Peace,
and other areas throughout the District. We
coordinate with the City, County, State, and
Federal Government. The U.S. Geological
Survey is involved in some of this work
through our cooperative program. We work
closely with the Corps of Engineers on these
flood plain studies, and we coordinate with
HUD. Frankly, we have had some problems with
HUD and we are trying to get proper input
because our maps are good, valid, with good
technical data. We've had problems with some
of the information that has come out of the
HUD office.
Let me touch briefly on our regulatory
effort. The way we get involved with the
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1 wetlands, in our terminology, flood plains
2 is in our "Works of the District." Our Rules
3 and Regulations, Section 16(j)1.05 defines
4 "Works in the District." These works are
5 named; they are lakes, they are rivers, and
right now as it presently exists, there is
some confusion about how far our jurisdiction
8 extends. Like the Corps of Engineers pointed
out to you, they follow rivers and
10 tributaries to a certain point, and our rules
11 and regulations, as it exists now, simply
12 refers to the tributaries that drain thereto.
13 The question is, where does a tributary
14 start? We're holding workshops with all our
15 boards to more closely define just what the
16 "Work of the District" is. Our plan is to
17 make lakes 20 acres or greater in diameter
18 a "work".
i19
'19 Basically, a "Work of the District"
; i
20 means any lake, stream, or other water course,
21 owned or maintained by the District or adopted
i 22 by the governing board. As far as the lateral
23 extent of a permit, it gets back to the
24 definition of ordinary high water mark. Our
25 attorneys have advised that when it's on a
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"Work of the District," you need a permit
if connecting to a "Work".
The question: "What do you mean by
'connects to?'" Our attorneys have said
that our jurisdiction extends to the ordinary
high water mark. Now, we know what that is,
but who can determine it? Several years ago
in ordinary high water areas where we've
tried to determine, it appeared that it was
closely related to the official definition of
the U.S. Geologic Survey, of a "mean annual
flood."
A "mean annual flood" is defined so that
most engineers can go out and compute and
agree on that particular number when the basic
data is available to them. The ordinary
high water mark is the legal line but we
actually use the mean annual flood.
We are working with the Department of
Environmental Regulation on collection and
building a new office in Tampa. The DER,
St. Petersburg office and some of our staff
will move to a joint facility in Tampa just
north of Interstate-4 and Highway 301. Also,
we are putting together a permit package so
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1 that you can get from the DER or from a water
2 management district one pack of information
3 and not have to go to both of us trying to get
4 the permit.
5 Another area that we're involved in
6 relative to wetlands, and water supply, is the
7 consumptive use permitting part of our rules
8 and regulations, Section 211.2(e). In that
9 section we list conditions for a consumptive
10 use permit as follows:
11 "Issuance of a permit will be denied if
12 the withdrawal of water will cause the water
13 table to be lowered so that the lake stages
14 or vegetation will be adversely and signifi-
15 cantly affected on lands other than those
16 owned, leased, or otherwise controlled by the
17 applicant."
18 Another section of our rules and
19 regulations pertains to a 5-3-1 criteria and
20 says essentially that, "If you affect the
21 potentiometric level by more than five feet,
22 or you affect the water table by more than
23 three feet, or you affect a lake by more than
24 one foot, the permit will be denied." This
25 is the only regulation I'm aware of that ties
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water supply into wetlands protection.
The last area I'll discuss is water use
planning, which ties in with the State Water
Use Plan. Most people think of the State
Water Use Plan as a water supply study; how
much is there, where is it, how much can we
develop without adversely affecting the area,
and where is it needed. But if you read
373.036 about the State Water Use Plan, it
says, "The Department shall proceed as
rapidly as possible to study existing water
resources of the State -- including flood
plain, or flood hazard area zoning." So,
even the State Water Use Plan will include
wetlands.
Summing up, the point I'm trying to make
is that the Southwest Florida Water Management
District is involved in flood control, flood
mapping and delineation, regulation of water
use planning, and all of these are
significant from the wetlands standpoint, the
purpose of this conference. Our reports are
available without charge although the maps
do cost. We believe with correct information
available, the developer, the owner, the
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engineer, or whoever, will try to develop
properly. Then you won't get into the
problem where we have to enter the regulatory
process and restrict you from something you're
trying to do.
Just a point of information in case you
do care to write Brooksville, our office,
Swiftmud, is in Brooksville. The Zip is
33512. Our address is 5060 U.S. Highway 41
South. We're about 30 miles north of Tampa.
Thank you.
(Thereupon, the presentation
was concluded.)
*
_ _
h
The RE
WETLANDS AND WATER LAW CONFERENCE
FOR ENGINEERS, SURVEYORS & ATTORNEYS
.al
Sponsored By
Property, Probate and Trust Law Section
of the Florida Bar
The Environmental Law Section
of the Florida Bar
The Florida Section
American Society of Engineers
The Florida Society
of Professional Land Surveyors
THE PRESENTATION OF
MR. AARON DOWLING
EAST CENTRAL FLORIDA
REGIONAL PLANNING COUNCIL
WINTER PARK, FLORIDA
AS REPORTED BY
LELAND GAMBLING, C.S.R., C.M., R.P.R.
Notary Public
State of Florida at Large
April 15, 1977
ORLANDO HYATT HOUSE
6375 Space Coast Parkway
Kissimmee, Florida 32741
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1 PROCEEDINGS
2 MR. DOWLING: Well, I notice that time is almost gone,
3 but I'll promise I'll try to make my presenta-
4 tion much more brief than I anticipated due to
5 the lateness of the hour. I feel probably
6 the time was better deserved by Don Feaster,
7 simply because from our viewpoint, water
8 management districts are perhaps the most
9 important agencies in Florida from a
10 regulatory standpoint in terms of water
11 resource management. Regulatory powers really
12 come within the framework of management.
13 I was asked to speak on the role of the
14 Regional Planning Council from a regulatory
15 standpoint. Well, frankly, there is none in
16 the sense that Regional Planning Councils are
17 not regulatory agencies. We have no regulatory
18 power; we possess none, we receive none, we
19 give none; so what are Regional Planning
20 Councils?
21 Well, first off, they're organizations
22 that are formed by local units of government.
23 Now, again, State Law requires that there are
24 ten Regional Planning Districts in the State,
25 but it doesn't really specify which agency, or
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how many agencies, or their composition that
will comprise these ten areas. Most of them
are formed under Chapter 160 or 163 of the
Florida Statutes, and as I said, are voluntary
organizations formed by the local governments.
They are formed for the purpose of assisting
local governments and are governed by local
government representatives and members of the
general public.
I'd like to go into a very brief
presentation of the functions of Regional
Planning Councils. There are several major
functions that we all to varying degrees
provide. One is to provide planning and
associate technical assistance to local
government. Another one is to undertake broad
range plans, primarily on an area-wide basis.
Two principal planning activities that
you should be interested in and probably will
be affected by one way or the other is Section
208, or 201, Water Quality Mangement Planning
that is undertaken in about 12 areas of the
state, primarily the urban areas and,
secondly, coastal zone management planning in
the coastal zone areas. Both of these planning
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1 programs deal with and relate to wetlands,
2 primarily wetlands management.
3 The 208 program looks at wetlands from a
4 water quality standpoint. The coastal zone
5 program looks at coastal wetlands from a
6 management standpoint: i.e. use, purpose,
7 value, et cetera.
8 The Regional Planning Councils also
9 serve as coordinating agencies for various
10 Federal and State agencies on the part of
11 local governments and private industry. We,
12 in the same sense as Mr. Feaster mentioned,
13 serve as assistance agencies. In other words,
14 we try to work with local governments, also
15 private industry, to make them aware of what
16 guidelines exist on the part of other agencies
17 that they have to conform with, because, again,
18 we, like everyone else, like to see our area
19 benefit from growth, a proper type of growth.
20 And, of course, the Federal Government offers
21 a great deal of assistance, primarily financial
22 assistance, to accommodate that type of
23 growth. So, we're very much interested in
24 providing those services.
25 Another area that Estes Whitfield
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mentioned is Clearinghouses. For the most
part, Regional Planning Councils are the
Regional Clearinghouses.
We are the first agency along the line
that see an application for a project in its
very basic form. We try to assist the various
applicants to assure that their projects are
in conformance with appropriate regulations
that other agencies will be looking at them
from the standpoint of. And there are several
Clearinghouse functions or programs that we
relate to. First is the A-95 Clearinghouse,
which is a Federally-oriented type program
under the Office of Budget & Management. The
second one is Developments of Regional Impact,
or DRI. We serve as the reviewing agencies
for large scale public and private development
that may have an impact from an area-wide or
regional basis. It's our purpose, again, to
try to incorporate particular rules and
regulations and insure that these developments
are in accordance with them.
So, really, what we come down to is
Regional Planning Councils are more of a user
of regulations than a maker.
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1 Back to the functions of the Regional
2 Planning Council; one thing that we do is to
3 provide information about the uses of wetlands
4 primarily to local governments, one example
5 being in recreational planning. As
6 previously mentioned, there is the Local
7 Government Comprehensive Planning Act. One
8 element of these plans deals with environ-
9 mental protection, and wetlands are a major
10 item of concern on the part of local
11 governments and the public in general.
12 The wetlands have various functions that
13 local governments are concerned about and are
14 aware of. One, of course, is the water
15 storage capabilities. Don Feaster mentioned
16 this as an important use of lake and stream
17 flow regulations. Wetlands also perform
18 certain pollution abatement functions. The
19 fact of the work that Dr. Howard Odom has
20 undertaken relates to this particular function
21 of wetlands. Wetlands have esthetic values
22
22 and recreational uses. For instance, several
23
23 city .parks are located in wetlands. County
24
24 parks take advantage of wetlands, State parks
25
25 take advantage of wetlands and, of course,
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National parks do, also; Everglades National
Park being a good example.
Wetlands also have certain ecological
functions. They serve as a wildlife habitat
and nursery for many aquatic species.
So, there's a real concern about how to
manage wetlands; how to take advantage of the
multiple uses and purposes they perform, both
within a context of regulatory power and land
management.
The conversion of wetlands to other uses
carries a cost-benefit impact. This is a
major concern and relates back into a more-or-
less legal question, which is how to recognize
the trade-offs between wetlands in their
natural form and the land uses that they may
be converted to. This is a very difficult
item to assess, simply because, as Mr.
Whitfield pointed out, there is a lot more
research that still needs to be done to come
up with some sort of substantive information
which can be used.
Another function of Regional Planning
Councils is to review projects to insure
conformance with the various local plans and
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1 policies that have been formulated, and in
2 essense, to evaluate that each project
3 proposed for wetlands utilizes the land in
4 the overall best public benefit. The issue
5 of best public benefit comes back to this
6 previous topic I mentioned, namely the purpose
7 and functions of wetlands. Best public
8 benefit is clearly an area of legal discussion
9 sometimes on a case-by-case basis, because all
10 wetlands are not the same. Various wetlands
11. serve various functions or have capabilities
12 other wetlands don't have. The concept of
13 land rights is a basic issue, primarily in
14 terms of public ownership, or private owner-
15 ship, or public trust. The question rests
16 with where does the concept of public trust
17 fit in the general issue or program of land
18 ownership.
19 There is a major question relating to the
20 regulatory aspects of wetlands in that there
21 are two basic thrusts of regulatory process.
22 One is manifested in just simply regulating
23 what a person can or can't do. A good example
24 is the Area of Critical State Concern
25 designation. The Green Swamp, for example, wa
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designated as an Area of Critical State
Concern. The Big Cypress Swamp was designated
as an Area of Critical State Concern until
Federal funding for its purchase could be
secured. The Area of Critical State Concern
process simply is identifying areas for public
trust purposes, and constraining what each
landowner can do with that particular parcel
of land.
There are quite a few cases, for instance,
in the Green Swamp, that landowners purchased
land originally on a speculation basis,
feeling that being close to Disney World would
make it a prime growth area. Well, the Area
of Critical State Concern designation pretty
much put a damper on some of their ideas or
dreams by constraining what they could do with
their land. This brings up a question of
compensation in an Area of Critical State
Concern. The law does not denote any type of
monetary compensation.
One other alternative is another program
that does envision compensation. This is the
bond program that the citizens of Florida
endorsed several years ago for the purchase of
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1 environmentally endangered lands. This, much
2 like the program that Don pointed out, is the
3 acquisition of lands for conservation and
4 preservation purposes. This is taking lands
5 out of the private ownership and compensating
6 the landowner for something that is regarded
7 to be of public value that should be protected
8 for the public interest or used for the public
9 interest.
10 So, we get down to the question -- that
11 local governments have a great deal of problems
12 grappling with -- in that once an area is
13 identified as a wetland and you can identify
14 some importance to it, how do you convert it
15 for the public trust? How do you protect it?
16 How can a local government compensate the
17 landowners for the use of that property? And
18
18 that's an issue that I think has not clearly
19 been decided and probably won't be decided for
20
several years. It is probably one of the
21
major concerns that public officials at the
22
22 local level see as one very large problem
23
existing within the regulatory process. Maybe
24 Mr. Stephens, this afternoon, may touch upon
5 it as a pitfall. I very readily recognize it
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1 as a pitfall, and it's probably one of the
2 major issues that have caused problems in
3 terms of proper wetlands management.
4 In fact, there have been quite a few
5 articles written on the question of wetlands
6 management. One that I noticed was published
17 about a year ago, and is entitled "Wetlands In
;8 Florida, A New Legal Status," published by the
Joint Environmental & Urban Research Institute
with Florida Atlantic Land University and
Florida International University.
So, wetlands have been a topic of much co-
cern and much debate, and we are moving towards
some sort of solution, but, again, a key point
to be addressed is how we can adequately manage
wetlands so that we don't interfere with land
ownership rights, but we still look at wetlands
from the interest of the general public.
And with that, due to the lateness of the
hour, I'll close, and if there are any ques-
tions, maybe we can entertain them during or
after the lunch hour. I'd like to thank you
very much.
(Thereupon, the presentation of
Mr. Aaron Dowling was concluded.)
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BIOLOGICAL DETERMINATION OF MEAN HIGH WATER:
A QUESTION OF RELIABILITY
Rick A. Linthurst
North Carolina State University Coastal Consultants
INTRODUCTION
The importance of the marsh systems along at least the eastern
coast of the United States is documented by the extensive volume of
literature available (Wentz et al., 1974). Reimold (In press)
estimates that there are 2,199,951 acres of wetlands along the Atlantic
coast of which 1,456,605 acres are salt marshes. Florida has a com-
bined salt marsh and mangrove swamp extent of 117,696 acres or 8.1%
of all the east coast areal extent; an extent certainly ample for
serious consideration.
The undisturbed estuaries along the coast of the United States are
Described as unique ecosystems often dominated by monospecific stands
of marsh plants well adapted to the prevailing environment (Fornes
and Reimold, 1973). The resultant vegetation pattern is seen as a
vertical zonation of marsh plant species with each species responding
to a relatively narrow range of biotic and abiotic components (Adams,
1963). It has been proposed by numerous authors (Johnson and York,
1915; Miller and Egler, 1950; Hinde, 1954; Adams, 1963; Kerwin and
Pedigo, 1971) that tidal elevation is the predominant influence in
North Carolina State University, Department of Botany, P. O. Box
5186, Raleigh, North Carolina 27607; Coastal Consultants, Suite 204,
3512 Horton Street, Raleigh, North Carolina 27607.
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determining zonation. These zones can be simply classified into two
major categories, low and highmarsh (Adams, 1963) or complexly into
eight zones asdone by Kurz and Wagner (1957) based on vegetation types.
The complexity of classification based on vegetation types and vegetation
association will be the major consideration of this presentation.
Ecologists, state and federal agencies, surveyors, developers,
and lawyers are all becoming well aware of the estuarine system, its
complexity and importance. These diverse professionals, however, often
represent conflicting land use perspectives. The key to the conflicts
often centers around the mean high water line. This line is normally
most accurately located by modern survey techniques (O'Hargan, personal
communication). Over the past decade, more emphasis has been placed on
the possibility for biological determination of this line. It will
be the purpose of this paper to complicate the simplistic view of the
generalized biological mean high water concept from an ecological view
and in turn the associated legal relevance. Emphasis will be placed
on the many factors which can cause species distribution. What follows,
however, is by no means a conclusive study of the subject but purely
a brief and simplistic pathway for theoretical consideration.
DISCUSSION
Estuary Classification
Odum, 1971, suggests three major classifications of estuaries based
on (1) geomorphology, (2) water circulation and stratification, and (3)
systems energetic. From the geomorphological view Pritchard (1967a)
lists four major subdivisions (Odum, 1971).
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1. Drowned river valleys are most extensively developed
along coastlines with relatively low and wide coastal
plains.
2. Fjord-type estuaries are deep, U-shaped coastal
indentures gourged out by glaciers and generally
with a shallow sill at their mouths formed by
terminal glacial deposits.
3. Bar-built estuaries are shallow basins, often partly
exposed at low tide, enclosed by a chain of offshore
bars or barrier islands, broken at intervals by inlets.
4. Estuaries produced by tectonic processes are coastal
indentures formed by geological faulting or by local
subsidence.
Odum, 1971, adds still another type which he calls River Delta
Estuaries found at the mouths of large rivers.
The geomorphological aspects of the system in turn determine to
some extent the circulation patterns and ultimately the energetic of
the estuary. Circulation within any specific system becomes of prime
importance in determining the distribution of individual species
(Odum, 1971). The major subdivisions are as follows (Prichard, 1967b):
1. Highly stratified or "salt-wedge" estuary, where the
flow of river water is strongly dominant over tidal
action, as in the mouth of a large river, fresh water
tends to overflow the heavier salt water, which
therefore forms a "wedge" extending along the bottom
for a considerable distance upstream.
The Coriolis force causes the fresh water to flow more strongly along
the right shore as the observer faces the sea. The distribution of the
plant species would potentially be different on either side of the
Estuary although the tidal amplitude was the same.
2. The partially mixed or moderately stratified estuary,
where fresh water and tidal inflow are more nearly
equal, the dominant mixing agent is turbulence, caused
by the periodicity in the tidal action...this creating
a complex pattern of layers of water masses.
3. The completely mixed or vertically homogenous estuary,
when tidal action is strongly dominant and vigorous,
the water tends to be well mixed from top to bottom
and the salinity relatively high.
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Therefore, localization of estuarine species may be more influenced by
circulation and the type of estuary than by tidal activity alone.
Plant Species
Some typical species dominants found along the east coast salt
marshes and mangrove swamps are summarized in Table 1 (Reimold, In
press). Plant species considered most frequently in the south eastern
U. S. with respect to mean high water are: S. alterniflora, J.
roemerianus, D. spicata, S. patens, A. nitida, Salicornia spp., R.
mangle, Laguncularis racemosa Gaertn. (associated with C. erecta)
and Scirpus sp. to suggest only a few. The diversity of vegetation
with distinct zonation superficially suggests easily defined ecological
requirements of these plants of which tidal innundation frequency,
periodiocity, and therefore elevation is often considered to be the
dominating factor. Mixtures and species associations suggest less
clearly defined parameters influencing distribution or successional
occurrence whereby species are able to share the same ecological zone.
What factors determine plant response will be the next consideration
and will suggest that there should be some difficulty in selecting one
prevailing factor as the causal agent in zonation.
Growth Factors
For convenience, let us assume that there are two Florida estuaries
geomorphologically, hydrologically, and energetically alike and that
the species within these two imaginary estuaries are also similar. It
is then necessary to break our system down still further to an individual
plant basis and consider the factors which determine the success of a
plant in a "typical" environment if our goal is to detect the causal
mechanisms of distribution.
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Table 1. Vegetation typical of eastern United States coastal salt flats, salt meadows, irregularly
flooded salt marshes, regularly flooded salt marshes, and mangrove swamps (adapted from
Shaw and Fredine, 1956; Reimold, In press)
Occurrence
area of
Scientific name Common name salt salt irregularly regularly mangrove predominant
flooded flooded mangrove predominant
flat meadow lt m l swamp occurrence
salt marsh salt marsh
Avicennia nitida Jacq. black mangrove x FL
Batis maritima L. saltwort x MS to MD
Carex spp. sedge x LA to MS
Conocarpus erecta L. button mangrove x FL
Distichlis spicata (L.) Greene salt grass x x LA to FL
Juncus balticus Willd. baltic rush x LA to NY
Juncus gerardii Loisel. black rush x NF to NJ
J. roemerianus L. needle rush x MD to FL
Monanthochloe littoralis Engelm. salt-flat grass x FL
Plantago spp. plantain x NS to DE
Pluchea salt-marsh fleabanes x ME to FL
Rhizophora mangle L. red mangrove x FL
Ruppia maritima L. widgeon grass x ME to FL
Salicornia biglovi L. dwarf saltwort x ME to FL
S. europa L. samphire x NS to FL
S. virginica L. perennial saltwort x MS to FL
Scirpus olneyi L. Olney threesquare x NS to FL
Spartina alterniflora Loisel. salt-marsh cord grass x NF to FL
S. patens Muhl. salt-marsh cord grass x NF to FL
Suaeda maritima (L.) Dum. seablite x QU to VA
Abbreviations:
DE = Delaware; FL = Florida; LA = Labrado; MD = Maryland; ME = Maine; MS = Massachusetts;
NF = Newfoundland; NJ = New Jersey; NS = Nova Scotia; NY = New York; QU = Quebec; VA = Virginia.
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Figure 1 shows the major life cycle stages of a plant (from
Etherington, 1975) and some dominant climatic influences. As can be
seen from this table, the requirements for each stage of development are
specific and alterations of these factors can determine the success or
failure of an individual plant or a species as a whole. In addition,
this concept is complicated still further by considering the factors
which determine the survival of a plant through growth. These factors
are listed in Table 2 (adapted from Etherington, 1975).
In addition to these environmental variables, each one which
could be broken still into many more components since there are also
genetic characteristics of the plant to consider. I am ignoring these
variables since I am assuming that our system has already selected those
species capable of surviving because of their characteristics and
adaptability to the estuarine environment.
An example of the compleity of these interactions is shown in
Figure 2 (Etherington, 1975) for a single variable, Nitrogen. The
figure is shown not for the details of the nitrogen cycle but purely to
show additional evidence of the complicated association of organisms
and their environment and the difficulty in isolating a single variable
as the prevailing factor. Figure 3 shows how complicated such interactions
might become from a holocoenotic viewpoint.
Competition
Pielou and Routledge (1976) mathematically evaluate the zonation
of salt marsh plants. They contend that the vegetation depends not only
on its tolerance limits for the abiotic factors that vary along a gradient
but to some extent by between species competition. This adds still
another consideration to this distribution complex.
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.-- SEED
GERMINATION
SEEDLING
GROWTH TO
MATURITY
FLOWERING AND
SEED SETTING
,SEED VIABILITY
Figure 1.
Genetic constitution controls
phenotypic responses to
following factors
Pretreatment: sensitive to
water and temperature
Requirement for correct light
and temperature conditions and
an adequate, stable water supply
Prone to frost, drought and wind
effects. Rate of root extension
and safe establishment related
to prevailing temperature and
water supply. Light quality
Demands a minimal energy input
with sustained temperature and
water supply conditions.
Sensitive to occasional
catastrophic events such as
frost or drought. Light
quality
Pretreatment: temperature and
daylength requirement perhaps
as early as seed stage
Requirement for correct tempera-
ture and daylength regime. Seed
production may reflect preflower-
ing energy fixation. Light
quality
PERENNATION
Requires correct
temperature and
daylength. Low
temperature or
flooding may kill
1
SPRING REGROWTH
Temperature and
daylength to break
dormancy. Prone to
frost, wind and
drought damage
Specific water, temperature and
light conditions
Possible interactions of climatic factors with plant
growth at different life cycle stages (From Etherington,
1975)
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Table 2. Some environmental variables responsible for
plant growth
1. Energy quantity and quality
2. C02 supply
3. Air and leaf temperatures
4. Soil texture, structure, chemistry
5. Mineral nutrition quantity and availability
6. Seasonality of climate
7. Pathological condition
8. Water availability, salinity, chemistry
Table 3. Some components of the ecosystem for which plants
compete
1. SPACE
2. LIGHT
3. CARBON DIOXIDE
4. NUTRIENTS
5. WATER
6. POLLINATORS
7. DISPERSAL AGENTS
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S- Storoge
S- Transfmohon
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Figure 2.
Block diagram for a systems analysis of the processes involved in ecological
nitrogen cycling. The lines represent flow paths, the boxes are transformations
that regulate flow quantities and the circles are storage reservoirs. The two
double-walled boxes represent storage outside the boundary of the ecosystem.
Diagram from Etherington (1975).
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Diagrammatic representation of the complex and holocoenotic
interactions between environmental factors and an organism.
Solid lines show factor-plant relationships; dashed lines
show factor interactions. Time is an environmental
dimension, not a factor, and its modifying influence is
indicated by inward-pointing arrows just inside the border
of the diagram. Diagram from Billings (1952).
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Figure 3.
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Generalized components for which plants compete are shown in
Table 3. Man has a considerable influence on several of these factors
which include space (perturbation), nutrients (urban run-off), and
pollutants and dispersal agents (perturbation of hatitat for seed
carriers and pollinators). It appears conclusive then that man alone
can change the areal extent of a well adapted plant by changing com-
ponents of interspecific competition.
If we suggest that a plant grows where it does because it is
better adapted to grow at that specific location than anywhere else
or better than any other plant, then by changing that environment, the
stage may be set for another species to begin establishment in the same
location. Depending on the tolerance limits and competitive ability
of both plants, the result is either a mixture of species or evolution
to a pure stand of the encroaching species. To answer such questions
will take many years of research designed to quantify the tolerance of
individual plant species to numerous factors. To conclusively establish
the limiting growth or distribution factor of a plant is strongly
dependent on the other prevailing factors and it is my contention that
mean high water is no exception. Although tidal flushing is certainly
an influential parameter, it is still dependent on many other parameters
which could in themselves be even more influential.
Environmental Gradients
As I have suggested throughout this presentation, plants are
distributed with respect to environmental gradients. Generally environ-
mental gradients are not sharp and distinct. Mean high water is a prime
example. At times the water flows beyond this line and with similar
frequency, water fails to reach this line. Therefore, as its title
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suggests, it is an average of the daily, monthly, and yearly fluctua-
tions. With rising sea level, mean high water is going to follow the
general trend and rise also. If there exists a biological line which
designates mean high water, whether or not it will respond appropriately
to this change is still questionable based solely on the time it may
take; that is, how long will it take for one species to be out competed
or die out and allow another species to move in, dominate and in turn,
i reestablish our line?
SFigure 4 (Whittaker, 1975) portrays the population response to
two environmental gradients. The density here is shown to decrease as
you move away from the population center. This suggests that species
are distributed with respect to a multi-dimensional hyperspace. That
is, a plant responds to numerous environmental and biological parameters
in such a manner that it has an optimum response based on an optimum
interaction of these many parameters and a distribution limit based on
i the interaction of these same variants. Obviously it would be difficult
to portray such a concept pictorially inclusive of all variables at
once. Therefore, for the purpose of this presentation it must remain
as an abstract concept.
This hyperspace or hypervolume concept then becomes one theory
of plant distribution. That is, if we select numerous salt marsh
species and analyze them individually, we will discover that these
hyperspaces are overlapping. Two plants then tend to have tolerance
levels which will allow them to occupy similar habitats. It is doubtful,
however, that any two species have identical optimum hyperspaces. This
suggests then that one must also have some measure of the biological
response of the plant in addition to simply quantification of the
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Population response to two environmental gradients. The distribution
forms a bell-shaped or hill-shaped figure, with population density
decreasing in all directions away from the population center or peak.
In any transect of communities along a single environmental gradient
that cuts through this population solid, a bell-shaped curve of popula-
tion density will be obtained. Diagram from Whittaker (1975).
Habital or Niche Gradient
Establishment of a new species in a community gradient. The new
species, number 4, has a potential distribution along the habitat
gradient as represented in the dashed line of the upper figure. In
competition with species 3 and 5 it fits in between these, as indicated
in the lower figure. The bars between the figures represent dispersions,
the degrees of deviation or spread of the populations on each side of
their mean positions along the gradient. Diagram from Whittaker (1975)
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