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Publication #FE606

Handbook of Florida Water Regulation: Activities in Wetlands and Watersheds1

Michael T. Olexa, Tatiana Borisova, and Sean Crisafulli2

Preface

This handbook is designed to provide an accurate, current, and authoritative summary of the principal federal and state (Florida) laws that directly or indirectly relate to agriculture. This handbook provides a basic overview of the many rights and responsibilities that farmers and farmland owners have under both federal and state laws as well as the appropriate contact information to obtain more detailed information. However, the reader should be aware that because the laws, administrative rulings, and court decisions on which this handbook is based are subject to constant revision, portions of this publication could become outdated at any time. Several details of cited laws are also left out due to space limitations.

This handbook is distributed with the understanding that the authors are not engaged in rendering legal or other professional advice, and the information contained herein should not be regarded as a substitute for professional advice. This handbook is not all inclusive in providing information to achieve compliance with the federal and state laws and regulations governing water protection. For these reasons, the use of these materials by any person constitutes an agreement to hold harmless the authors, the UF/IFAS Center for Agricultural and Natural Resource Law, the Florida Cooperative Extension Service, the Institute of Food and Agricultural Sciences, and the University of Florida for any liability claims, damages, or expenses that may be incurred by any person as a result of reference to or reliance on the information contained in this handbook.

Wetlands and Watersheds

Who regulates wetlands?

Wetlands fall under the protection of the federal Environmental Protection Agency. The regulation of wetlands is carried out at the federal level by the Army Corps of Engineers and at the state level by the Florida Department of Environemntal Protection.

Federal protection of wetlands stems from several sources. Under the Clean Water Act (CWA), the Army Corps of Engineers (ACE) is authorized to issue permits for the discharge of dredge and fill material into waters of the United States. Coupled with this authority, and pursuant to the National Environmental Policies Act (NEPA), ACE must complete an environmental impact study before issuing a permit for work in sensitive areas, especially wetlands. As added checks on ACE's authority to issue dredge and fill permits, ACE is required to consult with other federal and state agencies whenever relevant and, by virtue of CWA, the Administrator of the United States Environmental Protection Agency (EPA) retains the power to veto ACE-issued permits at EPA's discretion. While this veto is rarely used, it creates a type of power-sharing system.

On the state level, the Florida Department of Environmental Protection (FDEP) is primarily responsible for wetland protection. FDEP has been given authority to protect environmentally sensitive wetland areas and designated areas of critical state concern. Prominent examples include the Florida Keys, Big Cypress Area, Green Swamp Area, the Everglades Protection Area, and the Apalachicola Bay Area.

In addition, the appropriate Florida water management district (FWMD) should be consulted with regard to any work to be done near any wetland. FWMDs have adopted Management and Storage of Surface Waters (MSSW) rules that regulate activities in wetlands under FDEP supervision (see FE605, MSSW). FWMDs are authorized to establish specific permitting criteria for dredge and fill operations in connected and isolated wetlands.

What are wetlands?

For the purpose of ACE permitting, wetlands include those areas with a continuous surface connection to a waterway so that it is difficult to tell where water ends and wetland begins, usually characterized by a prevalence of vegetation adapted to live in saturated soil conditions. With regard to FDEP's jurisdiction, detailed indices have been compiled to determine which soil and plant characteristics identify wetlands.

On request, FDEP or the appropriate FWMD will issue declaratory statements for particular sites regarding whether its jurisdiction extends to that area. FWMDs issue formal or informal determinations as to the extent of wetlands. These declarations are valid for up to five years as long as physical conditions on the property do not change. FWMD definitions of wetlands depend on the hydrologic, vegetative, and soil characteristics of an area.

When are wetland permits required?

Dredge and fill permits are required for any non-exempt activity under Chapter 403, Florida Statutes. To obtain a permit, the applicant must prove to FDEP (or appropriate FWMD) that state water quality standards will not be violated by the proposed dredging and filling activity.

In addition, the project cannot be contrary to public interest. Several factors must be considered in this determination, including

  • The effect on public health, safety, welfare, and property rights

  • The effects on fish and wildlife (especially on threatened or endangered species)

  • Adverse effects on navigation or harmful erosion

  • A variety of other factors such as effects on marine productivity, temporary or permanent nature of the project, and effects on historical and archaeological resources

In the final analysis, factors that mitigate destruction of the wetlands are also considered where some damage to the environment is inevitable.

Duration of permits is generally for five years and does not exceed ten years unless the project cannot reasonably be completed within that time. Under exceptional circumstances, FDEP may issue 25-year permits. Permitting fees range from $400 to $25,000 depending on duration and wetlands that are affected.

What is exempt from wetland regulations?

At the federal level. normal farming, silviculture, and ranching activities in wetlands are exempt from the fill permitting mandates of CWA. This exemption does not apply to mechanized equipment used in land clearing, as this has been held to represent a point source of pollution (i.e., fill).

At the state level in Florida, agricultural activities and agricultural closed water management systems are exempt from wetland regulation provided that the activities are consistent with agricultural activities. "Agricultural activities" are defined to include all necessary farming and forestry activities that are normal and customary for a particular area provided such operations do not impede or divert the flow of surface waters. "Agricultural closed water management" includes farming or forestry water management systems and farm ponds that are permitted pursuant to Chapter 373, Florida Statutes, or exempted from the permitting requirement of the surface water management statutes (see FE605, MSSW).

What is mitgation and mitigation banking?

The mitigation and mitigation banking process can apply to wetland activities in the same way as for MSSW (FE605). Mitigation can be used to offset potential harms resulting from activities in wetland areas. FDEP and FWMDs have established criteria on when mitigation is appropriate or desirable.

What is reclamation?

Under Florida's land reclamation statute, Chapter 378, Florida Statutes, Section 378.202, land, including weltlands, must be restored to an acceptable condition (i.e., reclaimed) after a mining operation. Reclamation is the process of returning land that has been mined to a higher dollar value by physically changing the land to a more usable state. Reclamation activities must meet the groundwater and surface water management requirements of FDEP and the appropriate FWMD, including design standards for water bodies.

In accordance with these requirements, best management practices (BMPs) should be undertaken to minimize erosion after reclamation. Also, for mining activities on shorelines, specific procedures for shoreline treatment are prescribed by BMPs where digging results in the formation of a water body as follows:

  • The appropriate FWMD executive director must be notified of a party's intent to extract minerals, clay, peat, gravel, sand, or other solid substance of commercial value (usually submission of a conceptual reclamation plan is appropriate)

  • All reclamation activities should be conducted in a manner that reduces adverse impacts on groundwater and surface water resources (including wetlands), wildlife, and adjacent lands

An exemption to the notification requirement applies for digging confined to one acre or less in any given year, not to exceed five acres over the life of the mine or the party who extracts. On a similar note, fuller's clay, heavy minerals, limestone, and phosphate are covered separately by permitting requirements.

What are the rules for mangroves?

The cutting or removing of mangroves is only allowed when authorized by dredge and fill permits. The penalty for unauthorized trimming or alteration of mangroves is the cost of restoration. To avoid such a penalty, permits should be obtained, and a variance exemption may be granted where unique and unnecessary hardship will otherwise result for the applicant. Permits of this type are issued by FDEP, ACE, or a local government holding delegated authority. Cutting or removing mangroves is allowed where the environmental impact is minimal. In some cases, selective trimming may be permitted to facilitate enjoyment of riparian rights. In other cases, there are certain exceptions to the permit requirements when dealing with manmade canals, previously planted mangroves, and dead mangroves. Landowners should consult with FDEP or the appropriate FWMD to see if one of these exceptions applies.

Applications to cut or remove mangroves are transferred to county or municipal offices having jurisdiction over the area for which the permit is being requested. Applicants should be aware that there are department-approved dredge and fill regulatory programs to advise applicants on this concern.

What are the penalites regarding wetlands?

Civil liability exists for damage caused to water from unlawful dredging, filling, or destruction of wetlands. Fines may run as high as $10,000 per offense, and liability may be joint and several (see FE598, Private Regulation, for discussion of joint and several liability).

Criminal sanctions apply for willful pollution or contamination, making these violations third-degree felonies. Fines up to $50,000 per offense and imprisonment for up to five years may be imposed. Furthermore, each day of non-compliance may create a separate violation. Reckless indifference or disregard of the probability of harm to the state's water resources is a second-degree misdemeanor with a fine of not more than $5,000 or six months' imprisonment. Failure to obtain a permit, failure to comply with regulations, or making false statements to the permitting authorities are all first-degree misdemeanors punishable by a fine of not more than $10,000 or six months' imprisonment.

Source

Chapter 373, Florida Statutes, Sections 473.413 to 373.403

Chapter 373, Florida Statutes, Sections 403.9324 to 403.9333

Contact Information

Wetland and Watershed Management (see FE616, Contact Agencies)

• S-1, Florida Water Management Districts

  • S-2, Florida Department of Enviromental Protection

  • L-1, EPA Region 4 General Information

Acknowledgments

The authors are indebted to the personnel of both state and federal agencies who provided their time and advice in the preparation of this handbook. We wish to acknowledge Carol Fountain and Travis Prescott at the University of Florida for their assistance in editing this handbook.

Footnotes

1.

This is EDIS document FE606, a publication of the Food and Resource Economics Department, UF/IFAS Extension, Gainesville, FL. Published December 2005, revised June 2011 and April 2015. Please visit the EDIS website at http://edis.ifas.ufl.edu.

2.

Michael T. Olexa, professor, Food and Resource Economics Department, and director, UF/IFAS Center for Agricultural and Natural Resource Law, University of Florida, UF/IFAS Extension, Gainesville, FL, and member of The Florida Bar. Tatiana Borisova, assistant professor, Food and Resource Economics Department, University of Florida, UF/IFAS Extension, Gainesville, FL. Sean Crisafulli, student, Levin College of Law, University of Florida, Gainesville, FL.


The Institute of Food and Agricultural Sciences (IFAS) is an Equal Opportunity Institution authorized to provide research, educational information and other services only to individuals and institutions that function with non-discrimination with respect to race, creed, color, religion, age, disability, sex, sexual orientation, marital status, national origin, political opinions or affiliations. For more information on obtaining other UF/IFAS Extension publications, contact your county's UF/IFAS Extension office.

U.S. Department of Agriculture, UF/IFAS Extension Service, University of Florida, IFAS, Florida A & M University Cooperative Extension Program, and Boards of County Commissioners Cooperating. Nick T. Place, dean for UF/IFAS Extension.