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INDIVIDUAL FEATURES: Regulation

Wetland Regulatory Statutes and Administrative Rules

State Regulatory

Florida implements an independent state permit program that operates in addition to the federal dredge and fill permit program. The state regulatory permit program is implemented differently, depending on the location of the activity. As described below, this includes a statewide regulatory environmental resource and wetland resource permit under part IV of chapter 373 of the Florida Statutes. It also includes a mangrove trimming and alteration program under chapter 403 of the Florida Statutes. These are further described as follows:

In peninsular Florida (encompassing the geographic territory of four water management districts, beginning south and east of mid-Jefferson County):

An environmental resource permit “ERP” program regulates virtually all alterations to the landscape, including all tidal and freshwater wetlands and other surface waters (including isolated wetlands) and uplands. The ERP addresses dredging and filling in wetlands and other surface waters, as well as stormwater runoff quality (i.e. stormwater treatment) and quantity (i.e. stormwater attenuation and flooding of other properties) including that resulting from alterations of uplands. This program regulates everything from construction of single family residences in wetlands, convenience stores in the uplands, dredging and filling for any purpose in wetlands and other surface waters (including maintenance dredging), construction of roads located in uplands and wetlands, and agricultural alterations that impede or divert the flow of surface waters. Issuance of the ERP also constitutes a water quality certification or waiver thereto under section 401 of the Clean Water Act, 33 U.S.C. 1341. In addition, issuance of an ERP in coastal counties constitutes a finding of consistency under Florida Coastal Zone Management Program under Section 307 (Coastal Zone Management Act). The ERP program is implemented jointly by the Department of Environmental Protection and the four water management districts, in accordance with an operating agreement that identifies the respective division of responsibilities.

In the panhandle (encompassing the geographic territory of the Northwest Florida Water Management District, west of and including mid-Jefferson County):

A wetland resource permit program under chapter 62-312 of the Florida Administrative Code. This program regulates dredging and filling in all tidal and freshwater wetlands and other surface waters that are connected (by one or more natural or artificial waters) to other bays, bayous, streams, rivers, lakes, estuaries, or the Gulf of Mexico. It does not regulate dredging or filling in isolated wetlands. Issuance of a wetland resource permit also constitutes a water quality certification or waiver thereto under section 401 of the Clean Water Act (CWA), 33 U.S.C. 1341, and a finding of consistency under Florida Coastal Zone Management Program under Section 307 (Coastal Zone Management Act). This program is implemented solely by the DEP.

A separate stormwater permit program under chapter 62-25 of the Florida Administrative Code. This program regulates construction and land alterations (typically in uplands) that collect, convey, channel, hold, inhibit or divert the movement of stormwater and that discharge into surface water waters. This program only addresses the quality of water discharged from stormwater systems, not the quantity of water (i.e. it does not address flooding issues as does the ERP permit program in the rest of the state.) This program is implemented solely by the DEP, except the City of Tallahassee has received a delegation to review and take agency action on stormwater general permits within their geographic limits—see below.

An agricultural and dam safety program was implemented by the Northwest Florida Water Management District, under chapter 40A-4 of the Florida Administrative Code. This includes regulating the management, storage, and drainage of surface waters associated with agricultural and forestry projects. This program has jurisdiction over impacts to isolated wetlands in agricultural lands, and issuance of this permit constitutes water quality certification under section 401 of the Clean water Act, 33 U.S.C. 1341. The dam safety program regulates the construction, alteration or abandonment of dams or levees utilized in non-agricultural settings.

The trimming or alteration of mangroves (a tropical tree species growing in the estuaries of middle and south Florida, including the red mangrove Rhizophora mangle; black mangrove Avicennia germinans; and white mangrove Laguncularia racemosa) is regulated in accordance with the Mangrove Protection Act of 1996 (sections 403.9321-403.9334, F.S. Levels of regulation include exemptions, general permits, and individual permits, depending on the number and extent of trimming or alteration.

Proprietary (Sovereign Submerged Lands

In addition to the above regulatory permit programs, activities that are located on submerged lands that are owned by the state of Florida (otherwise called sovereign submerged lands) also require a proprietary authorization for such use under chapter 253 of the Florida Statutes. Such lands generally extend waterward from the mean high water line (of tidal waters) or the ordinary high water line (of fresh waters) both inland and out to the state’s territorial limit (approximately three miles into the Atlantic Ocean, and ten miles in the Gulf of Mexico). If such lands are located within certain designated Aquatic Preserves, the authorization also must meet the requirements of chapter 258 of the Florida Statutes. Such authorization considers issues such as riparian rights, impacts to submerged land resources, and preemption of other uses of the water by the public. Authorizations typically are in the form of consents of use, easements, and leases. This program is implemented jointly by the DEP and four of the state’s five water management districts in accordance with the same operating agreement that governs the ERP program. The program is structured such that applicants who do not qualify at the time of the permit application for both the regulatory permit and the proprietary authorization cannot receive either permit or authorization.

Federal Coordination/Delegation

As described above, issuance of a state environmental resource or wetland resource permit also constitutes a state water quality certification or waiver thereto under section 401 of the Clean Water Act, 33 U.S.C. 1341, and, in coastal counties, a finding of consistency under Florida Coastal Zone Management Program under Section 307 (Coastal Zone Management Act). When a corresponding federal dredge and fill permit is required, it is issued independently from the state permit by the Corps after issuance or waiver of the state water quality certification and applicable coastal zone consistency concurrence.

NPDES — In addition to the above state regulatory programs, Florida has statewide authorization to implement the federal NPDES permit program for stormwater. Areas of regulation include municipal separate storm sewer systems, certain industrial activities, and construction activities. The municipal program has jurisdiction over large and medium municipalities. The industrial program covers selected industries and are identified by Standard Industrial Code. New construction may also require a stormwater permit if the clearing, grading, or excavation work disturbs five or more acres of land and discharges to either a surface water of the state or to a Municipal Separate Storm Sewer System “MS4”. The NPDES stormwater permit needed is called the Generic Permit for Stormwater Discharge from Construction Activities that Disturb Five or More Acres of Land. Copies of the permit, application forms, guidance materials, and other information about the permit and NPDES stormwater program can be downloaded from the following website: http://www.dep.state.fl.us/water/stormwater/npdes/.

SPGP — the Corps has delegated to the DEP the ability to issue the federal dredge and fill permit under section 404 of the Clean Water Act for certain activities that qualify for an ERP or wetland resource permit or exemption (see below).

Wetland Regulatory Statutes and Administrative Rules

The regulatory program is authorized under Part IV of chapter 373 of the Florida Statutes governs the environmental resource permit program. Section 373.4145 more specifically governs the wetland resource permit program in the panhandle.

Florida Administrative Code regulatory rules of general applicability include chapters:

  • 62-4 (including general permitting criteria, fee requirements, water quality protection criteria for special waters, and anti-degradation criteria)
  • 62-40 (State Resource Implementation Rule)
  • 62-340 (statewide delineation of the landward extent of wetlands and other surface waters
  • 62-342 (mitigation banking)

Florida Administrative Code rules implementing ERP permit program include chapters:

  • 62-330 (which adopts the various rules of the water management districts listed below)
  • 6-312 (only part IV-additional criteria within Monroe County)
  • 62-341 (standards and criteria for noticed general permits)
  • 62-343 (general application and review criteria)
  • 62-344 (delegation of the ERP permit program to local governments)
  • 40B-4, 40B-400, & ERP Applicant’s Handbook (within the Suwannee River Water Management District)
  • 40C-1, 40C-4, 40C-8, 40C-40, 40C-41, 40C-42, 40C-400, Stormwater Applicant’s Handbook, and Management and Storage of Surface Waters Applicant’s Handbook (within the St. Johns River Water Management District)
  • 40D-1, 40D-4, 40D-40, 40D-400, and Basis of Review (within the Southwest Florida Water Management District (SWFWMD)
  • 40E-1, 40E-4, 40E-40, 40E-41, 40E-400, and Basis of Review (within the SFWMD)

Florida Administrative Code rules implementing the wetland resource permit program (applicable only in the panhandle and for certain grandfathered projects in the rest of the state):

  • Chapter 62-312

Florida Administrative Code rules implementing the stormwater treatment permit program in the panhandle:

  • Chapter 62-25

The proprietary program is authorized under chapter 253 of the Florida Statutes. Activities on sovereign submerged lands in Aquatic Preserves are further authorized by chapter 258 of the Florida Statutes.

Florida Administrative Code rules implementing the proprietary program include chapters:

  • 18-14 (Administrative Fines)
  • 18-18 (Biscayne Bay Aquatic Preserve)
  • 18-20 (Aquatic Preserves)
  • 18-21 (Sovereignty Submerged Lands Management)

All licensing and agency action determinations under the above statutes and rules are further governed by the Administrative Procedures Act chapter 120 of the Florida Statutes and by the rules of uniform procedures under chapter 28 of the Florida Administrative Code.

Wetland Definition and/or Delineation; Comparability With Federal Definition

Under section 373.421 of the Florida Statutes, Florida has adopted a wetland delineation methodology that is binding on all state, regional, and local governments throughout Florida. This methodology was adopted as chapter 62-340 of the Florida Administrative Code, which was then ratified in section 373.4211 of the Florida Statutes for statewide applicability. It became effective on July 1, 1994. This methodology is a unified statewide approach to wetland and other surface water delineation and is specific to Florida, in recognition of the vegetation, hydrologic, and soil features that specifically exist in Florida.

Wetland Definition and/or Delineation; Comparability With Federal Definition

Florid has not produced a map of the wetlands as they would be delineated using the state methodology in s. 373.421 and 373.4211, F.S. Instead, staff in the Tallahassee office of the Department's Bureau of Beaches and Wetland Systems and District offices, as well as staff in the Suwannee River, St. Johns River, Southwest Florida, and SFWMD performs wetland delineations for a specific parcel of property on request or as part of a permit application review. There are three ways such requests for wetland delineations may occur:

  • By formal petition for a formal determination of the landward extent of wetlands and other surface waters (in accordance with section 62-343.040, F.A.C.) in peninsular Florida, or by formal petition for Jurisdictional Declaratory Statement (in accordance with section 62-312.040, F.A.C.) in the northwest DEP district. These determinations are done for a fee, depending on the size of the total parcel, are subject to specified time frames, typically require the petitioner to produce a survey of the wetlands so delineated, and are binding on the petitioner and the state agencies for a period of five years (which may be extended).
  • As part of a permit application. There is no additional charge for this service above that required to process the permit application.
  • Through an informal determination. These are normally done only for private single family landowners. There is no fee for these determinations, but they are done on an “as-resources allow” basis, are not subject to any time frames, and are not binding on any of the parties. Due to staffing limitations, there is increased reluctance of the district staff to do these, and property owners usually are encouraged to file a petition for a formal determination.

All of the above delineations are done using the state methodology in chapter 62-340 of the Florida Administrative Code.

If a federal dredge and fill permit is required for an activity, it is up to the Corps to separately delineate the wetlands on the parcel using the applicable federal methodology. While the Corps determination may be done coincident with the state delineation, the two methodologies are not interchangeable, and often the wetlands delineated by each methodology is different, as mentioned above.