Article Index

Evaluation Methodology

All Environmental and Wetland Resource Permits

The first step in the review of all environmental and wetland resource permit applications involves a consideration of eliminating and reducing otherwise unpermittable adverse impacts (note that this is a different test that the “Alternatives Analysis” used by federal agencies; it does not provide for considering an alternate site).

Staff from the DEP or from the applicable water management districts (in accordance with the Department/Water Management District Operating agreements described above) evaluate (using their best professional judgement) whether an activity will adversely affect fish, wildlife, listed species, and their habitats. Upon receipt, a copy of each application also is initially copied to the Florida’s Fish and Wildlife Conservation Commission (FWC). Comments and suggestions regarding listed species and other wildlife impacts from the FWC are considered during processing of the application. The FWC also may object to issuance of an ERP or wetland resource permit under Florida’s Approved Coastal Zone Management Act coordination process. The DEP and water management districts do not rely on, but will also consider, comments from the federal resources agencies (U.S. Fish and Wildlife Service and the National Marine Fisheries Service) when such comments are made in a timely manner during the processing of a state permit. Consideration is given under the environmental resource permit program to upland buffers that are designed to protect the functions that uplands provide to wetlands and other surface waters. When considering impacts to the listed (endangered, threatened and special concern) species under the environmental resource permit program, the agencies may only consider adverse impacts to aquatic or wetland dependent listed species that use wetlands and other surface waters or that use upland habitats for nesting and denning.

All activities must be found to not result in violations of state surface and groundwater water quality standards (there are no separate water quality criteria for wetlands—see discussion on water quality). In addition, for projects located in Outstanding Florida Waters (these waters are identified in chapter 62-302, F.A.C.), the activity must be found to not cause degradation of ambient water quality. The siting of marinas and other activities that may affect the flow of waters includes hydrographic evaluations that are useful in predicting whether water quality standards will be met. The rules also provide for mitigation in the form of net improvement when an activity will cause or contribute to discharges in waters that do not currently meet state water quality standards for the constituents of those discharges.

When evaluating the value and functions that wetlands and other surface waters provide for fish, wildlife, listed species, and water quality, the state does not rely on Hydrogeomorphic (HGM) analysis, although such analyses will be considered if submitted as part of a permit application. There are no HGM models finalized yet in the state, but several drafts are in development. Instead, the permitting tests described below for “Environmental Resource Permits” and “Wetland Resource Permits” are used. The evaluation is largely based on “best professional judgment.” When an analysis determines that an activity is likely to adversely affect wetland and other surface water functions, the rules include provisions, after first considering ways to reduce or eliminate those adverse affects, for wetland and other surface water mitigation. Mitigation considerations are discussed in the “Mitigation” section, below. In addition, many applicants and the agencies (including the Corps regional office in Florida) also use a Wetland Rapid Assessment Procedure (WRAP) to assist in analyzing wetland functions. WRAP was originally developed by the SFWMD as a tool to analyze compliance at mitigation sites and is now informally used in the evaluation of ERP, wetland resource, and mitigation bank applications.

Section 373.414(18) of the Florida Statutes, adopted by Florida’s legislature in 2000, requires the Department, in consultation with the water management districts, to develop a uniform wetland mitigation assessment method by October 1, 2001, and for such method to be adopted by rule no later than January 31, 2002. Once adopted, this method is to be binding on the DEP, the water management districts, local government, and any other governmental agencies, and shall be the sole means to determine mitigation needed to offset adverse impacts and to award and deduct mitigation bank credits. The DEP currently is continuing to work on adoption of this rule methodology; as of January, 2002, is not yet in effect, and legislation is being developed to extend the deadline for adoption of this rule.

In addition to evaluating direct, construction-related impacts to wetlands and other surface waters, the ERP and wetland resource rules and associated case law require a consideration of secondary and cumulative impacts when evaluating adverse impacts of an activity.

  • Secondary impacts are those actions or actions that are very closely related and directly linked to the activity under review that may affect wetlands and other surface waters and that would not occur but for the proposed activity. Secondary impacts to the habitat functions of wetlands associated with adjacent upland activities are not considered adverse under the environmental resource permit program if buffers of a certain minimum size are provided abutting the wetlands (with some exclusionary provisions).
  • Cumulative impacts are residual adverse impacts to wetlands and other surface waters in the same drainage basin that have or are likely to result from similar activities (to that under review) that have been built in the past, that are under current review, or that can reasonably be expected to be located in the same drainage basin as the activity under review.

ERP Permits

In addition to the above, the Environmental Section in each of the Water Management District's Applicant's Handbooks and Basis or Review (these are adopted for use by the Department in chapter 62-330, F.A.C.) contains a detailed explanation of the criteria that are used to evaluate permittable and unpermittable impacts to wetlands and other surface waters. This section includes criteria for:

  • All projects requiring a permit must be found to:
    • Not cause adverse water quantity impacts to receiving waters and adjacent lands;
    • Not cause adverse flooding to on-site or off-site property;
    • Not cause adverse impacts to existing surface water storage and conveyance capabilities;
    • Not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters;
    • Not adversely affect the quality of receiving waters such that state water quality standards will be violated;
    • Not cause adverse secondary impacts to water resources;
    • Not adversely impact the maintenance of surface or ground water levels or surface water flows;
    • Not adversely impact a work of a water management district;
    • Be capable, based on generally accepted engineering and scientific principles, of being performed and of functioning as proposed;
    • Will be conducted by an entity with the financial, legal, and administrative capability of ensuring that the activity will be undertaken in accordance with the terms and conditions of the permit, if issued; and
    • Will comply with applicable special basin or geographic area criteria adopted by rule.
  • In addition, activities in wetlands and other surface waters must not be contrary to the public interest, or, if the activity is located in an Outstanding Florida Water (these waters are listed in chapter 62-302, F.A.C.), the activity must be clearly in the public interest. This test is based on a weighing a balancing of the following criteria:
    • Whether the regulated activity will adversely affect public health, safety, or welfare, or the property of others (based solely on environmental, not economic, considerations);
    • Whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered and threatened species, or their habitats;
    • Whether the regulated activity will adversely affect navigation or the flow of water, or will cause harmful erosion or shoaling;
    • Whether the regulated activity will adversely affect fishing or recreational values or marine productivity in the vicinity of the activity;
    • Whether the regulated activity will be of a temporary or permanent nature;
    • Whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of section 267.061, F.S.; and
    • The current condition and relative value of the functions being performed by areas affected by the proposed regulated activity.
  • Direct, secondary, and cumulative impacts are considered for all activities in wetlands and other surface waters.
  • In addition to considering impacts to wetlands and other surface waters, development or other alteration of the uplands that affects surface water flow or that generates new sources of stormwater runoff also is evaluated. There are certain exemptions from the need for an ERP permit for these activities, such as for individual, private single family residences constructed in the uplands that are not part of a larger plan of common development, and projects that are below certain size thresholds, depending on the water management district.

Wetland Resource Permits

To qualify for a permit, a wetland resource permit applications must be found to not be contrary to the public interest, or, if the activity is located in an Outstanding Florida Water (these waters are listed in chapter 62-302, F.A.C.), the activity must be clearly in the public interest. This test is based on a weighing a balancing of the following criteria:

    • Whether the regulated activity will adversely affect public health, safety, or welfare, or the property of others (based solely on environmental, not economic, considerations);
    • Whether the regulated activity will adversely affect the conservation of fish and wildlife, including endangered and threatened species, or their habitats;
    • Whether the regulated activity will adversely affect navigation or the flow of water, or will cause harmful erosion or shoaling;
    • Whether the regulated activity will adversely affect fishing or recreational values or marine productivity in the vicinity of the activity;
    • Whether the regulated activity will be of a temporary or permanent nature;
    • Whether the regulated activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of section 267.061, F.S.; and
    • The current condition and relative value of the functions being performed by areas affected by the proposed regulated activity.
  • Direct, secondary, and cumulative impacts are considered for all activities in wetlands and other surface waters.

Stormwater

  • With the implementation of the state stormwater rule (chapter 62-25, F.A.C.) in February 1982, Florida was the first state in the country to require the treatment of stormwater from all new stormwater discharges. This technology based rule requires stormwater systems to remove at least 80% of the post-development total suspended solids (TSS) loading (95% removal of TSSs if the stormwater system directly discharges to an OFW).
  • Stormwater runoff can significantly affect wetland and other surface water quality and functions.
  • Evaluation of stormwater quality and quantity is a component of the Environmental Resource Permit program in peninsular Florida, as described above.
  • In the panhandle, a separate stormwater permit under chapter 62-25, F.A.C., is required for activities that result in the creation of systems that convey, channel, hold, inhibit, or divert the movement of stormwater and the discharge of stormwater into surface waters of the state. Chapter 62-25 contains various exemptions and general permits; for activities that do not qualify for the exemptions or general permits, the rule also contains provisions for issuance of individual permits, and permits for wetland stormwater discharge systems.

Sovereign Submerged Lands

  • Activities located in whole or in part in, on, or over sovereign submerged lands will also require an applicable proprietary authorization to use such lands. The review criteria include a requirement that an activity not be contrary to the public interest, and, in aquatic preserves, that the activity be clearly in the public interest. Evaluation factors are contained in chapter 18-21, F.A.C., and, if in an aquatic preserve, additional factors in chapter 18-20, F.A.C., also apply. Considerations will include whether the activity will adversely affect sovereign submerged lands resources (such as. grassbeds and oyster bars), the rights of riparian property owners, navigation, and preemption of uses of the waters by the public-at-large. Many of the evaluation factors are very prescriptive, with specific limitations on the sizes, types, and designs of activities that can be authorized. Only uses that are water dependent can be approved, except for certain non-water dependent activities have been “grandfathered” and incidental uses that may be approved on a case-by-case basis for public projects. Dredging of submerged lands typically requires payment to the state for “severing” dredged material from public ownership. Commercial uses of sovereign submerged lands (such as for marinas) require a lease, with annual lease fee payments to the state. Utilities and certain other activities must obtain public or private easements. Private easements require a one-time payment of easement fees, based on the appraised value of the easement.
  • Florida's regulatory programs are not affected by the recent SWANCC decision affecting the identification of isolated wetlands under the federal dredge and fill permit program.
  • As will be discussed below, many local governments in Florida have their own environmental regulatory program that requires compliance with local regulatory ordinances and Acts. These local requirements are in addition to the above state and federal requirements, and do not replace or supersede state and federal permitting requirements.

Regulated and Exempted Activities

  • Certain activities have been exempted by statute and rule from the need for regulatory permits under state law or by agency rule. To be exempt by rule, the activities have been previously determined by the agencies to be capable of causing no more than minimal individual and cumulative adverse impacts to wetlands and other surface waters.
  • Examples (by no means inclusive) of exempt activities include:
    • construction, repair, and replacement of certain private docking facilities below certain size thresholds;
    • maintenance dredging of existing navigational channels and canals;
    • construction and alteration of boat ramps within certain size limits;
    • construction, repair, and replacement of seawalls and rip rap in artificial waters;
    • repair and replacement of structures; and
    • construction of certain agricultural activities (see below).
  • In addition, the state has issued a number of “noticed general permits” for activities that are slightly larger than those that qualify for the above exemptions and that otherwise have been determined to have the potential for no more than minimal individual direct and secondary impacts. These include (by no means comprehensive):

    • construction and modification of boat ramps of certain sizes;

    • installation and repair of riprap at the base of existing seawalls;

    • installation of culverts associated with stormwater discharge facilities; and

    • construction and modification of certain utility and public roadway construction activities

  • Anything that does not specifically qualify for an exemption or noticed general permit generally requires an ERP permit. Activities that are not specifically exempt and that involve dredging or filling in connected wetlands and other surface waters in the panhandle generally requires a wetland resource permit.

Special Provisions for Agriculture and Forestry

  • Sections 373.406 and 403.927, F.S., exempt certain agricultural activities from the need for Environmental Resource and Wetland Resource permits. These include the rights of any person engaged in the occupation of agriculture, silviculture, floriculture, or horticulture to alter the topography for purposes consistent with the practice of such occupation, provided the alteration is not for the sole or predominant purpose of impounding or obstructing surface waters. All five water management districts in the state have adopted specific rules to regulate other agricultural activities, including the adoption of noticed general permits. The review of all agricultural activities, including permitting, compliance, and enforcement, is the responsibility of the water management districts. Florida’s Department of Agriculture and Consumer Services (FDACS), in cooperation with the DEP and the water management districts also have developed various Best Management Practices handbooks to assist the agriculture community in working in a manner that will minimize adverse impacts to wetlands and other surface waters.
  • Certified aquaculture activities that apply appropriate best management practices adopted under section 597.004 are exempt from the need for permits under part IV of chapter 373, F.S. Compliance, enforcement, and permitting of such aquacultural activities are the responsibility of FDACS. Compliance, enforcement, and permitting of activities that are not so certified continue to be the responsibility of the DEP.
  • The SWFWMD has developed a unique Agricultural Ground and Surface Water Management (AGSWM) program.
  • “Ag-team” staff have been established in local service offices to provide full service water management regulation for agriculture. This initiative has been underway for nearly eight years.
  • SWFWMD's four principle service offices have assigned and trained Ag-Team staff who specialize in Water Use, Surface Water and Environmental regulation for agriculture. The Technical Services Department has an Ag-Team "Facilitator" who works with local Ag-Team staff to provide technical oversight and direction, and to foster cooperation on a regional or state basis. Also, TSV has an irrigation engineer who works with agricultural water management research and on other special projects to assist the regulated public.
  • AGSWM was developed by District staff and members of the agriculture community. AGSWM is an alternative regulatory process for agricultural operations that uses field visits, site specific conservation management planning and technical provisions to foster agricultural production and environmental resource protection. SWFWMD staff encourages farmers who are planning activities that are subject to Environmental Resource Permitting (ERP) or Water Use Permitting (WUP) regulation to use the AGSWM pre-application review process, which can help facilitate exemption determination or permitting review. In addition, a few years ago a Senate report, entitled “A Bridge Over Troubled Waters,” cited the District’s alternative agricultural regulatory process as a model for future practices.
  • Since 1991, the SWFWMD has provided about $200,000 per year for USDA Natural Resources Conservation Service to support technical assistance that helps farmers and SWFWMD staff to implement site specific ecosystem based conservation management planning. Agricultural projects that qualify for an ERP/AGSWM exemption letter must be planned and implemented according to prescribed conservation management planning practices.
  • The AGSWM process, using local Ag-teams, encourages a "customer service" based approach to ERP and WUP regulation. This can result in better understanding and faster processing of applications, which in turn, helps growers reduce production delays and helps the SWFWMD avoid compliance and enforcement procedures.

Penalties and Enforcement

  • Florida employs a combination of the authorities listed below to address civil, administrative, and criminal actions. The great majority of violations are resolved using civil or administrative procedures, with criminal actions used only in the most serious cases or cases that staff can not resolve through other available avenues and for which criminal sanctions are provided.
  • Staff from the DEP and water management districts (or, where applicable, the delegated local government) that have responsibility for an activity under the respective Operating Agreements are responsible for compliance and enforcement of both the regulatory and the proprietary aspects of a permit and applicable sovereign submerged lands authorization.
  • Enforcement is authorized under s. 373.129 of the Florida Statutes to be administered in the same manner and to the same extent as provided in sections 373.430, 403.121(1), 403.121(2), 403.131, 403.141, and 403.161, F.S. Remedies include:
    • Judicial (civil) actions in a court of competent jurisdiction; (provisions under 403.121(1)):
      • can recover damages for injury to air, waters, or property, including plants, animals and aquatic life;
      • civil penalties up to $10,000 per offense; each day constitutes a separate offense;
  • Administrative (provisions under 403.121, 253.04 and rule 18-14, F.A.C.):
    • can recover damages and in addition assess penalties up to $5,000 depending on type and extent of violations;
    • can recover damages to sovereign submerged lands, can also assess fines up to $10,000 per offense; each day constitutes a separate offense. When violator upon notice ceases the activity and applies for appropriate authorization, fines shall not exceed $2500.00 per offense (rule 18-14);
  • Injunctive Relief:
    • may seek injunctive relief in court (s. 403.131, F.S.);
  • Criminal provisions ( 403.161 ):
    • willful violation of wetlands regulations—fine of not more than $50,000 and/or imprisonment for up to 5 years for each offense; each day constitutes a separate offense;
    • eckless indifference or gross careless disregard causing violations of wetlands regulations—fine of not more than $10,000 and/or 6 months in jail for each offense;
    • conducting aquaculture on sovereign submerged lands without proper authorization—fine of not more than $1,000.00 and/or up to 6 months in jail and forfeiture of property on sovereign submerged lands (253.74 FS); and
    • trespass and theft of property from sovereign submerged lands—imprisonment as provided by law;
  • Criminal provisions may only be enforced by Office of the State Attorney (prosecutor).

Permit Tracking

The DEP and each water management district have their own tracking system to record the progress of each permit application and all enforcement cases. However, some common data are tracked, reviewed, and reported statewide.

The DEP’s permit tracking system is called Permit Application. It keeps track of permit application numbers, processors, time clocks (date received, dates of requested information, date application became complete, date of agency action), agency action (issued, denied, withdrawn, exempt, general permit), and geographic locators (including section, township and range). Enforcement and compliance tracking in the DEP is performed by the Compliance and Enforcement Tracking system.

Each water management district has its own tracking system that, at a minimum, also tracks the above information. Some, such as in the SFWMD automatically generate a staff report based on information inputted; that system also includes extensive pre- and post-project water level and other engineering data. Others include extensive tracking information on such things as permit condition compliance and mitigation success status, and are fully integrated with a Geographic Information System (GIS) linkages. For example, the SWFWMD permit tracking system is called the Resource Regulation Database (RRDB). The RRDB tracks permit applications as they are processed as well as compile selected project details. A GIS is used to collect selected location information. Compliance and enforcement activities are tracked from when action is initiated until the action is resolved.

State General Permit (PGP or SPGP) for 404

A pilot SPGP was issued to the Jacksonville District office of the DEP in August, 1995; that pilot was expanded to other district offices of the DEP in 1996. On September 24, 1997, the Jacksonville District of the Corps issued an SPGP III to the DEP that replaced the previous SPGP. SPGP III extended the geographic coverage throughout Florida, excluding Monroe County and those counties within the jurisdiction of the Northwest Florida Water Management District. The purpose of the SPGP III is to avoid duplication of permitting between the Corps and the DEP for minor work located in waters of the United States, including navigable waters. This has the effect of eliminating the need for separate approval from the Corps for certain activities. Activities covered by the SPGP include:

  • construction of shoreline stabilization activities (such as riprap and seawalls; groins, jetties, breakwaters, and beach nourishment/re-nourishment are excluded);
  • boat ramps and boat launch areas and structures associated with such ramps or launch areas;
  • docks, piers, marinas, and associated facilities;
  • maintenance dredging of canals and channels;
  • selected regulatory exemptions; and
  • selected ERP noticed general permits.

Applications that are received for the above activities are first reviewed to determine if they meet all the conditions of the SPGP. Those that do are processed as “green,” in which case issuance of the DEP permit constitutes issues of the corresponding federal dredge and fill permit. Those that do not are processed as “yellow,” in which case a copy of the application is forwarded to the Corps. These applications are reviewed by the Corps and are either:

  • Returned to the state for processing with or without additional federal conditions; or
  • Retained for processing by the Corps.

At this time, permits processed by the water management districts are not included in the SPGP. However, negotiations continue on expanding the SPGP to include ERP permits processed by the water management districts and Broward County.

Assumption of Section 404 Powers

Florida investigated the possibility of assuming the section 404 several years ago. Substantial impediments would exist with such an assumption. These include:

  • Most of Florida’s waters are non-assumable waters because they are navigable, navigable in fact, or navigable with improvement, and hence are covered by section 10 of the Rivers and Harbors Act. Considerable confusion would exist at both the public and the staff level with a permitting system that would require a determination of the status of such waters and the wetlands associated with them.
  • There are differences between the methodology used by the state of Florida to delineate the landward extent of wetlands and other surface waters and the federal methodology (see discussion above). While in many areas those differences are not significant, in other areas there are significant differences. Florida has identified two key species (slash pine and gallberry) that are primarily responsible for these differences. Florida does not consider areas dominated by these species (in the absence of other indicators, such as hydric soils) to be wetlands although those areas may be classified as wetlands under the federal methodology. The Florida legislature would have to expand the state methodology to include those areas. At this time it does not appear the federal government has the authority to make regional adjustments to the 1987 manual. Absent an ability to use “one line” in Florida, considerable confusion would exist with the public and the agencies in identifying such areas, and developing a workable solution to authorize activities in such areas that are claimed as wetlands by one agency and not the other.

Joint Permitting

The Corps and Florida have adopted joint ERP and wetland resource application booklets and forms, and coordinate under an Operating Agreement. Under this agreement, the DEP or water management district initially receive all ERP and wetland resource permit applications. Copies of those applications that do not qualify under the SPGP (see above) are forwarded to the Corps within five working days. At that point, both the Corps and the DEP or water management district independently process their respective applications. The Corps cannot act on applications that require a federal dredge and fill permit until the state ERP or wetland resource permit has been issued, which permit contains the federal water quality certification and coastal zone consistency concurrence determination (or waiver thereto).

Special Area Management Plans and Advanced Identification Plans

A Special Area Management Plan was developed by the Corps for Bird Drive Basin in Dade County in between 1992 and June 1995, and is still in effect. The DEP and Metropolitan Dade County (Department of Environmental Resources Management) entered into a Memorandum of Understanding dated April 27, 1993, that directs that applicants requiring mitigation within the basin will contribute a specified amount of money to Miami-Dade County, which is in turn used to implement the Hole in the Donut Mitigation Bank within Everglades National Park.

ADIDs have been developed for western Biscayne Bay (for the shoreline east of Cutler Ridge), the Florida Keys (Monroe County), the Loxahatchee River (Palm Beach County), Eastern Everglades (near the 8 1/2 square mile area), and Rookery Bay (Collier County). These help applicants identify areas where permitting difficulties can be expected, but they do not otherwise directly affect the state permitting process. An ADID for western Broward County was developed but never approved by EPA.

In addition to the above, the Jacksonville office of the Corps has developed an innovative Comprehensive Conservation, Mitigation and Permitting Strategy that targets areas around the state that are experiencing significant development pressure with concurrent concerns with long term habitat and water quality impacts, or where large scale projects are underway that can be expected to result in significant regional impacts. These include the Dade County Lake Belt, Santa Rosa County, St. Joe Development (in the panhandle), Walt Disney World, and an Environmental Impact Statement for South West Florida. Each of these has involved coordination with the DEP asnd the water management districts.

Role of Local Governments

Section 373.441, F.S., and its implementing rule chapter 62-344, F.A.C., provide the procedures and considerations for the DEP and the water management districts to delegate the ERP program to local governments. Delegations can be granted only where:

  • the local government can demonstrate that delegation would further the goal of providing an efficient, effective, and streamlined permitting program; and
  • the local government can demonstrate that it has the financial, technical, and administrative capabilities and desire to effectively and efficiently implement and enforce the program, and protection of environmental resources will be maintained.

To date, only one local government (Broward County) has received a comprehensive, albeit limited geographically and to certain project types, delegation of the ERP program from the DEP and the SFWMD. Their responsibilities include permitting, compliance, and enforcement of activities for which they have been given responsibility under a Delegation Agreement adopted in chapter 62-113, F.A.C.

Miami-Dade County has a limited delegation from the DEP to confirm sovereign submerged lands consents of use under chapter 253, F.S., for activities that qualify for the s. 403.813(2)(b), F.S., regulatory exemption for private single-family docks.

The City of Tallahassee has a delegation from the DEP to review, take agency action on, and perform compliance and enforcement of stormwater general permits under chapter 62-25, F.A.C., in accordance with a Delegation Agreement adopted in chapter 62-113, F.A.C.

Staffing (Regulatory Staff)

Department of Environmental Protection.

Primary Responsibility # Full Time Staff
Permitting 104*
Compliance & Enforcement 62*
Administrative 22

 

 

 

 

*Many staff share responsibilities for permitting, compliance, and enforcement. Numbers shown for compliance and enforcement are staff who are primarily assigned this responsibility.

Water Management Districts

Primary Responsibility # Full Time Staff
Permitting 149
Compliance & Enforcement  86
Administrative 79

 

 

 

Broward County (Delegated Program)

Primary Responsibility # Full Time Staff
Permitting 15
Compliance & Enforcement Incl. with Above
Administrative 3