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SUMMARY

Overall Program:  

Florida has a comprehensive state regulatory program that regulates most land (upland, wetland, and other surface water) alterations throughout the state.  The regulatory program also includes a federal State Programmatic General Permit (SPGP) and implementation of a statewide National Pollutant Discharge Elimination System (NPDES) program.  In addition activities located on or using state-owned sovereign submerged lands also require applicable proprietary authorizations (including Consents of Use, Leases, and Easements).  Major features of this program are described under Wetland Regulatory Statutes.

Innovative Features and New Programs/Initiatives:   

·	The comprehensive nature of the state program is broader than the federal program in that it also regulates alterations of uplands that may affect surface water flows, including addressing issues of flooding and stormwater treatment;
·	The state program is in addition to, not in place of or superseded by the federal dredge and fill permit programs.  There are no thresholds wherein some activities are reviewed by the state and others by the federal government.  In essence applicants must get all applicable permits and authorizations from both the state and the federal government before beginning work;
·	The division of responsibilities between the state Department of Environmental Protection (DEP) and the water management districts (who have regional ad valorum taxing authority);
·	The linkage of the state regulatory and proprietary programs discussed above;
·	A wetland delineation methodology ratified under state law that is binding on all state, regional, and local governments throughout Florida.  This methodology is specific to Florida, and differs from the federal wetland delineation methodology (see below);
·	A statewide mitigation banking program implemented by the DEP and three of the state’s five water management districts;
·	Environmental Resource Permits (ERP) are permits that are valid for the life of the system (includes all structures and works authorized for construction or land alteration).  The ERP permit does not automatically expire after the construction phase (typically a five-year period), and continues to cover operation (use of) of the system;
·	A program to authorize regional mitigation for Florida Department of Transportation (FDOT) Projects (see below);
·	A joint permit application form, wherein applicants for a federal dredge and fill permit apply directly to either the DEP or the applicable water management district using the same form that is used for the state ERP or wetland resource permit.  The DEP and the water management districts then forward the application to the U.S. Army Corps of Engineers (Corps) for concurrent federal permit processing (which can only be issued after issuance of the applicable state permit that grants or waives water quality certification);
·	A program that regulates the trimming or alteration of mangroves;
·	The issuance of a (SPGP) from the Corps to the DEP that provides that certain activities (such as docks, seawalls, dredging, and activities that qualify for state exemptions or general permits) that qualify under the state regulatory program also will receive the associated federal dredge and fill permit; and
·	A limited delegation of the ERP program from the DEP and the South Florida Water Management District (SFWMD) to Broward County.

State Wetland Conservation Plan 

Florida has its independent statutes and rules governing activities in wetlands, as described above.  Although Florida’s program essentially contains all the required elements of a State Wetland Conservation Plan, Florida has never packaged the program for the U.S. Environmental Protection Agency (EPA) review and sign-off.  Therefore, Florida does not operate under an EPA-approved State Wetland Conservation plan at this time.

No Net Loss/Net Gain Goal  

Florida does not have a goal of no net loss or gain of wetland acreage.  However, the regulatory rules are written so as to be implemented in a manner that achieves a programmatic goal, and a project permitting goal, of no net loss in wetland or other surface water functions (not including activities that are exempt from regulation or that are authorized through a noticed general permit).  An ERP permit standard is that activities must not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters.  The wetland resource permit program does not actually contain the above stated goals, but operates such that an activity must not be contrary to the public interest, which typically includes offsetting wetland impacts.  The applicable evaluation criteria will be discussed below.

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).
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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.

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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 (More)

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. (More)

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
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