FDEP - Wetland Resource Permitting Program

Environmental Resource Permitting (ERP) and Sovereign Submerged Lands (SSL) Rules

Wetland Resource Permitting Program

I. GENERAL
II. AUTHORIZING STATUTES AND RULES
III. ACTIVITIES WHICH REQUIRE PERMITS
IV. INITIAL PROCESS
V. JURISDICTION
VI. EXEMPTIONS
VII. GENERAL PERMITS
VIII. INDIVIDUAL PERMITS
IX. DIVISION OF RESPONSIBILITIES
X. PRE-APPLICATION MEETINGS
XI. OTHER PERMITS/AUTHORIZATIONS
XII. PROCESSING OF INDIVIDUAL WETLAND RESOURCE PERMITS
XIII. PERMIT LENGTH, TRANSFER, AND MODIFICATION

I. GENERAL

The wetland resource permitting program described herein was originally authorized pursuant to the Warren S. Henderson Wetlands Protection Act in 1984, found in Sections 403.91 - 403.929, Florida Statutes (F.S.). The wetland resource program is effective only in the panhandle of Florida, within the jurisdictional area of the Northwest Florida Water Management District. The Environmental Resource Permitting rule is effective in the rest of the state, although the wetland resource program is used for activities which are grandfathered according to Sections 373.414(11), (12)(a), (13), (14), (15), and (16).
However, in the 2006 legislative session through amendments to S. 373.4145, F.S., the Northwest ERP rulemaking was authorized. The rules addressing stormwater quality and quantity are effect as of October 1, 2007. The rules addressing the remaining components of the comprehensive ERP program, including isolated wetlands, are currently being developed and will be complete no sooner than January 2008.

II. AUTHORIZING STATUTES AND RULES

The following statutes and rules govern activities regulated by the wetland resource permit program:

Chapter 120, Florida Statutes (F. S.), Administrative Procedures Act.

Part IV, Chapter 373, F. S.

Chapter 403, F.S., including the permitting of activities in wetlands (Sections 403.91 929) F.S. [Note: although these sections have been repealed by FERA, these sections remainapplicable for the wetland resource permit program until the ERP rules become effective, pursuant to Section 373.414(9), F.S.]

Mangrove Trimming & Preservation Act 403.9321 – 403.9333, F.S.

Water Quality Standards - Chapters 62-3 and 62-302, F.A.C.

Rule and Procedures for Permits - Chapter 62-4, F.A.C.

Rule and Procedures for Dredge and Fill Activities - Chapter 62-312, F.A.C.

Regulation of Stormwater Discharge - Chapter 62-25, F.A.C.

25-Year Permits for Maintenance Dredging in Deep Water Ports Chapter 62-45, F.A.C.

III. ACTIVITIES WHICH REQUIRE PERMITS

Permits are required for dredging, filling and construction of structures within the landward extent of wetlands and other surface waters unless the activity specifically qualifies for one of the exemptions described here. This includes the excavation (dredging) of channels, canals, ditches, lakes; deposition of fill; construction of docks, fishing and observation piers, wharves, mooring piles, dolphins, boardwalks, platforms, artificial reefs, navigational markers and signs, boat ramps, fences, dams, jetties, groins, dikes, bridges, utility lines, mines, salvage operations, including treasure salvage; or other dredging or filling activities in or connecting to jurisdictional waters.
"Dredging" is defined as the excavation, by any means, in wetlands or other surface waters. It also includes the excavation, or creation, of a water body which is, or is to be, connected to waters, directly or via an excavated water body or series of excavated water bodies. [F.A.C. Rule 17-312.020(6)].
"Filling," - Deposition, by any means, of materials in waters. [F.A.C. Rule 17-312.020(10)]. "Materials" includes pilings, but excludes the placement of crab traps, similar devices, and oyster cultch [F.A.C. Rule 17-312.020(13)].

IV. INITIAL PROCESS

It is suggested that the following sequence of events be followed when considering the need for a wetland resource permit:

Is an application required/Is a permit required?
- Does the activity consist of dredging and filling?
- Is the activity located within a wetland or other surface water?
- Does the activity qualify for an exemption?
Does the activity qualify for a general permit?
Where should the application be submitted?
Who can be contacted for additional information to answer the above?
- Agency staff of the Department or Districts
- Environmental consultant
- Environmental attorney
What other permits might be needed?

The above issues will be discussed briefly below, along with the evaluation criteria which are used to evaluate individually-processed permit applications.

V. JURISDICTION

Once it has been determined that the activity consists of dredging or filling, the next step is to determine whether or not the activity is located within the landward extent of wetlands or other surface waters. The methodology for making this determination changed, effective July 1, 1994. The new methodology is contained in Chapter 62-340, F.A.C., which was adopted pursuant to Section 373.421, F.S., and became effective upon the effective date of the legislative ratification of the rule in Section 373.4211, F.S. This new methodology, which delineates the landward extent of all wetlands and other surface waters, including isolated wetlands, is applicable throughout the state, except within the Jurisdictional limits of the Northwest Florida Water Management District (NWFWMD) until July 1, 1999, and except for activities, project areas, and former wetland delineations which meet the criteria in Sections 373.414(12)(b) or (c), (13), (14), (15), or (16), F. S.
The landward extent of wetlands and other surface waters may be determined by the submittal of a permit application, by petitioning the Department or a District for a formal wetland determination, or through an informal, non-binding determination by the Department or the Districts on a "time-available" basis.

VI. EXEMPTIONS

Once an activity is determined to consist of dredging or filling within the landward extent of wetlands or other surface waters, the next step is to determine whether the activity qualifies for any of the exemptions contained in Section 403.813(1), F.S., and Section 62-312.050, F.A.C. Such a determination can be made by a permit applicant simply by reviewing the criteria in the applicable statute and rule. An application is not required, but it is suggested because a determination that an activity qualifies for an exemption under Chapter 403, F.S., does not necessarily mean that the activity does not need other state, federal, or local authorizations. Through the submittal of an application, the application is distributed to other agencies so those agencies can make their own determination regarding the need for other authorizations. The submittal of such an application does not require the submittal of an application fee. In any case, a determination that an activity qualifies for an exemption does not relieve the requirement that water quality standards must be maintained during the performance of the work, nor from the requirement to obtain all other needed Federal, State, and local approvals.

VII. GENERAL PERMITS

Once it is determined that an activity located within the landward extent of wetlands or other surface waters does not qualify for one of the exemptions described above, the next step would be to determine whether the activity qualifies for any of the general permits contained in Sections 62-312.801 - .822, F.A.C. A general permit is a self-executing permit which does not undergo individual review by the Department or District. If the activity meets all the criteria of the applicable listed general permit, a Notice of Intent to Construct Works Pursuant to Wetland Resource General Permit must be provided to the Department or District at least 30 days prior to initiating activity. Once the notice has been submitted, an applicant may presume they qualify for the general permit unless notified by the Department or District that the activity does not qualify 30 days after notice was received by the Department or District. The notice requires the submittal of a $100.00 application fee. As with exemptions, an activity which qualifies for a wetland resource general permit still is also subject to any other state, local and federal authorizations which may be required.

VIII. INDIVIDUAL PERMITS

For those activities which require permits but which do not qualify for a general permit, an individual permit is required. To apply for an individual permit, a Joint Application for Works in the Waters of Florida must be submitted to the appropriate Department or District office in accordance with the activity based division of responsibilities discussed below, and in accordance with the procedural rules of the Department and District. A copy of the joint application form may be obtained by contacting the local office of the Department or District. To be considered by the Department or District, the application must be submitted with the complete, appropriate processing fee. For the Department, the list of such processing fees is contained in Chapter 62-4, F.A.C. Fees for applications to the Districts are contained in the appropriate procedural rules of the Districts. In general, permit fees range from $300 to $4,000 (depending on the size of the project) for a five-year permit, and $6,000 to $25,000 (depending upon the duration of the permit) for permits of between six years and 25 years in duration.

When submitting an application for an individual permit to the Department, the fee for the permit is dependent upon whether the activity is a "short form" application, which would be processed by one of the six Department district offices, or a "standard form" application, which would be processed by the Bureau of Submerged Lands and Environmental Resources in Tallahassee. Most applications are processed as "standard form" (District Review) projects by the Department district offices. Projects which do not meet the short form criteria are processed by the Bureau of Submerged Lands and Environmental Resources in Tallahassee as "standard form" (Bureau Review) applications. The following projects qualify for processing as "short form" applications:

Excavation or filling of < 10 acres of jurisdictional waters of the State.
Docking facilities > 10 wet slips which are not associated with commercial or boating supplies or services, or the addition of not more than 20 docking slips to existing functional facilities where the total facility will not exceed 50 slips and the existing and proposed facilities are not associated with commercial or boating supplies or services.
Seawalls < 500 linear feet.
The installation of buoys, aids to navigation, signs, fences, and ski ramps, and the installation of fish attractors by the Florida Game and Fresh Water Fish Commission.
Dredging or filling associated with salvage operations or bridge demolition activities.
Installation of subaqueous lines.
Artificial reefs.
Any other project designated for short form review at the Secretary's discretion.

IX. DIVISION OF RESPONSIBILITIES

The Department and the Northwest Florida Water Management District share responsibilities for implementing the wetland resource permitting program and stormwater program. The division of responsibilities occurs in accordance with Operating Agreements which have been executed between the Department and the District. In essence, these agreements provide that the Department and the District have permitting, enforcement, and compliance responsibilities for certain activities, as summarized. The division of responsibilities generally is further organized so that for activities which require other permits (i.e. a hazardous waste permit or a solid waste permit), the application would be submitted to the one agency that has the responsibility for those other, related permits. When submitting an application, this list of activities should be reviewed to determine whether to submit the application to the Department or to the District. Applications which are submitted to the incorrect agency will be returned to the applicant unprocessed.

X. PRE-APPLICATION MEETINGS

Both the Department and the District staff are available for pre-application meetings to discuss applications prior to their submittal. Through such a meeting, staff can help the applicant through the large number of options that exist regarding whether a permit is needed, whether the activity is located within the landward extent of surface waters and wetlands, whether the activities may qualify for an exemption or general permit, which agency to whom the application should be submitted, and the proper fee for the application. Further, staff can help recommend ways for applicants to minimize project impacts prior to the submittal of an application. Therefore, it is recommended that agency staff be consulted prior to preparing the permit.

XI. OTHER PERMITS/AUTHORIZATIONS

The application process described herein summarizes only the wetland resource permit program. Prior to construction or any dredging and filling in surface waters and wetlands, an applicant is required to obtain all necessary State, federal and local authorizations, The Department, the Districts, and the U. S. Army Corps of Engineers (Corps) have developed a joint application process. Under this process, the Department or the District (again, depending upon the activity based division of responsibilities) will serve as the initial agency to whom the application should be submitted. Once received, the agency will distribute a copy of the application to the Corps. Both the Corps and the Department or District will independently process the application, including separate requests for additional information and separate evaluation processes. Generally, the Corps will not issue their permit until the Department or the District issues the required state authorization under Chapter 403, F.S., because issuance of such a Chapter 403, F.S., permit will also constitute state water quality certification under Section 401 of the Clean Water Act. The Corps cannot issue their corresponding federal permit without a state water quality certification.

Activities that are located on sovereign submerged lands may also require a corresponding authorization from the Board of Trustees of the Internal Improvement Trust Fund (BOT). When a wetland resource permit application is received for activities which appear to be located on sovereign submerged lands, a copy of the application and drawings is forwarded to the Division of State Lands in the Department for determination of ownership. In the event the activity is located on state-owned submerged lands, the appropriate type of authorization is processed by the Department.

In addition to the above, a separate permitting process exists for altering mangroves when the mangrove alteration does not occur as part of a wetland resource permit or exemption. The law which covers mangrove alterations is Chapter 403.9321 – 403.9333, F.S.

As throughout the rest of the state, stormwater is reviewed using the criteria of the water management district rules which cover the area in which the project is located. The ERP stormwater rules of the Northwest Florida Water Management District are effective October 1, 2007 as part of Phase 1 of the ERP rulemaking process. When stormwater permits are required as part of an activity that also requires a wetland resource permit under review by the Department, the stormwater authorization is reviewed and approved or denied as part of the wetland resource permit. Grandfathered stormwater permits are reviewed pursuant to Chapter 62-25, F.A.C.

XII. PROCESSING OF INDIVIDUAL WETLAND RESOURCE PERMITS

A. Evaluation. Additional information must be requested within 30 days of receipt of application. Further processing is usually suspended until the additional information submitted. Additional requests for information are prepared as necessary within 30 days of receipt of information submitted after first R.A.I. An application is determined to be complete when all information is submitted. A permit must be issued or denied within 90 days of receipt of a complete application, unless this time period is waived by the applicant. The overall time to process an application is determined by how long it takes to submit a complete application, which is largely dependent upon the level of detail submitted by the permit applicant, and the responsiveness of the applicant to submitting requested information.

There are three major components to the evaluation of a permit application. These are:

Water quality. Pursuant to Section 62-312.070, the applicant must provide reasonable assurance that the proposed dredging and filling will not result in violations of the water quality criteria of Chapters 62-3 and 62-302, F.A.C. Activities located within Outstanding Florida Waters (OFW's) must additionally not degrade ambient water quality in accordance with Chapter 62-4.242, F.A.C. If a project cannot meet standards because ambient water quality does not meet standards, the Department or District must consider measures that cause a net improvement of water quality. When appropriate, compliance with these criteria may be granted a mixing zone to comply or a variance.
Public Interest. A wetland resource permit shall not be issued unless the applicant provides reasonable assurances that the project is not contrary to the public interest. For projects in OFW'S, an applicant must provide reasonable assurance that the project is clearly in the public interest. In determining public interest, the Department or District shall consider and balance whether the project will:
- Aversely affect public health, safety, welfare or property of others;
- Adversely affect conservation of fish and wildlife, including endangered or threatened species or their habitats;
- Adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
- Adversely affect fishing or recreational values or marine productivity in the vicinity of the project;
- Be of a temporary or permanent nature;
- Adversely affect significant historical or archaeological resources; and
- Adversely affect the current condition and relative value of functions performed by the wetlands.

Cumulative Impacts. The Department or District, in their decision whether to issue or deny a permit also shall consider the cumulative impact of other projects (Section 403.919, F.S.), based on the following factors:
- Projects which are existing, under construction of for which permits or jurisdictional determinations have been sought;
- Projects which are under review, approved or vested pursuant to Section 380.06, F. S.; and
- Other projects which "may reasonably be expected to be located with" the jurisdiction of the Department or a District. This determination is to be based upon existing land use regulations and restrictions.

B. Mitigation. If a project has adverse impacts which render it unable to meet the permitting criteria, the applicant, the Department, or the District may propose measures which will mitigate for the otherwise unpermittable adverse impacts. If the Department or District determines that the proposed mitigation will offset or compensate for the adverse impacts to an extent which will make the project not contrary to the public interest, or clearly in the public interest if in an OFW, the project may then receive a permit.

Mitigation may not be considered "up front" or until project determined not to be permittable without mitigation, except for mining applications. Mitigation will not be evaluated until the Department or a District have first considered practicable alternatives to reduce or avoid the unpermittable aspects of a project, although the "the no project alternative" is not an acceptable modification. Mitigation is defined as measures which compensate for or enhance aspects of projects which do not meet permitting criteria. Appropriate mitigation proposals can consist of one or a combination of

Restoration of wetlands or other surface waters
Enhancement of wetlands or other surface waters
Creation of wetlands or other surface waters
Preservation of wetlands and other surface waters
Net improvement of water quality or aquatic habitat

However, mitigation may not be able to offset impacts in some cases, such as to offset significant degradation to Outstanding Florida Waters, when endangered species are adversely affected, or when there is a likelihood that the mitigation will not be able to successfully create, restore, or enhance a particular wetland type.

For projects which cannot meet the public interest or water quality criteria, an applicant may propose mitigation to offset the adverse impacts which otherwise make the project ineligible for a permit, in accordance with section 373.414(l)(b), F.S. Florida has a state-wide uniform wetland mitigation assessment method to determine the amount of mitigation needed to offset adverse impacts to wetlands and other surface waters and to determine the number of mitigation bank credits awarded and debited. The Unified Mitigation Assessment Method (UMAM) is described in Chapter 62-345, Florida Administrative Code. The method is binding on the department, the water management districts, local government and other governmental entities, in the form of an “exclusive and consistent process” for the evaluation of wetland and determination of mitigation amount. The type of wetland mitigation used to offset a project’s impact depends greatly upon the type of permitted impact and what wetland functions have been impacted. The mitigation plan for a permitted project often involves multiple types of mitigation

The procedures for evaluating mitigation proposals are contained in Sections 62-312.300 - .390, F.A.C. In all cases, reasonable assurance must be provided that mitigation can be successful, as determined on a case by case basis (see Sections 62-312.340 and 350, F.A.C.). When mitigation is determined to be appropriate, the mitigation proposal from an applicant must be in writing, and will not restart the 90 day processing time clock.
Off-site mitigation is appropriate in some instances, such as road corridors and utility alignments, but typically requires higher mitigation ratios than on-site mitigation. In addition, off-site mitigation must be determined to offset the otherwise unpermittable aspects of the project, which typically requires that the mitigation be as close as possible to the site of impact and within some waterbody or same drainage basin as affected waters.

Preservation of mitigation sites may be required to ensure that the site will remain undisturbed for a time period sufficient to ensure that the site can become successful. Long term mitigation may be required to prevent future cumulative impacts and to provide r reasonable -assurance that the functions which are designed to be offset by the mitigation activity will continue into the future. Conservation easements and land conveyances may be considered as mitigation if they offset impacts that otherwise make the project unpermittable. Property restrictions on uplands can be appropriate when they will protect wetland functions.

The rule (Section 62-312.390, F.A.C.) contains detailed information which is required for applicants to provide reasonable assurance of financial responsibility sufficient to ensure the success of the mitigation activity, including monitoring and contingency efforts when the estimated cost of the mitigation is $25,000 or more. The amount of the financial assurance must be 100% of the estimated cost of the mitigation.

The success criteria which must be met include:

Water quality criteria;
Hydrologic regime sufficient to maintain viability;
Success criteria in permit.

When making a success determination, climatic conditions will be considered. A comparison to reference waters is required when insufficient information exists to judge success. Reference waters must be sufficiently similar to mitigation site, but do not need to exactly duplicate conditions at the mitigation site.

XIII. PERMIT LENGTH, TRANSFER, AND MODIFICATION

Permits are usually good for 5 years, but the length of the permit may be extended up to 25 years. Permits with a 5 year or greater duration are reviewed and updated at 5 year increments. A permit may not be extended or renewed once expired. Permits are issued to a specific person and do not "run with the land". Transfer of a permit is possible only when approved in writing by the Department or District.

Modifications of permits can be made, and are evaluated with respect to whether the modification is considered minor or major. Minor modifications do not have the potential to change the environmental impact of a project, and can be evaluated for a $250 processing fee. Major modifications have the potential to have new environmental impacts and are evaluated upon payment of a complete new application fee equivalent to a new permit application. The submittal of a major modification request and application fee will restart the 90 day time clock and will be evaluated as a new application, including the potential for new public notices.